Georgia Supreme Court to Weighs in on Amount of Loss Requirement for Ante-Litem Notices
The State of Georgia, including all State agencies like the Department of Human Resources or Department of Transportation, is entitled to sovereign immunity except to the extent sovereign immunity has been waived by the provisions of the Georgia Tort Claims Act (“GTCA”). [See also A Practitioner’s View of the Georgia Tort Claims Act, Georgia State Bar Journal (1992)] The GTCA provides that the exclusive remedy for torts committed by a State employee is an action against the agency. Under the GTCA, the State has agreed to waive sovereign immunity for the torts of State officials and employees subject to certain exceptions and limitations. However, no tort action can be filed against the State without first providing ante-litem notice. O.C.G.A. §50-21-26(a). This is an absolute jurisdictional requirement.
Per the GTCA, the ante-litem notice must be provided to the State within one year after the incident. It must include the name of the state entity the claim will be asserted against, the time and place of the event from which the claim arose, the nature and amount of the loss suffered, and the acts or omissions that allegedly caused the loss. O.C.G.A. §50-21-26(a). The purpose of the ante-litem notice requirement is to give the State the opportunity to investigate the claim, evaluate the claim, and hopefully, facilitate settlement before a lawsuit is filed.
Failure to adhere to the notice requirements subjects a case to being dismissed. Although Georgia courts have held that a claimant must strictly comply with the notice requirements in order to pursue a lawsuit against the State, the courts have also cited the overall purpose of the law to justify a less than hyper-technical adherence to the notice provisions. See Cummings v. Ga.Dept. of Juvenile Justice, 282 Ga. 822 (2007); Georgia Ports Auth. v. Harris, 274 Ga.146 (2001).
Recently, the Georgia Court of Appeals upheld the validity of an ante-litem notice despite the claimant’s failure to include the amount of the loss claimed. Myers v. Board of Regents, 324 Ga. App 685 (2013). In Myers, the plaintiff stepped on the edge of a pothole in a parking lot at Dalton State College and sustained a left ankle fracture and torn tendons. She received emergency medical treatment, orthopedic treatment, and physical therapy for her injuries.
The plaintiff sent her ante-litem notice approximately three months after the incident. In her notice, Myers stated that the amount of her loss was “yet to be determined as she is still incurring medical bills and does not yet know the full extent of her injury.” Lawyers for the State challenged the adequacy of the notice. The Georgia Court of Appeals refused to dismiss the case, however, finding that since Myers was still treating at the time her ante-litem notice was sent, she could not reasonably quantify the amount of her damages. In doing so, the Court of Appeals reasoned that a hyper-technical adherence to the statutory language would have barred the plaintiff’s recovery, and therefore, would not have advanced the purpose of the GTCA. The Court found Myer’s ante-litem notice provided adequate notice of the claim.
One judge dissented, however, stating that Myer’s failure to include any information regarding the amount of her loss claimed frustrated the purpose of the GTCA by preventing the State from evaluating her claim. Myers could have provided the amount of her medical expenses known at the time of her ante-litem notice, the dissent noted, and simply stated that she was still undergoing treatment. The case is now pending in the Georgia Supreme Court.
In another recent case, the Georgia Court of Appeals found that the claimant failed to comply with the GTCA when he did not include the amount of loss claimed in his ante-litem notice. Driscoll v. Board of Regents, 326 Ga. App. 315 (2014). In Driscoll, the Court of Appeals stated that while plaintiff’s failure to include the amount of loss claimed in Myers was sufficient due to her on-going treatment, the plaintiff in Driscoll failed to make any mention of the amount of loss, even though they were known and complete at the time. Furthermore, there was nothing about the circumstances of Driscoll’s treatment or loss that prevented him from providing the specific amount of his loss.
These two cases evidence the balancing act the courts take between ensuring compliance with statutory requirements and advancing the legislative intent of the GTCA. If the Supreme Court upholds the decision in Myers, it will effectively negate the legislative mandate that claimants include the amount of loss they have allegedly suffered in an ante-litem notice prior to filing suit against the state, except in the most limited circumstances.