In an action arising from an auto accident involving a county sheriff, the Georgia Court of Appeals recently held that the trial court did not err in concluding that O.C.G.A. § 36-11-1 applied to the official capacity claim against the sheriff. As a result, the trial court properly held that the claim against the sheriff was barred because notice wasn’t provided as required by O.C.G.A. § 36-11-1.
The plaintiff sued Douglas County and a deputy sheriff, alleging that she suffered injuries after the deputy’s vehicle collided with hers. The plaintiff wanted to add the County Sheriff as a party, but the defendants filed a motion to dismiss her amended complaint and opposed her motion to add a party. The trial court granted the motion and denied her motion to add the sheriff. She then appealed from the trial court’s order.
The Court of Appeals’ Decision
Judge Elizabeth Gobeil noted in her opinion that the plaintiff argued that the trial court erred in concluding that OCGA § 36-11-1 applies to official-capacity claims against sheriffs. That statute provides:
All claims against counties must be presented within 12 months after they accrue or become payable or the same are barred, provided that minors or other persons laboring under disabilities shall be allowed 12 months after the removal of the disability to present their claims.
The question of whether this statute applies to claims against sheriffs in their official capacity is not a new one, Judge Gobeil wrote. In Gilbert v. Richardson (1994), the plaintiffs sued the deputy sheriff and the sheriff for damages following an automobile collision. The Supreme Court of Georgia held that the plaintiffs’ claims were “in essence, claims against [the county] and [that the sheriff] may raise any defense available to the county, including sovereign immunity.” The Court of Appeals, relying upon Gilbert, subsequently has held that the presentment requirements of OCGA § 36-11-1 apply to both counties and the sheriff when sued in his individual capacity.
None of the cases cited in Gilbert for the proposition that official-capacity claims against sheriffs are the same as claims against the county actually involved claims against a sheriff. Additionally, the Supreme Court of Georgia’s holding in Gilbert addressed whether the sheriff was allowed to raise the defense of sovereign immunity, which the Supreme Court held was waived because the county had purchased insurance. Therefore, Judge Gobeil said the Supreme Court found “Gilbert‘s equation of official-capacity claims against sheriffs and claims against counties” to be “questionable.”
Nonetheless, the Georgia Supreme Court held in Gilbert that suits against a sheriff in his official capacity are, in essence, claims against the county, and the Court of Appeals subsequently has held that OCGA § 36-11-1 applies to cases brought against a sheriff in his official capacity. Therefore, the trial court did not err in finding that OCGA § 36-11-1 applied to this case. But on appeal, the plaintiff asserted that the trial court erred in ruling that a claim against a sheriff in his official capacity wasn’t sustainable even where timely notice upon county officials took place. By so arguing, the plaintiff invited the Court of Appeals to reverse its prior precedent on this issue.
Does the Statute Apply to the Official Capacity Claim Against the Sheriff?
Although the statute is silent as to how presentment is to be made, “this Court has explicitly held that OCGA § 36-11-1 applies both to the counties and to the sheriffs, when sued in their official capacities. Indeed, we have held that claims against a sheriff are not sustainable without the ante-litem notice.”
Judge Gobeil note that the plaintiff’s concerns with the Court’s existing precedent were not unreasonable. In fact, the judge acknowledged that it was a “close question.” But without direction from the Supreme Court of Georgia or the General Assembly, the Court declined to reverse its precedent.
Importantly, the Georgia Supreme Court recently noted that “[e]ven those who regard ‘stare decisis’ with something less than enthusiasm recognize that the principle has even greater weight where the precedent relates to interpretation of a statute.”
The Supreme Court had an opportunity to weigh in more widely in Moats II (2020) and as of yet, has not. And, until it does or until the General Assembly intervenes, the Court of Appeals said it wouldn’t disturb the existing case law in this area.
As a result, the Court of Appeals affirmed the trial court’s order dismissing the plaintiff’s amended complaint and denying her motion to add the sheriff. Morney v. Kiker, 2023 Ga. App. LEXIS 126 (Ga. App. March 10, 2023).
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