When Must an Ante Litem Notice be Filed to Sue the County for a Car Accident in Georgia?
An auto accident victim appealed the dismissal of her negligence action against Gwinnett County on the ground that she failed to provide timely ante litem notice to the County pursuant to OCGA § 36-11-1.
At issue was whether the March 14, 2020 Supreme Court Order declaring a statewide judicial emergency in response to the COVID-19 pandemic tolled the time for providing ante litem notice to the county.
On July 16, 2019, the plaintiff suffered injuries when a County police officer struck her vehicle while it was traveling westbound on University Parkway. A tractor-trailer owned by a Coca-Cola bottler was also involved in the accident. The plaintiff sent an ante litem notice to the County on November 11, 2020, and filed suit on October 26, 2021.
In her complaint, the plaintiff alleged that “[p]rior to filing [suit], [she] served a proper and timely ante litem notice upon [the] County pursuant to OCGA § 36-11-1[,]” explaining in a footnote that pursuant to the Chief Justice’s emergency order, “the deadline for providing [ante litem] notice . . . was suspended, tolled, extended, or relief was granted from same.” The County moved to dismiss the complaint on several grounds, including that it was time-barred under OCGA § 36-11-1, which provides that “[a]ll claims against counties must be presented within 12 months after they accrue or become payable or the same are barred[.]”
The trial court granted the County’s motion, concluding that the plaintiff failed to provide timely ante litem notice and that the Order Declaring a Statewide Judicial Emergency “did not toll the requirement to provide timely [ante litem] notice.” The plaintiff appealed.
Did the Plaintiff Need to Bring Her Claim Against a County Within 12 Months?
Judge Trenton Brown III wrote that OCGA § 36-11-1 provides that “[a]ll 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.”
In this case, the plaintiff was required to present her claim to the County by July 16, 2020. But on March 14, 2020, the Chief Justice of the Georgia Supreme Court issued an Order Declaring a Statewide Judicial Emergency as a consequence of “the continued transmission of Coronavirus/COVID‑19 throughout the State and the potential infection of those who work in or are required to appear in our courts.” The March 14, 2020 Order provided as follows:
Pursuant to OCGA § 38-3-62, during the period of this Order, the undersigned hereby suspends, tolls, extends, and otherwise grants relief from any deadlines or other time schedules or filing requirements imposed by otherwise applicable statutes, rules, regulations, or court orders, whether in civil or criminal cases or administrative matters, including, but not limited to any:
- statute of limitation;
- time within which to issue a warrant;
- time within which to try a case for which a demand for speedy trial has been filed;
- time within which to hold a commitment hearing;
- deadline or other schedule regarding the detention of a juvenile;
- time within which to return a bill of indictment or an accusation or to bring a matter before a grand jury. . . .
The emergency order subsequently was extended several times, and in its Fourth Order, issued on July 10, 2020, the Court declared that “[t]he 122 days between March 14 and July 14, 2020, or any portion of that period in which a statute of limitation would have run, shall be excluded from the calculation of that statute of limitation.”
On April 6, 2020, the Court issued further guidance on “Tolling Statutes of Limitation Under the Chief Justice’s Order Declaring Statewide Judicial Emergency” as follows:
[T]he tolling of a statute of limitation suspends the running of the period of limitation, but it does not reset the period of limitation. If the period of limitation for a particular cause of action commenced prior to March 14, 2020-that is, if the “clock” had started to run before the entry of the Chief Justice’s order-the running of the period of limitation was suspended on March 14, and the running of the period will resume when the tolling provision of the March 14 declaration has expired or is otherwise terminated. If the event that triggers the running of a period of limitation occurred on or after March 14-that is, if the “clock” had not started to run before a statewide judicial emergency was declared-the period of limitation will not begin to run until the tolling provision of the March 14 declaration has expired or is otherwise terminated. In either circumstance, whatever time remained in the period of limitation as of March 14 will still remain when the tolling provision of the March 14 declaration has expired or is otherwise terminated.
The Fourth Order Extending Declaration of Statewide Judicial Emergency provided that “[a]ll other deadlines imposed on litigants [by statutes, rules, regulations, or court orders in civil and criminal cases and administrative actions that have been suspended, tolled, extended, or otherwise relieved by the March 14, 2020 Order] shall be reimposed effective July 14, 2020[.]”
According to the plaintiff, the effect of the orders was to stop the clock on the running of the 12-month period within which she had to present her claim to the County. Because her original deadline was July 16, 2020, her new deadline under the orders/guidance provisions was 122 days later, or November 15, 2020, and because November 15, 2020, was a Sunday, her deadline was extended by one additional day to Monday, November 16, 2020.
But the County argued that “the plain text” of the orders/guidance provisions makes clear that it doesn’t apply to the ante litem notice required by OCGA § 36-11-1. In the County’s view, the guidance “applie[s] to court filings – not non-court pre-litigation notices.” Moreover, tolling does not apply to OCGA § 36-11-1, because it isn’t a statute of limitation.
The Court of Appeals said it need not decide whether the ante litem notice requirement of OCGA § 36-11-1 is a statute of limitation. The language of the various orders/guidance provisions issued by the Supreme Court of Georgia encompasses the time within which to present a claim to a county pursuant to OCGA § 36-11-1. In particular, the March 14, 2020 Order states that it “grants relief from any deadlines or other time schedules or filing requirements… whether in civil or criminal cases or administrative matters, including but not limited to any… “ Because the sole purpose of an ante litem notice is to preserve a cause of action in a civil case, the Court concluded that the filing of the ante litem notice in this case is a deadline in a civil case within the meaning of the emergency order.
As a result, the trial court erred in granting the County’s motion to dismiss the plaintiff’s complaint. The judgment was reversed. Le wis v. Gwinnett County, 2023 Ga. App. LEXIS 139 (Ga. App. March 14, 2023).
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