When is an Ante Litem Notice Insufficient?
In an appeal arising from a granted application for interlocutory review, the City of College Park (“the City”) appealed from the trial court’s order denying its motion to dismiss for lack of subject matter jurisdiction due to an insufficient ante litem notice.
Background
In August 2021, a City garbage truck operated by a City employee backed into the plaintiff’s vehicle. She was injured. Four months after the accident, she served an ante litem notice on the City, notifying it of her intent to sue. The ante litem notice provided, in relevant part:
Amount of Loss Claimed: the plaintiff has claims for her medical expenses of approximately $100,000.00 and a claim for her pain and suffering, mental and emotional suffering, and any other noneconomic damages recoverable under all applicable laws in the amount of $20,000.00.
The City filed a motion to dismiss the plaintiff’s complaint, arguing that the ante litem notice was deficient because it failed to include the specific amount of monetary damages being sought.
The trial court denied the motion, concluding that the ante litem notice stated the plaintiff’s “willingness to accept $120,000 as compensation for her claims.” In its view, the plaintiff’s ante litem notice satisfied O.C.G.A. § 36-33-5(e), which provides:
The description of the extent of the injury required in subsection (b) of this Code section shall include the specific amount of monetary damages being sought from the municipal corporation. The amount of monetary damages set forth in such claim shall constitute an offer of compromise….
On appeal, the City asserted that the trial court erred in denying its motion to dismiss because the plaintiff’s ante litem notice didn’t state “the specific amount of monetary damages being sought” from the City.
The Opinion of the Court of Appeals
Judge E. Trenton Brown III wrote that a person seeking damages against a municipal corporation must give ante litem notice, including the “time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury,” quoting O.C.G.A. § 36-33-5(b).
“Satisfaction of this notice requirement is a condition precedent to bringing suit against a municipal corporation. …,” he added, quoting an earlier decision. Furthermore, “the ante litem notice provision of O.C.G.A. § 36-33-5 is in derogation of common law, which did not require pre-suit notice.” As a result, the notice must “be strictly construed and not extended beyond its plain and explicit terms,” the judge said, quoting a 2017 Supreme Court decision.
New Subsection Added to Statute in 2014
Judge Brown explained that in 2014, O.C.G.A. § 36-33-5 was amended to add subsection (e), requiring the claimant to “include the specific amount of monetary damages being sought” for the first time. Before this, the Georgia Supreme Court applied a “substantial compliance” standard to subsection (b) because “[t]he act recognizes, by the use of the words ‘as nearly as practicable,’ that absolute exactness need not be had.” But neither the Court of Appeals nor the Supreme Court had expressly addressed whether the former substantial compliance standard should be applied to subsection (e). the Court of Appeals has, however, addressed whether substantial compliance will satisfy the requirements of subsection (f), which the General Assembly also added to O.C.G.A. § 36-33-5 in 2014.
In City of Albany, the Court addressed the 2014 requirement that a claim submitted under O.C.G.A. § 36-33-5 “shall be served upon the mayor or the chairperson of the city council or city commission, as the case may be, by delivering the claim to such official personally or by certified mail or statutory overnight delivery.” In that 2019 decision, the Court of Appeals concluded that
[i]f substantial compliance with subsection (f) was all that is required (i.e., service of notice on other individuals or entities associated with the municipal corporation other than those specified in subsection (f) would be sufficient), then there was no purpose in enacting subsection (f), at least not with the use of the directive “shall,” which is a mandatory command. In other words, to hold, as [the appellee] urges, that service of the ante litem notice on individuals or entities not specified in subsection (f) meets the requirements of the statute (although consistent with our “substantial compliance” jurisprudence interpreting the prior version of the statute), would render subsection (f) meaningless and mere surplusage. We “cannot by construction add to, take from, or vary the meaning of unambiguous words in a statute.” Accordingly, we hold that strict compliance with O.C.G.A. § 36-33-5 (f) is required.
Judge Brown noted that, like subsection (f), subsection (e) also includes use of the directive “shall” with regard to the requirement that the description of the extent of the injury required in subsection (b) “include the specific amount of monetary damages being sought from the municipal corporation.” From this, the judge concluded that substantial compliance with subsection (e) won’t suffice, just as it wasn’t adequate for subsection (f) in City of Albany.
Nonetheless, even if substantial compliance were all that was required, “a notice does not substantially comply with subsection (e) unless a specific amount is given that would constitute an offer that could be accepted by the municipality,” the judge wrote, quoting a 2018 decision.
Judge Brown reasoned that the Court of Appeals in Davis v. City of Valdosta (2020) found that an ante litem notice similar to the one at issue here failed to comply with O.C.G.A. § 36-33-5 (e)’s specificity requirement. The notice in Davis “claim[ed] damages” for medical bills “in [the] amount of $30,000.00” and general damages “in an amount not less than $20,000.00.” The Court explained that the notice merely indicated that the value of the claim was some unknown number above $50,000 without indicating the amount being sought, and concluded that “[a]n unknown number above $50,000 is too indefinite to constitute a binding offer of settlement.”
Here, the plaintiff’s notice stated that she has medical claims “of approximately $100,000.00” and non-economic damages “in the amount of $20,000.000.” The Court said that by definition, an approximate amount does not set forth “the specific amount” and also fails to provide “[t]he amount of monetary damages set forth in such claim [that] shall constitute an offer of compromise,” quoting O.C.G.A. § 36-33-5(e).
Accordingly, the Court found that the plaintiff’s ante litem notice failed to comply with O.C.G.A. § 36-33-5 (e), and the trial court erred in denying the City’s motion to dismiss. As a result, the judgment was reversed. City of College Park v. Steele, 2024 Ga. App. LEXIS 195 (Ga. App. May 23, 2024).
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