Is Substantial Compliance with the Ante Litem Notice Statute Enough?
The Georgia Department of Public Safety (DPS) sought review of the trial court’s denial of its motion to dismiss this personal injury action. On appeal, DPS argued that the trial court erred in concluding that the plaintiff complied with the ante litem notice requirements of O.C.G.A. § 50-21-26(a) before filing this lawsuit.
Background
On June 15, 2021, the plaintiff was a passenger in a car driven by his daughter in Macon-Bibb County when they collided with another vehicle driven by a DPS employee. The plaintiff and his daughter sustained injuries as a result of the accident. They retained counsel to handle both of their claims, and their attorney sent a letter of representation on their behalf to the Georgia Department of Transportation (“DOT”) and the Risk Management Division of the Department of Administrative Services (“DOAS”) on June 29, 2021, believing at that time that the other driver was a DOT employee. On or after July 8, 2021, the plaintiff received the Georgia Motor Vehicle Crash Report listing the owner of the other driver’s vehicle as “Georgia Dep. of Pub.” On July 15, 2021, a DOAS liability specialist asked the plaintiff for additional information to set up the claim, and the liability specialist identified the state agency as DPS. DOAS processed the plaintiff’s and his daughter’s claims under the same case number.
After the crash, the liability specialist with DOAS sent a letter to the daughter accepting liability for the incident, again identifying the state agency as DPS. The daughter then sent an ante litem notice to DOAS and DOT in November 2021. The plaintiff’s counsel stated that he sent the daughter’s ante litem notice to DOT instead of DPS due to a clerical error based on his belief that DOT was responsible as stated in the letter of representation. A formal demand letter was sent to a claims representative with DPS, on the daughter’s behalf on December 10, 2021, and that letter was also forwarded to DOAS in January 2022. In the demand letter, the plaintiff’s counsel acknowledged that the other driver was a DPS employee. The daughter’s claim was settled on June 14, 2022.
On May 11, 2022, the plaintiff served his ante litem notice on DOT and DOAS. His attorney said that the same clerical error caused the notice to be sent to DOT instead of DPS. The plaintiff filed a complaint for damages on March 3, 2023, against the other driver and the DOT. The DOT moved to dismiss the case, arguing that it wasn’t a proper party to the suit and that the plaintiff failed to comply with the ante litem notice requirements of O.C.G.A. § 50-21-26 because he listed the wrong agency on his notice, and he sent the notice to the wrong agency. In response, the plaintiff served an amended ante litem notice on DOAS and DPS on April 27, 2023, and he moved to correct a misnomer, or in the alternative, to drop DOT and amend the complaint to add DPS as a party, which the trial court granted.
After a hearing, the trial court denied the motion to dismiss. The trial court rejected the argument that the failure to name the correct State tortfeasor and provide it with a timely ante litem notice wasn’t a curable defect. Rather, the trial court concluded that the ante litem notice to DOAS and DOT was sufficient, as it was timely and met other statutory requirements, and the plaintiff reasonably and in good faith believed he was serving the proper tortfeasor. The court also found DOAS’s conduct significant, concluding that DOAS had a duty to investigate and facilitate the claims, but instead the agency raised no defects with the ante litem notice and settled the daughter’s case, using the same claim number as the plaintiff’s claim. The court found that because DOAS was notified and the second State actor was notified based on knowledge and belief, the ante litem notice was sufficient. The court certified its order for immediate review, and the Court of Appeals granted DPS’ application for interlocutory appeal.
The Georgia Tort Claims Act
The Georgia Tort Claims Act is a limited waiver of the State’s sovereign immunity and isn’t subject to modification or abrogation by the courts. The Act requires a party with a potential tort claim against the State to provide it with notice of the claim prior to filing suit. Moreover, the ante-litem notice requirements serve the purpose of ensuring that the State receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit.
Importantly, a claimant must strictly comply with the notice provisions as a prerequisite to filing suit under the Act. Substantial compliance is not sufficient. As such, if the ante-litem notice requirements aren’t met, the State doesn’t waive sovereign immunity, and the trial court lacks subject-matter jurisdiction over the case.
Also, O.C.G.A. § 50-21-26 (a) (2) provides that
[n]otice of a claim shall be given in writing and shall be mailed by certified mail or statutory overnight delivery, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services. In addition, a copy shall be delivered personally to or mailed by first-class mail to the state government entity the act or omissions of which are asserted as the basis of the claim.
The Court of Appeals Reverses
Presiding Judge M. Yvette Miller said that the Court of Appeals was compelled to conclude that the plaintiff failed to comply with the ante litem requirements and that his complaint against DPS was therefore due to be dismissed. The plaintiff’s May 11, 2022 ante litem notice on the DOT and DOAS was ineffective because it didn’t state “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, … [t]he name of the state government entity, the acts or omissions of which are asserted as the basis of the claim” as required by O.C.G.A. § 50-21-26(a)(5).
Judge Miller said that it was certainly the case that the plaintiff’s ante litem notice asserted the name of a state government entity that was allegedly responsible, namely DOT. However, when the plaintiff sent the ante litem notice, he had concrete evidence and belief through the crash report and through the subsequent negotiations with DOAS on his claim and his daughter’s claim that the responsible entity was DPS, not DOT, and DOT was listed on the ante litem notice only due to an admitted clerical mistake, not through a reasonable mistake based on imperfect information. Given that the record was clear that he was aware which agency was actually responsible for the accident, the Court couldn’t say that he acted “to the extent of his knowledge and belief” when he listed the wrong agency as responsible on his notice.
The plaintiff had concrete evidence of its identity. Further, the Court has repeatedly held that “the Department’s knowledge of an injury and ensuing investigation does not obviate the plaintiff’s clear statutory burden to establish a waiver of immunity by complying with the GTCA’s ante litem notice requirement.”
Thus, for the purpose of determining compliance with the ante litem notice statute, Judge Miller found that it was ultimately irrelevant that:
- DOAS had actual knowledge of the plaintiff’s claim;
- DOAS was in settlement negotiations with the plaintiff; and
- DOAS settled with the daughter based on the same incident.
Finally, the Court noted that none of the remaining correspondence in the record satisfied the requirements to constitute a compliant ante litem notice. The June 29, 2021 letter of representation sent by the plaintiff’s counsel to DOT and DOAS—sent when the plaintiff arguably could have reasonably believed that the other driver was a DOT employee—didn’t contain all of the information required by O.C.G.A. § 50-21-26(a)(5). The daughter’s December 10, 2021 demand letter to DPS didn’t mention the plaintiff or his claims in any way, and so it couldn’t serve as a sufficient notice for the plaintiff’s claims. And the plaintiff’s purported amended ante litem notice, sent on April 27, 2023, is untimely because it was not sent within a year of the incident that caused the injury.
While the Court of Appeals was sympathetic to the plaintiff’s plight, Georgia law makes abundantly clear the need for strict compliance with the requirements of O.C.G.A. § 50-21-26(a). The Court acknowledged that the result here was harsh in light of the circumstances; nevertheless it was the result required by the statute and Georgia case law. Accordingly, the Court of Appeals reversed the trial court’s order denying the motion to dismiss the claim against DPS. Georgia Department of Public Safety v. Cleapor, 2024 Ga. App. LEXIS 411 (Ga. App. October 22, 2024).
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Bring a personal injury lawsuit against a government entity is a complex undertaking. Getting the ante litem notice correctly served was critical in this case. Having a knowledgeable Atlanta personal injury lawyer who has experience handling motor vehicle accident cases does matter. Whoever you hire as your lawyer needs to know the law and how to apply the law.
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