This week, the Georgia Court of Appeals published two opinions affirming the dismissals of personal injury cases for failure to comply with the requirements of the Georgia Tort Claims Act. In both cases, Judge Christopher McFadden authored the opinions in which Judges Miller and McMillian concurred.
In Silva v. Georgia Dep't of Transp., No. A16A0072, 2016 WL 2862652, (Ga. Ct. App. May 17, 2016), the Court of Appeals affirmed the dismissal of Janette A. Silva's suit against the Georgia Department of Transportation after one of its drivers rear-ended her vehicle, holding that the trial court correctly applied the ante litem notice provision of the Georgia Tort Claims Act. Silva's attorney sent ante litem notice of her claim to the commissioner of the Department of Transportation, the attorney general and the Risk Management Division of the Department of Administrative Services. The notice explained the circumstances of the car accident, described Silva's injuries and medical treatment and stated that Silva was still receiving treatment for her injuries. The notice concluded that it would be presumed to comply with the requirements of O.C.G.A. § 50-21-26, the ante litem notice provision of the Georgia Tort Claims Act, unless the recipient notified Silva's attorney of any defect within 10 days of receipt. Thereafter, Silva filed suit, seeking damages for medical expenses totaling $89,120, lost wages of $2,400 and pain and suffering. The trial court granted the Department's motion to dismiss, finding that Silva failed to comply with the ante litem notice requirement because she did not specify the amount of the loss she claimed as required by subsection (E).
On appeal, the Court found that the trial court properly relied upon Board of Regents of the Univ. Sys. of GA v. Myers, 295 Ga. 843 (2014), in dismissing Silva's suit and properly applied that decision retroactively. In Myers, the Supreme Court of Georgia held that, although the claimant was still incurring medical bills and did not know the full extent of her injury, she was required to give some notice of the amount of the loss she claimed, even if it were simply notice "that, based on her belief, there would be some pain and suffering damages or lost wages in the future, the amounts of which she did not yet have knowledge and could not practicably provide at that time." Silva also argued that the State was estopped from claiming her ante litem notice was defective because it failed to notify Silva's attorney of any defect within 10 days of receipt, but Silva pointed to no authority that permitted her to unilaterally impose a duty on the State to respond to her letter or face a waiver of sovereign immunity. The State may not waive or be estopped from invoking statutory notice requirements. Finally, Silva argued that she effectively amended her ante litem notice, but her amendment was not effective because it was not timely.
In Callaham v. Georgia Ports Auth., No. A16A0238, 2016 WL 2862661 (Ga. Ct. App. May 17, 2016), the Court of Appeals affirmed the dismissal of Kelvin Callaham's personal injury action against the Georgia Ports Authority after he was injured in an automobile accident at a GPA terminal in Savannah, holding that Callaham failed to comply with the ante litem notice requirement of the Georgia Tort Claims Act. Following the accident, Callaham's attorney sent a letter to the GPA's insurance adjuster. That letter did not constitute a notice of claim pursuant to O.C.G.A. § 50-21-26 (a) (5) of the Act because it did not contain certain required items of information. Thereafter, Callaham's attorney sent a notice of claim to the Risk Management Division of the Department of Administrative Services. The trial court dismissed the action on the basis that Callaham failed to comply with § 50-21-26 (a) (2) of the Act, which provides that when a person has a tort claim against the State, "a copy [of the person's notice of claim] 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."
Callaham argued on appeal that, when taken together, the letter to the insurance adjuster and the notice of claim satisfied the ante litem notice requirements. However, Callaham did not mail or personally deliver to the GPA, the State government entity whose acts Callaham asserted to be the basis of his claim, a copy of the notice of claim he sent to the Risk Management Division. Callaham, therefore, did not strictly comply with the requirements of § 50-21-26 (a) (2). Further, because the duty to strictly comply with those requirements cannot be excused on the basis of actual notice, the letter to the adjuster did not supply that omission.
Silva and Callaham make clear that the Georgia appellate courts require strict compliance with the Georgia Tort Claims Act. Watkins, Lourie, Roll & Chance has substantial experience handling claims pursuant to the Georgia Tort Claims Act. Two of our partners, Joseph W. Watkins and Lance D. Lourie, successfully handled the case of Edwards v. Dep't of Children & Youth Servs., 271 Ga. 890, 525 S.E.2d 83 (2000). In Edwards, the Supreme Court of Georgia held that a decision by state-owned youth development center (YDC) employees on type of emergency medical care to provide incarcerated juvenile did not fall within discretionary function exception to Georgia Tort Claims Act (GTCA) and the staff's medical decisions about proper diagnosis and treatment did not involve policy judgments based on social, political, or economic factors.
If you have a potential case against a state government entity, please contact Watkins, Lourie, Roll & Chance, PC to schedule a free consultation today.