Cummings v. Georgia Department of Juvenile Justice

653 S.E.2d 729, 282 Ga. 822, 2007 Fulton County D. Rep. 3605, 2007 Ga. LEXIS 855
CourtSupreme Court of Georgia
DecidedNovember 21, 2007
DocketS07G0319
StatusPublished
Cited by43 cases

This text of 653 S.E.2d 729 (Cummings v. Georgia Department of Juvenile Justice) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cummings v. Georgia Department of Juvenile Justice, 653 S.E.2d 729, 282 Ga. 822, 2007 Fulton County D. Rep. 3605, 2007 Ga. LEXIS 855 (Ga. 2007).

Opinions

HUNSTEIN, Presiding Justice.

In Georgia Dept. of Juvenile Justice v. Cummings, 281 Ga. App. 897 (637 SE2d 441) (2006), the Court of Appeals held that appellant Carlise Cummings’ complaint should have been dismissed for failure to comply with the ante litem notice provisions of the Georgia Tort Claims Act (“GTCA”). We granted certiorari to review that decision, and, for the reasons that follow, we reverse.

Cummings was injured in December 2002 when her car collided with a van driven by an employee of the Georgia Department of Juvenile Justice (“DJJ”). The van did not bear any decals or insignia identifying it as belonging to DJJ. The accident report identified the van’s owner as the State of Georgia and listed the van’s VIN and license plate number; the name, address and telephone number of the driver, Gary Player; and the name and address of the van’s passenger, who was also a DJJ employee.

In July 2003, Cummings, through counsel, sent an ante litem notice of claim against the State of Georgia by certified mail, return receipt requested, to the Risk Management Division of the Georgia Department of Administrative Services (“DOAS”). The notice stated that Cummings’ claim arose from the negligent operation of a motor vehicle by Player, who was incorrectly identified as an employee of the Georgia Department of Transportation (“DOT”). Believing DOT to be the responsible agency, Cummings mailed a copy of the notice of claim to DOT.

After receiving the notice of claim, a DOAS adjuster proceeded to investigate the incident and identified the driver as an employee of DJJ rather than DOT. In November 2003, DOAS extended a $15,000 settlement offer to Cummings, which she rejected. In June 2004, Cummings’ attorney contacted the adjuster to discuss a possible settlement and was informed that the van’s driver was a DJJ employee and that, because no ante litem notice had been sent to DJJ, Cummings had not complied with the GTCA and no offer would be [823]*823extended. Cummings then sent an amended ante litem notice naming DJJ to the DOAS Risk Management Division and sent a copy thereof to DJJ.

In August 2004, Cummings filed suit, naming as defendants the State of Georgia, DOT, DJJ, an unknown department within the State of Georgia, and Player. All the defendants moved to dismiss on various grounds; the trial court granted the motion as to all the defendants except DJJ.1 The court rejected DJJ’s argument that Cummings had failed to provide timely ante litem notice, holding that Cummings had complied with the GTCA’s ante litem notice requirements by sending the notice of claim to the DOAS Risk Management Division and a copy to DOT, the agency she asserted to be responsible “based on [her] knowledge and belief at the time.” On interlocutory appeal, the Court of Appeals reversed, holding that Cummings’ failure to provide a copy of her notice of claim to DJJ within 12 months of the date of the collision violated the ante litem notice provisions and thus deprived the trial court of subject matter jurisdiction over Cummings’ claims. Georgia Dept. of Juvenile Justice v. Cummings, supra, 281 Ga. App. at 903.

The GTCA requires a party with a potential tort claim against the State to provide the State with notice of the claim prior to filing suit thereon. OCGA § 50-21-26. Such notice must be given in writing within 12 months of the date the party’s loss was or should have been discovered. OCGA§ 50-21-26 (a) (1). The notice must identify, “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances,” OCGA § 50-21-26 (a) (5), the state government entity whose acts or omissions are asserted as the basis for the claim, id. at (A); the time and place of the occurrence from which the claim arose, id. at (B) and (C); the nature and amount of the loss suffered, id. at (D) and (E); and the acts or omissions that caused the loss. Id. at (F). In addition, notice of the written claim must 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.

[824]*824OCGA § 50-21-26 (a) (2).

Compliance with the ante litem notice provisions is a condition precedent to the claimant’s right to file suit against the State, and the courts lack jurisdiction to adjudicate any such claims against the State “unless and until [the] written notice of claim has been timely presented to the state as provided in [OCGA § 50-21-26 (a)].” OCGA § 50-21-26 (a) (3). A claimant may not initiate suit on her claim until the earlier of (1) the denial of her claim by DOAS or (2) 90 days from the date of presentation of the ante litem notice. OCGA§ 50-21-26 (b). Thus, “[t]he purpose of [the ante litem notice] requirements is to ensure that the state receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit.” (Footnote omitted.) Williams v. Georgia Dept. of Human Resources, 272 Ga. 624, 625 (532 SE2d 401) (2000).

It is well established that strict compliance with the notice provisions is a prerequisite to filing suit under the GTCA, and substantial compliance therewith is insufficient. Williams, supra, 272 Ga. at 624. This is because the GTCA represents a limited waiver of the State’s sovereign immunity, crafted, as is constitutionally authorized, by our Legislature, and not subject to modification or abrogation by our courts. Sylvester v. Dept. of Transp., 252 Ga. App. 31 (555 SE2d 740) (2001). Thus, it has been held that a notice that failed to include any specific dollar amount or range of losses claimed but rather asserted only “economic and non-economic losses” was deficient, Perdue v. Athens Technical College, 283 Ga. App. 404, 406, 408 (641 SE2d 631) (2007); that dismissal was required where the notice was delivered to the DOAS Commissioner rather than to the Risk Management Department, Welch v. Georgia Dept. of Transp., 276 Ga. App. 664 (624 SE2d 177) (2005); and that an untimely notice was deficient even though it was undisputed that the State had actual notice of the claim through a timely notice submitted by a second claimant. Williams v. Georgia Dept. of Transp., 275 Ga. App. 88 (1) (619 SE2d 763) (2005). Likewise, this Court has held that the omission in a notice of a possible claim for wrongful death required the dismissal of that portion of the claimant’s complaint seeking damages for wrongful death. Williams, supra, 272 Ga. at 626.

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Cite This Page — Counsel Stack

Bluebook (online)
653 S.E.2d 729, 282 Ga. 822, 2007 Fulton County D. Rep. 3605, 2007 Ga. LEXIS 855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cummings-v-georgia-department-of-juvenile-justice-ga-2007.