Norris v. Department of Transportation

486 S.E.2d 826, 268 Ga. 192, 97 Fulton County D. Rep. 2588, 1997 Ga. LEXIS 424

• Court: Supreme Court of Georgia
• Decided: July 14, 1997
• Docket: S96G1881
• Status: Published

Opinions

Thompson, Justice.

We granted certiorari to the Georgia Court of Appeals in Dept. of Transp. v. Norris, 222 Ga. App. 361 (474 SE2d 216) (1996), to determine whether an ante litem notice of claim under OCGA § 50-21-26 of the Georgia Tort Claims Act, requires actual receipt of a writing by the appropriate agent(s) of the State, or whether the notice requirement is satisfied upon proper mailing. We hold that mailing of the notice in the manner specified in OCGA § 50-21-26 (a) (2), satisfies the statutory requirement. Accordingly, we reverse the judgment of the Court of Appeals.

Steven Norris, individually, and as administrator of the estate of his wife, Ann Lois Norris, brought an action for wrongful death and other damages against the Georgia Department of Transportation (DOT) and Reeves Construction Company. It was alleged that the negligent design, construction, and maintenance of an intersection of Highway 319 By Pass in the City of Moultrie resulted in a fatal collision involving decedent’s vehicle. DOT moved to dismiss the complaint on several grounds, including plaintiff’s alleged failure to give timely pre-suit notice of claim as required by the Georgia Tort Claims Act. The trial court denied the motion to dismiss; and the Court of Appeals granted interlocutory review and reversed. Dept. of Transp. v. Norris, supra.

In 1993, the legislature enacted the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. (Ga. L. 1992, p. 1883, § 1). The stated intent of the Act is to balance strict application of the doctrine of sovereign immunity, which may produce “inherently unfair and inequitable results,” against the need for limited “exposure of the state treasury to tort liability.” OCGA § 50-21-21 (a). The legislature expressly declared as “the public policy of this state that the state shall only be liable in tort actions within the limitations of [the Act] and in accordance with the fair and uniform principles established” therein. OCGA § 50-21-21 (a).

One such limitation of the Act is contained in OCGA § 50-21-26 (a), which prescribes that a tort claim may not be brought against the state “without first giving notice of the claim.” Subsection (a) (1) requires that “[n]otice of a claim shall be given in writing within 12 months of the date the loss was discovered or should have been discovered. . . .” The plain language of OCGA § 50-21-26 (a) (2) provides two alternative methods of transmitting written notice — mailing or personal delivery. As the Code section specifies, notice “shall be mailed by certified mail, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services . . . [and] a copy shall be delivered personally to or mailed by first-class mail to the state government entity. . . .” Id. (Emphasis supplied.) Finally, subsection (a) (3) specifies that no action shall be brought under the Tort Claims Act “unless and until a written notice of claim has been timely presented to the state as provided in this subsection.”

The evidence shows that plaintiff mailed his ante litem notice of claim by certified mail, return receipt requested, to the Risk Management Division on the day before the expiration of 12 months from the date of loss.¹ The mailed notice was received by the addressee two days later, which was one day beyond the twelve-month period. DOAS began investigation of the claim.

In concluding that receipt of the notice of claim within the 12-month period was required under the statute, the Court of Appeals relied on Hardy v. Candler County, 214 Ga. App. 627 (448 SE2d 487) (1994). Hardy acknowledged that the Georgia Act does not define the terms “given”² and “presented,”³ but it applied federal authority interpreting the Federal Tort Claims Act, Barlow v. AVCO Corp., 527 FSupp. 269 (E.D. Va. 1981), and interpreted our statutory language as meaning actual receipt by the state within the requisite statutory time. A critical distinction, as noted in Barlow, is that federal regulations specifically provide that “ ‘a claim shall be deemed to have been presented, when the Department receives . . .’ such a claim. 29 CFR § 15.4.” Barlow, supra at 273. Applying such a definition to the Georgia Act is neither authorized nor required because the plain language of OCGA § 50-21-26 (a) (2) provides as an alternative to actual delivery that notice of claim is given upon mailing. Because the Act specifies mailing and does not require receipt, it places an equal burden on all claimants. To hold the sender responsible for ensuring actual receipt of the notice within the statutory time would create a harsh and unreasonable rule because a document which is placed in the mail is no longer within the sender’s control. The mailing requirement, therefore, comports with the stated legislative intent of achieving fairness and uniformity in the application of the Act. Since Norris mailed his ante litem notice in the manner specified by OCGA § 50-21-26 (a) (2), and within the statutory time frame, he complied with the provisions of the Act. To the extent that Hardy v. Candler County, supra, states otherwise, it is expressly overruled.

Judgment reversed.

All the Justices concur, except Benham, C. J., Fletcher, P. J., and Hines, J., who dissent.

1 Norris also asserts that on the same day that the notice was mailed by certified mail, his attorney was advised by telephone by a state agent in the Risk Management Division that a facsimile transmission of the ante litem notice of claim would suffice. Because we find that the mailed notice of claim satisfied the statute, we do not decide whether the facsimile notice was sufficient under the circumstances.

2 OCGA § 50-21-26 (a) (1).

3 OCGA § 50-21-26 (a) (3).