Paul Dorn v. Georgia Department of Behavioral Health and Developmental Disabilities

• Court: Court of Appeals of Georgia
• Decided: October 29, 2014
• Docket: A14A0910
• Status: Published

Opinion

FIRST DIVISION PHIPPS, C. J., ELLINGTON, P. J., and MCMILLIAN, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

October 29, 2014

In the Court of Appeals of Georgia A14A0910. DORN et al. v. GEORGIA DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL DISABILITIES.

ELLINGTON, Presiding Judge.

Paul Dorn, individually and as administrator of the estate of his son, Brooks

Cameron Dorn (the “decedent”), sued the Georgia Department of Behavioral Health

and Developmental Disabilities (the “Department”) for damages, contending that the

Department’s negligence was the proximate cause of the decedent’s death. The trial

court dismissed Dorn’s complaint for failure to comply with the ante litem notice

provisions of The Georgia Tort Claims Act, OCGA § 50-21-20 et seq. (“GTCA”) in

that Dorn did not specify the amount of the loss claimed. On appeal, Dorn contends

that he complied with the ante litem notice requirements notwithstanding that the notice did not state the dollar amount of the loss claimed and that the trial court

therefore erred in dismissing his complaint. For the reasons that follow, we affirm.

The record shows that the Decedent committed suicide on April 5, 2011, while

on conditional release from a psychiatric facility operated by the Department. On

January 9, 2012, Dorn presented, via certified mail, return receipt requested, his

“Ante Litem Notice of Wrongful Death Claim” to the Risk Management Division of

the Georgia Department of Administrative Services, and he provided a copy of the

notice to the Department. Dorn’s notice did not state the dollar amount of the loss

claimed. Rather, the notice stated that “[t]he amount of the loss suffered” is the

“[m]onetary value of [the decedant’s] life in an amount sufficient to appropriately

penalize State’s deliberately indifferent, negligent breach of State’s duty, and also in

an amount sufficient to appropriately penalize State’s deliberately indifferent,

negligent violation of [the decedent’s] rights.”

On March 28, 2013, Dorn filed suit against the Department to recover damages

for personal injuries and wrongful death allegedly caused by the negligent acts or

omissions of the Department. Contemporaneously with its answer, the Department

filed a motion to dismiss the complaint for, among other things, Dorn’s failure to

comply with the ante litem notice requirements set forth in the GTCA. The trial court

2 dismissed the complaint because Dorn’s ante litem notice did not specify the

monetary amount of loss claimed and so failed to comply with OCGA § 50-21-26 (a)

(5) (E).

The GTCA is “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.” (Citation omitted.) Among other things, “[t]he 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.” Id. at 823. The

ante litem notice requirements serve the purpose of “ensur[ing] that the state receives

adequate notice of the claim to facilitate settlement before the filing of a lawsuit.”

Williams v. Ga. Dept. of Human Resources, 272 Ga. 624, 625 (532 SE2d 401) (2000).

A claimant must strictly comply with the notice provisions as a prerequisite to

filing suit under the GTCA, and substantial compliance is not sufficient. Cummings

v. Ga. Dept. of Juvenile Justice, 282 Ga. at 824; Ga. Dept. of Transp. v. Griggs, 322

Ga. App. 519, 520 (745 SE2d 749) (2013). However, “the rule of strict compliance

does not demand a hyper-technical construction that would not measurably advance

the purpose of the GTCA’s notice provisions.” (Citation omitted.) Cummings v. Ga.

Dept. of Juvenile Justice, 282 Ga. at 824.

3 “If the ante litem notice requirements are not met, then the State does not waive

sovereign immunity, and therefore, the trial court lacks subject matter jurisdiction.”

Board of Regents of the Univ. Sys. of Ga. v. Meyers, __ Ga. __, __ (Case No.

S14G0431, decided October 6, 2014). “We review de novo a trial court’s ruling on

a motion to dismiss based on sovereign immunity grounds, which is a matter of law.

Factual findings are sustained if there is evidence supporting them, and the burden

of proof is on the party seeking the waiver of immunity.” (Citation and punctuation

omitted.) Bd. of Regents of the Univ. Sys. of Ga. v. Canas, 295 Ga. App. 505, 509 (3)

(672 SE2d 471) (2009).

Pertinent to this dispute, the GTCA requires that a written notice of claim

“shall state, to the extent of the claimant’s knowledge and belief and as may be

practicable under the circumstances, . . . [t]he amount of the loss claimed[.]” OCGA

§ 50-21-26 (a) (5) (E). Dorn contends that he complied with this provision because

the GTCA does not require that the notice state the dollar amount of the claim, and

that he stated the amount of the loss to the extent of his knowledge and belief as

practicable under the circumstances given that a claim for wrongful death is an

unliquidated claim.

4 As the Supreme Court of Georgia has explained, “the GTCA’s ante litem notice

provisions clearly contemplate the possibility that a claimant may have imperfect

information regarding various facets of [his] claim at the time [his] notice is

submitted.” Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. 822, 825 (653 SE2d

729) (2007). The General Assembly “was certainly aware that certain losses in tort

claims will always be difficult to value and are ultimately subject to an impartial

jury’s enlightened conscience.” (Citation and punctuation omitted.) Bd. of Regents

of Univ. Sys. of Ga. v. Myers, _ Ga. _ (Case No. S14G0431, decided October 6,

2014). See also Driscoll v. Bd. of Regents of Univ. Sys. of Ga., 326 Ga. App. 315, 317

(757 SE2d 138) (2014) (“Anytime a life is lost, the inadequacy of the law’s remedial

power is thrown into sharp relief.”). For this reason, the GTCA “does not require that

a claimant give notice of the ‘entire loss,’ the ‘complete loss,’ or the ‘total loss.’” Bd.

of Regents of Univ. Sys. of Ga. v. Myers, _ Ga. at _. But the plain language of the

statute, as noted above, does require notice of the amount of the loss claimed at that

time, within the belief and knowledge of the claimant, as may be practicable under

the circumstances. Id.; Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. at 825. A

claimant “is not relieved from giving some notice to the State [of the amount of the

loss claimed] even if [his] knowledge is incomplete or [he] must rely on [his] belief.”

5 (Citation and punctuation omitted; emphasis supplied.) Bd. of Regents of Univ. Sys.

of Ga. v. Myers, _ Ga. at _ . See also Driscoll v. Bd. of Regents of Univ. Sys. of Ga.,

326 Ga. App. at 317-318 (accord).

In a recent case, this Court determined that a claimant’s ante litem notice failed

to satisfy the notice requirement of OCGA § 50-21-26 (a) (5) (E) where the claimant

for the loss of the life of another “made no mention of any amount of loss claimed

even though his losses were completed, and there was nothing about the

circumstances that prevented him from assigning values to his losses to the best of

his knowledge and belief within the statutory deadline.” (Footnote omitted.) Driscoll

v. Bd. of Regents of the Univ. Sys. of Ga., 326 Ga. App. at 317. In this case, as in

Driscoll, the loss was complete when Dorn submitted his ante litem notice. And, as

in Driscoll, Dorn shows nothing that would have precluded him from assigning a

value to the loss to the extent of his knowledge and belief.

Dorn argues that, unlike the notice at issue in Driscoll, his ante litem notice did

not entirely lack any statement regarding the amount of loss.1 See Driscoll v. Bd. of

1 Dorn also refers us to Sikes v. Candler County, 247 Ga. 115 (274 SE2d 464) (1981), in which our Supreme Court disapproved of three decisions of this Court “insofar as they purport to create an inflexible requirement that presentation to a county of a claim [under OCGA § 32-2-6] must always contain a statement of the amount of damages in order to be sufficient under [OCGA § 36-11-1].” Id. at 118.

6 Regents of the Univ. Sys. of Ga., 326 Ga. App. at 318. However, as to the amount of

the loss claimed, there is no material difference in the notice given to the State by

Dorn and the notice at issue in Driscoll. The notice in Driscoll informed the State of

a “claim for damages” and that the “Injury” involved “Loss of Life.” Id. at 315. Here,

Dorn notified the State that “[t]he amount of the loss suffered” was the “[m]onetary

value of [the decedant’s] life” in an amount sufficient to appropriately penalize the

State for its conduct. In both cases the State was put on notice of a claim for wrongful

death, but not the amount of the loss claimed. And as our precedent indicates, the

“amount” of any loss claimed is the dollar amount of the loss claimed, albeit to the

extent of the claimant’s knowledge and belief. See Driscoll v. Bd. of Regents of the

Univ. Sys. of Ga., 326 Ga. App. at 317 (noting that the fact that after serving his ante

litem notice, the claimant communicated to the State a settlement demand listing

specific dollar amounts for human life value and certain death-related expenses,

“exemplified” the fact that “an amount of loss eventually must be determined if a

party seeks monetary compensation”); Perdue v. Athens Technical College, 283 Ga.

App. 404, 406 (641 SE2d 631) (2007) (dismissing complaint where the claimant’s

Sikes is not controlling as it addresses statutes other than the GTCA. The GTCA expressly requires a statement of “[t]he amount of the loss claimed.” OCGA § 50-21- 26 (a) (5) (E).

7 ante litem notice that failed to include any specific dollar amount or range of losses

claimed but rather asserted only “economic and non-economic losses” from a

personal injury). See also OCGA § 50-21-22 (1) (defining “claim,” in applicable part,

as “any demand against the State of Georgia for money”).

Dorn contends that quantifying the amount of his claim would have

necessitated reference to mortality tables, wage records, and perhaps an expert

economist, none of which is required by the GTCA.2 Therefore, Dorn asserts, his ante

litem notice stated the amount of his loss to the extent of his knowledge and belief,

as practicable.3 As noted above, however, a claimant is not relieved from giving some

2 The damages recoverable in a wrongful death action include the full value of the life of the decedent. OCGA §§ 51-4-1 (1); 51-4-2 (a), (e). “The full value of the decedent’s life is the economic value and the value of other noneconomic intangible items that the decedent would have attained to the end of his life had he lived.” (Citation omitted.) Carroll Fulmer Logistics Corp. v. Hines, 309 Ga. App. 695, 696 (710 SE2d 888) (2011). 3 In his appellate brief, Dorn relies largely on this Court’s decision in Myers v. Bd. of Regents of the Univ. Sys. of Ga., 324 Ga. App. 685 (751 SE2d 490) (2013), pointing out that we found that the notice of claim sufficient even though the claimant failed to specify the amount of the claim. The Supreme Court of Georgia, however, recently reversed our decision in Meyers, holding that the claimant’s “notice failed to strictly comply with [OCGA § 50-21-26 (a) (5) (E)] because it did not state any amount of loss whatsoever,” noting that “the extent of her knowledge and belief at the time of notice included, at a minimum, the medical expenses she had incurred thus far.” Bd. of Regents of the Univ. Sys. of Ga. v. Meyers, __ Ga. at __.

8 notice to the State of the magnitude of his claim even if his knowledge is incomplete

or he must rely on his belief. Bd. of Regents of the Univ. Sys. of Ga. v. Meyers, __ Ga.

at __; Driscoll v. Bd. of Regents of the Univ. Sys. of Ga., 326 Ga. App. at 318.

Furthermore, the function of the ante litem notice is “not to ‘bind’ a plaintiff to a

certain amount” or restrict the claimant to only those losses stated in the notice. Bd.

of Regents of the Univ. Sys. of Ga. v. Meyers, __ Ga. at __. See also Driscoll v. Bd.

of Regents of the Univ. Sys. of Ga., 326 Ga. App. at 318 (accord). Accordingly, the

trial court correctly ruled that Dorn’s ante litem notice failed to comply with OCGA

§ 50-21-26 (a) (5) (E).

Dorn maintains that the failure to quantify the amount of his claim should not

be fatal to his complaint because the State suffered no prejudice thereby and because

he was acting pro se at the time he submitted the ante litem notice. In Cummings, our

Supreme Court considered whether an error in the claimant’s ante litem notice

misidentifying the responsible agency prejudiced the State, but in that case the

claimant, who undisputedly believed she had identified the correct agency, complied

with the plain language of the ante litem notice provisions. See Cummings v. Ga.

Dept. of Juvenile Justice, 282 Ga. at 825 (noting that “the plain language of the

statute requires the identification of the agency asserted to be responsible, rather than

9 identification of the agency actually responsible”) (footnote omitted; emphasis in

original). In this case, Dorn did not comply with the plain language of the statute. See

Driscoll v. Bd. of Regents of the Univ. System of Ga., 326 Ga. App. at 317 (finding

notice failed to satisfy the GTCA notwithstanding that prejudice to the state was

“arguably minimal”). Further, in Cummings the correct identity of the responsible

agency was discovered by the State early in its investigation, and the State possessed

“obviously superior knowledge regarding which of its agencies employ which of its

employees.” Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. at 826, n. 3. In

contrast, the claimant has superior, if not sole, knowledge of “[t]he amount of the loss

claimed.” OCGA § 50-21-26 (a) (5) (E).

Nor does the fact that Dorn composed the ante litem notice while unrepresented

by counsel excuse compliance with the statutory requirements. We acknowledge that

the dismissal of Dorn’s complaint is a harsh result, perhaps even more so because

Dorn drafted the notice while acting pro se. Nevertheless, “[a]lthough [Dorn] is

proceeding pro se, that status does not relieve him of the obligation to comply with

the substantive and procedural requirements of the law[.]” (Citation omitted.) Simon

v. City of Atlanta, 287 Ga. App. 119, 120 (650 SE2d 783) (2007). Dorn shows no

10 authority for the proposition that a pro se litigant is exempt from a statutory

obligation.

For the foregoing reasons, we conclude that the trial court did not err in

dismissing Dorn’s complaint.

Judgment affirmed. Phipps, C. J., and McMillian, J., concur.