Cobb v. BOARD OF COMMISSIONERS OF ROADS & REVENUE OF TIFT COUNTY , 151 Ga. App. 472 ( 1979 )

Underwood, Judge.

This is an action against the governing authority, of Tift County for personal injuries sustained by plaintiff in a collision with a vehicle being operated by defendants’ servant, allegedly in the scope of his employment with the county. The trial court granted summary judgment to defendants on the ground that "the claim of the plaintiff was not presented within twelve (12) months after the same accrued as required by law, specifically Sec. 23-1602 Ga. Code Ann. and the claim of the plaintiff is barred by the statute of limitation contained in that code section.” We affirm.

1. In this court plaintiff contends that Code Ann. § 23-1602, providing that "[a]ll claims against counties must be presented within 12 months after they accrue or become payable, or the same are barred . . .,” is inconsistent with, and must yield to, Art. IX, Sec. VI, Par. II, Constitution of 1976 (Code Ann. § 2-6302), and Code Ann. § 56-2437, both of which provide that the governmental immunity of a county is waived to the extent of liability insurance purchased by it, and that neither the county nor the insurer shall be entitled to plead governmental immunity as a defense "and may make only such defense as could be made if the insured were a private person.”

However, Code. Ann. § 56-2437 also applies to municipalities, and we rejected this line of argument with respect to Code Ann. § 69-308, the counterpart statute of limitation applicable to suits against municipalities, holding "that Code Ann § 69-308 is still the law irrespective of insurance coverage; and that it has not been changed by Code Ann. § 56-2437.” Perdue v. City Council of Augusta, 137 Ga. App. 702 (225 SE2d 62) (1976). The same ruling is required here, and in like manner we find no conflict between the statute of limitation and the constitutional and statutory provisions relating to waiver of immunity.

Submitted May 2, 1979 Decided September 4, 1979 Rehearing denied September 25, 1979 Peter Zack Geer, Henry Bostick, for appellant. Richard W. Fields, Ralph W. Simpson, for appellees.

2. The fact that the county’s liability insurer may have taken investigation of the case does not constitute the presentation of the claim to the county as required by Code § 23-1602. Formal, written notice is required (Doyal v. Dept. of Transp., 142 Ga. App. 79 (234 SE2d 858) (1977)), and notice to the county’s liability insurer does not satisfy the statute. Powell v. County of Muscogee, 71 Ga. 587 (1883). Cf. Schaefer v. Mayor &c. of Athens, 120 Ga. App. 301 (6) (170 SE2d 339) (1969).

Judgment affirmed.

Deen, C. J., Quillian, P. J., Shulman, Banke, Birdsong and Carley, JJ., concur. McMurray, P. J., and Smith, J., dissent.