Myers v. Board of Regents of University System

DOYLE, Presiding Judge.

Kimberly A. Myers appeals the dismissal of her tort claim against the Board of Regents of the University System of Georgia (“the Board”), contending that the trial court erred by ruling that her ante litem notice failed to meet the requirement in OCGA § 50-21-26 (a) (5) (E) that she state the amount of her loss claimed. Because her notice stated the amount of loss she claimed to the best of her knowledge as was practicable under the circumstances, we reverse.

“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.”¹

The record shows that on June 28, 2010, Myers arrived for class at the Dalton State College campus when she allegedly stepped on the edge of an unrepaired pothole in a parking lot and became injured. Myers received emergency medical treatment that day, made follow-up orthopedic doctor visits, and started physical therapy running from approximately September through December 201Ó. On October 11, 2010, roughly three-and-one-half months after her injury, Myers sent a “Notice of Claim” letter via certified mail pursuant to OCGA § 50-21-26 (“ante litem notice”) to the Georgia Department of Administrative Services (“DOAS”). The ante litem notice stated that Myers asserted a negligence claim against the Board based on the allegedly unsafe condition of the parking lot, and the notice explained that she “stepped into a hole in the parking lot injuring her left ankle including a fracture and torn tendons.” The letter further stated that “[t]he amount of Ms. Myers [sic] loss is yet to be determined as she is still incurring medical bills and does not yet know the full extent of her injury.”

On December 30, 2010, the DOAS sent a letter to Myers’s attorney acknowledging “your correspondence” and requesting copies of Myers’s “medical bills, reports, and verification of any wage loss.” Myers did not respond, and on August 2, 2011, DOAS sent a follow-up letter requesting the same documentation and a demand for settlement within 30 days. On April 23, 2012, Myers’s counsel sent a demand package listing Myers’s alleged damages and seeking a $110,000 payment to settle her claims.² On May 7, 2012, DOAS responded with a settlement offer of $10,128.24, which amount reflected Myers’s total medical expenses. Myers filed suit the next month, and DOAS answered and later moved to dismiss on jurisdictional grounds, which motion was granted, giving rise to this appeal. The Georgia Tort Claims Act (“GTCA”)

declares it to be the public policy of this [S]tate that the [Sjtate shall only be liable in tort actions within the limitations of the GTCA and in accordance with the fair and uniform principles established in the GTCA. One such limitation is contained in OCGA § 50-21-26 (a), which prescribes that a tort claim may not be brought against the [Sjtate without first giving notice of the claim. OCGA § 50-21-26 (a) specifies a detailed procedure for notifying the [Sjtate of a claim before filing a lawsuit against it.³

“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.’ ”⁴

Under subsection (a) (1), “[njotice of a claim shall be given in writing within 12 months of the date the loss was discovered or should have been discovered.” Subsection (a) (5), on which this case turns, requires as follows:

A notice of claim under this Code section shall state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following:

(A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim;

(B) The time of the transaction or occurrence out of which the loss arose;

(C) The place of the transaction or occurrence;

(D) The nature of the loss suffered;

(E) The amount of the loss claimed; and

(F) The acts or omissions which caused the loss.⁵

The Supreme Court has held that

strict compliance with the notice provisions is a prerequisite to filing suit under the GTCA, and substantial compliance therewith is insufficient. 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.⁶

The Supreme Court has clarified, however,

that 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. In other words, [the Court has] declined to reach a needlessly harsh result when that result was not mandated by the GTCA.⁷

“[T]he purpose of the ante litem notice requirements is to ensure that the [S]tate receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit.”⁸

With these principles in mind, we turn to the facts of this case. The essential question is whether the following language in Myers’s ante litem notice was a sufficient statement of the amount of loss claimed: “The amount of Ms. Myers [sic] loss is yet to be determined as she is still incurring medical bills and does not yet know the full extent of her injury.” Myers argues that this statement met her burden because the statute, by its own terms, only requires the notice to state the amount of loss claimed “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances.”⁹ Therefore, because she was still receiving medical treatment and would claim difficult-to-estimate amounts such as past and future lost wages, pain and suffering, and mental anguish, Myers argues it was simply not possible to know the extent of her loss within the time required for ante litem notice.¹⁰

As noted above, the GTCA, by its own terms, only requires a statement of loss “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances.” Thus, “the GTCA’s ante litem notice provisions clearly contemplate the possibility that a claimant may have imperfect information regarding various facets of her claim at the time her notice is submitted.”¹¹ Here, at the time Myers submitted her ante litem notice, approximately three and one-half months had elapsed since her injury, and she was still receiving medical treatment and the full extent of her loss was not reasonably quantifiable at that time. She had incurred less than half of her medical bills, and she had not at that time made a full recovery or determined the impact to her wage earning capacity.

The GTCA does not require a partial statement or a “snapshot” of the loss;¹² instead it requires a statement of “[t]he amount of the loss claimed.”¹³ As defined in the GTCA, “claim” means “any demand against the State,” and “loss” means “personal injury; disease; death; damage to personal property, including lost wages and economic loss . ..; pain and suffering; mental anguish; and any other element of actual damages recoverable. . . ,”¹⁴ Thus, the notice requirement contemplates a statement of the total loss to be asserted against the State, but the statutory language should not be construed to create a hyper-technical barrier to recovery especially when it would not measurably advance the purpose of the GTCA. In the present case, the State was properly notified of the alleged nature, location, and cause of Myers’s injuries, and the purpose of the Act, “to ensure that the [S]tate receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit,”¹⁵ was not frustrated by Myers’s ante litem notice explaining her lack of knowledge of her full loss.¹⁶ Accordingly, based on the facts of this case, we conclude that the trial court erred by dismissing Myers’s complaint for failure to comply with the GTCA’s ante litem notice provisions.

Judgment reversed.

Phipps, C. J., Barnes, P. J., and Ellington, P. J., concur. McFadden, J., concurs fully and specially. Boggs and Branch, JJ., dissent.

1 (Punctuation omitted.) Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga. App. 505, 509 (3) (672 SE2d 471) (2009).

2 On appeal, Myers has abandoned any argument that the April 23, 2012 demand letter perfected her ante litem notice.

3 (Punctuation and footnotes omitted.) Perdue v. Athens Technical College, 283 Ga. App. 404 (641 SE2d 631) (2007).

4 Norris v. Dept. of Transp., 268 Ga. 192 (486 SE2d 826) (1997).

5 (Emphasis supplied.) OCGA § 50-21-26 (a) (5).

6 Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. 822, 824 (653 SE2d 729) (2007), citing Perdue, 283 Ga. App. at 406, 408.

7 (Punctuation omitted.) Id. at 824-825, citing Ga. Ports Auth. v. Harris, 274 Ga. 146, 151 (2) (549 SE2d 95) (2001) (delivery of notice by Federal Express rather than personally by claimant sufficient to fulfill “personal delivery” requirement under OCGA § 50-21-26 (a) (2), and fact that claimant did liot obtain receipt at time of delivery not fatal because claimant ultimately obtained receipt “in a manner not disallowed by the [statute]”); Norris, 268 Ga. at 193 (notice adequate because it was mailed prior to the statutory deadline, despite the fact that DOAS did not receive it until after the deadline).

8 (Citations and punctuation omitted.) Cummings, 282 Ga. at 824.

9 OCGA § 50-21-26 (a) (5).

10 Myers’s April 23, 2012 settlement demand included the following damages: $10,128.24 for medical expenses, $20,000 for past pain and suffering, $10,000 for mental anguish, $20,000 for future pain and suffering, and $50,480 for lost earning capacity.

11 Cummings, 282 Ga. at 825.

12 We agree with the dissent that the better course of action is for a plaintiff to provide whatever information about her loss is available to her at the time she serves ante litem notice, but we disagree that the statute currently requires a plaintiff to do so.

13 (Emphasis supplied.) OCGA § 50-21-26 (a) (5) (E).

14 OCGA § 50-21-22 (1), (3).

15 Perdue, 283 Ga. App. at 405.

16 We note that the facts of this case differ from those in Perdue, because the plaintiff had made a full recovery and had already made a specific monetary demand for settlement quantifying her full loss before she sent her ante litem notice. See id. at 405-406. Thus, Perdue’s failure to include the specific dollar amount or range of loss was fatal to her claim because at the time she sent her ante litem notice she had full knowledge of her loss, and it was practical to provide the amount of loss in the ante litem notice. See id. at 408.