Ante litem notice for claims involving Georgia state vehicles

Limited waiver of sovereign immunity in O.C.G.A. 50-21-23

O.C.G.A. 50-21-23(a) provides that "The state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment" and makes the state liable for such torts in the same manner as a private individual or entity would be liable under like circumstances. Section 50-21-23(a) gives that waiver "subject to all exceptions and limitations set forth in this article." The same subsection states that the state has no liability for losses resulting from conduct of state officers or employees that was not within the scope of official duties or employment. For a truck crash involving a state vehicle, Section 50-21-23(a) ties the state's liability to whether the state officer or employee driving was acting within the scope of official duties or employment.^[1]

Section 50-21-23(b) limits the waiver to the extent and manner the article provides and to actions brought in the courts of the State of Georgia. The subsection adds that "The state does not waive any immunity with respect to actions brought in the courts of the United States." A claim against the state arising from truck accidents involving state officers or employees is subject to the Section 50-21-23(b) conditions as well as the scope of employment limit in subsection (a). A truck accident suit against the state brought in the courts of the United States receives no waiver under Section 50-21-23(b). Because O.C.G.A. 50-21-26(a) speaks of tort claims brought "under this article" and the official code hierarchy shows O.C.G.A. 50-21-23 and O.C.G.A. 50-21-26 in Article 2, the notice rules apply to claims under the waiver that Section 50-21-23 grants.^[1][2]

Notice deadline and delivery methods

O.C.G.A. 50-21-26(a)(1) provides that "Notice of a claim shall be given in writing within 12 months of the date the loss was discovered or should have been discovered", subject to a proviso for older claims. Under that proviso, for tort claims and causes of action that accrued between January 1, 1991, and July 1, 1992, notice of claim was to be given in writing within 12 months after July 1, 1992. Section 50-21-26(a)(1) does not itself define when a loss "should have been discovered", and this entry does not cover how that discovery standard is applied. For a claim under Article 2 that arises from a truck crash, Section 50-21-26(a)(1) measures the 12 months from the discovery date that paragraph sets out, or from July 1, 1992 for claims that accrued in the transitional window ending on that date. The ante litem notice for claims involving Georgia state vehicles is subject to that same timing.^[2]

Section 50-21-26(a)(2) requires that the written notice be mailed by certified mail or statutory overnight delivery, return receipt requested, or delivered personally, with a receipt obtained, to the Risk Management Division of the Department of Administrative Services. In addition, a copy goes either by personal delivery or by first-class mail to the state government entity whose act or omissions the claim asserts as its basis. Under the same paragraph, "Each state government entity may designate an office or officer within that state government entity to whom a notice of claim is to be delivered or mailed." When a claim against the state arises from the conduct of a truck driver who is a state employee, the copy reaches that entity, or its designated office or officer, through personal delivery or first-class mail, while the original goes to the Risk Management Division under the delivery methods in Section 50-21-26(a)(2). Personal delivery of a truck crash notice to the Risk Management Division calls for a receipt obtained under Section 50-21-26(a)(2). The delivered notice also carries the items listed in Section 50-21-26(a)(5), and suit remains barred under Section 50-21-26(a)(3) until the notice has been timely presented.^[2]

Required contents of the notice of claim

Under O.C.G.A. 50-21-26(a)(5), a notice of claim "shall state, to the extent of the claimant's knowledge and belief and as may be practicable under the circumstances, the following". The listed items are (A) the name of the state government entity whose acts or omissions 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. In a notice for a claim against the state under the article that arises from truck accidents involving state vehicles, items (B) and (C) call for the time and the place of the transaction or occurrence, each to the extent of the claimant's knowledge and belief and as may be practicable under the circumstances. Item (A) identifies the state government entity whose conduct forms the basis of a truck accident claim against the state under the article.^[2]

The notice addressed by Section 50-21-26(a)(5) is the written notice of claim that Section 50-21-26(a)(2) sends to the Risk Management Division of the Department of Administrative Services, with a copy to the state government entity by personal delivery or first-class mail. A copy of that notice, as presented to the Department of Administrative Services, is one of the exhibits that Section 50-21-26(a)(4) requires to be attached to any complaint filed under the article, along with the delivery receipt. When a notice concerns truck crashes involving state officers or employees, item (D) calls for the nature of the loss suffered and item (E) for the amount of the loss claimed. Item (F) calls for the acts or omissions which caused the loss, such as conduct of a state employee who is a truck driver. The ante litem notice for claims involving Georgia state vehicles carries the Section 50-21-26(a)(5) items when the claim is a tort claim brought against the state under Article 2.^[2]

Jurisdiction, complaint exhibits and the 90-day waiting period

Under O.C.G.A. 50-21-26(a)(3), no action against the state under the article may be commenced, and the courts have no jurisdiction of such an action, unless and until a written notice of claim has been timely presented to the state as subsection (a) provides. A truck crash claim brought against the state under the article, such as one based on a state employee's conduct in a state vehicle within the scope of employment, is subject to that condition before any action begins. For truck accidents in which the state is the defendant under the article, Section 50-21-26(a)(3) ties the court's jurisdiction to timely presentation of the written notice of claim.^[2][1]

Section 50-21-26(a)(4) states that "Any complaint filed pursuant to this article must have a copy of the notice of claim presented to the Department of Administrative Services" attached as an exhibit. The same paragraph requires the certified mail or statutory overnight delivery receipt, or the receipt for other delivery, to be attached as an exhibit as well. If the failure to attach those exhibits is not cured within 30 days after the state raises the issue by motion, the complaint is dismissed without prejudice. For truck accidents involving state vehicles, that exhibit rule and its 30-day cure period after the state's motion apply to any complaint filed under the article against the state. A truck crash complaint against the state faces that dismissal without prejudice if the missing exhibits are not cured within 30 days after the state's motion.^[2]

Under Section 50-21-26(b), no action may be commenced under the article following presentation of a notice of claim until either the Department of Administrative Services has denied the claim or more than 90 days have elapsed after presentation without action by the Department, whichever occurs first. In a claim against the state that involves truck drivers employed by a state government entity, a claim the Department has denied before more than 90 days pass after presentation ends the waiting period under Section 50-21-26(b), because the subsection runs to whichever event occurs first. For a truck crash claim against the state under the article, the Section 50-21-26(b) waiting period otherwise ends once more than 90 days pass after presentation without action by the Department, if no denial came earlier.^[2]

Department of Administrative Services investigation and confidentiality

Under O.C.G.A. 50-21-26(c), "The Department of Administrative Services shall have the authority to examine and copy any records of any state government entity to facilitate the investigation of a claim." Each state government entity is required to make all such records available to the Department, incidental to any investigation of a claim, notwithstanding any other provision of law that designates the records as confidential or prohibits their disclosure. The Department, however, "shall be bound by such provision of law and shall not make further disclosure of such records except as permitted by such provision of law." In a claim against the state that arises from a truck crash, this authority covers the records of any state government entity, including the entity whose officer or employee was driving, and the same confidentiality limit binds the Department.^[2]

Section 50-21-26(c) allows the Department of Administrative Services to enforce that authority by subpoena. Upon application by the Department, the Superior Court of Fulton County, Georgia, may enforce such a subpoena in the same manner as subpoenas issued under Chapter 13 of Title 50, the Georgia Administrative Procedure Act, may be enforced. The subpoena power in Section 50-21-26(c) serves the investigation of a claim, including a claim against the state arising from truck accidents involving state vehicles. That enforcement route through the Superior Court of Fulton County is available in the investigation of truck crashes involving state officers or employees on the Department's application.^[2]

Under Section 50-21-26(d), any document or information gathered or prepared by the Department of Administrative Services in connection with the investigation undertaken as a result of the notice of claim "shall be considered privileged and confidential and shall not be subject to discovery by any claimant in any proceeding under this article except as otherwise provided by law." That discovery limit applies to a truck accident claimant in a proceeding under the article on the same terms, except as otherwise provided by law.^[2]

Code location, history and Code Commission notes for O.C.G.A. 50-21-26

The official code hierarchy places O.C.G.A. 50-21-23, the waiver for torts committed within the scope of official duties or employment, and O.C.G.A. 50-21-26 in Article 2, State Tort Claims, of Chapter 21 of Title 50. Article 2 covers Sections 50-21-20 through 50-21-37. The ante litem notice for claims involving Georgia state vehicles appears in O.C.G.A. 50-21-26 within that State Tort Claims article. The history line on the official page for Section 50-21-23 shows enactment by Ga. L. 1992, p. 1883, section 1. The history line for Section 50-21-26 shows enactment by Ga. L. 1992, p. 1883, section 1. Later amendments listed on that line are Ga. L. 1994, p. 1717, section 12 and Ga. L. 1998, p. 128, section 50. The line ends with Ga. L. 2000, p. 1589, section 3.^[1][2]

According to the Code Commission notes on the official page for Section 50-21-26, in 1992 "July 1, 1992" was substituted for "the effective date of this article" in two places in paragraph (a)(1), pursuant to Code Section 28-9-5. The notes also record that, pursuant to the same Code Section, a comma replaced the period after the first occurrence of July 1 in paragraph (a)(1) in 1993, and that the word that was inserted after the word however in paragraph (a)(1) in 2009.^[2]

See also: Flanagan Law truck accident practice

See also

On related publications

• Georgia truck-crash law notes (truckaccidentlawyer.wiki)
• Liability and comparative fault in Georgia (caraccidentlawyers.wiki)