Georgia Courts Reaffirm the Strict Requirements of Ante Litem Notices
Under a divided opinion, the whole Court of Appeals affirmed the grant of summary judgment to Whitfield County, Georgia, finding that the ante litem notification statute was not properly complied with. In re Estate of Leonard, 783 S.E.2d 470 (Ga. Ct. App. 2016). Plaintiff, Joe Leonard Jr. brought a negligence action against Whitfield County after he was injured while being transported by a County-owned bus. Leonard, 82 years old, claimed that the bus driver did not properly strap his wheelchair onto the bus and, when the bus took a sharp turn, the wheelchair flipped over. Within six months of the accident, Leonard’s counsel sent an ante litem notice letter to the County Attorney, Robert A. Smalley III. Despite that notice, the trial court granted summary judgment in favor of Whitfield County due to Leonard’s failure to fully comply with the ante litem notice requirements pursuant to O.C.G.A. § 36-11-1.
The Court found two issues with Leonard’s ante litem notice delivered to Smalley. First, Leonard sent the notice to a “private law firm hired by the County to represent the County as outside legal counsel.” Coweta County v. Cooper, 733 S.E.2d 348 (Ga. Ct. App. 2012). While this is not necessarily a disqualification of the notice, similarly to Coweta, Smalley’s affidavit indicated that he was not authorized to accept ante litem notices on the County’s behalf. Due to Smalley not being authorized to accept the notice, any subsequent verbal negotiations relating to the suit do not overcome the statutory notice requirements. O.C.G.A. § 36-11-1. In a dissenting opinion, viewing the facts in Leonard’s favor, Smalley was viewed to have apparent authority to accept an ante litem notice. The Court; however, weighed Coweta and Smalley’s affidavit against Leonard’s lack of evidence to hold that Smalley did not have apparent authority.
Second, Leonard did not present his claim within 12 months after it accrued. The ante litem statute requires all claims to be brought within a year or they become barred. Id. The statute, similarly to a statute of limitation, can allow for tolling. During the course of litigation, Leonard passed away and his daughter, and executor of his estate, was substituted as party plaintiff. Leonard argued that his notice period was tolled due to failing health that created an incapacity that was not resolved until his daughter was appointed as executor of his estate following his death. The Court rejected this argument finding that Leonard was able to continue pursuing his legal interests. He was able to retain counsel, send ante litem notices, engage the County’s insurer, and made a settlement offer. Due to these facts the Court deemed that Leonard was not laboring under a disability that would permit the tolling of the time for filing an ante litem notice. Thus, the trial court’s grant of summary judgment was affirmed.
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