In the Supreme Court of Georgia



                                          Decided: October 6, 2014


S14G0431. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF
                   GEORGIA v. MYERS.


      HUNSTEIN, Justice.

      We granted certiorari in this case to determine whether the Court of

Appeals correctly interpreted the ante litem notice requirements of the Georgia

Tort Claims Act (“GTCA”), OCGA § 5-21-20 et seq. For the reasons set forth

below, we hold that the claimant’s ante litem notice in this case did not strictly

comply with the notice requirements of the GTCA because it failed to state the

amount of the loss claimed to the extent of the claimant’s knowledge and belief

as was practicable under the circumstances. Accordingly, we reverse.

      On June 28, 2010, Appellee Kimberly Myers was injured when she

stepped in an unrepaired pothole in a parking lot on the campus of Dalton State

College, an institution within the University System of Georgia. Myers received

medical emergency treatment that day, received follow-up orthopedic care, and

started physical therapy, which ran from approximately September through
December 2010. Thereafter, she continued to seek medical treatment because

she had not yet completely recovered from her injuries.

      On October 11, 2010, Myers sent a Notice of Claim letter via certified

mail pursuant to OCGA § 50-21-26 to the Georgia Department of

Administrative Services (“DOAS”) and the University System’s Board of

Regents (“Board”).      Myers’ ante litem notice stated that she asserted a

negligence claim against the Board based on the unsafe condition of its parking

lot at Dalton State College. She explained that on June 26, she stepped into a

hole in the parking lot, “injuring her left ankle including a fracture and torn

tendons.” Myers’ ante litem notice 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, DOAS sent a letter to Myers’ attorney

acknowledging receipt of Myers’ October 11 correspondence and requesting

copies of Myers’ medical bills, reports, and verification of any wage loss.

Myers did not respond.

      On August 2, 2011, DOAS sent a follow-up letter to Myers’ counsel

requesting the same documentation and a demand for settlement within 30 days.

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On April 23, 2012, Myers made a demand for $110,000 to settle her claims. On

May 7, 2012, DOAS responded with a settlement offer of $10,128.24.

      Myers then filed suit on June 20, 2012, seeking damages for past and

future medical expenses, pain and suffering, and mental anguish, as well as loss

of earning capacity. The Board answered Myers’ complaint and moved to

dismiss, arguing that Myers’ ante litem notice did not contain the “amount of the

loss claimed,” and therefore, it failed to comply with OCGA § 50-21-26 (a) (5)

(E). The trial court granted the Board’s motion to dismiss, finding that Myers’

suit was barred by sovereign immunity because she failed to strictly adhere to

the ante litem notice requirements of the GTCA.

      Myers appealed, and the Court of Appeals reversed, holding that Myers’

ante litem notice was sufficient. Myers v. Bd. of Regents of Univ. Sys. of Ga.,

324 Ga. App. 685 (751 SE2d 490) (2013). The court explained that the “GTCA

does not require a partial statement or a ‘snapshot’ of the loss; instead it requires

a statement of ‘the amount of the loss claimed.’” Id. at 688 (emphasis in

original; footnote omitted). The Court of Appeals found that when Myers sent

her ante litem notice in October 2011, she was still receiving medical treatment

and the full extent of her loss was not reasonably quantifiable at that time; she

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had not yet made a full recovery or determined the impact to her wage earning

capacity. Id. Therefore, the court held that her ante litem notice complied with

GTCA’s notice requirements. Id. We subsequently granted certiorari.

      The GTCA provides for a limited waiver of the State’s sovereign

immunity. OCGA § 50-21-23 (b) (“[t]he state waives its sovereign immunity

only to the extent and in the manner provided in this article”); see also OCGA

§ 50-21-21 (a) (“the state shall only be liable in tort actions within the

limitations of this article and in accordance with the fair and uniform principles

established in this article”).    In order to effectuate this waiver, certain

prerequisites must be met.

      The 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. Such notice must be given in writing
      within 12 months of the date the party’s loss was or should have
      been discovered. OCGA § 50-21-26 (a) (1). The notice must
      identify, “to the extent of the claimant’s knowledge and belief and
      as may be practicable under the circumstances,” OCGA § 50-21-26
      (a) (5), the state government entity whose acts or omissions are
      asserted as the basis for the claim, id. at (A); the time and place of
      the occurrence from which the claim arose, id. at (B) and (C); the
      nature and amount of the loss suffered, id. at (D) and (E); and the
      acts or omissions that caused the loss. Id. at (F). In addition, notice
      of the written claim must be “mailed by certified mail or statutory
      overnight delivery, return receipt requested, or delivered personally
      to and a receipt obtained from the Risk Management Division of the

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       Department of Administrative Services. In addition, a copy shall be
       delivered personally to or mailed by first-class mail to the state
       government entity, the act or omissions of which are asserted as the
       basis of the claim.” OCGA § 50-21-26 (a) (2).

Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. 822, 823-824 (653 SE2d

729) (2007). These ante litem requirements ensure that the State receives

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

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

       “The stated intent of the [GTCA] 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.’” Norris v. Ga. Dept. of Transp., 268 Ga. 192, 192 (486 SE2d

826) (1997) (quoting OCGA § 50-21-21 (a)).               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. OCGA § 50-21-26 (a)

(3).

       As we have recognized, strict compliance with these ante litem notice

requirements is necessary, and substantial compliance is insufficient.

Cummings, 282 Ga. at 824; Williams, 272 Ga. at 624; see also Perdue v. Athens


                                         5
Technical Coll., 283 Ga. App. 404, 405 (641 SE2d 631) (2007). However, we

have cautioned that strict compliance does not require a “hyper-technical

construction that would not measurably advance the purpose” of the ante litem

notice provisions. Cummings, 282 Ga. at 824. Nor does strict compliance “take

precedence over the plain language or meaning of the statute.” Perdue, 283 Ga.

App. at 407.

      This case turns on the meaning of the statutory language requiring that a

claimant must state the “amount of the loss claimed” “to the extent of the

claimant’s knowledge and belief and as may be practicable under the

circumstances.” OCGA § 50-21-26 (a) (5) (E). We hold that Myers’ notice

failed to strictly comply with this ante litem notice requirement because it did

not state any amount of loss whatsoever. Although the notice states that Myers’

loss was yet to be determined, she was still incurring medical bills, and she did

not yet know the full extent of her injury, she had actually incurred medical

expenses at the time she gave notice.1 Thus, the extent of her knowledge and


      1
       In her first amended complaint for damages, Myers provided a detailed
exhibit listing her medical expenses to date. According to this exhibit, as of the
date of her notice on October 11, 2010, she had incurred $4,180.64 in medical
expenses.
                                          6
belief at the time of notice included, at a minimum, the medical expenses she

had incurred thus far. As the trial court correctly recognized, Myers “failed

entirely to comply with a requirement despite having knowledge.” See also

Perdue, 283 Ga. App. at 408 (claimant’s notice stating that she was “seeking

compensation for her economic and non-economic losses” did not set forth the

amount of the loss claimed).

      As we have recognized, “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.”

Cummings, 282 Ga. at 825. “The Legislature 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.” Driscoll v. Bd. of Regents of

Univ. of Sys. of Ga., 326 Ga. App. 315, 317-318 (757 SE2d 138) (2014). Thus,

the statute does not require that a claimant give notice of the “entire loss,” the

“complete loss,” or the “total loss.” Instead, the plain language requires 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. OCGA § 50-21-

26 (a) (5) (E). We agree with the dissenters below that the claimant “is not

                                        7
relieved from giving some notice to the State even if her knowledge is

incomplete or she must rely on her belief.” Myers, 324 Ga. App. at 689 (Boggs,

J., dissenting). Here, in addition to stating the amount of the loss claimed,

which would have included her medical expenses thus far, Myers could have

also stated that, based on her belief, there would be some pain and suffering

damages or lost wages in the future, the amounts of which she did not yet have

knowledge and could not practicably provide at that time.

      Contrary to Myers’ arguments, this notice does not bind a claimant to an

amount of the loss claimed. See Driscoll, 326 Ga. App. at 318. “The function

of the ante litem notice is not to ‘bind’ a plaintiff to a certain amount, but to

provide notice to the State of the magnitude of the claim, as practicable and to

the extent of the claimant’s knowledge and belief” at the time of the notice. Id.;

see Myers, 324 Ga. App. at 689 (Boggs, J., dissenting) (claimant was not

restricted “to only those losses stated in the ante litem notice”).

      Because Myers’ notice did not comply with the GTCA’s ante litem notice

provisions, the State did not waive sovereign immunity and the trial court lacked

jurisdiction to adjudicate Myers’ claims.

      Reversed. All the Justices concur, except Benham, J., who dissents.

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S14G0431. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF
                            GEORGIA v. MYERS.


      BENHAM, Justice, dissenting.

      As this Court has previously held, the rule that the Georgia Tort Claims

Act (“GTCA”) should be strictly construed “does not demand a hyper-technical

construction that would not measurably advance the purpose of the GTCA’s

notice provisions. In other words, we have declined to reach a needlessly harsh

result when that result was not mandated by the GTCA.” (Citations and

punctuation omitted.) Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. 822,

824-825 (653 SE2d 729) (2007). In Cummings, we reiterated that “the purpose

of the ante litem notice requirements is to ensure that the state receives adequate

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

(Citation and punctuation omitted.) Id. at 824. In the case now before us, after

receiving timely notice of the claim, the state was not hampered in its ability to

seek a settlement before appellee Myers filed her lawsuit. She sent a demand

package to the Georgia Department of Administrative Services (“DOAS”)

listing all her alleged damages, including medical expenses and other damages
she had not yet sustained at the time she initially served her ante litem notice.

DOAS responded with a settlement offer, and all this occurred prior to Myers’s

filing her complaint.

      I agree with the Court of Appeals that the language of the GTCA requires

a statement of “the amount of the loss claimed,” and not an incomplete snapshot

of the loss the claimant has sustained at the time of the ante litem notice. See

OCGA § 50-21-26 (a) (5) (E). After the Court of Appeals issued its opinion in

this matter, it distinguished the facts of this case from the facts of a more recent

case decided by that court in which the ante litem notice failed to mention any

amount of loss claimed, even though by the time the notice was served, the

losses were complete. See Driscoll v. Bd. of Regents, etc., 326 Ga. App. 315,

317, n. 10 (757 SE2d 138) (2014).            Ms. Myers’s ante litem notice, by

comparison, was served at a time before she knew or could have known of the

full extent of her losses. Nevertheless, her ante litem notice described the

physical injury she sustained, gave notice that her loss had yet to be determined

because she was still incurring medical bills, and stated that she did not yet

know the full extent of her injury. In my opinion, then, Myers’s notice met the

requirement of the GTCA that a notice of claim state the amount of loss claimed

                                         2
“to the extent of the claimant’s knowledge and belief and as may be practicable

under the circumstances.” OCGA § 50-21-26 (a) (5). Additionally, the purpose

of assuring that the state’s ability to make a meaningful settlement assessment

before the lawsuit was filed was accomplished.

      Consequently, I would affirm the Court of Appeals’s opinion that the ante

litem notice given by appellee Myers was adequate under the circumstances and

its holding that her suit against appellant was improperly dismissed.




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