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                               http://www.gaappeals.us/rules


                                                                    March 15, 2017




In the Court of Appeals of Georgia
 A16A2132. GEORGIA DEPARTMENT OF TRANSPORTATION
     v. KING.

      BRANCH, Judge.

      Shenita King filed this personal injury action in the State Court of Bibb County

against the Georgia Department of Transportation, alleging that the Department’s

employee, John Peed, negligently caused a vehicle collision in which King was

injured. The Department moved to dismiss King’s complaint for lack of subject

matter jurisdiction, among other things, on the basis that King’s ante litem notice,

which indicated that she would claim “the full amount of damages allowed by law”

but did not specify in dollars the amount of the loss claimed, failed to satisfy the

conditions for a waiver of sovereign immunity under the Georgia Tort Claims Act,

OCGA § 50-21-20 et seq. (“GTCA”). The trial court determined that, because the

GTCA caps the amount of damages for a claim under the Act at $1 million, the

reference in King’s ante litem notice to the full amount of damages allowed by law

was sufficient to make the Department aware that King was seeking $1 million. The
trial court denied the Department’s motion to dismiss, and, after obtaining permission

from this Court,1 the Department appeals. For the reasons explained below, we

reverse.

      Whether a plaintiff has carried her burden of establishing a waiver of sovereign

immunity, which includes showing compliance with the ante litem provisions of the

Act, is a question of subject matter jurisdiction. Ga. Ports Auth. v. Harris, 243 Ga.

App. 508, 510 (1) (a) (533 SE2d 404) (2000), aff’d, 274 Ga. 146 (549 SE2d 95)

(2001). See 50-21-26 (a) (3) (“[T]he courts shall have no jurisdiction . . . unless and

until a written notice of claim has been timely presented to the state as provided in

this subsection.”).

       We review de novo a trial court’s denial of a motion to dismiss based
      on sovereign immunity grounds, which is a matter of law. However,
      factual findings by the trial court in support of its legal decision are
      sustained if there is evidence authorizing them, and the burden of proof
      is on the party seeking the waiver of immunity.


Loehle v. Ga. Dept. of Public Safety, 334 Ga. App. 836, 836-837 (780 SE2d 469)

(2015) (citations omitted).




      1
          See OCGA § 5-6-34 (b) (applications for interlocutory appeals).

                                          2
      The GTCA requires a party with a potential tort claim against the State to

provide the State with written notice of the claim before filing suit. OCGA §

50-21-26. Among other information, the notice must state “the amount of the loss

claimed[.]” OCGA § 50-21-26 (a) (5) (E). Here, King’s notice, sent August 1, 2013,

stated that, as a result of a vehicle collision on or about July 26, 2013, with a vehicle

driven by Department employee, John Peed, she “suffered and continues to suffer

great pain and suffering.” Her notice stated:

      The total damages for Mrs. King’s personal injuries have not been
      determined as Mrs. King is still under the care of her treating physician.
      Mrs. King will claim the full amount of damages allowed by law.


      The trial court determined that “the full amount of damages allowed by law”

is established by the GTCA under OCGA § 50-21-29 (b) (1). That subsection

provides that “in any action or claim for damages brought under the provisions of [the

GTCA], no person shall recover a sum exceeding $1 million because of loss arising

from a single occurrence, regardless of the number of state government entities

involved[.]” The trial court determined that, because the notice showed that one

individual was claiming damages from a single collision, and because the State is

aware that, pursuant to OCGA § 50-21-29 (b) (1), the maximum recovery allowed by


                                           3
the GTCA for one individual seeking damages from one occurrence is $1 million, the

notice was sufficient to put the Department on notice of the amount of the loss

claimed. We disagree with the trial court’s ruling.

      When construing a statute, “we must presume that the General Assembly meant

what it said and said what it meant.” Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751

SE2d 337) (2013) (citation and punctuation omitted). Thus if the language of the

statute “is plain and unambiguous, judicial construction is not only unnecessary but

forbidden.” Six Flags Over Ga. II v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003)

(citation omitted). Where terms of art are not involved, we look to the common and

customary usages of the words and their context. Zaldivar v. Prickett, 297 Ga. 589,

591 (1) (774 SE2d 688) (2015). “For context, we may look to other provisions of the

same statute, the structure and history of the whole statute, and the other law —

constitutional, statutory, and common law alike — that forms the legal background

of the statutory provision in question.” Id. (citation and punctuation omitted). Part of

the context of the ante litem notice requirement is that “[i]f a claimant does not meet

the ante litem notice requirements, then the state does not waive sovereign immunity,

and therefore, the trial court lacks subject matter jurisdiction.” Silva v. Ga. Dept. of

Transp., 337 Ga. App. 116, 117 (2) (787 SE2d 247) (2016) (citation and punctuation

                                           4
omitted). Accordingly, “strict compliance with these ante litem notice requirements

is necessary, and substantial compliance is insufficient.” Bd. of Regents of Univ. Sys.

of Ga. v. Myers, 295 Ga. 843, 845-846 (764 SE2d 543) (2014) (citations omitted).

Nevertheless, the Supreme Court has “cautioned that strict compliance does not

require a hyper-technical construction that would not measurably advance the purpose

of the ante litem notice provisions.” Id. at 846 (citation and punctuation omitted).

      Under the GTCA, the notice of claim must “state, to the extent of the

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

six items of information as follows:

      (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.


OCGA § 50-21-26 (a) (5). It is well-established that omitting only the “amount of the

loss claimed” from an ante-litem notice is a failure to “strictly comply with the notice

requirements of the GTCA” and therefore fatal to the plaintiff’s claim. Myers, 295

Ga. at 843.


                                           5
       In Myers, the claimant’s ante litem notice stated that “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.” Id. at 844 (punctuation omitted). The Supreme

Court addressed the meaning of the “amount of loss” requirement and held that even

though the full extent of the claimant’s loss was yet to be determined, she had

incurred some medical expenses yet failed to report that information:

       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. Thus, the extent of her knowledge
       and 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.”


Id. at 846 (citation, punctuation and footnote omitted; emphasis supplied). The court

concluded that “the plain language [of the ante litem notice statute] requires notice

of the amount of the loss claimed at [the] time [of the notice], within the belief and

knowledge of the claimant, as may be practicable under the circumstances.” Id. Thus,

Myers should have included in the ante litem notice the amount of loss that she knew

                                            6
at the time and 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.” Id. at 847.

The Supreme Court went on to note that the amount of loss claimed in the ante litem

notice does not bind the claimant; rather it provides “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. (citation and punctuation omitted, emphasis

supplied).

      In the case before us, King’s ante litem notice failed to state any amount of

loss, stated that she would claim “the full amount of damages allowed by law,” but

indicated that she had already received care from her treating physician:

      Mrs. King suffered physical pain and suffering. The total damages for
      Mrs. King’s personal injuries have not been determined as Mrs. King is
      still under the care of her treating physician. Mrs. King will claim the
      full amount of damages allowed by law.


Thus, at a minimum, King’s ante litem notice is flawed for the identical reason found

in Myers — the notice failed to state the amount of loss King knew at the time of the

notice.



                                          7
      Second, King’s reliance on the GTCA’s cap on liability does not solve this

problem. The cap has nothing to do with the amount of a claim; rather it is a

limitation on the amount that can be recovered:

      no person shall recover a sum exceeding $1 million because of loss
      arising from a single occurrence, regardless of the number of state
      government entities involved; . . .


OCGA § 50-21-29 (b) (1). Moreover, the jury will hear information about the total

amount of the plaintiff’s claims without ever hearing about the limitation on recovery:

“The existence of these caps on liability shall not be disclosed or suggested to the jury

during the trial of any action brought under this article.” Id. Accordingly, the cap

provides no limitation on the amount the plaintiff can claim in the lawsuit.

Correspondingly, as already shown, the Supreme Court has made clear that the

“amount of loss claimed” in the ante litem notice does not bind the claimant, either.

Thus, the reference to the GTCA’s cap on recovery provides no information

whatsoever about the amount that King may claim in the suit.

      Third, the Supreme Court has explained that the ante litem requirements

“ensure that the State receives adequate notice of the claim to facilitate settlement

before the filing of a lawsuit,” and that it should provide “notice to the State of the


                                            8
magnitude of the claim.” Myers, 295 Ga. at 845, 847 (citation omitted). The fact that

the claimant may have losses that greatly exceed the GTCA cap on the amount that

can be recovered is certainly relevant to the issue of settlement.

       Given the above, the trial court’s interpretation of the statute is erroneous as

a matter of law. King’s statement that she intended to “claim the full amount of

damages allowed by law” fails to satisfy the definition of “the amount of loss

claimed” provided by the Supreme Court; it refers to a cap on the amount she might

be allowed to recover without providing any information about the amount she can

claim to the jury; and it fails to provide meaningful information to the state for

purposes of settlement.

       For the reasons stated above, we reverse the denial of the Department’s motion

to dismiss.

       Judgment reversed. Doyle, C. J., Dillard, P. J., and Andrews and Ray, JJ.,

concur. Bethel, J., concurs fully and specially. Ellington, P. J., Mercier and Reese,

JJ., dissent.




                                           9
 A16A2132. GEORGIA DEPARTMENT OF TRANSPORTATION

       v. KING

      BETHEL, Judge, concurring fully and specially.

      I join fully in Judge Branch’s opinion and write specially to emphasize an

additional point supporting the reversal of the trial court’s order.

      The dissent, the trial court, and King urge the proposition that “the full amount

of damages allowed by law” is the legal and linguistic equivalent of saying “the

maximum allowed by a statutory cap on damages” (which in this instance is $1

million). Respectfully, this is not precisely the case.

      It is clear that “[i]f a tort is committed through mistake, ignorance, or mere

negligence, the damages are limited to the actual injury received[.]” See Mabelton

Parkway CVS, Inc. v. Salter, 273 Ga. App. 477, 482 (2) (b) (615 SE2d 558) (2005)

(citation omitted); see also Carroll v. Rock, 220 Ga. App. 260, 260 (1) (469 SE2d

391) (1996) (citation omitted). It follows then that “the full amount of damages

allowed by law” means the amount of damages incurred and proven, not to exceed
the statutory cap.1 Stated differently, the cited statutory cap is not the only “cap.”

Actual damages are always a “cap” on recovery in this class of cases. Mabelton

Parkway CVS, 273 Ga. App. at 482 (2) (b). This reality undermines King’s argument

and highlights the value of this provision of the ante litem notice requirement.

      Consider a plaintiff who incurs a $50,000 loss under the circumstances alleged

in King’s complaint. The “full amount of damages allowed by law” to this

hypothetical plaintiff is $50,000. Thus, a purported ante litem notice that merely seeks

“the full amount of damages allowed by law” does not sufficiently inform the

governmental entity of the magnitude of the claim — even if the entity is aware of a

cap — because the “full amount” might be any amount between $1 and the applicable

cap. In other words, such a notice provides no information about the claimed damages

that the governmental entity did not already know.




      1
        Of course, punitive damages, treble damages and the like are provided for by
law as exceptions to this rule. None of these exceptions is implicated by this case.

                                           2
 A16A2132. GA. DEPT. OF TRANSPORTATION v. KING.

      ELLINGTON, Presiding Judge, dissenting.

      I believe that the trial court correctly determined that, although Shenita King’s

ante litem notice did not specify in dollars the amount of the loss claimed, the

statement in her ante litem notice that she would claim “the full amount of damages

allowed by law” was sufficient to make the Department aware that she was seeking

$1 million, in view OCGA § 50-21-29 (b) (1), which caps the amount of damages for

a claim under the Georgia Tort Claims Act at $1 million. Accordingly, I respectfully

dissent.

      Although strict compliance with the Act’s ante litem notice requirements is

necessary, and substantial compliance is insufficient, the Supreme Court of Georgia

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

that would not measurably advance the purpose of the ante litem notice provisions.

Nor does strict compliance take precedence over the plain language or meaning of the

statute.” (Citation and punctuation omitted.) Bd. of Regents of Univ. Sys. of Ga. v.

Myers, 295 Ga. 843, 846 (764 SE2d 543) (2014). See also Cummings v. Ga. Dept. of

Juvenile Justice, 282 Ga. 822, 824 (653 SE2d 729) (2007) (accord). “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.” (Footnote omitted.)

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

The function of the ante litem notice is not to commit a plaintiff to a accepting a

certain amount in settlement, but it must “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.” Bd. of Regents of Univ. Sys. of Ga. v. Myers, 295 Ga. at

847. See Dorn v. Ga. Dept. of Behavioral Health & Developmental Disabilities, 329

Ga. App. 384, 388 (765 SE2d 385) (2014) (accord); Driscoll v. Bd. of Regents of

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

      Because OCGA § 50-21-28 (b) (1) caps the damages allowed for a single

occurrence at $1 million,1 it is evident that the phrase “the full amount of damages

allowed by law” means $1 million in King’s case. I agree with the conclusion of the

trial court, therefore, that “[i]n looking at [King’s] Ante Litem Notice as a whole” the

notice effectively did communicate a specific dollar amount, although it did so


      1
        OCGA § 50-21-29 (b) (1) provides:
      in any action or claim for damages brought under the provisions of [the
      Act], no person shall recover a sum exceeding $1 million because of loss
      arising from a single occurrence, regardless of the number of state
      government entities involved[.] . . . The existence of these caps on
      liability shall not be disclosed or suggested to the jury during the trial of
      any action brought under [the Act].

                                            2
without using the word “dollar” or the symbol “$.”2 In my view, King’s ante litem

notice gave the Department notice of the magnitude of her claim sufficient to serve

the Act’s purpose of allowing the Department to pursue settlement negotiations. The

Department entirely fails to articulate how it is in a worse position in seeking to

negotiate a settlement with King because her notice stated that she would be seeking

“the full amount allowed by law” rather than stating that she would be seeking “$1




      2
         Thus, this case can be distinguished from cases where we have found that an
ante litem notice was deficient where it entirely failed to state the amount of the loss.
See Silva v. Ga. Dept. of Transp., 337 Ga. App. 116, 117-119 (2) (787 SE2d 247)
(2016) (An ante litem notice was deficient where it stated that the plaintiff was “still
receiving treatment for her injuries.”); Dorn v. Ga. Dept. of Behavioral Health &
Developmental Disabilities, 329 Ga. App. at 387-389 (An ante litem notice was
deficient where it stated that the “amount of loss suffered” is the “monetary value of
the decedent’s life in an amount sufficient to appropriately penalize [the] State’s
deliberate indifferent, negligent breach of [its] duty[ ] and . . . [its] deliberately
indifferent, negligent violation of the decedent’s rights.”) (punctuation omitted);
Driscoll v. Bd. of Regents of Univ. Sys. of Ga., 326 Ga. App. at 316, 318 (An ante
litem notice was deficient where it requested an “amicable resolution.”); Bd. of
Regents of Univ. Sys. of Ga. v. Myers, 295 Ga. at 846-847 (An ante litem notice was
deficient where it stated that “the amount of [the plaintiff’s] loss is yet to be
determined as she is still incurring medical bills and does not yet know the full extent
of her injury.”“); Perdue v. Athens Tech. College, 283 Ga. App. 404, 406, 408 (641
SE2d 631) (2007) (An ante litem notice was deficient where it stated that the plaintiff
suffered “economic and non-economic losses.”). In none of these cases did an ante
litem notice state that the plaintiff sought “the full amount of damages allowed by
law.”

                                           3
million.”3 Because requiring that the specific dollar figure of “$1 million” be

substituted would be a hyper-technical construction of OCGA § 50-21-26 (a) that

would not measurably advance the purpose of the Act’s ante litem notice

requirements, the trial court did not err in denying the Department’s motion to

dismiss.

       I am authorized to state that Judges Mercier and Reese join me in this dissent.




       3
         The Department contends that “allowing each and every plaintiff to state that
they were seeking the full amount of damages allowed under the law would mean that
the State had no knowledge of the amount of damages sought by the plaintiff.” Under
the majority’s analysis, however, “each and every plaintiff” is permitted to state that
they are seeking $1 million, just because that is a dollar figure, even though that may
reflect an individual plaintiff’s hyperbolic value of the kinds of losses, like pain and
suffering, that are difficult to value and are ultimately subject to an impartial jury's
enlightened conscience. Bd. of Regents of Univ. Sys. of Ga. v. Myers, 295 Ga. at 846;
Dorn v. Ga. Dept. of Behavioral Health & Developmental Disabilities, 329 Ga. App. at 386;
Driscoll v. Bd. of Regents of Univ. Sys. of Ga., 326 Ga. App. at 317-318. It is difficult
to see how greater specificity advances the purposes of the ante litem notice. See Bd. of Regents
of Univ. Sys. of Ga. v. Myers, 295 Ga. at 847 (A statement of the amount of the loss
would have been sufficient if it stated an amount that included the plaintiff’s medical
expenses as of the date of the notice and “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.”).

                                               4
