Present: All the Justices
BARBARA HALBERSTAM
v. Record No. 951044 OPINION BY JUSTICE ELIZABETH B. LACY
March 1, 1996
COMMONWEALTH OF VIRGINIA, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Rosemarie P. Annunziata, Judge
The dispositive issue in this appeal is whether the
appellant complied with the notice requirement of the Virginia
Tort Claims Act, Code §§ 8.01-195.1 through -195.9 (the Act).
Appellant, Barbara Halberstam, was injured on October 5,
1993 when she fell in a parking lot at George Mason University
(GMU), a state supported university. Following the accident,
Halberstam communicated with GMU and the Division of Risk
Management of the Commonwealth on a number of occasions regarding
the nature and extent of her injuries. In all, Halberstam sent
seven letters. At the conclusion of the correspondence, the
Commonwealth denied liability for Halberstam's injury.
Halberstam filed a motion for judgment alleging that the
Commonwealth and GMU were negligent in maintaining the parking
lot. The Commonwealth and GMU filed a "Demurrer, Motion to
Dismiss/Motion for Summary Judgment and Plea of Sovereign
Immunity." After considering the briefs and argument of counsel,
the trial court held, first, that GMU was immune from suit
because the Act did not waive the immunity of agencies of the
Commonwealth and, second, that the notice of claim filed by
Halberstam did not meet the statutory requirements because it did
not sufficiently identify the place where the injury occurred.
The trial court entered an order dismissing Halberstam's motion
for judgment.
Halberstam's appeal raises a number of issues. Most are
related to the construction and application of the one-year
notice provision of the Act. That provision, Code § 8.01-195.6,
states, in relevant part:
Every claim cognizable against the Commonwealth . . .
shall be forever barred unless the claimant or his agent,
attorney or representative has filed a written statement
of the nature of the claim, which includes the time and
place at which the injury is alleged to have occurred and
the agency or agencies alleged to be liable. . . . The
claimant or his agent, attorney or representative shall,
in a claim cognizable against the Commonwealth, mail the
notice of claim via the United States Postal Service by
certified mail, return receipt requested, addressed to
the Director of the Division of Risk Management or the
Attorney General in Richmond.
Halberstam contends, initially, that a letter, dated March 14,
1994, from her counsel to the Director of the Division of Risk
Management in Richmond complied with the Act's notice
requirement. The letter read, in pertinent part,
On October 5, 1993, Mrs. Halberstam, a student at
George Mason University, was parking her vehicle in the
school parking lot at approximately 7:45p.m.. She
parallel parked alongside the curb and began to exit her
vehicle. Due to the fact that the area where she parked
was unlit, she did not notice a pothole or eroded area in
the asphalt of the parking lot. Upon exiting her vehicle
she stepped into this eroded area/pothole which caused
her to lose her balance, fall and injure herself. George
Mason University was responsible for maintaining the
parking lot where these injuries occurred.
In the alternative, she argues that the March 14 letter
considered in combination with her other correspondence
establishes substantial compliance with the notice provision. We
2
reject both contentions.
The Act is a statute in derogation of the common law
doctrine of sovereign immunity and, therefore, must be strictly
construed. Baumgardner v. Southwestern Virginia Mental Health
Inst., 247 Va. 486, 489, 442 S.E.2d 400, 401 (1994). Thus,
strict compliance with all of its provisions is required. 1
The language of Code § 8.01-195.6 is unambiguous. Notice
must include (1) the time and place at which the injury allegedly
occurred and (2) the agency or agencies allegedly liable. This
notice must be sent through the United States Postal Service by
certified mail, return receipt requested, addressed to the
Director of the Division of Risk Management or the Attorney
General in Richmond.
Halberstam's notice does not meet the statutory
requirements because it does not specify the location of the
injury. Rather, it merely states that the accident occurred in
"the school parking lot" of GMU. The parties stipulated that GMU
has a number of parking lots and more than one campus.
1
Halberstam argues at length that strict construction is
not required because the Commonwealth was not immune for claims
based on its proprietary actions under the common law and,
thus, the Act did not waive any common law immunity.
Halberstam misapplies the dichotomy between proprietary and
governmental acts as they relate to questions of governmental
immunity. Most of the cases relied on by Halberstam are
inapposite because they involved the type of immunity available
to municipalities, or to individual government employees sued
in their individual capacity, not the immunity of the
Commonwealth or its agencies. In no case has the Commonwealth
or its agencies been held liable for damages in a tort cause of
action based on an activity labeled proprietary by this Court.
3
Halberstam did not specify in which parking lot of which GMU
campus she was injured. Such lack of detail is, in essence, no
notice at all.
The need for specificity when providing notice to a
government of a tort claim has been emphasized by this Court
before. In Town of Crewe v. Marler, 228 Va. 109, 319 S.E.2d 748
(1984), we dealt with the notice provisions of Code § 8.01-222,
which apply to suits against cities and towns. This Court held
that the plaintiff failed to give proper notice to the city
because her written notice stated that the accident occurred "in
your town." Id. at 111, 114, 319 S.E.2d at 749, 750. This
description was deemed inadequate despite the fact that only
substantial compliance with the notice provision was required and
that the town had actual notice of the exact location of the
accident. Id. at 113-14, 319 S.E.2d at 749-50. Halberstam
contends that, even if her March 14 letter alone was
insufficient, her other correspondence is cognizable in
establishing compliance with the statute's requirements. She
points to the earlier letters which specify the campus and
parking lot where the accident occurred.
Only the March 14 letter, however, was sent to an
official designated in the statute and in the manner prescribed
by the statute, certified mail with a return receipt requested.
Thus, in this case, that letter alone must contain the
statutorily required information.
4
Halberstam also argues that the Director probably had
actual knowledge of the location of the accident due to certain
other letters and she should have been allowed the opportunity to
establish actual knowledge. This argument is unpersuasive. The
Commonwealth concedes that the Director had actual notice but
actual notice does not obviate Halberstam's duty to strictly
comply with the Act's notice provisions. Marler again provides
guidance. In that case, the Town of Crewe had actual notice of
the accident's location. Marler, 228 Va. 112, 319 S.E.2d at 749.
However, this Court held that the town's knowledge had no effect
on whether the claimant substantially complied with the statute.
We explained that
[t]he arbitrary and peremptory provisions of the
statute are necessary to accomplish the purposes
of the enactment. Unless explicit notice in
writing of the time and place of an accident is
furnished the proper public official substantially
in accordance with the statute, when there is a
claim of municipal negligence, the likelihood of
prompt attention to the matter to protect the
interests of the municipality and the public is
materially diminished. For this Court to place
any limitation on the clear and comprehensive
language of the statute, or to create an exception
where none exists under the guise of statutory
construction, would be to defeat the purpose of
the enactment and to engage in judicial
legislation.
Id. at 113-14, 319 S.E.2d at 750. The same rationale applies
with no less force to the notice provisions of the Virginia Tort
Claims Act, provisions which are to be strictly construed.
Lastly, Halberstam asserts that the trial court erred in
failing to hold that the Commonwealth was estopped from raising
5
the notice defense because it had already rejected her claim.
This argument is without merit. First, estoppel does not lie
against the Commonwealth. Commonwealth v. Allstate Bonding Co.,
246 Va. 189, 194, 435 S.E.2d 396, 399 (1993). Moreover, the
Commonwealth's September 15, 1994 letter rejecting Halberstam's
claim specifically reserved the Commonwealth's right to rely on
all procedural and substantive defenses.
Accordingly, for the reasons stated, we will affirm the
order of the trial court. 2
Affirmed.
2
Halberstam also assigned error to the trial court's
holding that the Tort Claims Act did not waive GMU's immunity.
We do not address that assignment because Halberstam's failure
to comply with the Act's notice requirement would also defeat
her claim against GMU under the Act, if applicable.
6