Myers v. Board of Regents of University System

BOGGS, Judge,

dissenting.

Because I would affirm the trial court’s decision to dismiss based upon the plaintiff’s failure to comply with the ante litem notice requirements of OCGA § 50-21-26 (a) (5), I respectfully dissent.

The ante litem statute does not require a plaintiff to state her full losses or otherwise restrict her claim to only those losses stated in the ante litem notice. “[T]he 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 v. Ga. Dept. of Juvenile Justice, 282 Ga. 822, 825 (653 SE2d 729) (2007). It strikes a balance between putting a plaintiff in the untenable position of stating precise dollar amounts for all future losses and giving the State some reasonable notice of the magnitude of the claim it faces. The notice must state the required information “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances.” OCGA § 50-21-26 (a) (5). Thus, a plaintiff is not relieved from giving some notice to the State even if her knowledge is incomplete or she must rely on her belief.

*690Here, Myers’ notice gave no statement of the amount of her loss despite the fact that she did have some concrete knowledge of her losses. For example, according to Myers’ own demand letter and complaint exhibits, within six months of her injury, she had incurred more than $9,000 of her alleged total of $10,128.24 in medical expenses. Thus, Myers could have, at a minimum, stated the bulk of her medical expenses with the caveat that she was undergoing continuing treatment and would claim some stated range of economic and noneconomic losses proportionate to her treatment and condition at that time. But she failed to state any amount of loss whatsoever. The plain language of the statute contemplates that a plaintiff’s statement of loss may be imperfect, but this flexibility does not eliminate the requirement to make some effort to state the amount of loss to the extent of her knowledge and belief at the time of the ante litem notice. See Perdue v. Athens Technical College, 283 Ga. App. 404, 408 (641 SE2d 631) (2007) (“To facilitate settlement of a claim before a lawsuit is filed, subsection (a) (5) (E) requires the ante litem notice to state the amount of the loss ‘claimed.’ ”). See also Williams v. Ga. Dept. of Human Resources, 272 Ga. 624, 625 (532 SE2d 401) (2000).

Myers’ notice frustrated this purpose by failing to timely state any amount of loss. Even without a precise dollar amount, some range of stated loss would have assisted the State in understanding the magnitude of the loss it faced and in developing its strategy for avoiding litigation and settling the case. In light of the statutory purpose, we should hold that a plaintiff’s knowledge need not be complete, but that the statute requires some statement to the extent of the plaintiff’s knowledge and belief. OCGA § 50-21-26 (a) (5). And even with imperfect knowledge, a plaintiff must nevertheless strictly — not substantially — comply with the ante litem notice requirement, because it is a statutorily prescribed waiver of the State’s sovereign immunity. See Cummings, supra, 282 Ga. at 824. There is no legal requirement that a plaintiff’s ante litem notice be absolutely correct, but the statute is plain that the notice must be complete to the best of the plaintiff’s knowledge and belief as may be practicable under the circumstances.17 See, e.g., id. at 825 (noting that a claimant *691must state the agency “asserted to be” responsible, not the agency that “actually is” responsible).

Decided November 13, 2013 Barton C. Solomon, Jay R. McCurdy, for appellant. Samuel S. Olens, Attorney General, Ronald S. Boyter, Jr., Sharon P. Horne, Assistant Attorneys General, for appellee.

Further, many plaintiffs will have (and have had) tort claims against the State seeking damages for mental anguish, future pain and suffering, and future lost wages. If we were to hold that Myers’ uncertainty in this case relieved her of the statutory obligation to state her loss to the extent of her knowledge and belief, then any plaintiff could altogether avoid the requirement to notify the State of the amount of her loss by claiming future medical treatment, mental anguish, pain and suffering, or lost wages. Any settlement of such claims will always involve some estimation of future conditions, and we should read the statute to require some statement of the amount of loss even under those circumstances. Accordingly, because Myers’ ante litem notice failed to include such a statement, this court should affirm the dismissal of her claim.

I am authorized to state that Judge Branch joins in this dissent.

The authority relied upon by Myers is distinguishable, because in each of those cases the plaintiffs gave some information, even if it was approximate or mistaken. See Cummings, 282 Ga. at 825-826 (after making efforts to investigate, plaintiff mistakenly listed and notified the wrong state agency, but did list an agency and properly notified DOAS); Bd. of Regents v. Canas, 295 Ga. App. 505, 508-509 (3) (672 SE2d 471) (2009) (notice deemed sufficient where plaintiff listed continuous range of dates that he received allegedly wrongful medical treatment and would need to rely on discovery to determine precise dates of injury); Savage v. E. R. Snell *691Contractor, 295 Ga. App. 319, 323-324 (3) (b) (672 SE2d 1) (2008) (notice deemed sufficient even though plaintiffs could not recall exact dates of injury caused by flooding because the flooding was a continuing nuisance creating a new cause of action with each loss, and the plaintiffs listed “constant flooding . . . after every heavy and moderate rainfall. . . [including] fifteen or more occasions from July [2005]”). See also Ga. Dept. of Transp. v. Griggs, 322 Ga. App. 519 (745 SE2d 749) (2013) (notice deemed sufficient because plaintiff who was injured by an uncovered manhole identified the location of her injury to the best of her knowledge: “This manhole was located on the emergency lane of Interstate 285 northbound between Riverside Drive and Roswell Road in Atlanta, Fulton County, Georgia.”). In this case, the plaintiff gave no information even though some information was available.