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Ante Litem Notice And Contribution Claims: Balancing Sufficiency And Timeliness

Volume 19, No. 110 March 2007

Cynthia Hill
chill@deflaw.com

            Georgia law requires any individual or entity that may bring a claim against a government entity to provide that government entity with notice (ante litem notice) of the potential claim prior to filing of the suit or claim.  The ante litem notice must be served on the government entity per statutory specifications and must be served within the statutory time frame.  In Georgia, three separate statutes govern the service of ante litem notices on municipal corporations (cities), counties and the State.  Each of the three statutes requires service within time frames (which are triggered from the happening of the event upon which the suit or claim is predicated) that are significantly shorter than most all claims’ statute of limitations.  While the time frames for service of a notice on a government entity do not pose significant issues for most potential plaintiffs (who are fully aware of the trigger event and its date of occurrence), the time frames often do create problems and/or barriers for third-party plaintiffs seeking indemnity or contribution from a government entity. 

            O.C.G.A. §36-33-5 requires ante litem notice to a city to be served “within six months of the happening of the event upon which a claim against a municipal corporation is predicated.”  The statute further states, “ No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.”  Notice to the city per this statute is a condition precedent to filing suit, or bringing a third-party claim, against the city.  Failure to comply with the provisions of this statute within the time required therein will bar any right of action, including contribution, against a municipality.  See Stanford v. City of Manchester, 246 Ga. App. 129, 539 S.E.2d 845 (2000).  In addition to being timely, the notice must meet muster as to its sufficiency by clearly and concisely stating the time, place, manner/circumstances and extent of injuries complained of.  See Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220 (11^th Cir. 2002).

            O.C.G.A. §36-11-1 states in part, “All claims against counties must be presented within 12 months after they accrue or become payable or the same are barred…”  While O.C.G.A. §36-11-1 does not elaborate as to the mode of service or the substantive requirements for a notice to a county, Georgia law has found it to have the same purpose and objective as O.C.G.A. §36-33-5 (ante litem notice to a municipal corporation or city).  Davis v. Cobb County, 65 Ga. App. 533, 15 S.E.2d 814 (1941).  As such, “substantial compliance with the statutory requirements of ante litem notice is sufficient to give notice of a claim to a county.”  Burton v. Dekalb County, 202 Ga. App. 676, 415 S.E.2d 647, cert. Denied, 202 Ga. App. 905, 415 S.E.2d 647 (1992). 

            O.C.G.A. §50-21-26(a)(1) requires ante litem notice to the State “within 12 months the date of loss was discovered or should have been discovered…”  Subsection (a)(2) of the statute clearly lays out the acceptable method of service of the notice (certified mail or personal delivery to the Risk Management Division of the Department of Administrative Services with a copy of same mailed or personally delivered to the implicated state government agency).  Strict compliance with the provisions of this statute is required (as opposed to the substantial compliance standard applied to the notice requirements to a city or county).  See McGee v. State, 227 Ga. App. 107, 487 S.E.2d 671 (1997); Kim v. DOT, 235 Ga. App. 480, 510 S.E.2d 50 (1998).  

            Whether ante litem notice is required for claims of contribution per the three aforementioned statutes is a question of great importance and one that is still up in air in the legal community.  The difficulty in applying the statutory provisions regarding notice of claims against government entities where a third-party plaintiff is seeking contribution from that government entity is that the statutory time for noticing a claim may have expired long before the liability of the third-party plaintiff has been determined or even asserted.  As such, potential defendants and defendants in on-going litigation are having to make decisions and construct what they hope are sufficient ante litem notices either long before a suit is ever filed by the potential plaintiff or, if a suit is filed, before substantial discovery has taken place.  A third-party defendant in this position, in an effort to provide timely notice, may be unable to provide sufficient notice per the applicable statute and corresponding case law.

            This issue has been addressed by the Georgia Court of Appeals as it relates to O.C.G.A. §36-33-5 (notice to municipal corporation or city).  In City of Atlanta v. Metropolitan Atlanta Rapid Transit Authority, 204 Ga. App. 387, 419 S.E.2d 330 (1992), the city of Atlanta contended that the trial court erred in failing to dismiss MARTA’s cross-claim for contribution due to MARTA’s failure to give ante litem notice within six months of the vehicular collision predicating the lawsuit per O.C.G.A. §36-33-5.  The appellate court held:

“Nothing in this statue [O.C.G.A. 36-33-5] requires ante litem notice for claims by joint tortfeasors against municipalities for contribution.  Consequently, the contribution claim filed against Atlanta by MARTA and Gould was not conditioned upon the ante litem notice provision of O.C.G.A. 36-33-5.  To say otherwise, would require defendants to anticipate within six months of any incident giving rise to damages ‘on account of injuries to person or property’ claims for contribution against municipalities which may not accrue for years.” 

City of Atlanta v. Metropolitan Atlanta Rapid Transit Authority, 204 Ga. App. at 389. 

            This rationale has not yet been applied by the Georgia Court of Appeals to contribution claims brought against counties or the State without the requisite notice per either O.C.G.A. §36-11-1 or O.C.G.A. §50-21-26.  While City of Atlanta v. Metropolitan Atlanta Rapid Transit Authority gives us a window into the thought process of the Georgia Court of Appeals, the issue of whether or not an ante litem notice for a contribution claim is required by a potential defendant/third-party plaintiff within 12 months of the subject event, regardless of whether suit has even been filed, has not been directly addressed by the appellate court.  As such, defendants in this situation must still balance the need to provide timely ante litem notice with their ability to provide legally sufficient notice.

            With recent tort reform and the greater ability to bring a third-party claim against an alleged joint tortfeasor, the issue of ante litem notices and contribution claims will likely come before the Georgia Court of Appeals in the near future.  In the meantime, it is best that defendants begin exploring possible third-party claims against government entities before and soon after a suit is filed.