Department of Public Safety v. Ragsdale

308 Ga. 210

FINAL COPY

S19G0422. DEPARTMENT OF PUBLIC SAFETY v. RAGSDALE.

ELLINGTON, Justice.

We granted certiorari in this case to consider whether the

Court of Appeals erred in Dept. of Public Safety v. Ragsdale, 347 Ga.

App. 827 (821 SE2d 58) (2018), by holding that the time for filing an

ante litem notice under the Georgia Tort Claims Act, see OCGA §

50-21-26 (a) (1), is subject to tolling under OCGA § 9-3-99, when the

tort at issue arises from a crime. For the reasons set forth below, we

conclude that the Tort Claims Act’s ante litem notice period is not

subject to tolling under OCGA § 9-3-99.

Matthew Ragsdale filed this personal injury action against the

Georgia Department of Public Safety (“DPS”) after he was injured

during an October 31, 2014 motor vehicle accident that occurred

when Ross Singleton, the driver of another vehicle, fled from law

enforcement. As described by the Court of Appeals, the record

shows:

Ragsdale sent an ante litem notice to the

Department of Administrative Services (“DOAS”) on

December 3, 2014; however, it is undisputed at this point

that the notice provided on that date failed to include all

the information required by OCGA § 50-21-26 (a) (5).

Ragsdale filed suit, but dismissed this initial filing based

on the deficiency of his first ante litem notice. Thereafter,

in March 2017, Ragsdale sent a second ante litem notice

to DOAS. Ragsdale then renewed the action, and [DPS]

filed its motion to dismiss the appeal, contending that the

March 2017 ante litem notice was untimely. In response,

Ragsdale argued that because he was the victim of

Singleton’s crime, the time for filing the ante litem notice

had been tolled “from the date of the commission of the

alleged crime or the act giving rise to such action in tort

until the prosecution of such crime or act has become final

or otherwise terminated” pursuant to OCGA § 9-3-99. The

trial court agreed and denied the motion to dismiss in a

single-sentence order, citing Ragsdale's arguments in

response to the motion to dismiss.

Ragsdale, 347 Ga. App. at 827-828. The Court of Appeals affirmed

the denial of DPS’s motion to dismiss, following cases in which that

court had previously “determined that limitation period tolling

statutes apply to the period for filing ante litem notice as well as for

filing suit.” Id. at 830 (footnote omitted). Thus, the Court of Appeals

necessarily concluded that the time for filing an ante litem notice

under the Georgia Tort Claims Act, OCGA § 50-21-26 (a) (1), is

subject to tolling under OCGA § 9-3-99. We granted certiorari to

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consider whether that conclusion was correct.

In the construction of “a statute, we afford the text its plain

and ordinary meaning, viewed in the context in which it appears,

and read in its most natural and reasonable way.” Carpenter v.

McMann, 304 Ga. 209, 210 (817 SE2d 686) (2018) (citation and

punctuation omitted). Turning to the statutes at issue here, OCGA

§ 9-3-991 tolls “[t]he running of the period of limitations” with

respect to tort actions brought by certain crime victims. A

limitations period may be understood as “a statutory period after

which a lawsuit or prosecution cannot be brought in court.” Black’s

Law Dictionary (11th ed. 2019) (defining “limitation . . . [a]lso

termed limitations period”).

1 OCGA § 9-3-99 provides:

The running of the period of limitations with respect to any

cause of action in tort that may be brought by the victim of an

alleged crime which arises out of the facts and circumstances

relating to the commission of such alleged crime committed in this

state shall be tolled from the date of the commission of the alleged

crime or the act giving rise to such action in tort until the

prosecution of such crime or act has become final or otherwise

terminated, provided that such time does not exceed six years,

except as otherwise provided in Code Section 9-3-33.1.

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Statutes setting forth limitation periods are generally referred

to as “statutes of limitation.”

A statute of limitation has as its purpose the limiting of

the time period in which an action may be brought,

thereby providing a date certain after which potential

defendants can no longer be held liable for claims brought

on such actions. . . . Prescribing periods of limitation is a

legislative, not a judicial, function.

Young v. Williams, 274 Ga. 845, 848 (560 SE2d 690) (2002) (citations

and punctuation omitted). See also Black’s Law Dictionary (11th ed.

2019) (defining “Statute of Limitations” as “[a] law that bars claims

after a specified period . . . Also termed . . . limitations period.”). We

have described a statute of limitation as a “rule limiting the time in

which a party may bring an action for a right which has already

accrued.” Amu v. Barnes, 283 Ga. 549, 551 (662 SE2d 113) (2008)

(citation and punctuation omitted). Statutes of limitation “are

designed to promote justice by preventing surprises through the

revival of claims that have been allowed to slumber until evidence

has been lost, memories have faded, and witnesses have

disappeared.” Allrid v. Emory Univ., 249 Ga. 35, 39 (1) (d) (285 SE2d

521) (1982) (citation and punctuation omitted). The expiration of

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the statute of limitation may be raised as a defense to an action.

See, e.g., Cleaveland v. Gannon, 284 Ga. 376, 381 (2) (667 SE2d 366)

(2008) (defense of statute of limitation is an affirmative defense

under OCGA § 9-11-8 (c)).

The provision of the Tort Claims Act at issue in this case,

OCGA § 50-21-26 (a) (1),2 concerns the time for giving ante litem

notice — notice that must be given before the filing of a lawsuit.

Under the Tort Claims Act, “a person may not bring a tort claim

against the state unless the person first gives the state written

notice of the claim within the time, and in the manner, specified in

OCGA § 50-21-26.” Henderson v. Dept. of Transp., 267 Ga. 90, 91 (1)

(475 SE2d 614) (1996). The purpose of the Tort Claims Act’s ante

litem notice provisions “is to 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 Resources, 272 Ga. 624,

625 (532 SE2d 401) (2000) (footnote omitted). “If the ante litem

2 “Notice of a claim shall be given in writing within 12 months of the date

the loss was discovered or should have been discovered[.]” OCGA § 50-21-26 (a)

(1).

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notice requirements [of the Tort Claims Act] 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).”3

Bd. of Regents of the Univ. System of Ga. v. Myers, 295 Ga. 843, 845

(764 SE2d 543) (2014). Thus, compliance with the ante litem notice

requirements of OCGA § 50-21-26 is a condition precedent to an

action under the Tort Claims Act.

We have described the six-month ante litem notice provision

applicable to certain claims against municipalities, see OCGA § 36-

33-5, as “a condition precedent to bringing suit against a municipal

corporation for damages resulting from injuries to person or

property,” and “not itself a six-month statute of limitations[.]” City

of Chamblee v. Maxwell, 264 Ga. 635, 636 (452 SE2d 488) (1994)

(citations omitted). Consistent with Maxwell, we conclude that the

ante litem notice requirement of OCGA § 50-21-26, which performs

3 OCGA § 50-21-26 (a) (3) provides: “No action against the state under

this article shall be commenced and the courts shall have no jurisdiction

thereof unless and until a written notice of claim has been timely presented to

the state as provided in this subsection.”

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a function different from that of a statute of limitation and

compliance with which is a condition precedent to an action against

the State, is not a statute of limitation.

As the ante litem notice requirement of OCGA § 50-21-26 is not

a statute of limitation, the Code’s statutory tolling provisions, such

as OCGA § 9-3-99, do not apply to the Tort Claims Act’s 12-month

ante litem notice period. This conclusion is bolstered by OCGA § 50-

21-27 (c), which separately sets forth the Tort Claims Act’s statute

of limitation: “[A]ny tort action brought pursuant to this article is

forever barred unless it is commenced within two years after the

date the loss was or should have been discovered.” In the same Code

section, OCGA § 50-21-27 (e) expressly provides that “[a]ll provisions

relating to the tolling of limitations of actions, as provided elsewhere

in this Code, shall apply to causes of action brought pursuant to [the

Tort Claims Act].”4 OCGA § 50-21-26, on the other hand, contains no

4 OCGA § 50-21-27 (e) “means just what it says: statutory tolling

provisions apply to claims under the Tort Claims Act in the same way, in the

same manner, and to the same extent that those provisions would apply to

claims not brought under the Tort Claims Act.” Foster v. Ga. Regional Transp.

Auth., 297 Ga. 714, 715-716 (777 SE2d 446) (2015) (footnote omitted).

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provision contemplating that the time for giving ante litem notice is

subject to tolling. The General Assembly could have expressly

provided for such tolling, as it did in the statute of limitations

section immediately following this section and also on some grounds

in the case of the ante litem notice requirement applicable to actions

against counties, but it did not do so. Compare OCGA § 36-11-1.5

Ragsdale argues that any interpretation by this Court of OCGA

§§ 50-21-26 and 9-3-99 must take into account that the Court of

Appeals has “treated ante litem notice provisions as ‘statutes of

limitation’ for purpose of tolling statutes[.]” As Ragsdale notes, we

presume that statutes are enacted “by the legislature with full

knowledge of the existing condition of the law and with reference to

it. They are therefore to be construed in connection and in harmony

with the existing law.” Grange Mut. Cas. Co. v. Woodard, 300 Ga.

848, 852 (2) (797 SE2d 814) (2017) (citation and punctuation

5 OCGA § 36-11-1 provides: “All claims against counties must be

presented within 12 months after they accrue or become payable or the same

are barred, provided that minors or other persons laboring under disabilities

shall be allowed 12 months after the removal of the disability to present their

claims.”

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omitted).

In City of Atlanta v. Barrett, 102 Ga. App. 469 (116 SE2d 654)

(1960), the Court of Appeals considered whether the six-month ante

litem notice requirement for claims for damages against a

municipality, as provided by former Ga. Code Ann. § 69-308 (now

OCGA § 36-33-5), was subject to the general tolling provision of

former Ga. Code Ann. § 3-801 (the predecessor to OCGA § 9-3-90),6

pertaining to the claims of certain disabled persons. The court

concluded that the ante litem notice provision was subject to tolling,

reasoning that the requirement that “notice be given within six

months from the date of the injuries or else that the action therefor

be forever barred is itself a statute of limitation and subject to the

general law of this State with respect to the tolling of statutes of

limitation.” Barrett, 102 Ga. App. at 472.

At the time of the enactment of the Tort Claims Act in 1992,

6 Former Ga. Code Ann. § 3-801 then provided: “Infants, idiots, or insane

persons, or persons imprisoned, who are such when the cause of action shall

have accrued, shall be entitled to the same time, after the disability shall have

been removed, to bring an action, as is prescribed for other persons.”

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Barrett and its progeny had been followed by numerous decisions of

the Court of Appeals in cases characterizing former Ga. Code Ann.

§ 69-308 and OCGA § 36-33-5 as statutes of limitation.7 However,

this Court had not then adopted the Court of Appeals’ holding in

Barrett, nor have we ever done so. The General Assembly provided

in the Tort Claims Act that its waiver of sovereign immunity would

be narrowly construed. See OCGA § 50-21-23 (b) (“The state waives

its sovereign immunity only to the extent and in the manner

provided in this article[.]”). And as discussed above, the Tort Claims

Act includes a provision with respect “to the tolling of limitations of

7 See Fairburn v. Cook, 188 Ga. App. 58, 63 (5) (372 SE2d 245) (1988);

Webster v. City of East Point, 164 Ga. App. 605, 609 (3) (294 SE2d 588) (1982);

Cobb v. Bd. of Commrs. of Roads and Revenue of Tift County, 151 Ga. App. 472,

472 (1) (260 SE2d 496) (1979); Lowe v. Pue, 150 Ga. App. 234, 236 (257 SE2d

209) (1979); Barnum v. Martin, 135 Ga. App. 712, 715 (2) (219 SE2d 341)

(1975); City of Barnesville v. Powell, 124 Ga. App. 132, 132-133 (1) (183 SE2d

55) (1971); Schaefer v. Mayor and Council of the City of Athens, 120 Ga. App.

301, 301 (1) (170 SE2d 339) (1969). See also Shoemaker v. Aldmor Mgmt., Inc.,

249 Ga. 430, 431 (291 SE2d 549) (1982) (observing that “[t]he Georgia Court of

Appeals has held that the six-months’ limitation found in [former Ga. Code

Ann.] § 69-308 is a statute of limitation”). Despite our 1994 holding in Maxwell

that the ante litem notice requirement in OCGA § 36-33-5 is not a statute of

limitation, the Court of Appeals has continued to apply the holding in Barrett

in actions against municipalities. See City of Forsyth v. Bell, 258 Ga. App. 331,

332 (574 SE2d 331) (2002); Nicholas v. Van, 252 Ga. App. 411, 412 (556 SE2d

497) (2001); Carter v. Glenn, 243 Ga. App. 544, 548 (2) (533 SE2d 109) (2000);

Jacobs v. Littleton, 241 Ga. App. 403, 406 (3) (b) (525 SE2d 433) (1999).

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actions, as provided elsewhere in this Code,” within the Code section

setting forth its two-year statute of limitation, OCGA § 50-21-27, but

not in its ante litem notice provision, OCGA § 50-21-26. We reject

the contention that the General Assembly would have expressly

invoked general tolling statutes as to the Tort Claims Act’s express

statute of limitations, while in the adjoining section relied on the

Court of Appeals’ decisions calling the ante litem notice

requirements pertaining to municipalities implicit statutes of

limitation to implicitly invoke the general tolling statutes.

Ragsdale also invokes the principle that “[w]here a statute has,

by a long series of decisions, received a judicial construction in which

the General Assembly has acquiesced and thereby given its implicit

legislative approval, the courts should not disturb that settled

construction.” Abernathy v. City of Albany, 269 Ga. 88, 90 (495 SE2d

13) (1998). Following the enactment of the Tort Claims Act, the

Court of Appeals in Howard v. State, 226 Ga. App. 543, 546 (2) (487

SE2d 112) (1997), relying on Barrett’s holding regarding ante litem

notices in suits against municipalities, concluded that the ante litem

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notice requirement of the Tort Claims Act, OCGA § 50-21-26 (a), was

likewise a statute of limitation and as such subject to OCGA § 9-3-

90 (a), thereby tolling the ante litem notice period until the appellant

reached her majority. Howard did not analyze the pertinent text of

the Tort Claims Act and, in addition, by the time Howard was

decided in 1997, this Court had decided Maxwell, which implicitly

disapproved Barrett’s conclusion that an ante litem notice

requirement is a statute of limitation. Thus, Howard was incorrectly

decided, and its erroneous holding has not, by any stretch, become a

settled construction of OCGA § 50-21-26 (a).8

8 Before its decision in this case, the Court of Appeals had cited the

pertinent part of Howard only three times, once in dicta, once describing the

holding as limited, and once describing the holding (likely incorrectly) as dicta.

More specifically, in Grant v. Faircloth, 252 Ga. App. 795, 795 (556 SE2d 928)

(2001), the Court of Appeals affirmed the dismissal of an action for lack of

subject matter jurisdiction under the Tort Claims Act, but noted in dicta, citing

Howard, that “OCGA § 50-21-26 (a) . . . bars this action unless the plaintiff is

a minor.” In Ga. Regional Transp. Auth. v. Foster, 329 Ga. App. 258, 261 n.6

(764 SE2d 862) (2014), the Court of Appeals limited Howard to tolling

provisions not inconsistent with the purposes of the Tort Claims Act. In

Stopanio v. Leon’s Fence & Guardrail, LLC, 346 Ga. App. 18, 21 n.6 (815 SE2d

232) (2018), the Court of Appeals described Howard as having “expressed, in

dicta, the possibility that the ante litem time requirement [of the Tort Claims

Act] is itself a statute of limitation and may therefore be subject to the general

law of this State with respect to the tolling of statutes of limitation.” (Emphasis

supplied.)

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In light of the foregoing, we hold that the time for filing an ante

litem notice under OCGA § 50-21-26 (a) (1) is not subject to tolling

under OCGA § 9-3-99, and that the Court of Appeals erred in

concluding otherwise.9 We acknowledge that in certain

circumstances the lack of tolling of the Tort Claims Act’s ante litem

notice time requirement may produce inequitable results, but it is

for the General Assembly to waive that requirement as it deems

appropriate.

Judgment reversed. All the Justices concur, except Warren, J.,

not participating.

DECIDED FEBRUARY 28, 2020.

Certiorari to the Court of Appeals of Georgia — 347 Ga. App.

9 Howard and the cases discussing it described in footnote 8 are

overruled to the extent those decisions are inconsistent with this holding.

Given that Maxwell concluded that OCGA § 36-33-5 is not a statute of

limitation, Barrett and its progeny, including but not limited to the decisions

of the Court of Appeals listed in note 7, supra, are necessarily disapproved to

the extent that they hold to the contrary. However, the question of whether the

ante litem notice period of OCGA § 36-33-5 is subject to the general law of this

State with respect to the tolling of statutes of limitation is not before us. Given

their longstanding application in actions against municipalities, we leave that

question to a case that squarely presents it.

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827.

Christopher M. Carr, Attorney General, Kathleen M. Pacious,

Deputy Attorney General, Loretta L. Pinkston-Pope, Senior Assistant

Attorney General, Robert L. Bunner, Assistant Attorney General,

Andrew A. Pinson, Solicitor-General, Ross W. Bergethon, Deputy

Solicitor-General, for appellant.

Edward V. C. Silverbach, Charles M. Cork III, for appellee.

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