IN THE SUPREME COURT
STATE OF GEORGIA
PAUL K. WILLIAMS, as surviving spouse of
SHEILA K. WILLIAMS, deceased, Petitioner,
v.
STATE OF GEORGIA DEPARTMENT OF HUMAN RESOURCES,
ANNETTE HARKINS, R.N., Respondents.
CASE NO. S99CO178
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BRIEF OF THE GEORGIA TRIAL LAWYERS ASSOCIATION
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AS AMICUS CURIAE IN SUPPORT OF PETITIONERS’
MOTION
FOR RECONSIDERATION OF PETITION FOR CERTIORARI
The Georgia Trial Lawyers Association respectfully requests that the
Court consider its Brief as Amicus Curiae in Support of the Motion
for Reconsideration of the Petition for Certiorari.
STATEMENT OF INTEREST OF AMICUS CURIAE
The Georgia Trial Lawyers Association is committed to preservation
of the jury system and the right to have cases decided on their merits.
Its members typically represent consumers and individuals who have
no trade association or other organization to protect their interests.
The Court of Appeals’ decision in this case, if allowed to stand,
will have far-reaching, unintended consequences in future State Tort
Claims Act cases. As shown below, this decision will spawn a new species
of unnecessary litigation and needless appeals in these cases, as
well as lead to unconscionable results that defeat the Legislature’s
purpose in enacting the State Tort Claims Act.
Regardless of which party ultimately prevails, this Court should grant
certiorari to correct and clarify the legal standards governing the
content of ante litem notices in a way that promotes both judicial
economy and sound policy in future State Tort Claims Act cases.
ARGUMENT AND CITATION OF AUTHORITY
This decision is the first Georgia appellate decision known to Amicus
Curiae in which a timely, properly-served ante litem notice was held
insufficient to preserve a claim, even though the notice recited all
essential facts needed to investigate and evaluate the claim.
This decision creates a new, hypertechnical approach that is neither
called for by the statute, nor consistent with the statute’s
purposes, nor predictable in any sense other than the certainty that
it will increase the amount of unnecessary litigation and appeals
in State Tort Claims Act cases.
Before the instant decision, Georgia’s appellate courts adhered
to a prudent and sound approach in construing the ante litem notice
requirement of the State Tort Claims Act, O.C.G.A. § 50-21-26,
similar to the approach taken by federal courts in construing the
analogous Federal Tort Claims Act ("FTCA"). Like federal
courts in FTCA cases, Georgia courts have required strict compliance
with the rule that the ante litem notice must be sent within the statutory
period to the specified agencies, so that the government may investigate
and consider settling the matter. See, e.g., Norris v. Georgia Dept.
of Transportation, 268 Ga. 192, 486 S.E.2d 186 (1997).
In a departure from the sensible course followed by past Georgia decisions
and by federal courts construing the FTCA, however, the Court of Appeals
in this case has opened a "Pandora’s Box" of new--and
unnecessary-- issues to be litigated concerning the precise wording
of the notice.
Contrast the federal approach, which is based on many decades of experience
with such cases. Federal courts, rather than encourage litigation
over the innumerable issues that may arise concerning the particulars
of ante litem notices, recognize that the federal Act--like its Georgia
counterpart--was enacted "not to place procedural hurdles before
litigants, but to facilitate early disposition of claims." Burchfield
v. United States, 1999 WL 104438 (11th Cir., March 2, 1999).
To advance the same purposes embodied in Georgia’s Act, federal
courts wisely apply the following rule in FTCA cases: "We do
not require the claimant to provide the agency with a preview of his
or her lawsuit by reciting every possible theory of recovery, or every
factual detail that might be relevant. In short, the amount of information
required is ‘minimal.’" Id. (quoting Adams v. United
States, 615 F.2d 284, 289 (5th Cir.), clarified on reh’g, 622
F.2d 197 (1980)) (citations omitted). "A proper notice of claim
under the statute occurs where the claimant ‘(1) gives the agency
written notice of his or her claim sufficient to enable the agency
to investigate and (2) places a value on his or her claim.’ Once
that prerequisite has been complied with, any further obligation on
the part of a claimant ceases." Tidd v. United States, 786 F.2d
1565, 1567 (11th Cir. 1986) (quoting Adams v. United States, 615 F.2d
284, 289).
As another federal decision explained:
The statutory purpose of requiring an administrative
claim is "to ease court congestion and avoid unnecessary litigation,
while making it possible for the Government to expedite the fair settlement
of tort claims asserted against the United States." S.Rep.No.
1327, 89th Cong., 2d Sess. reprinted in (1966) U.S.Code Cong. &
Ad. News, pp. 2515, 2516. This purpose will be served as long as a
claim brings to the Government's attention facts sufficient to enable
it thoroughly to investigate its potential liability and to conduct
settlement negotiations with the claimant. Accordingly, we think that
if the Government's investigation of [the] claim should have revealed
theories of liability other than those specifically enumerated therein,
those theories can properly be considered part of the claim.
Rise v. United States, 630 F.2d 1068, 1071 (5th Cir. 1980).
Applying these principles, the Eleventh Circuit has rejected an argument
very similar to the State’s argument here: that, when a malpractice
victim who has given notice of claim dies from the tortious acts, a
new notice of claim should be required before a wrongful death action
can be pursued. Brown v. United States, 838 F.2d 1157, 1161 (11th Cir.
1988)("Although a new cause of action accrued at the time of [claimant’s]
death, the [government’s] liability is based on the same facts
presented in [claimant’s] administrative claim.")(considering
Florida wrongful death action).
Here, in contrast, the Court of Appeals has created unsound precedent
by taking a much different approach. In the instant case, a dying woman
and her husband served timely notice alleging that medical malpractice
by a state-employed nurse who failed to respond to a cancerous lump
in her breast had left the woman terminally ill, with a reduced life
expectancy, and had caused a loss of consortium to her husband. Not
only was this ante litem notice properly sent, but the State’s
attorney attended the dying woman’s deposition taken for preservation
of evidence shortly before her death. (2R4, par. 8). The State thus
was able to investigate the facts and knew first-hand that her death
was imminent, and there was no reason the State could not consider settlement
before suit was filed.
The Court of Appeals, however, ruled that the wrongful death claim--which
in Georgia is based on the "full value" of the life to the
decedent--was not preserved by the ante litem notice. In hypertechnical
reasoning that is neither required by the Act nor consistent with its
purposes, the Court of Appeals stated, "We cannot find that the
State was put on notice of a future wrongful death claim brought by
Paul [i.e., the husband] when the ante litem notice listed Paul’s
only claim as a loss of consortium and Sheila was still living at the
time." Williams v. Dept. of Human Resources, 234 Ga. App. 638,
640, 507 S.E.2d 230, 231 (1998).
As lengthy experience with the federal approach confirms, only minimal
information in the notice is necessary to permit the investigation and
consideration of settlement of claims. Thus, there is no policy reason
why the notice in the instant case should be held insufficient, especially
since the decedent herself had included in the notice "the loss
of both the intangible and tangible benefits of life itself," which
is essentially identical to the "wrongful death" measure of
damages -- the "full value" of the life to the decedent --
regardless what party was asserting that claim.
Nor does the statutory language require such a hypertechnical reading
that defeats the Acts purpose of creating a remedy for such alleged
torts. The Act does not state that each claimant much specify in the
notice each theory of recovery applicable to that claimant, just as
the analogous federal statute does not. See 28 U.S.C. § 2401. The
only provision remotely applicable is the "nature of the loss suffered,"
which appears in subsection (a)(5)(D) of O.C.G.A. § 50-21-26. Plainly,
however, the notice alerted the State that Sheila Williams’ life
had been shortened by the alleged tortious acts, and it again recited
that the "nature of the loss suffered" by the decedent included
"the loss of both the intangible and tangible benefits of life
itself." This is precisely the "loss" to the decedent
that a wrongful death plaintiff, acting in a representative capacity,
seeks to recover.
If this decision stands, countless new challenges to ante litem notices
will follow. For example, even though the statute does not require it,
future litigants will battle over whether particular ante litem notices
sufficiently specify (1) precisely what damages would result from the
acts stated in the notice; (2) precisely what theories of recovery might
apply; and (3) precisely what person(s) will be asserting each such
claim.
To illustrate, what if the notice does not anticipate all details of
the damages that might later result from a tortious act? If medical
malpractice produced an infection that, more than a year later, caused
loss of an eye or a limb, litigation would follow over whether the notice
was invalid for failing to include unforeseen damages. Such wasteful
battles would occur regardless whether the notice provided the State
more than sufficient information to investigate the loss, as the federal
decisions recognize.
Further, we can expect litigation over theories of liability not expressly
asserted in the notice, regardless whether discovery would be needed
to uncover the underlying factual bases. This is contrary to the federal
approach, which does not demand specific theories of liability to be
included, so long as there is enough information for the government
to "begin to investigate." [citation]
Moreover, suppose a surviving spouse does give express notice of a "wrongful
death" claim, but dies before suit can be filed. Under the Court
of Appeals’ reasoning, a successful challenge to the notice should
result because it did not specify that a surviving family member would
then have to assert this claim. Likewise, what if no representative
of the decedent’s estate were named before the notice was required
(e.g., if the decedent’s will is contested)? Would the estate’s
claims be barred?
The Court of Appeals’ approach should be corrected. It contravenes
the strong policy favoring having cases decided on their merits. This
"technical" approach, which is not specified in the statute,
also would"result in unreasonable or absurd consequences not contemplated
by the Legislature." City of Brunswick v. Atlanta Journal and Constitution,
214 Ga. App. 150, 153, 447 S.E. 2d 41 (1994). Moreover, overriding the
express language of the statute by implying some unexpressed technical
requirement is not statutory construction, but the re-writing of statutes
that, under the separation of Powers Doctrine, is reserved to the Legislature.
CONCLUSION
Amicus Curiae respectfully urges the Court to grant certiorari and clarify
the legal standards for the content of ante litem notices under the
State Tort Claims Act. Otherwise, the Court of Appeals’ approach
in this decision will produce a new wave of unnecessary litigation and
appeals, will thwart the purposes of the Act, and will lead to unpredictable
and often unconscionable results that will deny a chance for tort victims
to have their cases decided based on the merits.
This 16th day of March, 1999
.
/s/ Michael A. Sullivan.
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