Clark v. City of Smyrna, 442 S.E.2d 461 (Ga. Ct. App. 1994). · Go Syfert
Clark v. City of Smyrna, 442 S.E.2d 461 (Ga. Ct. App. 1994). Cases Citing This Book View Copy Cite
28 citation events (20 in the last 25 years) across 1 distinct court.
Strongest positive: Brenda F. Pickens v. City of Waco (gactapp, 2019-09-24)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 8 distinct citers. How cited ↗
examined Cited as authority (rule) Brenda F. Pickens v. City of Waco (4×) also: Cited "see"
Ga. Ct. App. · 2019 · confidence medium
To be clear, the claimant alone bears the burden of ensuring that his or her ante litem notice complies with the statutory requirements, and “[t]he giving of the ante litem notice in the manner and within the time required by the statute is a condition precedent to the maintenance of a suit on the claim.” Clark, 212 Ga. App. at 599 (1) (citations and punctuation omitted).
examined Cited as authority (rule) CITY OF ALBANY v. GA HY IMPORTS, LLC D/B/A AUTONATION HYUNDAI-ALBANY (6×) also: Cited "see"
Ga. Ct. App. · 2019 · confidence medium
Clark, 212 Ga. App. at 599 (2); see also Goen v. City of Atlanta, 224 Ga. App. 484, 485-86 (2) ( 481 SE2d 244 ) (1997) (holding that fact that City had not waived the ante litem notice issue--even though the City had offered to buy the plaintiff’s property and did not raise the ante litem notice issue pretrial--because “the failure to give such notice cannot be waived”).
discussed Cited as authority (rule) Vaillant v. City of Atlanta
Ga. Ct. App. · 2004 · confidence medium
Accordingly, we need not resolve this confusion here. 3 See Evans v. City of Covington, 240 Ga. App. 373, 374 (1) ( 523 SE2d 594 ) (1999). 4 See id. 5 Id. 6 See id.; Woodall v. City of Villa Rica, 236 Ga. App. 788, 789-790 (1)-(2) ( 513 SE2d 525 ) (1999) (indicating that oral notice of claim cannot cure insufficiencies in written notice that fails to comply with OCGA § 36-33-5 (b)). 7 See Carter v. Glenn, 243 Ga. App. 544, 550 (2) ( 533 SE2d 109 ) (2000); Evans, supra; Woodall, supra. 8 Canberg, supra at 77-78 . 9 See Evans, supra at 374 (no substantial compliance with OCGA § 36-33-5 (b), de…
discussed Cited as authority (rule) Carter v. Glenn
Ga. Ct. App. · 2000 · confidence medium
Clark v. City of Smyrna, 212 Ga. App. 598, 599 (1) ( 442 SE2d 461 ) (1994). “[F]ormal, written notice is required.” (Punctuation and footnote omitted.) Evans v. City of Covington, 240 Ga. App. 373, 374 (1) ( 523 SE2d 594 ) (1999).
examined Cited as authority (rule) Evans v. City of Covington (4×) also: Cited "see"
Ga. Ct. App. · 1999 · confidence medium
McMurray, P. J., and Andrews, P. J., concur. 1 See OCGA § 36-33-5 (b). 2 City of Chamblee v. Maxwell, 264 Ga. 635, 636 ( 452 SE2d 488 ) (1994); Gillingwater v. City of Valdosta, 177 Ga. App. 241 (1) ( 339 SE2d 287 ) (1985). 3 City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 3 (1) ( 421 SE2d 113 ) (1992). 4 (Citations and punctuation omitted.) Clark v. City of Smyrna, 212 Ga. App. 598, 599 (1) ( 442 SE2d 461 ) (1994). 5 City of Calhoun v. Holland, 222 Ga. 817 ( 152 SE2d 752 ) (1966). 6 Evans does not argue that USF&G’s letter to her confirming the partial settlement agreement constitu…
discussed Cited "see" Rabun v. McCoy (2×)
Ga. Ct. App. · 2005 · signal: see · confidence high
See Clark v. City of Smyrna, 212 Ga. App. 598, 599 (1) ( 442 SE2d 461 ) (1994) (Oral notice to the municipality is insufficient.).
discussed Cited "see" Cundy v. City of Smyrna (2×)
Ga. Ct. App. · 2003 · signal: see · confidence high
See Clark v. City of Smyrna, 212 Ga. App. 598, 599 (1) ( 442 SE2d 461 ) (1994) (oral notice to the municipality is insufficient).
examined Cited "see, e.g." Simmons v. MAYOR AND ALDERMEN OF SAVANNAH (4×)
Ga. Ct. App. · 2010 · signal: see also · confidence medium
See also Clark v. City of Smyrna, 212 Ga.App. 598, 599 (2), 442 S.E.2d 461 (1994) (referral of claim to insurer for investigation and settlement does not constitute waiver of written ante litem notice).
Retrieving the full opinion text from the archive…
Clark
v.
City of Smyrna
A93A2368.
Court of Appeals of Georgia.
Feb 22, 1994.
442 S.E.2d 461
Thomas M. West, for appellant., Carter & Ansley, Christopher N. Shuman, Christine G. Montgomery, for appellee.
Cooper, Beasley, Smith.
Cited by 9 opinions  |  Published
Cooper, Judge.

Appellant sued the City of Smyrna for injuries he allegedly sustained when he fell on a defective sidewalk. He appeals from the trial court’s grant of summary judgment to the city based on his failure to provide timely, written ante litem notice in accordance with OCGA § 36-33-5.

On the day appellant was injured, he telephoned Smyrna City Hall and reported his injury and desire to make a claim against the city to the city employee who answered the telephone. The employee summarized the call in writing and referred the matter to a Jane Mears, who was identified as the person responsible for handling claims against the city. Mears referred the matter to the city’s insurer’s adjustment firm. A claims adjuster sent appellant a medical authorization form to complete and return to her. The forms were completed and returned. Appellant was subsequently notified by the[*599] city’s insurer that his claim was denied. Appellant contends he substantially complied with the ante litem notice statute and that because of his contact with the city’s insurer and adjuster, the city is estopped from raising OCGA § 36-33-5 as a bar to his claim.

Decided February 22, 1994 Reconsideration denied March 28, 1994 Thomas M. West, for appellant. Carter & Ansley, Christopher N. Shuman, Christine G. Mont [*600] gomery, for appellee.

[*599] 1. OCGA § 36-33-5 (b) provides, in pertinent part, as follows: “Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person . . . having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment. ... 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.” (Emphasis supplied.) “The giving of the ante litem notice in the manner and within the time required by the statute is a condition precedent to the maintenance of a suit on the claim. [Cit.] ‘Formal, written notice is required. . .’ [Cits.] Although [appellant] contends that there has been substantial compliance with the statutory ante litem notice requirement, we have been provided no authority, nor are we aware of any, holding that oral notice to a municipal corporation or a representative thereof may be considered substantial compliance with the provisions of the statute. [Cit.]” (Indention omitted.) Gillingwater v. City of Valdosta, 177 Ga. App. 241 (1) (339 SE2d 287) (1985). Moreover, documents prepared by city employees and its insurer were not presented to the city by appellant as required by the statute and thus cannot constitute proper ante litem notice. Brown v. City of Chamblee, 211 Ga. App. 145 (438 SE2d 396) (1993).

2. Nor do we find that the city waived the ante litem notice requirement because appellant’s claim was referred to the city’s insurer. Appellant contends that by referring his oral claim to its insurance adjuster, the city created an alternative method of handling tort claims. “[Reference of the claim to an insurance carrier which undertook an investigation and settlement, can not work a waiver of the notice, an estoppel to assert lack thereof, or toll the time for giving it. [Cit.]” Schaefer v. Mayor &c. of Athens, 120 Ga. App. 301, 302-303 (6) (170 SE2d 339) (1969). It is well established that governing officials cannot waive statutory ante litem notice requirements. City of Calhoun v. Holland, 222 Ga. 817 (152 SE2d 752) (1966). Accordingly, the trial court did not err in granting summary judgment to the city.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.