O.C.G.A. § 50-21-35 (2019)

Annotations

Editor’s notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000. Law reviews. - For annual survey of

administrative law, see 57 Mercer L. Rev. 1 (2005). For annual survey of trial practice and procedure, see 57 Mercer L. Rev. 381 (2005). For annual survey of tort law, see 58 Mercer L. Rev. 385 (2006). For survey article on administrative law, see 60 Mercer L. Rev. 1 (2008). For survey article on trial practice and procedure, see 60 Mercer L. Rev. 397 (2008).

JUDICIAL DECISIONS Service on director required. - In an action against the Department of Corrections and Georgia Mental Health Institute, where only the deputy director of the Department of Risk Management, not the director, was served, the requirements of O.C.G.A. § 50-21-35 were not satisfied and the time for the defendants’ answer had not commenced running. Christensen v. State, 219 Ga. App. 10, 464 S.E.2d 14 (1995). In a slip and fall action against the Department of Corrections (DOC), failure of plaintiff to perfect service on the Direc-

tor of Risk Management before the statute of limitation expired, knowing of the DOC’s attack on the sufficiency of service, prevented the plaintiff from establishing lack of fault for the delay. Curry v. Georgia Dep’t of Cors., 232 Ga. App. 703, 503 S.E.2d 597 (1998). Failure to serve the director of the Risk Management Division did not comply with the condition precedent to waiver of sovereign immunity, and the state had no duty to respond to the first timely filed suit. Sylvester v. DOT, 252 Ga. App. 31, 555 S.E.2d 740 (2001).

Trial court properly granted summary judgment to the Georgia Department of Corrections (DOC) and a state prison in a medical malpractice action filed on behalf of a deceased patient/inmate as there was improper service on the state entities pursuant to O.C.G.A. § 50-21-35 because the prison was served through the prison warden and the DOC was served through the DOC’s commissioner; rather, process should have been served on the Director of the Risk Management Division of the Department of Administrative Services. Green v. Cent. State Hosp., 275 Ga. App. 569, 621 S.E.2d 491 (2005). Statute of limitations was not tolled on the plaintiff ’s state law claims when the plaintiff ’s failure to effect proper service in accordance with the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., for over a year after filing the plaintiff ’s complaint, knowing of the defendants’ attack on the sufficiency of service of process, precluded the plaintiff from establishing lack of fault for the delay. Gibbons v. McBride, 124 F. Supp. 3d 1342 (S.D. Ga. 2015). Plaintiff could not sidestep the notice requirements of the Georgia Tort Claims Act (GTCA) by alleging that the plaintiff was suing the defendants as individuals acting outside of the scope of their official duties and employment as the GTCA was the exclusive remedy for any tort committed by a state officer or employee, and the defendants’ immunity was only lost if it was proved that the defendants’ conduct was not within the scope of the defendants’ official duties or employment. Gibbons v. McBride, 124 F. Supp. 3d 1342 (S.D. Ga. 2015). Plaintiff ’s failure to serve the director of the Risk Management Division of the Department of Administrative Services as required by the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., precluded compliance with the condition precedent to waiver of sovereign immunity and rendered void the plaintiff ’s action such that the statute of limitations was not tolled. Despite the ‘‘procedural, not jurisdictional’’ language in the Georgia Supreme Court’s Georgia Pines opinion, it did not apply when no service of process had occurred on one of the necessary parties,

especially when the defendants contested this failure at the first opportunity and consistently thereafter. Gibbons v. McBride, 124 F. Supp. 3d 1342 (S.D. Ga. 2015). Employee’s tort claim for invasion of privacy and eavesdropping against the employee’s former supervisor at a state agency failed to comply with O.C.G.A. § 50-21-26(a) or O.C.G.A. § 50-21-35 by serving the employee’s notice of claim with the proper state officials within 12 months and serving the complaint on an officer at the agency or the director of risk management; dismissal was proper. Stephens v. Coan, 349 Ga. App. 147, 825 S.E.2d 525 (2019). Civil Practice Act governs method of service. - O.C.G.A. § 50-21-35 does not provide the exclusive method for service of process on a state entity under the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq.; rather, O.C.G.A. § 9-11-4(e)(5), part of the Civil Practice Act, O.C.G.A. T. 9, C. 11, applies to claims brought under the Georgia Tort Claims Act and, accordingly, service on a community board was not improper when the summons and complaint were not handed personally to the board’s director. Ga. Pines Cmty. Serv. Bd. v. Summerlin, 282 Ga. 339, 647 S.E.2d 566 (2007). Failure to meet service requirements barred dismissal under § 9-2-5. - Because the Department of Transportation failed to show that service of process had been effectuated in an alleged prior pending personal injury suit filed in Brantley County, based on the same accident a driver sued upon in Wayne County, the Brantley County suit was not ‘‘pending,’’ as that term was defined in O.C.G.A. § 9-2-5(a). Thus, the trial court erred in dismissing the driver’s Wayne County suit. Watson v. Ga. DOT, 288 Ga. App. 40, 653 S.E.2d 763 (2007). Cure of defect in mailing requirement. - Plaintiff should be allowed to cure a defect in the compliance with the mailing requirement so long as the delay in providing a copy of the complaint to the Attorney General did not cause any prejudice to the state; moreover, because no specific proscriptions against amendments to cure a defect in the O.C.G.A.

§ 50-21-35 requirements existed, an amendment should generally be allowed prior to the entry of a pretrial order, unless there was good reason to deny the amendment. Camp v. Coweta County, 280 Ga. 199, 625 S.E.2d 759 (2006). Failure to meet service requirements did not require automatic dismissal. - Trial court erred in dismissing an injured party’s personal injury action against a state agency because under the current precedent failure to meet the notice requirements of O.C.G.A. § 50-21-35 did not automatically require a dismissal and the injured party’s act of refiling the complaint under the renewal statute, O.C.G.A. § 9-2-61, was allowable under the circumstances. Shiver v. DOT, 277 Ga. App. 616, 627 S.E.2d 204 (2006). Because the trial court dismissed a couple’s damages complaint against the Department of Transportation arising out of a collision between their vehicle and a road sign without a clear finding as to whether actual prejudice was based on the expiration of the statute of limitations under O.C.G.A. § 50-21-27(c) or some other facts before the court, remand was ordered for the court to make that determination before resorting to dismissal. Backensto v. Ga. DOT, 284 Ga. App. 41, 643 S.E.2d 302 (2007). Service on clerk of chief operating officer. - Administratrix’s acts of serving ante litem notice of the claims in a wrongful death action upon the clerk of a service provider’s chief executive officer at the office address of the officer was sufficient under both O.C.G.A. §§ 9-11-4 and 50-21-35 to avoid summary judgment on this issue; moreover, the provider waived any service of process defense through its:

(1) actual knowledge of the instant suit; (2) active participation in discovery; and (3) failure to show prejudice by any alleged defect in the service of process. Summerlin v. Ga. Pines Cmty. Serv. Bd., 278 Ga. App. 831, 630 S.E.2d 115 (2006), aff ’d, 282 Ga. 339, 647 S.E.2d 566 (2007). Provision not jurisdictional. - Service of process provision of the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., is procedural in nature, not jurisdictional; thus, service of process could be waived. Ga. Pines Cmty. Serv. Bd. v. Summerlin, 282 Ga. 339, 647 S.E.2d 566 (2007). Dismissal for failure to comply with section remanded for agency to show actual prejudice. - Absent evidence that the Department of Transportation demonstrated actual prejudice from a surviving spouse’s failure to comply with O.C.G.A. § 50-21-35 by failing to timely amend a damages complaint with a certificate showing service upon the attorney general, a dismissal order was vacated, and the case was remanded. Ingram v. DOT, 286 Ga. App. 220, 648 S.E.2d 729 (2007). Failure to include transcript. - Because a couple appealing the dismissal of their complaint against the Department of Transportation on the ground that the couple had not complied with O.C.G.A. § 50-21-35 had not included a transcript of the hearing on the motion to dismiss, the court had to affirm the trial court’s finding of actual prejudice in dismissing the complaint. Backensto v. Ga. DOT, 291 Ga. App. 293, 661 S.E.2d 647 (2008). Cited in Hartley v. Agnes Scott College, 295 Ga. 458, 759 S.E.2d 857 (2014); Bailey v. Ga. World Congress Ctr., 351 Ga. App. 629, 832 S.E.2d 446 (2019).