Background
The Federal Tort Claims Act (FTCA) was enacted following the crash of a B-25 bomber into the Empire State Building in 1945.1 From the moment of its creation, the FTCA has been inextricably linked to aviation. Given the heavy regulation and government involvement in aviation, and the relationship between the Government and aerospace defense contractors, understanding the processes and procedures of the FTCA, and its state counterpart, is important knowledge.
Analogous to the FTCA, the Georgia Tort Claims Act is also a particular area of concern for aviation litigators. Public entities involved with aviation, as well as those inhabiting the area around aviation centers, are at a specific risk for aviation claims. Whether it is airports, utility companies with lines in high traffic areas, or other state and local actors, it is crucial to know the process and operation of the Georgia Tort Claims Act.
The FTCA has a more streamlined approach than the Georgia Ante Litem Notice. Whereas the Ante Litem Notice has different standards for state and local authorities, the FTCA has one set of bright line rules to follow. These rules are outlined in a document called “Form 95,” which is the embodiment of the FTCA notification requirements.
Federal Tort Claims Act and Form 95
While there is no explicit requirement to use Form 95, the Form is a safe way to assure that all notice requirements to the federal government are met. For claims against the federal government, there is a twoyear notification period in which the claimant must file their claims.2 This time starts running when the cause of action occurred, and notice is deemed to be met when the government receives actual notice of the injury. If, however, the claimant sues an employee or agency, and the U.S. must be substituted as a defendant, then the claimant has 60 days from the time of filing to give the government notice.3
“[F]ederal law controls questions relating to accrual of federal causes of action,” so state laws cannot expand the two-year notification period.4 “When the plaintiff proves a continuing violation,” a plaintiff may file a claim for a cause of action that began more than two years prior; though “the plaintiff may ‘recover for any violations for which the statute of limitations has not expired. ”5
Once the government receives notice, it has six months to respond. If the government admits liability and chooses to pay, then the claimant’s claim cannot be further litigated. However, if the government decides not to settle, then the claimant must file their case within six months of being notified of the government’s denial of the claim.6 Contrary to the normal rules regarding exhaustion of remedies, the statute also allows the claimant to file suit if the government has not responded to the claim within six months of receipt.
When a claim is brought against an individual employee of the United States, the Attorney General has discretion to substitute the U.S. as the defendant if the employee acted within the scope of their employment.7 If the Attorney General does not do so, the employee may petition the government to have his/her case reviewed to determine if the government should assume liability.
Similarly to the Georgia Ante Litem Notice discussed below, the claimant must put a specific dollar amount in his/her FTCA claim. That dollar amount cannot be changed, unless new facts appear, and the claimant will be bound by the dollar amount they list on the Form.8 All FTCA trials must be adjudicated via a bench trial, which must take place in federal court.9
Georgia Tort Claims Act and Ante Litem Notice
The GTCA is a two tiered system, with requirements for handling tort claims against state and local governments. First, the Georgia Code has specific requirements in section 50-21-26 for bringing claims against state government entities.10 Second, the Georgia Code contains provisions in section 36-33-5 for bringing claims against municipal corporations.11
Governing agencies that are neither municipal, nor state or county, such as transit agencies covering multiple counties (MARTA for instance) do not enjoy traditional sovereign immunity, and neither of the statutory schemes listed above would apply.12 To add to the confusion, some agencies, such as the Georgia Port Authority, qualify as state agencies while appearing at first to fall within the same category as transit agencies.13 Because the statute of limitations runs from the time the injury occurs until ante litem notice has been served (if required), it is may be risky to attempt to sue an agency without a case by case review of the jurisprudence to determine if the agency is covered by either Georgia Code section 36-33-5 or section 50-21-26.
Georgia courts have strictly construed the content requirements of the ante litem notices. While courts have recognized that “there is no precise standard for determining whether any given ante[] litem notice is substantively sufficient. . . . The information supplied will be deemed sufficient if it puts a municipality on notice of the general character of the complaint, and, in a general way, of the time, place, and extent of the injury.”14 While the “general character of complaint” language appears to show a lenient approach to adjudication, “claimant[s] must strictly comply with the notice provisions as a prerequisite to filing suit under the GTCA, and substantial compliance is not sufficient.”15 The decisions of the courts in Dorn and Cummings (endnote 15) certainly favor a strict adherence to the notice requirements when handling an ante litem notice. Georgia Code section 50-21-26 establishes the requirements for notifying the state government. The statute sets the one-year limitations period for notifying the state of the loss resulting from the state’s actions. The notification window begins at the time “the loss was discovered or should have been discovered.”16 In the case of continuing nuisances, “a new cause of action rises daily;” thus, only the damages occurring more than one year prior are barred, but the action may continue for all damages arising in the preceding year.17
In addition to notifying the agency that was responsible for the loss, the claimant must also give notice to the Department of Administrative Services, and failing to do so will result in dismissal.18 Fortunately for the claimant, if the state raises this issue by motion, the claimant has thirty days to address the notification issue. If the claimant fails to do so, the case will be dismissed without prejudice.19
The municipal timing notice in Georgia Code section 36-33-5 differs slightly from the GTCA notice requirements. For municipalities, the notice window is only six months long. Additionally, the statute lacks the clause stating that the six month limitation begins when “the loss was discovered or should have been discovered.” Instead, the statute states the timing begins with “the happening of the event,” appearing to indicate a more stringent standard.20
The notification’s content is fairly straightforward. For state entities, the notice must contain six pieces of information: (1) the name of the state entity; (2) the timing of the incident; (3) the location; (4) the nature of the claimant’s loss; (5) the financial loss; and (6) the acts or omissions that caused the loss.
For municipal corporations, the notice must contain a similar set of information. Municipal notification must include: the timing of the accident, the place, the extent of the injury, the alleged negligence, and the monetary damages sought. In the case of municipal notification, the damages notification constitutes an offer to compromise, but it may be amended for trial if the municipality refuses to settle.21
Physical service of the notice differs between state and municipal entities. For the state, claimants must service the agency’s designated representative via first class mail, and, as stated above, claimants must also serve the Department of Administrative Services.22 For municipal corporations, the claimant may serve either the mayor or chairperson of the council. Service may be either in person, via certified mail, or through statutory overnight delivery.23
The notice requirements of the FTCA and GTCA are not to be treated lightly, and courts have routinely dismissed cases due to untimely notice or notice that failed to meet the statutory guidelines.
Jeffrey R. Higel is a graduate of the Emory University School of Law. Mr. Higel handles aviation claims for Swiss Re in the Santa Ana, California office.
Endnotes
1 The Day A Bomber Hit The Empire State uilding, www.npr.org (last visited July 6, 2016).
2 28 U.S.C. § 2401 (2015).
3 28 U.S.C. § 2679 (2015).
4 Newcomb v. Ingle, 827 F.2d 675, 678 (10th Cir. 1987); see also Phillips v. United States, 260 F.3d 1316, 1319 (11th Cir. 2001) (Ga. statute extending filing window was contrary to Congressional intent and invalid).
5 Eaton v. Keith, 154 F. App’x 844, 848 (11th Cir. 2005) (quoting Knight v. Columbus, Ga., 19 F.3d 579 580- 81(11th Cir. 1994)).
6 28 U.S.C. § 2675 (2015).
7 28 U.S.C. § 2679 (2015).
8 28 U.S.C. § 2675 (2015); Blair v. I.R.S., 304 F.3d 861, 868 (9th Cir. 2002) (Claimant listed valid expenses for lost wages, but listed medical expenses as “still being incurred”; thus, the court limited recovery to only wages).
9 28 U.S.C. § 2402 (2015). authority and is expressly excluded from sovereign immunity and governmental immunity).
13 See Miller v. Georgia Ports Authority, 470 S.E.2d 426 (Ga. 1996).
14 City of Greensboro v. Rowland, 778 S.E.2d 409, 412 (Ga. Ct. App. 2015).
15 Dorn v. Georgia Dep’t of Behavioral Health & Developmental Disabilities, 765 S.E.2d 385, 387 (Ga. Ct. App. 2014) (citing Cummings v. Ga. Dept. of Juvenile Justice, 653 S.E.2d 729,731 (Ga. App. 2007)).
16 O.C.G.A. § 50-21-26 (2014) (emphasis added).
17 Savage v. E.R. Snell Contractor, Inc., 672 S.E.2d 1, 6 (Ga. Ct. App. 2008) (citing Chamblee v. City of Maxwell, 452 S.E.2d 488 (Ga. 1994)).
18 Welch v. Georgia Dept. of Transp., 624 S.E.2d 177, 178-79 (Ga. Ct. App. 2005).
19 O.C.G.A. § 50-21-26 (2014).
20 O.C.G.A. § 36-33-5 (2014).
21 O.C.G.A. § 36-33-5 (2014).
22 O.C.G.A. § 50-21-26 (2014).
23 O.C.G.A. § 36-33-5 (2014).