Written Notice to State Required to Sue State

Strict Compliance With Statute Required to Sue State

Since states and state agencies are protected by sovereign immunity most states have enacted statutes to allow certain people injured by the state to sue the state if the injured person complies with the statutory requirements. Unlike insurance, and claims against insurance companies, the injured person must comply strictly with the statutory requirements. Failure to comply leaves the injured person out of luck and unable to collect damages regardless of how perfect his or her claim.

In Callaham v. Georgia Ports Authority, Court of Appeals of Georgia,  — S.E.2d —-, 2016 WL 2862661 (May 17, 2016) the Court of Appeals of Georgia was asked to hold that substantial compliance with the statutory authority was sufficient while the Georgia Ports Authority asked that it sustain the trial court’s decision that dismissed Callaham’s suit.


Kelvin Callaham appealed the dismissal of his personal injury action against the Georgia Ports Authority. On appeal, he argues that when taken together, two documents, a letter to the Ports Authority’s insurance adjuster and a notice of claim to the Risk Management Division of the Department of Administrative Services, satisfied the ante litem notice requirement of the Georgia Tort Claims Act, OCGA § 50–21–20 et seq.  OCGA § 50–21–26(a)(2) of the Act provides that when a person has a tort claim against the state, “a copy [of the person’s notice of claim] shall be delivered personally to or mailed by first-class mail to the state government entity, the act or omissions of which are asserted as the basis of the claim.”

Since Callaham did not mail or personally deliver to the Ports Authority a copy of the notice of claim he sent to the Risk Management Division, he did not strictly comply with the requirements of that section. Because the duty to strictly comply with those requirements cannot be excused on the basis of actual notice, the letter to the adjuster does not replace the requirement.


On October 3, 2012, Callaham was injured in an auto accident at a Georgia Ports Authority terminal in Savannah. Later that month, his attorney sent the first of the two documents in question, a letter to a claims adjuster for the Georgia Ports Authority. That letter advised her of his representation of Callaham and notified her that Callaham had sustained injuries and was receiving medical treatment. The letter included a copy of the police report and requested that the claims adjuster provide the declaration page showing the policy limits of the insured’s automobile insurance coverage. And it notified her that once Callaham had completed his medical treatment, the attorney would forward to the claims adjuster his evaluation of the case and demand. In June 2013, the attorney sent by certified mail the second of the documents in question: Callaham’s notice of claim to the Risk Management Division of the Department of Administrative Services.

In May 2014, he filed this action. The Georgia Ports Authority moved to dismiss the complaint because Callaham failed to personally deliver or mail a copy of the notice of claim to it as OCGA § 50–21–26(a)(2) requires. The trial court granted the motion, and Callaham filed this appeal.


On appeal, Callaham argued that his October 2012 letter to the Georgia Ports Authority, combined with the June 2013 notice of claim sent to the Department of Administrative Services constitute sufficient ante litem (pre-litigation) notice.  The statute requires a person with a tort claim against the state to give written notice of the claim. The statute requires the claimant to mail the notice by certified mail or statutory overnight delivery, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services. And it requires the claimant to deliver personally or by first-class mail a copy of the notice of claim to the state government entity whose acts the claimant asserts to be the basis of the claim.

To determine whether a claimant has complied with the ante litem notice provision of the Act, the court must look to the plain meaning of the statutory language. In this case, although Callaham properly sent his notice of claim to the Risk Management Division of the Department of Administrative Services, he did not personally deliver or mail a copy of his notice of claim to the Georgia Ports Authority. Callaham never sent to the Georgia Ports Authority the notice required by the statute.

In Dempsey v. Bd. of Regents of the Univ. System of Georgia, 256 Ga.App. 291, 293–294, 568 S.E.2d 154 (2002), the Georgia Court of Appeal stated that the plain language of the statute provides that the notice “must be mailed by certified mail, return receipt requested, or delivered personally to the Risk Management Division of the Department of Administrative Services; and a copy must be mailed or delivered to the state government entity whose acts or omissions serve as the basis for the claim.” In this case, it is undisputed that Callaham did not mail or personally deliver a copy of the ante litem notice to the Ports Authority within 12 months as the plain language of the statute requires.

The Georgia Supreme Court has held that while hyper-technical compliance is not required, substantial compliance is not sufficient: what is required is strict compliance.

[T]he rule of strict compliance does not demand a hyper-technical construction that would not measurably advance the purposes of the [Act’s] notice provisions, even in cases that arguably reflect some degree of leniency, the plaintiffs complied with the plain language of the ante-litem-notice provisions…. Suffice it to say, substantial compliance is not strict compliance. Strict compliance is exactly what it sounds like: strict. Thus, as we have previously warned, the explicit ante litem notice provision is ignored only at peril to a plaintiff’s cause of action and serves as a condition precedent for bringing suit under the Act. [DeFloria v. Walker, 317 Ga.App. 578, 582, 732 S.E.2d 121 (2012)]

Callaham’s argument that the two documents, when taken together, satisfied the notice requirement is unavailing. The statute requires the claimant to mail to the agency whose acts form the basis of the claim notice that contains certain items of information. He does not dispute that he never sent to the Georgia Ports Authority those items of information. Even when the state agency has actual notice, a claimant is not excused from strictly complying with the notice requirements.


Since a suit against a state agency is only allowed when the state gives permission to sue as long as the plaintiff strictly complies with the statutory requirement. Counsel for Callaham failed to comply with the statute and Callaham gets nothing from the Port Authority. Callaham, however, is not without a remedy – he can sue his lawyer.

ZALMA-INS-CONSULT                      © 2016 – Barry Zalma

Barry Zalma, Esq., CFE, practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 49 years in the insurance business.  He now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes.

He founded Zalma Insurance Consultants in 2001 and serves as its only consultant.

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Legal Disclaimer:

The author and publisher disclaim any liability, loss, or risk incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this blog. The information provided is not a substitute for the advice of a competent insurance, legal, or other professional. The Information provided at this site should not be relied on as legal advice. Legal advice cannot be given without full consideration of all relevant information relating to an individual situation.

About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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