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Warnell v. Unified Gov't of Athens-Clarke County

Court of Appeals of Georgia

August 29, 2014

WARNELL et al.
v.
UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY

Ante litem notice. Jackson State Court. Before Judge Alexander.

Blasingame, Burch, Garrard & Ashley, Andrew J. Hill III, Lee S. Atkinson, for appellants.

Begnaud & Marshall, Andrew H. Marshall, for appellee.

Doyle, P. J., and Dillard, J., concur.

OPINION

Page 285

Miller, Judge.

William and Belinda Warnell appeal from the grant of summary judgment to the Unified Government of Athens-Clarke County (the " County" ) in their suit arising from a collision between William's vehicle and a police car owned by the County. The Warnells contend that the trial court erred in granting summary judgment based on their failure to present their claims to the County within 12 months as required by OCGA § 36-11-1. Discerning no error, we affirm.

On appeal from the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law. Holbrook v. Stansell, 254 Ga.App. 553, 553-554 (562 S.E.2d 731) (2002).

So viewed, the evidence shows that on February 28, 2011, William was driving his vehicle near the intersection of Lumpkin and Washington Streets in Athens, Georgia. Athens-Clarke County Police Officer Jody Thompson was traveling west on Washington Street in his County-owned patrol car when he proceeded through a red light and collided with William's vehicle. The County had an insurance policy on the patrol car which provided $1 million in automobile liability coverage.

Page 286

On January 15, 2013, more than 22 months after the accident, the Warnells filed suit against the County, alleging that William had [328 Ga.App. 904] been injured in the accident.[1] Prior to filing their suit, the Warnells admittedly failed to provide any formal written notice of their claims to the County. The County moved for summary judgment, arguing that the Warnells' claims against the County were barred by their failure to comply with the 12-month statute of limitation for presentation of claims set forth in OCGA § 36-11-1. In their response to the County's motion for summary judgment, the Warnells argued that the County's limited waiver of sovereign immunity under OCGA § 33-24-51, based on the County's purchase of liability insurance, barred the County from raising the 12-month notice requirement under OCGA § 36-11-1 as a defense. The trial court granted the County's motion, finding that the 12-month presentation requirement set forth in OCGA § 36-11-1 is wholly unrelated to the limited waiver of sovereign immunity under OCGA § 33-24-51, which resulted from the County's purchase of liability insurance on the patrol car.

In their sole enumeration of error, the Warnells contend that the trial court erred in granting summary judgment to the County, because the express language of OCGA § 33-24-51 (b) limits the County's defenses to only those defenses available to private persons. We disagree.

Under OCGA § 36-11-1,

[a]ll claims against counties must be presented within 12 months after they accrue or become payable or the same are barred, provided that minors or other persons laboring under disabilities shall be allowed 12 months ...

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