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Georgia Regional Transportation Authority v. Foster

Court of Appeals of Georgia

October 10, 2014

GEORGIA REGIONAL TRANSPORTATION AUTHORITY
v.
FOSTER

Cert. applied for.

Statute of limitation. Fulton State Court. Before Judge Dixon.

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Kirsten S. Daughdril, Senior Assistant Attorneys General, Dennis, Corry, Porter & Smith, Grant B. Smith, Brent M. Estes, for appellant.

Joyce W. Bergman, for appellee.

ELLINGTON, Presiding Judge. Phipps, C. J., concurs. McMillian, J., concurs in judgment only.

OPINION

Page 863

Ellington, Presiding Judge.

Pursuant to a granted application for interlocutory appeal, the Georgia Regional Transportation Authority (" GRTA" ) appeals from an order of the State Court of Fulton County denying GRTA's motion for judgment on the pleadings, contending that the instant action is time-barred because it was filed outside the applicable limitation period. Because the trial court erred in denying GRTA's motion for the reasons set forth below, we reverse.

The facts relevant to this appeal are undisputed.[1] Plaintiff Dana Foster's tort claim arises from an incident that occurred on August 16, 2011, when she was a passenger on a GRTA bus. Foster alleges that the driver accelerated suddenly and unexpectedly, causing her to fall and suffer injuries. On February 10, 2012, Foster sent notice of her claim to GRTA and the Risk Management Division of the Georgia Department of Administrative Services. There is no evidence that the State responded to the ante litem notice. On September 18, 2013, [329 Ga.App. 259] more than two years after the incident giving rise to her

Page 864

claim, Foster filed the instant personal injury suit against GRTA.

GRTA moved for judgment on the pleadings, arguing that Foster's lawsuit was time-barred because it had been filed after the running of the two-year statute of limitation applicable to tort claims brought against the State, OCGA § 50-21-27 (c).[2] Foster concedes that her complaint was filed outside the two-year period, but contends that the running of the limitation period was tolled pending the State's response to her ante litem notice of claim, pursuant to OCGA § 36-33-5 (d),[3] a tolling provision which expressly pertains to suits against municipal corporations. Foster argues that OCGA § 36-33-5 (d) applies to claims brought against the State under the Georgia Tort Claims Act (" GTCA" ) by virtue of this provision of the GTCA: " All provisions relating to the tolling of limitations of actions, as provided elsewhere in this Code, shall apply to causes of action brought pursuant to [the GTCA]." OCGA § 50-21-27 (e). Foster argues that the plain language of this provision means that any tolling provision found in any title of the Georgia Code applies to claims brought under the Act. We disagree.

" Although appellate courts generally do not construe statutory language that is plain and unequivocal, judicial construction is required when words construed literally would defeat the legislature's purpose." (Punctuation and footnote omitted.) Echols v. Thomas, 265 Ga. 474, 475 (458 S.E.2d 100) (1995).

[I]n construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole. Different parts of a statutory scheme should be read in a manner that renders them consistent and harmonious.

(Citations and punctuation omitted.) Walker County v. Tri-State Crematory, 292 Ga.App. 411, 414-415 (1) (664 S.E.2d 788) (2008). Additionally, " [i]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it." (Citation and punctuation omitted.) Cellular One v. Emanuel County, 227 Ga.App. 197, 200 (489 S.E.2d 50) (1997).

[329 Ga.App. 260] Although the GTCA allows the State to be sued for its torts " in the same manner as a private individual or entity," [4] this waiver of sovereign immunity is limited and applies " only to the extent and manner provided in [the GTCA]." [5] " Thus, the [GTCA], by its own terms, must be strictly construed." Howard v. State of Ga., 226 Ga.App. 543 (1) (487 S.E.2d 112) (1997). So viewed, OCGA § 50-21-27 (e) allows for the application of tolling provisions found elsewhere in the Code to the GTCA only if those tolling provisions can be harmonized with the express purposes of the GTCA.[6]

The tolling provision of OCGA § 36-33-5 (d) is found in Title 36, pertaining to " Local Government," in a subpart entitled " Local Government Provisions applicable to

Page 865

Municipal Corporations Only." " Although captions of Code sections are not part of the law[,]" they are often useful to " give[ ] some idea of the General Assembly's intent." (Citations omitted.) Balkcom v. State, 227 Ga.App. 327, 331 (489 S.E.2d 129) (1997). And, in this case, the Code's captions accurately reflect that the tolling provision was not intended to apply outside the confines of its Title, Subpart, and Chapter for the following reasons.

Chapter 33 of Title 36, entitled " Liability of Municipal Corporations for Acts or Omissions," provides that municipal corporations[7] must respond to ante litem notices of claim within 30 days. OCGA § 36-33-5 (c).[8] It also provides that " [n]o action shall be entertained by [329 Ga.App. 261] the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment." OCGA § 36-33-5 (b). Thus, the tolling provision of OCGA § 36-33-5 (d) provides a remedy and protects a claimant in those cases where the municipal corporation has failed to respond to a timely filed notice of a claim for damages. The tolling provision is meant to encourage municipalities to comply with this deadline and to facilitate the prompt settlement of claims without suit. See City of Rome v. Rigdon, 192 Ga. 742, 746 (16 S.E.2d 902) (1941).

The GTCA, on the other hand, imposes no deadline for the State to respond to ante litem notices; in fact, it requires no response at all. See OCGA § 50-21-26 (b).[9] Instead, if the State fails to respond within the time allotted, the statute authorizes the complainant to file suit. See id. Because there is no obligation on the State to respond to an ante litem notice, the State's " failure" to respond requires no remedy. Rather, the GTCA squarely places the burden on the complainant to timely file suit within the limitation period, even though a notice of claim remains pending. OCGA § 50-21-27 (c).

Thus, applying OCGA § 36-33-5 (c) to the GTCA would impose an obligation on the State to respond where none exists and thwart the legislature's intent that tort claims be filed against the State within two years or they are " forever barred." OCGA § 50-21-27 (c). Consequently, we hold that the tolling provision of OCGA § 36-33-5 (d) cannot be harmonized with the GTCA and, thus, has no application to suits brought pursuant to the GTCA, notwithstanding the language of OCGA § 50-21-27 (e). Absent the application of this municipal tolling provision, the record before us shows that Foster's complaint is time-barred; therefore, the trial court erred in denying GRTA's motion for judgment on the pleadings. OCGA § 50-21-27 (c).

Judgment reversed.

Phipps, C. J., concurs. McMillian, J., concurs in judgment only.

CONCUR

McMillian, Judge, concurring in judgment only.

While I concur with the result reached by the majority in this case, I do not agree with all that is said. Accordingly, I concur in the judgment only.[10]


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