DELSON et al. v. DEPARTMENT OF TRANSPORTATION et al., 245 Ga. App. 100

Barnes, Judge. Natividad Delson, Rex Delson, Maria Delson, Ann Delson Hejmanowski, and Concepcion Delson Guistino (“surviving children”) appeal from the trial court’s grant of partial

summary judgment to the Georgia Department of Transportation (“DOT”). Because we find the trial court erred by finding that the surviving children failed to comply with the ante litem notice requirements of OCGA § 50-21-26, we reverse. The record shows that the surviving children’s parents, Crisanto and Delores Delson (“the deceased”), were killed in an automobile accident on July 21, 1995.

On July 2, 1996, the same law firm that later filed a complaint on behalf of the surviving children, as well as the estates of the deceased, sent an ante litem notice that stated, in pertinent part: This law firm represents the interests of the estates of Crisanto Delson, [and] Delores Delson who died on July 21, 1995. . . .

Pursuant to OCGA § 50-21-26, et seq., this letter will serve as notice to the Risk Management Division and the Department of Transportation that the representatives of the aforementioned estates intend to file a lawsuit against the State of Georgia and the Department of Transportation whose conduct is believed to have proximately caused the deaths of Crisanto Delson [and] Delores Delson. . . . Claims which may be alleged include wrongful death, negligence, loss of consortium, as well as others which may become apparent through the discovery process. . . .

While it is difficult to value the lives of Crisanto Delson . . . [and] Delores Delson . . . , and the pain and suffering endured by their surviving family, we believe this amount to be substantial. DOT moved for partial

summary judgment on the grounds that this ante litem notice did not notify it that the surviving children would be bringing a claim against it. The trial court agreed and granted partial

summary judgment in favor of the DOT. The ante litem statute at issue, OCGA § 50-21-26, provides in pertinent part: (

a) No person, firm, or corporation having a tort claim against the state under this

article shall bring any action against the state upon such claim without first giving notice of the claim as follows: ...

(3) No action against the state under this

article shall be commenced and the courts shall have no jurisdiction thereof unless and until a written notice of claim has been timely presented to the state as provided in this subsection; . . .

(5) A notice of claim under this Code

section shall state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following: (

A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim; (

B) The time of the transaction or occurrence out of which the loss arose; (

C) The place of the transaction or occurrence; (

D) The nature of the loss suffered; (

E) The amount of the loss claimed; and (

F) The acts or omissions which caused the loss. The surviving children assert they complied with the requirements of this statute, and we agree. Subsection (a) (5) sets out the information which “shall” be included in the notice, and the parties do not dispute that all of the information required by this subsection was included in the letter sent by the surviving children’s attorney. The statute contains no express requirement that all claimants be identified in the notice.

The omission of such a requirement makes sense when one considers that the person possessing a cause of action can sometimes change over time. The Supreme Court’s decision in Williams v. Dept. of Human Resources, 272 Ga. 624 (532 SE2d 401) (2000), is distinguishable because in Williams, no notice of a wrongful death claim was provided to the State. Thus, the plaintiff in that case failed to specify “the nature of the loss suffered” as required by OCGA § 50-21-26 (a) (5) (D). In this case, the State received notice that a wrongful death claim would be asserted.

Accordingly, the trial court erred in granting partial

summary judgment to the DOT. Judgment reversed. Johnson, C. J., Pope, P. J., Eldridge, Phipps and Mikell, JJ, concur. Blackburn, P. J., dissents. For example, the death of a surviving spouse would result in a wrongful death cause of action passing to any surviving children, or if there were no surviving children, to the representative of the original decedent’s estate. See OCGA §§ 51-4-2 (b) (1); 51-4-5 (a). The language from Williams that is quoted by the dissent is dicta and does not govern the result of this case.