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Posted by Susan J. Levy

In DeLoach v. Elliott et al., 2011 Ga. LEXIS 381 (2011), a City of Waynesboro, Georgia, police officer, while on routine patrol in his city-owned vehicle, rear-ended Plaintiff’s vehicle. Plaintiff sued the officer both in his official and individual capacities, and the City of Waynesboro. The Court granted summary judgment to the City and to the Officer in his official capacity for the failure of Plaintiff to comply with the ante litem requirement. The only issue on Appeal was the Trial Court’s ruling that the officer was protected from suit in his individual or official capacities by O.C.G.A. §36-92-3(a).

The relatively unknown and rarely invoked statute provides that “[a]ny local government officer or employee who commits a tort involving the use of a covered motor vehicle while in the performance of his or her official duties is not subject to lawsuit or liability therefore.” Accordingly, as a matter of law, plaintiffs cannot pursue such claims against individual government employees. The statute does provide, however, that “in the event that the local government officer or employee is individually named for an act for which the local government entity is liable under this chapter, the local government entity for which the local government officer or employee was acting shall be substituted as the party defendant.” O.C.G.A. §36-92-3(b).

The problem encountered by the Plaintiff in DeLoach was that her suit against the City had already been dismissed for the failure to provide ante litem notice of her claim. The Supreme Court held that, pursuant to O.C.G. A. §(d), the judgment for the City on the ante litem grounds, “constitute[d] a complete bar to any further action by the claimant against . . .the local government entity by reason of the same occurrence.” In other words, Plaintiff could not revive her suit and circumvent the statute simply because her claim against the City failed. Any other result would allow plaintiffs the proverbial two bites at the apple. “A plaintiff would always be allowed two attempts to prosecute the action successfully, as he could first sue the government entity and then could sue the employee if the first suit fails.” DeLoach at *4. Obviously, that would eviscerate the intention of the statute. “[B]y the passage of OCGA §36-92-3, the legislature intended to foreclose all recovery against [local government] employees for torts committed within the scope of employment and involving the use of a covered motor vehicle.” Id. at *6.

Hopefully, the plaintiffs’ bar will take note of this decision and stop routinely naming individual government employees as defendants in cases involving the use of covered motor vehicles in the course and scope of their employment.