A contractor’s ability to recover on a claim may turn on whether the contractor provided timely notice of the claim to the project owner. Claim notice requirements in contracts are “…legal and binding on the parties in the absence of special circumstances, such as waiver or estoppel.”[i]
Claim notice provisions in construction contracts vary in their specific requirements and should be reviewed on each project, but they typically require that the party making a claim provide written notice delivered in person or sent by registered, certified, or statutory overnight mail (e.g. Fed Ex) to the other party.[ii] But what happens to the claim if the owner denies receiving the contractor’s notice? Similarly, is the contractor’s right to appeal the owner’s decision on a claim lost if the contractor denies receiving the decision within the time allowed for an appeal?
In Georgia, “[e]vidence that a letter was written, properly addressed, with correct postage attached, deposited in the United States mail, and never returned to the sender, creates a rebuttable presumption that the recipient received the letters….” [iii] (emphasis added)
“Presumptions have two parts: (1) the predicate facts which must be proved to trigger the presumption; and (2) the conclusion presumed by law from those predicated facts.”[iv] Proof that a letter was written, properly addressed, with the correct postage and deposited in a mail box presumes the conclusion that the letter was received.[v]
All the predicate facts must be established for the presumption to apply.[vi] For example, the presumption did not apply in a case where a properly addressed, stamped letter was “placed in a cigar box in a grocery store” for later delivery. The sender of the letter could not prove that the letter was deposited in the U.S. Mail, even though evidence was presented that an employee of the store routinely delivered the letters from the cigar box to the post office. The court’s ruling was based, in part, on the fact that the employee that normally delivered the letters from the cigar box did not specifically remember seeing the letter at issue.[vii]
More than one hundred years ago, the United States Supreme Court upheld the presumption of receipt, explaining that “[t]he rule is well settled that if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed.”[viii] Thus, the presumption is based upon the post office normally delivering letters that have the correct address and postage.
But “…perfection for the post office and the ‘mailbox rule’ was, and never has been, more than a presumption that may be rebutted by other evidence suggesting that the addressee did not receive the letter.”[ix] As a result, the presumption of receipt can be rebutted by other evidence showing that the letter was not received.
The presumption of receipt is overcome if the undisputed rebuttal evidence shows that the letter was never received, absent additional evidence that discredits or impeaches such testimony.[x] In such a case, the presumption “must yield to the presumption that the addressee, who positively swears that he did not receive it, is swearing the truth, unless some additional circumstance exist to impeach or discredit his statement and to show that perhaps he is not testifying truly.” [xi] For example, a return receipt signed by the recipient may discredit or impeach the recipient’s testimony that he or she never received a letter.
A letter addressed and delivered to a business rather than an individual may, however, require more to rebut the presumption than an individual’s testimony that he or she did not receive the letter.[xii] For example, the Court of Appeals in Sullivan Enterprises v. Stockton held that “[t]estimony by two officers of the corporation that such notice was not received by either of them is not testimony that the corporation did not receive the notice.” In such a case, every employee who receives mail at the business may need to testify that they did not receive the letter to overcome the presumption.
Testimony that the intended recipient does not remember receiving a letter may be sufficient to rebut the presumption, but the rebuttal will be subject to whether the court or jury finds that such testimony is credible in light of the evidence showing that the letter was properly addressed with sufficient postage and provided to the postal service for deliver.[xiii]
Refusing to accept delivery of a letter does not avoid the presumption because “[a] refusal to accept a letter delivered to the proper address with adequate postage is the equivalent of receipt of notice.” [xiv] As a result, to overcome the presumption of receipt the person that was the intended recipient of a letter must show that it neither received nor willfully refused to receive the letter. [xv]
Georgia’s courts have yet to determine whether the presumption applies to e-mails properly addressed and sent; however, Georgia has applied the presumption to other types of communications.[xvi]
In addition, the Federal District Court for the Northern District of Georgia, interpreting Georgia law, recently held that the intended recipient’s statement that she “do[es] not recall ever receiving that email” was not sufficient to overcome the presumption that she received the email and attachments. When [the sender] has produced evidence showing that it sent an item properly mailed, or in this case emailed, there arises a rebuttable presumption that it was received by the addressee. This presumption cannot be overcome merely by stating in an affidavit that the [intended recipient] never received the [email].”[xvii]
As the United States Court of Appeals for the Eighth Circuit explained:
[A] presumption of delivery should apply to e-mails. A jury is permitted to infer that information sent via a reliable means – such as the postal service or a telegram – was received. We have held that there is no principled reason why a jury would not be able to make the same inference regarding other forms of communication — such as facsimiles, electronic mail, and in-house computer message systems — provided they are accepted as generally reliable and that the particular message was properly dispatched.[xviii]
In sum, a contractor should take measures to avoid the proof problems of providing timely notice by adopting and adhering to a business practice of obtaining either the owner’s signature on a hand-delivered notice, or a delivery receipt on a notice sent by certified, registered, statutory overnight, or electronic mail; otherwise, the contractor runs the risk that the owner may deny receipt and rebut the presumption that timely notice was given.
For more information on contracts and claim notice, contact Darren Rowles or Scott Cahalan.
[i] Western Surety Co. v. Georgia Dept. of Trans., 757 SE 2d 272, 326 Ga. App. 671 (2014).
[ii] See, e.g., AIA Document A201-2007, §13.3.
[iii] Lovell v. Thomas, 279 Ga. App. 696, 632 S.E.2d 456 (2006).
[iv] Paul S. Milich, Courtroom Handbook on Georgia Evidence, at 539 (Thomas Reuters ed. 2015).
[v] Id.
[vi] First Bank of Georgia v. Robertson Grading, 328 Ga. App. 236, 761 S.E.2d 628, 636 (2014) (footnote 21).
[vii] W.T. Rawleigh Medical Co. v. Burney, 25 Ga. App. 20, 102 SE 358 (1920).
[viii] Rosenthal v. Walker, 111 U.S. 185, 193-94 (1884).
[ix] Laborers’ International Union Of North America, Local 578 v. NLRB, 594 F.3d 732 (10th Cir. 2010).
[x] Menke v. First Nat’l Bank of Atlanta, 168 Ga. App. 495, 309 SE2d 835 (1983) (citing W.T. Rawleigh Medical Co., 25 Ga. App. at 21).
[xi] Parker v. Southern Ruralist Co., 15 Ga. App. 334, 337, 83 SE 158 (1914).
[xii] Carmichael Tile Co. v. D.W. McClelland, 213 Ga. 656, 100 S.E.2d 902 (1957) (testimony that partner did not receive letter failed to overcome presumption because other partner might have received letter); Sullivan Enter. v. Stockton, 118 Ga. App. 542, 543, 164 S.E.2d 336 (1968).
[xiii] Ennis v. Atlas Fin. Co., 120 Ga. App. 849, 172 S.E.2d 482, 484 (1969). But see Vines v. Citizens Trust Bank, 146 Ga. App. 845, 847-48 (1978) (presumption rebutted by testimony that borrower did not remember receiving notice that Bank would strictly enforce loan terms).
[xiv] Crenshaw v. GA. Underwriting Ass’n, 202 Ga. App. 610 (1992).
[xv] Edmondson v. Air Svc. Co., 123 Ga. App. 263, 180 S.E.2d 589 (1971).
[xvi] Abercrombie v. Georgia Distributing Co., 43 Ga. App. 258 (3), 158 S.E. 530, 531 (1931) (evidence telegram delivered to messenger boy of telegraph company did not establish presumption because there was evidence that the charge for sending the telegraph was paid).
[xvii] Dixon v. Synchrony Financial, 2015 WL 12720290 at *5 (N.D.. Ga. Aug. 18, 2015) (citing Corbin v. Affiliated Computer Services, Inc., 2013 WL 3804862, at *6 (M.D. Fla. July 19, 2013); Dixon v. NBC Universal Media, LLC, 947 F. Supp. 2d 390, 400 (S.D. N.Y. 2013); Abdullah v. American Express Co., 2012 WL 6867675, at **4-5 (M.D. Fla. December 19, 2012).
[xviii] American Boat Co., Inc. v. Unknown Sunken Barge, 418 F.3d 910, 914 (8th Cir. 2005). See also Dempster v. Dempster, 404 F.Supp.2d 445 (E.D. NY 2005). But see Glenn Constr. Co., LLC v. Bell Aerospace Serv., 785 F.Supp.2d 1258 (M.D. Ala. 2011) (declining to extend the presumption to e-mails absent evidence that the State of Alabama would do so).