Present: All the Justices 

BARBARA HALBERSTAM 

v. Record No. 951044 OPINION BY JUSTICE ELIZABETH B. LACY 

 March 1, 1996 

COMMONWEALTH OF VIRGINIA, ET AL. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Rosemarie P. Annunziata, Judge 

 The dispositive issue in this appeal is whether the 

appellant complied with the notice requirement of the Virginia 

Tort Claims Act, Code §§ 8.01-195.1 through -195.9 (the Act). 

 Appellant, Barbara Halberstam, was injured on October 5, 

1993 when she fell in a parking lot at George Mason University 

(GMU), a state supported university. Following the accident, 

Halberstam communicated with GMU and the Division of Risk 

Management of the Commonwealth on a number of occasions regarding 

the nature and extent of her injuries. In all, Halberstam sent 

seven letters. At the conclusion of the correspondence, the 

Commonwealth denied liability for Halberstam's injury. 

 Halberstam filed a motion for judgment alleging that the 

Commonwealth and GMU were negligent in maintaining the parking 

lot. The Commonwealth and GMU filed a "Demurrer, Motion to 

Dismiss/Motion for Summary Judgment and Plea of Sovereign 

Immunity." After considering the briefs and argument of counsel, 

the trial court held, first, that GMU was immune from suit 

because the Act did not waive the immunity of agencies of the 

Commonwealth and, second, that the notice of claim filed by 

Halberstam did not meet the statutory requirements because it did 

not sufficiently identify the place where the injury occurred. 
 2 

The trial court entered an order dismissing Halberstam's motion 

for judgment. 

 Halberstam's appeal raises a number of issues. Most are 

related to the construction and application of the one-year 

notice provision of the Act. That provision, Code § 8.01-195.6, 

states, in relevant part: 

 Every claim cognizable against the Commonwealth . . . 

shall be forever barred unless the claimant or his agent, 

attorney or representative has filed a written statement 

of the nature of the claim, which includes the time and 

place at which the injury is alleged to have occurred and 

the agency or agencies alleged to be liable. . . . The 

claimant or his agent, attorney or representative shall, 

in a claim cognizable against the Commonwealth, mail the 

notice of claim via the United States Postal Service by 

certified mail, return receipt requested, addressed to 

the Director of the Division of Risk Management or the 

Attorney General in Richmond. 

Halberstam contends, initially, that a letter, dated March 14, 

1994, from her counsel to the Director of the Division of Risk 

Management in Richmond complied with the Act's notice 

requirement. The letter read, in pertinent part, 

 On October 5, 1993, Mrs. Halberstam, a student at 

George Mason University, was parking her vehicle in the 

school parking lot at approximately 7:45p.m.. She 

parallel parked alongside the curb and began to exit her 

vehicle. Due to the fact that the area where she parked 

was unlit, she did not notice a pothole or eroded area in 

the asphalt of the parking lot. Upon exiting her vehicle 

she stepped into this eroded area/pothole which caused 

her to lose her balance, fall and injure herself. George 

Mason University was responsible for maintaining the 

parking lot where these injuries occurred. 

In the alternative, she argues that the March 14 letter 

considered in combination with her other correspondence 

establishes substantial compliance with the notice provision. We 
 3 

reject both contentions. 

 The Act is a statute in derogation of the common law 

doctrine of sovereign immunity and, therefore, must be strictly 

construed. Baumgardner v. Southwestern Virginia Mental Health 

Inst., 247 Va. 486, 489, 442 S.E.2d 400, 401 (1994). Thus, 

strict compliance with all of its provisions is required.1 

 The language of Code § 8.01-195.6 is unambiguous. Notice 

must include (1) the time and place at which the injury allegedly 

occurred and (2) the agency or agencies allegedly liable. This 

notice must be sent through the United States Postal Service by 

certified mail, return receipt requested, addressed to the 

Director of the Division of Risk Management or the Attorney 

General in Richmond. 

 Halberstam's notice does not meet the statutory 

requirements because it does not specify the location of the 

injury. Rather, it merely states that the accident occurred in 

"the school parking lot" of GMU. The parties stipulated that GMU 

has a number of parking lots and more than one campus. 

 1

Halberstam argues at length that strict construction is 

not required because the Commonwealth was not immune for claims 

based on its proprietary actions under the common law and, 

thus, the Act did not waive any common law immunity. 

Halberstam misapplies the dichotomy between proprietary and 

governmental acts as they relate to questions of governmental 

immunity. Most of the cases relied on by Halberstam are 

inapposite because they involved the type of immunity available 

to municipalities, or to individual government employees sued 

in their individual capacity, not the immunity of the 

Commonwealth or its agencies. In no case has the Commonwealth 

or its agencies been held liable for damages in a tort cause of 

action based on an activity labeled proprietary by this Court. 
 4 

Halberstam did not specify in which parking lot of which GMU 

campus she was injured. Such lack of detail is, in essence, no 

notice at all. 

 The need for specificity when providing notice to a 

government of a tort claim has been emphasized by this Court 

before. In Town of Crewe v. Marler, 228 Va. 109, 319 S.E.2d 748 

(1984), we dealt with the notice provisions of Code § 8.01-222, 

which apply to suits against cities and towns. This Court held 

that the plaintiff failed to give proper notice to the city 

because her written notice stated that the accident occurred "in 

your town." Id. at 111, 114, 319 S.E.2d at 749, 750. This 

description was deemed inadequate despite the fact that only 

substantial compliance with the notice provision was required and 

that the town had actual notice of the exact location of the 

accident. Id. at 113-14, 319 S.E.2d at 749-50. Halberstam 

contends that, even if her March 14 letter alone was 

insufficient, her other correspondence is cognizable in 

establishing compliance with the statute's requirements. She 

points to the earlier letters which specify the campus and 

parking lot where the accident occurred. 

 Only the March 14 letter, however, was sent to an 

official designated in the statute and in the manner prescribed 

by the statute, certified mail with a return receipt requested. 

Thus, in this case, that letter alone must contain the 

statutorily required information. 
 5 

 Halberstam also argues that the Director probably had 

actual knowledge of the location of the accident due to certain 

other letters and she should have been allowed the opportunity to 

establish actual knowledge. This argument is unpersuasive. The 

Commonwealth concedes that the Director had actual notice but 

actual notice does not obviate Halberstam's duty to strictly 

comply with the Act's notice provisions. Marler again provides 

guidance. In that case, the Town of Crewe had actual notice of 

the accident's location. Marler, 228 Va. 112, 319 S.E.2d at 749. 

 However, this Court held that the town's knowledge had no effect 

on whether the claimant substantially complied with the statute. 

 We explained that 

 [t]he arbitrary and peremptory provisions of the 

statute are necessary to accomplish the purposes 

of the enactment. Unless explicit notice in 

writing of the time and place of an accident is 

furnished the proper public official substantially 

in accordance with the statute, when there is a 

claim of municipal negligence, the likelihood of 

prompt attention to the matter to protect the 

interests of the municipality and the public is 

materially diminished. For this Court to place 

any limitation on the clear and comprehensive 

language of the statute, or to create an exception 

where none exists under the guise of statutory 

construction, would be to defeat the purpose of 

the enactment and to engage in judicial 

legislation. 

Id. at 113-14, 319 S.E.2d at 750. The same rationale applies 

with no less force to the notice provisions of the Virginia Tort 

Claims Act, provisions which are to be strictly construed. 

 Lastly, Halberstam asserts that the trial court erred in 

failing to hold that the Commonwealth was estopped from raising 
 6 

the notice defense because it had already rejected her claim. 

This argument is without merit. First, estoppel does not lie 

against the Commonwealth. Commonwealth v. Allstate Bonding Co., 

246 Va. 189, 194, 435 S.E.2d 396, 399 (1993). Moreover, the 

Commonwealth's September 15, 1994 letter rejecting Halberstam's 

claim specifically reserved the Commonwealth's right to rely on 

all procedural and substantive defenses. 

 Accordingly, for the reasons stated, we will affirm the 

order of the trial court.2

Affirmed.

 

 2Halberstam also assigned error to the trial court's 

holding that the Tort Claims Act did not waive GMU's immunity. 

 We do not address that assignment because Halberstam's failure 

to comply with the Act's notice requirement would also defeat 

her claim against GMU under the Act, if applicable.