KLINE v. DEPARTMENT OF TRANSPORTATION (2011)

Defendant, Michigan Department of Transportation (MDOT), appeals as of right the order denying its motion for summary disposition based on governmental immunity. We reverse because we are required by MCR 7.215(J)(1) to follow the holding in McCahan v. Brennan, --- Mich.App ----; --- NW2d ----. Pursuant to MCR 7.215(J)(2), we declare a conflict with McCahan and state that if we were not obligated to follow McCahan, we would affirm.

On August 9, 2007, plaintiff was involved in an automobile accident where his vehicle and an MDOT vehicle collided. Plaintiff was seriously injured, and filed a complaint against MDOT pursuant to the Michigan Vehicle Code, MCL 257.401, and the Governmental Tort Liability Act (GTLA), MCL 691.1405. On October 5, 2007, plaintiff sent a “Statutory Notice of Claim” by certified mail to MDOT. The notice provided details regarding the date, time, and location of the accident. It stated the name of the MDOT employee who was involved and provided the MDOT vehicle identification number (VIN). The notice explained how the accident happened and the injuries sustained by plaintiff. On April 15, 2008, a “Notice of Intention to File Claim” was filed with the Court of Claims, and on June 17, 2009, an “Amended Notice of Intention to File Claim” was filed with the Court of Claims. The amended notice provided all the information contained in the original notice sent directly to MDOT. This amended notice was filed with the Court of Claims and signed and verified in compliance with MCL 600.6431(1). On July 28, 2009, MDOT moved for summary disposition pursuant to MCR 2.116(C)(4) and MCR 2.116(C)(7) on the ground that plaintiff did not comply with the statutory notice provisions as required by the Court of Claims Act, MCL 600.6431. The Court of Claims denied defendant's motion from the bench. MDOT appeals, and argues that MCL 600.6431 must be enforced as written.

We review motions for summary disposition brought pursuant to MCR 2.116(C)(4) and pursuant to MCR 2.116(C)(7) de novo. Grimes v. Mich. Dep't of Transp, 475 Mich. 72, 76; 715 NW2d 275 (2006); Weishuhn v. Catholic Diocese of Lansing, 279 Mich.App 150, 155; 756 NW2d 483 (2008). “Questions of statutory interpretation are also reviewed de novo. Grimes, 475 Mich. at 76.

Governmental agencies are typically immune from tort liability when the agency is engaged in a governmental function. MCL 691.1407(1). However, plaintiff's case falls into the motor vehicle exception to governmental immunity. MCL 691.1405. Because plaintiff brought a claim for personal injury pursuant to the motor vehicle exception to governmental immunity, plaintiff was required to comply with the notice provisions set forth in MCL 600.6431. MDOT argues that plaintiff did not comply as required with the notice provisions of MCL 600.6431, and that as a result of this noncompliance MDOT is entitled to summary disposition.

MCL 600.6431 states in relevant part:

(1) No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, commissions, boards, institutions, arms or agencies, stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths.

* * *

(3) In all actions for property damage or personal injuries, claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action.

It is undisputed that plaintiff did not file the requisite notice with the Court of Claims within six months of the happening of the event giving rise to the cause of action. Plaintiff argues that his October 5, 2007, notice to MDOT was sufficient to satisfy the statute's requirements and, therefore, defendant was not prejudiced by the failure to timely file a notice with the Court of Claims.

In Rowland v. Washtenaw Co Rd Comm, 477 Mich. 197, 219; 731 NW2d 41 (2007), the Michigan Supreme Court, in a case involving the notice provisions applicable to the highway exception to governmental immunity, MCL 600.1404, held that the notice provision of that statute contains no prejudice requirement and that the judiciary cannot read such a requirement into the statute. Id. at 219-220. In McCahan v. Brennan, --- Mich.App ----; --- NW2d ----, this Court concluded, in a 2-1 decision, that the Rowland rationale is not limited to the notice provisions of MCL 691.1404. The majority stated:

We recognize that Rowland dealt with a different notice requirement than does this case. There does not appear to be any published decision of either this Court or the Supreme Court that definitively determines whether the Rowland rationale should also be applied to the notice requirements of MCL 600.6431. Indeed, two justices of the Supreme Court disagreed on this point in separate opinions to an order denying leave to appeal in Beasley v.. State of Michigan, 483 Mich. 1025; 765 NW2d 608 (2009). Chief Justice KELLY, in her concurring statement, rejected the defendant's argument that Rowland should be applied to the notice provision of MCL 600.6431(3), concluding that Rowland was distinguishable because it dealt with a different statutory provision. 483 Mich. at 1025. Justice CORRIGAN, on the other hand, in her dissenting statement to the denial of leave to appeal, opined that Rowland does apply to the notice provisions of MCL 600.6431. In particular, she noted that Rowland “rejected earlier caselaw that had assumed notice provisions are unconstitutional if they do not contain a prejudice requirement,” as well as the fact that the notice requirement in Rowland “is substantially identical” to the notice provisions of MCL 600.6431. Beasley, 483 Mich. at 1028. Justice CORRIGAN also noted that the statute clearly provides that no claim may be maintained unless the notice is filed with the Court of Claims, which did not happen. Id.

We conclude that Justice CORRIGAN'S view represents the better interpretation of the issue. While Rowland did directly deal with a claim arising under the defective highway exception to governmental immunity, we, like Justice CORRIGAN, are not persuaded that the Rowland rationale is somehow limited to MCL 691.1404. Indeed, one of the cases that Rowland reviewed and rejected, Carver v. McKernan, 390 Mich. 96; 211 NW2d 24 (1973), dealt with a six-month notice requirement under the Motor Vehicle Accident Claims Act, MCL 257.1118. In rejecting Carver and other cases, Rowland stated that “[i]n reading an ‘actual prejudice’ requirement into the statute, this Court not only usurped the Legislature's power but simultaneously made legislative amendment to make what the Legislature wanted-a notice provision with no prejudice requirement-impossible.” Rowland, 477 Mich. at 213. Ultimately, Rowland, 477 Mich. at 219, concluded that “MCL 691.1404 is straightforward, clear, unambiguous, and not constitutionally suspect. Accordingly, we conclude that it must be enforced as written.” The same can be said of MCL 600.6431(3). [McCahan, --- Mich.App ---- at slip op p3.]

We find that McCahan was wrongly decided and that Rowland does not dictate the outcome in this case because it involves a different statutory provision. But for the mandate in MCL 7.215(J)(1), we would not follow McCahan. Rather, we would affirm the trial court's order denying summary disposition for the reasons stated in the dissenting opinion in McCahan, ---- Mich.App ---- at slip op pp 1-2 [Fitzgerald, J., dissenting]:

The majority concludes, on the basis of Rowland v. Washtenaw Co Rd Comm, 447 Mich. 197; 731 NW2d 41 (2007), that plaintiff's failure to comply with the plain language of the notice requirement of MCL 600.6431(3) mandated summary disposition in favor of defendant. Because [Rowland ] construes a statute other than MCL 600.6431(3), I respectfully dissent for the reasons stated by Judge Murphy in his dissenting opinion in Property and Casualty Insurance Co of the Hartford v. Dep't of Transportation, unpublished opinion per curiam opinion of the Court of Appeals, issued April 22, 2010 (Docket No. 285749), which I quote in its entirety and whose reasoning I adopt:

Because Rowland v. Washtenaw Co Rd Comm, 477 Mich. 197; 731 NW2d 41 (2007), did not construe the language in MCL 600.6431(3), and because our Supreme Court has evidently decided not to extend the holding in Rowland to MCL 600.6431(3), I am not prepared to disavow May v. Dep't of Natural Resources, 140 Mich.App 730; 365 NW2d 192 (1985).1 In May, this Court held that a plaintiff's claims are not barred by failure to comply with MCL 600.6431(3) unless the defendant established that it was prejudiced by the noncompliance. May has not been reversed or explicitly overruled.

Rowland interpreted MCL 691.1404(1), which differs from the statute at issue here, MCL 600.6431(3). MCL 691.1404(1) provides that compliance with the notice provision is “a condition to any recovery for injuries sustained by reason of any defective highway;” however, MCL 600.6431(3) does not contain comparable “recovery precondition” language. More importantly, our own Supreme Court does not appear to be prepared to extend the holding in Rowland to MCL 600.6431(3). In Beasley v. Michigan, 483 Mich. 1025; 765 NW2d 608 (2009), the Michigan Supreme Court denied an application for leave to appeal relative to an order of this Court that had denied leave to appeal, which in turn pertained to an order by the Court of Claims denying summary disposition to the state. As reflected in a concurring opinion issued by Chief Justice Kelly in Beasley, the state brought the motion for summary disposition on the basis that the plaintiff, who had been injured in a motor vehicle accident involving a state-owned vehicle, failed to comply with the notice requirement of MCL 600.6431(3). Thus, while I recognize that Supreme Court orders denying leave do not have precedential value, the order does appear to signal a mindset that Rowland is inapplicable to MCL 600.6431(3).

Until the Supreme Court decides to substantively address the impact of Rowland on MCL 600.6431(1), which I encourage it to do as soon as possible, I will continue to recognize and respect this Court's decision in May. In my opinion, it defies logic to dismiss plaintiffs' claims here, where in Beasley the plaintiff is being permitted to proceed in the Court of Claims with the apparent blessing of the Supreme Court.

For these reasons, and because MDOT had timely notice of the claim and demonstrated no prejudice as a result of plaintiff's failure to comply with MCL 600.6431(3),¹ we would affirm the trial court's denial of defendant's motion for summary disposition. However, we begrudgingly follow McCahan and find that the trial court erred by denying defendant's motion for summary disposition.

Reversed and remanded to the Court of Claims for entry of an order granting defendant's motion for summary disposition. Jurisdiction is not retained.

I concur with the result reached by the majority to reverse, but respectfully disagree with their conclusion that McCahan v. Brennan, --- Mich.App ----; --- NW2d ---- (2011) was wrongly decided. To the contrary, I would hold that McCahan was correctly decided. Consequently, I disagree with the majority invoking the conflict resolution procedure, MCR 7.215(J)(2).

Both here and in McCahan, the only argument for dismissal by defendants was that plaintiffs in these cases failed to file within six months of the accident a notice of intention to file a claim with the clerk of the court of claims as required by MCL 600.6431(3) .¹ In both cases, plaintiffs sought to excuse their failure to comply with the six-month requirement by arguing that their lack of compliance did not prejudice defendants. In deciding this issue, the Court in McCahan addressed whether the Supreme Court's holding in Rowland v. Washtenaw Co Rd Comm, 477 Mich. 197; 731 NW2d 41 (2007), that enforcement of the notice provision of MCL 691.1404² was not contingent on a showing of prejudice, should apply to MCL 600.6431. It concluded:

While Rowland did directly deal with a claim arising under the defective highway exception to governmental immunity, we, like Justice CORRIGAN, are not persuaded that the Rowland rationale is somehow limited to MCL 691.1404. Indeed, one of the cases that Rowland reviewed and rejected, Carver v. McKernan, 390 Mich. 96; 211 NW2d 24 (1973), dealt with a six-month notice requirement under the Motor Vehicle Accident Claims Act, MCL 257.1118. In rejecting Carver and other cases, Rowland stated that “[i]n reading an ‘actual prejudice’ requirement into the statute, this Court not only usurped the Legislature's power but simultaneously made legislative amendment to make what the Legislature wanted-a notice provision with no prejudice requirement-impossible.” Rowland, 477 Mich. at 213. Ultimately, Rowland, 477 Mich. at 219, concluded that “MCL 691.1404 is straightforward, clear, unambiguous, and not constitutionally suspect. Accordingly, we conclude that it must be enforced as written.” The same can be said of MCL 600.6431(3).

I agree with the above quoted analysis.

FOOTNOTES

1.  The record reveals that plaintiff sent a “Statutory Notice of Claim” by certified mail to MDOT approximately two months after the accident. The notice provided details regarding the date, time, and location of the accident. It stated the name of the MDOT employee who was involved and provided the MDOT vehicle identification number (VIN). The notice explained how the accident happened and the injuries sustained by plaintiff.

1.  MCL 600.6431(3) provides:In all actions [against the state] for property damage or personal injuries, claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action.

2.  MCL 600.6431(3) provides:In all actions [against the state] for property damage or personal injuries, claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action.

FITZGERALD, J.