Lawsuit didn’t satisfy notice requirements to MDOT

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A lawsuit against the Michigan Department of Transportation, filed in the Michigan Court of Claims, did not satisfy statutory requirements for notice of a defect to MDOT, a divided Court of Appeals panel has ruled.

The plaintiff argued that the Court of Claims erred when it granted MDOT’s motion for summary disposition because his complaint, which he filed in the Court of Claims within the 120-day statutory notice period, constituted adequate notice.

But a Court of Appeals majority said the Court of Claims correctly reasoned that the notice provision contemplates the filing of notice before the filing of a complaint.

“The plain statutory language supports this interpretation,” the majority stated.

The unpublished per curiam opinion, Champine v. Department of Transportation (MiLW 08-102475, 6 pages) was issued by Judges Thomas C. Cameron and Anica Letica. Judge Douglas B. Shapiro dissented.

Background

As plaintiff Norman Champine was driving on I-696 in Macomb County in December 2017, a large piece of concrete dislodged from the highway surface, smashed through the windshield of his vehicle and struck him, causing severe injuries to his head and face.

The plaintiff mailed a notice to defendant MDOT on Dec. 28, informing it of the highway defect. However, he did not file this notice with the clerk of the Court of Claims.

The plaintiff filed a complaint in the Court of Claims on Feb. 6, 2018, arguing that the defendant owed him a duty to maintain the highway in reasonable repair so it was reasonably safe and convenient for public travel under MCL 691.1402(1), and that the defendant had breached its duty.

The next day, the plaintiff mailed an amended notice to the defendant, attaching the police report regarding the incident, but did not file this notice with the clerk of the Court of Claims.

MDOT filed a motion for summary disposition under MCR 2.116(C)(7), contending the plaintiff failed to comply with the notice requirements under MCL 691.1404 prior to bringing a suit under the highway exception to governmental immunity.

The Court of Claims granted defendant’s motion for summary disposition.

Analysis

In its analysis, the panel first examined the language in MCL 691.1404, noting that the Michigan Supreme Court, in Rowland v Washtenaw Co Rd Comm’n, held it is “straightforward, clear, unambiguous, and not constitutionally suspect,” and that “it must be enforced as written.”

Accordingly, the panel said that “the Court of Claims properly construed the procedural requirements of the notice provision by determining that a complaint cannot satisfy the statutory notice requirement.”

The statute’s opening clause, the panel said, states that notice is a “condition precedent” to recovering damages and, therefore, such notice must come before filing a complaint to recover damages.

“[W]e reject plaintiff’s attempt to distinguish the notice required to ‘recover[]’ damages from the notice required to commence a suit,” the panel wrote. “We have previously interpreted the relevant language as referring to the notice requirements to bring a suit, and not merely to recover damages from an alleged injury,” the opinion stated.

The panel then turned to the plaintiff’s argument that the notice provision was fulfilled when the defendant became aware of the road’s condition as a result of the police investigation and the police contact with an MDOT employee immediately after the accident.

“In essence, plaintiff argues that defendant was not prejudiced by plaintiff’s failure to provide notice before filing a complaint. The notice provision requires strict compliance and a showing of prejudice is not required,” the panel held. “Therefore, plaintiff’s argument regarding defendant’s immediate knowledge of the condition of the road is meritless.”

As such, the majority concluded, “the Court of Claims properly interpreted the notice provision at issue, determined that plaintiff failed to comply with it, and dismissed plaintiff’s claim under MCL 691.1404.”

If you would like to comment on this story, email Kelly Caplan at [email protected].