Curtis v. Biermacher , 30 Mich. App. 503 ( 1971 )

30 Mich. App. 503 (1971) 186 N.W.2d 776

CURTIS
v.
BIERMACHER

Docket No. 7890.

Michigan Court of Appeals.

Decided February 16, 1971.

Sauer & Girard, for plaintiffs.

Dora Aillene Biermacher, in propria persona.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Joseph B. Bilitzke, Assistant Attorney General, and Julian A. Cook, Jr., Special Assistant Attorney General, for defendant Secretary of State.

Before: QUINN, P.J., and McGREGOR and O'HARA,^[*] JJ.

QUINN, P.J.

On or about September 1, 1967, George E. Curtis was injured in a motor vehicle accident involving an uninsured motorist. March 6, 1968, plaintiffs' attorney mailed a letter to the Pontiac branch office of the Secretary of State advising the Michigan Accident Vehicle Claims Fund that a claim would be processed under Motor Vehicle Accident Claims Act^[1] on behalf of Curtis for property damage and personal injuries arising out of an accident which occurred September 1, 1967, with defendant Biermacher of 2534 Premont, Pontiac, Michigan.

October 31, 1968, plaintiffs filed with the Secretary of State a notice of intent to file a claim under the act on a form prescribed by the latter. April 24, 1969, plaintiffs filed their complaint against Biermacher, and copies of the complaint and summons were served on her and on the Secretary of State. The latter responded with a motion for summary judgment on the basis that plaintiffs had failed to comply with the statutory notice requirements and the Fund was not liable. Plaintiffs filed a sworn answer to the motion alleging service of notice March 6, 1968 by letter, a copy of which was attached to the answer. There is no testimony or affidavit in the record which refutes this allegation.

The trial judge granted summary judgment July 16, 1969, on the bases that plaintiffs had failed to comply with the statutory notice requirement because they did not make personal service on James M. Hare within six months of the accident. At the time of decision, the trial judge did not have the benefit of Stacey v. Sankovich (1969), 19 Mich. App. 688. Both bases for decision are wrong. Personal service on the Secretary of State is not required, and, absent rebutting evidence, the presumption that plaintiffs' letter of March 6, 1968 was received is not overcome, Stacey, supra. The time limit for giving notice on this accident was one year. MCLA § 257.1118 (Stat Ann 1968 Rev § 9.2818). The amendatory act, PA 1968, No. 223, reducing the time limit to six months was, by its terms, effective July 1, 1968. See MCLA 1970 Cum Supp § 257.1118 (Stat Ann 1970 Cum Supp § 9.2818). This record demonstrates substantial compliance with the statutory notice requirements.

Normally, we would stop here, but in the early stages of the field of litigation opened up by Motor Vehicle Accident Claims Act, it seems pertinent to make an observation. If claimants against the Fund wish to avoid being "penny wise and pound foolish", they should make service of claim by a method that is not easily controverted.

Reversed and remanded for trial but without costs.

All concurred.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] MCLA § 257.1101 et seq. (Stat Ann 1968 Rev § 9.2801 et seq.).