May v. Department of Natural Resources , 140 Mich. App. 730 ( 1985 )

140 Mich. App. 730 (1985) 365 N.W.2d 192

MAY
v.
DEPARTMENT OF NATURAL RESOURCES

Docket No. 66713.

Michigan Court of Appeals.

Decided January 4, 1985.

Charfoos, Christensen, Gilbert & Archer (by Adrienne G. Southgate), for plaintiff.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Terrence P. Grady and Theodore E. Hughes, Assistants Attorney General, for defendant.

Before: DANHOF, C.J., and ALLEN and K.N. HANSEN,^[*] JJ.

PER CURIAM.

In this wrongful death action, plaintiff appeals as of right from an order of the Court of Claims granting accelerated judgment for defendant pursuant to GCR 1963, 116.1(5). The decision of the Court of Claims was based on plaintiff's failure to comply with the six-month notice requirement of MCL 600.6431(3); MSA 27A.6431(3) and the one-year notice requirement of MCL 600.6431(1); MSA 27A.6431(1). It is not disputed that no notice was given for more than 34 months after the fatal accident.

In Hanger v State Highway Dep't, 64 Mich. App. 572, 582-583; 236 NW2d 148 (1975), lv den 399 Mich. 812 (1977), the Court held that the notice provisions at issue here were constitutional if construed to require the government agency involved to show actual prejudice resulting from the lack of compliance with the notice requirements of the statute. See also Carver v McKernan, 390 Mich. 96, 100; 211 NW2d 24 (1973) (construing the analogous notice provision of MCL 257.1118; MSA 9.2818). Thus, in order to obtain accelerated judgment based on lack of the statutory notice, a government agency must sustain its burden of establishing actual prejudice by competent, relevant, and material evidence. In the Court of Claims, defendant produced no affidavits or other evidence to show actual prejudice.

At oral argument before the Court of Claims, counsel for defendant represented to the court that the physical characteristics of the scene of the accident had changed with the passage of time, that a possible witness had left the state, and that the memories of other witnesses had become stale. Such ex parte assertions of fact, unsupported by evidence, should not have been considered by the Court of Claims in resolving a motion for accelerated judgment, see GCR 1963, 116.3, and cannot be considered by this Court on appeal, see Dora v Lesinski, 351 Mich. 579; 88 NW2d 592 (1958).

Defendant relies on Bludders v State Farm Mutual Ins Co, 52 Mich. App. 714; 218 NW2d 107 (1974), a case involving the analogous notice provision of MCL 257.1118; MSA 9.2818, in which the Court held that a 19-month delay in giving notice was sufficient to demonstrate prejudice. However, Bludders was modified by the Supreme Court, 392 Mich. 804; 222 NW2d 303 (1974), in an order containing the following statement:

"The Court, however, specifically disapproves of language in the Court of Appeals' opinion which would imply that a delay in notice to the Secretary of State can become sufficiently long to constitute prejudice as a matter of law under Carver v McKernan, 390 Mich. 96 (1973)."

The foregoing convinces us that a delay in giving the notice as required by MCL 600.6431; MSA 27A.6431 can never become sufficiently long to constitute actual prejudice as a matter of law. Because defendant produced no evidence tending to show that it was actually prejudiced, the Court of Claims erred by granting defendant's motion for accelerated judgment.

Our opinion should not be understood as precluding defendant from renewing its motion for accelerated judgment on remand. Accelerated judgment for failure to comply with the notice provision must not, however, be granted unless competent, relevant, and material evidence sustains the existence of actual prejudice.

Reversed and remanded for further proceedings consistent with this opinion. We retain no jurisdiction.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.