McCAHAN v. BRENNAN , 492 Mich. 730 ( 2012 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Syllabus Robert P. Young, Jr. Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. John O. Juroszek
McCAHAN v BRENNAN
Docket No. 142765. Argued March 6, 2012. Decided August 20, 2012.
Christina McCahan was injured in an automobile accident on the campus of the
University of Michigan on December 12, 2007. The other driver, Samuel K. Brennan, was
driving a car owned by the university and was on university business at the time. On May 7,
2008, McCahan’s counsel sent a letter to the university indicating that counsel intended to
represent McCahan in a lawsuit concerning the accident. On October 31, 2008, McCahan filed
in the Court of Claims a notice of intent to file a claim. After McCahan brought the action
against Brennan and the University of Michigan Regents in the Court of Claims, the university
sought summary disposition on the basis that the notice of intent had not been filed within the
six-month period provided in MCL 600.6431(3). The court, Archie C. Brown, J., agreed with
the university and granted summary disposition in its favor. McCahan appealed. The Court of
Appeals, SAWYER, P.J., and SAAD, J. (FITZGERALD, J., dissenting), affirmed. 291 Mich App 430(2011). McCahan sought leave to appeal. The Supreme Court ordered and heard oral argument
on whether to grant the application for leave to appeal or take other peremptory action. 489
Mich 985 (2011).
In an opinion by Chief Justice YOUNG, joined by Justices MARKMAN, MARY BETH
KELLY, and ZAHRA, the Supreme Court held:
Statutory notice requirements must be interpreted and enforced as plainly written, and
courts may not engraft a requirement of actual prejudice onto a statutory notice requirement as a
condition to enforcement of the statute or otherwise reduce the obligation to comply fully with
statutory notice requirements.
1. MCL 600.6431(1) prohibits claims against the state unless the claimant files with the
Clerk of the Court of Claims within one year after the claim accrued either a specific statutory
notice of intent to file a claim or the claim itself. MCL 600.6431(3), however, requires any
person who wishes to bring an action against a state entity for personal injury or property
damage to file with the Clerk of the Court of Claims either the specific statutory notice of intent
to pursue a claim or the claim itself within six months of the incident giving rise to the cause of
action. Statutes must be read reasonably and in context. MCL 600.6431(1) sets forth the general
notice required for a party to bring a lawsuit against the state, while MCL 600.6431(3) sets forth
a special timing requirement applicable to a subset of those cases. The general requirements of
MCL 600.6431(1) apply to MCL 600.6431(3) except when modified by the specific provisions
of MCL 600.6431(3). Accordingly, the prohibition on maintaining a claim against the state
contained in MCL 600.6431(1) if the notice requirements are not met applies to the subset of
cases described in MCL 600.6431(3) involving personal injury or property damage.
2. Rowland v Washtenaw Co Rd Comm, 477 Mich 197 (2007), held that, it being the sole
province of the Legislature to determine whether and on what terms the state may be sued, the
judiciary has no authority to restrict or amend those terms. When the Legislature specifically
qualifies the ability to bring a claim against the state or its subdivisions on a plaintiff’s meeting
certain requirements that the plaintiff fails to meet, no saving construction—such as requiring a
defendant to prove actual prejudice—is allowed. This holding was not limited to cases involving
the highway exception to governmental immunity, which was at issue in that case. Rather, it
applies to similar statutory notice or filing provisions, including the one that was at issue in this
case. McCahan’s failure to timely file the required notice in the Court of Claims barred her
action regardless of whether the university otherwise received information regarding plaintiff’s
apparent intent to pursue a claim.
Affirmed.
Justice MARILYN KELLY, joined by Justice CAVANAGH and by Justice HATHAWAY
(except for the part entitled “Response to the Majority”), dissenting, would have reversed the
judgment of the Court of Appeals, set aside the grant of summary disposition, and remanded the
case to the trial court for further proceedings. In Rowland, the Court acted improperly by
toppling decades of settled caselaw, holding that those cases had improperly read a requirement
of actual prejudice into statutory notice provisions. Preventing actual prejudice to a defendant as
the result of a lack of notice is the primary legitimate purpose of statutory notice provisions.
Consequently, a suit should be dismissed for late notice only when a defendant was prejudiced
by a plaintiff’s noncompliance with a statutory notice provision. In this case, the university was
not prejudiced because McCahan substantially complied with the requirement and the university
was actually aware within six months of the accident that McCahan had retained counsel to
pursue a lawsuit against it.
©2012 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Robert P. Young, Jr. Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra
FILED AUGUST 20, 2012
STATE OF MICHIGAN
SUPREME COURT
CHRISTINA McCAHAN,
Plaintiff-Appellant,
v No. 142765
SAMUEL KELLY BRENNAN,
Defendant,
and
UNIVERSITY OF MICHIGAN REGENTS,
Defendant-Appellee.
BEFORE THE ENTIRE BENCH
YOUNG, C.J.
In Rowland v Washtenaw County Road Commission,1 this Court held that, it being
the sole province of the Legislature to determine whether and on what terms the state
1
Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731 NW2d 41 (2007).
may be sued, the judiciary has no authority to restrict or amend those terms. We take this
opportunity to reaffirm and apply this fundamental principle articulated in Rowland to the
interpretation of MCL 600.6431, the notice provision of the Court of Claims Act at issue
in this case.
The Court of Appeals correctly determined that when the Legislature conditions
the ability to pursue a claim against the state on a plaintiff’s having filed specific
statutory notice, the courts may not engraft an “actual prejudice” component onto the
statute as a precondition to enforcing the legislative prohibition. We reiterate the core
holding of Rowland that such statutory notice requirements must be interpreted and
enforced as plainly written and that no judicially created saving construction is permitted
to avoid a clear statutory mandate. We further clarify that Rowland applies to all such
statutory notice or filing provisions, including the one at issue in this case.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff, Christina McCahan, was injured in an automobile accident on December
12, 2007. The collision involved a student who was driving a car owned by the
University of Michigan. Plaintiff sought to recover damages from the university for her
injuries. MCL 600.6431 requires any person who wishes to bring an action against state
entities for personal injury or property damage to file with the Clerk of the Court of
Claims either a specific statutory notice of intent to pursue a claim or the claim itself
within six months of the incident giving rise to the cause of action. MCL 600.6431
provides:
2
(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.[2]
Plaintiff did not file a verified notice of intent to file a claim with the Clerk of the
Court of Claims within six months after the accident. However, plaintiff and her counsel
undertook numerous efforts to inform the university’s legal office of her intent to seek
recovery against the university. These actions included plaintiff’s counsel’s sending a
letter to the university’s legal office, plaintiff and her counsel meeting with and providing
all then available documentation relating to the accident to the university’s senior claims
representative by the six-month deadline of June 12, 2008, and plaintiff’s continuing to
provide further information to the representative thereafter. On October 31, 2008, more
than 10 months after the accident, plaintiff filed with the Clerk of the Court of Claims a
notice of intent to bring suit against the university. Plaintiff filed her action against the
university in the Court of Claims on December 5, 2008.
2
MCL 600.6431 (emphasis added).
3
The university subsequently moved for summary disposition, contending that
plaintiff’s failure to file notice of intent to file a claim or the claim itself within the six-
month deadline required dismissal of her claim. The Court of Claims agreed, ruling that
the six-month deadline of MCL 600.6431(3) is a modification of the requirements
provided in MCL 600.6431(1) and thus the prohibition against maintaining a claim from
subsection (1) applied because plaintiff had not filed her claim or notice of her intent to
file a claim within six months. The court further ruled that plaintiff’s arguments that she
had substantially complied with the statute and that defendant suffered no prejudice as a
result of any defects in notice failed in light of the specific language of the statute
requiring the filing within six months after the accident in order to maintain the claim.
On appeal, the Court of Appeals affirmed in a split decision.3 The Court of
Appeals majority held that the filing of notice with the Court of Claims is a mandatory
statutory requirement. Then, relying on the principles articulated in Rowland, the
majority rejected plaintiff’s argument that substantial compliance or the absence of
prejudice to defendant could save plaintiff’s claim.4 The Court of Appeals dissent would
3
McCahan v Brennan, 291 Mich App 430; 804 NW2d 906 (2011).
4
Id. at 434-436. The Court specifically noted that “the Michigan Supreme Court
overturned several cases that had required the state to show actual prejudice when a
plaintiff failed to comply with a statutory filing requirement.” Id. at 434.
4
have held that the university’s actual knowledge of plaintiff’s intent to file a claim
sufficed to satisfy the statutory notice requirement of MCL 600.6431.5
We ordered argument on plaintiff’s application for leave to appeal6 and now
affirm.
II. STANDARD OF REVIEW
This Court reviews de novo a lower court’s decision to grant summary disposition
to a party.7 Further, whether MCL 600.6431 requires dismissal of a plaintiff’s claim for
failure to provide the designated notice raises questions of statutory interpretation, which
we likewise review de novo.8 Our primary objective when interpreting a statute is to
discern the Legislature’s intent. “This task begins by examining the language of the
statute itself. The words of a statute provide ‘the most reliable evidence of its
5
Id. at 438 (FITZGERALD, J., dissenting). The dissent would have held that Rowland did
not reach the facts of this case because it did not construe the particular statute at issue
here, MCL 600.6431. Instead, the dissent would have applied the holding of May v Dep’t
of Natural Resources, 140 Mich App 730; 365 NW2d 192 (1985), which requires a
showing of actual prejudice before enforcing a mandate that a claim may not be
maintained for failure of statutorily required notice. See McCahan, 291 Mich App at
437-438 (FITZGERALD, J., dissenting), quoting and adopting the reasoning of Chief Judge
MURPHY’s dissenting opinion in Prop & Cas Ins Co of the Hartford v Dep’t of Transp,
unpublished opinion per curiam of the Court of Appeals, issued April 22, 2010 (Docket
No. 285749) (MURPHY, C.J., dissenting).
6
McCahan v Brennan, 489 Mich 985 (2011).
7
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
8
McClements v Ford Motor Co, 473 Mich 373, 380; 702 NW2d 166 (2005).
5
intent . . . .’”9 When the Legislature has clearly expressed its intent in the language of the
statute, no further construction is required or permitted.10
III. ANALYSIS
Generally, governmental agencies in Michigan are statutorily immune from tort
liability.11 However, because the government may voluntarily subject itself to liability, it
may also place conditions or limitations on the liability imposed.12 One such condition
on the right to sue the state is the notice provision of the Court of Claims Act, MCL
600.6431, which provides in full:
(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.
(2) Such claim or notice shall designate any department,
commission, board, institution, arm or agency of the state involved in
connection with such claim, and a copy of such claim or notice shall be
furnished to the clerk at the time of the filing of the original for transmittal
9
Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999), quoting
United States v Turkette, 452 US 576, 593; 101 S Ct 2524; 69 L Ed 2d 246 (1981).
10
Sun Valley, 460 Mich at 236.
11
See, generally, MCL 691.1401 et seq.; Rowland, 477 Mich at 202-203.
12
See Moulter v Grand Rapids, 155 Mich 165, 168-169; 118 NW 919 (1908) (“It being
optional with the legislature whether it would confer upon persons injured a right of
action therefor or leave them remediless, it could attach to the right conferred any
limitations it chose.”); accord Rowland, 477 Mich at 212.
6
to the attorney general and to each of the departments, commissions,
boards, institutions, arms or agencies designated.
(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.
Thus, MCL 600.6431 sets forth several requirements that must be met in order to
bring suit against a governmental entity in derogation of governmental immunity.
Pursuant to subsection (1), “[n]o claim may be maintained against the state” unless the
claimant files “in the office of the clerk of the court of claims” either a written claim or a
written notice of intent to file a claim within one year. The claim or notice must contain
certain information, including the time and place that the claim arose, the nature of the
claim, and the damages alleged and must be “signed and verified by the claimant before
an officer authorized to administer oaths.” Pursuant to subsection (2), “[s]uch claim or
notice shall designate any . . . agency of the state involved in connection with such
claim . . . .” And “a copy of such claim” shall be provided upon filing for the clerk to
transmit to the Attorney General and the appropriate governmental agency. Finally,
pursuant to subsection (3), if the claim against the state is one for “property damage or
personal injuries,” the claimant must file with “the clerk of the court of claims” a notice
or claim “within 6 months” of the incident—not one year, as is otherwise applicable to
claims pursuant to subsection (1).
Plaintiff’s appeal before this Court essentially raises two questions. First, what is
the relationship between subsection (3), to which plaintiff’s personal injury claim applies,
7
and subsection (1)? In particular, does the bar-to-claims language of subsection (1)
(“[n]o claim may be maintained against the state unless”) apply to personal injury claims
covered by subsection (3)? Second, what effect must be given to a failure to file either a
claim or notice of intent to file a claim pursuant to subsection (3), particularly when a
state entity otherwise received actual notice of plaintiff’s injury?
We believe that a contextual understanding of MCL 600.6431 readily resolves the
first question and that this Court’s decision in Rowland has already decided the second.
We hold that subsection (3) must be read in light of subsection (1), including that
provision’s prohibition on maintaining a suit as a consequence of a failure to file
compliant notice within six months. In accordance with Rowland, we reaffirm that when
the Legislature conditions the ability to pursue a claim against the state on a plaintiff’s
having provided specific statutory notice, the courts may not engraft an “actual
prejudice” component onto the statute before enforcing the legislative prohibition.
A. MCL 600.6431 AS A CONTEXTUAL WHOLE
As a threshold matter, plaintiff argues that her claim, being a claim for personal
injury, is not subject to the dictates or bar-to-claims language of MCL 600.6431(1).
Instead, plaintiff argues that only subsection (3) governs her claim and acts as an
independent provision that excludes application of subsection (1). Accordingly, plaintiff
argues that the failure of the Legislature to state that “[n]o claim may be maintained
against the state” in subsection (3) as it has done in subsection (1) indicates that any
failure to meet the notice requirements of subsection (3) does not subject a party to the
prohibition on maintaining a claim against the state contained in subsection (1). As the
8
lower courts did, we reject plaintiff’s argument that subsection (3) must be read in
isolation, segregated from the language, requirements, and context provided in subsection
(1).
When undertaking statutory interpretation, the provisions of a statute should be
read reasonably and in context.13 Doing so here leads to the conclusion that MCL
600.6431 is a cohesive statutory provision in which all three subsections are connected
and must be read together. Subsection (1) sets forth the general notice required for a
party to bring a lawsuit against the state, while subsection (3) sets forth a special timing
requirement applicable to a particular subset of those cases—those involving property
damage or personal injury. Subsection (3) merely reduces the otherwise applicable one-
year deadline to six months. In this regard, subsection (3) is best understood as a subset
of the general rules articulated in subsection (1), and those general rules and requirements
articulated in subsection (1)—including the bar-to-claims language—continue to apply to
all claims brought against the state unless modified by the later-stated specific rules.
Our decision in Robinson v City of Lansing14 is instructive in this regard. In
Robinson, we interpreted the so-called “two-inch rule” of the highway exception to
governmental liability, MCL 691.1402a, which sets forth a general rule in subsection (1)
applicable to “county highways,” followed by additional rules and exceptions in further
subsections that speak only generically of “the highway.” The issue before the Court was
13
See Sun Valley, 460 Mich at 236-237.
14
Robinson v City of Lansing, 486 Mich 1; 782 NW2d 171 (2010).
9
whether the rules in the additional subsections were limited like subsection (1) to “county
highways” or whether they also applied to “state highways” like the one on which the
plaintiff was injured. We unanimously held that there were sufficient textual indicia to
determine that the references to highways in each of the subsections referred to county
highways, even though subsection (1) was the only subsection explicitly referring to
“county highways.” In support of this conclusion, we held that there were no indications
in the latter subsections that the scope of those subsections was different from subsection
(1).15 Further, we stated that “statutory provisions are not to be read in isolation; rather,
context matters, and thus statutory provisions are to be read as a whole.”16 Thus, the fact
that the Legislature did not expressly use the word “county” in the latter provisions did
not mean that the prior use did not carry through to latter subsections. Finally, we noted
that “the Legislature is not required to be overly repetitive in its choice of language. . . .
Instead, we believe that a reasonable person reading this statute would understand that all
three subsections of this provision apply only to county highways” even though the
Legislature did not “repetitively restate ‘county’ throughout the entire statutory
provision.”17
Like Robinson, this case requires that we determine the extent to which language
from one subsection of a statute applies to another subsection of the same statute. And as
15
Id. at 14.
16
Id. at 15.
17
Id. at 16.
10
in Robinson, we believe that a reasonable person reading the statute would understand
that subsections (1) and (3) are related and interdependent. Most important, the context
of the entire statutory provision indicates that the six-month filing requirement for
personal injury or property damage cases is a modification of the generally applicable
one-year filing requirement. There is no indication from the language used that the
provisions of subsection (1) do not apply to subsection (3), and the Legislature need not
be overly repetitive in reasserting the requirements for notice in each subsection when the
only substantive change effectuated in subsection (3) is a reduction in the timing
requirement for specifically designated cases.
Further support for this conclusion is derived from the text of the statute itself.
Subsection (3) begins with the prefatory phrase “[i]n all actions for property damage or
personal injuries.” Yet, the Court of Claims only has jurisdiction over claims brought
against the state.18 Thus, with this language the Legislature was obviously not referring
to “all actions for property damage or personal injuries,” but only to those actions
“against the state,” as limited in subsection (1). If subsection (3) were to be read in
isolation, without reference to what the Legislature had already set forth in subsection
(1), it would be impossible to reasonably interpret subsection (3)’s prefatory clause.
Moreover, the various subsections of MCL 600.6431 refer to each other. For
example, subsection (3) employs the phrase “notice of intention to file a claim,” which is
18
See MCL 600.6419 (providing for exclusive original jurisdiction for claims made
against the state).
11
the same phrase that is used and defined in detail in subsection (1). Similarly, subsection
(2) directly refers to subsection (1) by noting that “[s]uch claim or notice” as described in
subsection (1) must designate the responsible governmental agency; this language clearly
indicates that subsection (2) is an elaboration of the requirements stated in subsection (1).
Reading this statute as a whole, it is reasonably clear that these subsections are not
independent entities that happen to be grouped together in the same statutory provision.
Instead, they are related and interdependent, and thus cannot be read in isolation.
Thus, in accordance with prior interpretations of MCL 600.6431, we conclude that
the statutory provision must be understood as a cohesive whole.19 Subsection (1) sets
forth the general rule, for which subsection (2) sets forth additional requirements and
which subsection (3) modifies for particular classes of cases that would otherwise fall
under the provisions of subsection (1). Accordingly, subsection (3) incorporates the
consequence for noncompliance with its provisions expressly stated in subsection (1) and
does not otherwise displace the specific requirements of subsection (1) other than the
timing requirement for personal injury or property damage cases. Therefore, the failure
to file a compliant claim or notice of intent to file a claim against the state within the
19
Notably, plaintiff offers no authority for her interpretation of MCL 600.6431 and, in
fact, every case presented by the parties—including those on which plaintiff relies—has
interpreted subsection (3) to contain a bar to nonconforming claims. See, e.g., May, 140
Mich App at 731-732 (holding that a plaintiff’s claim may be barred by failure to comply
with subsection (3) if the defendant shows prejudice). And the dissent in this case also
rejects plaintiff’s interpretation.
12
relevant time periods designated in either subsection (1) or (3) will trigger the statute’s
prohibition that “[n]o claim may be maintained against the state . . . .”
B. APPLICATION OF ROWLAND
Having concluded that the bar-to-claims language of MCL 600.6431(1) applies to
this case because plaintiff failed to file a claim or notice of intent to file a claim with the
Clerk of the Court of Claims within six months, we must also address whether dismissal
is required. Plaintiff argues that the university was not prejudiced by her failure to file
notice of intent to file her claim in the Court of Claims within six months because she
otherwise timely provided the university’s legal office with notice of the accident,
information sufficient to investigate the accident, and notice of her intent to bring suit if
necessary to resolve her claim. We disagree. The lower courts correctly held that
plaintiff’s failure to file the required notice in the Court of Claims bars her action
regardless of whether the university was otherwise put on notice of plaintiff’s apparent
intent to pursue a claim. The reasoning of Rowland is directly on point and thus controls
this matter.
In Rowland, we interpreted the highway exception to governmental immunity, and
in particular, its statutory requirement that “[a]s a condition to any recovery for injuries,”
an injured person must provide notice within 120 days from the time the injury
occurred.20 The plaintiff in Rowland served notice on the defendant after 140 days, thus
failing to meet the 120-day deadline. Examining whether this failure precluded the
20
See MCL 691.1404(1).
13
plaintiff from maintaining her claim, this Court rejected earlier caselaw that had assumed
that notice provisions are constitutional only if they contain a prejudice requirement.21
Instead, Rowland held that when the plain language of a statute requires particular notice
as a condition for recovery, “no ‘saving construction’ [is] necessary or allowed. Thus,
the engrafting of [a] prejudice requirement onto the statute [is] entirely indefensible.”22
Rowland noted that notice provisions are enacted by the Legislature in order to
provide the state with the opportunity to investigate and evaluate claims, to reduce the
uncertainty of the extent of future demands, or even to force the claimant to an early
choice regarding how to proceed.23 Provisions requiring notice to a particular entity, like
the Court of Claims in this case, further ensure that notice will be provided to the proper
governmental entity, thereby protecting plaintiffs and defendants alike from having the
wrong component of government notified.24
21
Rowland, 477 Mich at 201. The Court expressly overruled Hobbs v Dep’t of State
Hwys, 398 Mich 90; 247 NW2d 754 (1976), and Brown v Manistee Co Rd Comm, 452
Mich 354; 550 NW2d 215 (1996), and implicitly overruled Carver v McKernan, 390
Mich 96; 211 NW2d 24 (1973), Reich v State Hwy Dep’t, 386 Mich 617; 194 NW2d 700
(1972), and Grubaugh v City of St Johns, 384 Mich 165; 180 NW2d 778 (1970).
22
Rowland, 477 Mich at 211.
23
Id. at 210-212.
24
Notably, the university’s legal office is not a proper party to receive service of process
on behalf of the University of Michigan under MCR 2.105(G)(7), let alone to receive
notice of a claim governed by MCL 600.6431.
By naming the Clerk of the Court of Claims as the agent for the receipt of verified
notice of potential claims, the Legislature has established a clear procedure that
eliminates any ambiguity about whether an attempted notice is effective. A claimant who
complies with MCL 600.6431 need not worry about whether a notice was properly
14
As in Rowland, the statutory language at issue here is clear. MCL 600.6431(1)
details the notice requirements that must be met in order to pursue a claim against the
state, including a general deadline of one year after accrual of the claim. MCL
600.6431(3) then modifies only the deadline requirement for a specific class of claims—
those involving personal injury or property damage—replacing the one-year deadline
with a six-month deadline. Thus, subsections (1) and (3) together provide that in all
actions for personal injuries, “[n]o claim may be maintained against the state” unless the
claimant files with the Clerk of the Court of Claims the required notice of intent to file a
claim or the claim itself within six months. Indeed, this notice provision is substantively
identical to the provision in Rowland.25 Because plaintiff here failed to file any notice of
an intent to pursue a claim against the university with the Court of Claims within six
months, plaintiff’s claim is barred by the plain language of the statute.
There has been some dispute in the Court of Appeals as to whether the holding of
Rowland is limited to cases involving the highway exception to governmental immunity,
received and processed by the correct governmental entity. By the same token, state
entities can be secure knowing that only timely, verified claims in notices filed with the
Court of Claims can give rise to potential liability, that the proper entity as well as the
Attorney General will be notified, and that only such claims need to be investigated in
anticipation of potential litigation.
25
See MCL 691.1404(1) (“As a condition to any recovery for injuries sustained by
reason of any defective highway, the injured person, within 120 days from the time the
injury occurred, except as otherwise provided in subsection (3) shall serve a notice on the
governmental agency of the occurrence of the injury and the defect.”).
15
MCL 691.1404(1), which Rowland interpreted.26 This dispute unfortunately might have
been created by concurrences filed in several orders of this Court that called into question
whether Rowland was for some reason limited to the specific statute interpreted in that
case.27
We can discern no principled reason to limit artificially the principles or logical
import of Rowland to the circumstances of that case. Indeed, such a conclusion would be
peculiar in all of our jurisprudence—a system of jurisprudence premised on the
development of precedents to be followed in similar future cases, thereby ensuring that
like cases are treated alike. There is nothing unique about the notice language of the
highway exception to governmental immunity that would limit the principle stated in
Rowland to the specific facts of that case or the interpretation of that statute. Further,
there can be no dispute that the notice provision interpreted in Rowland and the notice
provision at issue here, both of which contain bar-to-claims language, are similarly
situated. Instead, the principle of Rowland is clear: when the Legislature specifically
qualifies the ability to bring a claim against the state or its subdivisions on a plaintiff’s
26
In addition to the instant case, see, e.g., Kline v Dep’t of Transp, 291 Mich App 651;
809 NW2d 392 (2011); Prop & Cas Ins Co of the Hartford v Dep’t of Transp,
unpublished opinion per curiam of the Court of Appeals, issued April 22, 2010 (Docket
No. 285749).
27
See Beasely v Michigan, 483 Mich 1025 (2009) (MARILYN KELLY, C.J., concurring);
Ward v Mich State Univ, 485 Mich 917 (2009) (MARILYN KELLY, C.J., concurring); see
also Chambers v Wayne Co Airport Auth, 482 Mich 1136 (2008) (CAVANAGH, J.,
dissenting).
16
meeting certain requirements that the plaintiff fails to meet, no saving construction—such
as requiring a defendant to prove actual prejudice—is allowed.
Accordingly, we clarify that Rowland applies to similar statutory notice or filing
provisions, such as the one at issue in this case. To the extent that caselaw from the
Court of Appeals or statements by individual members of this Court imply or provide
otherwise, we disavow them as inconsistent with both the statutes that they sought to
interpret and the controlling law of this state as articulated in Rowland.28 Courts may not
engraft an actual prejudice requirement or otherwise reduce the obligation to comply
fully with statutory notice requirements. Filing notice outside the statutorily required
notice period does not constitute compliance with the statute.
IV. A BRIEF RESPONSE TO THE DISSENT
Contrary to the impression a reader might be left with upon reading the dissent,
this case is not a basis to relitigate Rowland. The opinion in Rowland—thorough in its
analysis and sound in its logic—speaks for itself, and we need not provide a point-by-
28
We specifically note May, 140 Mich App 730, upon which the Court of Appeals
dissent and plaintiff primarily rely. May, 140 Mich App at 731-732, grounded its holding
that MCL 600.6431 was only constitutional if the governmental agency involved was
required to show actual prejudice in large part on Carver, 390 Mich 96, and a Court of
Appeals decision that also relied on Carver, Hanger v State Hwy Dep’t, 64 Mich App
572; 236 NW2d 148 (1975). As noted earlier, Rowland implicitly overruled Carver, as
well as expressly overruled the progeny of Carver, including Hobbs and Brown, all of
which formed the basis for the pre-Rowland prejudice rule.
Given that this Court has overruled the decisions on which May was based, it
should be reasonably clear that May, too, no longer remains good law for those
propositions that have been overruled in the cases on which May relied.
17
point rebuttal to the dissent here where Rowland provided a detailed rebuttal to the same
dissenting justice who raised the same unpersuasive arguments there. Although the
dissent is entitled to disagree with a precedent of this Court, Rowland is the binding and
applicable law, and we faithfully apply it today.
Accordingly, the dissent’s conclusion that plaintiff “sufficiently” complied with
the notice requirement of MCL 600.6431 is simply incorrect.29 And the dissent’s
reasoning that dismissal is not warranted in this case because, in the dissent’s view,
defendant suffered no prejudice is legally irrelevant because the Legislature has not
included a prejudice component in this statute.
Also noteworthy here is that which the dissent does not dispute. First, the dissent
agrees with our reasoning that MCL 600.6431 must be read as a contiguous whole, as
well as the resultant conclusion that subsection (3) includes the bar-to-claims language of
29
The dissent itself concedes that plaintiff failed to provide the required statutory notice.
However, the dissent has simply decided against applying the Legislature’s designated
consequence for such a failure.
Curiously, the dissent characterizes this opinion as requiring that “MCL 600.6431
must be strictly enforced” and thus plaintiff’s failure to provide notice to defendant “that
complied in every detail with the statute requires that her entire claim be dismissed.”
Post at 1-2. We are at a loss why such a charge makes sense when we are merely giving
the plain meaning to the words used by the Legislature. What we do here is not “strict
enforcement” of the notice provision, but what any Court must do: give a reasonable
interpretation to the language that the Legislature has passed and the Governor has
signed into law. We find nothing “strict,” as opposed to being merely reasonable, in
concluding that “six months” means “six months,” “files in the office of the clerk” means
“files in the office of the clerk,” and “in detail” means “in detail.” Our view is that the
rule of law requires that courts of this state must respect the legislative policy choices as
expressed in the language of the statutes that come before them.
18
subsection (1). Indeed, only disagreeing with our ultimate conclusion, the dissent leaves
untouched the entirety of this opinion’s textual analysis.30 Second, other than its personal
disagreement with the decision of Rowland itself, the dissent does not disagree that
Rowland applies to the interpretation of MCL 600.6431. Further, the dissent proffers no
reason why the principle of Rowland—which is a binding precedent, like any other
decision of this Court—is not entitled to deference and application in similar notice cases
pursuant to stare decisis, and the dissent does not contradict our conclusion that Rowland
is not limited to the statute interpreted in that case. For all these reasons, the dissent is
entirely unresponsive to the arguments raised in this opinion that compel our conclusions.
A final note on an argument raised by the dissent. The dissent once again relies on
the “highly disfavored” theory of legislative acquiescence in support of its conclusion
that the Legislature “approved” of the pre-Rowland line of cases instituting a judicially
created prejudice requirement. First and foremost, legislative acquiescence has been
repeatedly repudiated by this Court because it is as an exceptionally poor indicator of
legislative intent.31 When used in a case like this, the theory requires a court to intuit
30
Strangely enough, even though this case is one of statutory construction, the dissent
undertakes no effort whatsoever to interpret the actual words of the statute that we are
charged with interpreting, instead relying on a nonexistent prejudice requirement in
support of its conclusion. The dissent’s argument that this conclusion satisfies the intent
of the Legislature is, of course, belied by the actual words chosen by the Legislature.
31
See, e.g., Rowland, 477 Mich at 209 n 8; Donajkowski v Alpena Power Co, 460 Mich
243, 258-261; 596 NW2d 574 (1999), quoting Rogers v Detroit, 457 Mich 125, 163-166;
579 NW2d 840 (1998) (TAYLOR, J., dissenting); Autio v Proksch Constr Co, 377 Mich
517, 527-539; 141 NW2d 81 (1966); Van Dorpel v Haven-Busch Co, 350 Mich 135, 145-
19
legislative intent not by anything that the Legislature actually enacts, but by the absence
of action.32 Yet “a legislature legislates by legislating, not by doing nothing, not by
keeping silent.”33 Thus, the doctrine of legislative acquiescence “is a highly disfavored
doctrine of statutory construction; sound principles of statutory construction require that
Michigan courts determine the Legislature’s intent from its words, not from its silence.”34
149; 85 NW2d 97 (1957), quoting in part Sheppard v Mich Nat’l Bank, 348 Mich 577,
599; 83 NW2d 614 (1957) (SMITH, J., concurring).
32
The dissent’s own language demonstrates how amorphous and unprincipled the theory
of legislative acquiescence is. The dissent reasons that “‘[t]here was the possibility of
change. Because it did not occur, it is reasonable to deduce that the Legislature’s
inaction has been intentional.’” Post at 6, quoting Rowland, 477 Mich at 263 (MARILYN
KELLY, J., concurring in part and dissenting in part). We find nothing whatsoever
reasonable about this “deduction” that the failure to act on a mere “possibility” of change
necessarily equates to affirmative approval. See Donajkowski, 460 Mich at 259-260(setting forth more than a dozen reasons why a legislature may fail to correct an
erroneous judicial decision).
33
Wycko v Gnodtke, 361 Mich 331, 338; 105 NW2d 118 (1960).
34
Donajkowski, 460 Mich at 261.
Notably, the dissent ascribes no significance to the fact that Rowland has been the
law of this state for approximately five years, and in that time the Legislature has not
acted to add prejudice requirements to various statutory notice provisions. Apparently
for the dissent, the Legislature’s alleged acquiescence in the decisions overruled by
Rowland is deserving of greater deference here than any current “acquiescence” in the
governing construction. Compare also People v Lown, 488 Mich 242; 794 NW2d 9
(2011) (MARILYN KELLY, J., dissenting), in which the dissenting justice argued that the
Court should overrule a 1959 decision of this Court interpreting MCL 780.131 and MCL
780.133 without any mention or apparent regard of more than 50 years of legislative
“acquiescence” in that decision. We are unclear what principle demarcates when the
theory should be selectively employed as dispositive of legislative intent in one case but
not another, and the dissent does not take this opportunity to elucidate. Cf. Paige v
Sterling Hts, 476 Mich 495, 516-518; 720 NW2d 219 (2006) (criticizing the dissent’s
“undeniably inconsistent” use of legislative acquiescence); Autio, 377 Mich at 527-539(criticizing the “selective invocation” of legislative acquiescence). Indeed, the theory
20
Notwithstanding these inherent problems with the theory of legislative
acquiescence, its use in this case is particularly unavailing. As we explained in Rowland,
“[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.”35 This reasoning applies with equal force here. As noted earlier, the pre-
Rowland cases instituted prejudice requirements for statutory notice provisions on the
mistaken belief that those requirements were necessary as a matter of constitutional law.
As the dissent is well aware, “[c]onstruction of the Constitution is the province of the
courts and this Court’s construction of a State constitutional provision is binding on all
departments of government, including the legislature.”36 As a result, one can hardly
equate the Legislature’s inaction with legislative approval of the pre-Rowland judicial
prejudice requirement given that this Court’s pre-Rowland decisions mandated the
prejudice requirements for notice provisions lest they be struck down as
unconstitutional.37 Thus, the dissent relies on a Catch-22: that the Legislature
appears to be employed in certain quarters primarily as “another way of sustaining
forever any precedent, no matter how wrongly decided,” Robertson v DaimlerChrysler
Corp, 465 Mich 732, 760 n 15; 641 NW2d 567 (2002), and in this regard it is truly “a
pernicious evil designed to relieve a court of its duty of self-correction,” Autio, 377 Mich
at 527.
35
Rowland, 477 Mich at 213 (emphasis added).
36
Richardson v Secretary of State, 381 Mich 304, 309; 160 NW2d 883 (1968).
37
The dissent nevertheless persists in this argument, curiously asserting that “the
Legislature could have amended notice requirements in conformity with Hobbs and
21
“acquiesced” in constructions of statutes that this Court deprived it of the power to
amend.38 The striking illogic of this argument demands that it once again be repudiated,
as it was in Rowland.
V. CONCLUSION
Plaintiff’s accident occurred on December 12, 2007. Because her action is for
personal injuries, MCL 600.6431(3) required that she file her claim or a notice of intent
to file her claim “with the clerk of the court of claims” within six months, or by June 12,
2008. She did not file notice with the clerk until October 31, 2008. Because plaintiff did
Brown and chose not to do so.” Post at 11. Yet it would be more than passing strange
for the Legislature to amend notice statutes “in conformity with Hobbs and Brown” if the
amendments that the Legislature wanted were the opposite of what would have been
constitutionally permitted by those cases.
38
The dissent bemoans the fact that we criticize its use of legislative acquiescence,
asserting that “[j]udges are free to pick and choose the interpretive tools with which they
engage in statutory interpretation.” Post at 7 n 22. Whatever the merits of this argument,
where our dissenting colleague can provide no generalized theory that allows one to
predict when she will or will not invoke legislative acquiescence, it is perfectly
appropriate to highlight the problems with the dissenting justice’s methodology of
deciding cases. Not all methods of interpretation are of equal value, and highlighting the
problems seems particularly appropriate when the method employed results in a
construction that is contrary to clear statutory language, as is the case here.
22
not comply with the plain language of the notice filing requirement provided in MCL
600.6431, that statute precludes her from maintaining her claim against the university.
The decision of the Court of Appeals is affirmed.
Robert P. Young, Jr.
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
23
STATE OF MICHIGAN
SUPREME COURT
CHRISTINA McCAHAN,
Plaintiff-Appellant,
v No. 142765
SAMUEL KELLY BRENNAN,
Defendant,
and
UNIVERSITY OF MICHIGAN REGENTS,
Defendant-Appellee.
MARILYN KELLY, J. (dissenting).
The question presented in this case is similar to that in Atkins v Suburban Mobility
Authority for Regional Transportation 1 and is hardly novel. At issue is whether
plaintiff’s failure to comply with a statutory notice requirement mandates entry of
summary disposition in favor of defendant University of Michigan Regents. The
majority concludes that, consistently with Rowland v Washtenaw County Road
Commission, 2 MCL 600.6431 must be strictly enforced. Hence, the fact that plaintiff
provided actual notice to defendant rather than notice that complied in every detail with
1
Atkins v Suburban Mobility Auth for Regional Transp, ___ Mich ___; ___ NW2d ___
(Docket No. 140401, issued August 20, 2012).
2
Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731 NW2d 41 (2007).
the statute requires that her entire claim be dismissed. The majority further declares that
Rowland’s reasoning applies to all statutory notice or filing provisions, not just those in
MCL 600.6431. Because I disagree both with the majority’s application of MCL
600.6431 and its unrestrained extension of Rowland to statutes not before the Court, I
respectfully dissent.
ANALYSIS
The proper interpretation and application of statutory notice provisions like MCL
600.6341 3 have long occupied our courts. While early decisions of our Court strictly
construed notice provisions and allowed dismissal for failure to comply, 4 the Court
3
MCL 600.6431 provides:
(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.
I agree with the majority’s underlying conclusion that a reasonable person reading the
statute would understand that subsections (1) and (3) are related and interdependent.
Accordingly, the statute provides a six-month period for a plaintiff to file notice of an
impending claim in the Court of Claims.
4
See, e.g., Davidson v City of Muskegon, 111 Mich 454; 69 NW 670 (1897).
2
changed course in 1970 in Grubaugh v City of St Johns. 5 In Grubaugh, the Court dealt
with a statutory provision that required a plaintiff to give a governmental defendant
notice of a claim within 60 days of the incident underlying the lawsuit. The Court
determined that the provision violated the Due Process Clause of the state constitution. 6
Two years later, in Reich v State Highway Department, the Court extended
Grubaugh and held that a statute that included a 60-day notice provision was
unconstitutional on equal protection grounds. 7 We reasoned that the state and federal
constitutions forbid treating those injured by governmental negligence differently from
those injured by a private party’s negligence. 8
The next year, in Carver v McKernan, 9 the Court considered the application of a
six-month notice provision in the Motor Vehicle Accident Claims Act. 10 The Court
retreated somewhat from Grubaugh’s and Reich’s holdings that statutory notice
provisions are per se unconstitutional. Carver held that the notice provision at issue in
that case was constitutional, and thus enforceable, but only if the plaintiff’s failure to give
notice prejudiced the party receiving the notice. 11 The Court opined that while some
5
Grubaugh v City of St Johns, 384 Mich 165; 180 NW2d 778 (1970).
6
Id. at 176.
7
Reich v State Hwy Dep’t, 386 Mich 617, 623-624; 194 NW2d 700 (1972).
8
Id.9
Carver v McKernan, 390 Mich 96; 211 NW2d 24 (1973).
10
MCL 257.1118.
11
Carver, 390 Mich at 100.
3
notice provisions may be constitutionally permitted, others may not be, depending on the
purpose served by the notice requirement. 12 The Court explained that if the notice
provision served some purpose other than to prevent prejudice, it could be considered an
unconstitutional legislative requirement. 13
Three years later, in Hobbs v Department of State Highways, 14 the Court
reaffirmed the reasoning of Carver. Considering a 120-day notice requirement in the
governmental tort liability act, 15 the Court held:
The rationale of Carver is equally applicable to cases brought under
the governmental liability act. Because actual prejudice to the state due to
lack of notice within 120 days is the only legitimate purpose we can posit
for this notice provision, absent a showing of such prejudice the notice
provision contained in [MCL 691.1404] is not a bar to claims filed [under
the act].[16]
Thus, Hobbs continued to employ a prejudice standard when construing statutory notice
provisions.
Twenty years later, in Brown v Manistee County Road Commission, 17 the Court
reconsidered the propriety of Hobbs. We concluded that the statute at issue in that case
was unconstitutional, reasoning that we were “unable to perceive a rational basis for the
12
Id.13
Id.14
Hobbs v Dep’t of State Hwys, 398 Mich 90; 247 NW2d 754 (1976).
15
MCL 691.1404.
16
Hobbs, 398 Mich at 96.
17
Brown v Manistee Co Rd Comm, 452 Mich 354; 550 NW2d 215 (1996).
4
county road commission statute to mandate notice of a claim within sixty days.” 18 We
further reasoned that there was no legitimate reason to subject some claimants to a 60-day
notice period and others to a 120-day notice period.
Nonetheless, in 2007, four justices of the Court issued Rowland and upended
Hobbs, Brown, and their progeny as wrongly decided. 19 Those justices concluded that
Hobbs and Brown erroneously read actual prejudice requirements into statutory notice
provisions and, in doing so, usurped the Legislature’s power to mandate timely notice to
defendants. I dissented with respect to the Court’s decision to overrule Hobbs and
Brown. I opined that the Court did not need to reach the validity of those cases in
deciding Rowland but, in any event, that they had been properly decided. I stated:
Even if it were proper to reach the 120-day notice requirement in
this case, it would not be appropriate to overturn Hobbs and Brown.
Together, these cases represent 30 years of precedent on the proper
meaning and application of MCL 691.1404. Such a considerable history
cannot be lightly ignored. And the Legislature’s failure to amend the
statute during this time strongly indicates that Hobbs and Brown properly
effectuated its intent when enacting MCL 691.1404(1).
The primary goal of statutory interpretation is to give effect to
legislative intent. In both Hobbs and Brown, the Court identified the intent
behind the notice provision as being to prevent prejudice to a governmental
agency. [In Brown, the Court held that] [a]ctual prejudice to the state due
to lack of notice within 120 days is the only legitimate purpose we can posit
for this notice provision . . . . For 20 years, the Legislature knew of this
interpretation but took no action to amend the statute or to state some other
purpose behind MCL 691.1404(1). The Court then readdressed the statute
in Brown and came to the same conclusion regarding the purpose behind
MCL 691.1404(1).
18
Id. at 363.
19
Rowland, 477 Mich at 210-213.
5
Another ten years have passed, but still the Legislature has taken no
action to alter the Court’s interpretation of the intent behind the statute.
This lack of legislative correction points tellingly to the conclusion that this
Court properly determined and effectuated the intent behind MCL
691.1404(1). If the proper intent is effectuated, the primary goal of
statutory interpretation is achieved.
* * *
Moreover, if the Legislature truly desired a hard and fast 120-day
limit, it could have rewritten the statute to contain a presumption of
prejudice. Alternatively, it could have defined actual prejudice in the
statute to be more restrictive than Hobbs found it to be. There was the
possibility of change. Because it did not occur, it is reasonable to deduce
that the Legislature’s inaction has been intentional.[20]
I continue to stand by my partial dissent in Rowland and believe that, in toppling
decades of settled caselaw, the Court acted improperly. 21 I would hold, consistently with
Hobbs and Brown, that preventing actual prejudice to a defendant due to lack of notice is
20
Id. at 258-259, 263 (MARILYN KELLY, J., concurring in part and dissenting in part)
(quotation marks and citations omitted).
21
I am cognizant that Rowland garnered a bare majority of the Court when decided in
2007. But I did not sign that opinion. By standing by my opinion concurring in part and
dissenting in part in Rowland, I am not ignoring precedent. Rather, I am consistently
recommending the application of the proper interpretation and application of statutory
notice provisions. This is not an avant-garde concept. See, e.g., People v Pearson, 490
Mich 984 (2012) (YOUNG, C.J., dissenting), in which Chief Justice YOUNG stood by his
partial dissent in People v Bonilla-Machado, 489 Mich 412; 803 NW2d 217 (2011), and
recommended against applying Bonilla-Machado despite its controlling effect.
The majority claims that “this case is not a basis to relitigate Rowland.” Ante at
17. I find this statement difficult to fathom considering that the majority relies entirely
on an extension of the principles espoused in Rowland and “take[s] this opportunity to
reaffirm [it].” Ante at 2. The majority’s claim in this regard is also belied by its explicit
reliance on the arguments made by the Rowland majority in part III of its opinion.
6
the primary legitimate purpose of statutory notice provisions. 22 Consequently, a suit may
be dismissed for lack of notice only when a defendant has been prejudiced by a plaintiff’s
noncompliance.
In this case, plaintiff provided actual notice to defendant; she failed to provide the
notice of intent to bring suit within the six-month period required by MCL 600.6431(3).
Applying to it the reasoning of Hobbs, Brown, and my partial dissent in Rowland, I
would hold that defendant was not prejudiced by this failure. This is apparent for several
reasons.
First, less than five months after the underlying accident, on May 7, 2008,
plaintiff’s counsel sent a letter to the University of Michigan’s legal office. That letter
indicated counsel’s intent to represent plaintiff in a lawsuit against defendant.
Second, three weeks later, on May 28, 2008, the university’s senior claims
representative from the Office of Risk Management Services replied to counsel’s letter.
The representative advised plaintiff’s counsel that the university intended to conduct a
full investigation into plaintiff’s accident. Furthermore, the representative requested
22
The majority is troubled by my reliance on legislative acquiescence as support for my
conclusion that the Legislature approved of the pre-Rowland line of cases. See ante at 19-
20. Judges are free to pick and choose the interpretive tools with which they engage in
statutory interpretation. While four members of this Court may prefer not to consider
legislative acquiescence, the tool has a deep-rooted history in the United States Supreme
Court as well as in this Court. See, e.g., Shepard v United States, 544 US 13, 23; 125 S
Ct 1254; 161 L Ed 2d 205 (2005); Douglass v Pike Co, 101 US (11 Otto) 677, 687; 25 L
Ed 968 (1880); Twork v Munising Paper Co, 275 Mich 174, 178; 266 NW 311 (1936);
see also Rowland, 477 Mich at 260-261 (MARILYN KELLY, J., concurring in part and
dissenting in part). Despite the majority’s recent rejection of the doctrine, see People v
Likine, 492 Mich ___, ___; ___ NW2d ___, slip op at 40 n 96 (Docket Nos. 141154,
141181, and 141513, issued July 31, 2012), it remains a valid interpretive aid.
7
additional information, including a statement by plaintiff, medical records, medical bills,
and other details pertaining to the accident. The representative’s letter stated that once a
full investigation was complete, the university would discuss resolution of plaintiff’s
claim. The representative also sent the letter to the university’s assistant general counsel.
Third, on June 9, 2008, plaintiff agreed to meet with the representative to provide
a statement describing her accident. She did so and left a copy of all documentary
materials available at that time, including the police report and medical records. In
September and October 2008, plaintiff provided new documentation of her injuries and
treatment to the representative.
The information plaintiff provided put defendant on notice of plaintiff’s claim
against it. This is not a case of a failure to substantially comply with a notice
requirement. Plaintiff substantially complied with MCL 600.6431(3) and, as the record
indicates, defendant was actually aware that plaintiff had retained counsel to pursue a
lawsuit against it. Defendant was also fully apprised of all details relevant to plaintiff’s
suit within the six-month period following her accident. Indeed, through its
representative, defendant actively communicated with plaintiff and her counsel within the
six-month-notice period. Accordingly, defendant had actual notice of her claim.
Moreover, it suffered no prejudice when plaintiff filed notice of its lawsuit in the Court of
Claims several months after expiration of the six-month-notice period. I reject the notion
that slavish adherence to form must be shown in this case when the legislative purpose of
the notice requirement was so clearly fulfilled.
8
The majority also applies Rowland’s reasoning to all similar statutory notice
provisions, even those not presently before the Court. 23 I disagree. Our Court resolves
disputes on a case-by-case basis and does not issue rulings regarding statutes or issues not
before it. To the extent that the Court attempts to construe statutes that are not at issue in
this case by extending Rowland’s reasoning, its attempt amounts to nothing more than
dicta.
RESPONSE TO THE MAJORITY
The majority notes that the Legislature has not amended various statutory notice
provisions during the five years since Rowland was decided. It concludes that my dissent
should acknowledge that the Legislature has thereby acquiesced in no prejudice
requirement being attached to these provisions.
But the majority ignores an important fact: Rowland applied to the notice
provision in the highway exception to governmental immunity. 24 No other notice
provision. In fact, the majority admits that, at best, any broader application has been
unclear during these past five years. 25 If the Legislature did not know that Rowland
applied to the notice provisions of the Court of Claims Act, it can hardly be said to have
acquiesced in the Court’s having removed a prejudice component from those provisions.
The majority criticizes me for refusing to disregard the obvious fact that defendant
here had actual and timely notice that fulfilled the intent of MCL 600.6431. Moreover, it
23
See ante at 17.
24
See MCL 691.1404(1).
25
See ante at 15-16.
9
is unconcerned that defendant can show no prejudice whatsoever in not receiving
additional notice that conformed to the letter of the provision.
The majority also accuses me of selectively applying the doctrine of legislative
acquiescence to suit an intended result. 26 In so doing, the majority invests my dissent
with a position it has never taken and then belittles the dissent for having taken it. I have
never taken the position that, if the Legislature does not amend a statute after the Court
interprets it, the Legislature must be held to have acquiesced in the Court’s interpretation.
Rather, my position is that the Legislature’s failure to amend is evidence of acquiescence;
it is not conclusive proof.
Legislative acquiescence is a tool, a factor to be weighed in the balance when the
Court interprets a statute. When the Court’s interpretation is longstanding, clear, and
well understood, as in the case of Hobbs and Brown, which Rowland overturned, the
doctrine of legislative acquiescence should weigh more heavily. Contrast that with cases
in which the Court’s interpretation is longstanding but has been heavily eroded by
subsequent rulings. That was the condition of People v Hendershot, 27 which I would
have overruled in People v Lown. 28 The doctrine of legislative acquiescence weighed
less heavily on the scales in Lown.
26
Ante at 22 n 38.
27
People v Hendershot, 357 Mich 300; 98 NW2d 568 (1959).
28
People v Lown, 488 Mich 242, 282-287; 794 NW2d 9 (2011) (MARILYN KELLY, J.,
dissenting).
10
The majority further asserts that this Court’s pre-Rowland decisions mandated a
prejudice component in notice requirements lest they be struck down as unconstitutional.
Hence, it reasons, the Legislature could not have amended notice provisions to eliminate
a prejudice component. But the majority fails to realize that the Legislature could have
amended notice requirements in conformity with Hobbs and Brown and chose not to do
so. The majority’s argument here was also made in criticism of my dissent in Rowland. 29
My response is the same now as it was then.
The majority also criticizes me for failing to provide a “generalized theory that
allows one to predict when [I] will . . . invoke legislative acquiescence . . . .” 30 I find that
its preference for a generalized theory to predict when I will invoke legislative
acquiescence is an invitation to a field trip. Accepting it would only draw me away from
the pertinent question: did the notice plaintiff gave defendant in this case satisfy the
Legislature’s intent in enacting MCL 600.6431? I have shown that it did.
CONCLUSION
I would reverse the judgment of the Court of Appeals. I would hold that plaintiff’s
failure to file notice of her suit in the Court of Claims within six months of the incident
giving rise to her suit does not mandate summary disposition in favor of defendant.
Defendant had actual timely notice and was not prejudiced by plaintiff’s failure to file the
29
See Rowland, 477 Mich at 209 n 8.
30
Ante at 22 n 38.
11
notice described in MCL 600.6431. The intent of the Legislature was satisfied. For these
reasons, the Court should set aside the grant of summary disposition and remand
plaintiff’s case to the trial court for further proceedings. Accordingly, I respectfully
dissent.
Marilyn Kelly
Michael F. Cavanagh
Diane M. Hathaway (except for
the part entitled “Response to
the Majority”)
12