Debra Fields v. Smart

STATE OF MICHIGAN

COURT OF APPEALS

DEBRA FIELDS, FOR PUBLICATION

June 25, 2015

Plaintiff-Appellant, 9:05 a.m.

v No. 318235

Wayne Circuit Court

SUBURBAN MOBILITY AUTHORITY FOR LC No. 12-014330-NI

REGIONAL TRANSPORT d/b/a SMART and

DAVID EARL GIBSON,

Defendants-Appellees.

Before: DONOFRIO, P.J., and FORT HOOD and SHAPIRO, JJ.

DONOFRIO, P.J.

This case arises out of a bus-automobile crash that occurred on April 17, 2010. Plaintiff

was operating the automobile, and the bus was owned by defendant Suburban Mobility Authority

for Regional Transport (SMART), a regional transportation authority, and driven by defendant

David Gibson. Plaintiff filed suit, alleging that the SMART driver’s negligence caused her

injuries. The trial court granted summary disposition in favor of defendants on the basis of

plaintiff not meeting the notice requirements of MCL 124.419, and plaintiff appeals as of right.

Because defendant SMART was not provided with written notice of plaintiff’s claim within 60

days of the accident, we affirm.

I. STANDARDS OF REVIEW

The grant or denial of summary disposition is reviewed de novo to determine whether the

moving party is entitled to judgment as a matter of law. Bennett v Detroit Police Chief, 274

Mich App 307, 310; 732 NW2d 164 (2006). “MCR 2.116(C)(7) tests whether a claim is barred

because of immunity granted by law, and requires consideration of all documentary evidence

filed or submitted by the parties.” Haliw v Sterling Heights, 464 Mich 297, 301-302; 627 NW2d

581 (2001) (quotation marks omitted). When deciding a motion for summary disposition under

MCR 2.116(C)(7), a court must consider the pleadings, affidavits, depositions, admissions, and

other documentary evidence submitted in a light most favorable to the nonmoving party. MCR

2.116(G)(5); Herman v Detroit, 261 Mich App 141, 143-144; 680 NW2d 71 (2004). “‘If there is

no factual dispute, whether a plaintiff’s claim is barred under a principle set forth in MCR

2.116(C)(7) is a question of law for the court to decide.’” Moraccini v Sterling Heights, 296

Mich App 387, 391; 822 NW2d 799 (2012), quoting RDM Holdings, Ltd v Continental Plastics

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Co, 281 Mich App 678, 687; 762 NW2d 529 (2008). “But when a relevant factual dispute does

exist, summary disposition is not appropriate.” Moraccini, 296 Mich App at 391. To the extent

that questions of statutory interpretation are present, we review those de novo. Aichele v Hodge,

259 Mich App 146, 152; 673 NW2d 452 (2003).

II. NOTICE UNDER MCL 124.419

Plaintiff contends that the trial court erred in granting defendants’ motion for summary

disposition because she provided the requisite notice under MCL 124.419.

Generally, governmental agencies in Michigan are statutorily immune

from tort liability. However, because the government may voluntarily subject

itself to liability, it may also place conditions or limitations on the liability

imposed. Statutory notice provisions are a common means by which the

government regulates the conditions under which a person may sue governmental

entities. It is well established that 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. [Atkins v Suburban

Mobility Auth for Regional Transp, 492 Mich 707, 714-715; 822 NW2d 522

(2012) (citations omitted).]

“The Metropolitan Transportation Authorities Act[, MCL 124.401 et seq.,] describes in

what manner liability may be imposed on a transportation authority for situations involving the

operation of a common carrier for hire.” Id. at 715. In this Act, MCL 124.419 provides the

following notice provision:

All claims that may arise in connection with the transportation authority

shall be presented as ordinary claims against a common carrier of passengers for

hire: Provided, That written notice of any claim based upon injury to persons or

property shall be served upon the authority no later than 60 days from the

occurrence through which such injury is sustained . . . . [Emphasis added.]

Hence, in order to bring a claim in derogation of governmental immunity, this statute requires

that any such claims must “be presented as ‘ordinary claims’ against the common carrier

involved.” Atkins, 492 Mich at 715. Further, if the claim involves injury to person or property,

written notice of the claim must be served on the authority within 60 days of the injury. Id.;

Nuculovic v Hill, 287 Mich App 58, 63; 783 NW2d 124 (2010).

In Nuculovic, this Court rejected the plaintiff’s claim that proper notice was given

because SMART received a copy of the police report and accident reports prepared by the

operator of the bus and his supervisor. Nuculovic, 287 Mich App at 66. The Court concluded

that, even though SMART had possession of police reports and reports prepared by SMART’s

employees, the plaintiff failed to formally deliver (serve) notice of her claim to SMART and,

therefore, the statutory notice requirement was not satisfied. Id. at 68. While the Court did

reference the court rules when analyzing what it meant to “serve,” we do not believe it was

requiring strict compliance with those rules as the only way to comply with MCL 124.419.

Instead, it used those rules as examples of how formal delivery could occur. Id. at 66-67. As a

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result, while strict compliance with the court rules may not necessarily be required, some kind of

“formal delivery” nonetheless is required. Id. at 67-68; see also Atkins, 492 Mich at 721.

The rule announced in Nuculovic that a plaintiff cannot rely on the internal documents of

a defendant transportation authority is sound. The relevant definition of “delivery” in the context

of “to serve” is “to give into another’s possession or keeping.” Random House Webster’s

College Dictionary (1997) (emphasis added). Thus, it is clear that a party cannot deliver

something to itself; it must deliver to another party. Consequently, a party’s internal creation

and handing of its own documents cannot constitute a “delivery” or “service” under MCL

124.419. Nuculovic, 287 Mich App at 68; see also Atkins, 492 Mich at 721 (stating that not

requiring a plaintiff to provide the written notice subverts the intent of the Legislature because it

would require SMART to anticipate and divine when an injured person is likely to file a suit and

then notify itself of this determination).

As a result, plaintiff’s claim similarly fails because there is no evidence that the

documents she relied on in opposing defendants’ motion for summary disposition were anything

other than SMART’s internal documents or police reports. At the trial court, plaintiff claimed in

her response to defendants’ motion for summary disposition that the following demonstrated that

she complied with MCL 124.419:

In addition to the report that is dated May 10, 2010 and presumed to be in the

possession of Defendant SMART, SMART employees Otis Daniel and Jacqueline

Owens both responded to the accident scene and completed an accident report

detailing their findings. (Ex. C). Moreover, and more importantly, an additional

SMART accident report was taken, which was time-stamped May 10, 2010, well

within the 60-day statutory requirement. (Ex. D.)

Plaintiff’s Exhibit C, indeed, is a “Road Supervisor’s Accident Investigation Report,” and is the

type of internal report that this Court has expressly rejected as being able to constitute written

notice under MCL 124.419. Nuculovic, 287 Mich App at 66, 68. The first page of plaintiff’s

Exhibit D is titled “SMART Transit Accident Report,” and the second page has a heading

“SMART Claimant and Injured Report.” Thus, it appears that these also are internal documents

and cannot be used to serve written notice of a claim under MCL 124.419. Id.

Plaintiff also argued at the trial court that her phone call within three weeks of the

accident to SMART’s insurer constituted notice under the statute. However, because the statute

requires written notice, clearly a conversation over a phone call cannot satisfy the notice

requirement. Plaintiff then avers that

[t]his telephone conversation was presumably memorialized in some written form

by Defendant SMART’s employee giving Defendant SMART notice that Plaintiff

intended to file a claim and what that claim would be.

Importantly, plaintiff provided no evidence that any document was generated from this phone

call. “‘[P]arties opposing a motion for summary disposition must present more than conjecture

and speculation to meet their burden of providing evidentiary proof establishing a genuine issue

of material fact.’” Detroit v Gen Motors Corp, 233 Mich App 132, 139; 592 NW2d 732 (1998),

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quoting Libralter Plastics, Inc v Chubb Group of Ins Cos, 199 Mich App 482, 486; 502 NW2d

742 (1993).

Because plaintiff provided no evidence that she (or anyone else) formally delivered or

served notice of her claim on SMART within 60 days of the accident, she failed to establish that

the statutory notice requirement was satisfied. See Nuculovic, 287 Mich App at 68. This case

also is analogous to Smith v Suburban Mobility Auth for Regional Transp, unpublished opinion

per curiam of the Court of Appeals, issued December 16, 2010 (Docket No. 294311), rev’d 493

Mich 906 (2012). In Smith, our Supreme Court adopted the dissenting opinion of Judge METER,

who would have held that plaintiff’s claims were barred because he admitted that he never sent

written notice to SMART. Smith, dissenting unpub op at 2 (METER, J., dissenting). Just like in

Smith, plaintiff in the instant case admitted that she never sent any written notice of any claim to

SMART within 60 days of the accident.

We also note that the Exhibit D that plaintiff relied on, which was a form that labeled

plaintiff as a “claimant,” would have been insufficient under MCL 124.419 even if the document

was not a SMART internal document because it did not give notice that an “ordinary claim” was

being pursued. While plaintiff’s name is listed next to the label “claimant,” the document does

not disclose that plaintiff is intending to pursue any actual claim, let alone an “ordinary claim,”

as opposed to a no-fault claim. See Atkins, 492 Mich at 717-718 (noting differences between

ordinary claims and first-party no-fault claims). In other words, the word “claimant,” with

nothing more, does not give notice as to what type of claim a plaintiff may be pursuing. The

concurrence’s suggestion that the statute does not require any specifics in the notice has been

rejected by our Supreme Court. In Atkins, the plaintiff provided written notice that he was

seeking first-party no-fault benefits. This Court held that this written notice, along with all the

aggregate information available to SMART, was sufficient to allow SMART to have notice that

an ordinary tort claim also could be pursued and reasoned that

[MCL 124.419] only requires notice of “a” claim, which it defined as the

aggregate of operative facts giving rise to an enforceable right. As a result,

reasoned the Court of Appeals, the statute only requires notice without any

additional specific requirements of what information must be included. [Atkins,

492 Mich at 712-713, citing Atkins v Suburban Mobility Auth for Regional

Transp, unpublished opinion per curiam of the Court of Appeals, issued October

22, 2009 (Docket No. 288461), pp 2-3.]

But the Supreme Court reversed and held that written notice of a no-fault claim was insufficient

to provide notice of a tort or “ordinary” claim. Atkins, 492 Mich at 718-720. Thus, the logical

import from Atkins is that notice must be somewhat specific, at least with respect to the type of

claim, and notice for one type of claim is insufficient to be notice for another type of claim.

Here, looking past the fact that the document at issue was never delivered to SMART, the word

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“claimant,” with nothing more, does not provide sufficient detail regarding what type of claim, if

any, she is pursuing, and it is therefore insufficient to provide notice under MCL 124.419.1

III. PREJUDICE

Next, plaintiff argues that even if the statutory notice requirements were not met,

summary disposition was not warranted because defendants were not prejudiced. This argument,

however, is without merit. In Trent v Suburban Mobility Auth for Regional Transp, 252 Mich

App 247, 253; 651 NW2d 171 (2002), abrogated by Rowland v Washtenaw Co Rd Comm, 477

Mich 197, 213; 731 NW2d 41 (2007) and McCahan v Brennan, 492 Mich 730, 733, 746-747;

822 NW2d 747 (2012), this Court held that a governmental agency asserting a statutory notice

provision must show actual prejudice. However, the Michigan Supreme Court disavowed this

holding, noting that the Court “has since held that 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,” and also noting that the cases on which Trent

relied were overruled. Atkins, 492 Mich at 719 n 21. Because “statutory notice requirements

must be interpreted and enforced as plainly written,” id. at 714-715, a showing of prejudice is not

required, and the trial court properly granted defendants’ motion for summary disposition.

IV. CONCLUSION

In sum, in responding to defendants’ motion for summary disposition, plaintiff argued

that the statute was satisfied by relying solely on police reports and SMART’s internal

documents. As these types of documents are inadequate to constitute served, written notice of a

claim, the trial court properly granted defendants’ motion for summary disposition. See

Nuculovic, 287 Mich App at 68. Since no evidence was provided that someone other than

SMART created the documents at issue, we need not address whether a writing from someone

other than plaintiff or SMART, such as SMART’s insurer, would have satisfied the statute.

Affirmed. Defendants, as the prevailing parties, may tax costs pursuant to MCR 7.219.

/s/ Pat M. Donofrio

/s/ Karen Fort Hood

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We note that our holding does not require a plaintiff to use any particular magic words such as

“ordinary tort claim,” “ordinary claim,” or “tort claim.” Instead, the written notice simply must,

somehow, convey to the defendant authority the nature of the claim.

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