The opinion
HOEKSTRA, P.J.
(concurring in part and dissenting in part). I concur with the result reached by the majority to reverse, but respectfully disagree with its conclusion that McCahan v Brennan, 291 Mich App 430 ; 804 NW2d 906 (2011), was wrongly decided. To the contrary, I would hold that McCahan was correctly decided. Consequently, I disagree with the majority’s invoking of the conflict resolution procedure, MCR 7.215(J)(2).
Both here and in McCahan , the defendants’ only argument for dismissal was that the plaintiffs in these cases failed to file with the clerk of the Court of Claims within six months of the accident a notice of intention to file a claim, as required by MCL 600.6431(3). 1 In both cases, the plaintiffs sought to excuse their failure to comply with the six-month requirement by arguing that their lack of compliance did not prejudice the defendants. In deciding this issue, the Court in McCahan addressed whether the Supreme Court’s holding in Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731 NW2d 41 (2007), that enforcement of the notice provi *659 sion of MCL 691.1404 2 was not contingent on a showing of prejudice, should apply to MCL 600.6431. It concluded:
While Rowland did directly deal with a claim arising under the defective-highway exception to governmental immunity, we, like Justice CORRIGAN [in her statement in Beasley v Michigan, 483 Mich 1025, 1028 (2009)], are not persuaded that the Rowland rationale is somehow limited to MCL 691.1404. Indeed, one of the cases that Rowland reviewed and rejected, Carver v McKernan, 390 Mich 96 ; 211 NW2d 24 (1973), overruled by Rowland, 477 Mich 197 , dealt with a six-month notice requirement under the Motor Vehicle Accident Claims Act, MCL 257.1118. In rejecting Carver and other cases, Rowland stated that “[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.” Rowland, 477 Mich at 213 . Ultimately, Rowland, 477 Mich at 219 , concluded that “MCL 691.1404 is straightforward, clear, unambiguous, and not constitutionally suspect. Accordingly, we conclude that it must be enforced as written.” The same can be said of MCL 600.6431(3). [McCahan, 291 Mich App at 435-436 .]
I agree with that analysis.
MCL 691.1404(1) provides:
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 [MCL 691.1404(3)] shall serve a notice on the governmental agency of the occurrence of the injury and the defect. The notice shall specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.