No “Prejudice Requirement” or Other Judicial Constructs Can Nullify Strict Compliance with Statutory Notice Provisions to Perfect Claims Against the Government

On November 7, 2013, in Vega v. Gillette, et al., the Court of Appeals ruled a plaintiff who failed to file a notice of an intent to sue the state under MCL 600.6431(3) was barred from suing the government under the motor vehicle exception, MCL 691.1404 of the Governmental Tort Liability Act (GTLA).  The plaintiff was injured when a vehicle driven by a state employee rear-ended the plaintiff’s vehicle in snowy conditions.

Plaintiff’s accident occurred on February 12, 2008.  Suit was not filed until February 2, 2010, almost two years later and well outside the six-month statutory notice provision in MCL 600.6431(3).

It was undisputed plaintiff failed to provide a “notice of intent” to file a claim with the clerk of the court of claims as required by MCL 600.6431(3).  However, plaintiff argued the law at the time of the accident was unclear concerning whether the government had to suffer “actual prejudice” as a result of the failure of a plaintiff to file an notice of intent to file a claim under MCL 600.6431(3).

On August 20, 2012, the Michigan Supreme Court issued back-to-back opinions in Atkins v. SMART, 492 Mich. 707 (2012) and McCahan v. Brennan, 492 Mich. 730 (2012), the former of which I briefed and argued in the Supreme Court on behalf of SMART.  See my previous post about these cases here:  Michigan Supreme Court Decisions in Atkins v. SMART and McCahan v. Brennan.  Those cases collectively applied the rule of law that in actions against governmental entities failure to strictly comply with statutory notice provisions will bar the ability of a plaintiff to file suit against the government.  See Rowland v. Washtenaw County Rd Comm’n, 477 Mich 197 (2007).  The Court dispensed with the notion that the rule of law from Rowland, supra, which applied to the notice provision in the highway exception to governmental immunity, MCL 691.1404(1) and MCL 691.1402(1), respectively, did not similarly apply to all other notice provisions in the statutory exceptions to governmental immunity.  In Atkins the Court addressed the 60-day notice provision applicable to actions against transportation authorities, MCL 124.419.  In McCahan, the Court addressed the six-month notice that was at issue in this case, which is required to file suit against the state and its subordinate entities, MCL 600.6431(3).

Here, while ruling that the rule enunciated in McCahan did not pronounce a new rule of law and therefore applied retroactively to bar the plaintiff’s suit, the Court of Appeals reaffirms that the concepts of “actual prejudice”, estoppel, waiver, and substantial compliance, inter alia, that have been relied on to except the failure to comply with notice provisions has been disavowed and should not form the basis to forgive a party’s failure to comply with these statutory prerequisites.

Despite the pronouncement of this clear rule from Rowland, supra, and as reconfirmed in Atkins, supra and McCahan, supra, some Court of Appeals panels have continued to formulate judicial theories that seek to allow a plaintiff to avoid the strict statutory prerequisites to filing suit against the government.  See, e.g., my post about one such case here:  “Substantial Compliance” Sufficient to Satisfy Notice Provision in Suit Against the Government.  And, despite the Supreme Court’s seemingly clear articulation that all such notice provisions are to be strictly applied and adhered to.  See my post explaining the fate of other such cases here:  Supreme Court Addresses Last Pending 60-Day Notice Case Peremptorily Reversing Court of Appeals.

As I have noted in these posts, and elsewhere, Lack of Notice to Sue Government Is a Jurisdictional Bar to Lawsuits, my position with respect to statutory notice provisions is that they constitute an inherent affirmation of the jurisdictional principle of governmental immunity adhered to in Michigan.  Governmental immunity is an inherent attribute of government.  It is the state that created the courts, and so, the state and its subordinate governmental entities are not subject to the judicial branch absent an express waiver of the preexisting immunity inherent in the government’s activities.

Only the Legislature, as the representative of the People, can delineate when the government may be hailed into a court of law to answer for alleged injuries arising out of governmental activities.  Absent strict compliance with notice provisions and all terms and conditions of these statutory exceptions to immunity, a court of law simply does not have subject matter jurisdiction to entertain the plaintiff’s suit.  I have argued this principle in the Supreme Court on several occasions.  Although the Court has yet to address the primary jurisdictional contention, its opinions in cases like Rowland, Atkins, and McCahan intimate the government’s suit immunity is indeed jurisdictional.  Hence, the Court’s willingness to allow suits to be barred regardless of any apparent failure to comply with statutory preconditions, no matter how small or insignificant they may seem to be.  I first presented this argument in an amicus curious brief in the case of Pollard v. SMART, (see my post about it here:  Amicus Curiae Brief in Pollard v. SMART Argues Government’s Suit Immunity is Jurisdictional and Failure to Comply with Statutory Notice Provisions Deprives Courts of Law with Subject-Matter Jurisdiction to Entertain Merits of the Suit and the argument became a central part of my later presentation to the Court on behalf of SMART in the Atkins case.

Many other states more clearly pronounce the jurisdictional principle in addressing failure of notice on the part of plaintiffs seeking to file suit against the government.

Feel free to call Carson J. Tucker, Chair of the Appeals and Legal Research Group at Lacey & Jones, LLP at (248) 283-0763 if you have any questions about any of these cases.

Throughout its storied history, Lacey & Jones has distinguished itself from other law firms by maintaining a robust Appeals and Legal Research Group.  Effective appellate representation demands different skills than those required by litigation attorneys.  Our appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, our seasoned appellate team is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.   We are experienced at navigating through the Michigan Court of Appeals and Supreme Court to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.  During the last three decades alone, the Appeals and Legal Research Group at Lacey & Jones has been responsible for over 150 published decisions in the Michigan Court of Appeals and Supreme Court, including seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.  Because of its specialized knowledge and focus on appellate law and its recognized expertise, the Appeals and Legal Research Group at Lacey & Jones has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to the Michigan Attorney General and other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.   Below are some of the recent significant cases in which Lacey & Jones, LLP’s Appeals and Legal Research Group has participated.

• Hamed v. Wayne County, et al., 490 Mich. 1 (2011), reversing Court of Appeals published opinion after being briefed and argued by Carson J. Tucker on behalf of Wayne County
• Odom v. Wayne County, et al., 482 Mich. 459 (2008), reversing Court of Appeals after being briefed and argued by Carson J. Tucker on behalf of Wayne County and Wayne County Sheriff and Deputies
• Michigan Department of Transportation v Employers Mutual Casualty Co, et al., 481

  Mich. 862 (2008), reversing Court of Appeals after being briefed and argued on application by Carson J. Tucker for Trucking Company and Insurer

• Nuculovic v. Hill and SMART, 287 Mich. App. 58 (2010), briefed by Carson J. Tucker for SMART
• Molnar v. Amy Allen, Oakland County Care House, et al, 359 Fed. Appx. 623 (6th Cir. 2009), affirming district court’s judgment in favor of client represented by Carson J. Tucker
• Molnar v. Amy Allen, Oakland County Care House, et al., Case No. 09-1536 (2009), successful defense of application to United States Supreme Court by Carson J. Tucker
• Wetherill v. McHugh, et al., Case No. 10-638 (2011), co-draft response on behalf of South Dakota National Guard to petition for appeal to United States Supreme Court, cert denied by Supreme Court.