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In The News

Monday, June 7, 2021

The Michigan Supreme Court has Eliminated a Very Tough Bar to the Door of Justice When County Roads are Defective

By Michael Nichols
Categories: Wrongful Death

Justice is Served within 120 days of the Crash

By Matthew J. Heos

The Michigan Supreme Court has reversed a troubling short-term precedent of a prior era (which itself was a reversal) in a major ruling that will affect certain personal injury cases against county governments in a big way. The Court of the late 90’s, early 2000’s that was led by former Chief Justice Cliff Taylor (the “Taylor Court”) habitually changed long-held standards that benefited injured people in its time. Some of these rulings were ultimately overturned such as Kreiner v Fisher, 471 Mich. 109, 130–131; 683 NW2d 611 (2004), which reversed McCormick v Carrier, 487 Mich. 180; 795 NW2d 517 (2010) and Michigan Citizens for Water Conservation v Nestle Waters North America Inc. 479 Mich 280, 737 NW2d 447 (2007) overruled by Lansing School Education Association v Lansing Board of Education, 487 Mich 349, 792 NW2d 686 (2010). The trend of the Taylor Court was to limit a plaintiff’s access to the courts in a variety of causes of action whether personal injury or environmental in nature. The current Michigan Supreme Court continued the trend of reversals for the Taylor Court in the Estate of Pearce v Eaton County Road Commission et al, 2021 Mich LEXIS 1037 (2021). Pearce reaffirmed the old jurisprudence, stating that the GTLA’s 120-day notice of intent requirement was constitutional and that there was no rational basis for the 60-day notice requirement per MCL 224.21.

Michigan has three statutes governing notice of intent relative to tort liability against governmental entities. MCL 691.1402 which addresses liability due to a defective highway, provides a 120-day period within which a potential litigant must serve notice of intent on the governmental entity having jurisdiction of the highway in question. However, MCL 691.1402 refers to MCL 224.21 for cases involving a county road commission, which provides for a 60-day period within which a litigant must serve notice of an intent to sue upon the county clerk and the chairman of the board of road commissioners. For unknown reasons, county road commissions somehow had superior status to all other governmental entities and litigants pursuant to that act according to the Taylor Court, which upheld the validity of the 60 day notice provision even though it was half the time to which any other governmental entity was entitled to receive.

Also, MCL 691.1404, again dealing with the highway exception to governmental immunity, provides a 120-day period, which contradicts the exception contained in MCL 224.21 (the statute for county roads). The question of which statute to obey was resolved when the Michigan Supreme Court struck down the 60-day notice requirement as it violated due process and equal protection in the cases of Grubaugh v City of St Johns, 384 Mich 165, 180 NW2d 778 (1970) and Reich v State Hwy Dep't, 386 Mich 617, 194 NW2d 700 (1972) respectively.

In Grubaugh, the plaintiff was seriously injured in a car crash rendering him unconscious, blind, and serious skull fractures. Grubaugh at 168. Grubaugh was admitted to the hospital on March 14, 1961 and released on April 2, 1961. His notice of intent was filed on September 6, 1961, and the case the following year. Id. The Court said “…we conclude that the cause of action here pleaded by plaintiff was an accrued vested right and, as such, is Pari causa with traditional proprietary rights and is to be equally protected from arbitrary interference.” Id at 175.

The Reich Court opined:
“The object of the legislation under consideration is to waive the immunity of governmental units and agencies from liability for injuries caused by their negligent conduct, thus putting them on an equal footing with private tort-feasors. However, the notice provisions of the statute arbitrarily split the natural class, i.e., all tort-feasors, into two differently treated subclasses: private tort-feasors to whom no notice of claim is owed and governmental tort-feasors to whom notice is owed.
This diverse treatment of members of a class along the lines of governmental or private tort-feasors bears no reasonable relationship under today's circumstances to the recognized purpose of the act. It constitutes an arbitrary and unreasonable variance in the treatment of both portions of one natural class and is, therefore, barred by the constitutional guarantees of equal protection.” Reich at 623.

Then in 2007, the Taylor Court overruled Hobbs, Grubaugh and Reich in Rowland v Washtenaw County Road Commission, stating that the former Court was “…simply incorrect…” casting aside decades of jurisprudence. Rowland, 477 Mich 197, 207; 731 NW2d 41 (2007). Justice Cavanagh dissented stating:

“It is disingenuous for the majority to characterize Grubaugh as an aberration, while implying that the previous decisions of this Court had endorsed the constitutionality of the notice statutes with an “implicit” rational basis review. Ante at 47. This Court does not ordinarily rule on the constitutionality of a statute if the question of its constitutionality was not raised in the lower court or this Court. Ridenour v Bay Co, 366 Mich 225, 243, 114 NW2d 172 (1962). The question presented in Moulter v Grand Rapids, 155 Mich 165, 118 NW 919 (1908), was one of statutory construction, not constitutionality; while the appealing party claimed that the notice provision was unreasonable and void, we disclaimed any authority to decide the statute's reasonableness. Id. at 169, 118 NW 919. If we had actually engaged in a rational basis review of the notice statute in Moulter, the reasonableness of the statute would have been a fundamental part of the inquiry. The test to determine whether legislation enacted pursuant to the police power comports with due process is whether the legislation bears a reasonable relation to a permissible legislative objective. Shavers v Attorney General, 402 Mich 554, 612, 267 NW2d 72 (1978).

Unlike Moulter and its successors, Grubaugh undertook a thorough constitutional analysis of the notice requirements of the general highway statute. This Court concluded that the notice provision of the general highway statute violated due process where it extinguished the claim of a plaintiff who was mentally or physically incapacitated during the notice period due to the alleged tortious act of a state or municipal defendant. Grubaugh, supra at 176, 180 NW2d 778. Because the case was disposed of on due process grounds, the equal protection argument was not examined. Id at 176–177, 180 NW2d 778.

Shortly after Grubaugh, we considered a broader constitutional challenge to a 60–day notice provision of the general highway statute in Reich v State Hwy. Dep't, 386 Mich 617, 194 NW2d 700 (1972). This Court followed Grubaugh in holding that the statute violated due process as applied to minors. Reich, supra at 622, 194 NW2d 700. As for the remaining plaintiffs, who were presumably competent adults, we held that the notice provision violated equal protection because it arbitrarily and unreasonably split victims into two differently treated subclasses: victims of governmental negligence and victims of private negligence. Id at 623, 194 NW2d 700.”

Id at 273 – 274.

The Rowland Court imported what is known as a rational basis test to overrule Hobbs and Brown which places that jurisprudence on a weak foundation and revived an unconstitutional statute – MCL 224.21(3). The issue is not whether MCL 224.21(3) passes rational basis scrutiny, rather, the question is whether the same satisfied the due process and equal protection clauses of the state and federal constitutions, which it does not.

A recent string of cases has followed the Rowland precedent relative to MCL 691.1404 and MCL 224.21(3). Streng v Board of Mackinac County Road Com’rs, 315 Mich App 449, 890 NW2d 680 (2016); Brugger v Midland Co Bd of Rd Commr’s, 324 Mich App 307, 920 NW2d 388 (2018); and Harston v County of Eaton, 324 Mich App 549, 554 – 555; 922 NW2d 391 (2018). This line of cases proscribes the harshest possible interpretation of law. What Rowland and this line of cases fails to address is the ruling in Meredith v City of Melvindale, 381 Mich 572, 580, 165 NW2d 7, 11 (1969), that “…only substantial compliance with the notice provision of a statute or charter.” (internal citations omitted).

Now that Justice has prevailed once again, litigants can rely upon the 120-day notice of intent period per the GTLA. The confusion wrought by the Taylor Court is slowly being corrected and the holding in Pearce is another step in the right direction.

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Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

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