Carson J. Tucker Files Supreme Court Application in Highway Defect Case

Law Offices of Carson J. Tucker filed an application in the Michigan Supreme Court on February 25 in the case of Menard v Imig requesting the Michigan Supreme Court to tie up loose ends in the interpretation of the notice provision in the Highway Exception to governmental immunity under the Governmental Tort Liability Act (GTLA), MCL 691.1401, et seq. Read our application here: ALTA.02.25.2020

We have been preparing, formatting and filing our briefs in the Court of Appeals and Supreme Court under Administrative Order 2019-6, which allows us to use all the readability and formatting tools of Adobe to create fully interactive and e-friendly briefs. As a former Supreme Court law clerk and an insurance coverage counsel, Mr. Tucker understands the convenience of having a fully interactive document with all file contents and citations referenced and linked for quick review. The ideal briefs (which we strive to create) will contain links to cases, links to the direct location (page and line) in the Appendix and/or accompanying attachments and indices and tables of contents that are fully interactive – meaning the reader can toggle back and forth to the references and have immediate confirmation and documentary support for our arguments and factual assertions, respectively. We can also use a larger, eye-friendly font!

Lawyer’s Weekly Chronicles Appellate Court Victory by Law Offices of Carson J. Tucker

The lawyer’s weekly recently published an article on the Menard v Imig case in which I successfully represented the Macomb County governmental defendants in the Court of Appeals, briefing and arguing this case addressing governmental immunity and the highway defect exception under the Governmental Tort Liability Act.

Macomb County Road Department Not Liable

 

Equitable Amendment of Complaint Allowed to Toll Statute of Limitations in Medical Malpractice Action Even Where Original Complaint Filed Prematurely Before Expiration of Mandatory Notice Period

The Court of Appeals has issued its conflict panel opinion in the case of Furr v. McLeod, M.D., et al.  

This is a case I previously wrote about in which the Court of Appeals convened a special conflict panel to determine whether the filing of an original complaint before the expiration of the mandatory notice period for medical malpractice actions can serve to toll the statute of limitations if the trial court allows a subsequent, untimely complaint to be filed adding parties.  In this case, the trial court allowed equitable amendment of the complaint despite the defect and thus allowed the action against the defendants to proceed despite the expiration of the two-year statute of limitations as against them.

The opinion is here:

Furr.v.McLeod.et.al.conflict.panel.coa.opinion

I previously wrote about the intricacies of this issue when discussing the original opinion.  That blog post is here:

Furr v. McLeod – Court of Appeals Requests Conflict Panel to Resolve Conflict Over Tolling of Statute of Limitations in Medical Malpractice Action

Given that the panel here is still split over the resolution of this issue, and actually acknowledges the Supreme Court is going to have to address it, I suspect there will be more to say on this case in the near future.

The underlying issue affects the timeliness of medical malpractice claims and the necessity of plaintiffs to strictly comply with the notice periods and filing deadlines of complaints.

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.

  • Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief to be filed after remand for Michigan Municipal League, et al., by Carson J. Tucker
  • State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
  • Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
  • Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
  • Huddleston v. Trinity Health, et al., ___ Mich ___ (201_), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
  • Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
  • Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
  • Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
  • Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
  • McMurtrie v Eaton Corp, 490 Mich 976 (2011)
  • Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
  • Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
  • Stokes v Chrysler, 481 Mich 266 (2008)
  • Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
  • Rakestraw v Gen Dynamics, 469 Mich 220 (2003)

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, suprawhich 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 Atkinssupra and McCahansupra, 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 RowlandAtkins, 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.

  • State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
  • Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae to be filed for MTA, et al., by Carson J. Tucker
  • Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
  • Huddleston v. Trinity Health, et al., ___ Mich ___ (201_), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
  • Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
  • Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
  • Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
  • Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
  • McMurtrie v Eaton Corp, 490 Mich 976 (2011)
  • Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
  • Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
  • Stokes v Chrysler, 481 Mich 266 (2008)
  • Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
  • Rakestraw v Gen Dynamics, 469 Mich 220 (2003)
  • Sington v Chrysler Corp., (2002)

Other appeal cases Carson Tucker has handled include

  • 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.

Notice of Intent to Sue Government Sent to Third Party Claims Administrator Insufficient to Invoke Exception to Governmental Immunity – Court of Appeals Publishes Decision Holds Notice to Third-Party Claims Administrator Insufficient to Give Government Notice of Claim of Defective Sidewalk

On August 1, 2013, the Court of Appeals released a decision for publication in the case of McLean v. City of Dearborn, clarifying the strict requirements that notice of a claim for defective sidewalks under the highway exception to governmental immunity must be served on the individuals authorized by the governmental immunity statute, not the third-party claims administrator.  Under MCL 691.1404 a plaintiff must provide the requisite specificity with their notice to a governmental entity to perfect a claim and to allow the courts to exercise subject matter jurisdiction over the underlying claim against the government.  Here, the Court rules the first notice plaintiff’s attorney sent to the governmental entity was insufficient in the degree of specificity required by the statute, failing to note the exact nature and location of the alleged defect.  The Court further rules, on the primary issue in the case, that a corrective notice letter sent to the governmental entity’s claims administrator was insufficient because it was not addressed and served upon the proper governmental entity or its agents for receipt of such notice.

The dissenting judge argued the court rules allow service upon a person authorized in writing or by law to receive such notice and there was at least a question of fact as to whether the particular claims administrator was so authorized.

The decision is published and garnered one dissent.  It is likely to be challenged in the Supreme Court.  However, recent trends in cases addressing notice provisions are leaning more towards the underlying notion that governmental immunity is jurisdictional in nature.  Therefore, any defect in the attempt to assert a claim against the government, be it technical or substantive, is deemed a failure of the party asserting the claim to prove the Legislature intended, in the particular case, to vest the judiciary with subject matter jurisdiction over claims against the government.  As the saying goes, the state, i.e., the sovereign created the courts and so is not subject to them or their jurisdiction without the expression of the people’s will to so submit.  Such expressions come from the Legislature in the few statutory exceptions available to pursue claims against the government in the Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq.  Absent strict compliance with these provisions, the courts simply cannot exercise jurisdiction over the merits  of the claim.

Although this jurisdictional theme has only been obliquely addressed, there is a clear line of precedent to support the theory and the common law of governmental immunity prevails still in Michigan absent express legislative waiver.  I argued Atkins v. SMART, 492 Mich. 708 (2012) before the high court in part on this theory.  While the Court reversed the lower court and ruled in our favor there, it did so on the notion that strict compliance is required with notice provisions waiving the government’s suit immunity.  It did not directly address the preclusive jurisdictional argument I presented; although courts may sua sponte challenge a lower tribunal’s exercise of subject matter jurisdiction over a particular case, even at the highest appellate level.

Michigan Court of Appeals Rules “Substantial Compliance” With Statutory Notice Provision Sufficient to Give Governmental Entity Sufficient Notice of Defect Under “Highway Exception” to Governmental Immunity

Although the Court of Appeals does not use the term “substantial compliance” in this case, it rules that there was enough information in the plaintiff’s communications to the City of Detroit to provide the city with proper notice of a defect in a sidewalk within the meaning of MCL 691.1404 (the notice provision concerning the “highway exception” to governmental immunity).

I have written many times on the issue of “strict” as opposed to “substantial” compliance with the notice provision.  I have also contended the jurisdictional prerequisite for a trial court to exercise subject-matter jurisdiction over a suit against the government, which include notice provisions, require strict compliance.

Any effort to collect distended factual information and evidence and use that conglomeration to effectively rule that the governmental entity “should have had” notice, rather than a showing that it actually did have the requisite notice with the degree of precise specificity required by the statute is, in my judgment, an unwarranted exercise of jurisdiction by courts of suits against the government.  Notwithstanding this jurisdictional principle of governmental immunity, which is adhered to in Michigan, the Supreme Court has rejected attempts to make an end run around a plaintiff’s strict compliance with the notice provision.

Yet, trial courts and the Court of Appeals continue to find ways to improvidently exercise jurisdiction over these cases.  The Court’s short opinion is attached here:  Curtis v. City of Detroit

Supreme Court Passes on Court of Appeals Ruling Holding “Substantial” or “Adequate” Compliance with Notice of a Road Defect was Sufficient to Withstand Government’s Immunity Motion

In a somewhat surprising move, the Michigan Supreme Court issued an order on May 1, 2012 allowing a Court of Appeals decision to stand in a case in which the latter court, in a 2-1 decision, ruled that notice of the location of a defect in a highway within the city of Lansing was sufficient.

I have written extensively on the issue of applying an equitable principle of “substantial” or “adequate” compliance to determine compliance with the strict notice provisions that are conditions precedent to access Michigan courts in lawsuits against the government.  Trial courts and the Court of Appeals will continue to apply such principles until the Supreme Court revisits the issue in these types of cases.

Read my prior post about this case and see the Court of Appeals opinion here:  Speelman v. City of Lansing.

The Supreme Court’s May 1, 2013 order denying leave is here:  Speelman Order.SCT.05.01.2013.

Court of Appeals Enforces Indemnity Agreement’s Duty to Defend Provision and Affirms Imposition of “Reasonable Settlement” Upon Nursing Services Company that Refused to Defend Hospital After Hospital Provided Notice

This opinion provides a classic example of the consequences of an indemnitor ignoring or refusing to take up the defense and then participate in a contractual indemnitee’s settlement discussions against a plaintiff in an underlying lawsuit.

The plaintiff in this case, the hospital, entered into an agreement with a nursing staff company, the defendant, wherein the latter agreed to defend and indemnify the hospital against “all demands, class actions, or causes of action based upon or arising out of the acts or omissions of” the nursing staff company.

Plaintiff in the underlying lawsuit, the estate of a deceased patient of the hospital, filed a wrongful death action against the hospital, alleging negligence and vicarious liability against the hospital “based on acts performed by the nursing staff” provided by the nursing staff company.

The hospital provided notice to the nursing staff company and provided it with a copy of the lawsuit.  The hospital also informed the nursing staff company of a scheduled facilitation and formally requested the nursing staff company to participate.  Despite receiving notice, the nursing staff company did not participate, nor did it take up the defense of the hospital pursuant to the indemnity agreement.

The hospital entered into a settlement agreement with the decedent’s estate.  It then filed suit against the nursing staff company stating causes of action in contractual indemnification, common-law indemnification, and contribution.  The trial court entered judgment for the hospital and the nursing staff company appealed.

The Court of Appeals (Riordan, O’Connell, and Hoekstra) affirmed.  The Court recited the rule that where an indemnitor has notice of an action and declines the tender of the claim and refuses to participate in the defense of the indemnitee in the underlying lawsuit, the indemnitor will be bound by any reasonable, good faith settlement the indemnitee might thereafter enter into with the plaintiff in the underlying lawsuit.  Slip Op. at 2.  Moreover, the Court noted, where the indemnitor has notice of the claim and refuses to defend the indemnitee under the indemnity agreement, the indemnitee need only demonstrate potential liability to the claimant in the underlying suit, rather than actual liability.

This principle applies not only to indemnitee agreements but also to insurance policies and where insurance companies receive notice of a claim and refuse to defend under a reservation of rights.  The same consequence obtains such that if the insured settles the underlying lawsuit on the basis of potential liability (and, in the insurance context, this would apply even to claims that may not be covered precisely because the insurer did not reserve its rights under the policy), the insurer will be liable for any reasonable, good faith settlement.

It should also be noted that in the insurance context, the rule in Michigan is that the right to recover from the insurer in such circumstances is ex contractu, i.e., outside the policy’s terms and conditions, and thus, neither the policy limits, nor any reserve provisions or “defense costs” limitations (e.g., burning limits policies) apply.

In short, in the latter circumstance, the insurance company would be required by common law principles of indemnity to make the settling insured whole.

With this particular panel of the Court of Appeals having ruled unequivocally in favor of the hospital, I seriously doubt the Supreme Court would take this case up.

Here is the opinion: Henry Ford Health System v. ACT-1 Group et al.opn