Michigan Supreme Court Poised to Decide Whether Strict or Substantial Compliance is Sufficient Under Highway Exception to Governmental Immunity

Oral arguments on applications to the Michigan Supreme Court have been scheduled to determine whether the notice provisions of the Governmental Tort Liability Act’s (GTLA) “highway exception” to immunity are to be “strictly” or only “substantially” complied with.

The order springs from two Court of Appeals cases, Wigfall v Detroit, and West v Detroit. Both cases involve, among other questions, the sufficiency of notice provided to the City under the “highway exception”, MCL 691.1404(2).

The Supreme Court has scheduled oral argument on several questions, including:

(1) whether strict or substantial compliance is required with the notice provision contained within MCL 691.1404(2), compare Rowland v Washtenaw County Road Commission, 477 Mich 197 (2007), with Plunkett v Dep’t of Transportation, 286 Mich App 168 (2009);

(2) whether the plaintiff’s notice failed to comply with MCL 691.1404(2) under either a strict or substantial compliance standard;

(3) whether an individual described in MCR 2.105(G)(2) can delegate the legal authority to accept lawful process under MCL 691.1404(2), see 1 Mich Civ Jur Agency § 1 (2018); and

(4) whether the defendant should be estopped from asserting that the statutory notice requirement was not met.

Here is the Court’s complete orders from both cases: Wigfall v Detroit MOAA Order and West v Detroit MOAA Order

The outcome of this case will be significant in consideration of governmental liability under the GTLA.

Law Offices of Carson J. Tucker has developed a particular expertise in prosecuting and defending appeals in state and federal courts, including the United States Supreme Court. The firm’s principal Carson J. Tucker is also a frequent author of amicus curiae (friend of the court) briefs in the United States Supreme Court and state and federal courts on behalf of various governmental and non-governmental entities, not-for-profit corporations, and individuals.

A significant portion of his practice is also focused on appellate matters in which his efforts are directed at changing the law for a wide swath of interested parties and stakeholders. In addition to being licensed to practice in Michigan, Mr. Tucker is admitted to practice in the Eastern and Western District Federal Courts in Michigan, the United States Court of Appeals for the Sixth Circuit, and the United States Supreme Court.

Mr. Tucker has also presented for the International Municipal Lawyers Association (IMLA) on the latest legal issues in municipal liability law under the U.S. Constitution,  and related state and federal legislation, covering his familiarity and expertise on the many diverse questions that arise in this ever-changing and dynamic area of the law.

Mr. Tucker presented direct representation to the defendants and prosecuted the entire appeal, including all appellate briefings and oral arguments before the Court of Appeals and Supreme Court in the following cases, among others:

  • Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638)briefed and argued by Carson J. Tucker for Wayne County
  • Atkins v. SMART, 492 Mich. 707 (August 20, 2012), application granted, and briefed and argued by Carson J. Tucker in the Supreme Court
  • Gentry v. Wayne County Deputy Sheriff Daniel Carmona, unpublished opinion of hte Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580), briefed and argued by Carson J. Tucker in the Court of Appeals
  • Hamed v. Wayne County, 490 Mich. 1 (July 29, 2011), briefed and argued by Carson J. Tucker in the Court of Appeals and Supreme Court
  • Odom v. Wayne County, 482 Mich. 459 (December 30, 2008), application for leave to appeal granted, and briefed and argued by Carson J. Tucker in the Supreme Court

Mr. Tucker has also served as special appellate counsel for governmental entities and organizations in writing amicus curiae briefs in the Supreme Court and Court of Appeals in the following cases, among others:

  • Hannay v MDOT, ___ Mich. ___ (December 19, 2014), 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 ___ (2014), 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
  • Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker
  • Hagerty v. Manistee County Road Commission, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker

Mr. Tucker can be reached at +17348879261.

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