Appel v. State, Dept. of Highways, 11
| Decision Date | 07 December 1976 |
| Docket Number | No. 11,O,11 |
| Citation | 398 Mich. 110,247 N.W.2d 762 |
| Parties | Donald APPEL and Constance Appel, Plaintiffs-Appellees, v. STATE of Michigan, DEPARTMENT OF HIGHWAYS, Defendant-Appellant. ct. Term. 398 Mich. 110, 247 N.W.2d 762 |
| Court | Michigan Supreme Court |
Dennis B. Cotter, Detroit, for plaintiffs-appellees.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Louis J. Caruso, Ronald F. Rose, Asst. Attys., Gen., Lansing, for defendant-appellant.
This is an appeal from the Court of Appeals order remanding this case to the Court of Claims. We affirm.
On April 15, 1973, plaintiffs were involved in an accident on I--696. On November 19, 1973 their attorney sent a letter to the State Highway Department informing it of the accident.
On June 3, 1974, complaint was filed in the Court of Claims alleging that defendant had breached its 'duty * * * to keep and maintain its highways in a reasonably safe condition'.
Defendant filed a 'motion for summary and/or accelerated judgment' alleging that the action was barred because the complaint was not filed within one year after the accident as required by the Court of Claims Act, M.C.L.A. § 600.6431(1); M.S.A. § 27A.6431(1), and because the plaintiff failed to state a claim upon which relief could be granted.
The Court of Claims granted defendant's motion for accelerated judgment due to the untimely filing of the claim or notice of intent to file a claim pursuant to M.C.L.A. § 600.6431(1), (3); M.S.A. § 27A.6431(1), (3).
The Court of Appeals reversed and remanded to the Court of Claims
We held today in Hobbs v. Michigan State Highway Department, Mich., 247 N.W.2d 754 (1976) that the provisions of the governmental liability act, M.C.L.A. §§ 691.1402, .1411; M.S.A. §§ 3.996(102), (111) control cases such as this, exclusive of the Court of Claims Act. We also held that the rationale of Carver v. McKernan, 390 Mich. 96, 211 N.W.2d 24 (1973) applied, and remanded to the Court of Claims to provide an opportunity for the State to show that it was prejudiced by the failure of the plaintiff to provide timely notice.
The complaint in the case at bar was filed within the two year statute of limitations period contained in M.C.L.A. § 691.1411; M.S.A. § 3.996(111), as were those in Hobbs, supra, and Kerkstra v. State of Michigan and State Highway Department, Mich., 247 N.W.2d 759 (1976).
Accordingly, we affirm the Court of Appeals and remand to the Court of Claims for further proceedings.
No costs, a public question.
The Department of State Highways is appealing a Court of Appeals decision which remanded this case to the Court of Claims 'for further proceedings provided the involved governmental agency fails to show it was prejudiced by plaintiffs' noncompliance with the applicable provision of the Court of Claims Act'. 1 Pursuant to our opinions in Hobbs v. State Highway Department, Mich., 247 N.W.2d 754 (1976) and Kerkstra v. State Highway Department, Mich., 247 N.W.2d 759 (1976), we would reverse.
On April 15, 1973 plaintiffs were injured in a two-car automobile accident on I--696. Their attorney sent no notice to the Court of Claims but only this form letter to the highway department on November 19, 1973, more than 7 months after the accident:
'Re: Donald E. Appel vs. State of Michigan & Detroit Edison
Location of Accident: I--696 at Lasher (sic) Road
'Gentlemen:
'Be advised that this office represents the above-named in connection with claim for damages suffered due to the consequences of an accident as described above.
'Be further advised that under the laws of the State of Michigan, we hereby claim an attorneys' lien on any and all proceeds received by our clients by way of settlement or collection of judgment.'
A vehicle claims adjuster responded on November 29 saying the department did not carry insurance for this type of accident and he could 'see no involvement for the Department of State Highways'.
Plaintiffs filed a complaint in the Court of Claims on June 3, 1974 (more than one year after the accident). It alleged that plaintiffs' car was side swiped, went out of control and struck a light pole. Claiming that the highway department had breached 'a duty . . . to keep and maintain its highways in a reasonably safe condition', plaintiffs sought awards totaling $3,500,000.
Defendant filed a motion for 'summary and/or accelerated judgment' because the complaint was filed more than one year after the accident and also failed to state a proper claim. Plaintiffs responded and oral arguments were also held.
The Court found that plaintiffs 'did not file their claim or notice of intent to file a claim within the time limitations specified in M.C.L.A. § 600.6431(1) or M.C.L.A. § 600.6431(3) and are barred from any further proceedings in this matter'. The Court of Appeals reversed and remanded to determine if defendant was prejudiced by this failure.
In Hobbs we said the November 19 letter was a notice of claim, it was not filed in the Court of Claims or filed within 6 months of the personal injury accident. The statute was not followed.
The Court of Appeals recognized this but remanded on the basis of Hanger v. State Highway Department, 64 Mich.App. 572, 236 N.W.2d 148 (1975). Hanger concluded that our decision in Carver v. McKernan, 390 Mich. 96, 211 N.W.2d 24 (1973) 'dictates that the accelerated judgment be set aside, and the cause remanded for a hearing to ascertain whether the State Highway Department was prejudiced by plaintiffs' failure to give notice'. In Kerkstra, we voted to overrule Carver. There, as here, the plaintiffs did not comply with the law.
Mr. and Mrs....
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Brown v. Manistee County Road Com'n
...90, 96, 247 N.W.2d 754 (1976); Kerkstra v. Dep't of State Hwys., 398 Mich. 103, 106, 247 N.W.2d 759 (1976); Appel v. Dep't of State Hwys., 398 Mich. 110, 112, 247 N.W.2d 762 (1976). Here, defendant made a sufficient showing of actual prejudice. The road area on which the accident occurred h......