Cavill v. State, 357006

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: Per Curiam
• Parties: MARTHA CAVILL, Plaintiff-Appellee, v. STATE OF MICHIGAN, doing business as MICHIGAN STATE POLICE, Defendant-Appellant, and JARED TIMOTHY OWENS, Defendant.
• Docket Number: 357006
• Decision Date: 15 September 2022

MARTHA CAVILL, Plaintiff-Appellee,
v.
STATE OF MICHIGAN, doing business as MICHIGAN STATE POLICE, Defendant-Appellant, and JARED TIMOTHY OWENS, Defendant.

No. 357006

Court of Appeals of Michigan

September 15, 2022

UNPUBLISHED

Court of Claims LC No. 19-000208-MZ

Before: Murray, P.J., and O'Brien and Redford, JJ.

Per Curiam

Defendant, State of Michigan, appeals under MCR 7.203(A)(2), MCR 7.202(6)(v), and MCL 600.309, the Court of Claims' opinion and order denying in part defendants' motion for summary disposition under MCR 2.116(C)(7) and (C)(10).^[1] We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Around 3:15 a.m. on July 24, 2019, plaintiff, Martha Cavill, stopped for a red light at the intersection of westbound Goddard Street and Pardee Road in Taylor, Michigan. Trooper Owens, while on duty and driving a patrol car, arrived at the intersection and came to a stop behind plaintiff. His patrol car's dashcam video recorded the incident. The patrol car came to a stop behind plaintiff's vehicle, an SUV displaying a handicap license plate, with three rear brake lights

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clearly illuminated. The red traffic signal lights in the intersection were visible above plaintiff's stopped vehicle. Plaintiff's brake lights went off and only her two rear running lights were illuminated but her vehicle did not move. A moment later, Trooper Owens's patrol car moved forward striking plaintiff's vehicle causing it to move forward a couple feet and shake. Plaintiff reacted by braking. Trooper Owens exited his vehicle and approached plaintiff's driver-side window where he engaged in conversation with plaintiff. A little later another state trooper exited the patrol car's front passenger side and joined Trooper Owens at the rear of plaintiff's vehicle where they inspected it. Plaintiff exited her vehicle and joined the troopers to inspect the rear of her vehicle. The troopers and plaintiff engaged in a discussion, then went back into their respective vehicles. Plaintiff exited her vehicle and walked back to the patrol car driver's side off camera. She then returned to her vehicle and departed after the intersection traffic signal lights turned green. At 4:00 a.m., Trooper Owens notified Michigan State Police Sergeant Jonathan Henry of the incident and he investigated and completed an incident report. Trooper Owens admitted that he began doing something with his cell phone before the accident occurred.

Following the accident, plaintiff experienced back pain as the day progressed so she visited her primary care physician who diagnosed her with acute back pain. She returned to her doctor multiple times and approximately one month after the accident began treating with Dr. Glenn Minster who had previously treated her for a neck condition. On August 21, 2019, plaintiff signed and had notarized a notice of intent pursuant to MCL 600.6431, which she sent to the Court of Claims, Michigan State Police Headquarters, and the Michigan Department of Technology, Management & Budget. In September 2019, plaintiff had an MRI that revealed lumbar spine disc herniation at L 4-5. In October 2019, plaintiff underwent back surgery.

On December 18, 2019, plaintiff sued defendants. In her complaint, among other things, plaintiff alleged that Trooper Owens acted negligently and violated numerous sections of the Michigan Motor Vehicle Code, and that his conduct proximately caused her injuries including a serious impairment of body function and other injuries to her head, neck, shoulders, arms, knees, back, chest, and other parts of her body, all of which interfered with her enjoyment of life. Defendants filed an answer that generally denied liability and stated many of affirmative defenses including defendants were entitled to immunity under the governmental tort liability act (GTLA), MCL 691.1401 et seq. A year later, the court entered a stipulated order permitting plaintiff to file an amended complaint and allowing defendants to preserve any defenses related to the notice of intent filed on August 21, 2019. Plaintiff's amended complaint featured all of the same allegations as her original complaint but differed by including a signed and notarized verification that stated: "I declare that the statements set forth in this Complaint are true to the best of my information, knowledge and belief." Defendants filed an answer that generally denied any liability and stated numerous affirmative defenses.

Defendants moved for summary disposition under MCR 2.116(C)(7) and (10) seeking dismissal of plaintiff's case for several reasons, including and most relevant to this appeal, that plaintiff failed to verify her August 27, 2019 notice of intent which they argued failed to comply with the requirements under the Court of Claims Act, MCL 600.6401 et seq., and more particularly MCL 600.6431. Defendants contended that a notarized signature on the notice of intent did not suffice as a verification because MCL 600.6431(2)(d) required an oath or affirmation of the party or of someone having knowledge of the facts stated. Defendants claimed that a verification had to be in the form described in MCR 1.109(D)(3)(b). The Court of Claims stated that it had previously

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rejected the same argument in Gladson v Mich. Dep't of Health & Human Servs, Opinion and Order of the Court of Claims, issued December 30, 2020 (Docket No. 20-000202-MK). The court rejected defendants' argument and incorporated by reference its previous reasoning stated in its Gladson opinion.^[2] The Court of Claims, therefore, denied defendants' summary disposition motion in all respects with the exception that it dismissed plaintiff's claim of gross negligence against Trooper Owens.

II. STANDARDS OF REVIEW

We review de novo a lower court's decision on a motion for summary disposition. Patterson v CitiFinancial Mtg Corp, 288 Mich.App. 526, 528; 794 N.W.2d 634 (2010). We also review de novo as a question of law the applicability of governmental immunity. Herman v Detroit, 261 Mich.App. 141, 143; 680 N.W.2d 71 (2004). We review de novo the Court of Claims' denial of defendants' motion to dismiss under MCR 2.116(C)(7). Kline v Dep't of Transp, 291 Mich.App. 651, 653; 809 N.W.2d 392 (2011). "A motion for summary disposition pursuant to MCR 2.116(C)(7) tests whether a claim is barred because of immunity granted by law, and requires consideration of all documentary evidence filed or submitted by the parties." Miller v Lord, 262 Mich.App. 640, 643; 686 N.W.2d 800 (2004) (quotation marks and citation omitted). The applicability of governmental immunity and its statutory exceptions are reviewed de novo. Moraccini v Sterling Hts, 296 Mich.App. 387, 391; 822 N.W.2d 799 (2012). "If the facts are not in dispute and reasonable minds could not differ concerning the legal effect of those facts, whether a claim is barred by immunity is a question for the court to decide as a matter of law." Poppen v Tovey, 256 Mich.App. 351, 354; 664 N.W.2d 269 (2003) (citation omitted). The meaning of MCL 600.6431 that requires "the notice to be signed and verified by the claimant before an officer authorized to administer oaths-is a question of statutory interpretation, which we likewise review de novo." Fairley v Dep't of Corrections, 497 Mich. 290, 296; 871 N.W.2d 129 (2015) (quotation marks and citation omitted). "The primary goal when interpreting a statute is to discern the intent of the Legislature by focusing on the most 'reliable evidence' of that intent, the language of the statute itself. When legislative intent is clear from the language, no further construction is required or permitted." Id. at 296-297 (citations omitted).

III. ANALYSIS

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Defendant argues that the Court of Claims erred by ruling that plaintiff's notarized signature satisfied the verification requirements of MCL 600.6431. We disagree.

The state and its subdivisions cannot be sued without legislative consent, and the Legislature may condition or limit the liability imposed. ADR Consultants, LLC v Mich. Land Bank Fast Track Auth, 327 Mich.App. 66, 74; 932 N.W.2d 226 (2019). The GTLA, MCL 691.1401 et seq., provides a governmental agency immunity from tort liability if it "is engaged in the exercise or discharge of a governmental function." MCL 691.1407(1). Under MCL 691.1405, a governmental agency "shall be liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner . . . ." MCL 691.1410 requires that claims against the state be brought in the manner provided in the Court of Claims Act, MCL 600.6401 to MCL 600.6475 of the revised judicature act. MCL 600.6431 defines the contents and timing of filing the notice or claim and provides in relevant part:

(1) Except as otherwise provided in this section, a claim may not be maintained against this state unless the claimant, within 1 year after the claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against this state or any of its departments, commissions, boards, institutions, arms, or agencies.

(2) A claim or notice under subsection (1) must contain all of the following:

(a) A statement of the time when and the place where the claim arose.

(b) A detailed statement of the nature of the claim and of the items of damage alleged or claimed to have been sustained.

(c) A designation of any department, commission, board, institution, arm, or agency of the state involved in connection with the claim.

(d) A signature and verification by the claimant before an officer authorized to administer oaths.

(3) A claimant shall furnish copies of a claim or notice filed under subsection (1) to the clerk at the time of filing for transmittal to the attorney general and to each of the

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