Fairley v. Dep't of Corr., Docket Nos. 149722

• Court: Supreme Court of Michigan
• Citation: 497 Mich. 290,871 N.W.2d 129
• Decision Date: 05 June 2015
• Parties: FAIRLEY v. DEPARTMENT OF CORRECTIONS. Stone v. Michigan State Police.
• Docket Number: 149940.,Docket Nos. 149722

497 Mich. 290
871 N.W.2d 129

FAIRLEY
v.
DEPARTMENT OF CORRECTIONS.

Stone
v.
Michigan State Police.

Docket Nos. 149722
149940.

Supreme Court of Michigan.

June 5, 2015.

871 N.W.2d 130

Speaker Law Firm, PLLC (by Steven A. Hicks and Liisa R. Speaker, Lansing), and Gursten Koltonow Gursten Christensen & Raitt, PC (by David E. Christensen, Southfield), for Michelle R. Fairley.

Kline Legal Group, PLC, Ann Arbor (by John Kenneth Kline and Elizabeth Kitchen–Troop ), for Lori L. Stone.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Joseph T. Froehlich, Assistant Attorney General, for the Department of Corrections and the Michigan State Police.

MEMORANDUM OPINION.

497 Mich. 292

We consider in these consolidated cases whether a claimant's failure to comply with the notice verification requirements of MCL 600.6431 provides a complete defense in an action against the state or one of its departments. We conclude that a notice lacking any indication that it was signed and verified before an officer authorized to administer oaths is defective and, contrary to the Court of Appeals' conclusion, is a complete defense that may be raised at any time by a defendant entitled to governmental immunity. Accordingly, and in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals in both Stone v. Michigan State Police and Fairley v. Department of Corrections

871 N.W.2d 131

and remand the cases to the Court of Claims for reinstatement of the order granting defendant's motion for summary disposition in the former and for entry of an order granting defendant's motion for summary disposition in the latter.

The purpose of MCL 600.6431 is to establish those conditions precedent to pursuing a claim against the state. One of these conditions provides:

No claim may be maintained against the state unless the claimant, within 1 year after such 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 the state or any of its departments, commissions, boards, institutions, arms or agencies, stating the time when and the place where such claim arose and in detail

497 Mich. 293

the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths. [MCL 600.6431(1).]

Plainly, then, unless a claimant's notice is "signed and verified by the claimant before an officer authorized to administer oaths," a claim cannot proceed against the state. In both cases here, plaintiffs claim that nothing in the statute requires anyone other than the claimant to sign the notice and successfully argued in the Court of Appeals that defendants' arguments for summary disposition regarding notice were waived because the plaintiffs' alleged noncompliance with the statutory notice requirements was an affirmative defense that was not timely pleaded. Alternatively, defendants, both state agencies entitled to governmental immunity unless an exception applies, contend that complainants must "strictly" comply with the notice requirements in order to proceed. We conclude that failing to indicate anywhere on or with the notice that the document was verified before an officer authorized to administer oaths falls short of "strict" compliance and, as a result, plaintiffs' cases must be dismissed.

I. FACTS AND PROCEEDINGS BELOW

A. FAIRLEY v. DEP'T OF CORRECTIONS

On March 11, 2011, plaintiff Michelle Fairley was injured in an automobile accident after a Michigan Department of Corrections (MDOC) vehicle, operated by an MDOC employee, ran a red light and struck Fairley's car. Plaintiff faced life-altering injuries—to the brain, neck, and back—as well as associated pain, suffering, and emotional harm. Plaintiff's counsel subsequently filed a notice of injury and intent to hold MDOC liable in the Court of Claims. The parties do not

497 Mich. 294

dispute the timeliness of the notice¹ or the propriety of MDOC's designation as the responsible governmental agency.² The notice plainly stated the facts surrounding the accident, including the location of the accident and the parties involved. While Fairley herself did not sign the notice, her attorney's signature and the date appeared below the following disclaimer:

871 N.W.2d 132

This notice is intended to comply with all requirements of the law and all applicable statutes, ordinances, rules, and regulations.... If you believe this notice does not comply in any way with the notice requirement of the governing bodies of the State of Michigan and/or MDOC, or with an statute, ordinance, rule or regulation, you should immediately notify by written notice. Any additional information required by statute[,] ordinance, rule, or regulation will be promptly furnished.

After Fairley filed her complaint with the court, defendant responded with more than 20 affirmative defenses. Although none of these defenses argued that plaintiff's notice of intent to file a claim was defective, defendant MDOC filed a motion for summary disposition arguing that plaintiff's notice of intent to file a claim failed to meet the standards set out in MCL 600.6431(1). The Court of Claims denied defendant's motion for summary disposition, citing Kielb v. Wayne State University Board of Governors, unpublished opinion per curiam of the Court of Appeals, issued October 2, 2012 (Docket No. 305927), 2012 WL 4512532 in which the Court held that a defendant waives an issue of noncompliance with

497 Mich. 295

MCL 600.6431 if it is not pleaded as an affirmative defense. The Court of Appeals affirmed in an unpublished opinion per curiam.³

B. STONE v. MICHIGAN STATE POLICE

Lori Stone injured her neck when her stopped car was struck by two Michigan State Police patrol cars on May 19, 2007. Following the accident, Stone underwent surgery to fuse two of her neck vertebrae.

Stone subsequently filed a notice of intent to file a claim with the Court of Claims. As was the case in Fairley , the parties do not dispute the timeliness of the notice or that, at the time of filing, this notice plainly stated the facts surrounding the accident including the location of the accident and the parties involved. The notice concluded with the statement "I declare that the statements above are true to the best of my information, knowledge, and belief." The notice, undated, was signed by plaintiff and signed and "respectfully submitted" by her attorney, John Kline. Nevertheless, more than two years after responding to plaintiff's complaint, defendant filed a motion for summary disposition arguing that the notice supplied by plaintiff's counsel failed to meet the requirements of MCL 600.6431(1). Specifically, at the hearing on the motion, defendant argued:

What these notices are about is governmental immunity. It's exactly about putting up ... restraints on cases that can be brought against the State. The Supreme Court can't be more clear, if you don't meet the requirements you don't abrogate governmental immunity. And the issue isn't what verify or verification means, it's what verify before an officer authorized to administer oaths means, and there's

497 Mich. 296

just no evidence anywhere in this notice, the notice itself, that it was verified before an officer authorized to administer oaths.

The Court of Claims agreed with defendant and signed an order granting summary disposition in its favor. In an unpublished opinion...