Hanger v. State

• Citation: 236 N.W.2d 148,64 Mich.App. 572
• Decision Date: 24 September 1975
• Docket Number: Docket No. 22342
• Parties: William HANGER and Elaine Hanger, Plaintiffs-Appellants, v. STATE of Michigan, Defendant-Appellee, and St. Clair County Road Commission, Defendant.
• Court: Court of Appeal of Michigan (US)

Page 148

236 N.W.2d 148

64 Mich.App. 572

William HANGER and Elaine Hanger, Plaintiffs-Appellants, v. STATE of Michigan, Defendant-Appellee and St. Clair County Road Commission, Defendant.

Docket No. 22342.

Court of Appeals of Michigan.

Sept. 24, 1975.

Released for Publication Dec. 24, 1975.

Kozlow, Jasmer & Woll, P.C., by Frederick D. Jasmer, Southfield, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ronald Rose, Asst. Atty. Gen., for defendant-appellee.

S. Keith Bankston, Port Huron, for Road Commission.

Before ALLEN, P.J., and WALSH and O'HARA, ^* JJ.

ALLEN, Judge.

Plaintiffs instituted suit in the Court of Claims against the State Highway Department and the St. Clair County Road Commission ¹ on June 3, 1974, seeking damages for injury sustained by William Hanger in an automobile collision on October 28, 1973 in St. Clair County allegedly occasioned by defective road maintenance. M.C.L.A. § 691.1402; M.S.A. § 3.996(102). The Court of Claims granted the State Highway Department's motion for accelerated judgment on the grounds that plaintiffs had not complied with the six-month notice provision of the Court of Claims Act, M.C.L.A. § 600.6431(3); M.S.A. § 27A.6431(3), and plaintiffs appeal.

Plaintiffs maintain that the court erroneously based accelerated judgment on their failure to comply with an unconstitutional notice provision. Tamulion v. State Waterways Commission, 50 Mich.App. 60, 212 N.W.2d 828 (1973). Alternatively, plaintiffs forcefully rely on the recent ruling in Hobbs v. State Highway Department, 58 Mich.App. 189, 227 N.W.2d 286 (1975), that the notice provision within the general highway statute exclusively controls cases of the instant stature, and said notice requirement remains constitutionally void under the Supreme Court opinion in Reich v. State Highway Department, 386 Mich. 617, 194 N.W.2d 700 (1972). For reasons which will become evident, this Court opines that the six-month notice provision of the Court of Claims Act applies to the instant plaintiffs, and is not constitutionally infirm. We conclude, moreover, that the Supreme Court 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.

The instant action was dismissed because plaintiffs failed to comply with the following notice provision in the Court of Claims Act:

'In all actions for property damage or personal injuries, claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action.' M.C.L.A. § 600.6431(3); M.S.A. § 27A.6431(3).

Plaintiffs' theory of liability against the State Highway Department is based on § 2 of the sovereign immunity statute, 1964 P.A. 170, which reads in pertinent part:

'Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency, * * *.' M.C.L.A. § 691.1402; M.S.A. § 3.996(102).

Under § 4 of the act, one finds the following notice provision:

'(1) As a condition to any recovery for injuries sustained by reason of any defective highway, the injured person, within 120 days from the time the injury occurred, except as otherwise provided in subsection (3) shall serve a notice on the governmental agency of the occurrence of the injury and the defect. The notice shall specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.

'(2) The notice may be served upon any individual, either personally, or by certified mail, return receipt requested, who may lawfully be served with civil process directed against the governmental agency, anything to the contrary in the charter of any municipal corporation notwithstanding. In case of the state, such notice shall be filed in triplicate with the clerk of the court of claims. Filing of such notice shall constitute compliance with section 6431 of Act No. 236 of the Public Acts of 1961, being section 600.6431 of the Compiled Laws of 1948, requiring the filing of notice of intention to file a claim against the state.' M.C.L.A. § 691.1404; M.S.A. § 3.996(104).

In Reich v. State Highway Department, 386 Mich. 617, 194 N.W.2d 700 (1972) our Supreme Court declared the prior 60-day version of § 4 unconstitutional on equal protection grounds:

'The object of the legislation under consideration is to waive the immunity of governmental units and agencies from liability for injuries caused by their negligent conduct, thus putting them on an equal footing with private tort-feasors. However, the notice provisions of the statute arbitrarily split the natural class, I.e., all tort-feasors, into two differently treated subclasses: private tort-feasors to whom no notice of claim is owed and governmental tort-feasors to whom notice is owed.

'This diverse treatment of members of a class along the lines of governmental or private tort-feasors bears no reasonable relationship under today's circumstances to the recognized purpose of the act. It constitutes an arbitrary and unreasonable variance in the treatment of both portions of one natural class and is, therefore, barred by the constitutional guarantees of equal protection.

'Just as the notice requirement by its operation divides the natural class of negligent tort-feasors, so too the natural class of victims of negligent conduct is also arbitrarily split into two subclasses: victims of governmental negligence who must meet the requirement, and victims of private negligence who are subject to no such requirement. Contrary to the legislature's intention to place victims of negligent conduct on equal footing, the notice requirement acts as a special statute of limitations which arbitrarily bars the actions of the victims of governmental negligence after only 60 days. The victims of private negligence are granted three years in which to bring their actions. See M.C.L.A. § 600.5805; (Stat.Ann.1962 Rev. 27A.5805). Such arbitrary treatment clearly violates the equal protection guarantees of our State and Federal Constitutions. The notice provision is void and of no effect.' 386 Mich.App. 623--624, 194 N.W.2d 702.

The Court was not confronted with the question whether one seeking recovery against the state under § 2 of the sovereign immunity act is nonetheless required to comply with the notice provisions of the Court of Claims Act, since all claimants in Reich had given notice before six months. This question was negatively answered in Hobbs, supra.

In Hobbs, supra, the Court of Claims dismissed plaintiff's suit for failing to file a complaint, or notice of intent, within one year pursuant to M.C.L.A. § 600.6431(1); M.S.A. § 27A.6431(1) of the Court of Claims Act. On appeal, a panel of this Court ruled that the notice requirement under § 4 of the sovereign immunity statute ² is 'expressly exclusive of the notice provision appearing in the Court of Claims Act'. Since the claim of plaintiff in Hobbs fell within § 2, the notice provision of § 4 was deemed applicable. The Hobbs court further ruled that the legislative change of § 4 from 60 to 120 days did not prevent 'the 'diverse treatment' condemned in Reich', and that the constitutional defect in the statute remains. Ergo, plaintiff was not barred from suit by failing to give notice within 120 days, since her complaint was filed within the two-year statute of limitations, ³ judgment for the State Highway Department was reversed. The decision in Hobbs has been followed by two other panels of this Court. See Zimmer v. State Highway Department, 60 Mich.App. 769, 231 N.W.2d 519 (1975), Kerkstra v. State Highway Department, 60 Mich.App. 761, 231 N.W.2d 521 (1975).

We agree with our brothers in Hobbs that the specific notice provision of § 4 of the sovereign immunity act takes precedent over the notice provision in the Court of Claims Act with respect to personal injury claims under § 2.

Furthermore, we are compelled to concur with the Court in Hobbs, that under the pervasive ruling in Reich the legislative change in § 4 from 60 to 120 days did not breathe new life into the constitutionally void section. However, we respectfully disagree with the position of the Court in Hobbs that the § 4 notice provision is exclusive and, in effect, since void under Reich, a claimant proceeding under § 2 need not give notice short of filing of complaint within the two-year limitation period. We cannot agree that because § 4 has been declared void § 6431 of the Court of Claims Act is to be treated as void or at least overlooked.

The Legislature did not intend that parties claiming injury for highway defects be relieved of all responsibility under the Court of Claims Act. Both in § 4(2) and § 10 the Legislature expressed an intention that claims of this nature meet the requirements of § 6431 of the Court of Claims Act. This clear legislative intent is thwarted by that portion of Hobbs holding that because § 4 is void under Reich, supra, no notice of any type is required and the only limitation upon a claimant is the two-year statute of limitations. But since § 4 is void, we must treat it as if never written. However, § 10 of the sovereign immunity statute provides that:

'Claims against the state authorized under this act shall be brought in the manner provided in sections 6401 to 6475 of Act No. 236 of the Public Acts of 1961, being ...