Hobbs v. Michigan State Highway Dept.

• Decision Date: 07 December 1976
• Docket Number: No. 10,10
• Parties: Edith L. HOBBS, Executrix of the Estate of Gailen L. Hobbs, Deceased, Plaintiff-Appellee, v. MICHIGAN STATE HIGHWAY DEPARTMENT, Defendant-Appellant. 398 Mich. 90, 247 N.W.2d 754
• Court: Michigan Supreme Court

Page 754

247 N.W.2d 754

398 Mich. 90 Edith L. HOBBS, Executrix of the Estate of Gailen L. Hobbs, Deceased, Plaintiff-Appellee, v. MICHIGAN STATE HIGHWAY DEPARTMENT, Defendant-Appellant.

No. 10.

398 Mich. 90, 247 N.W.2d 754

Supreme Court of Michigan.

Dec. 7, 1976.

James H. Kaladjian, E. Donald Goodman, Martin M. Doctoroff, Southfield, for plaintiff-appellee; Ronald D. Feldman, Troy, of counsel.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Louis J. Caruso, Myron A. McMillan, Asst. Attys. Gen., Lansing, for defendant-appellant.

T. G. KAVANAGH, Chief Justice.

On May 22, 1972 Gailen Hobbs was killed when the automobile he was driving plunged off an overpass bridge onto state trunkline highway I--75. Suit was filed in the Court of Claims on October 9, 1973 alleging that the State Highway Department had been negligent in the design and construction of the bridge.

The defendant filed a motion for 'accelerated judgment and/or summary judgment' claiming that the Court of Claims lacked jurisdiction over the subject matter because the overpass was not a part of the state trunkline system. An amendment was then made to this 'motion for accelerated and/or summary judgment' alleging that the action was barred due to plaintiff's failure to file the complaint or a notice of intention to file within one year after the claim accrued pursuant to M.C.L.A. § 600.6431(1); M.S.A. § 27A.6431(1). (The Court of Claims Act).

The Court of Claims denied defendant's original motion, but granted the amended motion.

The Court of Appeals reversed. 58 Mich.App. 189, 227 N.W.2d 286 (1975).

The parties and the Court of Claims believed that this case was controlled by the provisions of the Court of Claims Act, R.J.A. 6431(1); M.C.L.A. § 600.6431(1); M.S.A. § 27A.6431(1). That act requires that a claim against the state or a notice of intention to file such claim be brought within one year after the claim has accrued.

The Court of Appeals, however, based its decision on 1964 P.A. 170, M.C.L.A. § 691.1411; M.S.A. § 3.996(111), the statute of limitations provision contained in the governmental liability act, which provides:

'(1) Every claim against any governmental agency shall be subject to the general law respecting limitations of actions except as otherwise provided in this section.

'(2) The period of limitations for claims arising under section 2 of this act shall be 2 years.

'(3) The period of limitations for all claims against the state, except those arising under section 2 of this act, shall be governed by chapter 64 of Act No. 236 of the Public Acts of 1961.'

Both parties agree that this claim arises under section 2, which provides:

'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).

The Court of Appeals held that because this action was brought under section 2, and because the period of limitation for these actions is two years, this claim was timely filed as it was brought within two years after it arose.

The Court found that the Court of Claims Act did not apply because of the express exception of subsection (3) of M.C.L.A. § 691.1411; M.S.A. § 3.996(111), Supra. Additionally, it noted that claims arising under section 2 are subject to a notice requirement different from and expressly exclusive of the notice provision in the Court of Claims Act.

Plaintiff, however, did not file notice within 120 days as required by M.C.L.A. § 691.1404; M.S.A. § 3.996(104). Thus, defendant maintained, even if the Court of Claims Act did not control, plaintiff did not meet the time limits of the governmental liability act.

However, based on this Court's decision in Reich v. State Highway Department, 386 Mich. 617, 194 N.W.2d 700 (1972), the Court of Appeals held the notice provisions of the governmental liability act unconstitutional. Since the claim was filed within the two-year statute of limitations period, the case was remanded to the Court of Claims for further proceedings.

Defendant alleges on appeal to this Court that the governmental liability act is not exclusive of the Court of Claims Act, that the notice requirements of the governmental liability act are not unconstitutional, and that even if we should decide that Reich controls and these notice requirements are void, the Court of Claims Act would still apply.

We agree with the Court of Appeals that the provisions of the governmental liability act, 1964 P.A. 170, M.C.L.A. § 691.1402, M.C.L.A. § 691.1411; M.S.A. § 3.996(102), M.S.A. § 3.996(111), control this case, exclusive of the Court of Claims Act.

Having determined that, however, we must consider that portion of the act which provides that notice be given within 120 days of the accrual of the cause of action. M.C.L.A. § 691.1404; M.S.A. § 3.996(104).

In Reich v. State Highway Department, supra, this Court held the 60-day notice provisions of 1964 P.A. 170 to be an unconstitutional denial of equal protection of the laws because these notice provisions served '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. * * * 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. at 623--624, 194 N.W.2d at 702.

Defendant in this case observes that the 120-day notice provision currently in effect as a result of 1970 P.A. 155, was not considered in Reich, and that this Court's opinion in Carver v. McKernan, 390 Mich. 96, 211 N.W.2d 24 (1973), hold that statutory notice provisions are not necessarily unconstitutional. We agree.

In Carver v. McKernan, supra, we held that the notice requirement contained in the Motor Vehicle Accident Claims Act, 1965 P.A. 198, § 18 as amended by 1968 P.A. 223, § 1, M.C.L.A. § 257.1118; M.S.A. § 9.2818, did not necessarily violate the constitution. We upheld this notice requirement on the sole basis that the failure to give notice within the prescribed time 'may result in prejudice to the fund'. Accordingly, we held that '* * * only upon a showing of prejudice by failure to give such notice, may the claim against the fund be dismissed.' 390 Mich. at 100, 211 N.W.2d at 26.

In Carver, we acknowledged that

'(S)tatutes which limit access to the courts by people seeking redress for wrongs are not looked upon with favor by us. We acquiesce in the enforcement of statutes of limitation when we are not persuaded that they unduly restrict such access, but we look askance at devices such as notice requirements which have the effect of shortening the period of time set forth in such statutes.' 390 Mich. at 99, 211 N.W.2d at 26.

The rationale of Carver is equally applicable to cases brought under the governmental liability act. Because actual prejudice to the state due to lack of notice within 120 days is the only legitimate purpose we can posit for this notice provision, absent a showing of such prejudice the notice provision contained in M.C.L.A. § 691.1404; M.S.A. § 3.996(104) is not a bar to claims filed pursuant to M.C.L.A. § 691.1402; M.S.A. § 3.996(102).

The case is remanded to the Court of Claims for further proceedings.

Affirmed.

No costs, a public question.

WILLIAMS, LEVIN and FITZGERALD, JJ., concur.

COLEMAN, Justice (dissenting).

Relying on Reich v. State Highway Dept., 386 Mich. 617, 194 N.W.2d 700 (1972), the Court of Appeals reversed the court of claims dismissal of this action. This decision should be reversed. The Court of Appeals failed to apply a provision of the Court of Claims Act. Also, we find that the Reich analysis was incorrect.

Plaintiff's husband was killed in an automobile accident on May 22, 1972. She filed a complaint in the court of claims on October 9, 1973 alleging that the department improperly designed and constructed the bridge where the accident occurred.

The department moved for 'accelerated judgment and/or summary judgment'. One basis for the motion was that plaintiff's claim was not filed within the time required by the Court of Claims Act. The motion was granted.

Although the trial judge and the parties agreed that the Court of Claims Act controlled, the Court of Appeals was 'compelled to point out . . . and base our decision on a different statutory scheme'. 1964 P.A. 170, the act establishing the limited tort liability of governmental units, requires as 'a condition to any recovery for injuries sustained by reason of any defective highway' that the governmental agency be notified 'within 120 days from the time the injury occurred'. M.C.L.A. § 691.1404; M.S.A. § 3.996(104). ¹

Mrs. Hobbs' claim was filed 16 months after the accident. If the Court of Appeals 'were to accept the statute as it now stands, such a failure on her part would permanently bar a recovery'. The Court said our decision in Reich 'dictates a different result, however'.

Reich was one of three cases challenging the 60 day notice provision in the predecessor to M.C.L.A. § 691.1404. The Court said the statute put governmental units 'on an equal footing with private tort feasors'. Requiring notice to the governmental unit 'constitutes an arbitrary and unreasonable variance in the treatment of both portions of one natural class'. This was said to violate equal protection guarantees. The Court held that the 'notice provision is void and of no effect'.

In our case, 58 Mich.App. 189, 227 N.W.2d 286, the Court of Appeals held...