Howell v. Lazaruk

• Decision Date: 26 July 1972
• Docket Number: Nos. 9,10,s. 9
• Citation: 388 Mich. 32,199 N.W.2d 188
• Parties: Adrian HOWELL, individually, and as next friend of Peggy Howell, a minor, and Martha Mae Howell, Plaintiffs-Appellees, v. Lillian LAZARUK, Defendant-Appellant. ESTATE of Robert Frederick LISEE, a minor, by Mary C. Lisee, guardian, and Robert R. Lisee, Plaintiffs-Appellees, v. James M. HARE, Secretary of State, Defendant-Appellant, and Honorable Fred J. Borchard, Saginaw Circuit Judge, Defendant.
• Court: Michigan Supreme Court

Page 188

199 N.W.2d 188

388 Mich. 32

Adrian HOWELL, individually, and as next friend of Peggy

Howell, a minor, and Martha Mae Howell, Plaintiffs-Appellees, v.Lillian LAZARUK, Defendant-Appellant.

ESTATE of Robert Frederick LISEE, a minor, by Mary C. Lisee,

guardian, and Robert R. Lisee, Plaintiffs-Appellees, v.James M. HARE, Secretary of State, Defendant-Appellant, andHonorable Fred J. Borchard, Saginaw Circuit Judge, Defendant.

Nos. 9, 10.

Supreme Court of Michigan.

July 26, 1972.

Cicinelli, Mossner, Majoros, Harrigan & Alexander, Saginaw (Eugene D. Mossner, Saginaw, of counsel), Craig, Fried & Heidt, Detroit (David H. Fried, Detroit, of counsel), for plaintiffs-appellees.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Joseph B. Bilitzke, Carl K. Carlsen, Asst. Attys.Gen., Mich. Dept. of State MVACF-Legal Secondary Complex, Lansing, for defendants-appellants.

Before the Entire Bench.

SWAINSON, Justice.

These cases have been consolidated because both involve the issue of the liability of the Secretary of State under the Motor Vehicle Accident Claims Act(M.C.L.A. § 257.1101 et seq.;M.S.A. § 9.2801 et seq.)

On June 15, 1966, plaintiffsAdrian Howell, Martha Mae Howell, and Peggy Howell(then age 8), were injured when the automobile owned by Lillian Lazaruk crossed the centerline of Ecorse Road, Wayne County, and struck the left side of the Howell vehicle.Plaintiffs sustained serious and permanent injuries.Another passenger in the Howell automobile, Barbara Burgy, was also seriously injured, and Ella Burgy, her mother, was killed.

The Wayne county sheriff's department was called to the scene of the accident and after investigation made an accident report on a form prescribed by the Michigan State Police.At the time of the accident, defendant was uninsured; however, she had paid the statutory fee to the Secretary of State in accordance with M.C.L.A. § 257.1103;M.S.A. § 9.2803.The estate of Ella Burgy filed notice of intent to claim against the Motor Vehicle Accident Claims Fund with the Secretary of State on or about February 20, 1967.Attached to the notice was a photostat copy of the accident report.The Motor Vehicle Accident Claims Fund by letter dated February 23, 1967, directed the Great Lakes Claims Service to investigate the facts surrounding the accident.

On March 11, 1968, the Howells filed application with the Secretary of State seeking payment for their injuries sustained in the accident.Their claims were denied because they had failed to file the requisite notice of intent to file claim within one year (M.C.L.A. § 257.1118;M.S.A. § 9.2818).¹

On January 30, 1969, the Howells brought action in Wayne circuit court against Lillian Lazaruk, copies of the summons and complaint being served on the Secretary of State and defendant Lazaruk.When no answer or other pleading was received, except for another letter from the Secretary of State advising that the claim was barred because of the late notice, a default was filed and copies were served on defendant and the Secretary of State.

On June 2, 1969, testimony was taken and default judgment was entered on June 12, 1969; and, on June 30, 1969, a true copy of such default judgment was sent to the Motor Vehicle Accident Claims Fund.

Plaintiffs then filed petition for order to show cause why the Motor Vehicle Accident Claims Fund should not be required to pay plaintiffs, and hearing was had thereon on June 5, 1970.The court, upon being informed that the case of Lisee v. Secretary of State was pending in the Court of Appeals, ruled that it would take the petition under advisement pending decision by the Court of Appeals in the Lisee Case.

Plaintiffs filed motion to intervene in the Court of Appeals in the Lisee Case, which motion was granted July 22, 1970.They thereafter filed motions for leave to appeal and to consolidate with Lisee v. Secretary of State.These motions were granted by the Court of Appeals on September 24, 1970.

On August 27, 1966, Robert Frederick Lisee, a minor, was involved in an accident with an automobile owned by Larry Eischer and driven by Donald Bryce.Lisee sustained serious and permanent injuries.Both Eisner and Bryce were uninsured.Notice of intent to claim against the Fund was made on September 15, 1967.The claims supervisor of the Motor Vehicle Accident Claims Fund replied that the claim would not be honored because of failure to file the notice within one year of the accident.On January 8, 1968, plaintiffs filed suit against Eischer and Bryce.Summons and complaint were served on the Secretary of State, with request that defendants Eischer and Bryce be served pursuant to M.C.L.A. § 257.1105;M.S.A. § 9.2805.The director of the Motor Vehicle Accident Claims Fund returned the summons and complaint to plaintiffs' attorney together with a letter which read as follows:

'We are returning herewith your correspondence dated January 9, 1968, addressed to the Honorable James M. Hare.We have not undertaken to serve the defendants, since the claim is barred by Section 18 of the Act creating the Fund.'

Following a series of letters between plaintiffs' attorney and the Fund and its attorneys, wherein the Fund adhered to its earlier position, plaintiffs proceeded to make personal service on each of the defendants.Counsel appeared on behalf of defendant Eischer.Later a voluntary dismissal was entered as to Eischer.On July 8, 1968, default judgment was entered against defendant Bryce.Copy of the judgment was sent to the Secretary of State, and payment was refused.Plaintiffs then filed motion in circuit court seeking to require the Secretary of State to make payment from the Fund.The motion was denied, and plaintiffs applied to the Court of Appeals for a writ of mandamus against defendant Hare as custodian of the Fund, to compel him to pay the default judgment.

The Court of Appeals, relying on Grubaugh v. St. Johns, 384 Mich. 165, 180 N.W. 778(1970), held that the one-year notice provision of the Motor Vehicle Accident Claims Act was unconstitutional because it deprived plaintiff of due process of law.32 Mich.App. 548, 189 N.W.2d 50.In view of the importance of this issue to the administration of the Motor Vehicle Accident Claims Fund, we granted leave to appeal.385 Mich. 766.

Defendants raise three issues on appeal:

1) Whether the statutory notice of intent provision as found in the Motor Vehicle Accident Claims Act and applied to competent adults, is constitutional?

2) Whether the statutory notice of intent provision as found in the Motor Vehicle Accident Claims Act and applied to minors, is constitutional?

3) Whether section 7(3) of the Motor Vehicle Accident Claims Act² bars appellees Lisee from recovery from the Motor Vehicle Accident Claims Fund?

Plaintiffs Howell raise an additional issue:

4) Whether the actual notice and knowledge by the Secretary of State, through its agents and employees, of the occurrence of an automobile collision by virtue of the fact that a passenger files notice with the Secretary of State and that at least one of the vehicles in the collision was uninsured, obviates the requirement of the other passengers in the vehicle to give notice to the Secretary of State?

Plaintiffs Lisee also raise one additional issue:

5) In a case involving the Motor Vehicle Accident Claims Fund, where the Secretary of State fails to enter an appearance or defend a given action on behalf of an uninsured motorist, as he is permitted to do by statute, and a default judgment is entered against the uninsured motorist, is the Secretary of State estopped from raising the defense of failure to give notice to the plaintiffs' motion to require the Secretary of State to pay the judgment?

I.

Both parties have fully briefed the issue of the constitutionality of the notice requirements of the Motor Vehicle Accident Claims Act.However, it is well settled in Michigan that, 'Constitutional questions will not be passed upon when other decisive questions are raised by the record which dispose of the case.'People v. Quider, 172 Mich. 280, 288--289, 137 N.W. 546, 549(1912).See, also, North Michigan Water Co. v. Escanaba, 199 Mich. 286, 307, 165 N.W. 847(1917);Brown v. Hill, 216 Mich. 520, 527, 185 N.W. 751(1921);andCole v. Battle Creek, 298 Mich. 98, 298 N.W. 466(1941).Thus, we first turn to a discussion of the nonconstitutional issues raised by plaintiffs.

Plaintiffs Howell contend that the Secretary of State had actual notice of the accident which obviates the necessity of their giving notice.Ella Burgy, a passenger in the Howell car, was fatally injured and her estate did file a notice with the Secretary of State.The form prescribed by the Secretary of State provides a space to indicate whether other persons in the car sustained injuries.In addition, the State Police report, a copy of which was filed with the Secretary of State, indicated that Adrian Howell, Peggy Howell, Martha Mae Howell, and Barbara Burgy all suffered visible injuries in the accident.Thus, if the Secretary of State's office had investigated, it would have found that plaintiffs had sustained injuries.

M.C.L.A. § 257.1118;M.S.A. § 9.2818, provided:

'In all actions in which recovery is to be sought against the fund, said action must be commenced within 3 years from the time the cause of action accrues.Provided that recovery from the fund shall not be allowed in any event unless notice of intent to claim against the fund is served upon the secretary, on a form prescribed by him, within 1 year of the date that the cause of action shall accrue.'

M.C.L.A. § 257.1128;M.S.A. § 9.2828, provides:

'All claims or actions under which any person seeks to recover from the fund shall be filed or commenced within 3 years from the date of accident.'

It is clear that the notice provision is not jurisdictional.Section 28 of the Act(M.C.L.A. § 257.1128;M.S.A. § 9.2828), provides a three-year statute of...