Nuculovic v. Hill

• Decision Date: 05 January 2010
• Docket Number: Docket No. 280216.
• Parties: NUCULOVICv.HILL.
• Court: Michigan Supreme Court

287 Mich.App. 58

783 N.W.2d 124

NUCULOVICv.HILL.

Docket No. 280216.

Supreme Court of Michigan.

Submitted Jan. 7, 2009, at Detroit.

Decided Jan. 5, 2010, at 9:10 a.m.

COPYRIGHT MATERIAL OMITTED

Sommers Schwartz, P.C. (by Samuel A. Meklir), Southfield, for plaintiff.

Zausmer, Kaufman, August, Caldwell & Tayler, P.C. (by Carson J. Tucker, Mark J. Zausmer, and Scott R. Reizen), Farmington Hills, for defendants.

Before: FORT HOOD, P.J., and WILDER and BORRELLO, JJ.

WILDER, J.

Plaintiff appeals as of right the trial court's grant of summary disposition in favor of defendants. We affirm.

In September 2005, plaintiff was driving a vehicle north on Harper Avenue, at an intersection with a highway entrance ramp, when defendant Johnny D. Hill, driving a bus owned by defendant SMART Bus, Inc. (SMART), turned left in front of her vehicle, causing a collision. Plaintiff sued defendants in 2006, more than 60 days after the accident, alleging injuries resulting from the negligence of defendants.

Defendants moved for summary disposition under MCR 2.116(C)(7), (8), and (10), on the ground that plaintiff failed to provide notice of her claim within 60 days of the accident, as required by MCL 124.419, a part of the Metropolitan Transportation Authorities Act, MCL 124.401 et seq. The trial court granted defendants' motion, and denied plaintiff's motion for reconsideration. This appeal ensued.

We review summary dispositions de novo. Willett v. Waterford Charter Twp., 271 Mich.App. 38, 45, 718 N.W.2d 386 (2006). Questions of law, such as construction of a statute, are also reviewed de novo. Morden v. Grand Traverse Co., 275 Mich.App. 325, 340, 738 N.W.2d 278 (2007).

Subrule (C)(7) permits summary disposition where the claim is barred by an applicable statute of limitations. In reviewing a motion under subrule (C)(7), a court accepts as true the plaintiff's well-pleaded allegations of fact, construing them in the plaintiff's favor. Hanley v. Mazda Motor Corp., 239 Mich.App. 596, 600, 609 N.W.2d 203 (2000). The Court must consider affidavits, pleadings, depositions, admissions, and any other documentary evidence submitted by the parties, to determine whether a genuine issue of material fact exists. Id. These materials are considered only to the extent that they are admissible in evidence. In re Miltenberger Estate, 275 Mich.App. 47, 51, 737 N.W.2d 513 (2007).

A motion for summary disposition under subrule (C)(8) tests the legal sufficiency of the pleadings alone. MCR 2.116(G)(5); Johnson-McIntosh v. Detroit, 266 Mich.App. 318, 322, 701 N.W.2d 179 (2005). Where the parties rely on documentary evidence, appellate courts proceed under the standards of review applicable to a motion made under MCR 2.116(C)(10) Healing Place at North Oakland Med. Ctr. v. Allstate Ins. Co., 277 Mich.App. 51, 55, 744 N.W.2d 174 (2007), or (C)(7).

A motion made under MCR 2.116(C)(10) tests the factual support for a claim Campbell v. Kovich, 273 Mich.App. 227, 229, 731 N.W.2d 112 (2006), and should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law Healing Place, 277 Mich.App. at 56, 744 N.W.2d 174. When the burden of proof at trial would rest on the nonmoving party, the nonmovant may not rest upon mere allegations or denials in the pleadings, but must, by documentary evidence, set forth specific facts showing that there is a genuine issue for trial. Id. But again, such evidence is only considered to the extent that it is admissible. MCR 2.116(G)(6); Campbell, 273 Mich.App. at 230, 731 N.W.2d 112. A genuine issue of material fact exists when the record, drawing all reasonable inferences in favor of the nonmoving party, leaves open an issue upon which reasonable minds could differ. Healing Place, 277 Mich.App. at 56, 744 N.W.2d 174.

Here, the trial court considered defendants' motion under MCR 2.116(C)(7), (8), and (10), but did not indicate under which subrule it granted it. Because the trial court considered evidence beyond the pleadings, we review the motion as though it were granted under MCR 2.116(C)(7) or (10).

MCL 124.419 provides:

All claims that may arise in connection with the transportation authority shall be presented as ordinary claims against a common carrier of passengers for hire: Provided, That written notice of any claim based upon injury to persons or property shall be served upon the authority no later than 60 days from the occurrence through which such injury is sustained and the disposition thereof shall rest in the discretion of the authority and all claims that may be allowed and final judgment obtained shall be liquidated from funds of the authority: Provided, further, That only the courts situated in the counties in which the authority principally carries on its function are the proper counties in which to commence and try action against the authority. [Emphasis added.]

“Shall” is mandatory. Roberts v. Farmers Ins. Exch., 275 Mich.App. 58, 68, 737 N.W.2d 332 (2007).

The Metropolitan Transportation Authorities Act does not define “ claim.” However, in CAM Constr. v. Lake Edgewood Condo. Ass'n, 465 Mich. 549, 554, 640 N.W.2d 256 (2002), relying on Black's Law Dictionary (7th ed.), the term “claim” was defined as the aggregate of operative facts giving rise to a right enforceable by a court. The statute at issue in this case requires that a claim be “based upon injury to persons or property....” MCL 124.419. Here, it is undisputed that plaintiff did not provide notice of a court-enforceable right based on a personal injury within 60 days of the date of the accident.

Plaintiff contends that defendants should not have been able to rely on MCL 124.419 in support of their motion for summary disposition, because they did not timely raise reliance on MCL 124.419 as an affirmative defense. Because plaintiff did not challenge below defendants' right to assert this statute as an affirmative defense, on the ground that it was not timely raised, the issue is not preserved. We therefore reject plaintiff's unpreserved claim. Coates v. Bastian Bros., Inc., 276 Mich.App. 498, 510, 741 N.W.2d 539 (2007), quoting Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 234, 507 N.W.2d 422 (1993) (“ ‘[i]ssues raised for the first time on appeal are not ordinarily subject to review’ ” in a civil case). This Court may overlook preservation requirements if the failure to consider the issue would result in manifest injustice, if consideration is necessary for a proper determination of the case, or if the issue involves a question of law and the facts necessary for its resolution have been presented. Johnson Family Ltd. Partnership v. White Pine Wireless, LLC, 281 Mich.App. 364, 377, 761 N.W.2d 353 (2008). We do not find any of these exceptions to be applicable.

We next address plaintiff's various arguments that MCL 124.419 does not apply here. We hold that it does apply.

When construing a statute, we use well-established principles, and begin by consulting the specific statutory language. Provider Creditors Comm. v. United American Health Care Corp., 275 Mich.App. 90, 95, 738 N.W.2d 770 (2007). This Court gives effect to the Legislature's intent, as expressed in the statute's terms, giving the words of the statute their plain and ordinary meanings. McManamon v. Redford Charter Twp., 273 Mich.App. 131, 135, 730 N.W.2d 757 (2006). “When the language poses no ambiguity, this Court need not look beyond the statute or construe the statute, but need only enforce the statute as written.” Id. at 136, 730 N.W.2d 757. “This Court does not interpret a statute in a way that renders any statutory language surplusage or nugatory.” Id.

Plaintiff argues that MCL 124.419 is intended to prevent claims by phantom bus passengers, and, therefore, does not apply to claims by persons involved in a motor vehicle accident with a bus, while a passenger or driver of another vehicle. Plaintiff also argues that MCL 124.419 should apply only to claims based on common-carrier liability. We disagree.

Plaintiff's arguments find no support in the language of the statute. The statute applies, unambiguously, to “ [a]ll claims that may arise in connection with the transportation authority ....” MCL 124.419 (emphasis added). There is no language suggesting that it applies only to claims involving bus passengers, or does not apply to claims involving injuries to nonpassengers, or that it only applies to common-carrier liability. To accept plaintiff's interpretation, would render nugatory the “[a]ll claims” language, which we lack authority to do. McManamon, 273 Mich.App. at 136, 730 N.W.2d 757. We apply the statute as written,¹ and reject this claim of error.

We also reject plaintiff's argument that MCL 124.419 does not apply because the action is premised on SMART's liability as the owner of the vehicle, under the owner liability statute, MCL 257.401, and not on its status as a common carrier. Contrary to what plaintiff suggests, MCL 257.401 and MCL 124.419 are not mutually exclusive. MCL 257.401 provides that the owner of a vehicle may be liable for the negligent operation of that vehicle. MCL 124.419 does nothing to negate the liability established by MCL 257.401; it only prescribes a notice requirement for presenting a claim against a transportation authority. And as previously indicated, MCL 124.419 applies to “[a]ll claims that may arise in connection with the transportation authority....” Thus, the fact that SMART may be subject to liability as the owner of a vehicle does not preclude the applicability of MCL 124.419.

Plaintiff also argues that to the extent MCL 124.419 applies, it applies only to claims against common carriers, and, therefore, would not apply to any claim against Hill, individually. In light of the statutory language indicating that the statute applies to “[a]ll claims that may arise in connection with the transportation authority,” we must reject this claim as well. The...