EUGENE ROSE V SUBURBAN MOBILITY AUTHORITY FOR REGIONAL TRANSPORT
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STATE OF MICHIGAN
COURT OF APPEALS
EUGENE ROSE,
UNPUBLISHED
March 30, 2010
Plaintiff-Appellant,
v
SUBURBAN MOBILITY AUTHORITY FOR
REGIONAL TRANSPORTATION and HENRY
THOMAS,
No. 289769
Wayne Circuit Court
LC No. 06-633687-NH
Defendants-Appellees,
and
NINA MARIA MADISON and RAYMOND
GOEBORO,
Defendants.
Before: SERVITTO, P.J., and BANDSTRA and FORT HOOD, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting defendants’1 motion for
summary disposition. We affirm. This appeal has been decided without oral argument pursuant
to MCR 7.214(E).
The facts relevant to this appeal are not at issue. Plaintiff was injured on April 23, 2006,
when he was riding in a bus owned by defendant Suburban Mobility Authority for Regional
Transportation (SMART). Plaintiff was astride his three-wheeled, motorized wheelchair, but the
chair was not secured. When the bus turned a sharp corner, the chair tipped over. Plaintiff was
1
Defendant Madison was erroneously named in the complaint as the bus driver; defendant
Goeboro was the driver of an automobile allegedly involved in a collision with the bus. These
two individuals have been dismissed and are not parties to this appeal. Therefore “defendants”
shall refer to defendants-appellants Suburban Mobility Authority for Regional Transportation
(SMART) and Henry Thomas.
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thrown from the chair and suffered a fractured hip and left femur. He was taken to the hospital
by ambulance. Two written reports were generated as a result, one by Fairlane Town Center, on
whose property the incident occurred, and one by the bus driver, defendant Henry Thomas. On
July 31, 2006, more than three months after he was injured, plaintiff sent written notice of the
claim to SMART.
Plaintiff filed a three-count complaint against SMART and Henry alleging
“negligence/gross negligence.” The trial court granted defendants’ motion for summary
disposition based on lack of statutory notice, but only as to plaintiff’s third party claims.
Subsequently, plaintiff’s first-party claims were dismissed by stipulation.
We review a trial court’s decision to grant or deny a motion for summary disposition de
novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998); Willett v
Waterford Charter Twp, 271 Mich App 38, 45; 718 NW2d 386 (2006). Questions of law, such
as construction of a statute, are also reviewed de novo on appeal. Detroit v Ambassador Bridge
Co, 481 Mich 29, 35; 748 NW2d 221 (2008); Morden v Grand Traverse Co, 275 Mich App 325,
340; 738 NW2d 278 (2007).
When construing a statute, we use well-established principles, and begin
by consulting the specific statutory language. 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. When the language poses no
ambiguity, this Court need not look outside the statute, nor construe the statute,
but need only enforce the statute as written. This Court does not interpret a
statute in a way that renders any statutory language surplusage or nugatory.
[Nuculovic v Hill, ___ Mich App ___, ___; ___ NW2d ___ (2010), slip op at 3
(citations and internal quotation marks omitted).]
The Metropolitan Transportation Authorities Act, MCL 124.401 et seq., requires that
written notice of any claim based on injury to persons or property be served upon the authority
no later than 60 days from the occurrence that resulted in the injury. MCL 124.419.
Specifically, 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.
“Shall” is mandatory. Roberts v Farmers Ins Exch, 275 Mich App 58, 68; 737 NW2d 332
(2007). As this Court explained in Nuculovic, ___ Mich App at ___, slip op at 2:
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The Metropolitan Transportation Authorities Act of 1967 (the Act) does
not define “claim.” However, in Woodman v Kera, LLC, 280 Mich App 125, 163
n. 3; 760 NW2d 641 (2008), this Court, relying on Black’s Law Dictionary,
defined the term “claim” 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.
Thus, plaintiff was required to serve SMART with written notice of a court-enforceable right
based on a personal injury within 60 days of the date of the accident. That SMART was
provided an incident report by its own employee, and by the shopping center where the injury
occurred does not suffice to meet this requirement. Nuculovic, ___ Mich App at ___, slip op at
5. In Nuculovic, this Court rejected the plaintiff’s assertion that SMART’s receipt of an incident
report from its bus driver and his supervisor and of the police report for an accident resulting in
the plaintiff’s injuries was not sufficient to meet the statutory requirement. The Court explained:
MCL 124.419 requires that “written notice of any claim based upon injury” be
served upon the authority within 60 days of the date of the accident.
The term “service” is not defined in MCL 124.419, but the concept of
service of process is well clarified in our court rules. Service of process is
addressed in MCR 2.202, 2.103, and 2.104. Where service is to be made on a
public corporation, MCR 2.105(G) provides that “[s]ervice of process ... may be
made by serving a summons and a copy of the complaint on” various officials,
officers, or members. When process is served on an individual, it may be done by
“delivering a summons and a copy of the complaint. . . . ” MCR 2.105(A)(1)
(emphasis added). The requirements for proof of service include a description of
the facts of service, including the time, place, and manner of service. MCR
2.104(A)(3). Thus, under our court rules, where service is not done by mailing,
service means delivery at a particular time and place. MCR 2.105(A)(1); MCR
2.104(A)(3). And such service is usually done by a process server. MCR 2.103.
Plaintiff has no evidence of any delivery of her claim, much less formal delivery
such as by a process server. And plaintiff has no “proof of service” as that term is
used in the law.
Under MCR 2.105(H)(1), “[s]ervice of process on a defendant may be
made by serving a summons and a copy of the complaint on an agent authorized
by written appointment or by law to receive service of process.” Under subrule
(2), “[w]henever, pursuant to statute or court rule, service of process is to be made
on a nongovernmental defendant by service on a public officer, service on the
public officer may be made by registered mail addressed to his or her office.”
MCR 2.105(H)(2). Here, there is no evidence that SMART received any notice
by registered mail.
Furthermore, while the process in which service is made is well-specified
in the court rules, the word “service” is not defined in either our court rules or in
the statute at issue here. Therefore, we may consult a legal dictionary to define an
undefined term that has a specific legal meaning. Snyder v Advantage Health
Physicians, 281 Mich App 493, 502; 760 NW2d 834 (2008). In Black’s Law
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Dictionary, the word service is defined as “[t]he formal delivery of a writ,
summons, or other legal process. . . .” Black’s Law Dictionary, at p. 1399 (8th
edition, 2008) (emphasis added).
As the trial court observed, while SMART had in its possession the police
report and the reports prepared by [the driver] and his supervisor, plaintiff did not
“serve” (formally deliver to) SMART notice of plaintiff’s claim for injury as
service is defined in our court rules. [Id., slip op at 4-5.]
The same is unequivocally true here. While SMART had in its possession the incident report
prepared by Henry and a report generated by Fairlane Town Center, plaintiff did not “serve
(formally deliver to) SMART,” id., any notice of his claim for injury within 60 days as mandated
by MCL 124.419. Therefore, the trial court did not err by granting defendants’ motion for
summary disposition.
Plaintiff asserts that, in the event that SMART’s receipt of the incident reports was not
sufficient under the statute, the 60-day time period for providing notice to SMART was tolled
pursuant to MCL 600.5851(1), because the effect of medications he was taking for his injuries
rendered him insane. We disagree.
As previously noted, we review questions of statutory interpretation de novo,
Ambassador Bridge Co, 481 Mich at 35; Morden, 275 Mich App at 340, giving “effect to the
Legislature’s intent, as expressed in the statute’s terms, giving the words of the statute their plain
and ordinary meanings.” Nuculovic, ___ Mich App at ____, slip op at 3. “When the language
poses no ambiguity, this Court need not look outside the statute, nor construe the statute, but
need only enforce the statute as written,” and, this Court will not interpret a statute “in a way that
renders any statutory language surplusage or nugatory.” Id., quoting McManamon v Redford
Charter Twp, 273 Mich App 131, 136; 730 NW2d 757 (2006).
MCL 600.5851(1) provides in relevant part:
Except as otherwise provided in subsections (7) and (8), if the person first
entitled to make an entry or bring an action under this act is under 18 years of age
or insane at the time the claim accrues, the person or those claiming under the
person shall have 1 year after the disability is removed through death or
otherwise, to make the entry or bring the action although the period of limitations
has run . . . . [Emphasis added.]
A statutory notice provision is not the same as a statute of limitations; they have different
objectives and serve different purposes. American States Ins Co v Dep’t of Treasury, 220 Mich
App 586, 599; 560 NW2d 644 (1996); Davis v Farmers Ins Group, 86 Mich App 45, 47; 272
NW2d 334 (1978). Statutory notice provisions provide time to investigate and appropriate funds
for settlement purposes, while statutes of limitations prevent stale claims and put an end to the
fear of litigation. Blackwell v Borstein, 100 Mich App 550, 554-555; 299 NW2d (1980); Davis,
86 Mich App at 47. The 60-day notice provision of MCL 124.419 is not a statute of limitation or
repose. The plain language of MCL 600.5851(1) unequivocally provides that it pertains only to
“period[s] of limitation.” Therefore, we conclude that the savings provision set forth in MCL
600.5851(1) does not apply to the notice provision set forth in MCL 124.419.
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We affirm.
/s/ Deborah A. Servitto
/s/ Richard A. Bandstra
/s/ Karen M. Fort Hood
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