CHRISTINA MCCAHAN V SAMUEL KELLY BRENNAN
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STATE OF MICHIGAN
COURT OF APPEALS
CHRISTINA McCAHAN,
FOR PUBLICATION
February 1, 2011
9:00 a.m.
Plaintiff-Appellant,
v
No. 292379
Court of Claims
LC No. 08-000147-MZ
SAMUEL KELLY BRENNAN,
Defendant,
and
UNIVERSITY OF MICHIGAN REGENTS,
Defendant-Appellee.
Before: SAWYER, P.J., and FITZGERALD and SAAD, JJ.
SAWYER, P.J.
Plaintiff appeals from the court order granting defendant summary disposition. MCR
2.116(C)(8) and (10). We affirm.
On December 12, 2007, plaintiff was injured in a car accident with a student on the
University of Michigan’s campus. The student was driving a car owned by the university, while
on university business. On May 7, 2008, plaintiff’s counsel sent a letter to the university
indicating that plaintiff’s counsel intended to represent plaintiff in a lawsuit over the car
accident. On October 31, 2008, plaintiff filed a Notice of Intent with the Court of Claims that
was signed by plaintiff and plaintiff’s counsel. The trial court granted summary disposition in
favor of defendant because plaintiff had not complied with MCL 600.6431(3).
The language of MCL 600.6431 clearly states the steps a plaintiff must take in order to
make a claim against the state:
(1) No claims may be maintained against the state unless the claimant,
within 1 year after such claim has accrued, files in the office of the clerk of the
Court of Claims either a written notice of intention to file a claim against the state
or any of its departments, commissions, boards, institutions, arms or agencies,
stating the time when and the place where such a claim arose and in detail the
nature of the same and of the items of damage alleged or claimed to have been
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sustained, which claim or notice shall be signed and verified by the claimant
before an officer authorized to administer oaths.
***
(3) 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 itself
within 6 months following the happening of the event giving rise to the cause of
action.
The filing requirement is a condition precedent to sue the state. Reich v State, 43 Mich
App 284, 289; 204 NW2d 226 (1972). When interpreting statutes, the court looks to the language
of a statute first. Only if a statute is ambiguous or in conflict with another provision does a judge
clarify through judicial construction. Mayor of Lansing v Pub Serv Comm, 470 Mich 154, 166;
680 NW2d 840 (2004). The Legislature is presumed to have written the statute to mean what the
Legislature intended it to mean. People v Gardner, 482 Mich 41, 50; 753 NW2d 78 (2008);
Rowland v Washtenaw Co Rd Comm, 447 Mich 197, 219; 731 NW2d 41 (2007). MCL
600.6431(3) clearly states that plaintiffs with personal injury claims shall file with the Court of
Claims within six months of the event giving rise to the claim.
Plaintiff argues that she has substantially complied with the statute, but substantial
compliance does not satisfy MCL 600.6431(3). Section (3) clearly states that a “claimant shall
file with the clerk of the Court of Claims. . . . within 6 months following the happening of the
event.” (Emphasis added.) The word “shall” designates a mandatory provision. Walters v Nadell,
481 Mich 377, 383; 751 NW2d 431 (2008); People v Francisco, 474 Mich 82, 87; 711 NW2d 44
(2006). Clear statutory language must be enforced as written. Flour-Enterprises, Inc v Dep’t of
Treas, 477 Mich 170, 714; 730 NW2d 72 (2007), cert den 552 US 950; 128 S Ct 391; 169 L Ed
2d 264 (2007); People v Gillis, 474 Mich 105, 115; 712 NW2d 419 (2006). Here, because
plaintiff brought a personal injury claim, plaintiff had to file a notice of intention to file a claim
with the Court of Claims within six months of the accident. She did not. The facts show that
plaintiff filed a notice of intention to file a claim with the Court of Claims months past the sixmonth statutory requirement. Plaintiff has not complied with the requirements of MCL
600.6431(3).
Plaintiff also argues that the state must show prejudice when a plaintiff does not comply
with a statutory filing requirement. But in Rowland, the Michigan Supreme Court overturned
several cases that had required the state to show actual prejudice when a plaintiff failed to
comply with a statutory filing requirement. Id. at 200, 213. The Court in Rowland stated that
because the language of the statute was clear on the filing requirement, the Court would not give
the statute any judicial construction. The filing requirement was strictly applied. Id. at 200.
(interpreting MCL 691.1404’s 120 days’ filing requirement). The Court in Rowland returned to
the well-founded principle that the Legislature is presumed to have written what the Legislature
meant, and judges will not use judicial construction where the meaning of a statute is clear.
Rowland, 477 Mich at 219. The filing requirement must be applied as it is written.
We recognize that Rowland dealt with a different notice requirement than does this case.
There does not appear to be any published decision of either this Court or the Supreme Court that
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definitively determines whether the Rowland rationale should also be applied to the notice
requirements of MCL 600.6431. Indeed, two justices of the Supreme Court disagreed on this
point in separate opinions to an order denying leave to appeal in Beasley v State of Michigan,
483 Mich 1025; 765 NW2d 608 (2009). Chief Justice KELLY, in her concurring statement,
rejected the defendant’s argument that Rowland should be applied to the notice provision of
MCL 600.6431(3), concluding that Rowland was distinguishable because it dealt with a different
statutory provision. 483 Mich at 1025. Justice CORRIGAN, on the other hand, in her dissenting
statement to the denial of leave to appeal, opined that Rowland does apply to the notice
provisions of MCL 600.6431. In particular, she noted that Rowland “rejected earlier caselaw
that had assumed notice provisions are unconstitutional if they do not contain a prejudice
requirement,” as well as the fact that the notice requirement in Rowland “is substantially
identical” to the notice provisions of MCL 600.6431. Beasley, 483 Mich at 1028. Justice
CORRIGAN also noted that the statute clearly provides that no claim may be maintained unless the
notice is filed with the Court of Claims, which did not happen. Id.
We conclude that Justice CORRIGAN’s view represents the better interpretation of the
issue. While Rowland did directly deal with a claim arising under the defective highway
exception to governmental immunity, we, like Justice CORRIGAN, are not persuaded that the
Rowland rationale is somehow limited to MCL 691.1404. Indeed, one of the cases that Rowland
reviewed and rejected, Carver v McKernan, 390 Mich 96; 211 NW2d 24 (1973), dealt with a sixmonth notice requirement under the Motor Vehicle Accident Claims Act, MCL 257.1118. In
rejecting Carver and other cases, Rowland stated that “[i]n reading an ‘actual prejudice’
requirement into the statute, this Court not only usurped the Legislature’s power but
simultaneously made legislative amendment to make what the Legislature wanted—a notice
provision with no prejudice requirement—impossible.” Rowland, 477 Mich at 213. Ultimately,
Rowland, 477 Mich at 219, concluded that “MCL 691.1404 is straightforward, clear,
unambiguous, and not constitutionally suspect. Accordingly, we conclude that it must be
enforced as written.” The same can be said of MCL 600.6431(3).1
In sum, plaintiff did not comply with the plain language of the filing requirement of MCL
600.6431(3). Section (3) clearly requires that a plaintiff with a personal injury claim against the
state must file with the clerk of the Court of Claims within six months of the event giving rise to
the claim. Plaintiff did not file with the Court of Claims until several months after the six-month
1
Judge SAWYER acknowledges that he was previously a member of panel that issued an
unpublished per curiam opinion that reached a different conclusion. Cunmulaj v Chaney (Docket
Nos. 282264 and 282265, issued 2/12/2009). Specifically, that opinion reaches the conclusion
that “[t]here is no reason to extend our Supreme Court’s holding [in Rowland] to overturn the
previous standard of substantial compliance with statutory notice requirements in other statutes.”
Slip op at 3. Because Cunmulaj is an unpublished opinion, it is of course not precedentially
binding. MCR 7.215(C)(1). Judge SAWYER, upon giving the matter further consideration, is
now persuaded that Cunmulaj erroneously decided this point and disavows that opinion to the
extent that it conflicts with the opinion in the case at bar.
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deadline had passed. Accordingly, the trial court properly granted summary disposition to
defendant.
Affirmed. Defendant may tax costs.
/s/ David H. Sawyer
/s/ Henry William Saad
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