CHRISTINA MCCAHAN V SAMUEL KELLY BRENNAN
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STATE OF MICHIGAN
COURT OF APPEALS
CHRISTINA McCAHAN,
FOR PUBLICATION
February 1, 2011
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.
FITZGERALD, J. (dissenting).
The majority concludes, on the basis of Rowland v Washtenaw Co Rd Comm, 447 Mich
197; 731 NW2d 41 (2007), that plaintiff’s failure to comply with the plain language of the notice
requirement of MCL 600.6431(3) mandated summary disposition in favor of defendant. Because
the case before us construes a statute other than MCL 600.6431(3), I respectfully dissent for the
reasons stated by Judge Murphy in his dissenting opinion in Property and Casualty Insurance Co
of the Hartford v Dep’t of Transportation, unpublished opinion per curiam opinion of the Court
of Appeals, issued April 22, 2010 (Docket No. 285749), which I quote in its entirety and whose
reasoning I adopt:
Because Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731 NW2d
41 (2007), did not construe the language in MCL 600.6431(3), and because our
Supreme Court has evidently decided not to extend the holding in Rowland to
MCL 600.6431(3), I am not prepared to disavow May v Dep’t of Natural
Resources, 140 Mich App 730; 365 NW2d 192 (1985).1 In May, this Court held
that a plaintiff’s claims are not barred by failure to comply with MCL
600.6431(3) unless the defendant established that it was prejudiced by the
noncompliance. May has not been reversed or explicitly overruled.
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Rowland interpreted MCL 691.1404(1), which differs from the statute at
issue here, MCL 600.6431(3). MCL 691.1404(1) provides that compliance with
the notice provision is “a condition to any recovery for injuries sustained by
reason of any defective highway;” however, MCL 600.6431(3) does not contain
comparable “recovery precondition” language. More importantly, our own
Supreme Court does not appear to be prepared to extend the holding in Rowland
to MCL 600.6431(3). In Beasley v Michigan, 483 Mich 1025; 765 NW2d 608
(2009), the Michigan Supreme Court denied an application for leave to appeal
relative to an order of this Court that had denied leave to appeal, which in turn
pertained to an order by the Court of Claims denying summary disposition to the
state. As reflected in a concurring opinion issued by CHIEF JUSTICE KELLY in
Beasley, the state brought the motion for summary disposition on the basis that
the plaintiff, who had been injured in a motor vehicle accident involving a stateowned vehicle, failed to comply with the notice requirement of MCL
600.6431(3). Thus, while I recognize that Supreme Court orders denying leave
do not have precedential value, the order does appear to signal a mindset that
Rowland is inapplicable to MCL 600.6431(3).
Until the Supreme Court decides to substantively address the impact of
Rowland on MCL 600.6431(1), which I encourage it to do as soon as possible, I
will continue to recognize and respect this Court’s decision in May. In my
opinion, it defies logic to dismiss plaintiffs’ claims here, where in Beasley the
plaintiff is being permitted to proceed in the Court of Claims with the apparent
blessing of the Supreme Court.
I would reverse the order granting summary disposition in favor of defendant. While in
some cases under MCL 600.6431(3) a remand for a determination whether a defendant can
establish that it was prejudiced by a plaintiff’s failure to file a claim with the Court of Claims
within six months of the accident will be warranted, such a remand in this case is not necessary.
The accident occurred on December 12, 2007. On May 7, 2008, plaintiff’s counsel sent a letter
to the university, addressed to the office of legal counsel, indicating that counsel intended to
represent plaintiff in a lawsuit over the accident. On May 28, 2007, a senior claims
representative of the University of Michigan Risk Management Services sent a letter to
plaintiff’s counsel acknowledging counsel’s letter and indicating that the university would
conduct a full investigation into the accident. The representative also requested additional
information about the accident. The university’s counsel was also provided a copy of the letter
from the representative. Clearly, the university had actual knowledge of plaintiff’s intention to
file a claim within six months following the accident. Under these circumstances, I would
remand for trial.
/s/ E. Thomas Fitzgerald
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