Amicus Curiae Brief in Support of 60-Day Statutory Notice Provision for Tort Claims Against Governmental Entities | Pollard v SMART | Carson Tucker – JDSupra

Attached is a link to a recent amicus curiae brief I wrote and filed in the Michigan Supreme Court for the Michigan Defense Trial Counsel regarding the validity and propriety of shortened notice provisions in statutes allowing suits against governmental entities.  In this case, a statutory provision requires written service of notice of a claim against a transportation authority within 60 days of the accident or occurrence.  If the notice is not provided, then the statute bars the cause of action.  No other party raised the issue regarding subject-matter jurisdiction or the lack thereof.

The argument is that since the legislature, as the representative of the “sovereign”, is the only branch of government that can “waive” the sovereign’s immunity from suit, strict compliance with the legislature’s provision actually allowing suit against the governmental entity is required.  Absent such compliance, the trial court in which the claim is asserted simply does not have subject-matter jurisdiction to determine the merits of the claim.  Since this issue may be raised at any time during the proceedings, even on appeal, i.e., sua sponte, I proposed it as an alternative theory for the Court to affirm the Court of Appeals decision reversing the trial court.  Since the plaintiff in the underlying case did not strictly comply with the notice provision, the trial court never had subject-matter jurisdiction over the lawsuit.  Interesting; we’ll see if the Court pays this argument any attention when it issues its order.  My brief is linked below.  Tell me what you think.

(FINAL) MDTC Amicus Brief (Pollard) 1-10-11 (date stamped 1-11-11)

About cjtucker06

Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs. Board of Directors, Michigan Defense Trial Counsel Amicus Committee Co-Chair, Michigan Defense Trial Counsel Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia. United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003 Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
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