Supreme Court Reverses Michigan Court of Appeals in Last “60-Day Notice” Case Pending and Rejects “Judicial Estoppel” Argument to Avoid Strict Compliance with Statutory Notice Provision to Sue Governmental Entities

Yesterday, on the basis of Atkins v. SMART, 492 Mich. 707 (2012), which I secured in the Supreme Court in August, after presenting oral argument to the Court on the application in March, the Michigan Supreme Court issued an order reversing the Court of Appeals decision in Smith v. SMART, ___ Mich. ___ (December 14, 2012) (Supreme Court Docket No. 142515).  This was the last pending case residing in the Court (on application for leave to appeal by defendant, SMART), which had been filed prior to the opinion in Atkins, supra.

This current case was particularly interesting because the Court of Appeals panel had applied a principle of “judicial estoppel” in finding that plaintiff could pursue the cause of action despite not strictly complying with the 60-day statutory notice provision; MCL 124.419.

As expected, this reversal cites the decision I secured in Atkins v. SMART, 492 Mich. 707 (2012), as authority for the ruling.

See the order here:  Smith Order December 14, 2012

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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