Notice of Intent to Sue Government Sent to Third Party Claims Administrator Insufficient to Invoke Exception to Governmental Immunity – Court of Appeals Publishes Decision Holds Notice to Third-Party Claims Administrator Insufficient to Give Government Notice of Claim of Defective Sidewalk

On August 1, 2013, the Court of Appeals released a decision for publication in the case of McLean v. City of Dearborn, clarifying the strict requirements that notice of a claim for defective sidewalks under the highway exception to governmental immunity must be served on the individuals authorized by the governmental immunity statute, not the third-party claims administrator.  Under MCL 691.1404 a plaintiff must provide the requisite specificity with their notice to a governmental entity to perfect a claim and to allow the courts to exercise subject matter jurisdiction over the underlying claim against the government.  Here, the Court rules the first notice plaintiff’s attorney sent to the governmental entity was insufficient in the degree of specificity required by the statute, failing to note the exact nature and location of the alleged defect.  The Court further rules, on the primary issue in the case, that a corrective notice letter sent to the governmental entity’s claims administrator was insufficient because it was not addressed and served upon the proper governmental entity or its agents for receipt of such notice.

The dissenting judge argued the court rules allow service upon a person authorized in writing or by law to receive such notice and there was at least a question of fact as to whether the particular claims administrator was so authorized.

The decision is published and garnered one dissent.  It is likely to be challenged in the Supreme Court.  However, recent trends in cases addressing notice provisions are leaning more towards the underlying notion that governmental immunity is jurisdictional in nature.  Therefore, any defect in the attempt to assert a claim against the government, be it technical or substantive, is deemed a failure of the party asserting the claim to prove the Legislature intended, in the particular case, to vest the judiciary with subject matter jurisdiction over claims against the government.  As the saying goes, the state, i.e., the sovereign created the courts and so is not subject to them or their jurisdiction without the expression of the people’s will to so submit.  Such expressions come from the Legislature in the few statutory exceptions available to pursue claims against the government in the Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq.  Absent strict compliance with these provisions, the courts simply cannot exercise jurisdiction over the merits  of the claim.

Although this jurisdictional theme has only been obliquely addressed, there is a clear line of precedent to support the theory and the common law of governmental immunity prevails still in Michigan absent express legislative waiver.  I argued Atkins v. SMART, 492 Mich. 708 (2012) before the high court in part on this theory.  While the Court reversed the lower court and ruled in our favor there, it did so on the notion that strict compliance is required with notice provisions waiving the government’s suit immunity.  It did not directly address the preclusive jurisdictional argument I presented; although courts may sua sponte challenge a lower tribunal’s exercise of subject matter jurisdiction over a particular case, even at the highest appellate level.

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