Disagreement in Court of Appeals over "substantial compliance" with notice requirement
A decision issued by the Court of Appeals this week illuminates a disagreement within the Court over how strictly to interpret a Notice requirement. Prior to when the so-called "Engler Majority" took control of the Michigan Supreme Court, it was routinely held that the short 60-day and 120-day notice requirements in government claims statutes would only be enforced where the governmental entity proved prejudice resulting from the victim's delay in notice. (Prejudice would be inferred, for example, where evidence was lost, a road was repaired, or a witness could no longer be identified.) The Engler Majority ruled that any claimant who did not comply with the notice requirements would not be allowed to sue, regardless of whether the governmental entity was prejudiced by the injury victim's failure to give notice.
The Engler Majority did not explicit address, however, whether "substantial compliance" with the notice requirements would be adequate, or whether a governmental entity might lose its ability to enforce a notice requirement as a result of its own behavior. These issues came up in Mark Smith v. Suburban Mobility Authority for Regional Transportation (i.e. SMART). Smith was allegedly injured by a SMART bus while on his bicycle.
Smith called SMART the following day and reported the incident and his injuries. Under the no fault law, he would be entitled to collect his medical expenses from the owner of the bus involved. SMART sent an investigator to interview him. The investigator took a recorded statement and then e-mailed a "claim" report to SMART. Neither SMART nor its investigator ever asked Smith for a written claim. Nevertheless, SMART declined to pay Smith's medical expenses, because he had not submitted a written claim form and the immunity statute requires that a "written claim" be submitted within 60 days of the incident.The Wayne County Circuit Judge dismissed Smith's claim. On appeal, the insurer for SMART relied upon the Nuculovic v. Hill case, where a previous panel of the Court held that a claim should be dismissed, even though the governmental authority had the Police Report of an injury incident in its possession prior to the 60 day deadline.
The Court of Appeals majority in Smith concluded that regardless of prior cases, Smith had substantially complied with the notice requirement, and furthermore, that by its activity in this case, SMART was estopped or precluded as a matter of fairness, from asserting the notice issue. Judge Patrick Meter would have enforced the notice requirement against Smith and upheld the dismissal of his case.