Opinion
Docket No. 21022.
Decided September 23, 1975. Leave to appeal applied for.
Appeal from Court of Claims, Kenneth G. Prettie, J. Submitted June 10, 1975, at Lansing. (Docket No. 21022.) Decided September 23, 1975. Leave to appeal applied for.
Complaint by Horner's Trucking Service, Inc. against the Michigan State Highway Department for property damage and contribution contingent upon plaintiff's liability to the operator of another vehicle because of a motor vehicle accident caused by a highway defect. Accelerated judgment for defendant. Plaintiff appeals. Reversed and remanded.
Sommers, Schwartz, Silver, Schwartz, Tyler Gordon, P.C. (by Donald J. Morbach), for plaintiff.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Louis J. Caruso and Myron A. McMillan, Assistants Attorney General, for defendant.
OPINION OF THE COURT
On November 17, 1971 a truck owned by plaintiff was involved in an accident with another motor vehicle on a state highway. Plaintiff filed written notice of the accident, allegedly due to a highway defect, with the Court of Claims on October 25, 1973. Plaintiff commenced suit against the State Highway Department on November 9, 1973, seeking recovery of property damage as well as contribution, the latter being contingent upon plaintiff's liability to the operator of the other vehicle.
This appeal stems from the grant of the State Highway Department's motion for accelerated judgment for failure to file a claim, or intent to so file, within one year, MCLA 600.6431(1); MSA 27A.6431(1).
Plaintiff's appellate theories are essentially threefold: 1) the 120-day notice provision of the sovereign immunity statute is applicable, but void under Hobbs v State Highway Department, 58 Mich. App. 189; 227 N.W.2d 286 (1975); 2) the notice provision in the Court of Claims Act, if applicable, is void under the rationale set forth in Reich v State Highway Department, 386 Mich. 617; 194 N.W.2d 700 (1972); 3) even if the provision is not unconstitutional, plaintiff's claim should not have been dismissed absent a showing of prejudice. Carver v McKernan, 390 Mich. 96; 211 N.W.2d 24 (1973).
MCLA 691.1404; MSA 3.996(104).
Also see, Zimmer v State Highway Dept, 60 Mich. App. 769; 231 N.W.2d 519 (1975), Kerkstra v State Highway Dept, 60 Mich. App. 761; 231 N.W.2d 521 (1975).
MCLA 600.6431(1); MSA 27A.6431(1).
Counsel for the State Highway Department submits that the one-year requirement contained in the Court of Claims Act applies to plaintiff, and is constitutional, Carver v McKernan, supra. He asserts that the Carver quid pro quo for dismissal of a claim upon failure to give notice, to wit, a showing of prejudice by the governmental agency, is inapposite to the jurisdictional requirements in the Court of Claims Act. Gilliland Construction Co v State Highway Department, 4 Mich. App. 618; 145 N.W.2d 384 (1966).
MCLA 691.1402; MSA 3.996(102).
We think plaintiff's initial proposition is correct. However, being correct on the first assertion does not entitle plaintiff to prevail unless plaintiff also succeeds on either assertions two or three. To these, we now turn our attention.
Plaintiff's second contention is unconvincing in light of Hanger v State Highway Dept, 64 Mich. App. 572; 236 N.W.2d 148 (1975), wherein this panel rejects a similar constitutional challenge to the six-month notice requirement in the Court of Claims Act:
"We note, at the outset, that the Supreme Court in Reich did not purport to nullify the notice provisions of the Court of Claims Act, * * *. Therefore, we are not duty-bound by it. Since this Court is of the opinion that Reich is bottomed upon the false premise that the Legislature intended to place public and private tortfeasors on an equal plane, and no longer reflects the existing state of jurisprudential law as espoused by our Supreme Court, we decline to extend its ratio decidendi to invalidate § 6431(3).
* * *
"It has been recognized that `The principal purpose sought to be served by requiring notice is to provide the governmental agency with an opportunity to investigate the claim while the evidentiary trail is still fresh and, additionally, to remedy the defect before other persons are injured'. Hussey v Muskegon Heights, 36 Mich. App. 264, 267-268; 193 N.W.2d 421 (1971), (footnote omitted). Since we perceive these objectives as involving legitimate governmental interests, and because § 6431(3) applies to all persons similarly situated, we are obliged to sustain that provision as against plaintiff's constitutional challenge." 64 Mich App at 580-582. (Footnote omitted.)
The reasons given for upholding the constitutionality of the six-month notice requirement in Hanger, a fortiori, apply to the one-year notice requirement.
Hanger represents a realization of plaintiff's final argument that the standard adopted by our Supreme Court in Carver v McKernan, supra, must be followed in cases which involve § 6431 of the Court of Claims Act. Only a showing of prejudice by the concerned governmental agency will justify dismissal where a claimant has failed to comply with § 6431(1).
The State Highway Department's position that § 6431(1) is jurisdictional would merit consideration but for the Supreme Court decision in Navarra v Board of Regents of the University of Michigan, 393 Mich. 773 (1974). Section 6431(1) reads that "[n]o claim may be maintained against the state" if the claimant fails to file a claim, or intent to file a claim, within one year after accrual. The view that § 6431(1) is jurisdictional is fortified by the dictum of judge (now Chief Justice) KAVANAGH in Gilliland Construction Co v State Highway Department, 4 Mich. App. 618, 621; 145 N.W.2d 384 (1966). However, the Navarra Court applied the Carver standard to a construction contract claim dismissed in the Court of Claims for failure to comply with § 6431(1). Thus, this Court has no choice but to apply the Carver standard to a claim involving tortious conduct. The State Highway Department's argument is better directed to the Supreme Court.
But see Hussey v Muskegon Heights, 36 Mich. App. 264, 270 ; 193 N.W.2d 421 (1971).
Reversed and remanded for proceedings not inconsistent with this opinion. No costs, a public question.
D.F. WALSH, J., concurred.
For the reasons set forth in my separate concurrence in result in Hanger v State Highway Department, 64 Mich. App. 572; 236 N.W.2d 148 (1975), I vote to vacate the order granting accelerated judgment in favor of defendant sovereignty and to remand the cause to the Court of Claims.