Opinion
Docket No. 16654.
Decided May 29, 1974. Leave to appeal applied for.
Appeal from Court of Claims, Robert E.A. Boyle, J. Submitted Division 1 April 3, 1974, at Detroit. (Docket No. 16654.) Decided May 29, 1974. Leave to appeal applied for.
Complaint by Joseph Navarra against the Board of Regents of the University of Michigan for damages arising out of a construction contract. Judgment for defendant. Plaintiff appeals. Affirmed.
Bronson Egnor (by Walter K. Hamilton), for plaintiff. Roderick K. Daane, for defendant.
Plaintiff brought suit on October 27, 1971, against the defendant Board of Regents for claims arising out of a contract between the parties. It is alleged that on August 15, 1967 plaintiff contracted to perform certain construction work for a housing development at the University of Michigan. Although defendant and plaintiff disagree on when this cause of action accrued, it is argued by plaintiff that August 14, 1969 was the last date he was on the job, which would be more than two years prior to the filing of his complaint.
Defendants moved for an accelerated judgment on the ground that plaintiff had not filed either a written claim or notice of intent to file a claim within one year of the time the action had accrued. MCLA 600.6431(1); MSA 27A.6431(1). The motion was granted in the Court of Claims and plaintiff appeals attacking the constitutionality of the one-year notice provision.
Plaintiff relies on the authority of Reich v State Highway Department, 386 Mich. 617; 194 N.W.2d 700 (1972), for support of his argument that the one-year notice provision denies him equal protection of the law. The Court in Reich, supra, was concerned with governmental liability for injuries caused by negligent conduct. In declaring the 60-day notice provision of MCLA 691.1404; MSA 3.996(104) unconstitutional, the Court explained its rationale:
"The object of the legislation [government tort immunity act] under consideration is to waive the immunity of governmental units and agencies from liability for injuries caused by their negligent conduct, thus putting them on an equal footing with private tortfeasors. However, the notice provisions of the statute arbitrarily split the natural class, i.e., all tortfeasors, into two differently treated subclasses: private tortfeasors to whom no notice of claim is owed and governmental tortfeasors to whom notice is owed.
"This diverse treatment of members of a class along the lines of governmental or private tortfeasors bears no reasonable relationship under today's circumstances to the recognized purpose of the Act. It constitutes an arbitrary and unreasonable variance in the treatment of both portions of one natural class and is, therefore, barred by the constitutional guarantees of equal protection." 386 Mich. 623.
Thus, the Court found that no rational basis existed for distinguishing the natural class of tortfeasors, especially where it had previously stated that the purpose of the act was to place government tortfeasors on an equal footing with private tortfeasors. (Emphasis supplied.) Grubaugh v City of St Johns, 384 Mich. 165; 180 N.W.2d 778 (1970).
The action in the instant case is founded not in tort, but on the consensual relationship between two contracting parties. Unlike the plaintiff in Reich, supra, and injured parties in cases following its holding, who had no choice in selecting their tortfeasors, the plaintiff here made a voluntary decision to contract with a state agency. Having made such a choice, the plaintiff may be presumed to know that if a contract claim were to arise, he would be required to file a notice or claim within one year.
Reich v State Highway Commission, 43 Mich. App. 284; 204 N.W.2d 226 (1972); and Friedman v Farmington Township School District, 40 Mich. App. 197; 198 N.W.2d 785 (1972).
Plaintiff's contention that two individuals could not agree to shorten the statute of limitations or require notice is not persuasive. The authors of 51 Am Jur 2d Limitations of Actions, § 64, p 642, have provided dozens of cases where contracting parties have properly made such an agreement. The only question the courts have considered in this regard is whether the period was reasonable. Carver v McKernan, 390 Mich. 96; 211 N.W.2d 24 (1973).
We consider a 1-year notice provision far less prejudicial than one requiring notice in 60 days, 3 months or even 6 months. The notice provision does not so limit a claimant's time to file that it effectively denys him a right of action nor does it require a suit be started within one year. The claimant would still be entitled to the three-year statute of limitations for suit contained in MCLA 600.6452; MSA 27A.6452.
Plaintiff's second allegation is that he substantially complied with the notice provision. We disagree. Unlike the cases relied on for support of substantial compliance, the record indicates that plaintiff did not file any type of notice with the clerk of the Court of Claims. The trial court properly ruled that plaintiff did nothing to comply with the notice requirement.
Affirmed.
All concurred.