Cooke Contracting Co. v. Department of State Highways

Fitzgerald, P. J.

(dissenting). On June 15, 1970 the appellant filed a claim for compensation for "extra work” completed in the performance of a contract for road construction on Seventeen Mile Road in Troy, Michigan.*

The State Highway Department filed a motion for accelerated judgment, alleging that The Cooke *267Contracting Company had failed to comply with the jurisdictional requirements of MCLA 600.6431(1); MSA 27A.6431(1).

Initially, the motion was granted on October 28, 1970, but this order was reversed by this Court in The Cooke Contracting Co v Department of State Highways, 34 Mich App 139; 190 NW2d 683 (1971). A new hearing was conducted on July 23, 1971, and the same motion was granted by an order on February 10, 1972. The order was based upon two alternative grounds: (1) the written claim filed by the contractor failed to contain sufficient information concerning the "time when such claim arose”, or (2) the written claim was not filed within one year after the claim "accrued”.

Taking the facts alleged in the appellant’s complaint as true, the parties entered into a contract "known as Project 63174 E, C2”; and during the performance of the contract, the contractor was required to construct and maintain six temporary bridges and some flasher lights as well as being required to hire "traffic regulators” for approximately 388 hours. These efforts were not specified in the contract. After the contractor demanded payment for these costs, payment was denied by the Highway Department on August 6, 1969.

It is clearly established that statutory notice requirements, specifying the contents of a notice to be filed with the Court of Claims in order to validate a claim, mandates only substantial compliance therewith. Swanson v Marquette, 357 Mich 424, 431-432; 98 NW2d 574, 579 (1959); Meredith v Melvindale, 381 Mich 572, 579; 165 NW2d 7, 11 (1969); Jones v Ypsilanti, 26 Mich App 574, 583-584; 182 NW2d 795, 800 (1970); Kustasz v Detroit, 28 Mich App 312; 184 NW2d 328 (1970).

In State Highway Comm v Court of Claims *268Judge, 40 Mich App 137; 198 NW2d 422 (1972), this Court reviewed the sufficiency of a notice under the same statute and concluded that the notice was legally adequate. With the exception of the date on which the contract was signed, the claim in this case provided the same general information as the notice in the decided case. Also, there were similar administrative proceedings in both cases. Therefore, it follows that the trial court erred in ruling that the contents of the claim were legally insufficient.

Although his position on this question is somewhat equivocal, a review of the arguments during the new hearing which was conducted on July 23, 1971 indicates that counsel for the defendants did not challenge the timeliness of the written claim. Therefore, the alternative ground upon which the trial court based its order was not presented and cannot for a basis for affirming that order.

Assuming arguendo that the timeliness of the plaintiffs claim was properly presented, it appears that the trial court failed to apply the proper standards for determining when the claim "accrued”. "A cause of action 'accrues when a suit may be maintained thereon.” Black’s Law Dictionary (4th ed), p 37. And our Court has ruled that a suit like the present one cannot be maintained until the administrative remedies provided for in the contract have been exhausted. Oak Construction Co v Department of State Highways, 33 Mich App 561; 190 NW2d 296 (1971).

Taking the facts as properly pleaded, the administrative remedies in this case were not exhausted until August 6, 1969. Therefore, the filing of the claim on June 15, 1970 was within the one-year limit contained in MCLA 600.6431(1); MSA 27A.6431(1). Of course, this does not preclude the *269Highway Department from proving that the complaint is erroneous. It simply means that a motion for accelerated judgment could not be properly granted.

I would reverse and remand for a trial on the merits of the plaintiffs claim.

"Extra work” is necessary work done in completing a contract which work was not included in the contract specifications.