Carver v. McKernan

T. G. Kavanagh, J.

We are called upon in this case to decide whether the notice requirement of 1965 PA 198, § 18 as amended by 1968 PA 223, § 1, MCLA 257.1118; MSA 9.2818 known as the Motor Vehicle Accident Claims Act is unconstitutional as violative of the due process and equal protection provisions of the United States1 and Michigan2 Constitutions.

The facts giving rise to the claim are not in dispute.

On June 29, 1969 plaintiffs were passengers in a car which was struck in the rear by. another vehicle which did not stop. A check of its license plate subsequently established that was owned by defendant McKernan.

Plaintiffs filed a claim with defendant Mc-Kernan’s insurance carrier, but it was denied on the ground that the McKernan car was not driven with the express or implied consent of the owner.

Thereafter, on January 15, 1971, the instant suit was started against defendant McKernan, John Doe (the unknown driver) and the Secretary of State.

The Secretary of State’s motion for accelerated judgment on the basis of plaintiffs’ failure to give notice of intent to claim against the Motor Vehicle Accident Claim Fund within six months of the accrual of the cause of action was granted "for reason that notice to the Secretary of State as required by the statute was not timely filed”.

*99We granted bypass of the Court of Appeals because we are convinced that the validity of the notice requirement presents a recurring problem in the administration of this Act, and the resolution of the question of its validity is of major importance to the jurisprudence of the state.

At the outset, we acknowledge frankly that statutes which limit access to the courts by people seeking redress for wrongs are not looked upon with favor by us. We acquiesce in the enforcement of statutes of limitation when we are not persuaded that they unduly restrict such access, but we look askance at devices such as notice requirements which have the effect of shortening the period of time set forth in such statutes.

In the combined cases of Lisee v Secretary of State and Howell v Lazaruk, 388 Mich 32; 199 NW2d 188 (1972), we held that in Howell the Secretary of State had actual notice and in Lisee the Secretary was estopped to plead failure to give notice under the circumstances of that case. We held that the purpose of the notice requirement of § 18 was to afford the Secretary opportunity to investigate the claim so as to prepare his defense and to determine possible liability of the fund.

Justices T. E. Brennan and Black dissented from our holding in Lisee (Howell) on the ground that the purpose of the notice requirement might be something other than to afford time for investigation and suggested that it might have been inserted to allow for creating reserves and anticipating future demands on the fund or to force the claimant to an early choice of whether to proceed against the fund. (The time period of § 18 considered in Lisee then stood at one year. The period was shortened to six months effective July 1, 1968.)

*100By positing a legitimate purpose for the notice provision we are constrained to hold that § 18 does not necessarily violate the constitution.

But, even though some notice requirement may be permitted, a particular provision may still be constitutionally deficient. We must consider the time specified in the notice for an extremely short period may be unreasonable. What period is reasonable in part depends on what purpose the notice serves. Because we cannot say with certainty what purpose the Legislature had in mind in providing for this notice, we are not prepared to say that the six month period provided by this statute is unreasonable as a matter of law.

The failure to give notice may result in prejudice to the fund according to whatever reason justifies the notice requirement. Whenever the Secretary claims to have been prejudiced by the lack of notice, he should be afforded the opportunity to show such prejudice.

While we decline to declare that the notice requirement of § 18 is constitutionally defective, we hold that only upon a showing of prejudice by failure to give such notice, may the claim against the fund be dismissed.

In this case since the complaint was dismissed on motion, without such showing of prejudice, the order of dismissal is set aside, and the claim against the fund reinstated and the matter remanded for further proceedings pursuant to this opinion.

No costs, a public question.

T. M. Kavanagh, C. J., and Swainson, Williams, and Levin, JJ., concurred with T. G. Kavanagh, J.

US Const, Am XIV, § 1.

Const 1963, art 1, § 17; Const 1963, art 1, § 2.