Order Michigan Supreme Court
Lansing, Michigan
May 29, 2009 Marilyn Kelly,
Chief Justice
137414 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
JOSHUA BEASLEY, Diane M. Hathaway,
Plaintiff-Appellee, Justices
v SC: 137414
COA: 283725
Ct of Claims: 07-000117-MZ
STATE OF MICHIGAN, and
RAYMOND A. MILES,
Defendants-Appellants.
_________________________________________/
On order of the Court, the application for leave to appeal the August 22, 2008
order of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the question presented should be reviewed by this Court.
KELLY, C.J. (concurring).
Plaintiff was injured in an automobile accident involving a state-owned vehicle
driven by a state employee. The employee reported the accident to the state, which
assigned the matter to its contractual insurance administrator, Crawford and Company.
James Turner, who worked for Crawford, contacted plaintiff and gave him the claim
number assigned to the accident.
Turner obtained information from plaintiff about the accident and his injuries.
Later, plaintiff’s attorney advised Crawford to forward all future correspondence and
inquiries to him. Over the next few months, plaintiff’s attorney and Crawford exchanged
letters and medical records about plaintiff’s injuries. Turner eventually advised
plaintiff’s attorney that the state would not settle.
Plaintiff then sued both the driver and the state. Defendant sought summary
disposition relying on Rowland v Washtenaw Co Rd Comm,1 claiming that plaintiff had
1
Rowland v Washtenaw Co Rd Comm, 477 Mich 197 (2007).
2
failed to comply with the six-month notice requirement of MCL 600.6431(3). The Court
of Claims denied the motion, and the Court of Appeals denied leave to appeal.
Defendant here renews its argument that plaintiff failed to comply with the notice
requirement in MCL 600.6431(3). It contends that the reasoning in Rowland is directly
applicable to this case. However, it is not. Rowland interpreted the notice provision of
MCL 691.1404(1). This case is governed by an entirely different provision–MCL
600.6431(3). Therefore, although Rowland may be similar to this case, it is
distinguishable. Rowland does not dictate the outcome here because it involves a
different statutory provision.
Justice Corrigan asserts that the Court “simply ignores precedents with which it
disagrees.” She is mistaken. In each of the cases in which Justice Corrigan claims the
Court has ignored precedent, including this one, the Court has simply denied leave to
appeal. When the Court denies leave to appeal, it does not comment on the merits of a
case. Likewise, it is “well-settled that nothing of precedential significance should be
deduced from an order of this Court denying leave [to appeal].”2
Nor would it be accurate to assert that, by denying leave, the Court implicitly
ignored precedent in these cases. For example, Justice Corrigan claims that in
Vanslembrouck v Halperin,3 the Court ignored Vega v Lakeland Hosps.4 However,
Vanslembrouck is distinguishable from Vega because Vega determined that MCL
600.5851(1) is a saving provision, whereas Vanslembrouck held that MCL 600.5851(7) is
a statute of limitations. Thus, these cases examined the effect of altogether different
statutory provisions.
Justice Corrigan also claims that in Hardacre v Saginaw Vascular Services,5 the
Court failed to follow Boodt v Borgess Med Ctr.6 However, in Hardacre, the Court
denied leave to appeal because the allegations in the plaintiff’s notice of intent to find an
action did not need to comply with Boodt. In Hardacre, the burden of explication of the
standard of care was minimal.7
2
Forton v Laszar, 463 Mich 969, 971 (2001) (Kelly, J., concurring), citing Tebo v
Havlik, 418 Mich 350, 363 n 2 (1984); see also MCR 7.321.
3
Vanslembrouck v Halperin, 483 Mich ___ (Docket No. 135893, order entered April 24,
2009).
4
Vega v Lakeland Hosps, 479 Mich 243 (2007).
5
Hardacre v Saginaw Vascular Services, 483 Mich 913 (Docket No. 135706, order
entered March 27, 2009).
6
Boodt v Borgess Med Ctr, 481 Mich 558 (2008).
7
See Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 694 n 12 (2004).
3
Nor did the Court “ignore precedents with which it disagrees” in Sazima v
Shepherd Bar & Restaurant.8 Justice Corrigan claims that the Court failed to follow
Chrysler v Blue Arrow Transport Lines.9 However, Sazima involved exceptions to the
“going and coming” rule as set forth in Camburn v Northwest School Dist.10 Thus, the
Court was not bound by Chrysler.
Finally, Justice Corrigan claims the Court ignored Smith v Khouri11 when it
decided Juarez v Holbrook.12 However, in Juarez, it was undisputed that the trial court
performed a reasonableness analysis in calculating the proper attorney fee award.
Therefore, a remand in light of Smith was unnecessary.
Simply put, Justice Corrigan would prefer that the Court extend precedent to facts
and circumstances that the precedent does not reach. She erroneously contends that, by
denying leave to appeal and not extending the precedent, the Court is undermining
predictability in the law.13
In summary, I concur in the Court’s order denying defendant’s application for
leave to appeal in this case. I also reject as inaccurate Justice Corrigan’s contention that
the Court has been ignoring precedent.
CORRIGAN, J. (dissenting).
In this personal injury case arising from a motor vehicle collision with a state-
owned vehicle driven by a state employee, I would remand to the Court of Appeals for
consideration as on leave granted. Defendant, the state of Michigan, argues with some
force that plaintiff’s claim may not be maintained because he did not file the statutorily
required notice of his claim within six months of his accident.
8
Sazima v Shepherd Bar & Restaurant, 483 Mich ___ (Docket No. 136940, order
entered April 3, 2009).
9
Chrysler v Blue Arrow Transport Lines, 295 Mich 606 (1940).
10
Camburn v Northwest School Dist, 459 Mich 471, 478 (1999).
11
Smith v Khouri, 481 Mich 519 (2008).
12
Juarez v Holbrook, 483 Mich ___ (Docket No. 137358, order entered April 24, 2009).
13
Justice Corrigan wishes to extend the Court’s reasoning in Rowland to MCL
600.6431(3) based on her belief that to hold otherwise would “subvert[] both the
language and the purpose of the statutory directive.” Post at 5. I reiterate that, unless this
case involves MCL 691.1404(1), which it most clearly does not, our decision to deny
leave to appeal is not an “apparent detour[] from stare decisis.” Post at 6.
4
The notice provision in MCL 600.6431 provides:
(1) No claim may be maintained against the state unless the
claimant, within 1 year after such claim has accrued, files in the office of
the clerk of the court of claims either a written claim or a written notice of
intention to file a claim against the state or any of its departments,
commissions, boards, institutions, arms or agencies, stating the time when
and the place where such claim arose and in detail the nature of the same
and of the items of damage alleged or claimed to have been sustained,
which claim or notice shall be signed and verified by the claimant before an
officer authorized to administer oaths.
(2) Such claim or notice shall designate any department,
commission, board, institution, arm or agency of the state involved in
connection with such claim, and a copy of such claim or notice shall be
furnished to the clerk at the time of the filing of the original for transmittal
to the attorney general and to each of the departments, commissions,
boards, institutions, arms or agencies designated.
(3) In all actions for property damage or personal injuries, claimant
shall file with the clerk of the court of claims a notice of intention to file a
claim or the claim itself within 6 months following the happening of the
event giving rise to the cause of action. [Emphasis added.]
The statutory language is clear. Subsections 1 and 3 together provide that in all
actions for personal injuries, “[n]o claim may be maintained against the state” unless the
claimant files the required notice of the claim or the claim itself within 6 months of the
accrual of the claim. Here, it is undisputed that plaintiff filed no notice whatsoever and
that he did not file his claim until approximately three years after the accident.
Plaintiff’s failure to file the required notice in the Court of Claims bars his action
regardless whether, as the Court of Claims found, the state’s “insurance carrier was put
on notice regarding this claim.” Statutory notice provisions must be enforced as written.
In Rowland v Washtenaw Co Rd Comm, 477 Mich 197 (2007), the plaintiff filed a written
notice after 140 days, thus failing to meet the 120-day deadline of the notice provision in
the highway exception to governmental immunity, MCL 691.1404(1). This Court
rejected earlier caselaw14 that had assumed notice provisions are unconstitutional if they
do not contain a prejudice requirement. Rowland, supra at 210. This Court agreed with
Justice Riley’s dissent in Brown v Manistee Co Rd Comm, 452 Mich 354 (1996), that the
notice provision is social legislation that has a rational basis. “‘Notice provisions
rationally and reasonably provide the state with the opportunity to investigate and
14
See Hobbs v Dep’t of State Hwys, 398 Mich 90, 96 (1976), and Brown v Manistee Co
Rd Comm, 452 Mich 354, 356-357 (1996).
5
evaluate a claim.’” Rowland, supra at 210, quoting Brown, supra at 370 (Riley, J.,
dissenting). Other reasons for requiring notice include “allowing time for creating
reserves for the [Motor Vehicle Accident Claims] Fund, reducing the uncertainty of the
extent of future demands, or even to force the claimant to an early choice regarding how
to proceed.” Rowland, supra at 212, citing the dissent in the consolidated cases of Lisee
v Secretary of State and Howell v Lazaruk, 388 Mich 32 (1972). All these reasons
provided a rational basis that assured the constitutionality of the notice provision.
Rowland, supra at 212.
The notice provision at issue here is substantively identical to the provision in
Rowland. It provides that “[n]o claim may be maintained against the state” unless the
notice is filed in the Court of Claims within the prescribed time. Plaintiff did not file any
notice. The Court of Claims holding that the state had notice “because the [state’s]
insurance carrier was put on notice regarding this claim” is completely at odds with this
Court’s holding in Rowland.
The failure of the Court of Claims to enforce the notice requirement subverts both
the language and the purpose of the statutory directive. MCL 600.6431, by requiring the
filing in the Court of Claims of a signed and verified notice “stating the time when and
the place where such claim arose and in detail the nature of the same and of the items of
damage alleged or claimed to have been sustained,” ensures that the notice will afford the
state an opportunity to evaluate the claim and prepare for potential litigation. It also
forces the claimant to specify “in detail” the nature of the claim and the types of damages
alleged. By contrast, a mere informal communication with an insurance representative
does not provide notice in the statutorily required manner that would assist the state in its
evaluation and preparation of the case, nor does it force the claimant to make an early
choice on how to proceed in the same way as does the signed and verified written notice
required by MCL 600.6431.
In short, the statute requires the claimant to file a particular type of notice in a
particular place, the Court of Claims. Nothing in the statute permits notice to be
communicated informally through an insurance representative. The judicial branch does
not possess the authority to override the Legislature’s chosen method of providing notice.
Finally, the new majority’s failure to abide by Rowland continues a growing and
troubling trend. Rather than forthrightly overruling that decision, it is increasingly
becoming the practice of this Court to simply ignore precedents with which it disagrees.
See, e.g., VanSlembrouck v Halperin, 483 Mich ___ (Docket No. 135893, order entered
April 24, 2009), in which the new majority ignored Vega v Lakeland Hospitals, 479 Mich
243, 244 (2007); Hardacre v Saginaw Vascular Services, 483 Mich 913 (Docket No.
135706, order entered March 27, 2009), in which it failed to follow Boodt v Borgess Med
Ctr, 481 Mich 558 (2008); Sazima v Shepherd Bar & Restaurant, 483 Mich ___ (Docket
No. 136940, order entered April 3, 2009), in which it failed to follow Chrysler v Blue
6
Arrow Transport Lines, 295 Mich 606 (1940); and Camburn v Northwest School Dist
(After Remand), 459 Mich 471 (1999), and Juarez v Holbrook, 483 Mich ___ (Docket
No. 137358, order entered April 24, 2009), in which it failed to follow Smith v Khouri,
481 Mich 519 (2008).
In her concurrence, Chief Justice Kelly attempts to explain away the new
majority’s actions by sharing her views regarding the prior caselaw that the new majority
has otherwise chosen to ignore. But Chief Justice Kelly’s interpretation of a prior case in
a concurring statement is not a decision of the Court. More importantly, her argument
overlooks the fundamental problem: the new majority’s continuing failure to explain its
apparent disregard of this Court’s precedent undermines the predictability and stability of
the rule of law.
In Van Orden v Perry, 545 US 677, 697 (2005), a concurring justice similarly
criticized the United States Supreme Court’s Establishment Clause precedents as being so
flexible that they were “incapable of consistent application.” The concurring justice
explained that “[t]he unintelligibility of this Court’s precedent raises the further concern
that, either in appearance or in fact, adjudication of Establishment Clause challenges
turns on judicial predilections. . . . The outcome of constitutional cases ought to rest on
firmer grounds than the personal preferences of judges.” Id. (Thomas, J., concurring).
The concerns expressed in Van Orden find ample support in United States
Supreme Court caselaw, which has long recognized the importance of a coherent body of
law. See, e.g., Hilton v South Carolina Pub Railways Comm, 502 US 197, 202 (1991)
(stating that adherence to precedent promotes stability and predictability). Legal
principles should not change erratically; rather, the law should “develop in a principled
and intelligible fashion.” Vasquez v Hillery, 474 US 254, 265 (1986) (emphasis added).
“While stare decisis is not an inexorable command, the careful observer will discern that
any detours from the straight path of stare decisis in our past have occurred for
articulable reasons . . . .” Id. at 266 (emphasis added).
On this Court, the new majority offers no articulable reasons whatsoever for its
apparent detours from stare decisis. Instead, the majority declines to explain whether—
and, if so, why—it is overruling precedent despite the obvious appearance that it is doing
so. If it intends to alter legal principles embedded in this Court’s decisions, then the new
majority should explain its reasons clearly and intelligibly. Instead, the new majority
overrules by indirection, or at least leaves the impression that it is doing so, thereby
sowing the seeds of confusion and making it difficult for the citizens of this state to
comprehend precisely what our caselaw requires. This appears to be an unfortunate
return to our predecessors’ past practice of “frequently pa[ying] little attention to the
inconsistencies among its cases and declin[ing] to reduce confusion in [the Court’s]
7
jurisprudence by overruling conflicting decisions.” Devillers v Auto Club Ins Ass’n, 473
Mich 562, 571 n 19 (2005).
Accordingly, I would remand this case to the Court of Appeals for consideration
as on leave granted. Defendant advances a compelling argument that because plaintiff
did not file the statutorily required notice in the Court of Claims within six months of his
accident, his claim may not be maintained under the plain language of MCL 600.6431.
YOUNG and MARKMAN, JJ., join the statement of CORRIGAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 29, 2009 _________________________________________
l0526 Clerk