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A Better Partnership
August 02, 2013

COA holds notice to third-party administrator insufficient to comply with highway exception to governmental immunity

In McLean v. City of Dearborn, the Michigan Court of Appeals held that plaintiffs who wish to sue under the highway exception to governmental tort liability must give the right notice to the right person.  The right person is someone who can accept service on behalf of the governmental entity, i.e. the mayor, city clerk, or the city attorney.  So the plaintiff's slip-and-fall claim was barred by governmental immunity because she only sent proper notice to the City's third-party claims administrator.  The court reached this conclusion because the highway exception to governmental immunity, MCL  691.1402(2), requires that notice be served on an individual who can be served with process on behalf of the governmental agency.  MCR 2.105(G)(2) says those individuals are the "mayor, the city clerk, or the city attorney of a city."  The court reasoned that there was no evidence the third-party administrator was authorized by written appointment or law to receive service, and so the notice was not compliant.  This, even though the third-party administrator had written to the plaintiff and requested further information about her claim.  Accordingly, the appellate court reversed the trial court's denial of summary disposition on the basis of governmental immunity.
The dissent argued that the plaintiff had at least created an issue of material fact that she complied with the notice requirement.  The dissent reasoned that the plaintiff should not have the burden to provide evidence that the City had not appointed the third-party administrator in writing, but instead the City should be required to support that argument once the plaintiff offered her letters as evidence.  The dissent also argued that the issue was not properly raised before the trial court because the City never challenged service on the third-party administrator but simply argued that service had to be on the mayor, city clerk, or city attorney.

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