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Blogs | June 9, 2015
3 minute read

MSC holds that the government may raise defective notice as an immunity defense at any time

Immunity is not an affirmative defense, but a characteristic of government; and it is the plaintiff’s burden to plead and prove the government waived that immunity.  For that reason, the Michigan Supreme Court held in the consolidated cases of Fairley v. Dep’t of Corrections and Stone v. Michigan State Police, Nos. 149722 and 149940, that the defendant agencies were entitled to summary disposition, regardless of their failure to plead immunity.  One of the conditions to waiver of immunity under the Government Tort Liability Act is the timely service of a proper notice of intent to file a claim. There was no material factual dispute that Plaintiff Fairley failed to sign his notice and that Plaintiff Stone’s was not properly notarized.  Consequently, neither
plaintiff could show the government had waived immunity.

Plaintiff Fairley brought an action against the Michigan Department of Corrections (MDOC) after an MDOC vehicle ran a red light and struck Fairley’s vehicle. Fairley’s counsel filed a notice of intent to file a claim against MDOC, but Fairley herself did not sign the notice.  MDOC moved for summary disposition on the ground that the notice was defective because it lacked Fairley’s signature. The Court of Claims denied MDOC’s motion, ruling that it had waived this argument by failing to timely plead it as an affirmative defense. The Court of Appeals affirmed the Court of Claims’ determination.

Plaintiff Stone sued the Michigan State Police (MSP) for injuries sustained when two MSP patrol cars struck her vehicle. Stone filed a notice of intent to file a claim against the MSP without indicating that it had been verified before a notary public. The MSP moved for summary disposition on the ground that the notice was defective. The Court of Claims granted MSP’s motion and determined that, although Stone’s counsel later averred he was a notary public, that fact was not apparent from the notice. The Court of Appeals reversed and held that MCL 600.6431(1), which provides requirements for a claimant filing against the state, does not require that the oath or affirmation appear on the face of the notice and that a failure to comply with the procedural prerequisites of MCL 600.6431(1) is an affirmative defense that is waived if not timely raised.

The Michigan Supreme Court reversed both decisions.  First, the court held that a notice of intent to file suit against a state department must be signed by the party and notarized before an officer authorized to administer oaths or else the notice will be declared defective. The Court also held that the faulty notice argument is a complete defense that may be raised at any time by a department entitled to governmental immunity. The Court reasoned that MCL 600.6431 establishes conditions precedent for avoiding governmental immunity conferred by the Governmental Tort Liability Act, MCL 691.1401 et seq. As a result, plaintiffs were required to adhere to the notice requirements in MCL 600.6431(1) to successfully expose defendants to liability under the motor vehicle exception to governmental immunity. The notice in Fairley was not signed by the claimant, and the notice in Stone did not indicate that it had been verified before an officer authorized to administer oaths, contrary to the express requirements in MCL 600.6431(1). Therefore, in lieu of granting leave to appeal, the Michigan Supreme Court peremptorily reversed the judgment of the Court of Appeals in both cases and remanded them to the Court of Claims for entry of orders granting defendants’ motions for summary disposition.