Opinion
No. 334129
11-21-2017
WILLIAM EVENNOU, Plaintiff-Appellee, v. DTE GAS COMPANY, Defendant, and DEPARTMENT OF TRANSPORTATION, Defendant-Appellant.
UNPUBLISHED Court of Claims
LC No. 13-000091-MD Before: O'CONNELL, P.J., and MURPHY and K. F. KELLY, JJ. PER CURIAM.
In this action brought pursuant to the highway exception to governmental immunity, MCL 691.1404, defendant Department of Transportation appeals as of right the Court of Claims's denial of a motion for summary disposition premised on MCR 2.116(C)(7) (immunity granted by law). The Department asserted that plaintiff, William Evennou, failed to provide proper notice, as required by MCL 691.1404(1), because he did not list three physicians who treated him after the accident. We affirm.
Defendant DTE Gas Company is not a party to this appeal because Evennou agreed to dismiss his claims against DTE.
I. FACTUAL AND PROCEDURAL BACKGROUND
In July 2011, Evennou was driving his motorcycle down Woodward Avenue in Highland Park in the far left lane. As he moved into the center lane, his motorcycle struck a "very large sinkhole or depressed area of pavement in the middle" of the lane, abruptly stopping his motorcycle, propelling him onto the pavement and causing him various injuries.
In September 2011, Evennou filed a notice of intent to sue the Department. The notice described the time, place, and nature of the claim. It also listed witnesses, Evennou's injuries, and damages.
After the close of discovery, the Department filed a motion for summary disposition under MCR 2.116(C)(7) on the basis of governmental immunity. The Department argued that the notice was defective because it did not provide "the names of the witnesses known at the time[,]" as required by MCL 691.1404(1). The Department contended that the notice did not identify two orthopedic surgeons and a family physician who could testify about Evennou's injuries following the accident. Evennou admitted that he knew the names of the three treating physicians before the end of 120-day notice period and that he did not list them as witnesses in his notice, but he disagreed that MCL 691.1404(1) required him to list them. The Court of Claims agreed with Evennou and denied the Department's motion for summary disposition.
II. STANDARD OF REVIEW
We review "de novo the trial court's decision on a motion for summary disposition under MCR 2.116(C)(7)." Milot v Dep't of Transp, 318 Mich App 272, 275; 897 NW2d 248 (2016). Summary disposition under MCR 2.116(C)(7) is proper if a grant of immunity bars the claim. Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008). Moreover, if the facts are not in dispute, whether governmental immunity bars the plaintiff's claim under MCR 2.116(C)(7) is a legal question reviewed de novo. Moraccini v Sterling Heights, 296 Mich App 387, 391; 822 NW2d 799 (2012).
III. DISCUSSION
The governmental tort liability act, MCL 691.1401 et seq., generally immunizes governmental agencies from tort liability. Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 202; 731 NW2d 41 (2007). The highway exception permits plaintiffs to bring claims for injuries resulting from a government agency's failure to maintain roads "in reasonable repair . . . ." MCL 691.1402(1). To sue for these injuries, a plaintiff must provide notice of the defect in the road:
(1) As a condition to any recovery for injuries sustained by reason of any defective highway, the injured person, within 120 days from the time the injury occurred, except as otherwise provided in subsection (3) shall serve a notice on the governmental agency of the occurrence of the injury and the defect. The notice shall specify the exact location and nature of the defect, the injury sustained, and the names of the witnesses known at the time by the claimant.
(2) . . . If required by the legislative body or chief administrative officer of the responsible governmental agency, the claimant shall appear to testify, if he is physically able to do so, and shall produce his witnesses before the legislative body, a committee thereof, or the chief administrative officer, or his deputy, or a legal officer of the governmental agency as directed by the legislative body or chief administrative officer of the responsible governmental agency, for examination under oath as to the claim, the amount thereof, and the extent of the injury. [MCL 691.1404.]
In this case, the trial court reasoned that this statutory notice requirement referred to witnesses to the accident itself, not to medical providers who later treated Evennou's injuries. In a subsequent published opinion, this Court reached the same conclusion:
We conclude that, when read in context, these provisions indicate that the relevant witnesses under MCL 691.1404 are those persons who witnessed the "occurrence of the injury and the defect." In other words, the plaintiff must list on his or her notice of intent the names of those witnesses who have pertinent information about the accident itself, not all witnesses who have knowledge of the subsequently revealed extent of the plaintiff's injuries. [Milot, 318 Mich App at 278.]
Accordingly, Evennou was not required to list the names of the treating physicians in the notice because they were not witnesses to the accident. Milot disposes of the Department's arguments to the contrary. Thus, the trial court did not err by denying the Department's motion for summary disposition.
We decline the Department's invitation to declare a conflict and convene a special panel under MCR 7.215(J). We note that our Supreme Court denied leave to appeal in Milot v Dep't of Transp, ___ Mich ___; 901 NW2d 398 (2017). --------
We affirm.
/s/ Peter D. O'Connell
/s/ William B. Murphy
/s/ Kirsten Frank Kelly