Opinion
No. 334342
01-18-2018
KIMBERLY GARZA, Plaintiff-Appellee, v. CITY OF DETROIT, Defendant-Appellant.
UNPUBLISHED Wayne Circuit Court
LC No. 15-015952-NO Before: MURRAY, P.J., and FORT HOOD and GLEICHER, JJ. PER CURIAM.
In this lawsuit brought under the "highway exception" of the Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq., defendant appeals as of right the trial court's order denying its motion for summary disposition under MCR 2.116(C)(7), asserting governmental immunity. Because we agree with defendant that plaintiff did not give proper notice as required by MCL 691.1404, we reverse the trial court's order and remand for entry of an order granting summary disposition in defendant's favor.
I. BACKGROUND
Plaintiff Kimberly Garza filed a complaint against defendant in which she alleged that she sustained injuries when she tripped and fell in an area of missing concrete on Indiana Street in Detroit. Under MCL 691.1404, a condition of recovery for injuries allegedly caused by such highway defects is the service of a notice upon the governmental agency having responsibility for maintaining the highway in question within 120 days of the alleged injury. It is undisputed here that plaintiff prepared and timely sent such a notice, and there is no dispute about the sufficiency of the content of the notice. What is disputed is whether the notice was properly served and, therefore, whether plaintiff's lawsuit successfully avoided governmental immunity.
Defendant argued that because the statute requires that the notice be served on an "individual" upon whom service on a governmental agency may be made, and because MCR 2.105(G)(2) mandates cities be served through their mayor, city clerk, or city attorney, plaintiff improperly served her notice by mailing it simply to the "City of Detroit Law Department" instead of individually to defendant's corporation counsel. Defendant therefore sought summary disposition on the basis of governmental immunity, arguing that the failure to properly serve notice was fatal to plaintiff's claim. Plaintiff countered by arguing that it did not matter that she did not individually serve defendant's corporation counsel because she mailed the notice to the Detroit Law Department, which the corporation counsel heads, and an agent of that department received and acknowledged receiving the notice. Plaintiff argued that this meant she had properly served the notice and, thus, defendant was not entitled to summary disposition.
MCR 2.105(G) provides that "service of process may be made on an officer having substantially the same duties as those named or described above, irrespective of title." Defendant Corporation Counsel is its city attorney. See Detroit Charter, art 7.5, ch 2, § 7.5-201.
The trial court ruled in plaintiff's favor, concluding that defendant was "estopped" from asserting that the notice had been improperly served because defendant's employee had sent an acknowledgment letter. It entered an order denying defendant's summary disposition motion, and this appeal followed.
II. STANDARD OF REVIEW
This Court "review[s] de novo a circuit court's summary disposition ruling." Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). "Statutory interpretation is a question of law that is reviewed de novo on appeal." McGoldrick v Holiday Amusements, Inc, 242 Mich App 286, 292; 618 NW2d 98 (2000).
III. PROPER NOTICE UNDER MCL 691.1404
"The governmental tort liability act, MCL 691.1401 et seq., provides immunity from tort claims to governmental agencies engaged in a governmental function, as well as governmental officers, agents or employees." McLean v Dearborn, 302 Mich App 68, 73; 836 NW2d 916 (2013). The GTLA has several exceptions permitting tort claims against governmental agencies, including the "highway exception" of MCL 691.1402(1), which permits lawsuits alleging injuries sustained by defects in a "highway." A plaintiff alleging injury based on a highway defect must properly serve notice under MCL 691.1404, to avoid the defense of governmental immunity. MCL 691.1404(1) provides that, as a "condition" of such a lawsuit, a notice must be served on the governmental agency having jurisdiction over the highway in question:
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 . . . 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. [MCL 691.1404(1).]MCL 691.1404(2) requires the notice to either be personally served or mailed via certified mail to any "individual" upon whom service can lawfully be made with respect to the governmental agency at issue:
The notice may be served upon any individual, either personally, or by certified mail, return receipt requested, who may lawfully be served with civil process directed against the governmental agency, anything to the contrary in the charter of any municipal corporation notwithstanding. [MCL 691.1404(2).]With respect to a city, the "individual[s] . . . who may lawfully be served" are the city's mayor, city clerk, or city attorney:
The statute provides that "notice may be served upon any individual . . . who may lawfully be served with civil process directed against the government agency. . . ." Id. MCR 2.105(G)(2) provides that service of process may be made on "the mayor, the city clerk, or the city attorney of a city." [McLean, 302 Mich App at 78, quoting MCL 691.1404(2) and MCR 2.105(G)(2).]
Our Supreme Court has held that a plaintiff's failure to comply with the notice requirement of MCL 691.1404 is fatal to a plaintiff's attempt to pursue a lawsuit under the highway exception. Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 219; 731 NW2d 41 (2007). In so holding, the Court overruled previous precedent that had required a governmental agency to show actual prejudice from a failure to provide proper notice. Id. at 213-214. Explaining that "MCL 691.1404 is straightforward, clear, unambiguous, and not constitutionally suspect," the Court "conclude[d] that it must be enforced as written." Id. at 219.
In McLean, this Court held that the plain language of MCL 691.1404 and MCR 2.105(G)(2) required service of notice on a city's mayor, city clerk, or city attorney, unless some other person "was authorized by written appointment or law to accept service on behalf of" the city. McLean, 302 Mich App at 80, citing MCR 2.105(H)(1). In McLean, the plaintiff served the notice required by MCL 691.1404, on a third-party administrator Dearborn had contracted with to handle claims against the city. The plaintiff in McLean argued, much like plaintiff argues here, that the fact that the third-party administrator responded to her notice led her to believe that the administrator was Dearborn's agent with respect to her claim. Id. at 79. But this Court rejected that argument, concluding that there was no evidence that Dearborn had made a written appointment or law authorizing the third-party administrator to act as Dearborn's agent for the acceptance of service of process. Id. at 80-81.
There is no dispute that plaintiff did not serve an "individual" who can lawfully accept process for defendant. She sent a letter to the "City of Detroit Law Department," but not defendant's city attorney individually. She argued that the letter acknowledging her notice was evidence that her claim had been properly served. But she presents no evidence that defendant had ever authorized anyone other than its mayor, city clerk, or corporation counsel to accept service of process. See McLean, 302 Mich App at 80 (for service of the notice required under MCL 691.1404 to be properly served on anyone other than those three individuals, there must be an official act of the city showing that someone else "was authorized by written appointment or law to accept service on behalf of" the city). In fact, defendant's ordinance mandates compliance with the "law of the state" as a condition for recovery, providing that "[a]ll claims of whatever kind against the city must be filed in accordance with the general law of the state applicable to the filing of claims against governmental agencies; otherwise no claim for money or damages may be brought against the city." Detroit Ordinances § 2-4-23. Plaintiff's failure to serve a person specified in the statute precludes her claim as a matter of law. Wigfall v Detroit, ___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No. 333448); slip op at 2.
Plaintiff asserts that because MCL 691.1404 and MCR 2.105(G)(2) use the word "may" in setting forth who must be served with the statutory notice, and because "may" is typically a permissive term, she was free to serve her notice upon whomever within the city government was authorized to accept and open mail. But to accept plaintiff's argument would require us to ignore the plain language of the statute that requires service of the notice "upon any individual . . . who may lawfully be served with civil process directed against the government agency," McLean, 302 Mich App at 78, quoting MCL 691.1404(2), and hold that a plaintiff may simply serve "any individual" within city government. This we decline to do, as we cannot ignore the plain language of the statute. As our Supreme Court has noted, the use of the word "may" in statutes designating who within a city government may be served is not meant to permit any person in the city government to be served, but rather "to designate those upon whom service should be made and no other," stressing that any other construction in the context of a large city government would be "illogical:"
In the instant case, what language could logically be inserted following that reading "service of process may be made * * * against cities upon the mayor," etc.? Should it be "and no other officer or employee" or "any other officer or employee?" We think the intent was to designate those upon whom service should be made and no other. Any other construction in the light of the multitude of officers and employees required to operate a complex modern municipal government would be illogical. [Brooke v Brooke, 272 Mich 627, 630; 262 NW 426 (1935).]Because the statute plainly limits service of the notice to "individuals" in a governmental agency authorized by law to accept process served on the agency, and because MCR 2.105(G)(2) provides that only three individuals in a city are permitted to be served, plaintiff's notice was defective because she failed to serve one of those three individuals with her notice.
Plaintiff also argues that the trial court correctly ruled that defendant is barred by equitable estoppel from asserting improper service of the notice as a basis for governmental immunity because defendant's employee mailed a letter acknowledging plaintiff's claim. "Equitable estoppel may arise where (1) a party, by representations, admissions, or silence intentionally or negligently induces another party to believe facts, (2) the other party justifiably relies and acts on that belief, and (3) the other party is prejudiced if the first party is allowed to deny the existence of those facts." Conagra, Inc v Farmers State Bank, 237 Mich App 109, 141; 602 NW2d 390 (1999).
Wigfall is again dispositive, as our Court rejected these same estoppel arguments. Wigfall, ___ Mich App at ___; slip op at 3-4. MCL 691.1404 and MCR 2.105(G)(2) make clear who must be served with the notice, and plaintiff did not serve any of the specified individuals. Defendant has enacted an ordinance stressing that compliance with state law is mandatory if one wishes to sustain a claim against defendant. A plaintiff cannot reasonably rely on a letter from a city employee that merely acknowledges that the employee (and not one of the officers specified in MCR 2.105(G)(2)) has received the plaintiff's notice as excusing the failure to follow the explicit requirements of state law, the court rules, and city ordinances. Wigfall, ___ Mich App at ___; slip op at 3-4.
IV. CONCLUSION
Because plaintiff did not serve the notice required under MCL 691.1404 upon defendant's mayor, city clerk, or city attorney, her notice was defective, and she cannot maintain a claim under the highway exception to the GTLA. Accordingly, the trial court erred in denying defendant's motion for summary disposition on the basis of governmental immunity.
Reversed and remanded for entry of an order granting summary disposition in defendant's favor. We do not retain jurisdiction.
No costs to either side. MCR 7.219(A).
/s/ Christopher M. Murray
/s/ Karen M. Fort Hood