McLean v. City of Dearborn
302 Mich. App. 68
| Mich. Ct. App. | 2013Background
- Plaintiff Patricia McLean allegedly tripped in a pothole on a Dearborn public street on July 11, 2008 and received emergency medical treatment that day for a fractured left foot.
- Five days after the accident plaintiff’s counsel sent a presuit letter to the City Manager/Mayor enclosing color photographs describing a “hazardous and defective city street.”
- Broadspire, the city’s third-party claims administrator (TPA), responded requesting information; plaintiff’s counsel sent a supplemental letter to Broadspire on September 16, 2008 describing injuries and enclosing photos/medical information.
- Plaintiff filed suit in July 2010 alleging multiple injuries. Defendant moved for summary disposition under MCR 2.116(C)(7) and (C)(10), arguing statutory presuit notice under MCL 691.1404(1) was deficient.
- The trial court denied defendant’s motion, finding the initial notice (with photographs) adequately described the defect and the letter to Broadspire cured any deficiency as to the injury; the Court of Appeals majority reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the initial July 16, 2008 notice satisfied MCL 691.1404(1)’s requirement to describe the nature and location of the highway defect | McLean: photos + description provided the exact nature and location | City: written description was vague and insufficient to identify the defect | Held: Sufficient — photographs plus description remedied any deficiency as to nature/location of defect |
| Whether the initial notice adequately described the injury sustained as required by MCL 691.1404(1) | McLean: could not be expected to provide full medical detail within five days; term “significant injuries” was adequate | City: description was too vague; did not identify injured body part or nature of injury | Held: Insufficient — “significant injuries” did not specify the injury sustained and failed statutory requirement |
| Whether the September 16, 2008 letter to Broadspire cured the defective initial notice under MCL 691.1404(1) | McLean: supplemental information to Broadspire (the city’s TPA) fulfilled the statute’s piecemeal-notice rule | City: MCL 691.1404(2) and MCR 2.105 require service on persons who may be lawfully served with process; service on a TPA is not sufficient unless authorized | Held: Supplemental letter to Broadspire did not cure the defect — no evidence Broadspire was authorized by written appointment or law to accept service, and rule/statute require service on authorized recipients |
| Whether defendant waived the service/agency objection by not raising it earlier | McLean: argued Broadspire acted as city’s representative and city’s conduct estopped objection (argued on appeal) | City: raised the improper-service-to-TPA issue during motions and in pleadings; did not waive it | Held: No waiver — city raised the improper-service argument at the motion hearing and in responsive pleadings |
Key Cases Cited
- Rowland v Washtenaw Co Rd Comm, 477 Mich 197 (clarifies MCL 691.1404 notice requirements are unambiguous and must be enforced as written)
- Plunkett v Dep’t of Transp, 286 Mich App 168 (ambiguity in defect description may be cured by precise location details and supporting documents)
- Burise v City of Pontiac, 282 Mich App 646 (supplemental notice received within 120 days can supply missing elements of initial notice)
- Grimes v Dep’t of Transp, 475 Mich 72 (highway exception to governmental immunity is narrow)
- Meredith v City of Melvindale, 381 Mich 572 (notice requirement should not be construed so strictly as to defeat ordinary claimants)