Vivian Nickens v. Cheryl Thomas
328302
| Mich. Ct. App. | Nov 29, 2016Background
- On July 26, 2011, Vivian Nickens, a passenger on a SMART bus driven by Cheryl Thomas, fell and struck her head after allegedly erratic driving and distracted cell-phone use by the driver.
- SMART prepared an incident report the day of the accident; plaintiff had an IME and applied for PIP benefits, but SMART/its claims rep paid only ER bills and denied further benefits.
- Plaintiff did not serve written notice of a third‑party tort claim on SMART within 60 days of the occurrence as required by MCL 124.419; she averred she was not told she needed to file such notice because SMART/ASU were "handling it."
- In August 2013 Nickens sued SMART (negligence, IIED, MCPA) and sought PIP; those claims (tort and MCPA) were dismissed for failure to comply with MCL 124.419; PIP claim went to arbitration.
- In July 2014 Nickens sued driver Thomas individually (gross negligence, IIED); the trial court granted summary disposition for Thomas on the same 60‑day notice ground; court of appeals affirmed and also noted res judicata and rejected constitutional challenges.
Issues
| Issue | Nickens' Argument | Thomas' Argument | Held |
|---|---|---|---|
| Whether MCL 124.419's 60‑day written notice applies to claims against an individual bus driver | MCL 124.419 applies only to suits against the transportation authority (SMART), not to individual governmental employees sued under MCL 691.1407 | The statute applies broadly to "all claims that may arise in connection with the transportation authority," including claims against employee drivers | Applied: 60‑day notice requirement covers claims against the driver; Nickens failed to comply, so suit barred |
| Whether an application for PIP or SMART's incident report satisfies MCL 124.419 notice | Argued PIP application and SMART/ASU's handling (or SMART's institutional knowledge) sufficed as notice | Statutory notice must be written and served within 60 days; PIP filing or incident report does not satisfy the statute (Atkins) | Rejected: PIP application and institutional knowledge do not satisfy MCL 124.419 (Atkins controlling) |
| Whether intentional tort (IIED) is exempt from MCL 124.419 | IIED is an intentional tort and not subject to the notice requirement; also argued immunity doesn't apply to intentional torts | MCL 124.419's language "all claims" includes intentional torts; governmental immunity may nevertheless apply in some intentional‑tort contexts | Rejected: IIED claim is subject to the 60‑day notice requirement; intentional torts are not exempt from MCL 124.419 |
| Constitutional challenges to MCL 124.419 (Title‑Object, due process, equal protection) | Claimed Title‑Object violation because MTAA title would not reasonably notify of a requirement to give notice for claims against an individual driver; raised vague due process/equal protection claims | Statute is germane to MTAA title, gives fair notice; distinctions for notice have rational basis and are permissible | Rejected: No Title‑Object defect; due process/equal protection arguments inadequately developed and fail under precedent |
Key Cases Cited
- Atkins v. Suburban Mobility Auth. for Reg’l Transp., 492 Mich. 707 (2012) (statutory 60‑day written notice under MCL 124.419 required; PIP application and institutional knowledge do not substitute for written notice)
- Nuculovic v. Hill, 287 Mich. App. 58 (2010) (MCL 124.419 applies to claims against individual drivers arising from operation of the carrier)
- Richards v. Tibaldi, 272 Mich. App. 522 (2006) (elements and purposes of res judicata)
- Peterson Novelties, Inc. v. City of Berkley, 259 Mich. App. 1 (2003) (definition and effect of privies for res judicata)
- Odom v. Wayne County, 482 Mich. 459 (2008) (framework for individual governmental immunity under MCL 691.1407)
- Pohutski v. City of Allen Park, 465 Mich. 675 (2002) (title‑object analysis; germane legislation doctrine)
- Mudge v. Macomb County, 458 Mich. 87 (1998) (appellate brief must adequately develop arguments)
- Rowland v. Washtenaw County Rd. Comm’n, 477 Mich. 197 (2007) (rational‑basis review permits distinctions between classes for statutory treatment)
- Bonner v. City of Brighton, 298 Mich. App. 693 (2012) (discussion of notice statutes and due process in municipal claims)
- Reich v. State Highway Dep’t, 386 Mich. 617 (1972) (historical equal‑protection challenge to pre‑suit notice requirements)