This summary also appears under Negligence & Intentional Tort
Issues: Governmental immunity; Whether the trial court properly granted defendant's motion for summary disposition for failure to comply with the notice requirement of MCL 600.6431(3); Odom v. Wayne Cnty.; Arguments based on exceptions to the statute of limitations; Gleason v. Michigan Dep't of Transp.; The notice requirement as a condition precedent to suing the state; McCahan v. Brennan; Whether defendant should be equitably estopped from relying on MCL 600.6431(3); Moore v. First Sec. Cas. Co.; Futility of any amendment to the complaint; Franchino v. Franchino; Additional discovery; CMI Int'l, Inc. v. Intermet Int'l Corp.; Central Michigan University (CMU)
Court: Michigan Court of Appeals (Unpublished)
Case Name: Brewer v. Central MI Univ. Bd. of Trs.
e-Journal Number: 55876
Judge(s): Per Curiam – Meter, Servitto, and Riordan
The court held that because plaintiff failed to comply with the mandatory notice provision in MCL 600.6431, the trial court properly granted the defendant's motion for summary disposition pursuant to governmental immunity. Plaintiff was on active duty in the U.S. military when he was assigned to the ROTC program at CMU. His duties included shooting instruction at CMU's shooting range. Plaintiff claimed that due to his ongoing medical issues, he was forced to leave his position at the shooting range and obtain a medical retirement from the military. He claimed that after he left the range, "defendant closed it due to lead contamination and repaired the faulty ventilation and target retrieval systems. According to plaintiff, he was diagnosed with lead poisoning" in 5/11. In 8/11, he provided notice of his injury to defendant and later filed suit. Defendant successfully moved for summary disposition arguing that plaintiff failed to satisfy MCL 600.6431(3). Plaintiff argued that because of fraudulent concealment, and the fiduciary relationship he had with defendant, the notice provisions of MCL 600.6431(3) were not triggered until 5/11, when a doctor informed him about his lead poisoning. However, his arguments were based on exceptions to the statute of limitations. The notice requirement of MCL 600.6431(3) "is not a statute of limitations, a savings provision, or a tolling provision. Instead, it 'is a condition precedent to sue the state.'" Strict compliance with the statute is required, and "a plaintiff's failure to comply strictly with the notice provision warrants dismissal of the claim, even if no prejudice resulted." The happening of the event giving rise to the cause of action was the alleged lead poisoning that occurred, at the latest, in 1998 at CMU. "Plaintiff spent years knowingly exposing himself to lead particles while working at the range, as he had observed lead dust in the water and on the floor. He also was aware of his injuries in 1998 or before, as he claimed he was experiencing significant medical issues like peripheral neuropath seizures, memory loss, headaches, and other disabling physical ailments when working at CMU." However, he did not notify defendant of any possible connection to his position at CMU nor did he provide the requisite notice under MCL 600.6431(3) until years after the six-month period had expired. Because the undisputed record showed that plaintiff failed to satisfy MCL 600.6431(3), the court held that the trial court correctly granted defendant's motion for summary disposition. Further, to the extent that he argued defendant should be equitably estopped from relying on MCL 600.6431(3), the Supreme Court has held in the context of MCL 600.6431, "when the Legislature specifically qualifies the ability to bring a claim against the state or its subdivisions on a plaintiff's meeting certain requirements that the plaintiff fails to meet, no saving construction - such as requiring a defendant to prove actual prejudice - is allowed." Affirmed.
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