Negligence & Intentional Tort
The court held in this bus/bicyclist accident that plaintiff-Smith complied with, or at least substantially complied, with the notice required by MCL 124.419, and estoppel and waiver principles precluded defendant-SMART from asserting plaintiff failed to comply with the notice requirement. Further, the court held that the plaintiff sufficiently pleaded allegations in avoidance of governmental immunity, and genuine issues of material fact existed as to whether the defendant's bus driver was negligent. Thus, the court reversed and remanded. The case arose when plaintiff, while on a bicycle, was allegedly forced by one of defendant's buses into a curb, causing plaintiff to crash and suffer injuries. The next day, plaintiff called defendant's call center and reported that he was struck by one of its buses. The case was assigned to M, employed as a "claims adjuster" by defendant's insurer, ASU Group. M had a brief phone conversation with plaintiff about the accident. The next day M had an in-person interview with plaintiff, which was recorded. The interview addressed plaintiff's injuries, damages to his bike, and whether he sought medical treatment. In an e-mail to defendant, M said that plaintiff had scrapes and bruises, damage to his "older" 10 speed bike, had no health insurance, and he and his wife did not own a vehicle. Plaintiff made a police report. Later, defendant called plaintiff and discussed his claim and was told his abrasions could be infected but he had not seen a doctor. M said he explained the "no-fault" procedure and that a doctor would need to complete a form to verify his injuries. Subsequently, a senior claims examiner sent plaintiff a letter denying his claim. The court held, inter alia, that plaintiff substantially complied with the statute where he never submitted a written notice to SMART. The court noted the statute does not provide that it must be the plaintiff or injured party that serves the notice. M delivered an e-mail, which the court found qualified as a writing to defendant, in which it was informed of the nature of the accident and the injuries to plaintiff, who was described as the claimant. Also, the e-mail was received within 60 days of the accident. The court also concluded that while e-mails are not expressly contemplated in MCR 2.102-2.105, the act of defendant's insurer sending the e-mail at issue to defendant constituted a formal delivery or service of a written claim on defendant. The court found the delivery of the e-mail constituted substantial compliance with the service requirement of MCL 124.419, a concept not addressed in Nuculovic.