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Court majority dismisses fall claim because victim only identified injury to City's responding adjuster

Michigan allows an injured person to sue a municipality if her or his injury resulted from a defective sidewalk or highway crossing.  To pursue such a claim, however, the victim must send a formal notice to the City, in writing, identifying the location, injury, witnesses and other details.  Further, the notice must be provided within 120 days of the injury and it must be served on a statutorily-designated officer, or an agent designated by the municipality.

Patricia McLean stepped in a pothole in a City of Dearborn crosswalk and fractured her ankle.  Five days later, she sent a proper notice to the City, however, her attorneys did not identify her injury.  They thought the problem was cured, however, when days later they sent a follow-up letter to the City adjuster who responded to McLean's notice.   The trial judge thought so, too, when the City asked him to dismiss the case for inadequate notice.

This week, however, two very insurance-oriented Court of Appeals' judges, Christopher Murray and Mark Boonstra, overturned the lower court.   They ruled that McLean's case must be dismissed because she had no written proof that the adjuster had been designated by the City to receive Injury Notice. 

In the past, the Michigan courts applied a "prejudice" or "substantial compliance" standard to these arguments, essentially enforcing a rule of "no harm no foul."  That is, if the notice requirement was substantially met and allowed the municipality prompt, adequate investigation, it was deemed sufficient.  After insurance-oriented Republicans gained a majority on the Supreme Court, however, this decades-old standard was rejected and victims were required to provide notice that was "exact," even if the municipality suffered no prejudice or harm.

Murray and Boonstra followed that policy with a vengeance in the instant case.  They ruled that even when the victim timely provided the City with all of the notice requirements in a written response to the adjuster engaged by the City, the notice was defective and McLean's case must be permanently dismissed. 

The dissentiing judge pointed out that the original notice was properly served on the City Manager and lacked only the identification of the injury (a fractured ankle).  When a designated claims adjuster responded to the notice, written confirmation of the nature of the injury was provided to him. It made no sense to the dissenting judge to hold that the adjuster was not designated to receive notice, particularly given that the City did not make that argument in the lower court.  Needless to say, we agree.  The decision is another that elevates form and insurance interests above justice.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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