Court of Appeals grants City of Trenton immunity because part of required notice information went to City's insurer
In a continuing abomination of justice, Judge Kirsten F. Kelly and another Court of Appeals judge reversed the lower court and granted immunity to a government actor because an injured woman's attorney provided some of the statutorily-required injury notice information through the City's insurer. For historical reasons that no longer make good sense, government actors start out with immunity for their mistakes. Legislation going back half a century in Michigan created exceptions allowing some governmental units and individuals to be held responsible for some mistakes. Part of that legislation requires injured people to serve a notice of injury on the governmental entity within, typically, 60 or 120 days of injury.
Historically, the Michigan Supreme Court repeatedly held that "substantial compliance" with the statutory notice requirements was sufficient and that valid cases would not be dismissed because of a notice defect unless the governmental unit could identify a prejudice it suffered as a result of the defect. The Republican majority on the current Supreme Court over-ruled this longstanding precedent, however, and held a few years ago that any defect in a statutory notice would wipe out the injury victim's claim; it held that no proof of prejudice was necessary or even relevant.
Another Kirsten Kelly opinion this week enforced this new analysis to the point of absurdity. Catherine McCarthy attempted to sue the City of Trenton after she suffered injury allegedly caused by City negligence. She mailed her notice of injury by first-class mail to the mayor and city clerk without including a description of her injuries--because they were timely described in detail to the insurance representative assigned to the case by the City. The City admitted receiving the notice but argued that because it wasn't complete and served by civil process, McCarthy's case must be permanently dismissed.
The trial judge rejected the City's Motion for Summary Disposition and it appealed. It had the good fortune of drawing a Court of Appeals panel that included two insurance-oriented judges. They cited an earlier Court of Appeals opinion that applied the Supreme Court's revised interpretation of the law to invalidate any claim that includes any technical defect and reversed the trial judge.
To his credit, Judge Michael Kelly filed a dissenting opinion pointing out the gross unfairness and unreasonableness of allowing municipalities to assign the investigation of injuries to an insurance representative, and then allowing them to "disavow" the "notice" of injury the investigators receive.