MEMORANDUM OPINION.
We consider in these consolidated cases whether a claimant's failure to comply with the notice verification requirements of MCL 600.6431 provides a complete defense in an action against the state or one of its departments. We conclude that a notice lacking any indication that it was signed and verified before an officer authorized to administer oaths is defective and, contrary to the Court of Appeals' conclusion, is a complete defense that may be raised at any time by a defendant entitled to governmental immunity. Accordingly, and in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals in both Stone v. Michigan State Police and Fairley v. Department of Corrections
The purpose of MCL 600.6431 is to establish those conditions precedent to pursuing a claim against the state. One of these conditions provides:
Plainly, then, unless a claimant's notice is "signed and verified by the claimant before an officer authorized to administer oaths," a claim cannot proceed against the state. In both cases here, plaintiffs claim that nothing in the statute requires anyone other than the claimant to sign the notice and successfully argued in the Court of Appeals that defendants' arguments for summary disposition regarding notice were waived because the plaintiffs' alleged noncompliance with the statutory notice requirements was an affirmative defense that was not timely pleaded. Alternatively, defendants, both state agencies entitled to governmental immunity unless an exception applies, contend that complainants must "strictly" comply with the notice requirements in order to proceed. We conclude that failing to indicate anywhere on or with the notice that the document was verified before an officer authorized to administer oaths falls short of "strict" compliance and, as a result, plaintiffs' cases must be dismissed.
On March 11, 2011, plaintiff Michelle Fairley was injured in an automobile accident after a Michigan Department of Corrections (MDOC) vehicle, operated by an MDOC employee, ran a red light and struck Fairley's car. Plaintiff faced life-altering injuries—to the brain, neck, and back—as well as associated pain, suffering, and emotional harm. Plaintiff's counsel subsequently filed a notice of injury and intent to hold MDOC liable in the Court of Claims. The parties do not dispute the timeliness of the notice
After Fairley filed her complaint with the court, defendant responded with more than 20 affirmative defenses. Although none of these defenses argued that plaintiff's notice of intent to file a claim was defective, defendant MDOC filed a motion for summary disposition arguing that plaintiff's notice of intent to file a claim failed to meet the standards set out in MCL 600.6431(1). The Court of Claims denied defendant's motion for summary disposition, citing Kielb v. Wayne State University Board of Governors, unpublished opinion per curiam of the Court of Appeals, issued October 2, 2012 (Docket No. 305927), 2012 WL 4512532 in which the Court held that a defendant waives an issue of noncompliance with MCL 600.6431 if it is not pleaded as an affirmative defense. The Court of Appeals affirmed in an unpublished opinion per curiam.
Lori Stone injured her neck when her stopped car was struck by two Michigan State Police patrol cars on May 19, 2007. Following the accident, Stone underwent surgery to fuse two of her neck vertebrae.
Stone subsequently filed a notice of intent to file a claim with the Court of Claims. As was the case in Fairley, the parties do not dispute the timeliness of the notice or that, at the time of filing, this notice plainly stated the facts surrounding the accident including the location of the accident and the parties involved. The notice concluded with the statement "I declare that the statements above are true to the best of my information, knowledge, and belief." The notice, undated, was signed by plaintiff and signed and "respectfully submitted" by her attorney, John Kline. Nevertheless, more than two years after responding to plaintiff's complaint, defendant filed a motion for summary disposition arguing that the notice supplied by plaintiff's counsel failed to meet the requirements of MCL 600.6431(1). Specifically, at the hearing on the motion, defendant argued:
The Court of Claims agreed with defendant and signed an order granting summary disposition in its favor. In an unpublished opinion per curiam, the Court of Appeals reversed, concluding that the Court of Claims had erred and that the "the statute [MCL 600.6431(1)] does not... require that evidence of the oath or
This Court reviews de novo a lower court's decision to grant or deny a motion for summary disposition.
The issue in these cases is whether plaintiffs' notices were "signed and verified by the claimant before an officer authorized to administer oaths" and if not, whether an ineffective notice in a case involving governmental immunity must nonetheless be pleaded as an affirmative defense or be waived.
Under the government tort liability act (GTLA), MCL 691.1401 et seq., governmental agencies are broadly shielded from tort liability. Here, the defendants are two such agencies: the Department of Corrections and the Michigan State Police. However, the accidents involving plaintiffs Fairley and Stone are alleged to fall within the motor vehicle exception to governmental immunity.
It is well established that governmental immunity is not an affirmative defense, but is instead a characteristic of government. Mack v. Detroit, 467 Mich. 186, 198, 649 N.W.2d 47 (2002). "[I]t is the responsibility of the party seeking to
In MCL 600.6431(1), the Legislature has qualified a claimant's ability to bring a claim against the state by requiring that "the claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths." While the Court of Appeals observed that "[t]he statute does not prescribe the kind of inquiry that must be made nor does any language in the statute require that evidence of the oath or affirmance be on the face of the notice,"
If a notice, such as those here, fails to show that it was signed and verified before an officer authorized to administer oaths, how would a governmental entity be assured that the notice, which seeks to impose liability, was actually verified? It is for this very reason that MCL 600.6431 requires more than the mere act of verification and instead requires some proof of that verification—that, as defendant states, "the notice bear an indication that the signature was signed and sworn to before an officer authorized to administer oaths."
We are satisfied that there is no material factual dispute regarding the notice submitted by plaintiff Fairley, as it is undisputed that she failed to sign the notice of intent. Accordingly, plaintiff did not submit a notice "signed by the claimant" as required by the plain language of the statute. Further, because the MDOC is a state agency entitled to governmental
For these reasons, we conclude that plaintiff Fairley's notice was insufficient to maintain a claim against MDOC and, as a result, Fairley's claim should be dismissed. Accordingly, the Court of Claims improperly denied defendant's motion for summary disposition.
We also reject plaintiff Stone's notice for the similar reason that it was not clear from the face of the document that it was verified "before an officer authorized to administer oaths." We are unpersuaded that the belated affidavit of plaintiff's counsel asserting his dual role as attorney and notary public can cure this deficiency. Plaintiff Stone's notice was either unverified but timely or untimely but verified, and in either circumstance it fails to meet the conditions precedent to maintaining a suit against the Michigan State Police.
For these reasons, we likewise conclude that Stone's claim should be dismissed. Accordingly, the Court of Claims properly granted defendant summary disposition and the Court of Appeals erred by reversing that order.
In Fairley, we hold that the lower courts erred by concluding that defendant was not entitled to summary disposition based on the plaintiff's failure to comply with the notice requirements of MCL 600.6431(1). In Stone, we hold that the Court of Appeals erred by reversing the Court of Claims' ruling granting defendant's motion for summary disposition on that same basis. Accordingly, we reverse both judgments of the Court of Appeals. Because the notices supplied by each plaintiff failed to meet the requirements of MCL 600.6431(1), plaintiffs failed to defeat the protection of governmental immunity to which MDOC and the Michigan State Police are entitled.
In lieu of granting defendants' application for leave to appeal, we reverse the judgment of the Court of Appeals in Fairley and remand that case to the Court of Claims for entry of an order granting summary disposition in favor of defendant. We also reverse the judgment of the Court of Appeals in Stone and remand that case to the Court of Claims for reentry of its original order granting summary disposition in favor of defendant.
YOUNG, C.J., MARKMAN, MARY BETH KELLY, ZAHRA, McCORMACK, VIVIANO, and BERNSTEIN, JJ., concurred.