Michigan Court of Appeals; Docket # 347323; Unpublished
Judges Fort Hood, Beckering, and Boonstra; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Notice Requirements Under MCL 224.21
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing the plaintiff’s third-party complaint against the Washtenaw County Road Commission. The Court of Appeals held that the plaintiff, Christopher Robert LeBlanc, failed to comply with the 60-day notice requirement contained in MCL 224.21, and that the Washtenaw County Road Commission was therefore immune from tort liability.
LeBlanc was injured in a single-vehicle crash on February 26, 2018 after he struck a pothole, lost control of his vehicle, and struck a tree. LeBlanc served a presuit notice on the Washtenaw County Road Commission on June 11, 2018 pursuant to MCL 691.1404(1), and subsequently filed the underlying action against it. The Washtenaw County Road Commission moved for summary disposition, relying on the Court of Appeals’ determination in Streng v. Bd. of Mackinac Co. Rd. Comm’rs, 315 Mich. App. 449 (2016) that the notice requirements in MCL 691.1404(1) were inapplicable, and that the actual applicable notice requirements were contained in MCL 224.21, which requires that presuit notice be served within 60 days of injury. The Washtenaw County Road Commission argued, therefore, that LeBlanc’s action was barred by the governmental tort liability act.
On appeal, LeBlanc argued that the trial court erred in holding that MCL 224.21, not MCL 691.1404(1), applied in this case, and also that Streng wrongly departed from the Supreme Court’s ruling in Brown v. Manistee Co. Rd. Comm., 452 Mich. 354 (1996) and that the Court of Appeals should thus exercise its discretion and judicially toll the notice requirements. The Court of Appeals disagreed, noting firstly that “[i]n Streng, we unequivocally held that MCL 224.21 applies to actions against county road commissioners.” The Court of Appeals also declined to apply equitable tolling to save LeBlanc’s claim:
Plaintiff argues that under Brugger and Bryant, we should apply equitable tolling to the presuit notice period applicable to his claim. We disagree. Our Supreme has stated that its decision to apply equitable tolling in Bryant was appropriate “because of ‘the preexisting jumble of convoluted caselaw through which the plaintiff was forced to navigate.’ ” Trentadue, 479 Mich at 406, quoting Devillers, 473 Mich at 590 n 65. And in Brugger, although we noted that such a “preexisting jumble” of caselaw had existed before Streng, we did not apply equitable tolling; we merely held that Streng applied prospectively. Brugger, 324 Mich App at 325.
Importantly also, even assuming that equitable tolling can apply to presuit notice periods, the plaintiff in Brugger filed his presuit notice two years and nine months before Streng was decided. Id. at 311. By contrast, plaintiff in this case filed his presuit notice two years and one month after Streng was issued. To the extent that justifiable confusion concerning the applicable notice period may have existed before Streng was issued, Streng definitively resolved it. And even if Brugger correctly held that Streng should be applied prospectively, its prospective application in this case bars plaintiff’s claim. Although plaintiff may believe that Streng was wrongly decided, the state of the law concerning presuit notice requirements, as it existed at the time of his accident, was anything but a “preexisting jumble of convoluted caselaw.” Trentadue, 479 Mich at 406 (citation omitted). To the contrary, Streng definitively decided the issue, and no opinions published after Streng contradict its essential holding. We therefore decline to apply equitable tolling to save plaintiff’s claim.
