                           STATE OF MICHIGAN

                            COURT OF APPEALS


JACQUELINE ANNA REED,                                                FOR PUBLICATION
                                                                     May 24, 2018
               Plaintiff-Appellee,                                   9:00 a.m.

v                                                                    No. 339835
                                                                     Court of Claims
STATE OF MICHIGAN and DEPARTMENT OF                                  LC No. 16-000163-MZ
TECHNOLOGY, MANAGEMENT AND
BUDGET,

               Defendants-Appellants.


Before: METER, P.J., and GADOLA and TUKEL, JJ.

PER CURIAM.

      In this case brought under the public-building exception to governmental immunity, MCL
691.1406, defendants appeal as of right the order of the Court of Claims denying their motion for
summary disposition pursuant to MCR 2.116(C)(7). We affirm.

        On June 12, 2015, plaintiff was walking on the “front porch” of the Michigan Hall of
Justice in Lansing when she tripped on “sunken and uneven brick pavers,” causing her to fall and
sustain personal injuries. On September 29, 2015, plaintiff filed, in triplicate, a “Notice of Injury
and Defect pursuant to MCL 691.1406” with the clerk of the Court of Claims. Plaintiff later
filed a complaint in the Court of Claims on July 12, 2016.

        Defendants sought summary disposition pursuant to MCR 2.116(C)(7), claiming that they
were immune from suit because plaintiff failed to comply with the notice requirements of MCL
691.1406 by not serving notice on “the responsible governmental agency,” defendant
Department of Technology, Management and Budget (DTMB). In response, plaintiff argued that
she satisfied the notice requirements by filing her notice in triplicate with the Court of Claims, as
required by MCL 691.1404. The trial court denied defendants’ motion, holding that based on
MCL 691.1404, MCL 691.1406, and this Court’s decision in Goodhue v Dep’t of Transp, 319
Mich App 526; 904 NW2d 203 (2017), filing the notice in triplicate with the clerk of the Court
of Claims was all that was required to fulfill the notice requirements of MCL 691.1404 and MCL
691.1406.




                                                -1-
       Defendant argues that governmental immunity bars this action because the statute
required plaintiff to serve notice on the DTMB individually and also file the notice in triplicate
with the Court of Claims. We disagree.

        We review a trial court’s decision on a motion for summary disposition de novo.
Moraccini v Sterling Heights, 296 Mich App 387, 391; 822 NW2d 799 (2012). In deciding a
motion for summary disposition under MCR 2.116(C)(7), a court must consider any affidavits,
pleadings, depositions, admissions, and documentary evidence in the action or submitted by the
parties. MCR 2.116(G)(5). The facts as alleged in the complaint “must be accepted as true
unless contradicted” by the submitted evidence, and the court evaluates all evidence “in a light
most favorable to the nonmoving party” in evaluating a claim under MCR 2.116(C)(7).
Moraccini, 296 Mich App at 391. We also review de novo a determination regarding the
application of a statutory exception to governmental immunity. Snead v John Carlo, Inc, 294
Mich App 343, 354; 813 NW2d 294 (2011).

        When interpreting a statute, the “primary goal is to give effect to the intent of the
Legislature.” Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 202; 731 NW2d 41 (2007).
The words used in a statute are the “most reliable indicator” of intent and the words “should be
interpreted based on their ordinary meaning and the context within which they are used in the
statute.” Dep’t of Envtl Quality v Worth Twp, 491 Mich 227, 237-238; 814 NW2d 846 (2012).
When the words are unambiguous, the court gives them “their plain meaning.” Rowland, 477
Mich at 202. When the Legislature’s intent is not clear from the plain language, “courts must
interpret statutes in a way that gives effect to every word, phrase, and clause in a statute and
avoid an interpretation that would render any part of the statute surplusage or nugatory.” Haynes
v Village of Beulah, 308 Mich App 465, 468; 865 NW2d 923 (2014) (quotation marks and
citation omitted).

       The governmental tort liability act (GTLA), MCL 691.1401 et seq., provides immunity
from tort liability to governmental agencies when they are engaged in the exercise or discharge
of a governmental function. MCL 691.1407(1); Moraccini, 296 Mich App at 391. However, the
GTLA also provides several exceptions to this broad grant of immunity. Wesche v Mecosta Co
Rd Comm, 480 Mich 75, 84; 746 NW2d 847 (2008). One of those exceptions is the public-
building exception and is codified in MCL 691.1406 and states in relevant part:

               Governmental agencies have the obligation to repair and maintain public
       buildings under their control when open for use by members of the public.
       Governmental agencies are liable for bodily injury and property damage resulting
       from a dangerous condition or defective condition of a public building if the
       governmental agency had actual or constructive knowledge of the defect and, for
       a reasonable time after acquiring knowledge, failed to remedy the condition or to
       take action reasonably necessary to protect the public against the condition. . . .
       As a condition to any recovery for injuries sustained by reason of any dangerous
       or defective public building, the injured person, within 120 days from the time the
       injury occurred, shall serve a notice on the responsible governmental agency of
       the occurrence of the injury and the defect. The notice shall specify the exact
       location and nature of the defect, the injury sustained and the names of the
       witnesses known at the time by the claimant.

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               The notice may be served upon any individual, either personally, or by
       certified mail, return receipt requested, who may lawfully be served with civil
       process directed against the responsible governmental agency, anything to the
       contrary in the charter of any municipal corporation notwithstanding. . . . Notice
       to the state of Michigan shall be given as provided in [MCL 691.1404].
       [Emphasis added.]

       MCL 691.1404(2), in turn, provides in pertinent part,

               The notice may be served upon any individual, either personally, or by
       certified mail, return receipt requested, who may lawfully be served with civil
       process directed against the governmental agency, anything to the contrary in the
       charter of any municipal corporation notwithstanding. In case of the state,[1] such
       notice shall be filed in triplicate with the clerk of the court of claims. Filing of
       such notice shall constitute compliance with [MCL 600.6431 of the Court of
       Claims Act, MCL 600.6401 et seq.2]

Once the notice is filed with the clerk of the Court of Claims, the clerk transmits a copy to the
Attorney General and to the governmental agency designated in the notice. MCL 600.6431(2).

       This Court recently addressed the interaction between MCL 691.1404, the highway
exception, and MCL 600.6431 of the Court of Claims Act. Goodhue, 319 Mich App 526. In
Goodhue, the issue was whether the plaintiff’s claims under the GTLA’s highway defect and
public-building exceptions were barred under MCL 691.1404 when the plaintiff filed notice in
the Court of Claims more than 120 days after an accident; that is, the issue was which time limit
applied to the plaintiff’s claims—the 120-day time limit applicable to these GTLA exceptions or
the higher six-month time limit of MCL 600.6431(3) for filing an injury claim in the Court of
Claims. Id. at 529, 534-536. The Goodhue Court concluded that “the notice provisions of MCL
691.1404 control[led]” and that because the plaintiff filed his notice with the clerk of the Court
of Claims more than 120 days after the injury occurred, his filing was deficient and fatal to his
claim. Id. at 534-537.

        Defendants argue that the trial court, in denying defendants’ motion for summary
disposition, should not have relied on Goodhue because Goodhue is inapplicable due to the fact
that the issue in that case was the timeliness of the plaintiff’s notice, rather than the manner of
service. Defendants, while relying on the fact that filing and serving have different definitions


1
  The GTLA defines “state” as including the state of Michigan and, in pertinent part, “its
agencies” and “departments.” MCL 691.1401(g).
2
  As explained, infra, although MCL 600.6431(3) provides that if the action is for property
damage or personal injuries, a claimant must file written notice “within 6 months following the
happening of the event giving rise to the cause of action,” if the pertinent governmental
immunity statute has a timing requirement, it is that requirement that controls. See Goodhue,
319 Mich App at 535-536.


                                                -3-
and effects, further argue that the trial court’s construction of MCL 691.1404(2) renders as
surplusage its service requirement, and that the language of MCL 691.1404(2) makes plain that a
plaintiff must both serve and file the required notice. We disagree and instead agree with the
trial court that Goodhue, together with the plain language of MCL 691.1404(2) and MCL
691.1406, compels the conclusion that “[c]ompliance with the triplicate filing requirement is
what is required of a plaintiff contemplating suit against the state under [the public-building]
exception to governmental immunity, not the service requirements on individuals within [MCL
691.1404(2)].”

        At issue is the correct interpretation of MCL 691.1406. We hold that the statute does not
require a plaintiff to both separately serve the state and file her notice in the Court of Claims.
Instead, the filing of the notice in the Court of Claims fulfills the service requirement. Indeed,
Goodhue compels this result, as it interpreted this exact same language, although contained in
MCL 691.1404 instead of MCL 691.1406, and came to this same conclusion. Goodhue, 319
Mich App at 534-535; see also Empire Iron Mining P’ship v Orhanen, 455 Mich 410, 426 n 16;
565 NW2d 844 (1997) (stating that identical language in the same act should be interpreted in
the same manner).

        For the public-building exception, the first paragraph of MCL 691.1406 establishes the
requirement of serving notice “on the responsible governmental agency” “within 120 days from
the time the injury occurred” and further describes what needs to be included in the notice. See
Goodhue, 319 Mich App at 534-535 (interpreting identical language found in MCL
691.1404(1)). The second paragraph of MCL 691.1406 specifies how that service is to be
effectuated, which is consistent with Goodhue’s reading of MCL 691.1404(2). See Goodhue,
319 Mich App at 535. While the paragraph generally states that “notice may be served upon any
individual” who can accept civil process, it further explains that when notice is to be given to the
state, notice “shall be given as provided in [MCL 691.1404].” MCL 691.1406. Thus, when the
notice is to be provided to the state, the provisions in MCL 691.1404 that pertain to how notice is
to be provided controls.

       The Goodhue Court already has interpreted MCL 691.1404. Subsection (1) is not
relevant in this case because it does not address how notice is to be provided.3 But Subsection
(2)



3
  The Goodhue Court stated that when a claim against the state is related to the public-building
exception, then MCL 691.1406 dictates that notice is governed by MCL 691.1404. Goodhue,
319 Mich App at 534. This is true, but it is important to clarify that only the provisions of MCL
691.1404 that pertain to how notice is provided governs. In Goodhue, the Court, after stating
that “the notice provisions of MCL 691.1404 control,” quoted MCL 691.1404(1) and (2),
Goodhue, 319 Mich App at 534, but subsection (1), which provides that notice is a condition to
recovering for any injuries and provides the 120-day deadline in which to provide notice,
technically is not relevant in a public-building exception case because the first paragraph of
MCL 691.1406 describes these requirements for a such a public-building case.


                                                -4-
       details how that notice is to be effectuated. Specifically, the first sentence of
       Subsection (2) provides that the notice may be served upon an appropriate
       individual. However, the very next sentence clarifies that when the “state” is a
       defendant, “such notice shall be filed in triplicate with the clerk of the court of
       claims.” [Goodhue, 319 Mich App at 535.]

The Court held that because the plaintiff had filed its notice with the Court of Claims, it therefore
satisfied the statutory requirement. Id.

        Accordingly, we hold that MCL 691.1404(2) does not require the filing of the notice in
the Court of Claims to be a separate act that is done in addition to serving the notice. Instead,
when the state is a party, Subsection (2) provides that service, in the case of the state, is
effectuated by the filing of the notice in triplicate in the Court of Claims. Id. If the Legislature
had intended for the notice to be served as described in the first sentence of MCL 691.1404(2) or
the first sentence of the second paragraph of MCL 691.1406, then the Legislature would have
used a word comparable to “also” in those provisions when it described that the notice is to be
filed with the clerk of the Court of Claims.4

         As a result, when a case invokes the public-building exception to governmental immunity
and the defendant is a state under the GTLA, filing notice in triplicate with the Court of Claims
is all that is necessary to effectuate service of the notice. Because plaintiff filed notice with the
clerk of the Court of Claims, she satisfied the requirements of service under MCL 691.1406 and


       The Goodhue Court did not quote MCL 691.1404(1) because it in all instances applies to
a public-building exception case; rather, it quoted that subsection because the Court was
simultaneously addressing a claim under the highway exception, MCL 691.1404. See Goodhue,
319 Mich App at 534. Moreover, we note that, as currently written, any incorrect inferences one
could take from Goodhue would have no practical effect because both MCL 691.1404 for the
highway exception and MCL 691.1406 for the public-building exception have nearly identical
requirements, including that notice be served “on the responsible governmental agency” “within
120 days from the time the injury occurred.” MCL 691.1404(1); MCL 691.1406. Further, they
both provide the same general description of how notice is to be provided:
       The notice may be served upon any individual, either personally, or by certified
       mail, return receipt requested, who may lawfully be served with civil process
       directed against the responsible governmental agency, anything to the contrary in
       the charter of any municipal corporation notwithstanding. [MCL 691.1404(2);
       MCL 691.1406.]
4
  As an example, if the Legislature had intended that a plaintiff must serve the notice as
described in the first sentence of MCL 691.1404(2) and file that same notice with the Court of
Claims, the second sentence of MCL 691.1404(2) would have read something to the effect, “In
the case of the state, such notice shall also be filed in triplicate with the clerk of the court of
claims.” Instead, the statute as written provides for effecting service in two different situations:
one for when the state is a party and one for when the state is not a party.


                                                 -5-
MCL 691.1404(2). And because plaintiff filed the notice on September 29, 2015, which
defendants acknowledge was within 120 days of her June 12, 2015 accident, the notice was
timely. The fact that she filed a subsequent notice after the 120-day deadline is not pertinent.

       Affirmed.

                                                           /s/ Patrick M. Meter
                                                           /s/ Michael F. Gadola
                                                           /s/ Jonathan Tukel




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