                                                                                       Michigan Supreme Court
                                                                                             Lansing, Michigan
                                                                Chief Justice:         Justices:



Syllabus                                                        Robert P. Young, Jr.   Stephen J. Markman
                                                                                       Mary Beth Kelly
                                                                                       Brian K. Zahra
                                                                                       Bridget M. McCormack
                                                                                       David F. Viviano
                                                                                       Richard H. Bernstein
This syllabus constitutes no part of the opinion of the Court but has been             Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.               Corbin R. Davis



                               FAIRLEY v DEPARTMENT OF CORRECTIONS
                                   STONE v MICHIGAN STATE POLICE

       Docket Nos. 149722 and 149940. Decided June 5, 2015.

               In Docket No. 149722, Michelle R. Fairley brought an action in the Court of Claims
       against the Michigan Department of Corrections (MDOC) after an MDOC employee driving an
       MDOC vehicle ran a red light and struck her car, seriously injuring her. Plaintiff’s counsel filed
       and signed a notice of intent to file a claim against MDOC in the Court of Claims; however,
       plaintiff herself did not sign the notice, as MCL 600.6431(1) requires. Defendant moved for
       summary disposition on the ground that the notice was defective for that reason. The Court of
       Claims, James S. Jamo, J., denied defendant’s motion, ruling that defendant had waived this
       argument by failing to plead it as an affirmative defense. The Court of Appeals, CAVANAGH,
       P.J., and OWENS and STEPHENS, JJ., affirmed in an unpublished opinion per curiam issued June
       10, 2014 (Docket No. 315594). Defendant applied for leave to appeal in the Supreme Court.

               In Docket No. 149940, Lori L. Stone brought an action in the Court of Claims against the
       Michigan State Police (MSP) for injuries she sustained when her stopped vehicle was struck by
       two MSP patrol cars. Plaintiff filed a notice of intent to file a claim against the MSP in the Court
       of Claims; however, the notice did not indicate that it had been verified before an officer
       authorized to administer oaths, as MCL 600.6431(1) requires. Defendant moved for summary
       disposition on the ground that the notice was defective for that reason. The Court of Claims,
       David S. Swartz, J., granted the motion, ruling that, although plaintiff’s counsel had later averred
       that he was a notary public authorized to administer oaths, that fact was not apparent from the
       notice. The Court of Appeals, CAVANAGH, P.J., and OWENS and STEPHENS, JJ., reversed in an
       unpublished opinion per curiam issued July 8, 2014 (Docket No. 314848), holding that
       MCL 600.6431(1) did not require evidence of the oath or affirmation to appear on the face of the
       notice and that a failure to comply with the procedural prerequisites of MCL 600.6431(1) was an
       affirmative defense that is waived if not timely raised. Defendant applied for leave to appeal in
       the Supreme Court.

               In a memorandum opinion signed by Chief Justice YOUNG and Justices MARKMAN,
       KELLY, ZAHRA, MCCORMACK, VIVIANO, AND BERNSTEIN, the Supreme Court, in lieu of granting
       leave to appeal and without hearing oral argument, held:
         A notice of intent to file a claim against a department of the state under MCL 600.6431
that lacks any indication that it was signed and verified before an officer authorized to administer
oaths is defective and provides a complete defense that may be raised at any time by a defendant
entitled to governmental immunity. While MCL 600.6431 does not confer governmental
immunity, it establishes conditions precedent for avoiding the governmental immunity conferred
by the governmental tort liability act, MCL 691.1401 et seq. As a result, plaintiffs were required
to adhere to the conditions precedent in MCL 600.6431(1) to successfully expose defendants to
liability. The notice in Fairley was not signed by the claimant, and the notice in Stone did not
indicate that it had been verified before an officer authorized to administer an oath. The affidavit
of Stone’s attorney indicating that he was a notary public did not cure this deficiency because it
was untimely. Therefore, plaintiffs’ claims should have been dismissed.

       In Fairley, Docket No. 149722, Court of Appeals judgment reversed; case remanded to
the Court of Claims for entry of an order granting summary disposition in favor of defendant.

       In Stone, Docket No. 149940, Court of Appeals judgment reversed; case remanded to the
Court of Claims for reentry of its original order granting summary disposition in favor of
defendant.




                                    ©2015 State of Michigan
                                                                         Michigan Supreme Court
                                                                               Lansing, Michigan
                                                   Chief Justice:          Justices:



OPINION                                            Robert P. Young, Jr. Stephen J. Markman
                                                                        Mary Beth Kelly
                                                                        Brian K. Zahra
                                                                        Bridget M. McCormack
                                                                        David F. Viviano
                                                                        Richard H. Bernstein

                                                                    FILED June 5, 2015

                           STATE OF MICHIGAN

                                   SUPREME COURT


MICHELLE RENEE FAIRLEY,

             Plaintiff-Appellee,

v                                                           No. 149722

DEPARTMENT OF CORRECTIONS,

             Defendant-Appellant.


LORI L. STONE,

             Plaintiff-Appellee,

v                                                           No. 149940

MICHIGAN STATE POLICE,

             Defendant-Appellant.


BEFORE THE ENTIRE BENCH

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 and remand the cases to the Court of Claims for reinstatement of the order

granting defendant’s motion for summary disposition in the former and for entry of an

order granting defendant’s motion for summary disposition in the latter.

       The purpose of MCL 600.6431 is to establish those conditions precedent to

pursuing a claim against the state. One of these conditions provides:

              No claim may be maintained against the state unless the claimant,
       within 1 year after such claim has accrued, files in the office of the clerk of
       the court of claims either a written claim or a written notice of intention to
       file a claim against the state or any of its departments, commissions,
       boards, institutions, arms or agencies, stating the time when and the place
       where such claim arose and in detail the nature of the same and of the items
       of damage alleged or claimed to have been sustained, which claim or notice
       shall be signed and verified by the claimant before an officer authorized to
       administer oaths. [MCL 600.6432(1).]

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



                                             2
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.

                       I. FACTS AND PROCEEDINGS BELOW

                       A. FAIRLEY v DEP’T OF CORRECTIONS

       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 1 or the propriety of MDOC’s designation as the responsible governmental

agency. 2 The notice plainly stated the facts surrounding the accident, including the

location of the accident and the parties involved. While Fairley herself did not sign the

notice, her attorney’s signature and the date appeared below the following disclaimer:

1
  MCL 600.6431(3) provides, in pertinent part, that “claimant shall file with the clerk of
the court of claims a notice of intention to file a claim or the claim itself within 6 months
following the happening of the event giving rise to the cause of action.”
2
 MCL 600.6431(2) likewise provides, in part, that “[s]uch claim or notice shall designate
any department, commission, board, institution, arm or agency of the state involved in
connection with such claim . . . .”



                                             3
               This notice is intended to comply with all requirements of the law
       and all applicable statutes, ordinances, rules, and regulations. . . . If you
       believe this notice does not comply in any way with the notice requirement
       of the governing bodies of the State of Michigan and/or MDOC, or with an
       statute, ordinance, rule or regulation, you should immediately notify by
       written notice. Any additional information required by statute[,] ordinance,
       rule, or regulation will be promptly furnished.

       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) 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. 3

                        B. STONE v MICHIGAN STATE POLICE

       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,


3
 Fairley v Mich Dep’t of Corrections, unpublished opinion per curiam of the Court of
Appeals, issued June 10, 2014 (Docket No. 315594).



                                             4
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:

              What these notices are about is governmental immunity. It’s exactly
       about putting up . . . restraints on cases that can be brought against the
       State. The Supreme Court can’t be more clear, if you don’t meet the
       requirements you don’t abrogate governmental immunity. And the issue
       isn’t what verify or verification means, it’s what verify before an officer
       authorized to administer oaths means, and there’s just no evidence
       anywhere in this notice, the notice itself, that it was verified before an
       officer authorized to administer oaths.

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 affirmation be on the face

of the notice.” 4 The panel further stated that a failure to comply with “purely procedural




4
  Stone v Dep’t of State Police, unpublished opinion per curiam of the Court of Appeals,
issued July 8, 2014 (Docket No. 314848) p 7.



                                              5
pre-requisites,” such as those enumerated in MCL 600.6431, was an affirmative defense

that must be timely raised or is waived. 5 The case is now before this Court on appeal.

                                II. STANDARD OF REVIEW

          This Court reviews de novo a lower court’s decision to grant or deny a motion for

summary disposition. 6 Further, the meaning of the final provision in MCL 600.6431(1)—

requiring the notice to be “signed and verified by the claimant before an officer

authorized to administer oaths”—is a question of statutory interpretation, which we

likewise review de novo. 7 The primary goal when interpreting a statute is to discern the

intent of the Legislature by focusing on the most “reliable evidence” of that intent, the

language of the statute itself. 8 When legislative intent is clear from the language, no

further construction is required or permitted. 9

                                        III. ANALYSIS

          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



5
 Id. at 7, quoting Tyra v Organ Procurement Agency of Mich, 302 Mich App 208, 212-
213; 840 NW2d 730 (2013).
6
    McCahan v Brennan, 492 Mich 730, 735; 822 NW2d 747 (2012).
7
 Spectrum Health Hosp v Farm Bureau Mut Ins Co of Mich, 492 Mich 503, 515; 821
NW2d 117 (2012).
8
    Id.
9
  Id. at 534, citing Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119
(1999).



                                               6
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. 10 In accordance with MCL

691.1410(1), a claim satisfying an exception to governmental immunity against a state

agency must be “brought in the manner provided in [the Revised Judicature Act],”

including MCL 600.6431. That is, while MCL 600.6431 does not “confer governmental

immunity,” it establishes conditions precedent for avoiding the governmental immunity

conferred by the GTLA, which expressly incorporates MCL 600.6431. 11 As a result,

plaintiffs must adhere to the conditions precedent in MCL 600.6431(1) to successfully

expose the defendant state agencies to liability.

        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

NW2d 47 (2002). “[I]t is the responsibility of the party seeking to impose liability on a




10
     MCL 691.1405.
11
   This is contrary to the Court of Appeals’ observation in Fairley that “the text of the
statute makes no mention of governmental immunity” and “rather than precluding the
filing of suit against the state . . . establishes procedures for doing so.” Fairley, unpub
op, at 2.



                                              7
governmental agency to demonstrate that its case falls within one of the exceptions [to

governmental immunity].” Id. at 201. Furthermore, as we explained in McCahan:

       [W]hen the Legislature specifically qualifies the ability to bring a claim
       against the state or its subdivisions on a plaintiff’s meeting certain notice
       requirements that the plaintiff fails to meet, no saving construction—such
       as requiring a defendant to prove actual prejudice—is allowed.[12]

       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,” 13 this Court’s decision in McCahan v Brennan provided

insight into the purpose to be served by the notice provision:

       [T]he Legislature has established a clear procedure that eliminates any
       ambiguity about whether an attempted notice is effective. A claimant who
       complies with MCL 600.6431 need not worry about whether a notice was
       properly received and processed by the correct governmental entity. By the
       same token, state entities can be secure knowing that only timely, verified
       claims in notices filed with the Court of Claims can give rise to potential
       liability . . . .[14]

12
  McCahan, 492 Mich at 746; relied on in Zelek v Michigan, unpublished opinion per
curiam of the Court of Appeals, issued October 16, 2012 (Docket No. 305191).
13
   Stone v Mich State Police, unpublished opinion per curiam of the Court of Appeals,
issued July 8, 2014 (Docket No. 314848), p 7.
14
   McCahan, 492 Mich at 744 n 24; see Rowland v Washtenaw Co Rd Comm, 477 Mich
197, 212; 731 NW 2d (2007) (stating that “additional reasons . . . for requiring notice [in
cases involving governmental immunity] . . . include[] . . . creating [monetary]
reserves . . . reducing the uncertainty of the extent of future demands, or even to force a
claimant to an early choice regarding how to proceed”).



                                             8
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.” 15

                             A. APPLICATION TO FAIRLEY

       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 immunity, we conclude that defective notice need not be pleaded as an

affirmative defense because defendants are presumed to be entitled to governmental

immunity, and the burden is on plaintiff to prove that one of the exceptions to

governmental immunity is applicable.

       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.




15
  Moreover, as this Court stated in Rowland, common sense counsels in favor of this
outcome, given that “the Legislature is not even required to provide [any] exception to
governmental immunity, it surely has the authority to allow such suits only upon
compliance with rational limits.” Id. at 212.



                                              9
Accordingly, the Court of Claims improperly denied defendant’s motion for summary

disposition.

                               B. APPLICATION TO STONE

         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. 16

         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.

                                     IV. CONCLUSION

         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


16
     MCL 600.6431(1) and (3).



                                              10
MCL 600.6431(1), plaintiffs failed to defeat the protection of governmental immunity to

which MDOC and the Michigan State Police are entitled. 17

       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.


                                                        Robert P. Young, Jr.
                                                        Stephen J. Markman
                                                        Mary Beth Kelly
                                                        Brian K. Zahra
                                                        Bridget M. McCormack
                                                        David F. Viviano
                                                        Richard H. Bernstein




17
  Again, Fairley and Stone present questions of the adequacy of notice in a governmental
immunity case. Thus, and contrary to both Court of Appeals opinions, the outcome of
these cases is entirely separate from the analysis on statutory notice provisions in medical
malpractice actions found in Tyra v Organ Procurement Agency of Mich, 302 Mich App
208 (2013), oral argument on application granted 497 Mich 910 (2014); compare Costa v
Community Emergency Med Servs, Inc, 475 Mich 403; 716 NW2d 236 (2006) (involving
a medical malpractice claim against defendants entitled to governmental immunity).



                                            11
