Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  May 1, 2015                                                                      Robert P. Young, Jr.,
                                                                                              Chief Justice

  150343                                                                            Stephen J. Markman
                                                                                        Mary Beth Kelly
                                                                                         Brian K. Zahra
                                                                                 Bridget M. McCormack
                                                                                       David F. Viviano
  CATHERINE N. MCCARTHY,                                                           Richard H. Bernstein,
           Plaintiff-Appellant,                                                                    Justices

  v                                                     SC: 150343
                                                        COA: 316600
                                                        Wayne CC: 12-016668-NO
  CITY OF TRENTON,
            Defendant-Appellee.

  _________________________________________/

        On order of the Court, the application for leave to appeal the September 18, 2014
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question presented should be reviewed by this Court.

        BERNSTEIN, J. (dissenting).

         I respectfully dissent from this Court’s decision to deny leave to appeal in this
  case, as I believe that the Court of Appeals’ treatment of the notice requirements of the
  governmental tort liability act (GTLA), MCL 691.1401 et seq., needlessly complicates
  the concept of notice and may lead to confusion among legal practitioners.

          The GTLA provides an exception to governmental immunity for injuries arising
  out of highway defects. The statute defines “highway” as including—among other
  thoroughfares—public sidewalks. MCL 691.1401(c). To avail himself or herself of the
  exception, the injured person must give notice in accordance with MCL 691.1404, which
  states in relevant part:

               (1) As a condition to any recovery for injuries sustained by reason of
        any defective highway, the injured person, within 120 days from the time
        the injury occurred, except as otherwise provided in subsection (3)[1] shall
        serve a notice on the 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.

               (2) The notice may be served upon any individual, either personally,
        or by certified mail, return receipt requested, who may lawfully be served

  1
   MCL 691.1404(3) extends the notice period in cases involving injuries to minors or to
  persons who are physically or mentally incapable of giving notice.
                                                                                          2

       with civil process directed against the governmental agency, anything to the
       contrary in the charter of any municipal corporation notwithstanding.
In an action against a city, the individuals who may be served with notice under
Subsection (2) are the mayor, the city clerk, and the city attorney. MCR 2.105(G)(2).

        On February 5, 2012, plaintiff tripped and fell from a sidewalk in the city of
Trenton, which is the defendant in this case. She sustained injuries requiring oral surgery
and other dental work. Approximately two weeks after the incident, on February 21,
plaintiff submitted notice via first-class mail to the city’s mayor and the city clerk. The
letter described the date and location of the incident and the nature of the defect and
specified that there were no known witnesses to the fall. However, it did not describe the
nature of plaintiff’s injury. On February 23, a representative of Travelers Indemnity
Company, which was defendant’s insurer, contacted plaintiff’s attorney by phone and
received a brief description of plaintiff’s injuries. That same day, Travelers sent a letter
to plaintiff’s attorney requesting medical documentation. Plaintiff’s counsel submitted
the relevant information in a series of letters dated March 5, March 12, and April 25,
2012. Subsequent negotiations between Travelers and plaintiff’s attorney failed to
satisfactorily resolve the case, and plaintiff filed suit against defendant on December 17,
2012.

        Defendant moved for summary disposition under MCR 2.116(C)(7) because of
plaintiff’s failures to comply with the notice requirements—specifically, that plaintiff had
sent notice via first-class mail rather than certified mail and had not provided information
about her injuries to a proper party. The trial court denied this motion in an opinion and
order dated May 16, 2013, determining that plaintiff had substantially complied with the
notice requirements by serving the notice via first-class mail and providing her medical
records to defendant’s insurer within the 120-day limit.

        However, the Court of Appeals reversed, following the reasoning of McLean v
City of Dearborn, 302 Mich App 68 (2013). In a very similar factual situation, the
McLean majority held that providing information regarding the nature of the injuries to
the defendant’s third-party claim administrator rather than an individual entitled to accept
notice on the defendant’s behalf under MCL 691.1404(2) rendered the notice deficient.
Id. at 78-79. The McLean panel granted summary disposition in the defendant’s favor.
Id. at 83. The Court of Appeals panel in this case did not address the method of sending
the initial notice, but determined that the notice was defective because the information
regarding the nature of plaintiff’s injuries was sent only to Travelers, an entity that was
not entitled to accept process on defendant’s behalf.

       I disagree with the Court of Appeals’ holdings in McLean and this case and find
the reasoning of Judge MICHAEL KELLY’s McLean dissent far more persuasive. As Judge
KELLY noted, although process must generally be served upon the mayor, the city clerk,
                                                                                         3

or the city attorney, MCL 600.1925 (2), it can also be served upon authorized agents,
MCL 600.1930. See also MCR 2.105(G) and (H). Therefore, the mere fact that the
plaintiff in McLean had not served process on the mayor, the city clerk, or the city
attorney was not enough in itself to render her notice improper. McLean, 302 Mich App
at 86 (M. J. KELLY, J., dissenting). Examining the facts in the light most favorable to the
plaintiff, Judge KELLY concluded that a reasonable fact-finder could have found that the
city of Dearborn had contractually delegated the authority to handle civil claims against
the city to the third-party administrator and that summary disposition in favor of the
defendant was inappropriate. Id. at 88-89.

        For similar reasons, I believe that summary disposition in favor of defendant was
incorrect here. In this case, a mere two days after plaintiff informed the proper
individuals of her claim against the city, her attorney was contacted about the claim by a
representative from Travelers. Travelers specifically requested more information to
assist it in evaluating plaintiff’s claim. Plaintiff’s counsel was directed to communicate
with a Travelers representative. Under these circumstances, a reasonable jury could
certainly conclude that Travelers was acting as defendant’s agent. I would posit that a
reasonable attorney would also reach this conclusion. This is particularly true given that
the insurer here contacted plaintiff’s counsel and negotiations took place between the
insurer and plaintiff’s counsel. Not only would an attorney likely infer that the insurer
was acting as defendant’s agent, but a serious ethical concern arises here—if plaintiff’s
counsel believed that an individual at Travelers was acting as defendant’s legal
representation in this matter, it would be standard practice to thenceforth communicate
solely with that person.          Plaintiff’s counsel might have felt unable to send
communications—in this case, the medical records—directly to the mayor or the city
clerk at the risk of communicating directly with a represented party in violation of MRPC
4.2.

       From a practitioner’s perspective, the Court of Appeals’ result could negatively
affect working relationships in the legal community. At its heart, notice should be a
constructive concept; when litigants indisputably have actual notice of the relevant
information underlying a suit, we need not elevate form over substance by barring suits
because of technical defects in notice that have no effect on the parties’ actual
knowledge. An entity should not be able to escape liability by technicalities when it has
actual notice of the claims against it. Notwithstanding questions of agency, I believe that
this overarching principle of constructive notice distinguishes this case from Rowland v
                                                                                                               4

Washtenaw Co Rd Comm, 477 Mich 197 (2007), another case arising under the GTLA, in
which this Court required strict interpretation of notice provisions. The plaintiff in
Rowland failed to serve any notice upon the defendant within the 120 days following her
injury. Id. at 200-201. In this case, defendant was made aware of plaintiff’s claim and
the details regarding her injury within 80 days of the underlying incident.

        I recognize that this Court reiterated a preference for a strict interpretation of
notice provisions in McCahan v Brennan, 492 Mich 730 (2012). In McCahan, the
plaintiff’s claim against the University of Michigan required that notice of intent to file a
claim be filed with the Clerk of the Court of Claims within six months of the incident
giving rise to the cause of action. The McCahan plaintiff did not file notice in the Court
of Claims, but did provide the university’s legal office with information regarding her
intent to seek recovery within the six-month notice period. Id. at 734. Even though the
defendant had actual notice, this Court held that the plaintiff’s claim was barred by her
failure to comply with the relevant notice provision. Id. at 752. First, I believe that this
case is distinguishable because Travelers was, or appeared to be, defendant’s agent, and
service upon an agent is appropriate under MCL 600.1930. However, I also believe that
McCahan undermines the purpose of notice requirements—to provide a party with actual
notice of any claims against it. The defendants in McCahan and in this case had actual
notice of the claims against them and all the information they needed to prepare a
defense. In my view, to bar such claims in spite of actual notice could have an adverse
effect on working relationships between lawyers.

      For these reasons, I would grant leave to appeal to reconsider our construction of
the GTLA’s notice requirements.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         May 1, 2015
        t0428
                                                                             Clerk
