Speaker Law
Blog

In Kline v Dep't of Tranportation, the Court of Appeals "begrudgingly" followed McCahan v Brennan, holding that the defendant was entitled to summary disposition where the plaintiff failed to comply with the notice provision contained in MCL 600.6431. In its opinion, the Court invoked conflict procedures in MCR 7.215(J)(2), indicating that it was following McCahan only because it had to, but that McCahan was wrongly decided.

In McCahan, the Court of Appeals relied on the Michigan Supreme Court's ruling in Rowland v Washtenaw Co Rd Comm, where the Court held that the notice provision of MCL 600.1404 did not contain a prejudice requirement and that the judiciary cannot read such a requirement into the statute. The panel in McCahan held that the Supreme Court's reasoning in Rowland was not limited to the MCL 600.1404 and should also be applied to MCL 600.6431(3) (The Court of Claims Act).

The majority (Judge Hoekstra dissented) in Kline opined that "McCahan was wrongly decided and that Rowland does not dictate the outcome in this case because it involves a different statutory provision. But for the mandate in MCL 7.215(J)(1), we wouldn not follw McCahan. Rather, we would affirm the trial court's order denying summary disposition." Stay tuned for updates on how this row over Rowland is resolved.

Labels: auto accident, court of claims, governmental immunity, Michigan, notice, Rowalnd

---