Jamie Perilla v. John Kinsman Gale ( 2024 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JAMIE PERILLA, UNPUBLISHED
October 28, 2024
Plaintiff-Appellee, 3:05 PM
v No. 368449; 368451
Wayne Circuit Court
JOHN KINSMAN GALE, LC No. 22-009560-NI
Defendant,
and
SMART CORPORATION,
Defendant-Appellant.
Before: GADOLA, C.J., and O’BRIEN and MALDONADO, JJ.
MALDONADO, J. (dissenting).
Section 19 of the Metropolitan Transportation Authorities Act of 1967 (MTAA), MCL
124.401 et seq., conditions the right of potential plaintiffs to bring suit against transportation
authorities, such as SMART, upon fulfillment of the requirement that written notice of this claim
“be served upon the authority” within 60 days of the event giving rise to the claim. MCL 124.419.
The majority impermissibly adds language to Section 19 by requiring that notice be served upon
the transportation authority via certified/registered mail or personal service. Accordingly, I
dissent.
I. COMPLIANCE WITH SECTION 29
I concur with the majority’s recitation of the pertinent facts as well as its description of the
two letters that plaintiff purports to satisfy the notice requirement. Section 19 of the MTAA, which
governs notice, provides:
All claims that may arise in connection with the transportation authority
shall be presented as ordinary claims against a common carrier of passengers for
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hire: Provided, That written notice of any claim based upon injury to persons or
property shall be served upon the authority no later than 60 days from the
occurrence through which such injury is sustained and the disposition thereof shall
rest in the discretion of the authority and all claims that may be allowed and final
judgment obtained shall be liquidated from funds of the authority: Provided,
further, That only the courts situated in the counties in which the authority
principally carries on its function are the proper counties in which to commence
and try action against the authority. [MCL 124.419 (emphasis added).]
Plaintiff argues that he satisfied the notice requirement through the letters sent by his counsel. The
majority disagrees, reasoning that the letters were not properly served. The majority further
concludes that, even if they were properly served, the letters were inadequate to satisfy the
statutory notice requirement.
This Court’s “primary task in construing a statute, is to discern and give effect to the intent
of the Legislature.” In re AGD, 327 Mich App 332, 343; 933 NW2d 751 (2019). “The words used
by the Legislature in writing a statute provide us with the most reliable evidence of the
Legislature’s intent.” Drew v Cass County, 299 Mich App 495, 499; 830 NW2d 832 (2013).
“Only when an ambiguity exists in the language of the statute is it proper for a court to go beyond
the statutory text to ascertain legislative intent.” Vermilya v Delta College Bd of Trustees, 325
Mich App 416, 418-419; 925 NW2d 897 (2018) (quotation marks and citation omitted).
A. SERVICE
This Court was charged with determining whether notice was properly served for the
purposes of Section 19 when it decided Nuculovic v Hill, 287 Mich App 58, 66-68; 783 NW2d
124 (2010). In that case, the plaintiff argued that the notice requirement was met “because SMART
received a copy of the police report for the incident and because [SMART employees] prepared
reports regarding the accident.” Id. at 66. Because Section 19 does not supply a definition for the
term “service,” the Court consulted Black’s Law Dictionary and concluded that “service” of this
notice required the plaintiff to “formally deliver” the notice to SMART. Id. at 67-68. The Court
also explained that, while the term “service” is left undefined, “the concept of service of process
is well clarified in our court rules.” Id. at 66. The Court then laid out manners of service that are
acceptable pursuant to various court rules. Id. at 67. This Court’s holding in Nuculovic was
clarified five years later when this Court decided Fields v Suburban Mobility Auth for Regional
Transp, 311 Mich App 231, 235-236; 874 NW2d 715 (2015). In Fields, this Court explained that
Nuculovic does not stand for the proposition that “strict compliance with [the court rules is] the
only way to comply with MCL 124.419. Instead, it used those rules as examples of how formal
delivery could occur.” Id. at 236. Put differently, while “some kind of ‘formal delivery’ ” is
needed, it is not required that a plaintiff strictly complies with the Court rules.
The majority opinion is confusing in that it accurately recites the holding in Fields and then
proceeds to ignore it. The majority opinion explains that strict compliance with the court rules is
not necessary and then declares plaintiff’s defeat based on his failure to show “that he attempted
to serve the notice via certified/registered mail or a process server.” The only prior mention of
certified/registered mail was to note that our court rules require either personal service via
registered or certified mail. MCR 2.105(A), (G). Thus, the majority explains that the court rules
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require registered or certified mail, the majority then explains that strict compliance with the court
rules is not necessary to satisfy Section 29, then the majority concludes by stating that plaintiff did
not satisfy Section 29 because he failed to strictly comply with the court rules. 1 The majority
offers no explanation for this discrepancy, and its conclusion cannot be squared with Fields. By
the majority’s reasoning, what method of service would satisfy Section 29 but would not satisfy
the court rules? Why is certified mail required if compliance with the court rules is not?
It is clear to me that compliance with Section 29 does not require the use of registered or
certified mail. Thus, the question becomes whether the use of ordinary mail satisfies the
requirement of formal delivery; intuition and common experience dictate the conclusion that it
does. First, I can think of no method that is more formal than ordinary mail but less formal than
certified mail. Second, one should think of all the important documents that are routinely sent via
ordinary mail. For example, college acceptance letters, jury summons, medical bills, certificates
of vehicle title, diplomas, and credit cards are all delivered by ordinary mail on a daily basis. If
ordinary mail is good enough for these important items, it is good enough to notify a transportation
authority of an impending claim.
For these reasons, I disagree with the majority’s conclusion that plaintiff’s letters were not
properly served.
B. NOTICE OF CLAIM
As an alternative basis for reversal, the majority holds that the trial court erred by
“concluding that the content of plaintiff’s letters was sufficient to put SMART on notice of a claim
against it.” Pursuant to MCL 124.419, a prospective plaintiff must provide the transportation
authority with notice of a “claim” arising from the alleged negligence. In Nuculovic, this Court
took care to explain the distinction between notice of a claim and notice of an occurrence. The
plaintiff in Nuculovic argued that the defendant had notice of her claim because it had received
police reports describing the accident that caused plaintiff’s injuries as well as internal reports
prepared by SMART employees. Nuculovic, 287 Mich App at 69. This Court explained that “even
if the police reports in defendant SMART’s possession constituted notice of some kind of an
occurrence, they did not constitute notice of a claim to defendants.” Id. The Court further reasoned
that the plaintiff “failed to show that, from the police reports, the defendant authority had any way
of knowing that plaintiff intended to file a claim for injury to her person or her property . . ., much
less what the claim would actually be.” Id. at 69-70.
1
Imposition of the court rules’ service requirements is also problematic in light of MCR 1.103,
which limits the applicability of the rules to “practice and procedure in all courts”; the court rules
do not apply before a case reaches a court. When statutes governing causes of action require that
notice be served prior to filing a complaint, service of the notices is governed by those statutes,
not the court rules. The statute at issue in this case does neither defines “service” nor incorporates
the court rules by reference. Therefore, the plain meaning governs. As explained in Fields, the
plain meaning of the term does not mandate strict compliance with the court rules.
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In Fields, this Court similarly concluded that the plaintiff failed to afford proper notice
“because there is no evidence that the documents he relied on in opposing defendants’ motion for
summary disposition were anything other than SMART’s internal documents or police reports.”
Fields, 311 Mich App at 236. The internal reports that the plaintiff cited were doubly insufficient
because, while the plaintiff was referred to as a “claimant,” this documentation “does not disclose
that plaintiff is intending to pursue any actual claim, let alone an ‘ordinary claim,’ as opposed to a
no-fault claim.” Id. at 238. Put differently, “the word ‘claimant,’ with nothing more, does not
give notice of what type of claim a plaintiff may be pursuing.” Id. at 239. However, the notice
only needs to “be somewhat specific,” so it is not necessary to spell out exactly what claims the
plaintiff intends to bring. See id.
The letters in this case are clearly distinguishable from the documents deemed insufficient
in Nuculovic and Fields because plaintiff was not relying on others to do the job for him. These
letters were not internal documents created by defendants, and they were not police reports simply
putting defendants on notice of the fact that there was an accident. Rather, these letters were sent
to SMART from plaintiff’s attorney and explicitly pertained directly to the injuries that plaintiff
suffered as a result of an accident involving SMART. Regarding whether the letters put SMART
on notice of an impending claim, the first letter is a close call. This letter explicitly told SMART
that plaintiff was injured in an accident involving a SMART vehicle and that he had retained an
attorney. Arguably, SMART could deduce from this information that plaintiff had a claim against
it. The second letter is much more explicit. This letter made clear plaintiff’s position that SMART
caused the accident, that the accident caused the injuries, and that plaintiff expected SMART, or
its insurance carrier, to compensate him for the injuries.
The most important statement from the second letter was, “If we do not hear from either
you or your insurance carrier within the next thirty (30) days, we will have no alternative but to
institute the necessary legal proceedings.” This unambiguously conveys that plaintiff planned to
sue SMART if he was not compensated for his injuries. The majority brushes off this statement
because the letter “did not notify SMART that plaintiff was intending to file a claim against it, nor
do they specify what injuries plaintiff suffered from the accident or what the ‘necessary legal
proceedings’ might be.” I have several problems with this statement. First, Section 29 does not
require notification that plaintiff intends to file a claim, only that he has a claim. Second, nothing
in the language of the statute dictates that SMART be notified of the exact nature of plaintiff’s
injuries. Third, it is clearly implied that the “necessary legal proceedings” would be a lawsuit
seeking compensation for the injuries.
More generally, the majority asserts that the letters actually “serve as letters of
representation, notifying SMART of the accident and that plaintiff had retained counsel in
connection with the accident.” Assuming arguendo that this is an accurate characterization of the
letters, it obviously follows that a person retains counsel in connection with an accident because
the person intends to take whatever steps necessary to recover damages arising from the accident.
The majority then states that “[t]he second letter mentions initiating legal proceedings, but only in
the event SMART failed to respond. This conditional language does not adequately put SMART
on notice of plaintiff’s impending third-party tort claim.” This logic is difficult to follow; plaintiff
clearly was not planning to sue SMART for leaving him on read. When the statement is viewed
in the context of the entire letter as well as the recent accident, it is clear that plaintiff’s attorney
has conveyed that plaintiff intends to sue SMART if he does not receive compensation for his
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injuries either from SMART or its insurance provider. No reasonable person could be ignorant of
the existence of a claim after receiving a letter saying: (1) there was an accident, (2) the accident
was your fault, (3) I was injured in the accident, and (4) I will initiate legal proceedings if I do not
hear from you. To require more from a plaintiff’s notice adds rules that are not in the statute.
Section 19 requires notice of a claim, nothing more. It does not require an express declaration that
a lawsuit will be filed, and it does not require a description of the injury.
For these reasons, I disagree with the majority’s conclusion that these letters did not notify
SMART of plaintiff’s claims.
II. CONCLUSION
In my opinion, plaintiff complied with Section 29’s notice requirements because the two
letters described in the majority opinion were properly served and because these letters were
sufficient to put SMART on notice of plaintiff’s claim. I also believe that defendant’s alternative
argument in favor of reversal lacks merit.2 Accordingly, I would affirm the trial court’s order
denying SMART’s motion for summary disposition. Therefore, I respectfully dissent.
/s/ Allie Greenleaf Maldonado
2
Because there is no indication that the majority disagrees with me regarding defendant’s
alternative argument, it is unnecessary to address it in this dissenting opinion.
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