Vivian Nickens v. Cheryl Thomas

STATE OF MICHIGAN
COURT OF APPEALS
VIVIAN NICKENS, UNPUBLISHED
November 29, 2016
Plaintiff-Appellant,
v No. 328302
Wayne Circuit Court
CHERYL THOMAS, LC No. 14-009671-NI
Defendant-Appellee.
Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ.
PER CURIAM.
Plaintiff Vivian Nickens appeals as of right the trial court’s order granting summary
disposition in favor of defendant Cheryl Thomas. We affirm.
On July 26, 2011, plaintiff was a passenger on a bus operated by the Suburban Mobility
Authority for Regional Transportation (SMART), and defendant was driving the bus. Plaintiff
contended that defendant was driving the bus at an excessive rate of speed, made several sudden
stops and starts, and was engaged in a personal conversation on her cell phone as she drove.
Plaintiff alleged that defendant’s distracted and erratic driving caused plaintiff to fall and strike
her head on a pole on the bus, resulting in injury. A SMART incident report was prepared the
same day as the accident. Plaintiff underwent an Independent Medical Evaluation on December
8, 2011, at the behest of ASU Group, SMART’s no-fault claims representative. By letter dated
January 11, 2012, a senior claims examiner for ASU Group informed plaintiff that while her
medical bills related to her emergency room visit on the day of the accident would be paid, no
other bills or benefits would be paid by or on behalf of SMART. In April 2012, plaintiff’s
counsel submitted an application for bodily injury benefits to ASU Group. There is nothing in
the record indicating that plaintiff had served SMART with a written notice of claim based on a
personal injury within 60 days of the incident and alleged injury. See MCL 124.419. Indeed, in
plaintiff’s affidavit, she averred that she was not advised by SMART or ASU Group that she
needed to file a notice of claim, as SMART and ASU Group “were already handling it.”
On August 16, 2013, plaintiff filed a lawsuit against SMART, alleging claims of
negligence, intentional infliction of emotional distress, and violation of the Michigan Consumer
Protection Act (MCPA), MCL 445.901 et seq., along with a count seeking the recovery of
personal protection insurance benefits (PIP benefits) under the no-fault act, MCL 500.3101 et
seq. The negligence and emotional distress claims were summarily dismissed in February 2014
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for failure to comply with the 60-day notice of claim requirement in MCL 124.419. The MCPA
claim was summarily dismissed in March 2014. In October 2014, plaintiff and SMART
stipulated to the dismissal of the claim for PIP benefits, as the parties agreed to binding
arbitration on the matter. A few months earlier, in July 2014, plaintiff filed the instant action
against defendant bus driver, alleging claims of gross negligence and intentional infliction of
emotional distress. Subsequently, the trial court granted summary disposition in favor of
defendant, ruling, once again, that there was a failure to comply with the 60-day notice of claim
requirement in MCL 124.419. The trial court denied plaintiff’s motion for reconsideration, and
this appeal followed.
This Court reviews de novo a trial court’s ruling on a motion for summary disposition,
issues of statutory construction, and questions of constitutional law. Champion v Secretary of
State, 281 Mich. App. 307, 309; 761 NW2d 747 (2008). As an initial observation, and although
not argued by the parties, plaintiff’s suit is clearly barred under the doctrine of res judicata. “The
purposes of res judicata are to relieve parties of the cost and vexation of multiple lawsuits,
conserve judicial resources, and encourage reliance on adjudication.” Richards v Tibaldi, 272
Mich. App. 522, 530-531; 726 NW2d 770 (2006) (citation omitted). “In general, res judicata bars
a subsequent action . . . when the facts or evidence essential to the action is identical to that
essential to a prior action.” Id. at 530 (citation omitted). “Res judicata requires that (1) the prior
action was decided on the merits, (2) the decree in the prior action was a final decision, (3) the
matter contested in the second case was or could have been resolved in the first, and (4) both
actions involved the same parties or their privies.” Id. at 531 (citations omitted; emphasis
added). “[A] privy includes a person so identified in interest with another that he represents the
same legal right, such as a principal to an agent [or] a master to a servant[.]” Peterson
Novelties, Inc v City of Berkley, 259 Mich. App. 1, 12-13; 672 NW2d 351 (2003) (emphasis
added). Here, plaintiff’s prior lawsuit relative to the tort claims was decided on the merits, the
decree was final, the issue contested in the instant action could and should have been resolved in
the first action by simply including defendant as a party, and, although defendant was not a
named party in the first suit, SMART and defendant were privies, given the principal-agent and
master-servant relationships.
Furthermore, on substantive review, plaintiff’s lawsuit fails under MCL 124.419, which
provides as follows:
All claims that may arise in connection with the transportation authority
shall be presented as ordinary claims against a common carrier of passengers for
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[.]
[Emphasis added.]
In Atkins v SMART, 492 Mich. 707, 710-711; 822 NW2d 522 (2012), our Supreme Court
construed MCL 124.419, ruling:
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MCL 124.419 requires that a plaintiff who wishes to bring a claim for
injury to person or property arising out of an incident with a common carrier like
SMART must provide notice of the claim to the transportation authority within 60
days. Statutory notice requirements must be interpreted and enforced as plainly
written. Thus, we hold that notice of plaintiff's application for no-fault insurance
benefits, even when supplemented with SMART's presumed “institutional
knowledge” of the underlying facts of the injury, does not constitute written
notice of a third-party tort claim against SMART sufficient to comply with MCL
124.419. The provisions of MCL 124.419 apply to “ordinary claims” that arise in
connection with a common carrier, and the 60–day notice requirement pertains to
such claims for personal injury or property damage. An ordinary claim against a
common carrier does not include claims made for first-party no-fault benefits.
Those no-fault claims are not ordinary tort claims, but a statutory benefit
permitted in lieu of tort remedies. Thus, the statutory notice provision does not
apply to no-fault claims, and an application for first-party no-fault benefits does
not satisfy the statutory requirement to provide the transportation authority notice
of a plaintiff's intent to pursue a third-party tort claim. Nor does a common
carrier's presumed institutional knowledge of an injury or occurrence relieve a
claimant of the obligation to give the formal notice required by the statute.
To the extent that plaintiff is asserting that SMART’s institutional knowledge of the
occurrence and injury, as reflected in the SMART incident report, sufficed for purposes of MCL
124.419, or that there was, in essence, a claim for PIP benefits within the statutory 60-day
period, Atkins defeats both arguments.
Plaintiff argues that MCL 124.419 only pertains to a suit against the transportation
authority such as SMART and not actions based on gross negligence brought pursuant to MCL
691.1407 against individual governmental employees. However, in Nuculovic v Hill, 287 Mich
App 58, 65; 783 NW2d 124 (2010), this Court stated and held:
Plaintiff also argues that to the extent MCL 124.419 applies, it applies
only to claims against common carriers, and, therefore, would not apply to any
claim against Hill, [the bus driver,] individually. In light of the statutory language
indicating that the statute applies to “[a]ll claims that may arise in connection with
the transportation authority,” we must reject this claim as well. The broad
language of the statute indicates that it encompasses plaintiff's claim against Hill,
because the claim arises from Hill's operation of the bus as an employee of
SMART.
Moreover, there is nothing in the plain language of MCL 691.1407 and MCL 124.419 suggesting
that they are mutually exclusive. Defendant’s liability or immunity from liability, had this case
gone forward, would have been governed by MCL 691.1407, including its gross negligence
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provision, while MCL 124.419 simply sets forth a notice requirement that had to be satisfied in
order for plaintiff to commence the suit against defendant.1
Plaintiff proceeds to argue that because the tort of intentional infliction of emotional
distress is an intentional tort, MCL 124.419 is not implicated. Most of plaintiff’s argument on
this issue concerns her assertion that there is no immunity for governmental employees who
commit intentional torts. First, that is not an accurate characterization of Michigan law, as there
is immunity for intentional torts if a governmental employee was acting during the course of
employment, acting within the scope of his or her authority, acting in good faith, absent any
malice, and acting in regard to a discretionary matter. Odom v Wayne Co, 482 Mich. 459, 480;
760 NW2d 217 (2008). Second, MCL 124.419 speaks of “[a]ll claims” and “any claim,” which
would certainly encompass plaintiff’s claim of intentional infliction of emotional distress;
intentional tort claims are not excepted from the notice mandate.
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In Odom v Wayne Co, 482 Mich. 459, 479-480; 760 NW2d 217 (2008), the Supreme Court
explained the workings of MCL 691.1407 with respect to negligence suits against individual
governmental employees:
To summarize and simplify the application of our decision, we provide
these steps to follow when a defendant raises the affirmative defense of individual
governmental immunity. The court must do the following:
(1) Determine whether the individual is a judge, a legislator, or the
highest-ranking appointed executive official at any level of government who is
entitled to absolute immunity under MCL 691.1407(5).
(2) If the individual is a lower-ranking governmental employee or official,
determine whether the plaintiff pleaded an intentional or a negligent tort.
(3) If the plaintiff pleaded a negligent tort, proceed under MCL
691.1407(2) and determine if the individual caused an injury or damage while
acting in the course of employment or service or on behalf of his governmental
employer and whether:
(a) the individual was acting or reasonably believed that he was acting
within the scope of his authority,
(b) the governmental agency was engaged in the exercise or discharge of a
governmental function, and
(c) the individual's conduct amounted to gross negligence that was the
proximate cause of the injury or damage.
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Finally, plaintiff presents inadequately developed constitutional arguments, contending
that the 60-day notice of claim provision in MCL 124.419 violates the Title-Object Clause of
Const 1963, art 4, § 24, and that MCL 124.419 should be deemed void under state and federal
due process and equal protection guarantees. With respect to plaintiff’s title-object challenge,
she maintains that no reasonable person reading 1967 PA 20 – the title of the Metropolitan
Transportation Authorities Act of 1967 (MTAA), MCL 124.401 et seq. – “would understand that
there is a requirement to file a written notice for a claim against a bus driver or individual
employee for that person[’]s own behavior.” 1967 PA 20 provides, in relevant part, that the
MTAA is an act “to prescribe penalties and provide remedies.” (Emphasis added.) The notice of
claim provision in MCL 124.419 that must be satisfied before an action is filed is germane,
auxiliary, incidental, and relates to “remedies” connected to MTAA-based suits, assisting in the
implementation of the MTAA; therefore, there is no title-object violation, as 1967 PA 20
provides the public with proper notice of the requirements of MCL 124.419, absent any deceit or
subterfuge. Pohutski v City of Allen Park, 465 Mich. 675, 691-692; 641 NW2d 219 (2002).
With respect to plaintiff’s due process and equal protection claims, she sets forth cursory,
disjointed, and nearly indecipherable arguments. In Mudge v Macomb Co, 458 Mich. 87, 105;
580 NW2d 845 (1998), our Supreme Court stated:
“It is not enough for an appellant in his brief simply to announce a
position or assert an error and then leave it up to this Court to discover and
rationalize the basis for his claims, or unravel and elaborate for him his
arguments, and then search for authority either to sustain or reject his position.
The appellant himself must first adequately prime the pump; only then does the
appellate well begin to flow.” [Citation omitted.]
We shall, however, attempt to substantively address plaintiff’s arguments. First, plaintiff,
citing ordinance violation cases, appears to contend that MCL 124.419 does not provide fair and
adequate warning of what is required in relationship to notice and claims concerning an
employee of a transportation authority, allowing for arbitrary enforcement in violation of due
process. We conclude that the 60-day notice of claim requirement in MCL 124.419 is very clear,
mandating service of the notice in regard to “[a]ll claims” arising in connection with the
transportation authority, which plainly would encompass a claim against a bus driver. There was
fair and adequate warning, assuming that plaintiff’s argument can even be couched in terms of
procedural or substantive due process. See Bonner v City of Brighton, 298 Mich. App. 693, 705-
710; 828 NW2d 408 (2012), reversed on other grounds 495 Mich. 209 (2014).
Plaintiff next seems to suggest that MCL 124.419 violates equal protection because it
creates a distinction between grossly-negligent government bus drivers, for whom pre-suit notice
must be given, and grossly-negligent government operators of other vehicles, for whom no pre-
suit notice must be given, thereby arbitrarily splitting a class of tortfeasors and making it more
difficult for certain tort victims to pursue claims. Plaintiff relies on Reich v State Hwy Dep’t,
386 Mich. 617, 622-624; 194 NW2d 700 (1972), which found that there was an equal protection
violation where governmental tortfeasors were generally entitled to notice, whereas private
tortfeasors were not afforded notice, effectively creating a shortened statute of limitations for
victims of governmental tortfeasors as compared to the three-year limitations period applicable
to the victims of private tortfeasors. Plaintiff fails to acknowledge and appreciate that our
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Supreme Court in Rowland v Washtenaw Co Rd Comm, 477 Mich. 197, 206-207; 731 NW2d 41
(2007), abrogated and essentially overruled Reich with respect to the very proposition for which
plaintiff cites Reich, noting that there “can be distinctions made between classes of persons if
there is a rational basis to do so.” Plaintiff has simply failed to adequately develop an argument
that equal protection is violated by differentiating, for purposes of notice, between governmental
bus drivers and drivers of other governmental vehicles.
Affirmed. Having fully prevailed on appeal, defendant is awarded taxable costs under
MCR 7.219.
/s/ Kathleen Jansen
/s/ William B. Murphy
/s/ Michael J. Riordan
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