Brown v. Manistee County Road Commission 452 Mich. 354

Cavanagh, J.

In this case, we granted leave to appeal to consider (1) whether the plaintiff’s action is governed by the sixty-day notice provision of MCL 224.21; MSA 9.121 or the 120-day notice provision of MCL 691.1404; MSA 3.996(104), (2) whether our rule in Hobbs v State Hwys Dep’t, 398 Mich 90; 247 NW2d 754 (1976), requiring a showing of prejudice, should be overruled, and (3) if we reaffirm Hobbs, whether there has been a showing of prejudice in the instant case. We hold that the 120-day notice provision applies in an action for personal injuries against a county road commission. Further, we reaffirm our decision in Hobbs, wherein this Court held that, absent a showing of actual prejudice to the governmental agency, the notice provision is not a bar to the *357claim. Because the governmental agency has not shown prejudice from the plaintiffs failure to give notice within this period, we reverse the trial court’s grant of summary disposition for the road commission, and remand the case for trial on the merits.

I. FACTS

On June 12, 1988, plaintiff Billy D. Brown was riding his motorcycle through Filer City, Michigan, near Manistee when he lost control attempting to avert a pothole. He filed a complaint on June 11, 1990, against defendant Manistee County Road Commission, alleging that he sustained serious injuries.

Brown claimed that the defendant was negligent because it failed to maintain the surface of the road under its control. Sixty-one days after the accident occurred, the road commission resurfaced the road. However, there is no allegation that it knew about the accident when it resurfaced the road.

On September 5, 1991, the defendant moved for summary disposition pursuant to MCR 2.116(C)(7), claiming that the plaintiff failed to comply with the sixty-day notice requirement of MCL 224.21; MSA 9.121.1 On November 5, 1991, the trial court held that the plaintiff was subject to the sixty-day notice provision, that the defendant was prejudiced by the plaintiff’s failure to serve notice, and thus it granted the defendant’s motion for summary disposition. The plaintiff appealed in the Court of Appeals, and the defendant cross appealed the decision of the trial court with respect to which notice provision gov-*358emed. The Court of Appeals affirmed the decision of the lower court. 204 Mich App 574; 516 NW2d 121 (1994). We granted leave to appeal,2 and reverse the decision of the Court of Appeals.

n. THE 120-DAY PROVISION GOVERNS

We begin with the fundamental principle that governmental agencies are statutorily3 immune from tort liability.4 The Legislature has, however, provided exceptions to immunity, including liability for failure to properly maintain highways5 and failure to maintain county roads6 in reasonable repair. As a condition of this particular waiver of immunity, qualified by *359 Hobbs, the Legislature requires notice of the alleged injury and defect to be served on the appropriate governmental agency. However, the two potentially governing statutes in this case provide different notice periods. MCL 224.21; MSA 9.121, addressing county road commission liability, compels the injured party to file a notice of the claim with the clerk and the chairman of the board of county road commissioners within sixty days of the injury.* 7 MCL 691.1404; MSA 3.996(104), addressing the identical liability for the state, its political subdivisions (including county road commissions),8 and municipal corporat*360ions,9 requires the injured party to file a notice of the claim with a governmental agency within 120 days of the injury.10

In the present case, the trial court denied the defendant’s motion for summary disposition on the basis of plaintiff’s failure to comply with the 120-day notice provision. It held that the county was not prejudiced by repavement of the road before the expiration of the notice provision.11 However, if the sixty-day notice provision applies, the defendant may have been prejudiced because after the road was repaved, it was unable to photograph, examine or otherwise evaluate plaintiff’s claim. We, therefore, must determine with which notice provision the plaintiff was required to comply. In doing so, we remain loyal to this Court’s recent commitment “to interpret the cur*361rent immunity statute and its exceptions in a manner consistent with the intent of the Legislature.” Scheur-man v Dep’t of Transportation, 434 Mich 619, 627; 456 NW2d 66 (1990).

A

We have previously discerned the legislative intent “to provide uniform liability and immunity to both state and local government agencies.” Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 614; 363 NW2d 641 (1984). We, therefore, note that the distinct notice periods in the two statutes are suspect because it is clear that MCL 691.1404; MSA 3.996(104) and MCL 224.21; MSA 9.121 govern identical causes of action for defective road and highway maintenance. By providing different notice periods, the legislation divides injured persons into two classes: those injured on a defective road controlled by a county road commission and those injured on a defective road controlled by other governmental agencies. Accordingly, we must determine whether this distinction implicates the Equal Protection Clause.12

Unless the legislation creates a “classification scheme,” or “impinges upon the exercise of a fundamental right,” it is “accorded a presumption of constitutionality, and is reviewed by applying a rational *362basis standard.”13 Doe v Dep’t of Social Services, 439 Mich 650, 662; 487 NW2d 166 (1992). This presumption requires the court to inquire whether “ ‘any state of facts either known or which could reasonably be assumed affords support’ ” for the distinction between the notice provisions. Shavers v Attorney General, 402 Mich 554, 613-614; 267 NW2d 72 (1978).14

The only purpose that this Court has been able to posit for a notice requirement is to prevent prejudice to the governmental agency:

[A]ctual prejudice to the state due to lack of notice within 120 days is the only legitimate purpose we can posit for this notice provision .... [Hobbs, supra at 96.]

Notice provisions, therefore, permit a governmental agency to gather evidence quickly in order to evaluate a claim. In contravention of the stated purpose of the notice provision in Hobbs, defendant claims that another purpose for the notice provision is to enable the county to remedy any road defects and prevent future injury. A county cannot be prejudiced with respect to the injured party’s claim, as required by Hobbs, to enforce the notice provision because of the possibility of a future injury. A future injury does not affect a governmental agency’s ability to defend itself against the original claim.

The notice provision has the same purpose, therefore, irrespective of whether the action is brought against the state, a city, township, or county road *363commission. However, an injured person with a negligent highway cause of action against a “political subdivision” must comply with the 120-day notice provision in MCL 691.1404; MSA 3.996(104), whereas a person with an identical cause of action against a county road commission must comply with the sixty-day notice provision in MCL 224.21; MSA 9.121. Thus, a person injured in a county in which there is no county road commission would be required to file notice of the claim within 120 days, whereas an identical person injured in a county that has a county road commission would be required to provide notice within sixty days to the county road commissioner.

Therefore, despite a presumption of constitutionality, we are unable to perceive a rational basis for the county road commission statute to mandate notice of a claim within sixty days. During oral argument, attorney for defendant asserted that one could only “surmise” that the distinction is justified by the county road commission’s responsibility for “many miles of rural road.” However, we believe that there are no “facts either known or which could reasonably be assumed” that indicate a road commission requires a shorter notice period merely because it is responsible for rural roads.15 Shavers, supra at 613-614. This fact bears no relationship to the stated purpose of the notice provision. There may be no dispute that the governmental agencies under MCL 691.1401(e); MSA 3.996(101)(e) are likewise responsible for many miles of rural roads, highways, and streets. Accordingly, the *364distinct sixty-day notice provision required for claims against a county road commission is unconstitutional.

B

We must now determine whether the 120-day notice provision is reasonable. Carver v McKernan, 390 Mich 96; 211 NW2d 24 (1973). In Carver, the Court held that a notice provision with a legitimate purpose “does not necessarily violate the constitution.” Id. at 100. The Court held, however, that “even though some notice requirement may be permitted, a particular provision may still be constitutionally deficient.” Id. Upholding the six-month notice requirement of the accident claims act, MCL 257.1118; MSA 9.2818,16 the Court also noted that a particular notice provision may be unreasonable if “the time specified in the notice [provision is] for an extremely short period . . . .’’Id.

We do not believe that a 120-day notice provision is unreasonably short. Both the six-month notice provision in Carver and the present 120-day notice provision provide a claimant sufficient time to serve the governmental agency with notice of an alleged injury and corresponding defect. Our decision is clearly supported by this Court’s subsequent decision in Hobbs, supra, in which we upheld the exact 120-day notice requirement of MCL 691.1404; MSA 3.996(104). Accordingly, we would hold that the plaintiff’s cause of action is subject to the 120-day notice provision.

*365m. HOBBS IS REAFFIRMED

We do not agree with the conclusion of the dissenting opinion that Hobbs should be overruled; rather, the doctrine of stare decisis mandates its reaffirmance.17 Additionally, despite the Legislature’s ability to change the statutory language or disapprove of this Court’s interpretation of § 4, it has acquiesced in the Hobbs decision for nearly twenty years.

This Court has stated on many occasions that “ ‘[u]nder the doctrine of stare decisis, principles of law deliberately examined and decided by a court of competent jurisdiction should not be lightly departed.’ ” Boyd v W G Wade Shows, 443 Mich 515, 525, n 15; 505 NW2d 544 (1993), quoting People v Jamieson, 436 Mich 61, 79; 461 NW2d 884 (1990). Further, this Court has stated that it “will not overrule a decision deliberately made unless [it] is convinced not merely that the case was wrongly decided, but also that less injury would result from overruling than from following it.” Boyd at 524 (citation omitted).

Moreover, this Court has consistently opined that, absent the rarest circumstances, we should remain faithful to established precedent. We have stated:

*366“The rule of stare decisis establishes uniformity, certainty, and stability in the law .... Only in the rare case when it is clearly apparent that an error has been made, or changing conditions result in injustice by the application of an outmoded rule, should we deviate from following the established rule.” [People v Collins, 438 Mich 8, 41-42; 475 NW2d 684 (1991) (Cavanagh, C.J., dissenting), quoting Parker v Port Huron Hosp, 361 Mich 1, 10; 105 NW2d 1 (I960).]

With these principles in mind, we do not believe that Hobbs should be overruled. When this Court decided Hobbs in 1976, it carefully examined the notice provision and the reasons justifying it. In that case, this Court deliberately decided that actual prejudice to the governmental agency resulting from lack of notice within 120 days was the only legitimate purpose it could posit for the notice provision. Further, this Court deliberately decided that, unless actual prejudice is shown, the plaintiffs claim is not barred by failure to give notice within the requisite period.

We are not convinced that Hobbs was wrongly decided. Further, we believe that more injury would result from overruling it than from following it. The rule in Hobbs has been an integral part of this state’s governmental tort liability scheme for almost two decades. It should not be lightly discarded. Although the law of governmental tort liability in this state has changed over the years, the continued validity of the Hobbs rule will not result in injustice. Rather, a reaffirmance of the rule will maintain the uniformity, certainty, and stability in the law of this state.

Further, we emphasize that the Legislature has not changed the language of § 4 since Hobbs was *367decided.18 For decades, this Court has recognized that stare decisis applies to decisions construing statutes, especially where the Legislature acquiesces in this Court’s construction by its failure to change the language of the construed statute. See Boyd at 525, citing Consumers Power Co v Muskegon Co, 346 Mich 243; 78 NW2d 223 (1956). Further, this Court has stated:

“When, over a period of many years, the Legislature has acquiesced in this Court’s construction of a statute, the judicial power to change that interpretation ought to be exercised with great restraint. On more than one occasion our Court has quoted with approval the statement that stare *368decisis ‘is especially applicable where the construction placed on a statute by previous decisions has been long acquiesced in by the legislature, by its continued use or failure to change the language of the statute so construed, the power to change the law as interpreted being regarded, in such circumstances, as one to be exercised solely by the, legislature.’ ” [Boyd at 525-526, quoting Dean v Chrysler Corp, 434 Mich 655, 664; 455 NW2d 699 (1990), quoting Consumers Power Co v Muskegon Co at 251, quoting 21 CJS, Courts, § 214, pp 388-390. See also In re Clayton Estate, 343 Mich 101, 107; 72 NW2d 1 (1955).]

Because the Legislature has not reacted to this Court’s interpretation of § 4 in the nearly twenty years since Hobbs was decided, we conclude that the Legislature has acquiesced in our interpretation of the statute. Smith v Detroit, 388 Mich 637, 650; 202 NW2d 300 (1972). Apparently, the Legislature has been content with the way this Court has interpreted § 4.19

IV. CONCLUSION

We reverse the holding of the Court of Appeals that the sixty-day provision applies, and hold that the 120-day notice provision applies to lawsuits against a county road commission. Further, we hold that Hobbs is still good law. Finally, we hold that the defendant road commission has not established that it has suffered prejudice from the plaintiff’s failure to serve *369notice within the 120-day period, because it repaved the road before the expiration of the notice period.

We remand for trial on the merits.

Brickley, C.J., and Levin and Mallett, JJ., concurred with Cavanagh, J.

Riley, J.

(dissenting). Although I agree with the majority’s conclusion that plaintiff must comply with the 120-day notice requirement, I dissent because I would reject the requirement of prejudice engrafted upon the statutory notice provision by Hobbs v State Hwys Dep’t, 398 Mich 90; 247 NW2d 754 (1976). Accordingly, on the basis of the facts before the Court, I would hold that the statutory notice requirement bars plaintiff’s cause of action. Although the Court of Appeals improperly concluded that the sixty-day notice provision governed, it properly upheld the trial court’s grant of defendant’s motion for summary disposition. Therefore, I would affirm the decision of the Court of Appeals on different grounds.

i

The statutory provision at issue in this case is straightforward, clear, and unambiguous. Nevertheless, this Court previously engrafted a requirement of prejudice upon it. The requirement has its origins in Reich v State Hwy Dep’t, 386 Mich 617; 194 NW2d 700 (1972), in which this Court, in a cursory opinion, struck down the sixty-day notice requirement as vio-lative of the Equal Protection Clauses of the state and federal constitutions. The Court reasoned that the notice requirement divided the natural class of victims of negligent tortfeasors into arbitrary subclasses: victims of governmental negligence who must meet *370the notice requirement and victims of private negligence who are not subject to the notice requirement.

However, in Carver v McKernan, 390 Mich 96; 211 NW2d 24 (1973), the Court retreated from this position and held that notice provisions are not necessarily unconstitutional. The Court upheld the constitutionality of notice provisions in cases in which prejudice to the government for failure to give such notice could be demonstrated.

In the Court’s subsequent decision in Hobbs, supra at 96, the Court upheld Carver and specifically required a showing of prejudice to the state before enforcement of the notice provision:

Because actual prejudice to the state due to lack of notice within 120 days is the only legitimate purpose we can posit for this notice provision, absent a showing of such prejudice the notice provision contained in MCL 691.1404; MSA 3.996(104) is not a bar to claims filed pursuant to MCL 691.1402; MSA 3.996(102).

This “constitutional” requirement engrafted by the Court is illusory. I note that “[w]hen scrutinizing economic and social legislation, this Court applies the rational basis standard of review.” Downriver Plaza Group v Southgate, 444 Mich 656, 666; 513 NW2d 807 (1994). The only inquiry, then, is whether this social legislation creating a 120-day notice requirement has a rational basis.

This particular legislation passes the minimal rational basis test, and the Court in Hobbs was without authority to require a showing of prejudice in each and every case. Notice provisions rationally and reasonably provide the state with the opportunity to investigate and evaluate a claim. The mere fact that in *371some cases the legislation prevents prejudice to the government by itself is a rational basis. No further “constitutional” analysis is permitted. Certainly, if the Legislature may provide no recovery at all, it may place a condition on recovery, i.e., a reasonable notice provision.1 The Court in Carver and Hobbs erred in that both failed to properly analyze this social legislation under the rational basis standard. Erroneously concluding that prejudice had to be shown in every case to preserve the legislation’s constitutionality, the Court ignored the rational basis test and created the prejudice requirement.

The statute clearly survives rational basis scrutiny and, is constitutional. The statute, therefore, must be read and applied as written.2 In contrast, this Court in Hobbs created a condition for the application of a notice requirement that is not supported by the language of the statute.

Hobbs is, therefore, in clear derogation of the fundamental precepts of statutory construction. I am unable to agree with this judicial intrusion into a leg*372islative function.3 As Justice Carr noted in Williams v Detroit, 364 Mich 231, 235; 111 NW2d 1 (1961):

The admission of the obvious fact that a change in the policy of governmental immunity from liability in cases of the nature here involved is within the scope of legislative authority carries with it the further admission that such action is not within the scope of judicial powers.

Although I agree with the result in Hobbs that notice provisions are constitutional, I cannot agree with its rationale. This conclusion remains loyal to our recent decision in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), where we stated that the grant of immunity “is expressed in the broadest possible language . . . .” Id. at 618. The statutory exceptions, however, are “narrowly drawn.” Id. Plaintiff in this case is only able to bring his court action because the Legislature created an exception to governmental immunity. The Legislature requires timely notice of such a claim as quid pro quo for its relinquishment of immunity. I would uphold this notice requirement as written by the Legislature.

The majority relies on legislative acquiescence to uphold the Hobbs prejudice requirement.4 This argu*373ment is wholly without merit. In Hobbs, the Court upheld the constitutionality of the 120-day notice provision provided that prejudice be read into the statute. To overcome the previously adjudged constitutional infirmities of notice requirements, the Hobbs Court simply held, albeit improperly, that actual prejudice to the state was the only legitimate purpose for the notice provision. Accordingly, the Court held that the requirement of prejudice saved the statute from constitutional infirmity. The Legislature, therefore, was without authority during the past twenty years to eliminate the prejudice requirement which the Hobbs Court engrafted upon the statute. The dissent’s legislative acquiescence argument ignores the fundamental principle that “[construction of the constitution is the province of the courts and this Court’s construction of a State constitutional provision is binding on all departments of government, including the legislature.” Richardson v Secretary of State, 381 Mich 304, 309; 160 NW2d 883 (1968). Accordingly, principles of legislative acquiescence are not relevant to this case.* 5

n

While I agree that plaintiff’s equal protection rights are violated by applying two distinct notice periods to *374the same cause of action for defective road and highway maintenance, I am not persuaded that the rule in Hobbs, requiring a showing of prejudice to the governmental agency, is supportable and would therefore overrule that decision. Proper application of the statute bars plaintiffs cause of action because he failed to provide the county road commission with notice of his claim within 120 days of his injury. Accordingly, the decision of the Court of Appeals should be affirmed on different grounds.

Boyle, J., concurred with Riley, J.

Weaver, J., took no part in the decision of this case.