Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mays v. Snyder

Court of Appeals of Michigan

January 25, 2018

MELISSA MAYS, MICHAEL ADAM MAYS, JACQUELINE PEMBERTON, KEITH JOHN PEMBERTON, ELNORA CARTHAN, RHONDA KELSO, and ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellees/Cross-Appellees/Cross-Appellants,
v.
GOVERNOR RICK SNYDER, STATE OF MICHIGAN, MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY, and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants-Appellants/Cross-Appellees, and DARNELL EARLEY and JERRY AMBROSE, Defendants/Cross-Appellants/Cross-Appellees, and CITY OF FLINT, Not Participating. MELISSA MAYS, MICHAEL ADAM MAYS, JACQUELINE PEMBERTON, KEITH JOHN PEMBERTON, ELNORA CARTHAN, RHONDA KELSO, and ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellees, v GOVERNOR RICK SNYDER, STATE OF MICHIGAN, MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY, and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants, and DARNELL EARLEY, and JERRY AMBROSE, Defendants-Appellants, and CITY OF FLINT, Not Participating. MELISSA MAYS, MICHAEL ADAM MAYS, JACQUELINE PEMBERTON, KEITH JOHN PEMBERTON, ELNORA CARTHAN, RHONDA KELSO, and ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellees, v GOVERNOR RICK SNYDER, STATE OF MICHIGAN, MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY, and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants-Appellants, and DARNELL EARLEY and JERRY AMBROSE, Defendants and CITY OF FLINT, Not Participating.

         Court of Claims LC No. 16-000017-MM

          Before: Jansen, P.J., and Fort Hood and Riordan, JJ.

          Jansen, P.J.

         This case involves consolidated appeals from an October 26, 2016 opinion and order of the Court of Claims granting partial summary disposition in favor of defendants Governor Rick Snyder, the State of Michigan, the Michigan Department of Environmental Quality (DEQ), and the Michigan Department of Health and Human Services (DHHS) (collectively "state defendants"), and defendants Darnell Earley and Jerry Ambrose (city defendants), who are former emergency managers for the city of Flint, in this putative class action suit brought by plaintiff water users and property owners in the city of Flint, Michigan. For the reasons that follow, we affirm.

         I. FACTS AND PROCEDURE

         This case arises from the situation commonly referred to as the "Flint water crisis." The lower court record is only modestly developed, and the facts of the case are highly disputed. Because this is an appeal from an opinion of the Court of Claims partially granting and partially denying defendants' motion for summary disposition, we must construe the factual allegations in a light most favorable to plaintiffs.[1] The Court of Claims summarized the factual allegations in plaintiffs' complaint as follows:

From 1964 through late April 2014, the Detroit Water and Sewage Department ("DWSD") supplied Flint water users with their water, which was drawn from Lake Huron. Flint joined Genesee, Sanilac, and Lapeer Counties and the City of Lapeer, in 2009, to form the Karegondi Water Authority ("KWA") to explore the development of a water delivery system that would draw water from Lake Huron and serve as an alternative to the Detroit water delivery system. On March 28, 2013, the State Treasurer recommended to the Governor that he authorize the KWA to proceed with its plans to construct the alternative water supply system. The State Treasurer made this decision even though an independent engineering firm commissioned by the State Treasurer had concluded that it would be more cost efficient if Flint continued to receive its water from the DWSD. Thereafter, on April 16, 2013, the Governor authorized then-Flint Emergency Manager Edward Kurtz to contract with the KWA for the purpose of switching the source of Flint's water from the DWSD to the KWA beginning in mid-year 2016.
At the time Emergency Manager Kurtz contractually bound Flint to the KWA project, the Governor and various state officials knew that the Flint River would serve as an interim source of drinking water for the residents of Flint. Indeed, the State Treasurer, the emergency manager and others developed an interim plan to use Flint River water before the KWA project became operational. They did so despite knowledge of a 2011 study commissioned by Flint officials that cautioned against the use of Flint River water as a source of drinking water and despite the absence of any independent state scientific assessment of the suitability of using water drawn from the Flint River as drinking water.
On April 25, 2014, under the direction of then Flint Emergency Manager Earley and the Michigan Department of Environmental Quality ("MDEQ"), Flint switched its water source from the DWSD to the Flint River and Flint water users began receiving Flint River water from their taps. This switch was made even though Michael Glasgow, the City of Flint's water treatment plant's laboratory and water quality supervisor, warned that Flint's water treatment plant was not fit to begin operations. The 2011 study commissioned by city officials had noted that Flint's long dormant water treatment plant would require facility upgrades costing millions of dollars.
Less than a month later, state officials began to receive complaints from Flint water users about the quality of the water coming out of their taps. Flint residents began complaining in June of 2014 that they were becoming ill after drinking tap water. On October 13, 2014, General Motors announced that it was discontinuing the use of Flint water in its Flint plant due to concerns about the corrosive nature of the water. That same month, Flint officials expressed concern about a Legionellosis outbreak and possible links between the outbreak and Flint's switch to river water. On February 26, 2015, the United States Environmental Protection Agency ("EPA") advised the MDEQ that the Flint water supply was contaminated with iron at levels so high that the testing instruments could not measure the exact level. That same month, the MDEQ was also advised of the opinion of Miguel Del Toral of the EPA that black sediment found in some of the tap water was lead.
During this time, state officials failed to take any significant remedial measures to address the growing public health threat posed by the contaminated water. Instead, state officials continued to downplay the health risk and advise Flint water users that it was safe to drink the tap water while at the same time arranging for state employees in Flint to drink water from water coolers installed in state buildings. Additionally, the MDEQ advised the EPA that Flint was using a corrosion control additive with knowledge that the statement was false.
By early March 2015, state officials knew they faced a public health emergency involving lead poisoning and the presence of the deadly Legionella bacteria, but actively concealed the health threats posed by the tap water, took no measures to effectively address the dangers, and publicly advised Flint water users that the water was safe and that there was no widespread problem with lead leaching into the water supply despite knowledge that these latter two statements were false.
Through the summer and into the fall of 2015, state officials continued to cover up the health emergency, discredit reports from Del Toral of the EPA and Professor Marc Edwards of Virginia Tech confirming serious lead contamination in the Flint water system, conceal critical information confirming the presence of lead in the water system, and advise the public that the drinking water was safe despite knowledge to the contrary. In the fall of 2015, various state officials attempted to discredit the findings of Dr. Mona Hann-Attisha of Hurley Hospital, which reflected a "spike in the percentage of Flint children with elevated blood lead levels from blood drawn in the second and third quarter of 2014."
In early October of 2015, however, the Governor acknowledged that the Flint water supply was contaminated with dangerous levels of lead. He ordered Flint to reconnect to the Detroit water system on October 8, 2015, with the reconnection taking place on October 16, 2015. This suit followed. [Mays v Snyder, unpublished opinion of the Court of Claims, issued October 26, 2016 (Docket No. 16-000017-MM), pp 3-6 (citation omitted).]

         On January 21, 2016, plaintiffs brought a four-count verified class action complaint against all defendants in the Court of Claims "on behalf of Flint water users, which include but are not limited to, tens of thousands of residents . . . of the City of Flint." Plaintiffs brought their complaint pursuant to the Due Process/Fair and Just Treatment and unjust taking clauses of Article 1, § 17 and Article 10, § 2 of the Michigan Constitution alleging that since "April 25, 2014 to the present, [plaintiffs] have experienced and will continue to experience serious personal injury and property damage caused by Defendants' deliberately indifferent decision to expose them to the extreme toxicity of water pumped from the Flint River into their homes, schools, hospitals, correctional facilities, workplaces and public places." Specifically, plaintiffs alleged that defendants (1) "knowingly took from Plaintiffs safe drinking water and replaced it with what they knew to be a highly toxic alternative solely for fiscal purposes, " (2) for more than 18 months, ignored irrefutable evidence that the Flint River water was extremely toxic and causing serious injury to persons and property, (3) failed to properly sample and monitor the Flint River water, (4) knowingly delivered false assurances that the Flint River water was being tested and treated and was safe to drink, and (5) deliberately delayed notification to the public of serious safety and health risks.

          Plaintiffs sought class certification and elected to pursue causes of action against all defendants for state-created danger (Count I), violation of plaintiffs' due process right to bodily integrity (Count II), denial of fair and just treatment during executive investigations (Count III), and unconstitutional taking via inverse condemnation (Count IV). Plaintiffs sought an award of economic and noneconomic damages for, among other things, bodily injury, pain and suffering, and property damage, for "deliberately indifferent fraud" and "unconscionable" deception on the part of defendants while acting in their official capacities.

         State and city defendants separately moved for summary disposition on all four counts, arguing that, among other things, plaintiffs had (1) failed to satisfy the statutory notice requirements of MCL 600.6431, (2) failed to allege facts to establish a constitutional violation for which a judicially inferred damages remedy is appropriate, and (3) failed to allege facts to establish the elements of any of their claims. In a detailed opinion and order, the Court of Claims granted defendants' motions for summary disposition on plaintiffs' causes of action under the state-created danger doctrine and the Fair and Just Treatment Clause of the Michigan Constitution, after concluding that neither cause of action is cognizable under Michigan law.[2]However, the court denied summary disposition on all of defendants' remaining grounds.

         II. STATUTORY NOTICE REQUIREMENTS

         On appeal, defendants first argue that the Court of Claims erred when it denied defendants' motions for summary disposition under MCR 2.116(C)(4) and (C)(7) because plaintiffs failed to satisfy the requirement of statutory notice to avoid governmental immunity and seek relief against the state in the Court of Claims. We disagree.

         "We review a trial court's decision regarding a motion for summary disposition de novo." City of Fraser v Almeda Univ, 314 Mich.App. 79, 85; 886 N.W.2d 730 (2016). A motion for summary disposition under MCR 2.116(C)(4) tests the trial court's subject-matter jurisdiction. Weishuhn v Catholic Diocese of Lansing, 279 Mich.App. 150, 154; 756 N.W.2d 483 (2008). "We review a trial court's decision on a motion for summary disposition based on MCR 2.116(C)(4) de novo to determine if the moving party was entitled to judgment as a matter of law, or if affidavits or other proofs demonstrate there is an issue of material fact." Southfield Educ Assoc v Bd of Educ of Southfield Pub Sch, 320 Mich.App. 380, ____; ____ N.W.2d (2017) (Docket No. 331087), slip op at 10 (quotation marks and citation omitted). Whether a court has subject-matter jurisdiction over a claim is a question of law this Court reviews de novo. Jamil v Jahan, 280 Mich.App. 92, 99-100; 760 N.W.2d 266 (2008). Likewise, "whether MCL 600.6431 requires dismissal of a plaintiff's claim for failure to provide the designated notice raises questions of statutory interpretation, " which this Court reviews de novo. McCahan v Brennan, 492 Mich. 730, 736; 822 N.W.2d 747 (2012).

         Summary disposition under MCR 2.116(C)(7) is appropriate when a claim is barred because of immunity granted by law. Dextrom v Wexford Co, 287 Mich.App. 406, 428; 789 N.W.2d 211 (2010). "When reviewing a motion under MCR 2.116(C)(7), this Court must accept all well-pleaded factual allegations as true and construe them in favor of the plaintiff, unless other evidence contradicts them." Id. "If no material facts are in dispute, or if reasonable minds could not differ regarding the legal effect of the facts, the question whether the claim is barred by governmental immunity is an issue of law." Willett v Charter Twp of Waterford, 271 Mich.App. 38, 45; 718 N.W.2d 386');">718 N.W.2d 386 (2006) (quotation marks, citation, and alteration marks omitted).

         We hold that the Court of Claims did not err when it determined that genuine issues of material fact still exist regarding whether plaintiffs satisfied the statutory notice requirements of MCL 600.6431. Further, we hold that the harsh and unreasonable consequences exception relieves plaintiffs from the statutory notice requirements and that, depending on plaintiffs' ability to prove the allegations of their complaint, the fraudulent concealment exception of MCL 600.5855 may provide an alternative basis to affirm the court's denial of summary disposition.

         A. STATUTORY NOTICE REQUIREMENTS

         In Michigan, governmental agencies engaged in governmental functions are generally immune from tort liability. Kline v Dep't of Transp, 291 Mich.App. 651, 653; 809 N.W.2d 392 (2011). The government, by statute, may voluntarily subject itself to liability and "may also place conditions or limitations on the liability imposed." McCahan, 492 Mich. at 736. "Indeed, it is well established that the Legislature may impose reasonable procedural requirements, such as a limitations period, on a plaintiff's available remedies even when those remedies pertain to alleged constitutional violations." Rusha v Dep't of Corrections, 307 Mich.App. 300, 307; 859 N.W.2d 735 (2014). "[I]t being the sole province of the Legislature to determine whether and on what terms the state may be sued, the judiciary has no authority to restrict or amend those terms." McCahan, 492 Mich. at 732. Thus, "no judicially created savings construction is permitted to avoid a clear statutory mandate." Id. at 733. When the language of a limiting statute is straightforward, clear, and unambiguous, it must be enforced as written. Rowland v Washtenaw Co Rd Comm, 477 Mich. 197, 219; 731 N.W.2d 41 (2007).

         One statutory condition on the right to sue governmental agencies of the state of Michigan is the notice provision of the Court of Claims Act (CCA), MCL 600.6401 et seq. McCahan, 492 Mich. at 736. The provision, MCL 600.6431, provides:

(1) No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, commissions, boards, institutions, arms or agencies, stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths.
* * *
(3) In all actions for property damage or personal injuries, claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action.

         Our Supreme Court has directed that "[c]ourts may not engraft an actual prejudice requirement or otherwise reduce the obligation to comply fully with the statutory notice requirements." McCahan, 492 Mich. at 747. The notice requirement of MCL 600.6431 is an unambiguous "condition precedent to sue the state, " McCahan v Brennan, 291 Mich.App. 430, 433; 804 N.W.2d 906 (2011), aff'd 492 Mich. 730 (2012), and a claimant's failure to strictly comply warrants dismissal of the claim, " McCahan, 492 Mich. at 746-747.

         There is no dispute that plaintiffs' action involves personal injury and property damage. Plaintiffs filed their complaint in the instant suit on January 21, 2016, without having filed a separate notice of intention to file a claim. Thus, to have strictly complied with the notice requirement of MCL 600.6431, plaintiffs' claims must have accrued on or after June 21, 2015, the date six months prior to the date of filing. Defendants argue that plaintiffs' claims accrued, and the statutory notice period began to run, in either June of 2013, when plaintiffs allege that the state "ordered and set in motion the use of highly corrosive and toxic Flint river water knowing that the [water treatment plant] was not ready, " or on April 25, 2014, when Flint's water source was switched over to the Flint River and residents began receiving Flint River water from their taps. In either circumstance, according to defendants, plaintiffs' complaint was not filed within the six-month statutory notice period and plaintiffs' claims must be dismissed. As the Court of Claims observed, accepting defendants' position would require a finding that plaintiffs should have filed suit or provided notice at a time when the state itself claims it had no reason to know that the Flint River water was contaminated. Like the Court of Claims, we are disinclined to accept defendants' position.

         At a minimum, summary disposition on this ground is premature. Plaintiffs have alleged personal injury and property damage sustained as a result of defendants' allegedly knowing and deliberate decision to supply plaintiffs with contaminated and unsafe drinking water. Although defendants assert that plaintiffs' causes of action could only have arisen on the date of the physical switch, our Legislature has not defined claim accrual so narrowly. Rather, for purposes of statutory limitations periods, our Legislature has stated that a claim accrues "at the time the wrong upon which the claim is based was done, " MCL 600.5827, and our Supreme Court has clarified that "the 'wrong' . . . is the date on which the defendant's breach harmed the plaintiff, as opposed to the date on which defendant breached his duty." Frank v Linkner, 500 Mich. 133, ___; 894 N.W.2d 574, 582 (2017).[3] Thus, the date on which defendants acted to switch the water is not necessarily the date on which plaintiffs suffered the harm giving rise to their causes of action. Although our Supreme Court has abrogated the application of the discovery doctrine in this state, it has also made clear that it is not until "all of the elements of an action for . . . injury, including the element of damage, are present, [that] the claim accrues and the statute of limitations begins to run." Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich.App. 264, 290; 769 N.W.2d 234 (2009), quoting Connelly v Paul Ruddy's Equip Repair and Serv Co, 388 Mich. 146, 151; 200 N.W.2d 70 (1972). In other words, while a claimant's knowledge of each element of a cause of action is not necessary for claim accrual, a claim does not accrue until each element of the cause of action, including some form of damages, exists. See Henry v Dow Chem Co, 319 Mich.App. 704, ; N.W.2d (2017) (Docket No. 328716), slip op at 7. Determination of the time at which plaintiffs' claims accrued therefore requires a determination of the time at which plaintiffs were first harmed. See id.

         Plaintiffs allege various affirmative actions taken by defendants in this case that resulted in distinct harm to plaintiffs. As plaintiffs concede, not every injury suffered by every user of Flint water is necessarily actionable. However, questions of fact remain regarding whether and when each plaintiff suffered injury and when each plaintiff's claims accrued relative to the filing of plaintiffs' complaint. For example, plaintiffs have alleged economic damage in the form of lost property value that did not occur on the date of the water switch. Plaintiffs' claim for lack of marketability did not accrue until the values of their homes decreased, which would have occurred when the water crisis became public and marketability of property in Flint became significantly impaired in October 2015. Further, it is not clear on what date plaintiffs suffered actionable personal injuries as a result of their use and consumption of the contaminated water. Plaintiffs should be permitted to conduct discovery and given the opportunity to prove the dates on which their distinct harms first arose before summary disposition may be appropriate.[4] This is especially true where, as here, there are multiple events giving rise to plaintiffs causes of action.[5] "[T]he fact that some of [a] plaintiff's claims accrued outside the limitations period does not time-bar all of the plaintiff's claims." Dep't of Environmental Quality v Gomez, 318 Mich.App. 1, 28; 896 N.W.2d 39 (2016).

         Thus, even if strict compliance with the statutory notice provision is required, summary disposition, at least at this juncture, is premature. Further, as the Court of Claims observed, there are factual questions that, if resolved in plaintiffs' favor, would justify "relieving [plaintiffs] of the requirements of" MCL 600.6431(3). Rusha, 307 Mich.App. at 312.

         B. HARSH AND UNREASONABLE CONSEQUENCES

         Plaintiffs have asserted only constitutional claims against the state and various agencies. In Rusha, 307 Mich.App. at 311, the Court of Appeals acknowledged that "Michigan courts routinely enforce statutes of limitations where constitutional claims are at issue." However, the Court also acknowledged an exception to enforcement when strict enforcement of a limitations period is so harsh and unreasonable in its consequences that it "effectively divest[s]" a plaintiff "of the access to the courts intended by the grant of [a] substantive right." Rusha, 307 Mich.App. at 311 (citation omitted). The Court then noted that there is no obvious reason not to extend this exception, typically applied to relieve a plaintiff of the effects of statutory limitations periods, to statutory notice requirements. Specifically considering MCL 600.6431(3), the Rusha Court opined:

We see no reason-and plaintiff has provided none-to treat statutory notice requirements differently [than statutes of limitations]. Indeed, although statutory notice requirements and statutes of limitations do not serve identical objectives, both are procedural requirements that ultimately restrict a plaintiff's remedy, but not the substantive right. [Rusha, 307 Mich.App. at 311-312 (citations omitted).]

         Defendants argue that Rusha was incorrectly decided and should not influence our decision here. Specifically, defendants assert that the Rusha Court's conclusions, first that a harsh and unreasonable consequences exception may relieve plaintiffs from the statute of limitations and second that the same exception applies to statutory notice requirements, are directly contradicted by three earlier decisions of the Michigan Supreme Court: Trentadue v Buckler Lawn Sprinkler, 479 Mich. 378; 738 N.W.2d 664 (2007); Rowland, 477 Mich. 197, and McCahan, 492 Mich. 730. Defendants argue that these cases unequivocally prohibit the application of any type of judicial "saving construction" to avoid the "clear statutory mandate" of a legislatively-imposed limitations period. Defendants are correct that these cases stand for the proposition that a court may not craft an exception to the statutory notice or limitations periods by recognizing viability of a substantially compliant notice, engrafting a prejudice requirement, or similarly reducing the requirements of the statute, even where constitutional claims are at issue. Indeed, the Court in Rusha acknowledged that "a claimant's failure to comply strictly with [the notice provision of MCL 600.6431] warrants dismissal of the claim, even if no prejudice resulted." Rusha, 307 Mich.App. at 307, citing McCahan, 492 Mich. 746-747. However, the Court also recognized that the strict compliance requirement must be set aside when its application completely divests a plaintiff of the opportunity to assert a substantive right. Id. at 311. Despite defendants' assertion to the contrary, Rusha should not be read as advocating for the creation of a judicial saving construction to supplement an otherwise valid statute. Rather, it seems that the Rusha Court properly recognized the long-standing principle that while the Legislature retains the authority to impose reasonable procedural restrictions on a claimant's pursuit of claims under self-executing constitutional provisions, "the right guaranteed shall not be curtailed or any undue burdens placed thereon." Id. at 308, quoting Durant v Dep't of Ed (On Second Remand), 186 Mich.App. 83, 98; 463 N.W.2d 461 (1990).[6]

         The Michigan Constitution is the preeminent law of our land, and its provisions restrict the conduct of the state government. See Burdette v State, 166 Mich.App. 406, 408; 421 N.W.2d 185 (1988). Indeed, the Due Process Clause of the Michigan Constitution, as a Declaration of Rights provision, "ha[s] consistently been interpreted as limited to protection against state action." Sharp v Lansing, 464 Mich. 792, 813; 629 N.W.2d 873 (2001) (emphasis added). The Legislature may not impose a procedural requirement that would, in practical application, completely divest an individual of his ability to enforce a substantive right guaranteed thereunder. The harsh and unreasonable consequences exception is merely a judicial recognition that in limited cases, where the practical application of the Legislature's statutorily imposed procedural requirements are "unreasonable" or completely divest a claimant of his right to pursue a constitutional claim, those procedural requirements are unconstitutional.

         The Rusha Court's recognition of this limitation on legislative power does not conflict with the holdings in Trentadue, Rowland, or McCahan.[7] Importantly, these cases advocate strict compliance with statutory limitations and notice requirements in the context of legislatively granted rights, rather than on rights granted under the provisions of our Constitution itself. See McCahan, 492 Mich. at 733 (considering the statutory notice period in relation to a claim for personal injury and property damage arising from a motor vehicle accident); Trentadue, 479 Mich. at 386-387 (considering the statute of limitations on a wrongful death action); Rowland, 477 Mich. at 200 (considering the statutory notice period for a claim against a county defendant under a statutory exception to governmental liability). The right to pursue the tort claims involved in each arose from enumerated exceptions to the governmental tort liability act (GTLA), MCL 691.1401 et seq.; allowances structured by the Legislature's own authority and therefore subject to the Legislature's discretion. Additionally, Rusha was decided years after each of these cases, and is supported by precedent that has not been overruled.[8]

          Applying the harsh and unreasonable consequences exception to the facts presented in Rusha, the Court concluded that there was no reason to relieve the plaintiff from the requirement of strict compliance with the statutory notice requirement. Id. at 312-313. The Court explained:

Here, it can hardly be said that application of the six-month notice provision of § 6431(3) effectively divested plaintiff of the ability to vindicate the alleged constitutional violation or otherwise functionally abrogated a constitutional right. Again, plaintiff waited nearly 28 months to file his claim. But § 6431(3) would have permitted him to file a claim on this very timeline had he only provided notice of his intent to do so within six months of the claim's accrual. Providing such notice would have imposed only a minimal procedural burden, which in any event would be significantly less than the "minor 'practical difficulties' facing those who need only make, sign and file a complaint within six months." To be sure, providing statutory notice " 'requires only ordinary knowledge and diligence on the part of the injured and his counsel, and there is no reason for relieving them from the requirements of this [statutory notice provision] that would not be applicable to any other statute of limitation.' " [Id. (citations omitted).]

         Here, unlike in Rusha, application of the harsh and unreasonable consequences exception is clearly supported. To grant defendants' motions for summary disposition at this early stage in the proceedings would deprive plaintiffs of access to the courts and effectively divest them of the ability to vindicate the constitutional violations alleged. As the Court of Claims observed, this is not a case where an ostensible, single event or accident has given rise to a cause of action, but one where the "event giving rise to the cause of action was not readily apparent at the time of its happening." Mays, unpub op at 10. "Similarly, a significant portion of the injuries alleged to persons and property likely became manifest so gradually as to have been well established before becoming apparent to plaintiffs because the evidence of injury was concealed in the water supply infrastructure buried beneath Flint and in the bloodstreams of those drinking the water supplied via that infrastructure." Id. at 10-11. Plaintiffs in this case did not wait more than two years after discovering their claims to file suit. Rather, they filed suit within six months of the state's public acknowledgment and disclosure of the toxic nature of the Flint River water plaintiffs were exposed to.

         Further supporting the application of the harsh and unreasonable consequences exception to the requirement of statutory notice are plaintiffs' allegations of affirmative acts undertaken by numerous state actors, including named defendants, between April 25, 2014 and October 2015, to conceal both the fact that the Flint River water was contaminated and hazardous, and the occurrence of any event that would trigger the running of the six-month notice period. Under these unique circumstances, to file statutory notice within six months of the date of the water source switch would have required far more than ordinary knowledge and diligence on the part of plaintiffs and their counsel. It would have required knowledge that defendants themselves claim not to have possessed at the time plaintiffs' causes of action accrued.[9]

         Should plaintiffs' allegations be proven true, defendants' affirmative acts of concealment and frustration of plaintiffs' discovery of the alleged causes of action should not be rewarded. It would be unreasonable to divest plaintiffs of the opportunity to vindicate their substantive, constitutional rights simply because defendants successfully manipulated the public long enough to outlast the statutory notice period. Although circumstances such as these will undoubtedly be few, we believe that in this unique situation, we must not set a standard whereby the state and its officers may completely avoid liability if they manage to intentionally delay discovery of a cause of action until the six-month statutory notice period has expired. Plaintiffs must be afforded the opportunity to support the allegations of their complaint before dismissal of their claims may be appropriate.

         Because application of the harsh and unreasonable consequences exception to strict compliance with the statutory notice requirements is appropriate under the unique factual circumstances of this case, this Court need not consider whether, as defendants have asserted, plaintiffs improperly rely on the now-abrogated doctrines of discovery and continuing wrongs. Despite the unavailability of these previously-accepted principles, see Henry, 319 Mich.App. at ___, slip op at 6-7, plaintiffs' constitutional tort claims survive summary disposition on the non-conflicting basis that dismissal would result in a harsh and unreasonable deprivation "of access to the courts intended by the grant of [a] substantive right." See Rusha, 307 Mich.App. at 311.

         Finally, we briefly address the dissent's mention of similar pending Federal district court and circuit court actions. The dissent argues that even though plaintiffs are precluded from recovery due to their alleged failure to provide proper notice, "the residents of Flint are not left entirely without remedies, " due to several pending actions in the United States District Court for the Eastern District of Michigan, and the United States Sixth Circuit Court of Appeals, including some actions in which the named plaintiff in this case is also involved. However, until those actions are fully resolved, any recovery is speculative. Further, where many federal statutory remedies are limited, the Court of Claims is able to fashion any reasonable remedy necessary to adequately address the Constitutional violations complained of by plaintiffs. Accordingly, we disagree with the dissent that plaintiffs are able to avoid any "harsh remedies" by seeking relief in the Federal courts.

         C. FRAUDULENT CONCEALMENT

         In a footnote, the Court of Claims rejected plaintiffs' argument that the fraudulent concealment exception of MCL 600.5855 applied to toll the statute of limitations and the statutory notice period in this case. We find that the Court of Claims erred in reaching this conclusion, and hold that the fraudulent concealment exception may provide an alternative basis for affirming the denial of defendants' motions for summary disposition.

         The fraudulent concealment exception is a legislatively-created exception to statutes of limitation. The exception is codified as part of the Revised Judicature Act (RJA), MCL 600.101 et seq., in MCL 600.5855, which states:

If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations.

         This statutory section permits the tolling of a statutory limitations period for two years if the defendant has fraudulently concealed the existence of a claim. For the fraudulent concealment exception to apply, a "plaintiff must plead in the complaint the acts or misrepresentations that comprised the fraudulent concealment, " and "prove that the defendant committed affirmative acts or misrepresentations that were designed to prevent subsequent discovery." Sills v Oakland Gen Hosp, 220 Mich.App. 303, 310; 559 N.W.2d 348 (1996).

         The Legislature, in crafting the CCA, imported the fraudulent concealment exception into its statute of limitations provision. MCL 600.6452(2). However, as defendants point out, the Legislature did not explicitly import the exception into the statutory notice provision of the CCA. See MCL 600.6431. The Court of Claims rejected plaintiffs' assertion that the fraudulent concealment exception should apply to the CCA's statutory notice requirement, finding the absence of a similar provision directly applicable to MCL 600.643 "persuasive evidence that the Legislature did not intend for the fraudulent concealment tolling provision of MCL 600.5855 to be read into the notice provisions of MCL 600.6431." Mays, unpub op at 11-12 n 4. We disagree.

         It is a basic tenant of statutory construction that the omission of a statutory provision should be construed as intentional. CMAC LLC v Treasury Dep't, 286 Mich.App. 365, 372; 781 N.W.2d 310 (2009). "Courts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute, and then, on the basis of that assumption, apply what is not there." Id. (quotation marks and citation omitted). However, in this case, the Legislature did not "omit" from the CCA any language from the statute of limitations provisions of the RJA. Rather, the Legislature specifically included language mandating application of the RJA's statute of limitations provisions, and exceptions, to the statute of limitations provisions of the CCA. See MCL 600.6452(2).

         The RJA contains no statutory notice period, and neither the Legislature nor our courts have ever had the occasion to consider whether the fraudulent concealment exception might apply to such a provision. The Legislature's failure to specifically address the application of the fraudulent concealment exception to the CCA's statutory notice period therefore cannot be presumed intentional under the above-mentioned rules of statutory construction. While "the Legislature is presumed to be aware of, and thus to have considered the effect [of a statutory enactment] on, all existing statutes, " GMAC LLC, 286 Mich.App. at 372 (emphasis added), it makes no sense to presume knowledge of a potential future conflict without a context in which such knowledge would arise. Indeed, it would make as much sense to presume that the Legislature did not consider the issue of whether the fraudulent concealment exception would apply to the statutory notice provision of the CCA because, had it done so, it would have made its determination explicit. The Legislature's omission here does not provide dispositive evidence of intent, and we therefore must proceed according to the well-established rules of statutory interpretation and construction.

         "The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature." Dawson v Secretary of State, 274 Mich.App. 723, 729; 739 N.W.2d 339 (2007). "This Court begins by reviewing the language of the statute, and, if the language is clear and unambiguous, it is presumed that the Legislature intended the meaning expressed in the statute." McCormick v Carrier, 487 Mich. 180, 191; 795 N.W.2d 517 (2010). In such cases, "judicial construction is neither required nor permitted." Solution Source, Inc v LPR Assoc Ltd Partnership, 252 Mich.App. 368, 373; 652 N.W.2d 474 (2002). "However, if reasonable minds can differ concerning the meaning of a statute, judicial construction of the statute is appropriate." Id.

         We conclude that reasonable minds could differ regarding the meaning of MCL 600.5855 as applied in the context of claims brought under the CCA. First, it must be noted that while MCL 600.5855, a subsection of Chapter 58 of the RJA, is part of the Legislature's statutory scheme for statutory limitations periods, the statutory language does not otherwise express or imply that its exception operates only by tolling only the limitations period. To the contrary, the plain language of the statute provides that an action that has been fraudulently concealed "may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim. . . ." MCL 600.5855. The statute's direction that such an action may proceed notwithstanding that "the action would otherwise be barred by the period of limitations, " does not specifically limit the exception's application to those claims barred by the expiration of the limitations period. Considering only the plain language of MCL 600.5855, reasonable minds could differ on the question of whether the provision, as imported into the CCA, is intended to grant a claimant whose claim has been fraudulently concealed an affirmative right to bring suit within two years of discovery, regardless of prior noncompliance with the statutory requirements, or if the exception applies only to toll the statutory limitations period.

         The language of MCL 600.5855 becomes more ambiguous when it is practically applied in the context of a claim brought under the CCA. Although MCL 600.5855 clearly permits the commencement of an action within two years after a claimant discovers or should have discovered a fraudulently concealed claim, the statutory notice period of MCL 600.6431 prohibits the commencement of an action without notice filed within six months or one year of the date on which the claim accrued. As previously discussed, the discovery doctrine has been abrogated in this state, see Trentadue, 479 Mich. at 391-392, and a claim accrues on the date a claimant is harmed, regardless of when the claimant first learns of his harm. If MCL 600.6431 is strictly applied, as it must be, see McCahan, 492 Mich. at 746-747, it is impossible to reconcile with the Legislature's clear intent to provide claimants with two years from the date of discovery to bring suit on a harm that the liable party has fraudulently concealed.[10]

         "Statutory provisions are not to be read in isolation; rather, context matters, and thus statutory provisions are to be read as a whole." Robinson v Lansing, 486 Mich. 1, 16; 782 N.W.2d 171 (2010). The Legislature clearly intended to incorporate the statutory limitations periods and exceptions, including the fraudulent concealment exception of MCL 600.5855, into the CCA. See MCL 600.6452(2). If the fraudulent concealment exception is not applied equally to the statutory period of limitations and the statutory notice period of the CCA, it cannot be applied at all. See Apsey v Mem Hosp, 477 Mich. 120, 131; 730 N.W.2d 695 ("A statute is rendered nugatory when an interpretation fails to give it meaning or effect."). "[C]ourts must interpret statutes in a way that gives effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory." O'Connell v Director of Elections, 316 Mich.App. 91, 98; 891 N.W.2d 240 (2016). Further, when there is "tension, or even conflict, between sections of a statute, " this Court has a "duty to, if reasonably possible, construe them both so as to give meaning to each; that is, to harmonize them." Nowell v Titan Ins Co, 466 Mich. 478, 483; 648 N.W.2d 157 (2002). Here, to read MCL 600.5855, as imported into the CCA, and MCL 600.6431 in harmony requires the conclusion that when the fraudulent concealment exception applies, it operates to toll the statutory notice period as well as the statutory limitations period.

         Importantly, application of the fraudulent concealment exception to statutory notice periods does nothing to undermine the purpose for requiring timely statutory notice. As defendants concede, the purpose of the notice provision in MCL 600.6431 is to establish a "clear procedure" for pursuing a claim against the state and eliminate "ambiguity" about whether a claim will be filed. McCahan, 492 Mich. at 744 n 24. The provision gives the state and its agencies time to create reserves and reduces the uncertainty of the extent of future demands. Rowland, 477 Mich. at 211-212. But when the state and its officers, having knowledge of an event giving rise to liability and anticipating the possibility that claims may be filed, actively conceal information in order to prevent a suit, the state suffers no "ambiguity" or surprise. In cases where the fraudulent concealment exception may be applied, the state possesses the necessary information and the object of the statutory notice requirement is self-executing. Application of the fraudulent concealment exception to the statutory notice requirement of the CCA is therefore consistent with both the legislative intent behind the exception itself and the purpose of the statutory notice period. In keeping with the principles of statutory construction and the Legislature's clear intent to permit the application of the fraudulent concealment exception to claims brought under the CCA, we hold that the fraudulent concealment exception applies, at least, to toll the statutory notice period commensurate with the tolling of the statute of limitations in situations where its requirements have been met.[11]

         If plaintiffs can prove, as they have alleged, that defendants actively concealed the information necessary to support plaintiffs' cause of action so that plaintiffs could not, or should not, have known of the existence of the cause of action until a date less than six months prior to the date of their complaint, application of the fraudulent concealment exception will fully apply and plaintiffs should be permitted to proceed regardless of when their claim actually accrued. Whether plaintiffs can satisfy the exception is a question that involves disputed fact and is subject to further discovery. Summary disposition on this ground is therefore inappropriate.

          III. JURISDICTION OVER CITY DEFENDANTS

         Next, state defendants argue that argue that the Court of Claims erred when it found that it could exercise jurisdiction over claims brought against city defendants because emergency managers are considered "state officers" under the CCA.[12] We disagree.

         "Jurisdiction is a court's power to act and its authority to hear and decide a case." Riverview v Sibley Limestone, 270 Mich.App. 627, 636; 716 N.W.2d 615 (2006). "The Court of Claims is created by statute and the scope of its subject-matter jurisdiction is explicit." O'Connell, 316 Mich.App. at 101 (quotation marks and citations omitted). "A challenge to the jurisdiction of the Court of Claims presents a statutory question that is reviewed de novo as a question of law." Id. at 97 (quotation marks and citation omitted).

         With MCL 600.6419(1)(a), the Legislature endowed the Court of Claims with exclusive jurisdiction "[t]o hear and determine any claim or demand, statutory or constitutional . . . against the state or any of its departments or officers notwithstanding another law that confers jurisdiction of the case in the circuit court." (Emphasis added.) In the same statutory subsection, the Legislature specified that

[a]s used in this section, "the state or any of its departments or officers" means this state or any state governing, legislative, or judicial body, department, commission, board, institution, arm, or agency of the state, or an officer, employee, or volunteer of this state or any governing, legislative, or judicial body, department, commission, board, institution, arm, or agency of this state, acting, or who reasonably believes that he or she is acting, within the scope of his or her authority while engaged in or discharging a government function in the course of his or her duties. [MCL 600.6419(7).]

         The jurisdiction of the Court of Claims does not extend to local officials. Doan v Kellogg Community College, 80 Mich.App. 316, 320; 263 N.W.2d 357 (1977).

         Whether an emergency manager falls within the definition of state "officer" provided in MCL 600.6419(7) is a question of statutory interpretation. When interpreting a statute, "[o]ur duty is to ascertain and effectuate the intent behind the statute . . . from the language used in it." Attorney General v Flint City Council, 269 Mich.App. 209, 211-212; 713 N.W.2d 782 (2005). "Undefined statutory terms must be given their plain and ordinary meanings, and it is proper to consult a dictionary for definitions." Halloran v Bhan, 470 Mich. 572, 578; 683 N.W.2d 129 (2004). "When statutory language is unambiguous, we must presume that the Legislature intended the meaning it clearly expressed and further construction is neither required nor permitted." Attorney General, 269 Mich.App. at 213 (quotation marks and citation omitted).

         State defendants acknowledge that the Michigan Supreme Court has determined that the question whether an official is a state officer in a particular circumstance is "governed by the purpose of the act or clause in connection with which it is employed." Schobert v Inter-Co Drainage Bd of Tuscola, Sanilac & Lapeer Cos for White Creek No 2 Inter-Co Drain, 342 Mich. 270, 282; 69 N.W.2d 814 (1955). State defendants assert that it is PA 436, the statute creating and governing the office of an appointed emergency manager, that is the focus of this inquiry, and devote substantial portions of their appellate briefs to pulling a distinction from "state officers" out of the language of that Act. State defendants have either offered this Court a red herring or confused an otherwise straightforward determination. The question is not, as state defendants contend, whether the Legislature in passing PA 436 intended to make emergency managers state officials. While PA 436 and its characterization of emergency managers may be relevant in another context, the question presented here is one of jurisdiction, and it is the intent behind the Legislature's grant of jurisdiction to the Court of Claims, through MCL 600.6419 in particular, that must direct this Court's analysis. See Spectrum Health Hosp v Farm Bureau Mut Ins Co of Mich, 492 Mich. 503, 521; 821 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.