Civil Rights — Notice

Where a complaint has been filed against state defendant over the death of a 3-year-old child, the defendants are entitled to summary disposition based on the plaintiff’s failure to satisfy the applicable notice requirements.

“Plaintiff Christine Cunningham, individually and as Personal Representative of the Estate of Trinity Chandler, sued defendants, the State of Michigan, Michigan Department of Health and Human Services (DHHS), Children’s Services Agency (CSA), DHHS Director Elizabeth Hertel, CSA Executive Director Demetrius Starling, Governor Gretchen Whitmer (collectively, the state defendants), and three unnamed Oakland County Child Protective Services (CPS) workers (Jane Doe Number 1, the Oakland County CPS Manager; Jane Doe Number 2, the Oakland County CPS On-Call Supervisor; and Jane Doe Number 3, the Oakland County CPS caseworker), for gross negligence, wrongful death, and violation of due process, related to the death of three-year-old Trinity. The state defendants moved for summary disposition and sought dismissal of the complaint. For the reasons set forth here, the Court GRANTS summary disposition in favor of the state defendants and DISMISSES the complaint against the state defendants.

“In lieu of answering the complaint, the state defendants moved for summary disposition and argued, among other things, that plaintiff’s claims must be dismissed because plaintiff failed to file a timely verified claim or notice of claim as required by MCL 600.6431 of the Court of Claims Act (COCA), MCL 600.6401 et seq .

“Plaintiff argued in response that the ‘delay’ in providing notice was the result of her not becoming aware of ‘the actions and inaction of the state Defendants’ until the March 27, 2023 Office of the Children’s Ombudsman’s (OCO) report of its investigation regarding the circumstances of Trinity’s death became public on June 7, 2023. Therefore, she contends, the notice of intent that was filed on December 19, 2023, ‘a little over six months later,’ was timely.

“MCL 600.6431(1) states that, unless an exception not applicable in this case applies, ‘a claim may not be maintained against this state unless the claimant, within 1 year after the 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 this state or any of its departments, commissions, boards, institutions, arms, or agencies.’ For purposes of MCL 600.6431(1), a claim accrues at the time the wrong upon which a claim is based was done’ and ‘each element of the cause of action, including some form of damages, exists.’ Breiner v State , 344 Mich App 387, 405 n 5; 1 NW3d 336 (2022) (quotation marks and citation omitted). For claims involving personal injury, however, like the claims in this case, the claimant must ‘file the claim or notice under subsection (1) with the clerk of the court of claims within 6 months after the event that gives rise to the claim.’ MCL 600.6431(4). The notice requirement is a ‘condition precedent to sue the state,’ Rusha v Dep’t of Corrections , 307 Mich App 300, 307; 859 NW2d 735 (2014), and a ‘plaintiff’s failure to strictly comply with MCL 600.6431 mandates dismissal of the claim,’ Chisholm v State Police , ___ Mich App ___, ___; ___ NW3d ___ (2023) (Docket No. 355691); slip op at 3, citing Elia Cos, LLC v Univ of Mich Regents , 511 Mich 66, 74-75; 993 NW2d 392 (2023). The fact that plaintiff initiated her claim in circuit court did not excuse her from complying with the requirements of MCL 600.6431.

“To the extent that plaintiff suggests that she was entitled to toll the notice period until the OCO publicly issued its report, the Court notes that while the fraudulent tolling provision of MCL 600.5855 can toll the statutory-limitations period in MCL 600.6431 when MCL 600.5855 applies, plaintiff did not allege fraudulent concealment in the complaint or plead any acts or misrepresentations by the state defendants that would constitute fraudulent concealment. Further, the OCO is not a defendant in this case.

“Plaintiff’s complaint demonstrates that the event giving rise to plaintiff’s personal-injury claims was Trinity’s death on December 19, 2020. Because plaintiff did not file a notice of intent to file a claim within six months of December 19, 2020, as required by MCL 600.6431(4), plaintiff’s complaint against the state defendants must be dismissed.

“Even if the Court were to agree with plaintiff that she could not have become aware of the claims until June 7, 2023, plaintiff’s response to the motion for summary disposition acknowledges that her December 19, 2023, notice of intent was not filed within six months of June 7, 2023. And, even if the one-year notice period in MCL 600.6431(1) applied to plaintiff’s claims, plaintiff did not file a notice of intent within one year of the accrual of her claims on December 19, 2020. It is clear from the allegations of plaintiff’s complaint that the wrongs upon which the claims were based occurred on December 18, 2020, and damage occurred on December 19, 2020, when Trinity died.

“Accordingly, for the reasons stated in this opinion and order, it is ORDERED that the state defendants’ motion for summary disposition is GRANTED for failure to satisfy the applicable notice requirements. The complaint against the state defendants is DISMISSED.”

Cunningham v. State of Michigan; MiLW 04-108116, 7 pages; Court of Claims; Swartzle, J.

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