Court of Appeals Rejects "Actual Prejudice" Test and Requires Regional Transit Authorities to Receive Written Notice of Injury Claim

In Pollard v Suburban Mobility Authority for Regional Transportation (SMART), No. 288851, the Court of Appeals - reversing prior authority that failure to provide written notice was not fatal unless the authority could show actual prejudice from the lack of written notice held that the trial court improperly denied summary disposition because the statute clearly requires written notice within 60 days, which the plaintiff did not provide.

In Pollard, plaintiff suffered a broken hip when a bus driver allegedly sped up and then broke suddenly. The bus driver called for an ambulance. Subsequently, defendant's claims administrator sent plaintiff an Application for Benefits that was not returned.  Approximately 90 days after the incident, plaintiff filed suit and served defendant.  This was the first written notice defendant had of the claim. 

Defendant's responsive actions clearly show its actual notice of the injury.  However, pursuant to MCL 124.419, a transit authority must be provided with written notice within 60 days of the injury.

While the statutory language is clear, the court's prior interpretations are not.  For example, in Trent v SMART, 252 Mich App 247 (2002), the court indicated that the failure to comply with the statutory  60-day  notice provision was not fatal, unless SMART could demonstrate that it suffered "actual prejudice" from plaintiff's failure to provide timely notice. 

The Pollard court relied on the plain language of the statute rather than Trent's "actual prejudice" requirement largely because the Trent decision's supporting case law was overturned by Rowland v Wastenaw Co Rd Comm, 477 Mich 197 (2007). 

The Rowland Court rejected the "actual prejudice" requirement as contrary to a similar written notice requirement contained in the Government Tort Liability Act (GTLA).  While the Pollard court relied on Rowland, it also noted the uncertainty as to whether the Rowland decision extends outside of the GTLA, and specifically, to the Metropolitan Transportation Authorities Act.