Action for injuries sustained due to a road defect; The highway exception to governmental immunity; MCL 691.1404’s notice requirement; Service on a governmental agency; MCR 2.105(G)(2); Effect of failing to provide adequate notice; McLean v Dearborn; “May”; Wigfall v Detroit

Holding that plaintiffs’ notice failed to meet MCL 691.1404’s requirements, the court found that defendant-city (Pontiac) was entitled to summary disposition under MCR 2.116(C)(7). Thus, it reversed the trial court’s order denying the city summary disposition and remanded. Plaintiffs were injured in a moped accident when they encountered a road defect. The city asserted that governmental immunity barred their claims because they “failed to serve an individual who may lawfully be served with civil process, as MCL 691.1404 requires.” It argued on appeal that the trial court erred in “finding that plaintiffs properly served Pontiac with the notice required by MCL 691.1404.” The court agreed. Plaintiffs “sent their notice of intent to ‘City of Pontiac Department of Public Works’ via certified mail. The return receipt was signed by” a Department of Public Works employee. The notice was “defective because it was not served upon ‘the mayor, the city clerk, or the city attorney’ of Pontiac, or ‘an officer having substantially the same duties[,]’ as required by MCR 2.105(G)(2). This defect was fatal to plaintiffs’ case, . . . and the trial court erred by failing to grant Pontiac’s motion for summary disposition on this basis.” The court was unpersuaded by their “argument that the word ‘may’ in MCL 691.1404 and MCR 2.105(G)(2) is a permissive term that allowed service of process on any city department in Pontiac. Plaintiffs’ argument glosses over the fact that the permissive term ‘may’ is used in the context of three individuals—the mayor, the city clerk, or the city attorney—or ‘an officer having substantially the same duties[.]’” They did not cite any authority supporting “their broad construction of MCL 691.1404 or MCR 2.105(G)(2).” The court further found that their argument was undermined by the Michigan Supreme Court’s holding in Wigfall.