February 2018



 By Thomas Beindit

Few areas are more important to defending municipal parties within the state of Michigan than the issue of governmental immunity. State law provides a broad shield of immunity for local municipalities to defend against tort claims. These statutory enactments restrict plaintiffs to a limited number of claims and often require that plaintiffs provide a notice of claim to municipalities prior to bringing suit.

In the recent unpublished decision, Wigfall v. City of Detroit (Docket No. 333448, 11/7/17), the Michigan Court of Appeals addressed the topic of governmental immunity and, specifically, whether a plaintiff had complied with such notice requirements to avoid the City’s governmental immunity. Since the plaintiff had asserted his claim under the “highway exception” to the City’s immunity, he was required to provide notice of his claim under MCL 691.1404 prior to filing suit.

The Wigfall case arose out of a particularly unfortunate set of circumstances. Dwayne Wigfall alleged that while riding his motorcycle, he sustained personal injuries after his motorcycle struck a pothole in the roadway. Roughly two months after his fall, Mr. Wigfall sent notice of his injury and the defect to the City’s claims division. Additional information was subsequently requested by the department. However, Mr. Wigfall never made an effort to contact the mayor, city clerk, or city attorney. Plaintiff subsequently filed suit and the City moved for summary disposition.

In support of its dispositive motion, the City argued that Mr. Wigfall had failed to provide the statutorily required notice under MCL 691.1404. This provision requires a plaintiff seeking “recovery for injuries sustained by reason of any defective highway” to serve notice on the governmental agency of the occurrence of the injury and the defect. MCL 691.1404(1). Moreover, this portion of the statute also requires a plaintiff to: (1) specify the exact location and nature of the defect; (2) the injury sustained; and (3) the names of the witnesses known at the time by the claimant. Such notice must be served upon an individual who may be lawfully served with “civil process” directed against the governmental agency. The City argued that Mr. Wigfall had failed to provide such notice because he had failed to serve an individual who could be lawfully served with civil process, i.e. the mayor, the city clerk, or the city attorney.

The trial court disagreed with the City’s contention and denied its motion for summary disposition. The court opined that the plaintiff substantially complied with the statutory notice provision and that the City was equitably estopped from asserting that notice was insufficient because it had information posted on its website directing individuals to direct notice of claims to its claims department. The City appealed.

The Michigan Court of Appeals rejected the trial court’s conclusion, finding that Mr. Wigfall had failed to comply with the statutory notice requirement. The Court based its holding on MCL 691.1404(2), finding that substantial compliance was insufficient to meet this requirement. Moreover, the Court also rejected the trial court’s equitable estoppel argument. Since the City lacked the ability to change or alter the law with regard to such notice requirements, providing information on its website had no bearing on the issue.

There is little debating the significance of the findings in the Wigfall case. Not only did the Court of Appeals bar the plaintiff’s claim, but it specifically rejected the contention that a plaintiff could substantially comply with MCL 691.1404’s notice requirements by serving a claims division. This should assist municipalities in asserting that plaintiffs have provided inadequate notice to avoid governmental immunity.

Thomas is an Associate in our Detroit Office.

He can be reached at (313) 446-1530 or tbeindit@garanlucow.com







Garan Lucow Miller, P.C. is pleased to offer this in-depth, educational course to our Indiana clients that handle Michigan No-Fault claims. This course is beneficial for those new to Michigan No-Fault Law and those that would benefit from updates.

The class will be taught each Tuesday evening, from April 3, 2018 through May 29th, 2018, from 6:00 p.m. to 8:00 p.m.

The 9 week course will take place at the Renaissance Indianapolis North, 11925 North Meridian Street, Carmel, Indiana 46021.

The cost of the 9 week course is $350.00 per person, with a discount of $50.00 per person for more than 2 registrants from the same company.

Please contact Eileen Carty to register at ecarty@garanlucow.com or (248) 641-7600.





Thursday, May 17, 2018
Indianapolis Marriott North, Keystone at the Crossing.

Additional details for registration will be posted shortly.





Wednesday, May 23, 2018
at Frederik Meijer Gardens & Sculpture Park

Additional details for registration will be posted shortly.



For inquires, upcoming seminars, or in-house seminar requests please contact Eileen Carty at ecarty@garanlucow.com


The Gov Law Publication is edited by John Gillooly and Thomas Beindit, attorneys in our Detroit Office. They are happy to answer any questions you may have and provide any further information that might assist your municipal leaders or attorneys.
They can be reached at 313.446.1530 or at the following email addresses: