Bill Text: MI SB0677 | 2013-2014 | 97th Legislature | Introduced
Bill Title: Torts; governmental immunity; liability for sewer system backups; require amount of economic damages to be determined by a hearing officer, and make other amendments. Amends secs. 16, 17, 18 & 19 of 1964 PA 170 (MCL 691.1416 et seq.).
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2013-12-03 - Referred To Committee On Judiciary [SB0677 Detail]
Download: Michigan-2013-SB0677-Introduced.html
SENATE BILL No. 677
November 12, 2013, Introduced by Senator SCHUITMAKER and referred to the Committee on Local Government and Elections.
A bill to amend 1964 PA 170, entitled
"An act to make uniform the liability of municipal corporations,
political subdivisions, and the state, its agencies and
departments, officers, employees, and volunteers thereof, and
members of certain boards, councils, and task forces when engaged
in the exercise or discharge of a governmental function, for
injuries to property and persons; to define and limit this
liability; to define and limit the liability of the state when
engaged in a proprietary function; to authorize the purchase of
liability insurance to protect against loss arising out of this
liability; to provide for defending certain claims made against
public officers, employees, and volunteers and for paying damages
sought or awarded against them; to provide for the legal defense of
public officers, employees, and volunteers; to provide for
reimbursement of public officers and employees for certain legal
expenses; and to repeal acts and parts of acts,"
by amending sections 16, 17, 18, and 19 (MCL 691.1416, 691.1417,
691.1418, and 691.1419), as added by 2001 PA 222.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 16. As used in this section and sections 17 to 19:
(a) "Affected property" means real property affected by a
sewage disposal system event.
(b) "Appropriate governmental agency" means a governmental
agency that, at the time of a sewage disposal system event, owned
or operated, or directly or indirectly discharged into, the portion
of the sewage disposal system that allegedly caused damage or
physical injury.
(c) "Claimant" means a property owner that believes that a
sewage disposal system event caused damage to the owner's property,
a physically injured individual who believes that a sewage disposal
system event caused the physical injury, or a person making a claim
on behalf of a property owner or physically injured individual
described in this subdivision. Claimant includes a person that is
subrogated to a claim of a property owner or physically injured
individual described in this subdivision.
(d)
"Contacting agency" means any of the following within a
governmental
agency:
(i) The clerk of the governmental agency.
(ii) If the governmental agency has no clerk, an
individual who
may
lawfully be served with civil process directed against the
governmental
agency.
(iii) Any other individual, agency, authority,
department,
district,
or office authorized by the governmental agency to
receive
notice under section 19, including, but not limited to, an
agency,
authority, department, district, or office responsible for
the
operation of the sewage disposal system, such as a sewer
department,
water department, or department of public works.
(d) (e)
"Defect" means a construction,
design, maintenance,
operation, or repair defect only.
(e) "Extreme weather event" means rainfall amounting to 1.4
inches or more in any 1 hour or 2.9 inches or more of in any 24
hours as measured by a rain gauge maintained by an appropriate
governmental agency.
(f) "Governmental agency contact" means any of the following
within a governmental agency:
(i) The clerk of the governmental agency.
(ii) If the governmental agency has no clerk, an individual who
may lawfully be served with civil process directed against the
governmental agency.
(iii) Any other individual, agency, authority, department,
district, or office authorized by the governmental agency to
receive notice under section 19, including, but not limited to, an
agency, authority, department, district, or office responsible for
the operation of the sewage disposal system, such as a sewer
department, water department, or department of public works.
(g) (f)
"Noneconomic damages"
includes, but is not limited to,
pain,
suffering, inconvenience, physical impairment, disfigurement,
mental anguish, emotional distress, loss of society and
companionship, loss of consortium, injury to reputation,
humiliation, and other nonpecuniary damages.
(h) (g)
"Person" means an
individual, partnership,
association, corporation, other legal entity, or a political
subdivision.
(i) (h)
"Serious impairment of body
function" means that term
as defined in section 3135 of the insurance code of 1956, 1956 PA
218, MCL 500.3135.
(j) (i)
"Service lead" means an
instrumentality that connects
an affected property, including a structure, fixture, or
improvement on the property, to the sewage disposal system and that
is neither owned nor maintained by a governmental agency.
(k) (j)
"Sewage disposal system"
means all interceptor sewers,
storm sewers, sanitary sewers, combined sanitary and storm sewers,
sewage treatment plants, and all other plants, works,
instrumentalities, and properties used or useful in connection with
the collection, treatment, and disposal of sewage and industrial
wastes. ,
and Sewage disposal system includes a storm water drain
system under the jurisdiction and control of a governmental agency.
(l) (k)
"Sewage disposal system
event" or "event" means the
overflow or backup of a sewage disposal system onto real property
owned or occupied by a claimant. An overflow or backup is not a
sewage disposal system event if any of the following was a
substantial proximate cause of the overflow or backup:
(i) An obstruction in a service lead that was not caused by a
governmental agency.
(ii) A connection to the sewage disposal system on the affected
property, including, but not limited to, a sump system, building
drain, surface drain, gutter, or downspout.
(iii) An act of war, whether the war is declared or undeclared,
or an act of terrorism.
(m) (l) "Substantial
proximate cause" means a proximate cause
that was 50% or more of the cause of the event and the property
damage or physical injury.
Sec. 17. (1) To afford property owners, individuals, and
governmental agencies greater efficiency, certainty, and
consistency in the provision of relief for damages or physical
injuries caused by a sewage disposal system event, a claimant and a
governmental agency subject to a claim shall comply with this
section and the procedures in sections 18 and 19.
(2) A governmental agency is immune from tort liability for
the overflow or backup of a sewage disposal system unless the
overflow or backup is a sewage disposal system event and the
governmental agency is an appropriate governmental agency. Sections
16 to 19 abrogate common law exceptions, if any, to immunity for
the overflow or backup of a sewage disposal system and provide the
sole remedy for obtaining any form of relief for damages or
physical injuries caused by a sewage disposal system event
regardless of the legal theory.
(3) If a claimant, including a claimant seeking noneconomic
damages, believes that an event caused property damage or physical
injury, the claimant may seek compensation for the property damage
or physical injury from a governmental agency if the claimant shows
that all of the following existed at the time of the event:
(a) The governmental agency was an appropriate governmental
agency.
(b) The sewage disposal system had a defect.
(c) The governmental agency knew, or in the exercise of
reasonable diligence should have known, about the defect.
(d) The governmental agency, having the legal authority to do
so, failed to take reasonable steps in a reasonable amount of time
to repair, correct, or remedy the defect.
(e) The defect was a substantial proximate cause of the event
and the property damage or physical injury.
(4) In addition to the requirements of subsection (3), to
obtain compensation for property damage or physical injury from a
governmental agency, a claimant must show both of the following:
(a) If any of the damaged property is personal property,
reasonable proof of ownership and the value of the damaged personal
property. Reasonable proof may include testimony or records
documenting the ownership, purchase price, or value of the
property, or photographic or similar evidence showing the value of
the property.
(b)
The That the claimant complied with section 19.
(5) Notwithstanding subsections (2) and (3), a governmental
agency remains immune to liability under this act if the
governmental agency proves that the sewage disposal system event
affecting the claimant's property occurred contemporaneously with
or within 24 hours after an extreme weather event.
Sec. 18. (1) Except as provided in subsection (2), economic
damages are the only compensation available for a claim under
section 17. Except as provided in subsection (2), a court shall not
award and a governmental agency shall not pay noneconomic damages
as compensation for an event.
(2) A governmental agency remains subject to tort liability
for noneconomic damages caused by an event only if the claimant or
the individual on whose behalf the claimant is making the claim has
suffered death, serious impairment of body function, or permanent
serious disfigurement.
(3) In an action for noneconomic damages under section 17, the
issues of whether a claimant or the individual on whose behalf the
claimant is making the claim has suffered serious impairment of
body function or permanent serious disfigurement are questions of
law for the court if the court finds either of the following:
(a) There is no factual dispute concerning the nature and
extent of the claimant's or the individual's injuries.
(b) There is a factual dispute concerning the nature and
extent of the claimant's or the individual's injuries, but the
dispute is not material to determining whether the claimant or the
individual has suffered a serious impairment of body function or
permanent serious disfigurement.
(4) Unless this act provides otherwise, a party to a civil
action brought under section 17 has all applicable common law and
statutory
defenses ordinarily available in civil actions, and is
entitled to all rights and procedures available under the Michigan
court rules.
Sec.
19. (1) Except as provided in subsections (3) and (7),
(11), a claimant is not entitled to compensation under section 17
unless within 45 days after the damage or physical injury was
discovered or in the exercise of reasonable diligence should have
been
discovered, the claimant notifies the
in writing each
governmental
agency of against which
the claimant intends to file a
claim
of damage or physical injury. , in writing, within 45 days
after
the date the damage or physical injury was discovered, or in
the
exercise of reasonable diligence should have been discovered.
The
written notice under this subsection shall must contain
the
content
required by subsection (2)(c) and shall be sent to the
individual
within the governmental
agency contact at each
governmental
agency designated in subsection (2)(b). against which
the claimant intends to file a claim of damage or physical injury.
To facilitate compliance with this section, a governmental agency
owning
that owns or operating operates a sewage disposal
system
shall
make available public information about the provision of
providing a notice under this section.
(2) If a person who owns or occupies affected property
notifies
a contacting governmental agency contact
orally or in
writing of an event before providing to the governmental agency a
notice
of a claim that complies with subsection (1), the contacting
governmental agency shall provide the person with all of the
following information in writing:
(a) A sufficiently detailed explanation of the notice
requirements of subsection (1) to allow a claimant to comply with
the requirements.
(b)
The name and address of the individual within governmental
agency contact at the governmental agency to whom a claimant must
send written notice under subsection (1).
(c) The required content of the written notice under
subsection (1), which is limited to the claimant's name, address,
and telephone number, the address of the affected property, the
date of discovery of any property damages or physical injuries, and
a brief description of the claim.
(3) A claimant's failure to comply with the notice
requirements of subsection (1) with respect to a specific
governmental agency does not bar the claimant from bringing a civil
action
under section 17 against a the
governmental agency notified
under
subsection (2) if the claimant can
show both of the
following:
(a)
The That the claimant notified the contacting governmental
agency contact under subsection (2) during the period for giving
notice under subsection (1).
(b)
The That the claimant's failure to comply with the notice
requirements
of subsection (1) resulted from the contacting
governmental agency's failure to comply with subsection (2).
(4) If a governmental agency that is notified of a claim under
subsection (1) believes that a different or additional governmental
agency may be responsible for the claimed property damages or
physical
injuries, the governmental agency shall may notify the
contacting
agency of each additional or
different governmental
agency of that fact, in writing, within 15 business days after the
date the governmental agency receives the claimant's notice under
subsection (1). This subsection is intended to allow a different or
additional governmental agency to inspect a claimant's property or
investigate a claimant's physical injury before litigation. Failure
by a governmental agency to provide notice under this subsection to
a different or additional governmental agency does not bar a civil
action by the governmental agency against the different or
additional governmental agency.
(5) If a governmental agency receives a notice from a
claimant, or
a different or additional governmental agency that
complies
with this section, the governmental
agency receiving
notice may inspect the damaged property or investigate the physical
injury. A claimant or the owner or occupant of affected property
shall not unreasonably refuse to allow a governmental agency
subject to a claim to inspect damaged property or investigate a
physical injury. This subsection does not prohibit a governmental
agency from subsequently inspecting damaged property or
investigating a physical injury during a civil action brought under
section 17.
(6) A governmental agency may adopt an ordinance that provides
for the administrative adjudication of sewage disposal event claims
before a neutral hearing officer who is licensed as a professional
engineer under article 20 of the occupational code, 1980 PA 299,
MCL 339.2001 to 339.2014. Except as otherwise provided in
subsection (8), if a governmental agency adopts an ordinance under
this subsection, administrative adjudication of the claim is the
exclusive remedy available for a claim under section 17.
(7) (6)
If a governmental agency notified
of a claim under
subsection (1) and a claimant do not reach an agreement on the
amount of compensation for the property damage or physical injury
within 45 days after the receipt of notice under this section, the
claimant
may institute a civil action. A civil action shall not be
commenced
under section 17 until after that 45 days.governmental
agency has adopted an ordinance under subsection (6), and the
claimant requests an adjudicative hearing within 21 days after the
45 days, the governmental agency shall schedule a hearing to be
commenced within 120 days before a neutral hearing officer
appointed by the governmental agency. A claimant is not entitled to
compensation under section 17 if the claimant fails to request an
administrative hearing within the time provided by this subsection.
(8) A governmental agency shall give a claimant written notice
of the date, time, and place of a hearing under subsection (7). At
the hearing, the claimant and the governmental agency may be
represented by counsel and may present evidence concerning the
claim. The hearing officer shall not consider claims for
noneconomic damages. The hearing officer shall determine whether
the claimant is entitled to relief under section 17 and the amount
of property damages and economic damages, if any. The hearing
officer shall provide the parties with a written opinion that
contains the hearing officer's findings of fact on which the
opinion is based. The hearing officer's decision is final, except
that a party may appeal the hearing officer's decision to the
circuit court on the record made before the hearing officer.
(9) If a governmental agency has not adopted an ordinance
under subsection (6), a claimant may institute a civil action under
section 17. The action may not be commenced until 45 days after the
governmental agency receives notice under this section.
(10) Except for claims to which subsection (3) applies, claims
for which a hearing is not allowed under subsection (7), and claims
for noneconomic damages, a claimant shall not commence a civil
action under section 17 and the procedures contained in this
section are the sole and exclusive remedy for all claims under
section 17.
(11) (7)
This section does not apply to
claims for noneconomic
damages made under section 17.
Enacting section 1. Sections 16, 17, 18, and 19 of 1964 PA
170, MCL 691.1416, 691.1417, 691.1418, and 691.1419, as amended by
this amendatory act apply only to claims for which the first notice
under section 19(1) of 1964 PA 170, MCL 691.1419, is sent after
July 1, 2014.
