HOUSE BILL No. 4290

 

 

March 1, 2017, Introduced by Rep. Webber and referred to the Committee on Local Government.

 

     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, and 19 (MCL 691.1416, 691.1417, 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 person that owns or

 

occupies real property and 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. 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.


     (e) "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.

 

     (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.

 

     (g) "Person" means an individual, partnership, association,

 

corporation, other legal entity, or a political subdivision.

 

     (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.

 

     (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.

 

     (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 includes a storm water stormwater drain system under

 

the jurisdiction and control of a governmental agency.

 

     (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 except when rainfall, as measured

 

by a generally recognized and accepted method, at or near the

 

affected area or within the sewage disposal system service area was

 

1.7 inches or more in any 1-hour period or was 3.3 inches or more

 

in a continuous 24-hour period. 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.

 

     (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, and the

 

claimant meets the requirements of subsections (3) and (4).

 

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 To obtain

 

compensation, including 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 a claimant must show

 

that all of the following existed applied at the time of the event:

 

     (a) The governmental agency was an appropriate governmental

 

agency.

 

     (b) The sewage disposal system had a defect, subject to

 

subsection (5).

 

     (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 claimant complied with section 19.

 

     (5) A part of a sewage disposal system does not have a design

 

defect or construction defect if it was designed and constructed

 

according to applicable state standards or requirements as set

 

forth in a state statute, rule, or permit, or in any court order,

 

administrative order, or consent order in effect when the part of

 

the sewage disposal system was constructed or improved. The

 

determination of what standards and requirements meet the

 

conditions of this subsection shall be made by a court as a matter

 

of law.

 

     Sec. 19. (1) Except as provided in subsections (3) and (7), a

 

claimant is not entitled to compensation under section 17 unless

 

the claimant notifies the governmental agency of 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 contain the content required by

 

subsection (2)(c) and shall be sent to the individual within the

 

governmental agency contact designated in under subsection (2)(b).

 

To facilitate compliance with this section, a governmental agency

 

owning or operating a sewage disposal system shall make available

 

public information about the provision of notice under this

 

section.

 

     (2) If a person who owns or occupies affected real property

 

notifies a contacting agency orally or governmental agency contact

 

in writing of an event before providing a notice of a claim that

 

complies with subsection (1), the contacting governmental agency

 

contact 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 the

 

governmental agency contact 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) does not bar the claimant from

 

bringing a civil action under section 17 against a governmental

 

agency notified under subsection (2) if the claimant can show both

 

of the following:

 

     (a) The claimant notified the contacting governmental agency

 

contact under subsection (2) during the period for giving notice

 

under subsection (1).

 

     (b) The claimant's failure to comply with the notice

 

requirements of subsection (1) resulted from the contacting

 

agency's governmental agency contact'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 notify the

 

contacting governmental agency contact 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) 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.

 

     (7) This section does not apply to claims for noneconomic

 

damages made under section 17.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.