February 2, 2016, Introduced by Reps. Webber, Lauwers and Hughes 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 who owns or
occupies affected real property and who believes that a sewage
disposal
system event caused damage to the owner's person'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 that occurs after January 2, 2002.
(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 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 and occurring 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 less than 1.7 inches in any 1-hour period or less than 3.3
inches in any 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 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 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.
Notice given by one governmental agency to another governmental
agency does not satisfy or waive a claimant's obligation to give
notice that complies with subsection (1) to the other 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 Except for subsection
(4), 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.