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STATE OF MICHIGAN COURT OF APPEALS

MARK SMITH, Plaintiff-Appellant-Cross-Appellee, v SUBURBAN MOBILITY AUTHORITY FOR REGIONAL TRANSPORTATION, Defendant-Appellee-CrossAppellant.

UNPUBLISHED December 16, 2010

No. 294311 Wayne Circuit Court LC No. 08-113926-NO

Before: MURPHY, C.J., and METER and SHAPIRO, JJ. PER CURIAM. Plaintiff appeals as of right the trial court's order granting defendant's motion for summary disposition in this case arising out of an incident in which plaintiff, while on a bicycle, was allegedly forced by one of defendant's buses into a curb, causing plaintiff to crash and suffer injuries. The trial court concluded that plaintiff failed to serve written notice of his claim on defendant within 60 days of the incident as required by MCL 124.419. The trial court also found that plaintiff failed to plead in avoidance of governmental immunity. Although the trial court believed that there was an issue of fact on the question of negligence, it summarily dismissed the case because of the notice and pleading defects. Defendant pursues a cross-appeal relative to the court's ruling on negligence. We reverse and remand for further proceedings. This appeal has been decided without oral argument pursuant to MCR 7.214(E). We hold that plaintiff complied with, or at least substantially complied with, MCL 124.419. Further, estoppel and waiver principles preclude defendant from asserting a failure to comply with MCL 124.419. Additionally, we hold that plaintiff sufficiently pled allegations in avoidance of governmental immunity and that genuine issues of material fact exist regarding whether defendant's bus driver was negligent. This Court reviews de novo a trial court's decision on a motion for summary disposition. Allen v Bloomfield Hills School Dist, 281 Mich App 49, 52; 760 NW2d 811 (2008). Issues of statutory construction are also reviewed de novo on appeal. Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008). The day after the accident, plaintiff telephoned defendant's call center and reported that he had been struck by one of defendant's buses. The matter was assigned to Ken McCaffery, -1-

who was employed as a claims adjuster by ASU Group, defendant's insurer. McCaffery initially had a brief phone conversation with plaintiff about the accident. The following day, McCaffery conducted an in-person interview of plaintiff, which was recorded, but the recording was not transcribed until after the litigation commenced. The recorded interview addressed the circumstances of the accident, plaintiff's activities following the accident, the nature of plaintiff's injuries, damages to plaintiff's bike, and whether plaintiff had sought medical treatment. Defendant's records indicate that McCaffery emailed defendant after the interview. The record provides in part as follows: Ken from AS sends e-mail that he got r/s [recorded statement] from clmt [claimant] . . . that bus swerved into him as he was riding his bike and trying to catch the bus and was knocked off of his bike onto the sidewalk

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