MACDC Intercounty Drain Procedures Training

1. MACDCIntercounty Drain Procedures Training Flooding Liability (PA 222 of 2001) John Brennan Fahey Schultz Burzych Rhodes PLC February 15, 2017 macdc.us

2. Flooding Liability (PA 222 of 2001) Part of the Governmental Immunity Act “Liability for Sewage Disposal System Event” macdc.us

3. Some definitions • Sewage Disposal System – includes storm sewers, including a “storm water drain system” • Appropriate governmental agency – means a governmental agency that owns or operates the “sewage disposal system” that causes the damage involved macdc.us

4. Sewage disposal system event • “Overflow” or “Backup” onto real property • But NOT if caused by: • An obstruction in service lead not caused by drainage district • A connection to the drain located on the property (e.g. sump pump) • Or…… macdc.us

5. An Act of WAR

6. Exclusive statutory remedy Claimant must prove: • ICDD was the “appropriate governmental agency” • Part of established ICD had a defect • ICDD knew, or with reasonable care should have known about defect • ICDD failed to take “reasonable steps” within a “reasonable time” to repair/remedy • Defect was “substantial cause” of the event and subsequent harm macdc.us

7. Cross Reference: Section 196 • Sec. 196(1) An annual inspection may be made of a drain established under this act. • For intercounty drains, the inspection shall be caused to be made by the drainage board. QUESTION Is the failure to conduct an annual inspection a problem under Act 222? macdc.us

8. ANSWER: IT DEPENDS! • History of drain • Complaints from property owners • Recent weather events • Resources of drainage district • Existence of inspection plan • Observations

9. Limits of exposure • Generally, claimants get paid for “economic damages” only • Exceptions:  death, serious impairment of body function, or permanent serious disfigurement • Interesting note: judge, not jury, decides whether injury is “permanent serious disfigurement”

10. Claim macdc.us

11. Notice of Claim • Claimant must comply with notice and procedure rules of statute or claim is void • Written claim must be made to drainage district within 45 days of when damage or physical injury was or should have been discovered • Notice (verbal or written) to any member drain office is sufficient notice to require that claimant be given information on how to make a formal notice to drainage board

12. Notice of Claim • Public Notice of Claim Procedure is Required • Notices should be specific to intercounty drainage district • Must give claimants this information if they contact drain office about a claim

13. Contents of written notice of claim • Detailed explanation of notice requirements • Name and address of person to receive notice for drainage board • Claimant(s) name, address, phone number • Address for damaged property • Date of discovery of property damage/physical injury • Brief description of claim

14. Question What happens if claimants are not given this information when they contact your office?

15. Answer They may be able to file suit for their claim even though they didn’t comply with the statute’s notice requirements.

16. PA 222 Claim – Step 1: Receiving Notice and Authorizing Action Starts the 45-day timeline before a claimant can file an action in circuit court macdc.us

17. PA 222 Claim – Step 2: First Drainage Board Meeting macdc.us

18. PA 222 Claim – Step 3: Second Drainage Board Meeting macdc.us

19. PA 222 Claim – Step 4: Issue Decision of the Drainage Board Review Opinions Approve Deny Response Response Release of Liability Compensation macdc.us

20. Civil Action • After 45 days from receipt of written notice to drainage board, claimant may file suit • None of the procedural limitations apply to cases where claimant seeks only noneconomic damages

21. Questions? John Brennan Fahey Schultz Burzych Rhodes PLC 4151 Okemos Road, Okemos, MI 48864 Email: jbrennan@fsbrlaw.com Tel: (517)381-0100 Website: www.fsbrlaw.com macdc.us