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STATE OF MICHIGAN 

COURT OF APPEALS 

VIVIAN NICKENS, 

 Plaintiff-Appellant, 

UNPUBLISHED 

November 29, 2016 

v No. 328302 

Wayne Circuit Court 

CHERYL THOMAS, LC No. 14-009671-NI 

 Defendant-Appellee. 

Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ. 

PER CURIAM. 

 Plaintiff Vivian Nickens appeals as of right the trial court’s order granting summary 

disposition in favor of defendant Cheryl Thomas. We affirm. 

 On July 26, 2011, plaintiff was a passenger on a bus operated by the Suburban Mobility 

Authority for Regional Transportation (SMART), and defendant was driving the bus. Plaintiff 

contended that defendant was driving the bus at an excessive rate of speed, made several sudden 

stops and starts, and was engaged in a personal conversation on her cell phone as she drove. 

Plaintiff alleged that defendant’s distracted and erratic driving caused plaintiff to fall and strike 

her head on a pole on the bus, resulting in injury. A SMART incident report was prepared the 

same day as the accident. Plaintiff underwent an Independent Medical Evaluation on December 

8, 2011, at the behest of ASU Group, SMART’s no-fault claims representative. By letter dated 

January 11, 2012, a senior claims examiner for ASU Group informed plaintiff that while her 

medical bills related to her emergency room visit on the day of the accident would be paid, no 

other bills or benefits would be paid by or on behalf of SMART. In April 2012, plaintiff’s 

counsel submitted an application for bodily injury benefits to ASU Group. There is nothing in 

the record indicating that plaintiff had served SMART with a written notice of claim based on a 

personal injury within 60 days of the incident and alleged injury. See MCL 124.419. Indeed, in 

plaintiff’s affidavit, she averred that she was not advised by SMART or ASU Group that she 

needed to file a notice of claim, as SMART and ASU Group “were already handling it.” 

 On August 16, 2013, plaintiff filed a lawsuit against SMART, alleging claims of 

negligence, intentional infliction of emotional distress, and violation of the Michigan Consumer 

Protection Act (MCPA), MCL 445.901 et seq., along with a count seeking the recovery of 

personal protection insurance benefits (PIP benefits) under the no-fault act, MCL 500.3101 et 

seq. The negligence and emotional distress claims were summarily dismissed in February 2014 
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for failure to comply with the 60-day notice of claim requirement in MCL 124.419. The MCPA 

claim was summarily dismissed in March 2014. In October 2014, plaintiff and SMART 

stipulated to the dismissal of the claim for PIP benefits, as the parties agreed to binding 

arbitration on the matter. A few months earlier, in July 2014, plaintiff filed the instant action 

against defendant bus driver, alleging claims of gross negligence and intentional infliction of 

emotional distress. Subsequently, the trial court granted summary disposition in favor of 

defendant, ruling, once again, that there was a failure to comply with the 60-day notice of claim 

requirement in MCL 124.419. The trial court denied plaintiff’s motion for reconsideration, and 

this appeal followed. 

 This Court reviews de novo a trial court’s ruling on a motion for summary disposition, 

issues of statutory construction, and questions of constitutional law. Champion v Secretary of 

State, 281 Mich App 307, 309; 761 NW2d 747 (2008). As an initial observation, and although 

not argued by the parties, plaintiff’s suit is clearly barred under the doctrine of res judicata. “The 

purposes of res judicata are to relieve parties of the cost and vexation of multiple lawsuits, 

conserve judicial resources, and encourage reliance on adjudication.” Richards v Tibaldi, 272 

Mich App 522, 530-531; 726 NW2d 770 (2006) (citation omitted). “In general, res judicata bars 

a subsequent action . . . when the facts or evidence essential to the action is identical to that 

essential to a prior action.” Id. at 530 (citation omitted). “Res judicata requires that (1) the prior 

action was decided on the merits, (2) the decree in the prior action was a final decision, (3) the 

matter contested in the second case was or could have been resolved in the first, and (4) both 

actions involved the same parties or their privies.” Id. at 531 (citations omitted; emphasis 

added). “[A] privy includes a person so identified in interest with another that he represents the 

same legal right, such as a principal to an agent [or] a master to a servant[.]” Peterson 

Novelties, Inc v City of Berkley, 259 Mich App 1, 12-13; 672 NW2d 351 (2003) (emphasis 

added). Here, plaintiff’s prior lawsuit relative to the tort claims was decided on the merits, the 

decree was final, the issue contested in the instant action could and should have been resolved in 

the first action by simply including defendant as a party, and, although defendant was not a 

named party in the first suit, SMART and defendant were privies, given the principal-agent and 

master-servant relationships. 

 Furthermore, on substantive review, plaintiff’s lawsuit fails under MCL 124.419, which 

provides as follows: 

All claims that may arise in connection with the transportation authority

shall be presented as ordinary claims against a common carrier of passengers for 

hire: Provided, That written notice of any claim based upon injury to persons or 

property shall be served upon the authority no later than 60 days from the 

occurrence through which such injury is sustained and the disposition thereof 

shall rest in the discretion of the authority and all claims that may be allowed and 

final judgment obtained shall be liquidated from funds of the authority[.] 

[Emphasis added.] 

 In Atkins v SMART, 492 Mich 707, 710-711; 822 NW2d 522 (2012), our Supreme Court

construed MCL 124.419, ruling: 
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 MCL 124.419 requires that a plaintiff who wishes to bring a claim for 

injury to person or property arising out of an incident with a common carrier like 

SMART must provide notice of the claim to the transportation authority within 60 

days. Statutory notice requirements must be interpreted and enforced as plainly 

written. Thus, we hold that notice of plaintiff's application for no-fault insurance 

benefits, even when supplemented with SMART's presumed “institutional 

knowledge” of the underlying facts of the injury, does not constitute written 

notice of a third-party tort claim against SMART sufficient to comply with MCL 

124.419. The provisions of MCL 124.419 apply to “ordinary claims” that arise in 

connection with a common carrier, and the 60–day notice requirement pertains to 

such claims for personal injury or property damage. An ordinary claim against a 

common carrier does not include claims made for first-party no-fault benefits. 

Those no-fault claims are not ordinary tort claims, but a statutory benefit 

permitted in lieu of tort remedies. Thus, the statutory notice provision does not 

apply to no-fault claims, and an application for first-party no-fault benefits does 

not satisfy the statutory requirement to provide the transportation authority notice 

of a plaintiff's intent to pursue a third-party tort claim. Nor does a common 

carrier's presumed institutional knowledge of an injury or occurrence relieve a 

claimant of the obligation to give the formal notice required by the statute. 

 To the extent that plaintiff is asserting that SMART’s institutional knowledge of the 

occurrence and injury, as reflected in the SMART incident report, sufficed for purposes of MCL 

124.419, or that there was, in essence, a claim for PIP benefits within the statutory 60-day 

period, Atkins defeats both arguments. 

 Plaintiff argues that MCL 124.419 only pertains to a suit against the transportation 

authority such as SMART and not actions based on gross negligence brought pursuant to MCL 

691.1407 against individual governmental employees. However, in Nuculovic v Hill, 287 Mich 

App 58, 65; 783 NW2d 124 (2010), this Court stated and held: 

 Plaintiff also argues that to the extent MCL 124.419 applies, it applies 

only to claims against common carriers, and, therefore, would not apply to any 

claim against Hill, [the bus driver,] individually. In light of the statutory language 

indicating that the statute applies to “[a]ll claims that may arise in connection with 

the transportation authority,” we must reject this claim as well. The broad 

language of the statute indicates that it encompasses plaintiff's claim against Hill, 

because the claim arises from Hill's operation of the bus as an employee of 

SMART. 

Moreover, there is nothing in the plain language of MCL 691.1407 and MCL 124.419 suggesting 

that they are mutually exclusive. Defendant’s liability or immunity from liability, had this case 

gone forward, would have been governed by MCL 691.1407, including its gross negligence 
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provision, while MCL 124.419 simply sets forth a notice requirement that had to be satisfied in 

order for plaintiff to commence the suit against defendant.1

 Plaintiff proceeds to argue that because the tort of intentional infliction of emotional 

distress is an intentional tort, MCL 124.419 is not implicated. Most of plaintiff’s argument on 

this issue concerns her assertion that there is no immunity for governmental employees who 

commit intentional torts. First, that is not an accurate characterization of Michigan law, as there 

is immunity for intentional torts if a governmental employee was acting during the course of 

employment, acting within the scope of his or her authority, acting in good faith, absent any 

malice, and acting in regard to a discretionary matter. Odom v Wayne Co, 482 Mich 459, 480; 

760 NW2d 217 (2008). Second, MCL 124.419 speaks of “[a]ll claims” and “any claim,” which 

would certainly encompass plaintiff’s claim of intentional infliction of emotional distress; 

intentional tort claims are not excepted from the notice mandate. 

 

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 In Odom v Wayne Co, 482 Mich 459, 479-480; 760 NW2d 217 (2008), the Supreme Court

explained the workings of MCL 691.1407 with respect to negligence suits against individual 

governmental employees: 

 To summarize and simplify the application of our decision, we provide 

these steps to follow when a defendant raises the affirmative defense of individual 

governmental immunity. The court must do the following: 

 (1) Determine whether the individual is a judge, a legislator, or the 

highest-ranking appointed executive official at any level of government who is 

entitled to absolute immunity under MCL 691.1407(5).

 (2) If the individual is a lower-ranking governmental employee or official, 

determine whether the plaintiff pleaded an intentional or a negligent tort. 

 (3) If the plaintiff pleaded a negligent tort, proceed under MCL 

691.1407(2) and determine if the individual caused an injury or damage while 

acting in the course of employment or service or on behalf of his governmental 

employer and whether: 

 (a) the individual was acting or reasonably believed that he was acting 

within the scope of his authority, 

 (b) the governmental agency was engaged in the exercise or discharge of a 

governmental function, and 

 (c) the individual's conduct amounted to gross negligence that was the 

proximate cause of the injury or damage. 
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 Finally, plaintiff presents inadequately developed constitutional arguments, contending 

that the 60-day notice of claim provision in MCL 124.419 violates the Title-Object Clause of 

Const 1963, art 4, § 24, and that MCL 124.419 should be deemed void under state and federal 

due process and equal protection guarantees. With respect to plaintiff’s title-object challenge, 

she maintains that no reasonable person reading 1967 PA 20 – the title of the Metropolitan 

Transportation Authorities Act of 1967 (MTAA), MCL 124.401 et seq. – “would understand that 

there is a requirement to file a written notice for a claim against a bus driver or individual 

employee for that person[’]s own behavior.” 1967 PA 20 provides, in relevant part, that the 

MTAA is an act “to prescribe penalties and provide remedies.” (Emphasis added.) The notice of 

claim provision in MCL 124.419 that must be satisfied before an action is filed is germane, 

auxiliary, incidental, and relates to “remedies” connected to MTAA-based suits, assisting in the 

implementation of the MTAA; therefore, there is no title-object violation, as 1967 PA 20 

provides the public with proper notice of the requirements of MCL 124.419, absent any deceit or 

subterfuge. Pohutski v City of Allen Park, 465 Mich 675, 691-692; 641 NW2d 219 (2002). 

 With respect to plaintiff’s due process and equal protection claims, she sets forth cursory, 

disjointed, and nearly indecipherable arguments. In Mudge v Macomb Co, 458 Mich 87, 105; 

580 NW2d 845 (1998), our Supreme Court stated: 

 “It is not enough for an appellant in his brief simply to announce a 

position or assert an error and then leave it up to this Court to discover and 

rationalize the basis for his claims, or unravel and elaborate for him his 

arguments, and then search for authority either to sustain or reject his position. 

The appellant himself must first adequately prime the pump; only then does the 

appellate well begin to flow.” [Citation omitted.] 

 We shall, however, attempt to substantively address plaintiff’s arguments. First, plaintiff, 

citing ordinance violation cases, appears to contend that MCL 124.419 does not provide fair and 

adequate warning of what is required in relationship to notice and claims concerning an 

employee of a transportation authority, allowing for arbitrary enforcement in violation of due 

process. We conclude that the 60-day notice of claim requirement in MCL 124.419 is very clear, 

mandating service of the notice in regard to “[a]ll claims” arising in connection with the 

transportation authority, which plainly would encompass a claim against a bus driver. There was 

fair and adequate warning, assuming that plaintiff’s argument can even be couched in terms of 

procedural or substantive due process. See Bonner v City of Brighton, 298 Mich App 693, 705-

710; 828 NW2d 408 (2012), reversed on other grounds 495 Mich 209 (2014). 

 Plaintiff next seems to suggest that MCL 124.419 violates equal protection because it 

creates a distinction between grossly-negligent government bus drivers, for whom pre-suit notice 

must be given, and grossly-negligent government operators of other vehicles, for whom no presuit notice must be given, thereby arbitrarily splitting a class of tortfeasors and making it more 

difficult for certain tort victims to pursue claims. Plaintiff relies on Reich v State Hwy Dep’t, 

386 Mich 617, 622-624; 194 NW2d 700 (1972), which found that there was an equal protection 

violation where governmental tortfeasors were generally entitled to notice, whereas private 

tortfeasors were not afforded notice, effectively creating a shortened statute of limitations for 

victims of governmental tortfeasors as compared to the three-year limitations period applicable 

to the victims of private tortfeasors. Plaintiff fails to acknowledge and appreciate that our 
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Supreme Court in Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 206-207; 731 NW2d 41 

(2007), abrogated and essentially overruled Reich with respect to the very proposition for which 

plaintiff cites Reich, noting that there “can be distinctions made between classes of persons if 

there is a rational basis to do so.” Plaintiff has simply failed to adequately develop an argument 

that equal protection is violated by differentiating, for purposes of notice, between governmental 

bus drivers and drivers of other governmental vehicles. 

 Affirmed. Having fully prevailed on appeal, defendant is awarded taxable costs under 

MCR 7.219. 

/s/ Kathleen Jansen 

/s/ William B. Murphy 

/s/ Michael J. Riordan