1. MACDC Intercounty 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”
Generally, local units of government are immune from liability for injuries to persons or damages to real property. The Governmental Immunity Act (MCL et seq.) provides general immunity, but also lays out certain narrow exceptions. One exception—known as a Public Act 222
In practice, however, many claims under Public Act 222 of 2001 (“PA 222”) are filed seeking compensation for flooding damages following a heavy rain event. Claim—is intended to hold governmental units liable for injuries or damages relating to a sewage disposal system (including storm water system) back up or overflow under limited circumstances.
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
Generally, local units of government are immune from liability for injuries to persons or damages to real property. The Governmental Immunity Act (MCL et seq.) provides general immunity, but also lays out certain narrow exceptions. One exception—known as a Public Act 222
In practice, however, many claims under Public Act 222 of 2001 (“PA 222”) are filed seeking compensation for flooding damages following a heavy rain event. Claim—is intended to hold governmental units liable for injuries or damages relating to a sewage disposal system (including storm water system) back up or overflow under limited circumstances.
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……
Generally, local units of government are immune from liability for injuries to persons or damages to real property. The Governmental Immunity Act (MCL et seq.) provides general immunity, but also lays out certain narrow exceptions. One exception—known as a Public Act 222
In practice, however, many claims under Public Act 222 of 2001 (“PA 222”) are filed seeking compensation for flooding damages following a heavy rain event. Claim—is intended to hold governmental units liable for injuries or damages relating to a sewage disposal system (including storm water system) back up or overflow under limited circumstances.
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
Generally, local units of government are immune from liability for injuries to persons or damages to real property. The Governmental Immunity Act (MCL et seq.) provides general immunity, but also lays out certain narrow exceptions. One exception—known as a Public Act 222
In practice, however, many claims under Public Act 222 of 2001 (“PA 222”) are filed seeking compensation for flooding damages following a heavy rain event. Claim—is intended to hold governmental units liable for injuries or damages relating to a sewage disposal system (including storm water system) back up or overflow under limited circumstances.
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?
Generally, local units of government are immune from liability for injuries to persons or damages to real property. The Governmental Immunity Act (MCL et seq.) provides general immunity, but also lays out certain narrow exceptions. One exception—known as a Public Act 222
In practice, however, many claims under Public Act 222 of 2001 (“PA 222”) are filed seeking compensation for flooding damages following a heavy rain event. Claim—is intended to hold governmental units liable for injuries or damages relating to a sewage disposal system (including storm water system) back up or overflow under limited circumstances.
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
Under PA 222, when a claimant is seeking compensation for flooding damages, they must notify the appropriate Drain Commissioner or Drainage Board and the notice must be made in writing and contain:
Claimant's name
Address
Telephone number
Address of the affected property
Date of discovery of any property damages or physical injuries
A brief description of the 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
Notify drainage board
Provide copies of notice
Request meeting
Starts the 45-day timeline before a claimant can file an action in circuit court
If a Drain Commissioner receives a Notice of Claim and discovers that the claimed damages relate to an intercounty drain, the Drain Commissioner should:
Notify the Drainage Board as soon as possible
Provide copies of the Notice of Claim to all members of the Drainage Board
Request a meeting of the Drainage Board
Since the Drain Commissioner is a member of the Drainage Board, the receipt of the Notice of Claim by a Drain Commissioner starts the 45-day timeline before a claimant can file an action in circuit court
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17. PA 222 Claim – Step 2: First Drainage Board Meeting
Determine:
Legal Counsel
Engineering Consultant
Scope of Investigation
Acknowledge Receipt of Claim
After receiving a Notice of Claim, the Drainage Board should hold a meeting and discuss the following items:
Whether the Drainage Board should retain legal counsel to assist in the review and evaluation of the Claim
Whether the Drainage Board should retain an engineering firm to assist in the review and evaluation of the Claim.
Whether to Deny the Notice of Claim and Who will be Responsible for Responding.
macdc.us

18. PA 222 Claim – Step 3: Second Drainage Board Meeting
Review & Evaluate
Report from Engineering Consultant or Staff
Legal opinion from counsel
Discuss and vote on offer to settle or deny claim
If the Notice of Claim is not denied outright, the Drainage Board should have a full review and evaluation of the claim before responding. Review and evaluation of the claim may include the following:
Review of the Notice of Claim and any supporting evidence by legal counsel.
Legal memorandum to the Drainage Board evaluating sufficiency of the Notice of Claim based on the statutory requirements.
On-site visit by an engineering firm.
macdc.us

19. PA 222 Claim – Step 4: Issue Decision of the Drainage Board
Review Opinions
Approve
Deny
Response
Response
Review any legal opinion provided by legal counsel and any reports provided by the engineering firm. The Open Meetings Act allows the Drainage Board to go into closed session to (MCL (h)) for purposes of discussing the legal opinion.
Decide whether to approve or deny the Notice of Claim.
Decide who is responsible for responding to the Notice of Claim.
If the Notice of Claim will be approved, the Drainage Board should:
Approve an amount of compensation.
Require a release of liability.
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 Tel: (517) Website:
macdc.us