NEW SEWER BACKUP LEGISLATION
By James Youngblood
Midwest Claims Service

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Effective January 2, 2002 the 91st. Legislature enacted Senate Bill No. 109 into law. The new provision of the Governmental 
Immunity Act (MCL691.1416 to 691.1419) is Public Act 222 and was signed by Governor Engler on December 31, 2001. 

Prior to Public Act 222 the law was from a decision by The Michigan Supreme Court that ruled that the reverse flow of sewage into a resident was strict liability, which meant it made no difference how the reverse flow of sewage occurred the governmental agency was liable for damages sustained by the resident. 

The new term for sewer back up or reverse flow of sewage used in this legislation is Sewage Disposal Event.

The Act provides for the following:
 

1. The governmental agency must provide all residents and businesses a notice requirement in writing. There is no time frame to do this, however it should be done within a reasonable time period. Some suggestions are as follows:

   a. Posting on public buildings
   b. Water and sewer billings
   c. Municipal newsletters
   d. Community newspapers
   e. Board or Council meetings
   f. Tax and assessment notices

2.  The claimant must provide written notice to the Municipality within 45 days of a sewage disposal event. 
    
3. If the governmental agency has agreements with other sewer disposal entities involved in the disposal process the governmental agency has 15 days to notify them of the claim.
4. Notice must be given to:

   a. The Clerk
   b. An individual who may be served with civil process
   c. Any other individual authorized by the governmental agency to receive notice

5. The governmental agency has the right to inspect the damage and investigate after notice is received.
6. The claimant must prove a defect to the sewer system. This includes a defect in:

   a. Construction
   b. Design
   c. Maintenance
   d. Operation
   e. Repair defect

7. Sewage Disposal System means all interceptors 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, under the control of the governmental agency.
8. Economic damages are the only compensation for a claim except in cases of:

   a. Death
   b. Serious impairment of body function
   c. Permanent serious disfigurement

9. The governmental agency must be more than 50% negligent for liability to be assessed.
10. The governmental agency and the claimant have an opportunity to reach an agreement on the liability and amount of compensation, within the 45-day period. If no agreement is reached the claimant can file a lawsuit.

This information provided is intended for general information only for our clients and friends. The information highlights Public Act 222 and is not legal advice. The reader of this material should consult with your Municipal attorney to determine how the information applies to any specific situation.