Over 1,000 Potholes Reported to City—Residents Can Seek Reimbursement for Damage to Vehicles

IN THE JUNE 2014 issue of The Ann Arbor Observer, writer Jan Schlain reports, “So drivers will be hitting this year’s bumper crop of potholes for a while. They just shouldn’t expect any compensation from the city when they do so.” Ward 2 Council Member Jane Lumm, who sits on the city’s Board of Insurance Administration—the board which examines and recommends whether claims should be paid for pothole damages to vehicles—says that’s simply not true.

“It’s a nuanced issue,” says Lumm. “If a driver’s car is damaged by a pothole and the city has been made aware of that pothole through our reporting systems, the question then becomes one of when we were made aware.”

Over the past year, according to data from the city, over 1,000 reports have been made to city officials identifying potholes in need of repair. In 2011, the Michigan Infrastructure and Transportation Association (MITA) unveiled a list of the state’s worst roads, naming Detroit as the municipality with the worst roads, some 523 lane miles in poor condition. Detroit was followed by Ann Arbor (187), Grand Rapids (178), Flint (148) and Lansing (136).

The group also announced that the five top counties with the worst roads were Wayne (1,617), Oakland (1,279), Genesee (1,093), Washtenaw (989) and Calhoun (665).

How do Ann Arbor residents whose cars have been damaged by potholes seek reimbursement?

“If we don’t fix a pothole  we’ve been told about within 30 days of the citizen’s report,” explains Lumm, an Independent who represents Ward 2, “and a driver claims damage as a result of the pothole, then we are responsible for paying the claim. However, we try to fix reported potholes within 24 hours. Every claim is carefully reviewed.”

Jan Schlain’s piece for The Ann Arbor Observer, titled “Potholed,” includes comments by Ann Arbor staff attorney Bob West. West, who sits on the Board of Insurance Administration with Lumm and others,  stresses the state statute that protects governmental agencies from tort liability, with certain exceptions.

However, under the auspices of governmental immunity laws MCL 691.1402 and MCL 691.1403 both the state and other governmental entities, including every one of Michigan’s 1,800 municipalities, must pay for damage done to a vehicle by a pothole which has been identified as a problem but not repaired within 30 days of the notification.

An official from the Michigan Department of Transportation (MDOT) said: “You must show that MDOT or the city knew of the condition and had an opportunity to repair it, or that the condition existed for more than 30 days.”

If the pothole was on a state trunkline, drivers may seek reimbursement from the state, but must show the state knew of the defect and did not repair it within 30 days of notification. Most state trunklines are freeways (i.e., I-94, I-96, I-696 or    M-14, M-1, US-10, US-24, etc.). There is a form to fill out for reimbursement up to $1,000. Claims above $1,000 must be filed in the Michigan Court of Claims.

Use MDOT’s Report a Pothole form or call 888-296-4546 to report potholes on state roads. In Ann Arbor, M-14 and Washtenaw Avenue (M-17) are state trunklines.

“Look,” says Lumm, “taking care of the roads, the sewers, none of this is sexy. This is tough, because I’d like to pay every claim. We need to fix our roads.”

It was Jane Lumm, in fact, who recently proposed a resolution directing the City Administrator to find more money for road repair. Her resolution passed unanimously.

In Ann Arbor, proving that city officials knew of the condition and had an opportunity to repair over 900 potholes between January 2013 and March 2014 requires the list of pothole requests made to the city. Those requests are submitted using both the city’s online system, as well as its 734-99-HOLES pothole phone number.

The Ann Arbor Independent has submitted a Freedom of Information Act request for a list of the date and location of potholes phoned in to 734-99-HOLES and submitted online between December 2013 and May 27, 2014. The newspaper also submitted a FOIA request for a record of the dates and locations of potholes repaired by the City of Ann Arbor between December 2013 and May 27, 2014. Finally, the paper requested copies of all claims for damages submitted between December 2013 and May 27, 2014 by individuals seeking reimbursement for pothole damages to their vehicles.

In The Ann Arbor Observer article, assistant city attorney Bob West alleges that “the city council has to vote” to expend insurance fund money. “The insurance board’s decisions are legally just recommendations to council.”

Jane Lumm chuckles when she hears that and says, “Boy, I wish someone had told me that sooner. The lawyers tell us this is the law.”

In fact, West says, “If we aren’t legally bound to pay a claim, we don’t.”

So are city officials withholding reimbursements from citizens whose cars have been damaged by potholes that have been reported but not repaired within the required 30 days?

Jane Lumm says the process used in determining whether to pay a claim is methodical. She also made a point of saying that city staffer Sarah Singleton speaks personally to each person who files a claim.

However, a federal judge recently lambasted Ann Arbor City Attorney Stephen Postema in a 17-page opinion for arguing that city officials tried to reserve for themselves the power to “say what the law is.”

What is clear is that both assistant city attorney Bob West and Council member Lumm both say the onus is on the resident. West says, “The government has to have actual knowledge of the defect and a reasonable time to repair. Show us the thing was there for more than 30 days. Show us that we had actual knowledge.”

Jane Lumm suggests residents should be calling in every pothole they see to 734-99-HOLES.

“I do it,” says Lumm. “When I’m out driving and I see a particularly nasty looking pothole, I call it in.”

Lumm points out that, arguably, the number of claims paid by the city for pothole damage to people’s vehicles would go up if residents called in as many potholes as possible.

“I’ve been told that when they send out the trucks to fill certain potholes, it’s not uncommon to have the truck run out of patching materials before it reaches its destination. The workers stop and fix the potholes they see along the way.”

A Ward 1 resident says:

“I called in a pothole on Pontiac Trail, a huge pothole in a patch of potholes. They filled the one pothole and left the others. Just left them. Do I have to call in every pothole? Couldn’t the workers see the other ones?”

Council member Lumm says “When you have as many potholes as we do, the onus is clearly on the resident. I wish it weren’t. Really, I do.”