Fraudulent Concealment and Court of Claims Notice After Christie: Tolling vs. “Only-in-this-section” Exceptions

Introduction

Amy McCormick and Robert McCormick v Michigan State University (Mich Sup Ct, May 8, 2026; SC: 168334) arises from an employment-related dispute following Michigan State University’s (MSU) acquisition of the Detroit College of Law (DCL). Plaintiffs, former DCL law professors, alleged breach of agreements tied to retirement and emerita employment benefits. The acquisition allegedly included MSU’s assumption of DCL liabilities, but plaintiffs claimed MSU (and/or DCL representatives) fraudulently concealed that assumption, causing plaintiffs to sue the wrong entity first and to miss statutory timing requirements when they later sued MSU in the Court of Claims.

The procedural posture is central: the Michigan Supreme Court denied leave to appeal, leaving intact an unpublished Court of Appeals decision and the Court of Claims’ denial of summary disposition. Nonetheless, the separate writings (two concurrences and a dissent) squarely frame an ongoing, high-stakes interpretive conflict: whether MCL 600.5855 (fraudulent concealment) can affect MCL 600.6431(1) (Court of Claims Act one-year notice requirement), particularly in the wake of Christie v Wayne State Univ, 511 Mich 39 (2023).

Summary of the Opinion

The Court issued an order denying MSU’s application for leave to appeal, stating it was not persuaded the question warranted review.

  • BERNSTEIN, J. (concurring, joined by WELCH, J.) wrote to emphasize that MCL 600.5855 can toll the one-year notice requirement in MCL 600.6431(1), and that neither the text nor Christie forecloses that result.
  • WELCH, J. (concurring, joined by HOOD, J.) agreed fraudulent concealment tolling is available under binding Court of Appeals precedent (Mays v Governor, 323 Mich App 1 (2018) (Mays I)), but also proposed an alternative: plaintiffs’ claims arguably did not accrue until discovery of the concealed liable party in May 2022; therefore, notice within four months satisfied MCL 600.6431(1) without any need to “toll” notice.
  • ZAHRA, J. (dissenting) would have granted leave, reversed, and held that MCL 600.5855 cannot toll MCL 600.6431(1), relying on the “only exception in this section” reading of Christie, the structure of the Court of Claims Act, and the view that tolling doctrines cannot be judicially added to sovereign-immunity conditions precedent.

Analysis

Precedents Cited

1) Christie v Wayne State Univ, 511 Mich 39 (2023)

Christie is the interpretive fulcrum. It characterized MCL 600.6431(1) as a mandatory condition precedent to suit against the state (a “limited waiver” context) and emphasized the 2020 amendment adding “[e]xcept as otherwise provided in this section” alongside a specific carveout in MCL 600.6431(5) for the Wrongful Imprisonment Compensation Act (WICA).

ZAHRA, J. reads Christie as effectively exclusive: if an exception is not “in this section,” it is not available against the notice requirement. BERNSTEIN, J. reads Christie more narrowly: the WICA carveout simply means WICA claimants need not provide pre-suit notice; it does not necessarily speak to whether an external statute like MCL 600.5855 can toll time where a defendant’s fraud prevents compliance.

2) Mays v Governor, 323 Mich App 1 (2018) (Mays I) and Mays v Governor, 506 Mich 157 (2020) (Mays II)

Mays I held that “when the fraudulent-concealment exception applies, it operates to toll the statutory notice period [of MCL 600.6431(1)] as well as the statutory limitations period.”

Mays II affirmed aspects of Mays I by equal division but did not definitively decide the notice-tolling question; multiple separate opinions addressed it. Here, both concurrences treat Mays I as the operative, binding lower-court rule applied by the Court of Claims and Court of Appeals. The dissent treats the question as unresolved at the Supreme Court level and argues Christie now resolves it against tolling.

3) Fairley v Dep't of Corrections, 497 Mich 290 (2015)

Fairley supplies the enforcement consequence: failure to comply with MCL 600.6431 “provides a complete defense” to the state. All opinions accept the high stakes of notice compliance; they dispute whether fraudulent concealment can prevent the defense from attaching.

4) Fraudulent concealment definition cases: Reserve at Heritage Village Ass'n v Warren Fin Acquisition, LLC, 305 Mich App 92 (2014), Doe v Roman Catholic Archbishop of the Detroit Archdiocese, 264 Mich App 632 (2004), and Hope-Jackson v Washington, 311 Mich App 602 (2015)

The Welch concurrence quotes Reserve at Heritage Village Ass'n (quoting Doe) for the classic definition of fraudulent concealment as affirmative artifice designed to hinder discovery. It also addresses how the Court of Appeals dissent below used Doe to argue concealment “before the injury” cannot toll; Welch counters with Hope-Jackson, which limited Doe where concealment concerns identity of the liable party (expressly included in MCL 600.5855), not concealment of the claim’s existence.

5) Accrual and discovery-rule cases: MCL 600.5827, Frank v Linkner, 500 Mich 133 (2017), Moll v Abbott Laboratories, 444 Mich 1 (1993), Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich 378 (2007), and McLain v Roman Catholic Diocese of Lansing, 514 Mich 1 (2024)

WELCH, J. introduces an alternative path: rather than tolling notice, treat fraudulent concealment as enabling a discovery-based timeline that affects when the claim “accrues” for notice purposes. Welch invokes:

  • MCL 600.5827 (general accrual rule), interpreted via Frank v Linkner (quoting Moll v Abbott Laboratories) to focus on when the breach harmed the plaintiff.
  • Trentadue, which eliminated the common-law discovery rule but recognized statutory discovery/tolling rules.
  • McLain, relied upon to support the proposition that statutes like MCL 600.5855 “exclusively authorize discovery-based tolling under certain circumstances,” and (in Welch’s reading) can function in a way that effectively makes discovery pivotal to timeliness.

ZAHRA, J. rejects this framing, emphasizing that MCL 600.5855 repeatedly speaks in terms of actions otherwise barred by the “period of limitations,” and that this Court has described it as tolling limitations periods (citing Trentadue and Frank).

6) Pleading standard for fraudulent concealment: Sills v Oakland Gen Hosp, 220 Mich App 303 (1996)

The dissent cites Sills for the requirement that plaintiffs plead and prove affirmative acts or misrepresentations designed to prevent discovery—underscoring that, even if tolling were theoretically available, it should not be triggered by conclusory allegations.

7) Sovereign-immunity “no saving construction” caution: McCahan v Brennan, 492 Mich 730 (2012) (and statutory interpretation: Aspey v Mem Hosp, 477 Mich 120 (2007))

ZAHRA, J. invokes McCahan to argue that when the Legislature conditions suits against the state on strict requirements, courts cannot adopt “saving constructions” that soften those conditions. He also cites Aspey for the principle that interpretation cannot render statutory language nugatory—here, the “in this section” phrase in MCL 600.6431(1).

Legal Reasoning

A. The core statutory conflict

The dispute is how to reconcile:

  • MCL 600.6431(1): a claimant must file a written claim or notice of intent “within 1 year after the claim has accrued,” with exceptions “otherwise provided in this section.”
  • MCL 600.5855: when a liable person fraudulently conceals the existence of a claim or the identity of a liable person, “the action may be commenced” within 2 years after discovery, though otherwise barred by a limitations period.

B. Bernstein concurrence: tolling notice is consistent with purpose and text

Justice Bernstein’s reasoning is policy-informed but presented as text-and-scheme faithful: it would be anomalous, he suggests, if private defendants cannot profit from fraud while the government can exploit the notice clock after concealing who is liable. He treats Christie as addressing when notice is required (and who is exempt—WICA claimants), not as an affirmative prohibition on tolling when fraud prevents compliance.

C. Welch concurrence: an alternative—no notice problem because no accrual until discovery

Justice Welch accepts Mays I tolling as binding in the lower courts, but argues a simpler route: if the identity of the liable party was fraudulently concealed, plaintiffs’ claims effectively did not accrue until discovery (May 2022). Under that view, filing four months later satisfies the one-year notice clock, sidestepping the harder question whether MCL 600.5855 “tolls” MCL 600.6431.

This approach reframes the problem: rather than importing an “exception” into the notice statute, it interprets “accrued” in MCL 600.6431(1) as not occurring until discovery in the narrow statutory discovery setting.

D. Zahra dissent: Christie and sovereign-immunity structure foreclose tolling

Justice Zahra’s dissent is structural and textual:

  • Exclusivity: Christie plus the “in this section” language means only exceptions inside MCL 600.6431 apply (i.e., WICA).
  • Legislative design: the Court of Claims Act incorporates RJA Chapter 58 limitations rules through MCL 600.6452(2) for limitations, but does not do so for notice; the omission should be treated as intentional.
  • Conceptual separation: notice is not a statute of limitations; MCL 600.5855 speaks to limitations periods, not notice prerequisites.
  • Rule-of-law concern: allowing fraudulent concealment to toll notice risks a broadly available pleading-based “savings clause,” eroding sovereign immunity beyond what the Legislature authorized.

Impact

Although the denial of leave does not itself resolve the conflict statewide, the writings highlight three practical impacts:

  1. Continued litigation pressure on the tolling question: After Christie, defendants will more aggressively argue that notice has no extra-statutory exceptions, while plaintiffs will continue invoking Mays I and the equitable/statutory logic endorsed by Bernstein.
  2. Shift toward “accrual” arguments: Welch’s approach offers plaintiffs an alternate theory—arguing that the claim “accrued” only upon discovery of the liable party’s identity—potentially reframing disputes away from “exceptions” and toward what “accrued” means when identity is concealed.
  3. Heightened pleading and proof battles: Because fraudulent concealment requires affirmative acts/misrepresentations, disputes will focus on whether communications were merely nondisclosure or actionable concealment, and whether plaintiffs exercised reasonable diligence.

Complex Concepts Simplified

  • Sovereign/governmental immunity: the state cannot be sued unless it consents; statutes like the Court of Claims Act are partial waivers, often conditioned on strict prerequisites.
  • Notice of intent / condition precedent (MCL 600.6431): before maintaining a claim against the state, a claimant must provide timely written notice; missing it can end the case regardless of the merits.
  • Accrual: the point in time when the clock starts running for time-based rules; typically tied to when the legally recognized “wrong” causes harm, not when the plaintiff discovers it—unless a statute creates a discovery-based mechanism.
  • Tolling: pausing or extending a deadline that would otherwise expire; here, the debate is whether fraud can pause the notice deadline (not just a limitations period).
  • Fraudulent concealment (MCL 600.5855): when a defendant’s affirmative deception hides a claim or the identity of the responsible party, the plaintiff may be given additional time after discovery.
  • “In this section” exception: statutory phrasing that can signal exclusivity—i.e., only exceptions written inside the same section count—central to the dissent’s post-Christie view.
  • Equal division affirmance: when an appellate court splits evenly, the lower court result stands, but the high court does not create a controlling majority rationale.

Conclusion

The Michigan Supreme Court’s denial of leave in McCormick v Michigan State University leaves unresolved—at the state’s highest court level—the post-Christie question whether MCL 600.5855 can affect the Court of Claims Act’s strict one-year notice prerequisite in MCL 600.6431(1). Justice Bernstein’s concurrence reaffirms the view that fraudulent concealment should toll notice to prevent the state from benefiting from deception; Justice Welch reinforces that lower courts correctly followed Mays I and suggests an alternative route grounded in “accrual upon discovery”; Justice Zahra’s dissent argues Christie makes exceptions exclusive to those written in MCL 600.6431, foreclosing tolling and warning against judicial dilution of sovereign-immunity conditions.

The decision’s significance lies less in its dispositive holding (none on the merits) and more in its mapped fault lines: textual exclusivity vs. statutory-scheme coherence and anti-fraud principles, and tolling notice vs. redefining accrual. Those frameworks will likely shape the next vehicle case in which the Court must square Mays with Christie and definitively settle how fraud interacts with the state’s notice protections.