Added on September 11, 2023  Sara Swanson

Michigan denies almost all pothole repair claims, despite billions in damages

by Lauren Gibbons (Bridge Michigan)

When Rob Conat saw a police car and a few other vehicles on the shoulder of Interstate 96 while driving to work last September, he started what became an expensive lane switch.

Thunk. The Walker resident’s Ford C-Max hybrid lurched as it hit a long, thin, hard-to-spot pothole along the centerline marking where old cement met new.

Thunk-a-thunk-a-thunk-a-thunk-a-thunk-a-thunk-a-thunk.

Conat, a real estate agent, quickly realized he was not going to make it to his scheduled house showing. A new tire and a tow cost him $217, and he counted at least 11 other drivers who also got flat tires that day.

Conat is among the hundreds of Michigan drivers each year who have sought reimbursement for damage they incurred on the roadways from the government agency in charge of maintaining them.

Like almost all others, his request was denied, the victim of a state where notoriously bad roads cost drivers an estimated $4.3 billion in vehicle operating costs each year — an average of $1,093 per household — but is miserly about repair reimbursements.

“I was definitely very frustrated, especially because we pay all the money to get the roads fixed,” Conat said. “There was a pothole, they caused that kind of error and problem, and yet the state’s not taking responsibility for it.”

A claims system for reimbursing damages on defective roads is available to Michigan drivers, but it’s underutilized, and it’s exceedingly difficult for drivers to receive any money from pothole damages.

Bridge Michigan investigated the process, filing public records requests to obtain hundreds of pages of documents and to scrutinize claims made to state and county road agencies since 2018. In a state where industry experts estimate a $3.9 billion per year shortfall for fully funding road repairs, the Michigan Department of Transportation approved 7.9% of damage claims from January 2018 to May 2023.

The total payments for the 118 claims approved out of 1,492 filed: $59,432.

It’s even harder to get money from local road commissions: Of the 78 counties surveyed by Bridge, about 4% of 1,605 claims resulted in payments.

In Wayne County, where nearly 40% of major roads are in poor condition, drivers have not been reimbursed for a pothole-related claim since May 20, 2018.

“I cringe, and I get so mad,” said Mike Stephens of Delta Township in Eaton County. The state denied his October 2022 claim for driving over a crack on southbound U.S. 127 that he said looked like “two icebergs collided.”

Proposed reforms have gone nowhere.

In 2018, then-Senate Minority Leader Jim Ananich, D-Flint, called pothole repairs a “backdoor tax” on drivers, proposing a $5 million fund for pothole damage claims that was rejected on the Senate floor.

Defenders of the system say every dollar spent reimbursing drivers is one that could be spent fixing roads.

“You’d rather see the money at the state level being invested to improve the condition of the state’s roadways rather than paying for the lack of good pavements,” said Rocky Moretti, director of policy and research at TRIP, a Washington, DC-based transportation research nonprofit.

But advocates say solutions don’t need to be complicated, pointing to common sense measures like allowing drivers more time to file claims, better publicity of the system and a higher cap limit.

No reforms are pending in the Legislature, but some lawmakers say they’re open to ideas.

“It’s a real issue and a real burden for people that hit a pothole, get a flat tire, a broken axle,” said House Transportation Chair Nate Shannon, D-Sterling Heights.

System favors road agencies

Don’t like the system? Blame governmental immunity laws that protect government agencies and employees from most liabilities.

There are a few exceptions, one of which allows the public to seek damages for defective highways if the agency knew or should have known about a defect “and had a reasonable time to repair the defect” before something happened.

Claims under $1,000 for road-related damages can be filed directly with the agency that maintains the road where the damage occurred, whether it’s a regional MDOT office, a county road commission or a municipality. Drivers with claims over that threshold must file in court, per a 1961 state law outlining how claims against the government should be handled.

With the cost of auto repairs rising to an average of $406 per pothole in 2022 from $300 in 2016, some damages come in above the threshold for claims.

But unless the pothole caused injuries, experts say it’s pointless to pursue such claims in court.

“What are you going to do, hire a lawyer to go find out how many times someone working for the road commission passed by an intersection, or interview people who live in the area to find out how long the pothole was there?” personal injury attorney Bryan Waldman asked Bridge rhetorically.

“How much time are you going to spend on it over the cost of a blown tire?”

For damages that are less than $1,000, seeking money is a race against the clock.

Drivers have 120 days for state roads and 90 days for local roads to file a claim detailing the damage, the date and location of the mishap and the amount requested for reimbursement.

Once road agencies get a claim, officials say they review maintenance logs to check when the area in question was last repaired, as well as incoming reports of potholes or other defects to determine when the agency was first notified.

“We’re able to use that data as claims come in to make sure that we have been out there recently repairing any potholes that were evident,” said Gregg Brunner, MDOT’s chief operating officer.

Michigan law defines “reasonable time” as a 30-day window between when the responsible road agency knew about it and when the incident occurred.

“If it does not exceed that mark, which is the majority of the claims we get in, then we deny it based on the current laws that are in place,” Brunner said.

If no one reported the pothole before it caused damage, the claim can be denied.

“This is not, ‘Let’s just submit a claim form and everything will be taken care of’ type of deal,” said Jonathan Marko, a Detroit personal injury attorney. “This is a very complicated, rigorous system, full of pitfalls that are stacked against the average person.”

There is one court of last resort for claims on state roads: the State Administrative Board, where drivers denied by MDOT have a slightly higher chance of success. Since 2018, it has approved 21% of 209 claims; 13 more claims in 2023 are pending.

‘I can’t afford this’

In claims letters reviewed by Bridge, moms and dads told road agencies that any penny would help, and feared for their family’s safety after scary crashes on drives to work, school or sports practice.

A Macomb resident whose tire popped on Schoenherr Road in 2018 told officials in her claim that she was a single mother “and the cost of tire replacement does not come easy.”

The claim was denied.

One Coldwater driver who reported spending more than $350 for repairs after hitting a pothole on the interchange between Interstate 94 and Interstate 69 in May 2022 wrote that the unexpected out-of-pocket costs hit differently for a U.S. veteran living off Social Security benefits: “I can’t afford this expense.”

That claim also was denied.

In correspondence with drivers, roads directors have defended the process, saying that money to pay back drivers for potholes is money that won’t be spent fixing roads.

“We certainly do not doubt your account of this incident and the fact that a pothole may have been present,” Bryan Santo, Macomb County’s director of roads, wrote in an August 2018 letter to a St. Clair Shores driver questioning why her damage claim was denied.

“The state law is in place to protect funding to be used on the roads rather than paying for damages when a road agency has shown their due diligence in maintaining the roads.”

In Macomb County, 749 claims have been filed since January 2018. Numbers provided by the county suggest a particularly brutal pothole season in 2018 — residents submitted 519 claims between January and April 2018 alone.

Macomb County residents collectively sought well over $100,000. Several drivers noted they spent more than the $1,000 claim cap on repairs, but wanted at least some recourse. Since January 2018, the county road commission has paid $17,360.01 on 20 claims. Seven of those claims were pothole-related.

In nearby Wayne County, requested damages across the 402 claims made on county roads since May 2018 topped $291,500. The county road commission paid $8,179.07 toward seven of those claims, $1,619.79 of which paid for pothole damages.

Outside of southeast Michigan, there are fewer damage claims and similar results.

Aggregate data provided by 75 county road commissions covered under the Michigan County Road Commission Self-Insurance Pool — a trust created in 1984 that allows commissions to share liability risks — shows 67 of 616 total claims since June 2018 were approved and paid.

Of the 75 county road commissions represented, 36 agencies where claims were filed did not make any payouts. Ten county road commissions — including Kent, Michigan’s fourth-largest county — reported zero damage claims were filed in that time period.

That could be because drivers aren’t even aware of the system. Only 20 of Michigan’s 83 county road agencies have posted damage claim forms online or similar information, a Bridge Michigan review found.

The Kent County Road Commission doesn’t list a damage claim form on its website, instead encouraging drivers to call its traffic and safety division with complaints and noting few claims get approved.

Steven Puuri, engineering specialist for the County Road Association and the Michigan Municipal League, said during peak pothole season, road agencies in big counties receive hundreds of calls a week.

Situations where potholes rise to the level of breaking a wheel or popping a tire typically rise to the top of the radar, especially in high traffic areas or if multiple calls come in.

But when bad road conditions are cropping up everywhere, road agencies need a triage system to address the worst conditions first, he said.

Agency officials are “in a position of deciding what’s the immediate response condition, versus something that’s a ‘next day, we get out there and look at it’ type of condition,” he said.

“If they’re in the middle of a rainstorm and fallen trees are all over the place, they’re going to deal with the fallen trees on the road before the pothole that ultimately needs to be fixed as well.”

Also complicating matters is that in wintry or wet conditions, the best option repair crews have is “cold patch,” a material that can be applied to potholes in frigid weather, but won’t last as long as traditional concrete or asphalt fixes completed in warm weather, Puuri said. That means those patched potholes could reopen quickly, particularly in high traffic areas.

More bumps in the road

Lately, Michigan drivers may be encountering more construction barrels than potholes as roads get patched and repaired statewide while the summer weather holds.

But pothole season will creep up again soon enough, bringing with it more broken vehicles, more frustrated drivers and more damage claims from those committed enough to seek recourse.

New or fully repaired roads typically crumble less quickly and hold up better in winter and spring. Michigan roads are notoriously in tough shape, however: a 2022 analysis rated 45% of Michigan’s local roads and 33% of federal aid-eligible roads in poor condition.

A separate industry report card from the American Society of Civil Engineers — whose members design construction projects and would benefit from additional funding — gave Michigan a D for roads, a D+ for bridges and a C- overall. The Michigan Infrastructure and Transportation Association, a construction trade group, projected this year that Michigan officials need to spend up to $3.9 billion more per year to fully fund road repairs.

Craig Bryson, spokesperson of the Road Commission for Oakland County, said additional road funding passed in 2015 and subsequent infusions of cash from lawmakers have improved the situation.

The caveat? Inflation is eating into the buying power of those additional dollars, and no additional long-term funding solutions have come in since, meaning the roads will likely begin to deteriorate more rapidly within the next two fiscal years without additional intervention, Bryson said.

Although more sustainable road funding wouldn’t completely eradicate problem potholes that cause severe damage, “there would be far fewer of them,” Bryson said.

Conat, the west Michigan driver, told Bridge he likely wouldn’t bother filling out another damage claim form if he ever experiences a similar situation on the roads, calling it “frustrating” that he filled out paperwork and compiled receipts just to be stuck with the bill anyway.

“I think it would be the same thing where they just deny it, so I don’t know if I’d waste my time,” he said.

But Ryan Casebolt, a Macomb County driver who filed a claim for $712 after losing a tire and an axle to a pothole on Interstate 696 last August, would be willing to go through the process again, even though he received a rejection letter for his claim this month.

He figures if he’s stuck with a car repair bill anyway, even the slimmest chance of reimbursement is worth a shot.

“If there was a chance of getting it, and all I had to do was fill out a report, then yeah, of course I would,” Casebolt said. “I wouldn’t expect much, but I would try.”