- 1

- 

### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

RYAN HARSTON

,

Plaintiff,

and

JOSEPH GRINAGE,

Intervening Plaintiff

- Appellee, FOR PUBLICATION June 7, 2018

9:10 a.m.

v No. 338981

Eaton Circuit Court

COUNTY OF EATON

, LC No. 15

- 001226

- NI

Defendant

,

and

EATON COUNTY ROAD COMMISSION,

Defendant

- Appellant,

and

ESTATE OF MELISSA SUE MUSSER, by LAWRENCE BENTON, Personal Representative, and PATRICIA JANE MUSSER,

Defendants

- Appellees

.

ESTATE OF BRENDON PEARCE, by LYNN PEARCE, Personal Representative,

Plaintiff

- Appellee,

v No. 338990

Eaton Circuit Court EATON COUNTY ROAD COMMISSION, LC No. 16

- 000029

- NI- 2

- Defendant

- Appellant,

and

ESTATE OF MELISSA SUE MUSSER, by

LAWRENCE BENTON, Personal Representative, and PATRICIA JANE MUSSER,

Defendants

- Appellees.

Before: O’C ONNELL

, P .J., and K. F. K ELLY and R IORDAN , JJ.

O’C ONNELL , P. J.

These consolidated cases 1 arise out of a fatal car crash. Defendant Eaton County Road

Comm ission appeals as of right the trial court’s order denying the Road Commission’s motion for summary disposition brought under MCR 2.116(C)(7) (immunity granted by law). The parties dispute the retroactivity of Streng v Bd of Mackinac Co Rd Comm’rs

, 315 Mi ch App 449;

890 NW2d 680 ( 2016 ), holding that the notice provision at MCL 224.21(3) in the highway code,

MCL 220.1 et seq ., rather than the notice provision at MCL 691.1404(1) in the governmental tort liability act (GTLA) , MCL 691. 1401 et seq ., governs a claim brought against a county road

commission. We hold that Streng applies retroactively. W e reverse the trial cou rt’s order ruling

otherwise , although we affirm the trial court’s ruling that the Road Commission was not required

to assert d efective notice as an affirmative defense, and we remand these cases for further proceedings consistent with this opinion.

I. BACKGROUND

On March 8, 2015, Melissa Musser, whose estate is a defendant, was driving a minivan owned by defendant Patricia Musser. Plaintiff Joseph Grinage and Brendon Pearce, whose estate is a plaintiff, were passengers in the car. Melissa lost control of the min ivan when she came to standing water in the roadway. The minivan went off the road, rolled over, and came to rest on its roof against a tree. Everyone except Pearce had been drinking, and the minivan was traveling about 20 miles over the speed limit. Pe arce died at the scene of the crash. Melissa died at the hospital. Grinage was seriously injured.

On May 5, 2015, Lynn Pearce, the personal representative of the estate of Brendon Pearce, served a “Notice to Eaton County of Fatal Injuries due to Defec tive Highway” on the

1 Harston v Eaton Co , unpublished order of the Court of Appeals, entered October 20, 2017 (Docket Nos. 338981 and 338990). In addition, by the parties’ stipulation, we previously dismissed Ryan Harston as a plaintiff. Harston v Eaton Co , unpublished order of the Court of Appeals, entered May 25, 2018 (Docket No. 338981).- 3

- Road Commission. Grinage served a “Notice of Intent to File a Claim” on the Road

Commission on July 2, 2015

.

Grinage and Pearce each filed a complaint, alleging that the Musser defendants were negligent and that the Road Commission breached its statutory duty under MCL 691.1402 to

maintain the roads. In Pearce’s case, t he Road Commission first filed a motion for summary disposition under MCR 2.116(C)(7), arguing that Pearce’s notice was inadequate. The trial court disagreed and de nied the motion. The Road Commission appeal ed the trial court’s decision.

Pearce then filed a motion to affirm on appeal , arguing that her notice was sufficient under Streng and MCL 224.21(3)’s provision that the notice should state “substantially” the d etails of

the injury. This Court granted Pearce’s motion to affirm. 2 The Road Commission sought leave to appeal in the Supreme Court, which denied leave to appeal. 3

After this Court grant ed Pearce’s motion to affirm, the Road Commission returned to th e trial court and filed a motion for summary disposition in the consolidated cases, arguing that all three plaintiffs’ notices were insufficient under MCL 224.21(3). The parties disputed whether Streng applied retroactively and whether MCL 224.21(3), as applied in Streng , or MCL 691.1404(1) , the GTLA notice provision, governed plaintiffs’ notices

. Two of the plaintiffs further argued that the Road Commission waived its challenge to plaintiffs’ notices because it

did not assert defective notice under MCL 224.21 as an affirmative defense.

The trial court denied the Road Commission’s motion. The trial court rejected Pearce’s argument that the Road Commission was required to assert insufficient notice a s an affirmative defense because inadequate notice was a component of governmental immunity, which is not an affirmative defense. Nonetheless, the trial court concluded that Streng did not apply retroactively because it announced a new rule, reliance on t he old rule was widespread, and retroactive application of Streng would adversely affect the administration of justice.

II. DISCUSSION

This Court reviews a trial court’s ruling on a motion for summary disposition de novo.

Stevenson v Detroit , 264 Mi ch App 37, 40; 689 NW2d 239 (2004). This Court also reviews the legal question of retroactivity de novo. Johnson v White , 261 Mich App 332, 336; 682 NW2d 505 (2004). S ummary disposition is proper if a party has “immunity granted by law[.]” MCR 2.116(C) (7). When reviewing a motion for summary disposition under subrule (C)(7), this Court

reviews documentary evidence and accepts the plaintiffs’ well

- pleaded allegations as true unless documentation contradicts those allegations. Stevenson , 264 Mich App at 40.

Governmental agencies are generally immune from liability when they are performing a government function, unless provided otherwise by statute . MCL 691.1407(1); Streng , 315 Mich

2 Estate of Brendon Pearce v Eaton Co Rd Comm , unpublished order of the Court of Appeals,

ente red October 25, 2016 (Docket No. 333387).

3 Pearce v Eaton Co Rd Comm , 500 Mich 1021 (2017).- 4

- App at 455 . The GTLA provides that the “liability, procedure, and re medy as to county roads under the jurisdiction of a county road commission shall be as provided in

. . . MCL 224.21. ” MCL 691.1402(1). MCL 224.21(3) contains a notice provision requiring potential plaintiffs to give notice to the clerk and the chairperso n of the board of county road commissioners within 60 days of the injury. MCL 224.21(3). For all other highway defect claims, the GTLA’s 120

- day notice provision at MCL 691.1404(1) governs. In 2016, t his Court held that MCL 224.21(3) governs claims brou ght against county road commissions. Streng , 315 Mich App at 462

- 463.

In May 2018, a panel of this Court concluded that Streng applies prospec tively only

. Brugger v Midland Co Bd of Rd Commr’s , ___ Mich App ___; ____ NW2d ____ (2018) (Docket No. 337394). That decision, however, does not cite or discuss W A Foote Mem Hosp v Mich Assigned Claims Plan , 321 Mich App 159; 909 NW2d 38 (2017), issued in August 2017, soon after the trial court’s order in this case. 4 In W A Foote Mem Hosp , 321 Mich App 159 , a panel of this Court addressed the retroactivity of a judicial interpretation of a statute. “A panel of the Court of Appeals must follow the rule of law established by a prior published decision o f the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this rule.” MCR 7.215(J). Because W A Foote was published before Brugger and controls the issue in this case

, we are required to follow W A Foote

. 5

W A Foote Mem Hosp , 321 M ich App at 182

- 183

, followed the retroactivity test

announced in Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich , 492 Mich 503, 536 ; 821 NW2d 117 (2012):

“ ‘ The general principle is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former decision is bad law, but that it never was the law

. ’ ” This principle does have an exception: When a

statute law has received a given construction by the courts of last resort and contracts have been made and rights acquired under and in accordance with such construction, such contracts may not be

inval idated, nor vested rights acquired under them impaired, by a change of construction made by a subsequent decision. [ Spectrum

Health , 492 Mich at 536, quoting Gentzler v Constantine Village

Clerk , 320 Mich 394, 398; 31 NW 2d 668 (1948). ]

The Foote Court n oted that this rule only pertains to the retroactivity of decisions interpreting a

statute

, i d . at 190 n 15 , and concluded that the Spectrum Health test, the Supreme Court’s most

4 At oral arguments in the present case, counsel for appellant stated that he had informed the Brugger panel that W A Foote controlled the outcome of the Brugg er case.

5 Even if we were not required to follow W A Foote , we would agree with Judge O’Brien’s

excellent dissent in Brugger

.- 5

- recent resolution of a retroactivity question, overrides the “threshold” test and the “three part”

test. 6 Id . at 191 . The threshold test asks whether the decision announces a new rule of law. Id

. at 177 . If so, the three

- part test considers “(1) the purpose to be served by the new rule, (2) the

extent of reliance on the old rul e, and (3) the effect of retroactivity on the administration of justice.” Id

. at 193 (citation and quotation marks omitted).

W A Foote Mem Hosp , 321 Mich App at 189

- 195 , applied the Spectrum Health test, the threshold test, and the three

- part test to c onclude that a recent Supreme Court decision overruling prior precedent applied retroactively. Because the interpretation of statutory text was not new law, retroactivity was proper under the Spectrum Health test and the threshold test. Id . at 189

- 192 . In addition, the exception in the Spectrum Health test did not apply because the plaintiff’s claim was based on the absence of a contract and the plaintiff’s claim did not arise from a Supreme Court case. Id . at 191 n 17. Finally, applying the three

- f actor test, the Court concluded that the purpose of the “new” rule was to conform caselaw to the terms of the statute, noted that parties had extensively relied on prior caselaw, but decided that promoting consistency in the law

served the administration o f justice. Id . at 193

- 195

.

W A Foote Mem Hosp controls this case in all respects. First, Streng followed the Supreme Court’s decision in Rowland v Washtenaw Co Rd Comm , 477 Mich 197; 731 NW2d 41 (2007)

, and interpreted the text of MCL 224.21 , so Stren g is not new law. 7 For the same reason, Streng is retroactive under the threshold test. In addition, plaintiffs’ claims do not meet the exception in the Spectrum Health retroactivity test. The parties’ dispute in this case does not

arise out of a contra ct, and plaintiffs’ claims do not find support in Rowland

. 8

6 In response to plaintiffs’ reliance on Pohutski v City of Allen Park , 465 Mich 675; 641 NW2d 219 (2002), and Tebo v Havlik , 418 Mich 350; 343 NW2d 181 (1984), W A Foote Mem Hosp

, 321 Mich App at 186 n 14, 195 n 19, noted that the Supreme Court effectively repudiated

Pohutski and undermined Tebo in Spectrum Health . In addition, the Supreme Court has repeatedly demonstrated th at interpreting the straightforward statutory text merits overruling prior precedent and applying its interpretation retroactively. See Rowland , 477 Mich at 220

- 222 (applying its decision retroactively to restore the law to what was mandated by the statut ory text); Devillers v Auto Club Ins Ass ’ n , 473 Mic h 562, 587; 702 NW2d 539 (2005) (same) ; see also Wayne Co v Hathcock , 471 Mich 445, 483

- 484; 684 NW2d 765 (2004) (applying its decision retroactively to give effect to a constitutional provision)

.

7 Even if we were not bound to follow W A Foote , we note that MCL 224.21(3) has always been the law and is currently the law. No changes have been made to this statute, so we are required to apply it as written. That is, the issue in this case concerns statutory interpretation, not retroactivity.

8 Streng addressed this concern by noting that Rowland discarded the entirety of the analysis in

Brown v Manistee Co Rd Comm , 452 Mich 354, 361

- 364; 550 NW2d 215 (1996), overruled by

Rowland , 477 Mich 197, as “ ‘deeply flawed[,]’ ” Rowland did not mention MCL 224.21 or discuss the notice deadline, and Rowland did not approve or disapprove of the use of one notice provision over another. Streng , 315 Mich App at 459

- 460.- 6

- Streng is also retroactive using the three

- part test. The trial court and plaintiffs championed widespread reliance on the “old” rule and the unjust effect of applying Streng retroactively. W A Foote Mem Hosp , 321 Mich App at 195 , decided that the proper, consistent interpretation of the statutory text outweighed these reliance concerns. Further, the cause of

action in this case can defeat governmental immunity, which is especially significan t for enforcing only those causes of actions enacted by the Legislature, as noted in the context of no

fault benefits in W A Foote Mem Hosp , 321 Mich App at 192 . Accordingly, the trial court erred by ruling that Streng did not apply retroactively. 9

Applying Streng and MCL 224.21(3), plaintiffs’ notices were noncompliant. MCL 224.21(3) requires service of the notice of defect on the Road Commission and the County Clerk within 60 days of the accident. MCL 224.21(3); Streng , 315 Mich App at 466

- 467. It is not clear if Grinage served his notice on the County Clerk

. E ven if he did, his notice was deficient because he, too, served it more than sixty days after the accident. Pearce’s notice was defective because she only served it on the Road Commission , not the County Clerk, even though the notice was timely. Therefore, the trial court erred by measuring plaintiffs’ notices against MCL 691.1404(1) and finding them sufficient.

Finally, the trial court determined that the Road Commission was not requi red to plead

defective notice under MCL 224

. 21 as an affirmative defense. We agree. Governmental immunity is not an affirmative defense. Kendricks v Rehfield , 270 Mich App 679, 681; 716 NW2d 623 (2006). Rather, it is a characteristic of government, and a plaintiff must plead in avoidance of governmental immunity. Mack v Detroit , 467 Mich 186, 203; 649 NW2d 47 (2002).

The notice provision is an integral component of defeating governmental immunity. Interpreting the effect of a notice provision at MC L 600.6431, the Supreme Court held that this provision “establishes conditions precedent for avoiding the governmental immunity conferred by the GTLA, which expressly incorporates MCL 600.6431.” Fairley v Dep’t of Corrections

, 497 Mich 290, 297; 871 NW2d 129 (2015). Similarly, MCL 691.1402(1) in the GTLA refers to MCL 224.21 for claims brought against county road commissions, and this section includes the notice provision at MCL 224.21(3). Therefore, MCL 224.21(3)’s notice requirements, including

the dea dline and service requirements, are a component of pleading a claim in avoidance of governmental immunity. Accordingly, the burden was on plaintiffs to meet the requirements for bringing a claim against the Road Commission. The trial court correctly reje cted the argument that the Road Commission waived its challenge to the sufficiency of plaintiffs’ notices by failing to plead defective notice as an affirmative defense.

9 Pearce maintains that the Road Commis sion has taken inconsistent positions on the applicability of Streng . Pearce is correct that the Road Commission strenuously objected to Streng as wrongly decided in Pearce’s prior appeal, but Pearce invoked Streng to argue that her

notice was substantial ly compliant. When this Court granted Pearce’s motion to affirm, the Road Commission reasonably understood Streng to be controlling. Therefore, we are not concerned by the Road Commission’s apparent about

- face.- 7

- III. CONCLUSION

We reverse the trial court’s denial of the Road Commission’s mot ion for summary disposition. We hold that Streng applies retroactively and that plaintiffs’ notices were deficient under MCL 224.21(3). We affirm the trial court’s ruling that the Road Commission was not required to plead defective notice as an affirmati ve defense. Accordingly, we direct the trial court to grant the Road Commission’s motion for summary disposition.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Peter D. O’Connell /s/ Kirsten Frank Kelly

/s/ Michael J. Riordan