GENESEE COUNTY DRAIN COMMISSIONER v GENESEE COUNTY

Docket No. 156579. Argued on application for leave to appeal April 10, 2019. Decided 

July 18, 2019. 

 Genesee County Drain Commissioner Jeffrey Wright and others filed an action in the 

Genesee Circuit Court against Genesee County and the Genesee County Board of Commissioners, 

asserting a contract claim and claims for various intentional torts, including conversion and fraud. 

The drain commissioner and the county jointly purchased group health insurance coverage from 

Blue Cross Blue Shield of Michigan (BCBSM), and the county administered the plans. After 

BCBSM determined that the county’s collective insurance premiums, including those paid by the 

drain commissioner, had exceeded the amount that should have been charged, BCBSM refunded 

the overpayment to the county, which the county deposited into its general fund. The drain 

commissioner demanded his office’s share of the refunded premiums, which the county denied. 

Plaintiffs filed this action, and defendants moved for summary disposition of the intentional-tort 

claims and moved for partial summary disposition of the contract claim with regard to the damages 

sought that extended beyond the six-year period of limitations set forth in MCL 600.5807. The 

court, Geoffrey L. Neithercut, J., denied the motion with regard to the intentional-tort claims, but 

the court granted the motion with regard to the contract claim, concluding that damages were 

limited under MCL 600.5807 to those that accrued after October 24, 2005. The parties appealed 

in the Court of Appeals. The Court of Appeals, STEPHENS, P.J., and SAAD and BOONSTRA, JJ., 

affirmed the trial court’s grant of partial summary disposition with regard to the contract claim but 

reversed the trial court’s order with respect to the intentional-tort claims, reasoning that those 

claims had to be dismissed because intentional torts were not stated exceptions under the 

governmental tort liability act (GTLA), MCL 691.1401 et seq. 309 Mich App 317 (2015). As the 

only remaining plaintiff, the drain commissioner thereafter amended his complaint, claiming that 

the county (the only remaining defendant) had been unjustly enriched when it retained his office’s 

portion of the refunded health insurance premiums. The county moved for summary disposition 

of the unjust-enrichment claim, arguing that the unjust-enrichment claim was also barred by the 

GTLA because the claim was, in effect, a claim for conversion, fraud, or a similar tort; the trial 

court denied the motion. On appeal, the Court of Appeals, SAWYER, P.J., and SERVITTO and 

RIORDAN, JJ., affirmed the denial, reasoning that the GTLA did not apply because the unjustenrichment claim ultimately involved contract liability, not tort liability. 321 Mich App 74 (2017). 

The county sought leave to appeal, and the Supreme Court ordered and heard oral argument on 

whether to grant the application or take other action. 501 Mich 1086 (2018). 

Michigan Supreme Court 

Lansing, Michigan

Syllabus Chief Justice: 

Bridget M. McCormack 

Chief Justice Pro Tem: 

David F. Viviano 

Justices: 

Stephen J. Markman 

Brian K. Zahra 

Richard H. Bernstein 

Elizabeth T. Clement 

Megan K. Cavanagh 

This syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

Reporter of Decisions: 

Kathryn L. Loomis 
 In an opinion by Chief Justice MCCORMACK, joined by Justices VIVIANO, BERNSTEIN, 

CLEMENT, and CAVANAGH, the Supreme Court, in lieu of granting leave to appeal, held: 

 Under In re Bradley Estate, 494 Mich 367 (2013), claims seeking compensatory damages 

for breach of contract and claims seeking a remedy other than compensatory damages are not 

barred by the GTLA. The drain commissioner’s unjust-enrichment claim was not barred by the 

GTLA because the claim was neither a tort nor based in contract and the drain commissioner 

sought restitution, not compensatory damages. To the extent that Bradley Estate implied that tort 

liability for purposes of the GTLA includes noncontractual liability without qualification, the case 

overstated the scope of tort liability. 

 1. MCL 691.1407(1) states that except as otherwise provided by the GTLA, a 

governmental agency is immune from tort liability if the agency is engaged in the exercise or 

discharge of a governmental function. The GTLA encompasses all legal responsibility for civil 

wrongs, other than a breach of contract, for which a remedy may be obtained in the form of 

compensatory damages. For that reason, claims seeking compensatory damages for breach of 

contract and claims seeking a remedy other than compensatory damages are not barred by the 

GTLA. 

 2. Unjust enrichment is different from actions in tort and contract. Restitution is the 

remedy for unjust enrichment; an unjust-enrichment claim does not seek compensation for an 

injury—that is, it does not seek compensatory damages—but to correct against one party’s 

retention of a benefit at another’s expense. In contrast, in a tort action, an injured party may seek 

compensatory damages for an injury caused by the breach of a legal duty to compensate the injured 

party for the injury caused by the defendant’s wrongful conduct. And in a breach-of-contract 

action, an injured party may also seek compensatory damages for an injury caused by another 

party’s breach of a contractual obligation. Unjust enrichment evolved through the years from 

being a restitutionary claim with components in law and equity into a unified independent doctrine 

that uniquely corrects for a benefit received by the defendant rather than correcting for the 

defendant’s wrongful behavior. Therefore, unjust enrichment, with a remedy of restitution, is a 

cause of action independent of contract or tort; it is neither a tort action nor a contract action, both 

of which seek compensatory damages. Both the nature of an unjust-enrichment action and its 

remedy—whether restitution at law or in equity—separate it from tort and contract. 

 3. In this case, the drain commissioner sought restitution to correct for the benefit the 

county unfairly received when it retained his office’s portion of the refunded premiums. 

Consequently, because his claim did not seek compensation for an injury flowing from the 

county’s civil wrong, liability was not in tort or contract, and therefore, the GTLA did not bar his 

unjust-enrichment claim. To the extent that Bradley Estate implied that tort liability includes 

noncontractual liability without qualification, the case overstated the scope of tort liability. 

Bradley Estate did not consider an action like that in this case—wherein liability arose from an 

unjust benefit received, not from a civil wrong—and the case was distinguishable because the 

petitioner in that case sought compensatory damages for injuries related to a civil wrong, not 

restitution. 

 Affirmed. 
 Justice MARKMAN, joined by Justice ZAHRA, concurring, agreed with the majority that the 

county was not entitled to governmental immunity under the GTLA because the drain 

commissioner’s unjust-enrichment claim did not seek to impose tort liability. He wrote separately 

to express his disagreement with the majority’s analysis, particularly its interpretation and 

application of Bradley Estate. Under Bradley Estate, for purposes of MCL 691.1407(1), “tort 

liability” means all legal responsibility arising from a noncontractual civil wrong for which a 

remedy may be obtained in the form of compensatory damages. To determine whether a claim 

involves tort liability, a court must consider the nature of the duty that gives rise to the claim and 

the nature of the liability the claim seeks to impose; if the wrong alleged is based on the breach of 

a contractual duty, then no tort has occurred and it would be unnecessary to consider the nature of 

the liability. The drain commissioner’s unjust-enrichment claim sought restitution at law on the 

basis of an implied-in-law contract, which was premised on the common-law action of assumpsit. 

For that reason, Justice MARKMAN agreed with the Court of Appeals that the drain commissioner’s

unjust-enrichment claim was premised on a contractual relationship and that the claim was 

therefore not barred by governmental immunity. Because he reached that conclusion, Justice

MARKMAN considered it unnecessary to address whether every claim for unjust enrichment that is 

not grounded in the common-law action of assumpsit, or is not premised on a contractual 

relationship, is barred by governmental immunity. Justice MARKMAN disagreed with the 

majority’s attempt to limit the scope of Bradley Estate by removing unjust enrichment from the 

contract/tort civil-wrong dichotomy and by instead declaring that unjust enrichment was an 

independent cause of action, outside of tort and contract. The majority’s conclusion that unjust 

enrichment is an independent cause of action was contrary to Bradley Estate’s recognition that 

there are only two classes of wrong for which an individual may demand legal redress: those based 

on a breach of contract and those that arise independently of contract (that is, in tort). The binary 

analysis in Bradley Estate was clear, and the majority’s conclusion that unjust enrichment was an 

independent cause of action, outside of contract and tort, confused and unsettled this framework. 

The central purpose of governmental immunity is to reduce depletion of the state’s financial 

resources by avoiding a contest on the merits of those claims that are barred by governmental 

immunity. The majority’s holding opens the door on future claims that other nontraditional tort 

claims against a public defendant are outside the Bradley Estate framework. By failing to treat 

Bradley Estate as legitimate precedent, the majority diminished its holding, incentivized further 

GTLA litigation over the meaning of “tort liability,” imposed greater litigation costs on public 

defendants (contrary to the GTLA’s central purpose), and introduced ambiguity and ad hoc judicial 

decision-making in the future. While Justice MARKMAN agreed that the drain commissioner’s 

unjust-enrichment claim was not barred by the GTLA, he would have so held on the basis that the 

drain commissioner sought restitution as a legal remedy in the form of money damages, premised 

on an actual or implied contractual relationship with the county and that such a claim was not 

barred by the GTLA. 

©2019 State of Michigan 
 FILED July 18, 2019 

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

SUPREME COURT 

GENESEE COUNTY DRAIN 

COMMISSIONER JEFFREY WRIGHT, 

 Plaintiff-Appellee, 

and 

CHARTER TOWNSHIP OF FENTON, 

DENNIS BOW, KARYN MILLER, 

BONNIE MATHIS, PAULA ZELENKO, 

MARILYN HOFFMAN, LARRY GREEN, 

JAKE LAFURGEY, RAY FOUST, DAVID 

GUIGEAR, ROBERT M. PALMER, RICK 

CARUSO, WILLIAM W. KOVL, MAXINE 

ORR, VILLAGE OF GOODRICH, 

VILLAGE OF GAINES, VILLAGE OF 

LENNON, CHARTER TOWNSHIP OF 

MUNDY, TOWNSHIP OF ARGENTINE, 

CHARTER TOWNSHIP OF FLINT, 

CHARTER TOWNSHIP OF MT. MORRIS, 

TOWNSHIP OF GAINES, and CITY OF 

FLUSHING, 

 Plaintiffs, 

v No. 156579 

Michigan Supreme Court 

Lansing, Michigan

OPINION Chief Justice: 

Bridget M. McCormack 

Chief Justice Pro Tem: 

David F. Viviano 

Justices: 

Stephen J. Markman 

Brian K. Zahra 

Richard H. Bernstein 

Elizabeth T. Clement 

Megan K. Cavanagh
 2 

GENESEE COUNTY, 

 Defendant-Appellant, 

and 

GENESEE COUNTY BOARD OF 

COMMISSIONERS, 

 Defendant. 

BEFORE THE ENTIRE BENCH 

MCCORMACK, C.J. 

In this case, we consider whether a claim for unjust enrichment is barred by the 

governmental tort liability act (GTLA), MCL 691.1401 et seq. A claim for unjust 

enrichment is neither a tort nor a contract but rather an independent cause of action. And 

the remedy for unjust enrichment is restitution—not compensatory damages, the remedy 

for tort. For both reasons, the GTLA does not bar an unjust-enrichment claim. 

I. FACTS AND PROCEDURAL HISTORY 

Defendant Genesee County served as an administrator for certain employee health 

insurance plans. Plaintiff Genesee County Drain Commissioner Jeffrey Wright1

participated in this plan even though the office of drain commissioner has statutory 

autonomy from the county. See MCL 46.173. The parties’ insurer, Blue Cross Blue Shield 

of Michigan (BCBSM), conducted a multi-year audit that revealed that the county’s 

 

1

 The plaintiff’s first complaint listed 23 additional individuals and municipalities as 

plaintiffs, but they are no longer involved in this case. All references in this opinion to 

“the plaintiff” are to Wright only. The first complaint also listed the Genesee County Board 

of Commissioners as a defendant, but the plaintiff’s second amended complaint dropped 

the board as a defendant. 
 3 

collective insurance premiums, including those paid by the plaintiff, significantly exceeded 

the amount that should have been charged. The county held a public meeting about the 

overpayment—allegedly totaling millions of dollars—during which it accepted a refund 

from BCBSM. The county deposited the refund into its general fund.2

 The plaintiff 

demanded a proportionate share of the refund; the county denied his request, and this 

lawsuit followed. 

The plaintiff’s first complaint included claims based in contract and tort 

(specifically, conversion and fraud). The county moved for summary disposition under 

MCR 2.116(C)(7) and (8). The trial court held that (1) because of the six-year statute of 

limitations for breach-of-contract actions in MCL 600.5807, the plaintiff’s damages were 

limited to those that accrued after October 24, 2005, and (2) the GTLA did not bar the 

plaintiff’s tort claims. The Court of Appeals affirmed in part and reversed in part. The 

panel agreed with the trial court’s holding on the contract claim but concluded that the 

plaintiff’s intentional-tort claims were barred by the GTLA. Genesee Co Drain Comm’r v 

Genesee Co, 309 Mich App 317, 334; 869 NW2d 635 (2015). 

The plaintiff then amended his complaint to add an unjust-enrichment claim, 

alleging that the county had “wrongfully and unjustly retained a portion of the refunds 

 

2

 A “general fund” is “[a] government’s primary operating fund; a state’s assets furnishing 

the means for the support of government and for defraying the legislature’s discretionary 

appropriations.” Black’s Law Dictionary (10th ed), p 788. “A general fund is 

distinguished from assets of a special character[.]” Id. Money in a general fund is to 

consist of funds raised by a governmental unit, “for the conduct of government and for 

governmental purposes, and not those funds . . . which incidentally fall into the hands of 

some governmental agent, while such agent is performing his lawful functions.” Pokorny 

v Wayne Co, 322 Mich 10, 15; 33 NW2d 641(1948). 
 4 

under the [BCBSM] Plan that belong to [the plaintiff],” that the county “is not entitled to 

retain [the plaintiff’s] portion of the refunds,” that the county had been “unjustly enriched” 

by its wrongful retention of the plaintiff’s portion, and that it would be inequitable for the 

county to retain the plaintiff’s portion. 

The county again moved for summary disposition, arguing that the plaintiff’s 

unjust-enrichment claim was also barred by the GTLA. The trial court denied the motion, 

and the Court of Appeals affirmed. Genesee Co Drain Comm’r v Genesee Co, 321 Mich 

App 74; 908 NW2d 313 (2017). The panel concluded that the GTLA did not apply because 

“a claim based on the equitable doctrine of unjust enrichment ultimately involves contract 

liability, not tort liability.” Id. at 78. The defendant then sought leave to appeal in this 

Court. We directed the Clerk to schedule oral argument on the application and ordered the 

parties to address “whether the Court of Appeals erred in holding that the plaintiff’s claim 

of unjust enrichment was not subject to governmental immunity under the [GTLA], see In 

re Bradley Estate, 494 Mich 367 [835 NW2d 545] (2013), because it was based on the 

equitable doctrine of implied contract at law.” Genesee Co Drain Comm’r v Genesee Co, 

501 Mich 1086 (2018). 

II. THE GTLA AND IN RE BRADLEY ESTATE

Whether governmental immunity applies under the GTLA is a question of law that 

we review de novo on appeal. Ray v Swager, 501 Mich 52, 61; 903 NW2d 366 (2017). 

We review grants and denials of summary disposition de novo too. Id. at 61-62. De novo 

review means that we review the legal issue independently, without required deference to 

the courts below. People v Bruner, 501 Mich 220, 226; 912 NW2d 514 (2018). 
 5 

The GTLA provides governmental agencies and their employees with immunity 

from tort liability when engaged in the exercise of governmental functions. Ray, 501 Mich 

at 62. MCL 691.1407(1) states, “Except as otherwise provided in this act, a governmental 

agency is immune from tort liability if the governmental agency is engaged in the exercise 

or discharge of a governmental function.” 

In In re Bradley Estate, 494 Mich 367, this Court held that an action for civil 

contempt seeking compensatory damages against the respondent sheriff’s department was 

barred by the GTLA. The Court reasoned that “the GTLA encompasses all legal 

responsibility for civil wrongs, other than a breach of contract, for which a remedy may be 

obtained in the form of compensatory damages.” Id. at 371. Thus, at least two categories 

of claims are not barred by the GTLA: those seeking compensatory damages for breach of 

contract and claims seeking a remedy other than compensatory damages. 

III. RESTITUTION AND UNJUST ENRICHMENT 

A. GENERAL PRINCIPLES 

Unjust enrichment is a cause of action to correct a defendant’s unjust retention of a 

benefit owed to another. RestatementRestitution, 1st, § 1, comment a, p 12. It is grounded 

in the idea that a party “shall not be allowed to profit or enrich himself inequitably at 

another’s expense.” McCreary v Shields, 333 Mich 290, 294; 52 NW2d 853 (1952) 

(quotation marks and citation omitted). A claim of unjust enrichment can arise when a 

party “has and retains money or benefits which in justice and equity belong to another.” 

Id. (quotation marks and citation omitted). 

The remedy for unjust enrichment is restitution. See, e.g., Kammer Asphalt Paving 

Co, Inc v East China Twp Sch, 443 Mich 176, 185; 504 NW2d 635 (1993) (“[U]nder the 
 6 

equitable doctrine of unjust enrichment, ‘[a] person who has been unjustly enriched at the 

expense of another is required to make restitution to the other.’ ”), quoting Restatement

Restitution, 1st, § 1, p 12 (second alteration in original); City Nat’l Bank of Detroit v 

Westland Towers Apartments, 413 Mich 938, 938 (1982) (discussing “equitable recovery 

on the claim of unjust enrichment”); 2 Restatement Restitution & Unjust Enrichment, 3d, 

§ 49, p 176 (“A claimant entitled to restitution may obtain a judgment for money in the 

amount of the defendant’s unjust enrichment.”).3

Contrast this with tort and contract. In a tort action, an injured party may seek 

damages for an injury caused by the breach of a legal duty. Wilson v Bowen, 64 Mich 133, 

141; 31 NW 81 (1887). The remedy for the breach is compensatory damages. That is, the 

defendant compensates the injured party for the injury caused by the defendant’s wrongful 

conduct. State Farm Mut Auto Ins Co v Campbell, 538 US 408, 416; 123 S Ct 1513; 155 

L Ed 2d 585 (2003); Rafferty v Markovitz, 461 Mich 265, 271; 602 NW2d 367 (1999). 

 

3

 Restitution can refer both to liabilities and to remedies, leading to misunderstanding about 

its correct meaning in some contexts. See 1 Restatement Restitution & Unjust Enrichment, 

3d, § 1, comment e, p 8. This confusion has a likely historical cause: in the centuries before 

the Restatement, “[s]o long as legal obligations were classified by the procedures available 

to enforce them, what we now call restitution did not need an underlying theory of 

liability.” Id. at § 4, comment b, p 29. Today, references to restitution are most common 

in the remedial context, such as statutes requiring a criminal defendant to pay a victim of 

his or her crime. See, e.g., MCL 780.766(2). When restitution refers to a cause of action, 

“[t]he restitutionary remedies and unjust enrichment are simply flip sides of the same coin” 

because “[t]he generative purpose of a restitutionary remedy is the prevention of unjust 

enrichment.” Alternatives Unlimited, Inc v New Baltimore City Bd of Sch Comm’rs, 155 

Md App 415, 454; 843 A2d 252 (2004). See also 1 Restatement Restitution & Unjust 

Enrichment, 3d, § 4, comment b, p 29 (explaining that the first Restatement of Restitution, 

in 1937, adopted the view “that liabilities and remedies drawn from law on the one hand, 

and equity on the other, were best understood and described as components of a unified 

law of unjust enrichment”). 
 7 

In a breach-of-contract action, an injured party may seek damages for an injury 

caused by another party’s breach of a contractual obligation. As in tort, the remedy for the 

breach may be compensatory damages. Am Jur Legal Forms 2d, § 83:2. That is, remedies 

are “those that arise naturally from the breach or those that were in the contemplation of 

the parties at the time the contract was made.” Kewin v Massachusetts Mut Life Ins Co, 

409 Mich 401, 414-415; 295 NW2d 50 (1980), citing 5 Corbin, Contracts, § 1007. 

Unjust enrichment, by contrast, doesn’t seek to compensate for an injury but to 

correct against one party’s retention of a benefit at another’s expense. And the correction, 

or remedy, is therefore not compensatory damages, but restitution. Restitution restores a 

party who yielded excessive and unjust benefits to his or her rightful position. 

1 Restatement Restitution & Unjust Enrichment, 3d, § 1, comments d & e, pp 7-10. 

Beyond the differences in remedy, unjust enrichment is a cause of action 

independent of tort and contract liability. Therefore, the plaintiff’s claim for unjust 

enrichment is not a tort action seeking compensatory damages. And neither is it a contract 

action seeking compensatory damages. See, e.g., 1 Restatement Restitution & Unjust 

Enrichment, 3d, § 1, comment a, p 3 (“The identification of unjust enrichment as an 

independent basis of liability in common-law legal systems—comparable in this respect to 

a liability in contract or tort—was the central achievement of the 1937 Restatement of 

Restitution.”) (emphasis added); see also Schirmer v Souza, 126 Conn App 759, 765; 12 

A3d 1048 (2011) (stating that “the doctrine of unjust enrichment is grounded in the theory 

of restitution, not in contract theory”). 
 8 

B. HISTORICAL CONTEXT 

Unjust enrichment’s historical roots help make sense of its modern identity. It has 

a long jurisprudential pedigree marking its development into an independent action with a 

restitutionary remedy. At the King’s Bench, Lord Mansfield described the rationale behind 

unjust enrichment: 

In one word, the gist of this kind of action is, that the defendant, upon 

the circumstances of the case, is obliged by the ties of natural justice and 

equity to refund the money. [Moses v Macferlan, 97 Eng Rep 676, 681; 2 

Burr 1005 (KB, 1760).] 

Before 1938, when the United States Supreme Court adopted the Federal Rules of 

Civil Procedure abolishing the division between law and equity, unjust-enrichment claims, 

though ascribed different labels, proceeded in both courts of law and equity.4

 See, e.g., 

Murphy, Misclassifying Modern Restitution, 55 SMU L Rev 1577, 1599 (2002) 

(recognizing that “[b]oth the law courts and the equity courts entertained actions that were 

based on restitutionary principles”); see also Livingston v Krown Chem Mfg, Inc, 394 Mich 

144, 147-150; 229 NW2d 793 (1975) (discussing the history of the distinction between 

legal and equitable claims). Claims of law included actions seeking a money judgment, 

such as for money had and received, money paid, quantum meruit, and quantum valebat.5

 

 

4

 At the end of the nineteenth century, some legal scholars began to recognize that 

obligations considered quasi-contractual shared an underlying rationale with some 

equitable remedies in that both sought to repair an unjust enrichment. These ideas 

developed into the unified law of unjust enrichment and were adopted into the 1937 

Restatement of Restitution. 1 Restatement Restitution & Unjust Enrichment, 3d, § 4,

comment b, p 29. 

5

 Limited exceptions to this general rule existed, such as when the money sought to be 

recovered was taken by abuse of a fiduciary or confidential relationship. See, e.g., Cigna 

Corp v Amara, 563 US 421, 439; 131 S Ct 1866; 179 L Ed 2d 843 (2011). 
 9 

1 Dobbs, Law of Remedies (2d ed), § 4.1(1), p 556 (stating that “restitution claims for 

money are usually claims ‘at law’ ”); see also Misclassifying Modern Restitution, 55 SMU 

Law Rev at 1600 (stating that “[t]he actions for money had and received, money paid, 

quantum meruit, and quantum valebat eventually were catalogued under the rubric of 

‘quasi-contract,’ but it is important to appreciate that these actions were not based on 

principles of contract, but rather on principles of unjust enrichment” and that “[t]he ‘quasicontract’ label apparently resulted from the fact that these actions developed in assumpsit, 

where contractual actions also developed”). These claims included an action for assumpsit 

and were quasi-contractual. Quasi-contract doctrine is itself a subset of the law of unjust 

enrichment. See Dobbs, § 4.2(3), pp 579-581. 

By contrast, unjust-enrichment claims based in equity involved remedies other than 

money judgments, including the establishment of constructive trusts, equitable liens, 

subrogation, and accounting. Dobbs, § 4.3(1), pp 587-589; see also Boden v Renihan, 299 

Mich 226, 235-236; 300 NW 53 (1941) (discussing constructive trusts and accounting as 

remedies for suits brought in equity). Thus, while all quasi-contract is premised on unjust 

enrichment, not all unjust enrichment is quasi-contract. 

Unjust enrichment has evolved from a category of restitutionary claims with 

components in law and equity into a unified independent doctrine that serves a unique legal 

purpose: it corrects for a benefit received by the defendant rather than compensating for 

the defendant’s wrongful behavior. Both the nature of an unjust-enrichment action and its 

remedy—whether restitution at law or in equity—separate it from tort and contract. 
 10 

C. APPLICATION 

The plaintiff claims that the county deposited money belonging to the plaintiff, 

among others, into its general fund, thereby enriching itself at the plaintiff’s expense. 

Because the county’s gain was unjust, the plaintiff seeks restitution through a claim of 

unjust enrichment. That claim would correct for the unfairness flowing from the county’s 

“benefit received”—its unfair retention of the plaintiff’s money, rather than for injury 

flowing from the county’s “civil wrong”; the claim thus would impose no tort (or contract) 

liability. And the GTLA therefore does not bar it. 

To the extent that In re Bradley Estate implied that tort liability encompassed 

noncontractual liability without qualification, our decision overstated the scope of “tort 

liability.” But Bradley did not contemplate an action like this one, alleging liability not 

from a “civil wrong,” but rather from a “benefit received.”6

 In sum, the plaintiff’s unjustenrichment claim is based on the county’s unjust benefit received—outside the scope of 

“civil wrongs.” 

And In re Bradley Estate is not an obstacle for the plaintiff for another reason. The 

plaintiff does not seek compensatory damages, but restitution. This Court’s application of 

 

6

 Because the only issue in In re Bradley Estate was whether the GTLA barred the petition 

for indemnification damages for civil contempt, its broader statement that “ ‘tort liability’ 

as used in . . . the GTLA encompasses all legal responsibility for civil wrongs, other than 

a breach of contract,” In re Bradley Estate, 494 Mich at 371, was obiter dictum because it 

was unnecessary to decide the case once the Court held that “a civil contempt petition 

seeking indemnification damages under MCL 600.1721” was barred by the GTLA, id. at 

393. But because the plaintiff’s claim is not barred by the GTLA for alternative reasons, 

as discussed below, and no party asks us to overrule In re Bradley Estate, we do not engage 

this point further. 
 11 

the GTLA in In re Bradley Estate depended on the understanding that the petitioner’s civilcontempt petition sought compensatory damages for an injury: 

If [an] action permits an award of damages to a private party as 

compensation for an injury caused by the noncontractual civil wrong, then 

the action, no matter how it is labeled, seeks to impose tort liability and the 

GTLA is applicable. [In re Bradley Estate, 494 Mich at 389 (emphasis 

added).] 

Thus, our holding in In re Bradley Estate simply did not address an action like this one in 

which the plaintiff is seeking restitution for a benefit unfairly retained by the county, rather 

than compensatory damages for an injury. Because the plaintiff’s unjust-enrichment claim 

is not a tort in name or in substance, the GTLA does not apply.

IV. CONCLUSION 

Because unjust enrichment sounds in neither tort nor contract and seeks restitution 

rather than compensatory damages—the GTLA does not bar the plaintiff’s claim. We 

affirm the judgment of the Court of Appeals. 

Bridget M. McCormack 

David F. Viviano 

 Richard H. Bernstein 

Elizabeth T. Clement 

 Megan K. Cavanagh 
S T A T E O F M I C H I G A N 

SUPREME COURT 

GENESEE COUNTY DRAIN 

COMMISSIONER JEFFREY WRIGHT, 

 Plaintiff-Appellee, 

and 

CHARTER TOWNSHIP OF FENTON, 

DENNIS BOW, KARYN MILLER, 

BONNIE MATHIS, PAULA ZELENKO, 

MARILYN HOFFMAN, LARRY GREEN, 

JAKE LAFURGEY, RAY FOUST, DAVID 

GUIGEAR, ROBERT M. PALMER, RICK 

CARUSO, WILLIAM W. KOVL, MAXINE 

ORR, VILLAGE OF GOODRICH, 

VILLAGE OF GAINES, VILLAGE OF 

LENNON, CHARTER TOWNSHIP OF 

MUNDY, TOWNSHIP OF ARGENTINE, 

CHARTER TOWNSHIP OF FLINT, 

CHARTER TOWNSHIP OF MT. MORRIS, 

TOWNSHIP OF GAINES, and CITY OF 

FLUSHING, 

Plaintiffs, 

v No. 156579 

GENESEE COUNTY, 

 Defendant-Appellant, 

and 

GENESEE COUNTY BOARD OF 

COMMISSIONERS, 

Defendant. 
 

 2

MARKMAN, J. (concurring in the result). 

The issue here is whether plaintiff Genesee County Drain Commissioner Jeffrey 

Wright’s claim for unjust enrichment seeks to impose “tort liability” on defendant 

Genesee County for the purposes of MCL 691.1407(1) of the governmental tort liability 

act (GTLA), MCL 691.1401 et seq. I agree with the majority that the unjust-enrichment 

claim here does not seek to impose tort liability so defendant is not entitled to 

governmental immunity as to that claim. However, I respectfully disagree with its 

interpretation and application of In re Bradley Estate, 494 Mich 367; 835 NW2d 545 

(2013). Accordingly, while I concur with the result reached by the majority, I differ as to 

its reasons for reaching that result. 

I. FACTS AND HISTORY 

 Plaintiff alleges that at the time relevant to this case plaintiff1

 and defendant2

jointly purchased group health insurance from Blue Cross Blue Shield of Michigan 

(BCBS).3

 Both plaintiff and defendant paid premiums to BCBS for which BCBS 

provided healthcare coverage to both plaintiff and defendant. However, unbeknownst to 

plaintiff, BCBS annually refunded to defendant the amount by which the premiums paid 

 

1

 The other plaintiffs, various municipalities and individuals, are not involved in this 

appeal. Any reference in this concurrence to “plaintiff” is exclusively to Genesee County 

Drain Commissioner Jeffrey Wright. 

2

 Defendant Genesee County Board of Commissioners is not involved in this appeal. 

Any reference in this concurrence to “defendant” is exclusively to Genesee County. 

3

 The record is unclear concerning the details of the contractual relationship between 

plaintiff, defendant, and BCBS. Plaintiff’s counsel represented at a motion hearing that 

“[a]ctually going back we’re able to identify [that] it seems like the ‘70s is when this 

[relationship] was established.” 
 

 3

by both plaintiff and defendant exceeded the amount necessary to pay the costs of 

providing the coverage, and defendant placed these refunds in its general fund. When 

plaintiff later discovered that the excess premiums had been refunded to defendant, he 

sued defendant in October 2011 to recover his office’s share. His claims included a 

contract claim and various intentional-tort claims, including conversion. 

 Defendant ultimately moved for summary disposition of the intentional-tort 

claims, as well as partial summary disposition of the contract claim to the extent that the 

damages sought extended beyond the six-year period of limitations. See MCL 600.5807. 

The trial court denied the motion for summary disposition of the intentional-tort claims 

and granted the motion for partial summary disposition of the contract claim. The parties 

then appealed the respective adverse rulings in the Court of Appeals, which affirmed in 

part and reversed in part. Genesee Co Drain Comm’r v Genesee Co, 309 Mich App 317; 

869 NW2d 635 (2015). Concerning the intentional-tort claims, that court held that 

because “the Legislature did not include intentional torts in the GTLA’s stated 

exceptions,” “plaintiffs’ intentional tort claims against defendant must be dismissed . . . .” 

Id. at 331-332. And concerning the contract claim, the court held that “plaintiffs have not 

come close to making a case for equitable estoppel to negate application of the statute of 

limitations under MCL 600.5807.” Id. at 333. Accordingly, the Court of Appeals 

reversed the trial court’s denial of summary disposition with respect to the intentional-tort 

claims, affirmed the trial court’s grant of partial summary disposition with respect to the 

contract claim, and remanded to the trial court for further proceedings. Id. at 334. 

 Following remand, plaintiff moved to add a claim for unjust enrichment. In 

particular, he alleged that “[d]ue to Genesee County’s wrongful retention of the Genesee 
 

 4

County Drain Commissioner’s portion of the refunds, Genesee County has been unjustly 

enriched.” In response, defendant moved for summary disposition of that claim, arguing 

that it was barred by governmental immunity because it effectively constituted a claim 

for conversion, fraud, or a similar tort. The trial court denied defendant’s motion, and 

defendant again appealed in the Court of Appeals, which affirmed the trial court’s order. 

Genesee Co Drain Comm’r v Genesee Co, 321 Mich App 74; 908 NW2d 313 (2017). 

The Court stated that under the doctrine of unjust enrichment, “ ‘the law will imply a 

contract to prevent unjust enrichment only if the defendant has been unjustly or 

inequitably enriched at the plaintiff’s expense.’ ” Id. at 78, quoting Morris Pumps v

Centerline Piping, Inc, 273 Mich App 187, 195; 729 NW2d 898 (2006). The Court then 

concluded that “a claim based on the equitable doctrine of unjust enrichment ultimately 

involves contract liability, not tort liability” and that such a claim is “not barred by the 

GTLA.” Id. Defendant subsequently sought leave to appeal in this Court and we 

directed the Clerk to schedule oral argument on the application and ordered the parties to 

address “whether the Court of Appeals erred in holding that the plaintiff’s claim of unjust 

enrichment was not subject to governmental immunity under the [GTLA], see In re 

Bradley Estate, 494 Mich 367 [835 NW2d 545] (2013), because it was based on the 

equitable doctrine of implied contract at law.” Genesee Co Drain Comm’r Jeffrey Wright 

v Genesee Co, 501 Mich 1086 (2018). 

II. STANDARDS OF REVIEW 

 “The applicability of governmental immunity is a question of law that this Court 

reviews de novo on appeal.” Beals v Michigan, 497 Mich 363, 369; 871 NW2d 5 (2015). 
 

 5

Moreover, we “review[] de novo a trial court’s decision on a motion for summary 

disposition.” Bazzi v Sentinel Ins Co, 502 Mich 390, 398; 919 NW2d 20 (2018). 

III. ANALYSIS 

A. GOVERNMENTAL IMMUNITY 

“In 1964, the Legislature enacted [the] GTLA ‘to make uniform the liability of 

municipal corporations, political subdivisions, and the state, its agencies and departments, 

when engaged in a governmental function.’ ” Yono v Dep’t of Transp, 499 Mich 636, 

645-646; 885 NW2d 445 (2016), quoting 1964 PA 170, title. MCL 691.1407(1) of the 

GTLA provides as follows: 

Except as otherwise provided in this act, a governmental agency is 

immune from tort liability if the governmental agency is engaged in the 

exercise or discharge of a governmental function. Except as otherwise 

provided in this act, this act does not modify or restrict the immunity of the 

state from tort liability as it existed before July 1, 1965, which immunity is 

affirmed. [Emphasis added.] 

Thereafter, in Bradley Estate, 494 Mich at 371, we held that “ ‘tort liability’ as used in 

MCL 691.1407(1) of the GTLA encompasses all legal responsibility for civil wrongs, 

other than a breach of contract, for which a remedy may be obtained in the form of 

compensatory damages.” Concerning the word “tort,” we reasoned that “a ‘tort’ is an act 

that has long been understood as a civil wrong that arises from the breach of a legal duty 

other than the breach of a contractual duty.” Id. at 381. “For example, English commonlaw courts have for centuries recognized a civil wrong as an infringement on private 

rights belonging to individuals and divided civil wrongs into two categories: those 

sounding in contract and those sounding in tort.” Id. We explained that the word 

“ ‘liability,’ refers to liableness, i.e., ‘the state or quality of being liable.’ ” Id. at 385, 
 

 6

quoting Random House Webster’s College Dictionary (2001). “To be ‘liable’ means to 

be ‘legally responsible.’ ” Bradley Estate, 494 Mich at 385 (brackets omitted), quoting

Random House Webster’s College Dictionary (2001). Considered together, “ ‘tort 

liability’ as utilized in MCL 691.1407(1) means all legal responsibility arising from a 

noncontractual civil wrong for which a remedy may be obtained in the form of 

compensatory damages.” Bradley Estate, 494 Mich at 385. We then summarized the 

following principles for “determining whether a cause of action imposes tort liability for 

purposes of the GTLA”: 

Courts considering whether a claim involves tort liability should first focus 

on the nature of the duty that gives rise to the claim. If the wrong alleged is 

premised on the breach of a contractual duty, then no tort has occurred, and 

the GTLA is inapplicable. However, if the wrong is not premised on a 

breach of a contractual duty, but rather is premised on some other civil 

wrong, i.e., some other breach of a legal duty, then the GTLA might apply 

to bar the claim. In that instance, the court must further consider the nature 

of the liability the claim seeks to impose. If the action permits an award of 

damages to a private party as compensation for an injury caused by the 

noncontractual civil wrong, then the action, no matter how it is labeled, 

seeks to impose tort liability and the GTLA is applicable. [Id. at 389.] 

Accordingly, we are obligated to apply the principles set forth in Bradley Estate to assess 

whether a claim for unjust enrichment is barred by governmental immunity.4

 

 

4

 I recognize that the instant case is somewhat unusual in the sense that both parties are 

governmental officials or entities, whereas the typical governmental immunity case 

involves a private party bringing a claim against a governmental official or entity. 

However, neither party has suggested that this is relevant to the pertinent analysis. 
 

 7

B. UNJUST ENRICHMENT 

“This Court has long recognized the equitable right of restitution when a person 

has been unjustly enriched at the expense of another.” Mich Ed Employees Mut Ins Co v 

Morris, 460 Mich 180, 198; 596 NW2d 142 (1999). See also Buell v Orion State Bank, 

327 Mich 43, 56; 41 NW2d 472 (1950) (“The phrase ‘unjust enrichment’ is used in law 

to characterize the result or effect of a failure to make restitution of or for property or 

benefits received under such circumstances [so] as to give rise to a legal or equitable 

obligation to account therefor.”) (quotation marks and citation omitted).5

 Because unjust 

enrichment is defined by reference to restitution, I examine the latter concept to give 

meaning to the former. That is, to assess whether a claim for unjust enrichment is barred 

by governmental immunity, the relationship between unjust enrichment and restitution 

must be considered. The Third Restatement of Restitution and Unjust Enrichment 

generally discusses those legal doctrines as follows: 

Liability in restitution derives from the receipt of a benefit whose 

retention without payment would result in the unjust enrichment of the 

defendant at the expense of the claimant. While the paradigm case of 

unjust enrichment is one in which the benefit on one side of the transaction 

corresponds to an observable loss on the other, the consecrated formula “at 

the expense of another” can also mean “in violation of the other’s legally 

 

5

 Although we have referred to restitution as an “equitable” right, as explained herein, 

restitution may sound in either law or equity. The reference to an “equitable” right is best 

understood as a general reference to fairness under the law and not a reference to 

“equity” as a legal term of art. See Alternatives Unlimited, Inc v New Baltimore City Bd 

of Sch Comm’rs, 155 Md App 415, 457; 843 A2d 252 (2004) (“The word ‘equity’ (with 

its full grammatical paradigm) sometimes has a broadly diluted descriptive usage that 

ranges far beyond its more limited employment as a jurisdictional term of art.”). 
 

 8

protected rights,” without the need to show that the claimant has suffered a 

loss. [1 Restatement of Restitution and Unjust Enrichment, 3d, § 1, p 3.][6] 

The word “restitution,” in certain cases, may refer to a remedy for tort, see 1 Dobbs, 

Hayden & Bublick, Torts (2d ed), § 73, at 208 (explaining that a remedy for conversion 

may consist of a “restitutionary recovery for the gains the defendant made by converting 

the chattel”), or it may refer to a remedy for breach of contract, see Restatement 

Contracts, 2d, § 373(1), at 208 (“[O]n a breach by non-performance that gives rise to a 

claim for damages for total breach or on a repudiation, the injured party is entitled to 

restitution for any benefit that he has conferred on the other party by way of part 

performance or reliance.”). In other instances, however, “restitution” may generally refer 

to a remedy for the failure to “do justice [under the law].” See Marsh v Fulton Co, 77 US 

676, 684; 10 Wall 676; 19 L Ed 1040 (1870) (“The obligation to do justice rests upon all 

persons, natural and artificial, and if a county obtains the money or property of others 

without authority, the law, independent of any statute, will compel restitution or 

compensation.”). See also Kull, Restitution as a Remedy for Breach of Contract, 67 S 

Cal L Rev 1465, 1478 (1994) (“Restitution . . . explains, for example, the obligation to 

repay money paid by mistake, or to indemnify a party who has discharged one’s own 

 

6

 The Third Restatement proceeds to explain that unjust enrichment is an “independent 

basis of liability” separate from “contract or tort”: 

The identification of unjust enrichment as an independent basis of 

liability in common-law legal systems—comparable in this respect to a 

liability in contract or tort—was the central achievement of the 1937 

Restatement of Restitution. . . . The use of the word “restitution” to 

describe the cause of action as well as the remedy is likewise inherited from 

the original Restatement, despite the problems this usage creates. 

[Restatement of Restitution and Unjust Enrichment, § 1, p 3.] 
 

 9

debt; restitution in such cases imposes a liability that cannot be explained by either 

agreement (contract) or breach of duty (tort).”). This principle of “justice,” which refers 

not only to rights protected by tort and contract law but also to rights protected by the 

court’s sense of “justice under the law,” may broadly be referred to as the law of unjust 

enrichment. See Tkachik v Mandeville, 487 Mich 38, 47-48; 790 NW2d 260 (2010) 

(“Unjust enrichment is defined as the unjust retention of ‘money or benefits which in 

justice and equity belong to another.’ ”), quoting McCreary v Shields, 333 Mich 290, 

294; 52 NW2d 853 (1952) (quotation marks omitted).7

 

“ ‘[R]estitution is a legal remedy when ordered in a case at law and an equitable 

remedy . . . when ordered in an equity case,’ and whether it is legal or equitable depends 

on ‘the basis for the plaintiff’s claim’ and the nature of the underlying remedies sought.” 

Great-West Life & Annuity Ins Co v Knudson, 534 US 204, 213; 122 S Ct 708; 151 L Ed 

2d 635 (2002) (brackets omitted), quoting Reich v Continental Cas Co, 33 F3d 754, 756 

(CA 7, 1994). “In cases in which the plaintiff ‘could not assert title or right to possession 

of particular property, but in which nevertheless he might be able to show just grounds 

for recovering money to pay for some benefit the defendant had received from him,’ the 

plaintiff had a right to restitution at law through an action derived from the common-law 

writ of assumpsit.” Great-West Life & Annuity, 534 US at 213, quoting 1 Dobbs, 

 

7

 See also Dep’t of Human Servs ex rel Palmer v Unisys Corp, 637 NW2d 142, 154 

(Iowa, 2001) (“The doctrine of unjust enrichment serves as a basis for restitution. It may 

arise from contracts, torts, or other predicate wrongs, or it may also serve as independent 

grounds for restitution in the absence of mistake, wrongdoing, or breach of contract.”) 

(citation omitted). 
 

 10 

Remedies (2d ed), § 4.2(1), p 571.8

 On the other hand, “a plaintiff could seek restitution 

in equity, ordinarily in the form of a constructive trust or an equitable lien, where money 

or property identified as belonging in good conscience to the plaintiff could clearly be 

traced to particular funds or property in the defendant’s possession.” Great-West Life & 

Annuity, 534 US at 213. “But where ‘the property sought to be recovered or its proceeds 

have been dissipated so that no product remains, the plaintiff’s claim is only that of a 

general creditor,’ and the plaintiff ‘cannot enforce a constructive trust of or an equitable 

lien upon other property of the defendant.’ ” Id. at 213-214 (brackets omitted), quoting 

Restatement of Restitution, § 215, comment a, p 867. In short, restitution is a somewhat 

amorphous term that can refer in particular circumstances to a remedy for a tort, a remedy 

for a breach of contract, a remedy that sounds in law, or a remedy that sounds in equity. 

To resolve the instant case, I would assess the specific nature of the remedy that is 

implicated by plaintiff’s unjust-enrichment claim. 

 

8

 This Court has similarly observed that assumpsit constitutes an action at law. See 

Hafner v A J Stuart Land Co, 246 Mich 465, 470; 224 NW 630 (1929) (“Had [plaintiffs] 

sued at law, after rescission by their own act, recovery would be in assumpsit, as for 

money had and received, on the theory that those defendants to whom money had been 

paid held it for plaintiffs under implied promise to pay.”). Courts of other states have 

similarly concluded that assumpsit is an action at law. See, e.g., Scottsbluff v Waste 

Connections of Nebraska, Inc, 282 Neb 848, 858; 809 NW2d 725 (2011) (“All quasicontract claims developed out of the assumpsit form of action, which a party brought in a 

court of law. So we hold that any quasi-contract claim for restitution is an action at 

law.”) (citations omitted); Jones v Mackey Price Thompson & Ostler, 355 P3d 1000, 

1012 n 32; 2015 UT 60 (2015) (“The appropriate proceeding in an action at law for the 

payment of money by way of restitution is . . . in States retaining common law forms of 

action, an action of general assumpsit . . . .”) (quotation marks and citations omitted). 
 

 11 

Here, plaintiff has not alleged that the excess-premium refunds remain in the 

possession of defendant, and he has not sought equitable relief, such as a constructive 

trust. Rather, plaintiff has only sought a money judgment, the hallmark of restitution at 

law. Consequently, the relevant framework is restitution at law through assumpsit. 

“ ‘Assumpsit’ is defined as ‘1. An express or implied promise, not under seal, by which 

one person undertakes to do some act or pay something to another <an assumpsit to pay a 

debt>. 2. A common-law action for breach of such a promise or for breach of a 

contract.’ ” Fisher Sand & Gravel Co v Neal A Sweebe, Inc, 494 Mich 543, 564; 837 

NW2d 244 (2013), quoting Black’s Law Dictionary (9th ed), p 142. “With the adoption 

of the General Court Rules in 1963, assumpsit as a form of action was abolished.” Fisher 

Sand & Gravel Co, 494 Mich at 564. “But notwithstanding the abolition of assumpsit, 

the substantive remedies traditionally available under assumpsit were preserved[.]” Id. 

 “Assumpsit may be upon an express contract or promise, or for nonperformance of 

an oral or simple written contract or it may be a general assumpsit upon a promise or 

contract implied by law.” Kristoffy v Iwanski, 255 Mich 25, 28; 237 NW 33 (1931) 

(emphasis added).9

 As further noted in 1 Palmer, The Law of Restitution (1978), § 1.2, 

p 7, an implied-in-law contract became commonly known as a “quasi-contract”: 

 

9

 Assumpsit may also be brought upon a contract implied in fact. See Hutchins v 

Vinkemulder, 187 Mich 676, 681; 154 NW 80 (1915) (“Where a duty arises from the 

relation of the parties, there is ordinarily a promise, either implied in fact or created by 

operation of law, to perform that duty, and upon the breach of which an action of 

assumpsit may be maintained under proper pleadings.”). There is a difference between 

an implied-in-law contract and an implied-in-fact contract, as this Court explained in 

Cascaden v Magryta, 247 Mich 267, 270; 225 NW 511 (1929): 
 

 12 

[A] promise to pay money was “implied” as a means of allowing recovery 

in assumpsit for money paid by mistake, where there was no element of 

actual contract, and the development of quasi contract had begun. The 

fiction of a contract was being used to allow recovery in a contract form of 

action, and in retrospect the reason for doing so was to deprive the 

defendant of an unjust enrichment. [Citation omitted.] 

“ ‘The right to bring this action [in assumpsit] for money exists whenever a person, 

natural or artificial, has in his or its possession money which in equity and good 

conscience belongs to the plaintiff, and neither express promise nor privity between the 

parties is essential.’ ” Mich Ed Employees Mut Ins Co, 460 Mich at 198, quoting Hoyt v 

Paw Paw Grape Juice Co, 158 Mich 619, 626; 123 NW 529 (1909) (emphasis omitted). 

Elaborating on assumpsit, Hoyt stated: 

It is an equitable action, and can be maintained in all cases for 

money which in equity and good conscience belongs to the plaintiff. 

* * * 

We understand the law to be well settled that the action of assumpsit 

for money had and received is essentially an equitable action, founded upon 

all the equitable circumstances of the case between the parties; and if it 

appear, from the whole case, that the defendant has in his hands money, 

which, according to the rules of equity and good conscience, belongs, or 

ought to be paid, to the plaintiff, he is entitled to recover; and that as a 

 

There are two kinds of implied contracts: one implied in fact, and the 

other implied in law. The first does not exist unless the minds of the parties 

meet, by reason of words or conduct. The second is quasi or constructive, 

and does not require a meeting of minds, but is imposed by fiction of law, 

to enable justice to be accomplished, even in case no contract was intended. 

“A contract is implied in fact where the intention as to it is not manifested by direct or 

explicit words between the parties, but is to be gathered by implication or proper 

deduction from the conduct of the parties, language used or things done by them, or other 

pertinent circumstances attending the transaction.” Erickson v Goodell Oil Co, Inc, 384 

Mich 207, 212; 180 NW2d 798 (1970). 
 

 13 

general rule, where money has been received by a defendant under any state 

of facts which would in a court of equity entitle the plaintiff to a decree for 

the money, when that is the specific relief sought, the same state of facts 

will entitle him to recover the money in this action. [Hoyt, 158 Mich at 626 

(quotation marks and citations omitted).][10]

Furthermore, the common law recognized a distinction between actions in assumpsit and 

tort, even when the conduct at issue might sustain both actions. For example, “[a]t 

common law, one might waive tort and sue in assumpsit in case the tort arose out of 

contract relations between the parties or the tort consisted of a conversion of plaintiff’s 

property into money or money’s worth.” Nelson & Witt v Texas Co, 256 Mich 65, 71; 

239 NW 289 (1931). That is, when 

the defendant has converted property of the plaintiff into money or money’s 

worth, the plaintiff may waive the tort, and sue in assumpsit, treating the 

sale as made on his behalf. So, where defendant holds possession of 

property by virtue of contract relations with plaintiff, and converts such 

property, the plaintiff may, at his election, proceed in assumpsit. These are 

the only cases in which the plaintiff has election, under the common law. 

[Janiszewski v Behrmann, 345 Mich 8, 38-39; 75 NW2d 77 (1956) 

(quotation marks and citations omitted).] 

There is thus a clear distinction between tort actions and actions in assumpsit-- actions in 

assumpsit are premised on a contractual relationship, actual or implied, while tort actions 

are not. See, e.g., Kristoffy, 255 Mich at 28 (“Assumpsit may be upon an express 

contract or promise, or for nonperformance of an oral or simple written contract, or it 

may be a general assumpsit upon a promise or contract implied by law.”); Albee v 

Schmied, 250 Mich 270, 271-272; 230 NW 146 (1930) (“The demand here, the tort 

 

10 Notwithstanding several references to “equity” in Hoyt, assumpsit remains an action at 

law. See note 8 of this opinion. 
 

 14 

having been waived, is in assumpsit, as upon promise and on contract. . . . The evidence 

must establish the tort although the action is in contract.”) (emphasis added); Old Ben 

Coal Co v Universal Coal Co, 248 Mich 486, 493; 227 NW 794 (1929) (“The declaration 

is in assumpsit claiming damages for breach of contract. It is an action ex contractu, in 

contract, and arising upon contract.”) (emphasis added). 

 To summarize, when a party has been unjustly enriched-- by a tort, contract 

breach, or simply by an inequity that the courts are prepared to recognize-- the other party 

is entitled to restitution. Furthermore, when such a remedy sounds in law and seeks to 

impose a contract implied in law, the proper framework of that remedy is the traditional 

framework of assumpsit. 

With these principles in mind, I return to Bradley Estate. As noted previously, in 

Bradley Estate, 494 Mich at 389, this Court stated that the initial inquiry as to GTLA tortliability claims is whether “the wrong alleged is premised on the breach of a contractual 

duty . . . .” This, I believe, is tantamount to asking whether the wrong alleged is premised 

on a contractual relationship. In the instant case, plaintiff’s claim for unjust enrichment 

seeks restitution in the form of money damages and does not seek restitution in equity. 

Therefore, the claim seeks restitution at law on the basis of an implied-in-law contract, 

which, as explained, is premised on the common-law action of assumpsit. Great-West 

Life & Annuity Ins Co, 534 US at 213. And as also explained, the common-law action of 

assumpsit is premised on a contractual relationship, whether actual or implied. 

Accordingly, I agree with the Court of Appeals that plaintiff’s claim for unjust 

enrichment is premised on a contractual relationship and that the claim therefore is not 

barred by governmental immunity. And as a result, there is no need to address whether 
 

 15 

every claim for unjust enrichment is or is not barred by governmental immunity. That is, 

it need not be addressed on this occasion whether all claims for unjust enrichment that are 

not grounded in the common-law action of assumpsit, or are not premised on contractual 

relationships, are barred by governmental immunity.11

IV. RESPONSE TO THE MAJORITY 

Although I agree with the majority that the Court of Appeals should be affirmed, 

for the reasons set forth in this opinion, I disagree with the majority’s attempt to limit the 

scope of Bradley Estate by concluding that an unjust-enrichment claim is not governed 

by the contract/tort civil-wrong dichotomy laid out in that case. 

First, the majority asserts that “the plaintiff’s unjust-enrichment claim 

is . . . outside the scope of ‘civil wrongs’ ” under Bradley Estate. I disagree that unjust 

enrichment can be removed from the contract/tort civil-wrong dichotomy under Bradley 

Estate. Therein, we explained that “ ‘[i]t is customary in the law to arrange the wrongs 

for which individuals may demand legal redress into two classes: the first embracing 

those which consist in a mere breach of contract, and the second those which arise 

independent of contract.’ ” Bradley Estate, 494 Mich at 383 n 34, quoting Cooley, A 

Treatise on the Law of Torts (2d ed, 1888), p 2. The second type of wrong, we 

explained, sounds in tort. See id. at 384 (“[When] a party breaches a duty stemming from 

 

11 In Kammer Asphalt Paving Co, Inc v East China Twp Sch, 443 Mich 176, 187; 504 

NW2d 635 (1993), we allowed the plaintiff subcontractor’s claim for unjust enrichment 

to proceed against the defendant school district, explaining that “reasonable minds could 

find that defendant was unjustly enriched.” Although we did not address the issue of 

governmental immunity in Kammer Asphalt, the analysis and result in that case are 

consistent with the position reached here. 
 

 16 

a legal obligation, other than a contractual one, the claim sounds in tort.”). And 1 

Restatement of Restitution and Unjust Enrichment, 3d, § 1, comment a, p 3 observes that 

“[w]hile the paradigm case of unjust enrichment is one in which the benefit on one side 

of the transaction corresponds to an observable loss on the other, the consecrated formula 

‘at the expense of another’ can also mean ‘in violation of the other’s legally protected 

rights’ without the need to show that the claimant has suffered a loss.” (Emphasis 

added.) As a result, when a claim for unjust enrichment is one grounded upon a 

“ ‘violation of [one’s] legally protected rights,’ ” id., unjust enrichment is a “wrong[] for 

which individuals may demand legal redress,” Cooley, p 2, under Bradley Estate. It 

follows that such a wrong either sounds in contract or in tort under Bradley Estate; the 

case leaves no leeway for such a wrong to be categorized as sounding entirely in 

something else; rather, a binary analysis was straightforwardly defined, but that analysis 

is now confused and unsettled by the majority’s holding in this case. 

Second, the majority asserts that the statement in Bradley Estate, 494 Mich at 371, 

that “ ‘tort liability’ as used in . . . the GTLA encompasses all legal responsibility for civil 

wrongs, other than a breach of contract” was merely obiter dictum “because it was 

unnecessary [therein] to decide the case once the Court held that ‘a civil contempt 

petition seeking indemnification damages under MCL 600.1721’ was barred by the 

GTLA[.]” Again, I disagree. While “ ‘[i]t is a well-settled rule that any statements and 

comments in an opinion concerning some rule of law or debated legal proposition not 

necessarily involved nor essential to determination of the case in hand are, however 

illuminating, but obiter dicta and lack the force of an adjudication,’ ” McNally v Wayne 

Co Bd of Canvassers, 316 Mich 551, 558; 25 NW2d 613 (1947), quoting People v Case, 
 

 17 

220 Mich 379, 382-383; 190 NW2d 289 (1922), the identification of “contract” and 

“tort” as the two exclusive types of “civil wrongs” was, in my judgment, entirely 

necessary in the course of determining that the civil contempt petition in Bradley Estate 

seeking indemnification damages did not seek contract liability and thus sought “tort 

liability” under the GTLA.12

Third, the majority states that “our holding in In re Bradley Estate simply did not 

address an action like this one in which the plaintiff is seeking restitution for a benefit 

unfairly retained by the county, rather than compensatory damages for an injury.” 

Therefore, the majority reasons that “tort liability” under Bradley Estate is limited to 

cases in which the plaintiff seeks compensatory damages for an injury and here, because 

plaintiff is seeking restitution, the GTLA does not bar the claim. Again, I disagree. 

While I appreciate that Bradley Estate refers to “compensatory damages” as one of the 

hallmarks of a tort, as explained previously, the remedy for tortious conversion may 

consist of a “restitutionary recovery for the gains the defendant made by converting the 

chattel.” 1 Dobbs, Hayden & Bublick, Torts (2d ed), § 73, p 208. Even though plaintiff 

here only seeks such a restitutionary remedy for tortious conversion, his claim 

nonetheless sounds in tort despite his failure to request compensatory damages.13 The 

failure to seek compensatory damages and instead to seek a restitutionary remedy, which 

 

12 Indeed, if the quoted portion of Bradley Estate was dictum, the fact that “no party asks 

us to overrule In re Bradley Estate” would be of no moment, contrary to the emphasis 

given this point by the majority. 

13 As noted previously, the Court of Appeals determined at an earlier stage of the 

proceedings that plaintiff’s conversion claim sought to impose “tort liability” under the 

GTLA and that ruling is not presently at issue. 
 

 18 

in many cases will be similar if not identical to a compensatory-damages remedy, cannot 

properly establish the sole ground for removing a claim from within the scope of “tort 

liability” in Bradley Estate. 

Fourth, while I agree with much of the majority’s thorough discussion of the law 

of unjust enrichment and restitution, I disagree with its conclusion that a claim for unjust 

enrichment is not governed by the contract/tort civil-wrong dichotomy of Bradley Estate. 

“[A] ‘central purpose’ of governmental immunity is ‘to prevent a drain on the state’s 

financial resources, by avoiding even the expense of having to contest on the merits any 

claim barred by governmental immunity.’ ” Costa v Community Emergency Med Servs, 

Inc, 475 Mich 403, 410; 716 NW2d 236 (2006), quoting Mack v Detroit, 467 Mich 186, 

203 n 18; 649 NW2d 47 (2002). If this Court now embarks upon the course of 

disregarding the contract/tort civil-wrong dichotomy by concluding that unjust 

enrichment stands apart from this dichotomy because it is not a “civil wrong,” it 

establishes for future claims against public defendants a very distinctive and uncertain 

legal premise allowing this Court more readily to conclude that other forms of 

nontraditional tort claims also stand apart from the Bradley Estate framework. And thus 

the majority (1) effectively diminishes this Court’s decision in Bradley Estate while 

elevating the stature of its dissents, unsettling and confusing the law without, as appears 

to be its inclination, straightforwardly reversing the decision; (2) incentivizes litigation 

that will explore the new boundaries of the GTLA; and (3) imposes greater litigative 

costs on public defendants that will erode the primary legislative purpose of that act-- all 

in support of the same result that would have adhered had the majority treated Bradley 

Estate as the legitimate precedent that it is. In place of a principled (and in my judgment, 
 

 19 

a correct) interpretation of “tort liability” in MCL 691.1407(1) in Bradley Estate, the 

majority introduces ambiguity and future judicial decision-making of an ad hoc character. 

V. CONCLUSION 

Unjust-enrichment and restitution claims that are premised on a contractual 

relationship are not barred by the GTLA. In the instant case, plaintiff’s claim for unjust 

enrichment seeks restitution as a legal remedy in the form of money damages. His claim 

is premised on a contractual relationship, actual or implied, with defendant. Because 

such a claim against a governmental agency is not barred by the GTLA, plaintiff’s 

specific unjust-enrichment claim is not barred. Accordingly, I concur with the majority’s 

decision to affirm the Court of Appeals, albeit on significantly different grounds. 

 Stephen J. Markman 

 Brian K. Zahra