GENESEE COUNTY DRAIN CO MMISSIONER v GENESEE COUNTY Docket No. 156579. Argued on application for leave to appeal A pril 10, 2019. Decided July 18, 2019. Genesee County Drain Commissione r Jeffrey Wright and others fi led an action in the Genesee Circuit Court against Genesee County and the Genesee Co unty Board of Commissioners, asserting a contract claim and cl aims for various intentional t orts, including conve rsion and fraud. The drain commissioner and the county jointly purchased group h ealth insurance coverage from Blue Cross Blue Shield of Michigan (BCBSM), and the county admi nistered the plans. After BCBSM determined that the county’s collective insurance premium s, including those paid by the drain commissioner, had exceeded the amount that should have be en charged, BCBSM refunded the overpayment to the county, which the county deposited into its general fund. The drain commissioner demanded his offi ce’s share of the refunded premiu ms, which the county denied. Plaintiffs filed this action, and defendants moved for summary disposition of the intentional-tort claims and moved for partial su mmary disposition of the contrac t 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 regar d 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, S TEPHENS , P.J., and S AAD and B OONSTRA , JJ., affirmed the trial court’s gran t of partial summary disposition with regard to the contract claim but reversed the trial court’s order with respect to the intentiona l-tort claims, reasoning that those claims had to be dismissed becaus e intentional torts were not s tated exceptions under the governmental tort liability act (GTLA), MCL 691.1401 et seq . 309 Mich App 317 (2015). As the only remaining plaintiff, the d rain commissioner thereafter ame nded his complaint, claiming that the county (the only remaining defendant) had been unjustly enr iched 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-enrichm ent 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, S AWYER , P.J., and S ERVITTO and R IORDAN , JJ., affirmed the denial, reas oning that the GTLA did not app ly because the unjustenrichment claim ultimately involved contract liability, not to rt liability. 321 Mich App 74 (2017). The county sought leave to appeal, and the Supreme Court ordere d and heard oral argument on whether to grant the appli cation or take other action. 501 Mic h 1086 (2018). Michigan Supreme Court Lansing, Michigan 

# Syllabus Chief Justice: Bridget M. McCormack

C hief 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 b ut has been prepared by the Reporter of Decisi ons for the convenience of th e reader. Reporter of Decisions: Kathryn L. LoomisIn an opinion by Chief Justice M C C ORMACK , joined by Justices V IVIANO , B ERNSTEIN , C LEMENT , and C AVANAGH , 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 c ompensatory damages are not barred by the GTLA. The drain c ommissioner’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 compensator y damages. To the extent th at Bradley Estate implied that tort liability for purposes of the G TLA includes noncontractual liab ility without qualification, the case overstated the scope of tort liability. 1. MCL 691.1407(1) states that except as otherwise provided b y 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 compensa tory damages for breach of contract and claims seeking a remedy other than compensatory da mages are not barred by the GTLA. 2. Unjust enrichment is diffe rent from actions in tort and co ntract. Restitution is the remedy for unjust enrichment; an unjust-enrichment claim does n ot seek compensation for an injury—that is, it does not seek compensatory damages—but to co rrect against one party’s retention of a benefit at anothe r’s expense. In contrast, in a tort action, an injur ed party may seek compensatory damages for an injury caused by the breach of a le gal 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 w ith 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. T herefore, unjust enrichment, w ith a remedy of restitution, is a cause of action independent of c ontract or tort; it is neither a tort action nor a contract action, both of which seek compensatory damages. Both the nature of an unju st-enrichment action and its remedy—whether restitution at la w 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 a n injury flowing from the county’s civil wrong, liability was not in tort or contract, an d therefore, the GTLA did not bar his unjust-enrichment claim. To the extent that Bradley Estate implied that tort liability includes noncontractual liability without q ualification, the case overst ated the scope of tort liability. Bradley Estate did not consider an action like that in this case—wherein liab ility arose from an unjust benefit received, not from a civil wrong—and the case wa s distinguishable because the petitioner in that case sought com pensatory damages for injurie s related to a civil wrong, not restitution.

Affirmed.Justice M ARKMAN , joined by Justice Z AHRA , 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 t ort liability. He wrote separately to express his disagreement with the majority’s analysis, parti cularly its interpretation and application of Bradley Estate . Under Bradley Estate , for purposes of MCL 691.1407(1), “tort liability” means all legal res ponsibility arising from a noncon tractual 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 th e duty that gives rise to the claim and the nature of the liability the claim seeks to impose; if the w rong alleged is based on the breach of a contractual duty, then no tort has occurred and it would be u nnecessary to consider the nature of the liability. The drain commissi oner’s unjust-enrichment clai m sought restitution at law on the basis of an implied-in-law contra ct, which was premised on the common-law action of assumpsit. For that reason, Justice M ARKMAN agreed with the Court of Appeals that the drain commissioner’s unjust-enrichment claim was pre mised on a contractual relations hip and that the claim was therefore not barred by governmental immunity. Because he reac hed that conclusion, Justice M ARKMAN considered it unnecessary to address whether every claim for u njust enrichment that is not grounded in the common-law action of assumpsit, or is not p remised on a contractual relationship, is barred by governmental immunity. Justice M ARKMAN disagreed with the majority’s attempt to limit the scope of Bradley Estate by removing unjust enrichment from the contract/tort civil-wrong dic hotomy and by instead declaring th at unjust enrichment was an independent cause of action, outsi de 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 c ontract (that is, in t ort). The binary analysis in Bradley Estate was clear, and the majority’s c onclusion that unjust enrichmen t was an independent cause of action, outsi de of contract and tort, conf used and unsettled this framework. The central purpose of governmental immunity is to reduce deple tion of the state’s financial resources by avoiding a contest on the merits of those claims t hat are barred by governmental immunity. The majority’s holding opens the door on future clai ms that other nontraditional tort claims against a public def endant 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 g reater litigation costs on public defendants (contrary to the GTLA’s central purpose), and introd uced ambiguity and ad hoc judicial decision-making in the future. While Justice M ARKMAN agreed that the drain commissioner’s unjust-enrichment claim was not barred by the GTLA, he would ha ve so held on the basis that the drain commissioner sought resti tution as a legal remedy in the form of money damages, premised on an actual or implied contract ual relationship with the count y and that such a claim was not barred by the GTLA.

©2019 State of MichiganFILED 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 GAINE S, and CITY OF FLUSHING, Plaintiffs,

v No. 156579 Michigan Supreme Court Lansing, Michigan 

# OPINION Chief Justice: Bridget M. M cCormack

Chief Justice Pro Tem:

David F. Viviano Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh2 GENESEE COUNTY, Defendant-Appellant, and

GENESEE COUNTY BOARD OF COMMISSIONERS,

Defendant.

BEFORE THE ENTIRE BENCH

M C C ORMACK , 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 ra ther an indep endent cause of action. And the remedy for unjust enrichment is restitution—no t compensator y damages, the remedy for tort. For both reasons, the G TLA does not bar an unjust-en richment claim.

I. FACTS AND PROCEDURAL HISTORY Defendant Genesee County served a s an administrator for certain employee health insurance plans. Plaintiff Genese e County Drain Commissioner J effrey Wright 1 participated in this plan even though the office of drain commi ssioner has statutory autonomy from the county. See MC L 46.173. The parties’ insure r, 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 additio nal individua ls and municipalities as plaintiffs, but they are no longer involved in this case. All references in this opinion to “the plaintiff” are to Wright onl y. The first complaint also l isted the Genesee County Board of Commissioners as a defendant, but the plaintiff’s second ame nded complaint dropped the board as a defendant.3 collective insurance premiums, including those paid by the plai ntiff, significantly exceeded the amount that should have been charged. The county held a pu blic meeting about the overpayment—allegedly totaling m illions of dollars—during which it accepted a refund from BCBSM. The county deposited the refund into its general f und. 2 The plaintiff demanded a proportionate share o f the refund; the county denied his request, and this

lawsuit followed. The plaintiff’s first complaint i ncluded claims based in contra ct and tort (specifically, conversion and fraud). The county moved for sum mary 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 afte r October 24, 2005, and (2) t he 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 cla im 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-enric hment claim, alleging that the county had “wrongfully and unjustly retained a portion of the refunds

2 A “general fund” is “[a] govern ment’s primary operating fund; a state’s assets furnishing the means for the support of government and for defraying the l egislature’s discretionary appropriations.” Black’s Law Dictionary (10th ed), p 788. “A general fund is distinguished from assets o f a special character[.]” Id . Money in a general fund is to consist of funds raised by a gove rnmental unit, “for the conduc t of government and for governmental purposes, and not those funds . . . which incident ally fall into the hands of some governmental agent, while suc h agent is performing his law ful functions.” Pokorny v Wayne Co , 322 Mich 10, 15; 33 NW2d 641(1948).4 under the [BCBSM] Plan that belo ng to [the plaintiff],” that th e county “is not entitled to retain [the plaintiff’s] portion of the refunds,” that the coun ty 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 th e plaintiff’s unjust-enrichment claim was als o 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 u ltimately 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 holdi ng that the plaintiff’s claim of unjust enrichment was not s ubject to governmental immunity u nder the [GTLA], see In re Bradley Estate , 494 Mich 367 [835 NW2d 545] (2 013), because it was based on t he equitable doctrine of imp lied 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 a pplies under the GTLA is a quest ion 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, with out 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 wit h immunity from tort liability when engaged in the exercise of governmenta l functions. Ray , 501 Mich at 62. MCL 691.1407(1) states, “ Except as otherwise provided i n this act, a governmental agency is immune from tort liab ility if the governmental agency is engaged in the exercise or discharge of a gov ernmental function.”

In In re Bradley Estate , 494 Mich 367, this Court held that an action for civil contempt seeking compensatory dam ages against the respondent sh eriff’s department was barred by the GTLA. The Court reasoned that “the GTLA encompas ses all legal responsibility for civil wrongs, other than a breach of contrac t, for which a remedy may be

obtained in the form of c ompensatory damages.” Id . at 371. Thus, at least two categories of claims are not barred by the GTLA: those seeking compensato ry damages for breach of contract and claims seeking a re medy other than compensatory da mages. III. RESTITUTION AND UNJUST ENRICHMENT A. GENERAL PRINCIPLES Unjust enrichment is a cause of a ction to correct a defendant’s unjust retention of a

benefit owed to another. Restatement Restitution, 1st, § 1, comment a , p 12. It is grounded in the idea that a party “shall not be allowed to profit or enr ich 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 enri chment can arise when a party “has and retains money or benefits which in justice and e quity belong to another.”

Id . (quotation marks and citation omitted). The remedy for unjust enrichme nt is restitution. See, e.g., Kammer Asphalt Paving Co, Inc v East China Twp Sch , 443 Mich 176, 185; 504 NW 2d 635 (1993) (“[U]nder the6 equitable doctrine of unjust enrichment, ‘[a] person who has be en unjustly enriched at the expense of another is required to make restitution to the other .’ ”), quoting Restatement Restitution, 1st, § 1, p 12 (sec ond 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 entitle d to restitution may obtain a j udgment for money in the amount of the defendant’s unjust enrichment.”). 3 Contrast this with tort and contract. In a tort action, an inj ured 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 compensator y damages. That is, the defendant compensates the injured party for the injury caused b y 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 3 67 (1999).

3 Restitution can refer both to liabilities and to remedies, lea ding to misunderstanding about its correct meaning in some contexts. See 1 Restatement Restit ution & Unjust Enrichment, 3d, § 1, comment e , p 8. This confusion has a likely historical cause: in the ce nturies before the Restatement, “[s]o long as l egal obligations were classifie d by the procedures available to enforce them, what we now call restitution did not need an u nderlying 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). W hen 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 purpos e 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 fir st 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 b est understood and described as components of a unified law of unjust enrichment”).7 In a breach-of-contract action, a n injured party may seek damag es for an injury caused by another party’s breach of a contractual obligation. As in tort, the remedy for the breach may be compensatory damag es. Am Jur Legal Forms 2d, § 8 3:2. That is, remedies are “those that arise naturally from the breach or those that w ere 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 NW 2d 50 (1980), citing 5 Corbin, Con tracts, § 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 com pensatory damages, but restituti on. Restitution restores a party who yielded excessive and unjust benefits to his or her r ightful position. 1 Restatement Restitution & Unju st Enrichment, 3d, § 1, comment s 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 pla intiff’s claim for unjust enrichment is not a tort action s eeking 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 “th e doctrine of unjust enrichmen t 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 mod ern identity. It has a long jurisprudential pedigree m arking its development into an independent action with a restitutionary remedy. At the Ki ng’s Bench, Lord Mansfield des cribed the rationale behind unjust enrichment: In one word, the gist of this kind of action is, that the defen dant, upon the circumstances of the case, is obliged by the ties of natura l 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 St ates Supreme Court adopted the F ederal Rules of Civil Procedure abolishing the d ivision between law and equity, unjust-enrichment claims, though ascribed different labels, proceeded in both courts of l aw 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 th e distinction between legal and equitable claims). Claims of law included actions se eking a money judgment, such as for money had and receive d, money paid, quantum meruit, and quantum valebat. 5

4 At the end of the nineteenth cen tury, some legal scholars bega n to recognize that obligations considered quasi-con tractual shared an underlying r ationale with some equitable remedies in that both sought to repair an unjust enri chment. These ideas developed into the unified law o f unjust enrichment and were ad opted 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 rel ationship. 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 valeb at 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 enri chment” and that “[t]he ‘quasicontract’ label apparently resulte d from the fact that these ac tions developed in assumpsit, where contractual actions also developed”). These claims inclu ded an action for assumpsit and were quasi-contractual. Qua si-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 tr usts, 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 tr usts and accounting as remedies for suits brought in e quity). Thus, while all quasi-c ontract 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 doctrin e that serves a unique legal purpose: it corrects for a benef it received by the defendant ra ther 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 a t the plaintiff’s expense. Because the county’s gain was unjust, the plaintiff seeks resti tution through a claim of unjust enrichment. That claim w ould correct for the unfairness flowing from the county’s “benefit received”—its unfair retention of the plaintiff’s mone y, rather than for injury flowing from the county’s “civil wrong”; the claim thus would i mpose no tort (or contract) liability. And the GTLA there fore does not bar it. To the extent that In re Bradley Estate implied that tort liability encompassed noncontractual liability without qu alification, our decision ov erstated the scope of “tort liability.” But Bradley did not contemplate an action like this one, alleging liabilit y not from a “civil wrong,” but rathe r from a “benef it received.” 6 In sum, the plaintiff’s unjustenrichment claim is based on the county’s unjust benefit receiv ed—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 compensat ory 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 ob iter 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 GT LA 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 compensa tory damages fo r 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 l iability 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 r estitution for a benefit unfair ly 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 s ubstance, the GTLA does not apply.

IV. CONCLUSION Because unjust enrichment sounds in neither tort nor contract a nd seeks restitution rather than compensatory damages —the GTLA does not bar the plai ntiff’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. CavanaghS 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 TOWNSH IP 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 GAINE S, and CITY OF FLUSHING, Plaintiffs,

v No. 156579 GENESEE COUNTY, Defendant-Appellant,

and

GENESEE COUNTY BOARD OF COMMISSIONERS,

Defendant.2 M ARKMAN , J. ( concurring in the result ). The issue here is whether plaintiff Genesee County Drain Commis sioner Jeffrey Wright’s claim for unjust enrichment seeks to impose “tort liab ility” on defendant Genesee County for the purposes of MCL 691.1407(1) of the gover nmental tort liability act (GTLA), MCL 691.1401 et seq . I agree with the majority that the unjust-enrichment claim here does not seek to im pose tort liability so defendant is not entitled to governmental immunity as to that claim. However, I respectfull y 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 tim e relevant to this case plain tiff 1 and defendant 2 jointly purchased group health i nsurance from Blue Cross Blue S hield of Michigan (BCBS). 3 Both plaintiff and defendant pai d premiums to BCBS for which BCBS provided healthcare coverage to both plaintiff and defendant. However, unbeknownst to plaintiff, BCBS annually refunde d to defendant the amount by wh ich the premiums paid

1 The other plaintiffs, various m unicipalities and individuals, are not involved in this appeal. Any reference in this co ncurrence to “plaintiff” is ex clusively to Genesee County Drain Commissioner Jeffrey Wright.

2 Defendant Genesee County Board of Commissioners is not involve d in this appeal. Any reference in this concurrenc e to “defendant” is exclusively to Genesee County.

3 The record is unclear concerning the details of the contractua l relationship between plaintiff, defendant, and BCBS. Plaintiff’s counsel represente d at a motion hearing that “[a]ctually going back we’re able to identify [that] it seems l ike the ‘70s is when this [relationship] was established.”3 by both plaintiff and defendant exceeded the amount necessary t o pay the costs of providing the coverage, and defendant placed these refunds in i ts general fund. When plaintiff later discovered that the excess premiums had been re funded to defendant, he sued defendant in October 2011 to recover his office’s share. His claims included a contract claim and various inten tional-tort claims, including c onversion. Defendant ultimately moved for summary disposition of the inte ntional-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 limitatio ns. See MCL 600.5807. The trial court denied the moti on for summary disposition of th e intentional-tort claims and granted the motion for partial summary disposition of the c ontract claim. The parties then appealed the respective adverse rulings in the Court of Ap peals, 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, t hat court held that because “the Legislature did no t include intentional torts in t he GTLA’s stated exceptions,” “plaintiffs’ intentio nal tort claims against defen dant must be dismissed . . .



### . ”

Id . at 331-332. And concerning the contract claim, the court hel d that “plaintiffs have not come close to making a case for equitable estoppel to negate ap plication of the statute of limitations under MCL 600.5807.” Id . at 333. Accordingly, the Court of Appeals

reversed the trial court’s deni al of summary disposition with r espect to the intentional-tort claims, affirmed the trial court’s grant of partial summary dis position with respect to the contract claim, and remanded to the trial court for further pro ceedings. Id . at 334. Following remand, plaintiff moved to add a claim for unjust en richment. In particular, he alleged that “[d]u e to Genesee County’s wrongful retention of the Genesee4 County Drain Commissioner’s portion of the refunds, Genesee Cou nty has been unjustly enriched.” In response, defen dant moved for summary dispositio n of that claim, arguing that it was barred by governmenta l immunity because it effectiv ely constituted a claim for conversion, fraud, or a similar tort. The trial court deni ed defendant’s motion, and defendant again appealed in the Court of Appeals, which affirme d 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 un justly or inequitably enriched at th e 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 unju st 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 t he equitable doctrine of imp lied contract at law.” Genesee Co Drain Co mm’r Jeffrey Wright

v Genesee Co , 501 Mich 1086 (2018).

II. STANDARDS OF REVIEW “The applicability of government al immunity is a question of l aw 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 mo tion 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 t he 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), qu oting 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 ot herwise provided in this act, this act does not modify or restrict the immunity of the state from tort liability as it e xisted before July 1, 1965, wh ich 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 enc ompasses all legal responsibilit y for civil wrongs, other than a breach of contract, for which a remedy may be obta ined 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 r ecognized a civil wrong as an in fringement on private rights belonging to individuals a nd divided civil wrongs into t wo 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 qualit y 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 691.1 407(1) means all legal respo nsibility arising from a noncontractual civil wrong for which a remedy may be obtained i n the form of compensatory damages.” Bradley Estate , 494 Mich at 385. We then summarized the following principles for “determin ing whether a cause of action imposes tort liability for purposes of the GTLA”: Courts considering whether a clai m involves tort liability shou ld first focus on the nature of the duty that giv es 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 premise d on a breach of a contractual duty, but rather is premised on some ot her civil wrong, i.e., some other breach of a legal duty, then the GTLA m ight apply to bar the claim. In that instance, the court must further con sider the nature of the liability the claim seeks to impose. If the action perm its an award of damages to a private party as compensation for an injury caused by the noncontractual civil wrong, the n the action, no matter how it i s 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 enrich ment is barred by governmental immunity. 4

4 I recognize that the instant case is somewhat unusual in the s ense that both parties are governmental officials or entiti es, whereas the typical governm ental immunity case involves a private party bringing a claim against a governmenta l official or entity. However, neither party has suggest ed that this is relevant to t he pertinent analysis.7 B. UNJUST ENRICHMENT “This Court has long recognized the equitable right of restitut ion 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 (1 950) (“The phrase ‘unjust enrich ment’ is used in law to characterize the result or effect of a failure to make resti tution 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 th e 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 enric hment and restitution must be considered. The Third Restatement of Restitution and U njust 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 c ase of unjust enrichment is one in which the benefit on one side of th e transaction corresponds to an observable loss on the other, the consecrated formula “at the expense of another” can also mean “in violation of the othe r’s legally

5 Although we have referred to restitution as an “equitable” rig ht, as explained herein, restitution may sound in either l aw or equity. The reference t o 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, In c v New Baltimore City Bd of Sch Comm’rs , 155 Md App 415, 457; 843 A2d 2 52 (2004) (“The word ‘equity’ ( with its full grammatical paradigm) s ometimes has a broadly diluted descriptive usage that ranges far beyond its more limited employment as a jurisdiction al term of art.”).8 protected rights,” without the need to show that the claimant h as suffered a loss. [1 Restatement of Restituti on 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 def endant made by converting the chattel”), or it may refer to a remedy for breach of contra ct, see Restatement Contracts, 2d, § 373(1), at 208 (“[O]n a breach by non-performa nce that gives rise to a claim for damages for total br each or on a repudiation, the inj ured 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, “rest itution” may generally refer to a remedy for the failure to “do justice [under the law].” S ee Marsh v Fulton Co , 77 US 676, 684; 10 Wall 676; 19 L Ed 104 0 (1870) (“The obligation to do justice rests upon all persons, natural and artificial, and if a county obtains the mo ney or property of others without authority, the law, independent of any statute, will co mpel 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 e xample, the obligation to repay money paid by mistake, or to indemnify a party who has di scharged one’s own

6 The Third Restatement proceeds to explain that unjust enrichme nt 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 syst ems—comparable in this respec t to a liability in contract or tort—was the central achievement of th e 1937 Restatement of Restitution. . . . The use of the word “restitu tion” to describe the cause of action as w ell as the remedy is likewise inherited from the original Restatement, despite the problems this usage creat es. [Restatement of Restitution and Un just Enrichment, § 1, p 3.]9 debt; restitution in such cases i mposes a liability that cannot be explained by either agreement (contract) or breach of duty (tort).”). This princip le 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 referr ed to as the law of unjust enrichment. See Tkachik v Mandeville , 487 Mich 38, 47-48; 790 NW2d 260 (2010) (“Unjust enrichment is defined a s the unjust retention of ‘mone y or benefits which in justice and equity belong to another.’ ”), quoting McCreary v Shields , 333 Mich 290, 294; 52 NW2d 853 (1952) (q uotation marks omitted). 7 “ ‘[R]estitution is a legal remed y when ordered in a case at la w and an equitable remedy . . . when ordere d 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 wh ich nevertheless he might be a ble 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 unj ust enrichment serves as a ba sis for restitution. It may arise from contracts, torts, or other predicate wrongs, or it m ay 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 equitabl e lien, where money or property identified as belonging in good conscience to the p laintiff could clearly be traced to particular funds or pr operty in the defendant’s posse ssion.” Great-West Life & Annuity , 534 US at 213. “But where ‘the property sought to be recover ed 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 construc tive 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 rem edy that sounds in equity. To resolve the instant case, I w ould assess the specific nature of the remedy that is implicated by plaintiff’s unjust-enrichment claim.

8 This Court has similarly obser ved that assumpsit constitutes a n action at law. See Hafner v A J Stuart Land Co , 246 Mich 465, 470; 224 NW 6 30 (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 th eory that those defendants to whom money had been paid held it for plaintiffs under implied promise to pay.”). C ourts 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 res titution is an action at law.”) (citations omitted); Jones v Mackey Price Thompson & Ostler , 355 P3d 1000, 1012 n 32; 2015 UT 60 (2015) (“Th e appropriate proceeding in an action at law for the payment of money by way of restitution is . . . in States retai ning common law forms of action, an action of general a ssumpsit . . . .”) (q uotation mar ks 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 la w 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 anothe r <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 196 3, assumpsit as a form of acti on was abolished.” Fisher

Sand & Gravel Co , 494 Mich at 564. “But notwith standing the abolition of assum psit,

the substantive remedies tra ditionally available under assumpsi t were preserved[.]” Id

. “Assumpsit may be upon an expre ss contract or promise, or for nonperformance of an oral or simple written contract or it may be a general assum psit 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 b ecame commonly known as a “qua si-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 fro m 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 i s 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 r ecovery in assumpsit for money paid by mistake, where there was no element of actual contract, and the development of quasi contract had begu n. The fiction of a contract was being us ed to allow recovery in a con tract form of action, and in retrospect the rea son for doing so was to depriv e the defendant of an unjust en richment. [Citation omitted.] “ ‘The right to bring this acti on [in assumpsit] for money exis ts whenever a person, natural or artificial, has in hi s or its possession money which in equity and good conscience belongs to the plain tiff, and neither express promis e 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 f or money which in equity and good c onscience belongs to the plaint iff. * * * We understand the law to be well settled that the action of ass umpsit 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 hand s money, which, according to the rules of equity and good conscience, be longs, or ought to be paid, to the plain tiff, 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 mind s 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 fict ion of law, to enable justice to be accomplis hed, 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 im plication or proper deduction from the conduct of the parties, language used or thi ngs 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 be en received by a defendant unde r any state of facts which would in a court of equity entitle the plaintiff to a decree for the money, when that is the spec ific relief sought, the same st ate 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 ac tions 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 t he 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 co nverted property of the plaintiff into mone y or money’s worth, the plaintiff may waive th e tort, and sue in assumpsit, treating the sale as made on his behalf. So, where defendant holds possessi on of property by virtue of contract r elations with plaintiff, and co nverts such property, the plaintiff may, at his election, proceed in assump sit. These are the only cases in which the plaintiff has election, under the c ommon law. [ Janiszewski v Behrmann , 345 Mich 8, 38-39; 75 NW2d 77 (1956) (quotation marks and citations omitted).]

There is thus a clear distincti on between tort actions and acti ons 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 nonp erformance of an oral or simple written contract, or it may be a general assumpsit upon a promise or contract implied b y law.”); Albee v

Schmied , 250 Mich 270, 271-272; 230 NW 146 (1930) (“The demand here, t he 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 assum psit, as upon promise and on con tract. . . . 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 c ontract.”) (emphasis added). To summarize, when a party has been unjustly enriched-- by a t ort, contract breach, or simply by an inequity tha t the courts are prepared t o recognize-- the other party is entitled to restitution. Furthe rmore, when such a remedy so unds 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 st ated that the initial inquiry a s to GTLA tortliability claims is whether “the wrong alleged is premised on t he breach of a contractual duty . . . .” This, I believe, is tantamount to asking whether the wrong alleged is premised on a contractual relationship. I n the instant case, plaintiff’ s claim for unjust enrichment seeks restitution in the form of money damages and does not see k restitution in equity. Therefore, the claim seeks restitution at law on the basis of a n implied-in-law contract, which, as explained, is premised on the common-law action of as sumpsit. 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 ac tual or implied. Accordingly, I agree with the C ourt of Appeals that plaintiff’s claim for unjust enrichment is premised on a cont ractual relationship and that t he claim therefore is not barred by governmental immunity. And as a result, there is no need to address whether15 every claim for unjust enrichment is or is not barred by governmenta l immunity. That is, it need not be addressed on this occasion whether all claims fo r 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 sh ould 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-en richment claim is not governed by the contract/tort civil-wrong dichotomy laid o ut in that cas e. First, the majority asserts that “the plaintiff’s unjust-enrich ment claim is . . . outside the scope of ‘civil wrongs’ ” under Bradley Estate . I disagree that unjust

enrichment can be removed from t he contract/tort civil-wrong di chotomy under Bradley

Estate . Therein, we explained that “ ‘[ i]t is customary in the law t o 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 secon d 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 ty pe of wrong, we explained, sounds in tort. See id . at 384 (“[When] a party br eaches 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 th at “reasonable minds could find that defendant was unjustly enriched.” Although we did no t 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 sou nds in tort.”). And 1 Restatement of Restitution and Un just Enrichment, 3d, § 1, comm ent 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 t o an observable loss on the oth er, the consecrated formula ‘at the expense of another’ can also mean ‘ in violation of the ot her’s legally protected rights ’ without the need to show that the claimant has suffered a los s.” (Emphasis added.) As a result, when a claim for unjust enrichment is one grounded upon a “ ‘violation of [one’s] leg ally protected rights,’ ” id ., unjust enrichment is a “wrong[] for which individuals may demand leg al 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 sou nding entirely in something else; rather, a binary analysis was straightforwardly defined, but that analysis

is now confused and u nsettled by the majori ty’s holding in this case. Second, the majority asserts that the statement in Bradley Estate , 494 Mich at 371, that “ ‘tort liability’ as used i n . . . the GTLA encompasses a ll legal responsibility for civil wrongs, other than a breach of contract” was merely obiter dict um “because it was unnecessary [therein] to decide the case once the Court held th at ‘a civil contempt petition seeking indemnification damages under MCL 600.1721’ wa s barred by the GTLA[.]” Again, I disagree. Wh ile “ ‘[i]t is a well-settled r ule that any statements and comments in an opinion concerning some rule of law or debated l egal proposition not necessarily involved nor essential to determination of the case in hand are, however illuminating, but obiter dicta a nd lack the force of an adjudic ation,’ ” 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 NW2 d 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 damage s 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 seeki ng restitution for a benefit unfairly retained by the county, rather than compensatory damag es for an injury.” Therefore, the majority reasons that “tort liability” under Bradley Estate is limited to cases in which the plaintiff seek s compensatory damages for an injury and here, because plaintiff is seeking restitution, the GTLA does not bar the cla im. 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 to rtious conversion may consist of a “restitutionary reco very for the gains the defenda nt made by converting the chattel.” 1 Dobbs, Hayden & Bu blick, Torts (2d ed), § 73, p 20 8. Even though plaintiff here only seeks such a restituti onary remedy for tortious conve rsion, his claim nonetheless sounds in tort desp ite his failure to request compe nsatory damages. 13 The failure to seek compensatory damages and instead to seek a rest itutionary 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 ear lier 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 compensator y-damages remedy, cannot properly establish the sole ground for removing a claim from wi thin the scope of “tort liability” in Bradley Estate

. Fourth, while I agree with much of the majority’s thorough disc ussion of the law of unjust enrichment and restitu tion, I disagree with its concl usion that a claim for unjust enrichment is not governed by the contract/tort civil-wrong dic hotomy of Bradley Estate

. “[A] ‘central purpose’ of governmental immunity is ‘to prevent a drain on the state’s financial resources, by avoiding e ven 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 t he course of disregarding the contract/tort c ivil-wrong dichot omy by conclud ing that unjust enrichment stands apart from th is dichotomy because it is not a “civil wrong,” it establishes for future claims ag ainst 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 i n Bradley Estate while elevating the stature of its dissents, unsettling and confusing the law without, as appears to be its inclination, straightfo rwardly reversing the decision ; (2) incentiviz es litigation that will explore the new boundari es of the GTLA; and (3) impos es greater litigative costs on public defendants that will erode the primary legislat ive purpose of that act-- all in support of the same result th at would have adhered had the m ajority treated Bradley

Estate as the legitimate precedent that it is. In place of a princip led (and in my judgment,19 a correct) interpretation of “to rt liability” in MCL 691.1407(1 ) in Bradley Estate , the majority introduces amb iguity and future judicial decision-maki ng 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 m oney damages. His claim is premised on a contractual relationship, actual or implied, w ith 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 A ppeals, albeit on significantl y different grounds.

Stephen J. Markman Brian K. Zahra