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___________________________________ Michigan Supreme Court Lansing, Michigan 48909

C hief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

Stephen J. Markman

FILED JULY 9, 2002

JEANNE and KRISTIN OMELENCHUK, Co-Personal Representatives of the Estate of George Omelenchuk, Plaintiffs-Appellees,

v No. 117252 THE CITY OF WARREN, and the WARREN FIRE DEPARTMENT, Defendants-Appellants.

BEFORE THE ENTIRE BENCH CAVANAGH, J. Plaintiffs allege that their decedent died as the result of gross negligence by e mpl oyees of defendant, the city of Warren. The circuit court granted summary disposition onthe basis of governmental immunity. MCR 2.116(C)(7). The Court of Appeals reversed, but this Court reinstates the judgment of the circuit court because the controlling statutes plainly provide immunity to defendant, the city of Warren.I Two years ago, when this case was before us in connection witha separate issue, we stated the facts. Omelenchuk v City of Warren , 461 Mich 567, 568-570; 609 NW2d 177 (2000). OnFebruary 13, 1994 , a ma n named George Ome lenchuk suffered a heart attack at work. [1] Th e person who found him lying on the floor called the WarrenFire Department, which sent two trucks. Emergency personnel at the scene included two firefighters, three paramedics, and an emergency medical technician. Resuscitationefforts included insertion of an endotracheal tube. The defendants say that all three paramedics checked to make sure the tube was properly placed. However, when Mr. Omelenchuk arr ived a t the hospital, the tube was found to be in his esophagus, rather than his trachea. Mr. Omelenchuk was transported to a hospital that was located a cros s the street from his place of business. In the emergency ro om, further efforts were made to save his life. However, these were unsuccessful, and he was declared dead. The day after Mr. Omelenchuk died, plaintiffs Jeanne Omelenchuk and Kristin Omelenchuk were named co-personal representatives of the estate. [2] * * *

1 In the earlier appeal, as now, we were examinin g a n untried case. As we did two years ago, we take the facts as pres ented in plaintiffs’ complaint, though we have also examined other pleadings in the record for the purpose of providing a factual narrative.

2 As we noted in our first opinion, “[t]he plaintiffs’ complaint identifies Jeanne Omelenchuk as the decedent’s widow. However, the defendants dispute that assertion onthe basis of a 1992 judgment of divorce. Kristin Omelenchuk is the daughter of George and Jeanne Omelenchuk.” [461 Mich 569.] 2[T]he plaintiffs filed suit against the city of Warren and the Warren Fire Department on July 19, 1996. InMarch 1997, the defendants moved for summary disposition. MCR 2.116(C)(7). The motion listed several grounds, including governmental immunity and the statute of limitations. At the motion hearing, defense counsel argued th at t he defendants were immune because there was no showing that the emergency personnel had been grossly negligent and because the city could not be held vicariously liable. [3] In presenting these arguments, counsel cited MCL 333.20965 and 691.1407. Without explaining the precise statutory basis of its ruling, the circuit court granted summary disposition “[o]n the basis of governmental immunity.” The plaintiffs appealed. The Court of Appeals affirmed, [4] but not o n th e basis of immunity. Instead, the Court concluded that the plaintiffs’ complaint had not been timely filed. We vacated the judgment of the Court of Appeals, finding that plaintiffs had tim ely filed their complaint. We also remanded the case to the Court of Appeals for consideration of the immunity issue, which had formed the basis of the circuit court’s decision to grant summary disposition. 461 Mich 571­ 577. On remand, the Court of Appeals reversed the judgment of the circuit cour t be cause “defendants failed to produce any

3 It is agreed that the fire department is not a separate entity from which plaintiffs canrecover. Any recovery would be from the city of Warren.

4 Unpu blis hed opinion per curiam, issued April 6, 1999 (Docket No. 204098). 3documentary evidence to establish that the co nduc t of the responding paramedics did not constitute gross negligence.” Slip op at 1. 5 We granted defendants’ application for leave to appeal. II We review questions of statutory interpretationde novo. Cardinal Mooney High Sch v Mich High Sch Athletic Ass’n , 437 Mich 75, 80; 467 NW2d 21 (1991). III

A The issue presented in this case is one of statutory interpretation. Therefore, we must apply familiar statutory interpretationprinciples that were recently restated in Wickens v Oakwood Healthcare System , 465 Mich 53, 60; 631 NW2d 686 (2001): The paramount rule of statutory interpretation is t hat we are to effect the intent of the Legi slature. Tryc v Mich Veterans’ Facility , 451 Mich129, 135; 5 45 NW 2d 642 (1996). To do so, we beginwith the statute’s language. If the statute’s language is clear and unambiguous, we assume that the Legislature intended its plain mea ning, and we enforce the statute as writt en . People v Stone , 463 Mich 558, 562; 621 NW2d 702 (2001). In reviewing the statute’s language, every word should be givenmeaning, and we should avoid a constructionthat would render a nypart of the statute surplusage or nugatory. Altman v Meridian Twp , 439 Mich 623, 635; 487 NW2d 155 (1992).

5 Unpublished memorandum opinion, issued June 23, 2000 (Docket No. 204098). 4Inthis case, a pl ain re ading of the emergency medical services act (EMSA), MCL 333.20965, requires a conclusion that defendant, the city of Warren, is entitled to a grant of summary disposition on the basis of governmental immunity. The first su bsec tion of the EMSA, MCL 333.20965(1)(f), provides t hat an “authoritative governmental unit,” in this

case defendant, the city of Warren, is immune from suit on the basis of the acts of its emergency medical services workers in treating a patient “[u]nless the act or omission is the result of gross negligence or wilful misconduct . . . .” 6 Stated affirmatively, this means that the city can be sued under this provisionif the plaintiff can prove the city ’s e mergency medical workers were grossly negligent in treating a patient. Yet, this ab ility to sue is subsequently narrowed by MCL 333.20965(4). This section of the statute states: Subsections (1) and (3) do not limit immunity from liability otherwise provided by law for any of the persons listed in subsections (1) and (3). Because MCL 691.1407(1), which is part of the act commonly described as the governmental to rt liability act (GTLA), provides that a governmental entity, i ncluding of course defendant, the city of Warren, is “immune from tort liability if the governmental agency is engaged in the exerc ise or

6 That is the language of 1990 PA 179 (i n effect at the time of these events). The same phrase is found in 1997 PA 78, 1999 PA 199, and 2000 PA 375. 5discharge of a governmental function,” 7 MCL 333.20965(4) means t hat the city of Warren is immune in the discharge o f a governmental function. 8 B Notwithstanding the clarity that this analysis of the statute yields about its meaning, plaintiffs effectively ask us to depart from applying the plain language of the statute

on t he ground that the Legislature’s inclusion of any governmental entity by use of the phrase an “authoritative governmental unit” in MCL 333.20965(1) is rendered pointless if MCL 333.20965(4) means that such a governmental entity will always be immune from suit under the GTLA anyway. Thus, they argue, t o avoi d making the statute a futile exercise, or

7 That is the current language of the statute, as enacted in 1999 PA 241 and 2000 PA 318. Throughout this opinion, we will discuss the case in t erm s of the current statutory language. The version enacted in 1986 PA 175 was in effect at the time of these eve nts; it and 1996 PA 143 include a stylistic difference that does not affect the present issue.

8 While the plain language of the statute is dispositive, we note that the history underlying the adoption of MCL 333.20965(4) supports the conclus ion that it was adopted by the Legislature to make clear that MCL 333.20965 does not take away any immunity enjoyed by a governmental entity under the GTLA. In construing a predecessor version of the EMSA that did not include language like that of MCL 333.20965(4), this Court in Malco lm v East Detroit, 437 Mich 132; 468 NW2d 479 (1991), affirmed the decision of the Court of Appeals in that case that the prior version of the EMSA created an exception to governmental immunity in cases of gross negligence or wilful misconduct in t he pro vision of emergency medical services. 6nullity, we should ignore MCL 333.20965(4) so as to leave MCL 333.20965(1) with meaning. In other words, plaintiffs would have us hold that an authoritative governmental unit, such as defendant, the city of Warren, can be sued under the EMSA in

cases of gross neg lige nce by its emergency medical services workers, n otwi thstanding the immunity shield set forward in the same statute. We disagree that s uch an approach to the statute is proper. While plaintiffs are correct to the extent that we should strive to prevent any part of a sta tute from being a nullity, a thorough review of the statute at issue leads to the conclusion that th e re ading occasioned by the plain meaning analy sis do es not produce a nullity and, thus, this principle is not implicated in this case. No portion of the EMSA need be ignored to give the entire legislative enactment a coherent meaning. As we noted in Malcolm at 141, n9, the Legislature added language to the EMSA substantially the same as the present MCL 333.20965(4) in pro vidi ng that the EMSA did not limit liability otherwise provided by law, shortly after the Court of Appeals issued its opinion in Malcolm. Cl early, the purpose of adding this language was to make clear that the EMSA did not remove the immunity of a governmental entity under the GTLA.

7When read carefully, it is apparent that immunity under the GTLA for municipalities or other governmental entities is only given if they are engaged “in the exercise or discharge of a governmental function.” MCL 691.1407(1). Implicit then, and later made explicit in MCL 691.1413, is that the GTLA does not give immunity if the governmental function is proprietary. Thus, to particularize this principle, i f a governmental agency provides emergency medical services as par t of its governmental functions, it has immunity, but, if it does so as part of a proprietary function, it does not. Thus, when one understands that this act out line s with precision when suit

canbe brought against governments providing emergency medical services, it is clear that there is no nullity effected in the Legis latu re’s handling of this issue. This approach brings harmony to bothMCL 333.20965(1) and (4), as well as the GTLA, MCL 691.1407(1), and makes c lear that they are not in conflict. Inthe present case, it is beyond reasonable dispute, and thus we take judicial no tice, that the relevant activity of the city’s fire department was part of its discharge of its governmental functions, and not part of any p roprietary function. Accordingly, the city is immune from suit. IV The plain language of MCL 33 3.2096 5(4) compels the

8conclusionthat defendant is entitled to the gover nmental immunity granted in MCL 691.1407(1). Accordingly, we reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court, MCR 7.302(F)(1). C ORRIGAN , C.J., and WEAVER , K ELLY , T AYLOR , Y OUNG , and M ARKMAN , JJ., concurred with C AVANAGH , J.

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