Harston v. Cnty. of Eaton

324 Mich.App. 549

922 N.W.2d 391

Ryan HARSTON, Plaintiff,

and

Joseph Grinage, Intervening Plaintiff-Appellee,

v.COUNTY OF EATON, Defendant,andEaton County Road Commission, Defendant-Appellant,

and

Estate of Melissa Sue Musser, by Lawrence Benton, Personal Representative, and Patricia Jane Musser, Defendants-Appellees.

Estate of Brendon Pearce, by Lynn Pearce, Personal Representative, Plaintiff-Appellee,

v.Eaton County Road Commission, Defendant-Appellant,andEstate of Melissa Sue Musser, by Lawrence Benton, Personal Representative, and Patricia Jane Musser, Defendants-Appellees.

No. 338981

No. 338990

Court of Appeals of Michigan.

Submitted June 5, 2018, at Lansing.

Decided June 7, 2018, 9:10 a.m.

The Sam Bernstein Law Firm (by Leonard E. Miller ) for Ryan Harston.

Smith Haughey Rice & Roegge (by Jon D. Vander Ploeg and D. Adam Tountas ) for the Eaton County Road Commission.

Collison & Collison (by Joseph T. Collison ) for the estate of Brendon Pearce.

Before: O’Connell, P.J., and K.F. Kelly and Riordan, JJ.

O’Connell, P.J.

These consolidated cases¹ arise out of a fatal car crash. Defendant Eaton County Road Commission appeals as of right the trial court’s order denying the Road Commission’s motion for summary disposition brought under MCR 2.116(C)(7) (immunity granted by law). The parties dispute the retroactivity of Streng v. Bd. of Mackinac Co. Rd. Comm’rs , 315 Mich. App. 449, 890 N.W.2d 680 (2016), holding that the notice provision at MCL 224.21(3) in the highway code, MCL 220.1 et seq ., rather than the notice provision at MCL 691.1404(1) in the governmental tort liability act (GTLA), MCL 691.1401 et seq ., governs a claim brought against a county road commission. We hold that Streng applies retroactively. We reverse the trial court’s order ruling otherwise, although we affirm the trial court’s ruling that the Road Commission was not required to assert defective notice as an affirmative defense, and we remand these cases for further proceedings consistent with this opinion.

I. BACKGROUND

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

On May 5, 2015, Lynn Pearce, the personal representative of the estate of Brendon Pearce, served a "Notice to Eaton County of Fatal Injuries due to Defective Highway" on the Road Commission. Grinage served a "Notice of Intent to File a Claim" on the Road Commission on July 2, 2015.

Grinage and Pearce each filed a complaint, alleging that the Musser defendants were negligent and that the Road Commission breached its statutory duty under MCL 691.1402 to maintain the roads. In Pearce’s case, the Road Commission first filed a motion for summary disposition under MCR 2.116(C)(7), arguing that Pearce’s notice was inadequate. The trial court disagreed and denied the motion.

The Road Commission appealed the trial court’s decision. Pearce then filed a motion to affirm on appeal, arguing that her notice was sufficient under Streng and the provision in MCL 224.21(3) that the notice should state "substantially" the details of the injury. This Court granted Pearce’s motion to affirm.² The Road Commission sought leave to appeal in the Supreme Court, which denied leave to appeal.³

After this Court granted Pearce’s motion to affirm, the Road Commission returned to the trial court and filed a motion for summary disposition in the consolidated cases, arguing that all three plaintiffs’ notices were insufficient under MCL 224.21(3). The parties disputed whether Streng applied retroactively and whether MCL 224.21(3), as applied in Streng , or MCL 691.1404(1), the GTLA notice provision, governed plaintiffs’ notices. Two of the plaintiffs further argued that the Road Commission waived its challenge to plaintiffs’ notices because it did not assert defective notice under MCL 224.21 as an affirmative defense.

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

II. DISCUSSION

This Court reviews a trial court’s ruling on a motion for summary disposition de novo. Stevenson v. Detroit , 264 Mich. App. 37, 40, 689 N.W.2d 239 (2004). This Court also reviews the legal question of retroactivity de novo. Johnson v. White , 261 Mich. App. 332, 336, 682 N.W.2d 505 (2004). Summary disposition is proper if a party has "immunity granted by law...." MCR 2.116(C)(7). When reviewing a motion for summary disposition under Subrule (C)(7), this Court reviews the documentary evidence and accepts the plaintiffs’ well-pleaded allegations as true unless documentation contradicts those allegations. Stevenson , 264 Mich. App. at 40, 689 N.W.2d 239.

Governmental agencies are generally immune from liability when they are performing a governmental function, unless otherwise provided by statute. MCL 691.1407(1) ; Streng , 315 Mich. App. at 455, 890 N.W.2d 680. The GTLA provides that the "liability, procedure, and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in ... MCL 224.21." MCL 691.1402(1). MCL 224.21(3) contains a notice provision requiring potential plaintiffs to give notice to the clerk and the chairperson of the board of county road commissioners within 60 days of the injury. For all other highway defect claims, the GTLA’s 120–day notice provision at MCL 691.1404(1) governs. In 2016, this Court held that MCL 224.21(3) governs claims brought against county road commissions. Streng , 315 Mich. App. at 462–463, 890 N.W.2d 680.

In May 2018, a panel of this Court concluded that Streng applies prospectively only.

Brugger v. Midland Co. Bd. of Rd. Commr’s , 324 Mich. App. 307, 920 N.W.2d 388 (2018). That decision, however, does not cite or discuss W A Foote Mem. Hosp. v. Mich. Assigned Claims Plan , 321 Mich. App. 159, 909 N.W.2d 38 (2017), issued in August 2017, soon after the trial court’s order in this case.⁴ In Foote , a panel of this Court addressed the retroactivity of a judicial interpretation of a statute. "A panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this rule." MCR 7.215(J)(1). Because Foote was published before Brugger and controls the issue in this case, we are required to follow W A Foote .⁵

Foote , 321 Mich. App. at 182–183, 909 N.W.2d 38, followed the retroactivity test announced in Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of Mich. , 492 Mich. 503, 536, 821 N.W.2d 117 (2012) :

" ‘The general principle is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former decision is bad law, but that it never was the law.’ " This principle does have an exception: When a

‘‘statute law has received a given construction by the courts of last resort and contracts have been made and rights acquired under and in accordance with such construction, such contracts may not be invalidated, nor vested rights acquired under them impaired, by a change of construction made by a subsequent decision.’’ [ Spectrum Health , 492 Mich. at 536, 821 N.W.2d 117, quoting Gentzler v. Constantine Village Clerk , 320 Mich. 394, 398, 31 N.W.2d 668 (1948) (citation omitted).]

The Foote Court noted that this rule only pertains to the retroactivity of decisions interpreting a statute, Foote , 321 Mich.App. at 190 n. 15, 909 N.W.2d 38, and concluded that the Spectrum Health test, the Supreme Court’s most recent resolution of a retroactivity question, overrides the "threshold" test and the "three-factor" test.⁶ Id . at 191, 909 N.W.2d 38. The threshold test asks whether the decision announces a new rule of law. Id . at 177, 909 N.W.2d 38. If so, the three-factor test considers "(1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactivity on the administration of justice." Id . at 193, 909 N.W.2d 38 (citation and quotation marks omitted).

Foote, id. at 189–195, 909 N.W.2d 38, applied the Spectrum Health test, the threshold test, and the three-factor test to conclude that a recent Supreme Court decision overruling prior precedent applied retroactively. Because the interpretation of statutory text was not new law, retroactivity was proper under the Spectrum Health test and the threshold test. Id . at 189–192, 909 N.W.2d 38. In addition, the exception in the Spectrum Health test did not apply because the plaintiff’s claim was based on the absence of a contract and the plaintiff’s claim did not arise from a Supreme Court case. Id . at 191 n. 17, 909 N.W.2d 38. Finally, applying the three-factor test, the Court concluded that the purpose of the "new" rule was to conform caselaw to the terms of the statute, noted that the parties had extensively relied on prior caselaw, but decided that promoting consistency in the law served the administration of justice. Id . at 193–195, 909 N.W.2d 38.

Foote co...