Pearce v. Eaton Cnty. Rd. Comm'n

507 Mich. 183

968 N.W.2d 323

ESTATE OF Brendon PEARCE, BY Lynn PEARCE, Personal Representative, Plaintiff-Appellant,

v.EATON COUNTY ROAD COMMISSION, Defendant-Appellee,andEstate of Melissa Sue Musser, by Lawrence Benton, Personal Representative, and Patricia Jane Musser, Defendants.

Tim Edward Brugger II, Plaintiff-Appellee,

v.Midland County Board of Road Commissioners, Defendant-Appellant.

Docket No. 158069

Docket No. 158304

Calendar No. 1

Supreme Court of Michigan.

Argued November 12, 2020

Decided June 4, 2021

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

Gray, Sowle, Iacco & Richards, PC (by Patrick A. Richards ) for Tim E. Brugger II.

Smith Haughey Rice & Roegge, Grand Rapids (by Jon D. Vander Ploeg, D. Adam Tountas, and Jonathan B. Koch ) for the Eaton County Road Commission and the Midland County Board of Road Commissioners.

Mark Granzotto, PC, Royal Oak (by Mark Granzotto ) and Nolan & Shafer, PLC, Muskegon (by David P. Shafer ) for Scott Crouch, amicus curiae.

BEFORE THE ENTIRE BENCH (except Welch, J.)

McCormack, C.J.

In these consolidated cases, we consider whether the Court of Appeals correctly decided Streng v. Bd. of Mackinac Co. Rd. Comm'rs , 315 Mich. App. 449, 890 N.W.2d 680 (2016), and, if so, whether it should apply retroactively to all cases pending on appeal. In Streng , the Court of Appeals concluded that the presuit-notice requirements in the County Road Law, MCL 224.1 et seq. , apply when a plaintiff sues a county road commission under the "highway exception" to the governmental tort liability act (GTLA), MCL 691.1401 et seq. We hold that Streng was wrongly decided because in Brown v. Manistee Co. Rd. Comm. , 452 Mich. 354, 550 N.W.2d 215 (1996), this Court decided that the GTLA's notice provisions control, and we have not overruled that holding.

The Streng panel erred by failing to follow Brown . We therefore overrule Streng , vacate the decisions of the Court of Appeals, and remand these cases to the respective circuit courts for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

One hundred and ten days after plaintiff Tim Brugger was injured in an automobile accident, he served on the Midland County Board of Road Commissioners a notice of his intent to sue. Fewer than 60 days after Brendon Pearce was killed in an automobile accident, his mother, Lynn Pearce, acting as the personal representative of Brendon's estate, served on the Eaton County Road Commission a "Notice to Eaton County of Fatal Injuries due to Defective Highway." Both Brugger's and Pearce's notices complied with the GTLA, which requires people making claims under the highway exception to give notice of the alleged injury and defective highway within 120 days of the injury. MCL 691.1404(1). But neither notice was adequate under the County Road Law, because Brugger's notice was filed more than 60 days after the accident and Pearce did not serve her notice on the Eaton County Clerk. See MCL 224.21(3) (providing that "a board of county road commissioners is not liable for damages ... unless the person serves or causes to be served within 60 days after the occurrence of the injury a notice in writing upon the clerk and upon the chairperson of the board of county road commissioners").

While both cases proceeded in the trial courts, the Court of Appeals issued its decision in Streng . The Court of Appeals concluded that the County Road Law's 60-day provision governed the timing and content of a presuit notice directed to a county road commission rather than the GTLA's 120-day provision. Streng , 315 Mich. App. at 462-463, 890 N.W.2d 680.

Following that decision, the Midland County Road Commission relied on Streng to move for summary disposition in Brugger , arguing that Brugger's presuit notice was ineffective because it was not served within 60 days of Brugger's injury. The trial court denied the motion, concluding that Streng should apply prospectively only. In turn, the Eaton County Road Commission moved for summary disposition in Pearce , arguing that Pearce's presuit notice was insufficient because it was not served on the county clerk. The trial court denied that motion and, like the trial court in Brugger , concluded that Streng applied prospectively only. Both defendants appealed in the Court of Appeals the trial courts' denial of their motions for summary disposition.

The Brugger panel held that Streng applied prospectively only. Brugger v. Midland Co. Bd. of Rd. Comm'rs , 324 Mich. App. 307, 316, 920 N.W.2d 388 (2018). But the Pearce panel held that Streng applied retroactively to all cases. Pearce Estate v. Eaton Co. Rd. Comm. , 324 Mich. App. 549, 553, 922 N.W.2d 391 (2018). Both opinions were published.

This Court granted leave to resolve the conflict. Besides asking whether Streng applied retroactively, we asked the parties to brief whether Streng was correctly decided. See Brugger v. Midland Co. Bd. of Rd. Comm'rs , 505 Mich. 1033, 941 N.W.2d 379 (2020). We review these questions de novo. People v. Maxson , 482 Mich. 385, 387, 759 N.W.2d 817 (2008) (whether a court's ruling applies retroactively is a question reviewed de novo); Page v. Klein Tools, Inc. , 461 Mich. 703, 709, 610 N.W.2d 900 (2000) (questions of law are reviewed de novo).

II. THE EVOLUTION OF MICHIGAN'S PRESUIT-NOTICE DOCTRINE

This Court's presuit-notice jurisprudence is the foundation for determining whether the Court of Appeals correctly decided Streng . It is against this backdrop that the Streng panel concluded that it was free to decide which notice provision applied.

A. HOBBS

We begin with Hobbs v. Dep't of State Highway , 398 Mich. 90, 247 N.W.2d 754 (1976). There, the plaintiff failed to file her presuit notice within 120 days as required by the GTLA. Id. at 94, 247 N.W.2d 754. In deciding whether the plaintiff's claim was barred, the Hobbs Court relied on two cases: Reich v. State Hwy. Dep't , 386 Mich. 617, 194 N.W.2d 700 (1972), and Carver v. McKernan , 390 Mich. 96, 211 N.W.2d 24 (1973). In Reich , the Court held that an earlier version of the GTLA's notice provision violated equal-protection guarantees by treating plaintiffs injured by the government differently from plaintiffs injured by private tortfeasors. Reich , 386 Mich. at 623, 194 N.W.2d 700. But Carver —a case involving the Motor Vehicle Accident Claims Act—held that a presuit-notice requirement for claims against the government could be constitutional as long as the requirement served a legitimate purpose. Carver , 390 Mich. at 100, 211 N.W.2d 24. Carver observed that preventing prejudice to the government can be a legitimate purpose and held that a claim against the Motor Vehicle Accident Claims Fund could be dismissed on notice grounds only if the government showed that it was prejudiced by the plaintiff's inadequate notice. Id.

The Hobbs Court found Carver ’s rationale to be "equally applicable" to cases brought under the GTLA and concluded that actual prejudice to the government because of an untimely notice was "the only legitimate purpose" the Court could identify to uphold the GTLA's notice requirement. Hobbs , 398 Mich. at 96, 247 N.W.2d 754. Thus, Hobbs held, an untimely notice would not bar a claim under the GTLA absent a showing of actual prejudice. Id.

B. BROWN

Twenty years later, this Court revisited Hobbs in Brown v. Manistee Co. Rd. Comm. , 452 Mich. 354, 550 N.W.2d 215 (1996). In Brown , the plaintiff alleged that he was injured on a county road when he tried to avoid a pothole. Sixty-one days after the accident, the Manistee County Road Commission resurfaced the road, including the alleged pothole. Without filing a presuit notice, the plaintiff sued the road commission almost two years later. The road commission moved for summary disposition, arguing that the plaintiff violated the County Road Law's 60-day notice requirement set forth in MCL 224.21(3). Id. at 357, 550 N.W.2d 215. The trial court agreed, holding that MCL 224.21(3) governed and that the road commission was prejudiced by the plaintiff's failure to file a timely notice. Id. This seemed to be the type of prejudice the Hobbs Court envisioned; if the plaintiff had notified the road commission of his intent to sue during the 60-day period, the commission would have been able to preserve evidence about the pothole before it resurfaced the road.

The Court of Appeals affirmed. Brown v. Manistee Co. Rd. Comm. , 204 Mich. App. 574, 516 N.W.2d 121 (1994). First, the majority held that the County Road Law's notice provision controlled because it exclusively governed boards of county road commissioners. Id. at 577, 516 N.W.2d 121. Next, the majority, citing Hobbs , held that the road commission had been prejudiced by the lack of notice and thus the plaintiff's case had been properly dismissed. Id. at 577-578, 516 N.W.2d 121.

This Court granted leave to appeal to decide these questions:

1. Whether the plaintiff's action was governed by the County Road Law's 60-day notice provision, MCL 224.21(3), or the GTLA's 120-day notice provision, MCL 691.1404(1) ;

2. Whether Hobbs ’s rule requiring a showing of prejudice should be overruled; and

3. If Hobbs remained good law, whether there was a showing of prejudice in this case.

Brown , 452 Mich. at 356, 550 N.W.2d 215.

To the first question, Brown held that the GTLA's 120-day notice provision applies in a negligence action against a county road commission. Id. Because the Legislature intended "to provide uniform liability and immunity to both state and local governmental agencies," the Brown Court believed that having two distinct notice periods in two statutes was suspect. Id. at 361, 550 N.W.2d 215 (quotation marks and citation omitted). "By providing different notice periods," the Court explained, "the legislation divides injured persons into two classes: those injured on a defective road controlled by a county road commission and those injured on a defective road controlled by other governmental agencies." Id.

The...