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Brugger v. Midland County Board of Road Commissioners

Court of Appeals of Michigan

May 15, 2018

TIM EDWARD BRUGGER II, Plaintiff-Appellee,

          Midland Circuit Court LC No. 15-002403-NO

          Before: Shapiro, P.J., and M. J. Kelly and O'Brien, JJ.

          SHAPIRO, P.J.

         Defendant, the Midland County Board of Road Commissioners, appeals from the trial court's denial of its motion for summary disposition. Because plaintiff's pre-suit notice complied with the applicable statute, we affirm.

         I. FACTS

         Plaintiff was injured on April 27, 2013, when he lost control of his motorcycle and crashed. He filed suit against the road commission asserting that the crash was the result of large potholes and uneven pavement on a road maintained by the commission. Governmental immunity does not shield a road commission from liability when it fails to maintain the road in a condition "reasonably safe and convenient for pubic travel." MCL 691.1402(1).

         On August 15, 2013, 110 days after the crash, plaintiff served defendant with pre-suit notice in accordance with MCL 691.1404 of the governmental tort liability act (GTLA), MCL 691.1401 et seq. After suit was filed, the case progressed in typical fashion until this Court issued the decision in Streng v Bd of Mackinac Rd Comm'rs, 315 Mich.App. 449; 890 N.W.2d 680 (2016). In Streng, 315 Mich.App. at 462-463, the Court concluded that MCL 224.21(3), rather than MCL 691.1404, controlled the timing and content of a pre-suit notice directed to a road commission. Following that decision, defendant, relying on Streng, filed a motion for summary disposition arguing that plaintiff's pre-suit notice-filed within the 120 days as set forth in the GTLA-was ineffective because it was not filed with the 60-day limit set forth in the county road law.

         The trial court denied the motion based on its conclusion that Streng should be given prospective application given that for decades, parties and the courts had understood that the requirements of the GTLA controlled. The trial court set forth its opinion from the bench, stating:

From the Court's perspective, I find that the Supreme Court in Rowland[1] specifically indicated that the GTLA is the notice provision for which road commission cases are subject to being followed and it had done that consistent with a fairly significant long line of cases, two of which they overruled.
However, it was consistent as to what was the proper statutory provision in the Court's perspective is that it was the application of that provision that was found to be inapplicable and, therefore, stricken by the Supreme Court in Rowland.
So, therefore, the Court finds that the circumstances in this case are in compliance with the requirements of the GTLA. And, therefore, that it is- summary disposition on that basis is denied.
However, I will also indicate if the analysis is, in fact, inaccurate and Streng was correctly decided . . . . I will find that based upon the criteria that was announced in Bahutski[2] [sic] as well as the other case that was cited in Rowland that it is, in fact, to be applied prospectively, because there had been no indication that the differentiation was appropriate to provide notice to claimants that were coming forward.
And that it would-it would, in fact, result in manifest injustice to deny claims that had been in compliance with what had been agreed upon as the proper notice provision, but there was a change, from the Court's perspective, a change in the application of that interpretation by the Court of Appeals['] decision and that occurred after the notice had already been provided in this case.
And, therefore, the Court's . . . opinion [is that] it does not prevent the application of the GTLA provision of 691.1404.

         Defendant appeals the trial court's ruling arguing that plaintiff's failure to file a notice consistent with the requirements of the county road law mandates dismissal.

         The question before us, therefore, is whether the decision in Streng should apply to all pending cases or only to those cases that arose after it was issued.

         II. ANALYSIS

         This case presents a highly unusual circumstance. The Legislature has enacted two inconsistent statutes governing pre-suit notice to road commissions. The GTLA requires that notice be provided within 120 days of the injury. MCL 224.21(3) in the county road law allows for a 60-day period. The statutes also vary somewhat as to the required content of the notice.

         In 1970, the Michigan Supreme Court held that that application of the 60-day notice provision in MCL 224.21(3) violated due process as to an incapacitated individual. Grubaugh v City of St. Johns, 384 Mich. 165; 180 N.W.2d 778 (1970). Grubaugh did not extend its conclusion to all claimants however, noting that that was a question for another day. In 1972, in Reich v State Hwy Dep't, 386 Mich. 617, 623-624; 194 N.W.2d 700 (1972), abrogated by Rowland v Washtenaw Co Rd Comm, 477 Mich. 222; 731 N.W.2d 41');">731 N.W.2d 41 (2007), the Supreme Court held that then-extant 60-day notice provision in MCL 691.1404 was unconstitutional on its face because it violated the equal protection clause by requiring that governmental tort-feasors be given notice where none is required for private tort-feasors.[3] Reich did not address MCL 224.31, but shortly after it was decided, we concluded in Crook v Patterson, 42 Mich.App. 241, 242; 201 N.W.2d 676 (1972), that the rationale in Reich applied to that statute as well, and struck down its notice requirement as unconstitutional. Crook was not appealed, and we can find no reported case thereafter, in which a court evaluated a claimant's notice of claim under MCL 224.21(3) until the decision in Streng.[4]

         Thus, Crook-decided 46 years ago-was the last time that the viability of the pre-suit notice provisions in MCL 224.21(3) was directly addressed. And since the Crook decision, our courts have routinely applied the 120-day notice requirement of the GTLA when the defendant is a county road commission without any discussion of MCL 224.21(3). See Streng, 315 Mich.App. at 460-461 n 4 (listing published and unpublished cases applying the GTLA's notice provision in actions against county road commissions). As was stated in Streng, 315 Mich.App. at 455, "appellate courts appear to have overlooked the time limit, substantive requirements, and service procedures required by MCL 224.21(3) when the responsible body is a county road commission."

         Plaintiff asks that we reject Streng and request a conflict panel per MCR 7.215(J)(2). We need not do so however, because we can decide this case on other grounds. We conclude that Streng should be applied prospectively as it is at variance from what was understood to be the law for at least 40 years, and plaintiff's failure to comply with MCL 224.21(3) was the result of "the preexisting jumble of convoluted caselaw through which the plaintiff was forced to navigate." Devillers v Auto Club Ins Ass'n, 473 Mich. 562, 590, n 65; 702 N.W.2d 539 (2005).

         The rules governing retroactivity are found in Pohutski v City of Allen Park, 465 Mich. 675, 695-696; 641 N.W.2d 219 (2002). In Pohutski, the Michigan Supreme Court acknowledged the general rule that judicial decisions are given full retroactive effect. Id. at 695. However, "a more flexible approach is warranted where injustice might result from full retroactivity." Id. at 696. Such injustice may result where a holding overrules settled precedent. Id. There are three factors to be weighed in determining whether retroactive application is appropriate:

(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. In the context of civil context, . . . this Court . . . recognized an additional threshold question whether the decision clearly established a new principle of law. [Pohuski, 465 Mich. at 696 (citations omitted).]

         We conclude that Streng should be given prospective-only application and that therefore, the 120-day notice provision of MCL 691.1404(1) is applicable to this case. Because our Supreme Court in Rowland did not explicitly overrule binding precedent establishing the 120-day notice requirement of the GTLA, as the governing provision in actions against county road commission defendants, and no case has been decided based upon MCL 224.21(3) for at least 46 years, we conclude that Streng effectively established a new rule of law departing from the longstanding application of MCL 691.1401 by Michigan courts. See Streng, 315 Mich.App. at 463; Bezeau v Palace Sports & Entertainment, Inc, 487 Mich. 455, 463; 795 N.W.2d 797 (2010).

         Turning to the three-part test, we first consider the purpose of the Streng holding, which was to correct an apparent error in interpreting a provision of the GTLA. As noted in Pohutski, 465 Mich. at 697, this purpose is served by prospective application as well as by retroactive application. Second, as previously discussed, there has been an extensive history of reliance on the 120-day GTLA notice provision, rather than MCL 224.21(3), in cases concerning county road commission defendants. The universal reliance on this many decade-long history also weighs in favor of prospective application. Moreover, prospective application would minimize the effect of this sudden departure from established precedent on the administration of justice.

         Also relevant is the fact that the confusion concerning the law was not created by plaintiff, but rather, by the Legislature and the Judiciary. The Legislature adopted two different sets of conflicting requirements as to the timing and content of the pre-suit notice. And for decades, the Judiciary has decided many pre-suit notice cases based upon the requirements of the GTLA, with no reference to MCL 224.21(3). The role of the government in creating confusion concerning a legal standard weighs strongly against sanctioning a party for acting in good faith based upon the apparent law. For instance, in Bryant v Oakpoint Villa Nursing Ctr, 471 Mich. 411, 417; 684 N.W.2d 864 (2004), plaintiff filed a suit against a health care provider sounding in ordinary negligence. The defendant argued that the two of plaintiff's claims sounded in medical malpractice, and so should be dismissed because although the action had been filed during the three-year limitation period for negligence cases, it had not been filed within the two-year limitation period for medical malpractice. Id. at 418. The Supreme Court concluded that the two counts in question sounded in medical malpractice and so "under ordinary circumstances . . . would be time-barred. Nevertheless, it did not dismiss them because "[t]he equities of [the] case . . . compel a different result." Id. at 432. The Court went on to state:

The distinction between actions sounding in medical malpractice and those sounding in ordinary negligence is one that has troubled the bench and bar in Michigan, even in the wake of our opinion in Dorris.[5] Plaintiff's failure to comply with the applicable statute of limitations is the product of an understandable confusion about the legal nature of her claim, rather than a negligent failure to preserve her rights. Accordingly, for this case and others now pending-that involve similar procedural circumstances, we conclude that plaintiff's medical malpractice claims may proceed to trial along with plaintiff's ordinary negligence claim. MCR 7.316(A)(7). [Bryant, 471 Mich.App. at 432.]

         There can be no doubt that the "procedural circumstances" in the instant case, are, as they were in Bryant, the result of "understandable confusion" resulting from conflicting actions by the Legislature and the courts. Accordingly, like the Supreme Court in Bryant, 471 Mich. at 432, we conclude that "plaintiff's . . . claims may proceed to trial." As discussed above, for decades, the Judiciary applied the 120-day notice provision of MCL 691.1404(1) in actions against county road commission defendants. See Streng, 315 Mich.App. at 460 n 3. ...

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