Circuit Court LC No. 15-001226-NI, 16-000029-NI
Before: O'Connell, P.J., and K. F. Kelly and Riordan, JJ.
O'Connell, P. J.
consolidated cases 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.
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 over the speed limit. Pearce died at the scene of the
crash. Melissa died at the hospital. Grinage was seriously
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.
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 MCL 224.21(3)'s
provision that the notice should state
"substantially" the details of the injury. This
Court granted Pearce's motion to affirm. The Road
Commission sought leave to appeal in the Supreme Court, which
denied leave to appeal.
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
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.
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 documentary evidence and accepts
the plaintiffs' well-pleaded allegations as true unless
documentation contradicts those allegations.
Stevenson, 264 Mich.App. at 40.
agencies are generally immune from liability when they are
performing a government function, unless provided otherwise
by statute. MCL 691.1407(1); Streng, 315 Mich.App.
at 455. 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. MCL
224.21(3). 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.
2018, a panel of this Court concluded that Streng
applies prospectively only. Brugger v Midland Co Bd of Rd
Commr's_, Mich.App.; _ N.W.2d _ (2018) (Docket No.
337394). 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. In W A Foote Mem Hosp, 321
Mich.App. 159, 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