Brugger v. Midland Cnty. Bd. of Rd. Commissioners

• Decision Date: 15 May 2018
• Docket Number: No. 337394,337394
• Parties: Tim Edward BRUGGER II, Plaintiff-Appellee, v. MIDLAND COUNTY BOARD OF ROAD COMMISSIONERS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

324 Mich.App. 307

920 N.W.2d 388

Tim Edward BRUGGER II, Plaintiff-Appellee,

v.MIDLAND COUNTY BOARD OF ROAD COMMISSIONERS, Defendant-Appellant.

No. 337394

Court of Appeals of Michigan.

Submitted May 1, 2018, at Lansing.

Decided May 15, 2018, at 9:10 a.m.

Gray, Sowle & Iacco, PC (by Donald N. Sowle and Patrick A. Richards ) for plaintiff.

Smith Haughey Rice & Roegge (by Jon D. Vander Ploeg and D. Adam Tountas ) for defendant.

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

Shapiro, P.J.Defendant, the Midland County Board of Road Commissioners, appeals the trial court's denial of its motion for summary disposition. Because plaintiff's presuit notice complied with the applicable statute, we affirm.

I. FACTS

Plaintiff, Tim E. Brugger II, was injured on April 27, 2013, when he lost control of his motorcycle and crashed. He filed suit against defendant, asserting that the crash was the result of large potholes and uneven pavement on a road maintained by the Midland County Road 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 public travel." MCL 691.1402(1).

On August 15, 2013, 110 days after the crash, plaintiff served defendant with presuit 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 Co. Rd. Comm'rs , 315 Mich. App. 449, 890 N.W.2d 680 (2016). In Streng , id. at 462-463, 890 N.W.2d 680, the Court concluded that MCL 224.21(3) (a provision of the county road act), rather than MCL 691.1404, controlled the timing and content of a presuit notice directed to a road commission. Following that decision, defendant, relying on Streng , moved for summary disposition, arguing that plaintiff's presuit notice—filed within the 120 days as set forth in the GTLA—was ineffective because it was not filed within the 60-day limit set forth in the county road act.

The trial court denied the motion, concluding that Streng should be given prospective application because, for decades, parties and the courts had understood that the GTLA notice provision 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 the agreed—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 act 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 presuit notice to road commissions. The GTLA requires that notice be provided within 120 days of the injury. MCL 691.1404(1). In contrast, the county road act allows for a 60-day period. MCL 224.21(3). The statutes also vary somewhat regarding the required content of the notice.

In 1970, the Michigan Supreme Court held that the 60-day notice provision in MCL 224.21(3) violated due process as applied to an incapacitated individual. Grubaugh v. City of St. Johns , 384 Mich. 165, 176, 180 N.W.2d 778 (1970), abrogated by Rowland v. Washtenaw Co. Rd. Comm. , 477 Mich. 197, 731 N.W.2d 41 (2007). Grubaugh did not extend its conclusion to all claimants however, noting that was a question for another day. Id. at 176-177. In 1972, in Reich v. State Hwy. Dep't , 386 Mich. 617, 623-624, 194 N.W.2d 700 (1972), abrogated by Rowland , 477 Mich. 197, 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 governmental tortfeasors to be given notice when none was required for private tortfeasors.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 this Court struck down the MCL 222.421(3) 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 presuit notice provision 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 a defendant is a county road commission without any discussion of MCL 224.21(3). See Streng , 315 Mich. App. at 460 n. 4, 890 N.W.2d 680 (listing published and unpublished cases applying the GTLA notice provision in actions against county road commissions). As was stated in Streng , 315 Mich. App. at 463, 890 N.W.2d 680, "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 under MCR 7.215(J)(2) and (3). 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 case law 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, 641 N.W.2d 219. However, "a more flexible approach is warranted when injustice might result from full retroactivity." Id . at 696, 641 N.W.2d 219. 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 civil context, ... this Court ... recognized an additional threshold question whether the decision clearly established a new principle of law. [ Pohutski , 465 Mich. at 696, 641 N.W.2d 219 (citation 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 that established 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 on the basis of 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 691.1404(1) by Michigan courts. See Streng , 315 Mich. App. at 463, 890 N.W.2d 680 ; Bezeau v. Palace Sports & Entertainment, Inc. , 487 Mich. 455, 463, 795 N.W.2d 797 (2010) (opinion by WEAVER , J.).

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, 641 N.W.2d 219, this purpose is served by prospective 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 decades-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,...