Stein v. Southeastern Michigan Family Planning Project, Inc.

• Decision Date: 26 May 1989
• Docket Number: Docket Nos. 80388,80695
• Citation: 438 N.W.2d 76,432 Mich. 198,54 Ed. Law Rep. 1332
• Parties: Catherine STEIN a/k/a Catherine Sudut and Michael Stein, Plaintiffs-Appellants, v. SOUTHEASTERN MICHIGAN FAMILY PLANNING PROJECT, INC., a Michigan nonprofit corporation, and P. Eastin, R.N., Defendants, and Wayne County General Hospital, Defendants-Appellees. James M. RIFKIN and Leonard Eston, Copersonal Representatives of the Estate of Richard Philman Brown, Deceased, Plaintiffs-Appellees, v. UNIVERSITY OF MICHIGAN HOSPITAL, Defendant-Appellant. 432 Mich. 198, 438 N.W.2d 76, 54 Ed. Law Rep. 1332
• Court: Michigan Supreme Court

Page 76

438 N.W.2d 76

Catherine STEIN a/k/a Catherine Sudut and Michael Stein, Plaintiffs-Appellants, v. SOUTHEASTERN MICHIGAN FAMILY PLANNING PROJECT, INC., a

Michigan nonprofit corporation, and P. Eastin,

R.N., Defendants,

and

Wayne County General Hospital, Defendants-Appellees.

James M. RIFKIN and Leonard Eston, Copersonal

Representatives of the Estate of Richard Philman

Brown, Deceased, Plaintiffs-Appellees, v. UNIVERSITY OF MICHIGAN HOSPITAL, Defendant-Appellant.

Docket Nos. 80388, 80695.

432 Mich. 198, 438 N.W.2d 76, 54 Ed. Law Rep. 1332

Supreme Court of Michigan.

Argued Jan. 7, 1988.

Decided April 3, 1989.

Rehearing Denied May 26, 1989.

[432 MICH 200] Sommers, Schwartz, Silver & Schwartz, P.C. by Richard D. Toth, Southfield, for plaintiffs-appellants.

Samuel A. Turner, Corp. Counsel, County of Wayne by Alan B. Havis, Asst. Corp. Counsel, Detroit, for defendant-appellee Wayne County Gen. Hosp.

Rifkin and Kingsley, P.C. by Lori D. Weisberg, Rebecca A. Roberts, Southfield, for plaintiff in No. 80695.

Plunkett & Cooney, P.C. by D.J. Watters, Christine D. Oldani, Detroit, for defendant-appellant University of Michigan Hosp.

Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen and Bartnick by Richard E. Shaw, Detroit, for amicus curiae the Michigan Trial Lawyers Ass'n.

Cozadd, Shangle, Smith & Andrews by John R. Day, Dearborn, for amicus curiae Peoples Community Hosp. Authority.

Michigan Defense Trial Counsel, Neal & Lengauer, P.C. by Stephanie A. Nelson, Flint, amicus curiae.

OPINION

PER CURIAM.

This Court held in Hyde v. Univ. of Michigan Bd. of Regents, 426 Mich. 223, 393 N.W.2d 847 (1986), that the diagnosis treatment, and care of patients at a public general hospital or medical facility, when expressly or impliedly mandated or authorized by the constitution, statute, or other law, is a governmental function and that to the extent Parker v. Highland Park, 404 Mich. 183, 273 N.W.2d 413 (1978), ¹ had ruled such activity does not constitute a governmental function, it was impliedly overruled by Ross v. Consumers Power Co (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984). ²

The Court in Hyde then declared that the new rule of Ross would apply to all cases commenced after January 22, 1985, when Ross was decided, and to those cases then pending either in trial or appellate courts in which a governmental immunity issue "was properly raised and preserved." ³

Hyde thus stated a rule of "limited" retroactivity. The new rule would apply only in cases commenced after the overruling decision and in pending cases where the issue had been raised and preserved.

The cases consolidated in this appeal were filed during the interim between decisions in Parker and Ross and were disposed of at the trial level prior to our decision in Hyde. The procedural histories involved are best understood through the following sequence:

A. Stein

December 27, 1978 Parker decided.

February 21, 1984 Plaintiffs Stein filed a complaint against defendants Southeastern Michigan Family Planning Project, P. Eastin, and Wayne County General Hospital alleging medical malpractice.

January 22, 1985 Ross released.

July 1, 1985 Defendant Wayne County General Hospital moved for summary disposition on the basis of governmental immunity.

November 8, 1985 Defendant hospital was granted summary disposition.

October 3, 1986 Hyde decided.

February 6, 1987 The Court of Appeals affirmed the order granting summary disposition. 158 Mich.App. 702, 405 N.W.2d 147 (1987).

B. Rifkin

December 27, 1978 Parker decided.

August 20, 1981 Plaintiffs filed a complaint against defendant University of Michigan Hospital, alleging medical malpractice.

January 22, 1985 Ross released.

April 11, 1985 Defendant moved for summary disposition on the basis of governmental immunity.

August 7, 1985 Defendant was granted summary disposition.

October 3, 1986 Hyde decided.

December 30, 1986 The Court of Appeals reversed the order granting summary disposition and remanded the case for further proceedings. 159 Mich.App. 254, 406 N.W.2d 202 (1986).

The question presented in these cases is whether a hospital owned by a governmental entity that had not challenged the correctness of this Court's decision in Parker or raised a defense of governmental immunity before Ross was decided and, after Ross was decided, for the first time filed a motion for summary disposition on the basis of Ross, raised and preserved a challenge to Parker.

We answer the question directly. A hospital owned by a governmental entity that did nothing to raise a challenge to Parker or assert a defense of governmental immunity before Ross was decided had not raised and preserved the issue.

The overruling of Parker created a window of immunity for causes of action that accrued before July 1, 1986, the effective date of 1986 P.A. 175.

Act 175, providing that the governmental tort liability act "does not grant immunity to a governmental agency with respect to the ownership or operation of a hospital," M.C.L. Sec. 691.1407(4); M.S.A. Sec. 3.996(107)(4), adopted the concept expressed in Parker that a governmental agency operating a general hospital was subject to tort liability.

This Court, in providing in Hyde that the overruling of Parker would be accorded limited retroactivity, limited the window of immunity. Our clarification of this today accords with the clearly expressed intent of the Legislature.

We reverse the decision of the Court of Appeals in Stein and affirm the decision in Rifkin.

RILEY, C.J., and CAVANAGH, LEVIN, BRICKLEY, ARCHER and BOYLE, JJ., concur.

GRIFFIN, Justice (dissenting).

Although I was not a member of this Court when Hyde v. Univ. of Mich. Bd. of Regents, 426 Mich. 223, 393 N.W.2d 847 (1986), was decided, I find it difficult to believe that a majority of the Hyde Court would have intended this result.

The Court's holding today penalizes these defendants because, prior to Ross v. Consumers Power Co (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), they did not anticipate the decisions in Ross and Hyde, nor did they divine the interpretation handed down today as to the meaning of Hyde. These defendants lose because they did not have the clairvoyance prior to Ross to move for summary disposition or raise immunity as an affirmative defense.

I find this particularly disturbing in light of the acknowledgment by the Ross Court itself that "[s]overeign and governmental immunity are not affirmative defenses, but characteristics of government which prevent imposition of tort liability upon the governmental agency." Further, in order to state a cause of action against a governmental agency, "plaintiffs must plead facts in their complaint in avoidance of immunity...." 420 Mich. at 621, n. 34, 363 N.W.2d 641.

The same point was reiterated by the Hyde Court, which recognized:

"Unlike other claims of immunity, sovereign and governmental immunity are not affirmative defenses, but characteristics of government which prevent imposition of tort liability. Ross, supra; Galli [v. Kirkeby, 398 Mich. 527, 541, n. 5, 248 N.W.2d 149 (1976) ]; McCann v. Michigan, 398 Mich 65, 77, n 1; 247 NW2d 521 (1976). Compare MCR 2.111(F)(3)(a)." 426 Mich. at 261, n. 35, 393 N.W.2d 847.

Earlier, in McCann, Justice Ryan had provided this explanation:

"At first impression, it may appear appropriate to characterize governmental immunity as an affirmative defense. However, a careful analysis of the doctrine as construed by this Court indicates that, to plead a cause of action against the state or its agencies, the plaintiff must plead and prove facts in avoidance of immunity. In McNair v State Hwy Dep't, 305 Mich 181, 187, 9 NW2d 52 (1943), for instance we held that the state's failure to plead sovereign immunity will not constitute a waiver because 'failure to plead the defense of sovereign immunity cannot create a cause of action where none existed before.' In Penix v City of St. Johns, 354 Mich 259, 92 NW2d 332 (1958), we held that a complaint which contained no averment that the defendant was engaging in a proprietary function, and in which in fact alleged activity to which governmental immunity applied, stated no cause of action against the municipality. Thus, although we have on occasion referred to governmental immunity as a defense, see McNair v State Hwy Dep't; Martinson v Alpena, 328 Mich 595, 599, 44 NW2d 148 (1950), our past treatment of the doctrine indicates that its inapplicability is an element of a plaintiff's case against the state." 398 Mich. at 77, n. 1, 247 N.W.2d 521.

Moreover, this Court has held that the authority to waive a governmental body's sovereign or governmental immunity rests only with the Legislature. Benson v. State Hosp. Comm., 316 Mich. 66, 25 N.W.2d 112 (1946). ¹ See also McNair v. State Hwy. Dep't, 305 Mich. 181, 187, 9 N.W.2d 52 (1943), wherein we said,

"If, as we hold, such defense [governmental immunity] can only be waived by legislative action, then it necessarily follows that the attorney general, an officer of the State of Michigan, may not waive such defense. Moreover, the failure to plead the defense of sovereign immunity cannot create a cause of action where none existed before." (Emphasis added.)

It might be argued that pleading requirements were changed by a court rule amendment effective March 1, 1985, which added "immunity granted by law" to the list of affirmative defenses. MCR 2.111(F)(3)(a)....