                         STATE OF MICHIGAN

                         COURT OF APPEALS



RYAN HARSTON,                                       FOR PUBLICATION
                                                    June 7, 2018
            Plaintiff,                              9:10 a.m.

and

JOSEPH GRINAGE,

            Intervening Plaintiff-Appellee,

v                                                   No. 338981
                                                    Eaton Circuit Court
COUNTY OF EATON,                                    LC No. 15-001226-NI

            Defendant,

and

EATON COUNTY ROAD COMMISSION,

            Defendant-Appellant,

and

ESTATE OF MELISSA SUE MUSSER, by
LAWRENCE BENTON, Personal Representative,
and PATRICIA JANE MUSSER,

            Defendants-Appellees.


ESTATE OF BRENDON PEARCE, by LYNN
PEARCE, Personal Representative,

            Plaintiff-Appellee,

v                                                   No. 338990
                                                    Eaton Circuit Court
EATON COUNTY ROAD COMMISSION,                       LC No. 16-000029-NI


                                              -1-
              Defendant-Appellant,

and

ESTATE OF MELISSA SUE MUSSER, by
LAWRENCE BENTON, Personal Representative,
and PATRICIA JANE MUSSER,

              Defendants-Appellees.


Before: O’CONNELL, P.J., and K. F. KELLY and RIORDAN, JJ.

O’CONNELL, P. J.

         These consolidated cases1 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 NW2d 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.

                                      I. BACKGROUND

        On 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 injured.

       On May 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



1
  Harston v Eaton Co, unpublished order of the Court of Appeals, entered October 20, 2017
(Docket Nos. 338981 and 338990). In addition, by the parties’ stipulation, we previously
dismissed Ryan Harston as a plaintiff. Harston v Eaton Co, unpublished order of the Court of
Appeals, entered May 25, 2018 (Docket No. 338981).


                                              -2-
Road Commission. Grinage served a “Notice of Intent to File a Claim” on the Road
Commission on July 2, 2015.

        Grinage 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. 2 The Road Commission sought leave
to appeal in the Supreme Court, which denied leave to appeal.3

        After 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 defense.

        The 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.

                                       II. DISCUSSION

       This Court reviews a trial court’s ruling on a motion for summary disposition de novo.
Stevenson v Detroit, 264 Mich App 37, 40; 689 NW2d 239 (2004). This Court also reviews the
legal question of retroactivity de novo. Johnson v White, 261 Mich App 332, 336; 682 NW2d
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.

      Governmental 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



2
 Estate of Brendon Pearce v Eaton Co Rd Comm, unpublished order of the Court of Appeals,
entered October 25, 2016 (Docket No. 333387).
3
    Pearce v Eaton Co Rd Comm, 500 Mich 1021 (2017).


                                               -3-
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.

        In May 2018, a panel of this Court concluded that Streng applies prospectively only.
Brugger v Midland Co Bd of Rd Commr’s, ___ Mich App ___; ____ NW2d ____ (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 NW2d 38 (2017), issued in August 2017, soon
after the trial court’s order in this case. 4 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 special panel of the Court of Appeals as provided in this rule.” MCR
7.215(J). Because W A Foote was published before Brugger and controls the issue in this case,
we are required to follow W A Foote.5

      W A Foote Mem Hosp, 321 Mich App at 182-183, followed the retroactivity test
announced in Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich, 492 Mich 503, 536;
821 NW2d 117 (2012):

       “ ‘The general principle is that a decision of a court of supreme jurisdiction
       overruling a former decision is retrospective in its operation, and the effect is not
       that the former decision is bad law, but that it never was the law.’ ” This principle
       does have an exception: When a

               statute law has received a given construction by the courts of last
               resort and contracts have been made and rights acquired under and
               in accordance with such construction, such contracts may not be
               invalidated, nor vested rights acquired under them impaired, by a
               change of construction made by a subsequent decision. [Spectrum
               Health, 492 Mich at 536, quoting Gentzler v Constantine Village
               Clerk, 320 Mich 394, 398; 31 NW2d 668 (1948).]

The Foote Court noted that this rule only pertains to the retroactivity of decisions interpreting a
statute, id. at 190 n 15, and concluded that the Spectrum Health test, the Supreme Court’s most


4
 At oral arguments in the present case, counsel for appellant stated that he had informed the
Brugger panel that W A Foote controlled the outcome of the Brugger case.
5
  Even if we were not required to follow W A Foote, we would agree with Judge O’Brien’s
excellent dissent in Brugger.


                                                -4-
recent resolution of a retroactivity question, overrides the “threshold” test and the “three part”
test.6 Id. at 191. The threshold test asks whether the decision announces a new rule of law. Id.
at 177. If so, the three-part test considers “(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.” Id. at 193 (citation and quotation marks omitted).

        W A Foote Mem Hosp, 321 Mich App at 189-195, applied the Spectrum Health test, the
threshold test, and the three-part test to conclude that a recent Supreme Court decision overruling
prior precedent applied retroactively. Because the interpretation of statutory text was not new
law, retroactivity was proper under the Spectrum Health test and the threshold test. Id. at 189-
192. In addition, the exception in the Spectrum Health test did not apply because the plaintiff’s
claim was based on the absence of a contract and the plaintiff’s claim did not arise from a
Supreme Court case. Id. at 191 n 17. Finally, applying the three-factor test, the Court concluded
that the purpose of the “new” rule was to conform caselaw to the terms of the statute, noted that
parties had extensively relied on prior caselaw, but decided that promoting consistency in the law
served the administration of justice. Id. at 193-195.

        W A Foote Mem Hosp controls this case in all respects. First, Streng followed the
Supreme Court’s decision in Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731 NW2d 41
(2007), and interpreted the text of MCL 224.21, so Streng is not new law.7 For the same reason,
Streng is retroactive under the threshold test. In addition, plaintiffs’ claims do not meet the
exception in the Spectrum Health retroactivity test. The parties’ dispute in this case does not
arise out of a contract, and plaintiffs’ claims do not find support in Rowland.8



6
  In response to plaintiffs’ reliance on Pohutski v City of Allen Park, 465 Mich 675; 641 NW2d
219 (2002), and Tebo v Havlik, 418 Mich 350; 343 NW2d 181 (1984), W A Foote Mem Hosp,
321 Mich App at 186 n 14, 195 n 19, noted that the Supreme Court effectively repudiated
Pohutski and undermined Tebo in Spectrum Health. In addition, the Supreme Court has
repeatedly demonstrated that interpreting the straightforward statutory text merits overruling
prior precedent and applying its interpretation retroactively. See Rowland, 477 Mich at 220-222
(applying its decision retroactively to restore the law to what was mandated by the statutory
text); Devillers v Auto Club Ins Ass’n, 473 Mich 562, 587; 702 NW2d 539 (2005) (same); see
also Wayne Co v Hathcock, 471 Mich 445, 483-484; 684 NW2d 765 (2004) (applying its
decision retroactively to give effect to a constitutional provision).
7
  Even if we were not bound to follow W A Foote, we note that MCL 224.21(3) has always been
the law and is currently the law. No changes have been made to this statute, so we are required
to apply it as written. That is, the issue in this case concerns statutory interpretation, not
retroactivity.
8
  Streng addressed this concern by noting that Rowland discarded the entirety of the analysis in
Brown v Manistee Co Rd Comm, 452 Mich 354, 361-364; 550 NW2d 215 (1996), overruled by
Rowland, 477 Mich 197, as “ ‘deeply flawed[,]’ ” Rowland did not mention MCL 224.21 or
discuss the notice deadline, and Rowland did not approve or disapprove of the use of one notice
provision over another. Streng, 315 Mich App at 459-460.


                                                -5-
        Streng is also retroactive using the three-part test. The trial court and plaintiffs
championed widespread reliance on the “old” rule and the unjust effect of applying Streng
retroactively. W A Foote Mem Hosp, 321 Mich App at 195, decided that the proper, consistent
interpretation of the statutory text outweighed these reliance concerns. Further, the cause of
action in this case can defeat governmental immunity, which is especially significant for
enforcing only those causes of actions enacted by the Legislature, as noted in the context of no-
fault benefits in W A Foote Mem Hosp, 321 Mich App at 192. Accordingly, the trial court erred
by ruling that Streng did not apply retroactively. 9

        Applying Streng and MCL 224.21(3), plaintiffs’ notices were noncompliant. MCL
224.21(3) requires service of the notice of defect on the Road Commission and the County Clerk
within 60 days of the accident. MCL 224.21(3); Streng, 315 Mich App at 466-467. It is not
clear if Grinage served his notice on the County Clerk. Even if he did, his notice was deficient
because he, too, served it more than sixty days after the accident. Pearce’s notice was defective
because she only served it on the Road Commission, not the County Clerk, even though the
notice was timely. Therefore, the trial court erred by measuring plaintiffs’ notices against MCL
691.1404(1) and finding them sufficient.

        Finally, the trial court determined that the Road Commission was not required to plead
defective notice under MCL 224.21 as an affirmative defense. We agree. Governmental
immunity is not an affirmative defense. Kendricks v Rehfield, 270 Mich App 679, 681; 716
NW2d 623 (2006). Rather, it is a characteristic of government, and a plaintiff must plead in
avoidance of governmental immunity. Mack v Detroit, 467 Mich 186, 203; 649 NW2d 47
(2002).

        The notice provision is an integral component of defeating governmental immunity.
Interpreting the effect of a notice provision at MCL 600.6431, the Supreme Court held that this
provision “establishes conditions precedent for avoiding the governmental immunity conferred
by the GTLA, which expressly incorporates MCL 600.6431.” Fairley v Dep’t of Corrections,
497 Mich 290, 297; 871 NW2d 129 (2015). Similarly, MCL 691.1402(1) in the GTLA refers to
MCL 224.21 for claims brought against county road commissions, and this section includes the
notice provision at MCL 224.21(3). Therefore, MCL 224.21(3)’s notice requirements, including
the deadline and service requirements, are a component of pleading a claim in avoidance of
governmental immunity. Accordingly, the burden was on plaintiffs to meet the requirements for
bringing a claim against the Road Commission. The trial court correctly rejected the argument
that the Road Commission waived its challenge to the sufficiency of plaintiffs’ notices by failing
to plead defective notice as an affirmative defense.



9
   Pearce maintains that the Road Commission has taken inconsistent positions on the
applicability of Streng. Pearce is correct that the Road Commission strenuously objected to
Streng as wrongly decided in Pearce’s prior appeal, but Pearce invoked Streng to argue that her
notice was substantially compliant. When this Court granted Pearce’s motion to affirm, the Road
Commission reasonably understood Streng to be controlling. Therefore, we are not concerned
by the Road Commission’s apparent about-face.


                                               -6-
                                      III. CONCLUSION

        We reverse the trial court’s denial of the Road Commission’s motion for summary
disposition. We hold that Streng applies retroactively and that plaintiffs’ notices were deficient
under MCL 224.21(3). We affirm the trial court’s ruling that the Road Commission was not
required to plead defective notice as an affirmative defense. Accordingly, we direct the trial
court to grant the Road Commission’s motion for summary disposition.

       Affirmed in part, reversed in part, and remanded for proceedings consistent with this
opinion. We do not retain jurisdiction.

                                                            /s/ Peter D. O’Connell
                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Michael J. Riordan




                                               -7-
