Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  April 24, 2020                                                                Bridget M. McCormack,
                                                                                              Chief Justice

  158069                                                                             David F. Viviano,
                                                                                     Chief Justice Pro Tem

                                                                                   Stephen J. Markman
                                                                                        Brian K. Zahra
  LYNN PEARCE, Personal Representative of the                                     Richard H. Bernstein
  Estate of BRENDON PEARCE, Deceased,                                             Elizabeth T. Clement
               Plaintiff-Appellant,                                               Megan K. Cavanagh,
                                                                                                   Justices

  v                                                      SC: 158069
                                                         COA: 338990
                                                         Eaton CC: 16-000029-NI
  EATON COUNTY ROAD COMMISSION,
           Defendant-Appellee,
  and
  LAWRENCE BENTON, Personal Representative
  of the Estate of MELISSA SUE MUSSER,
  Deceased, and PATRICIA JANE MUSSER,
                 Defendants.

  _________________________________________/

          By order of December 4, 2018, the application for leave to appeal the June 7, 2018
  judgment of the Court of Appeals was held in abeyance pending the decision in W A
  Foote Mem Hosp v Mich Assigned Claims Plan (Docket No. 156622). On order of the
  Court, the case having been decided on October 25, 2019, 504 Mich 985 (2019), the
  application is again considered, and it is GRANTED. The parties shall address: (1)
  whether Streng v Bd of Mackinac Co Rd Comm’rs, 315 Mich App 449 (2016), lv den 500
  Mich 919 (2016), was correctly decided, and if so (2) whether Streng “clearly established
  a new principle of law” and thereby satisfied the threshold question for retroactivity set
  forth in Pohutski v City of Allen Park, 465 Mich 675, 696 (2002), compare Pohutski, 465
  Mich at 696-697 (citations omitted) (“Although this opinion gives effect to the intent of
  the Legislature that may be reasonably be inferred from the text of the governing
  statutory provisions, practically speaking our holding is akin to the announcement of a
  new rule of law, given the erroneous interpretations set forth in [Hadfield v Oakland Co
  Drain Comm’r, 430 Mich 139 (1988) and [Li v Feldt (After Remand), 434 Mich 585
  (1990)].”) with Wayne Co v Hathcock, 471 Mich 445, 484 (2004) (“Our decision today
  [overruling Poletown Neighborhood Council v Detroit, 410 Mich 616 (1981)] does not
  announce a new rule of law, but rather returns our law to that which existed before
  Poletown and which has been mandated by our Constitution since it took effect in
  1963.”). See also Chevron Oil v Huson, 404 US 97, 106 (1971) (citations omitted)
  (holding that a decision establishes a new principle of law, such that it may be applied
                                                                                                                2

retroactively, if it “overrul[es] clear past precedent on which litigants may have
relied . . .”); and if so (3) whether Streng should be applied retroactively under the “three
factor test” set forth in Pohutski.

       We further ORDER that this case be argued and submitted to the Court together
with the case of Brugger v Midland Co Bd of Road Commissioners, Docket No. 158304,
at such future session of the Court as both cases are ready for submission.

       The total time allowed for oral argument shall be 60 minutes: 30 minutes for
appellants and 30 minutes for appellees, to be divided at their discretion. MCR
7.314(B)(1).

      The Negligence Law Section of the State Bar of Michigan, Michigan Association
of Counties, and Michigan Municipal League are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issues presented in this
case may move the Court for permission to file briefs amicus curiae. Motions for
permission to file briefs amicus curiae and briefs amicus curiae regarding these cases
should be filed in Estate of Brendon Pearce v Eaton County Road Commission, Docket
No. 158069, only and served on the parties in both cases.

       MARKMAN J. (concurring).

        I concur with our orders granting leave to appeal in this case and in Brugger v
Midland Co Bd of Rd Comm’rs, Docket No. 158304. I write separately only to encourage
the parties and any amici, when addressing the issue of the retroactivity of Streng v Bd of
Mackinac Co Rd Comm’rs, 315 Mich App 449 (2016), lv den 500 Mich 919 (2016), to
address the relevance of the tension identified in Pohutski v City of Allen Park, 465 Mich
675 (2002), between “the general rule . . . that judicial decisions are given full retroactive
effect” and the exception to that rule of “a more flexible approach . . . where injustice
might result from full retroactivity [of a corrected interpretation of the law],” id. at 695-
696, as well as what consideration should be given to any asserted “injustice” that might
result to the prevailing party in cases in which the new rule is applied prospectively only.




                          I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          April 24, 2020
       a0421
                                                                              Clerk
