                           STATE OF MICHIGAN

                            COURT OF APPEALS


TIM EDWARD BRUGGER II,                                              FOR PUBLICATION
                                                                    May 15, 2018
                Plaintiff-Appellee,                                 9:10 a.m.

v                                                                   No. 337394
                                                                    Midland Circuit Court
MIDLAND COUNTY BOARD OF ROAD                                        LC No. 15-002403-NO
COMMISSIONERS,

                Defendant-Appellant.


Before: SHAPIRO, P.J., and M. J. KELLY and O’BRIEN, JJ.

SHAPIRO, P.J.

       Defendant, the Midland County Board of Road Commissioners, appeals from the trial
court’s denial of its motion for summary disposition. Because plaintiff’s pre-suit notice
complied with the applicable statute, we affirm.

                                            I. FACTS

       Plaintiff was injured on April 27, 2013, when he lost control of his motorcycle and
crashed. He filed suit against the road commission asserting that the crash was the result of large
potholes and uneven pavement on a road maintained by the 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 pubic travel.” MCL 691.1402(1).

        On August 15, 2013, 110 days after the crash, plaintiff served defendant with pre-suit
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 Rd Comm’rs, 315 Mich App 449; 890 NW2d 680
(2016). In Streng, 315 Mich App at 462-463, the Court concluded that MCL 224.21(3), rather
than MCL 691.1404, controlled the timing and content of a pre-suit notice directed to a road
commission. Following that decision, defendant, relying on Streng, filed a motion for summary
disposition arguing that plaintiff’s pre-suit notice—filed within the 120 days as set forth in the
GTLA—was ineffective because it was not filed with the 60-day limit set forth in the county
road law.

       The trial court denied the motion based on its conclusion that Streng should be given
prospective application given that for decades, parties and the courts had understood that the


                                                -1-
requirements of the GTLA 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 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 law 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.



1
    Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731 NW2d 41 (2007).
2
 Apparently, the trial court was referring to Pohutski v City of Allen Park, 465 Mich 675; 641
NW2d 219 (2002).


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                                         II. ANALYSIS

        This case presents a highly unusual circumstance. The Legislature has enacted two
inconsistent statutes governing pre-suit notice to road commissions. The GTLA requires that
notice be provided within 120 days of the injury. MCL 224.21(3) in the county road law allows
for a 60-day period. The statutes also vary somewhat as to the required content of the notice.

         In 1970, the Michigan Supreme Court held that that application of the 60-day notice
provision in MCL 224.21(3) violated due process as to an incapacitated individual. Grubaugh v
City of St. Johns, 384 Mich 165; 180 NW2d 778 (1970). Grubaugh did not extend its conclusion
to all claimants however, noting that that was a question for another day. In 1972, in Reich v
State Hwy Dep’t, 386 Mich 617, 623-624; 194 NW2d 700 (1972), abrogated by Rowland v
Washtenaw Co Rd Comm, 477 Mich 222; 731 NW2d 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 that governmental tort-feasors be given notice
where none is required for private tort-feasors.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 NW2d 676
(1972), that the rationale in Reich applied to that statute as well, and struck down its 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



3
  The constitutionality of the GTLA notice provision was again addressed in Hobbs v Mich State
Hwy Dept, 398 Mich 90; 247 NW2d 754 (1976). By the time that case was heard, the
Legislature had amended MCL 691.1404 so as to provide for a 120-day notice period, and the
Supreme Court in Carver v McKernan, 390 Mich 96; 211 NW2d 24 (1973), had upheld a 120-
day notice provision in a different statute. In Hobbs, 398 Mich at 96, the Supreme Court
overruled Reich’s absolute bar on notice provisions and held that the 120-day notice provision
was constitutional in cases where the government could show prejudice. In 1996, the Supreme
Court decided Brown v Manistee Co Rd Comm, 452 Mich 354; 550 NW2d 215. In that case, the
Supreme Court reiterated that the 120-day notice provision in the GTLA was constitutional so
long as prejudice could be shown, but that the 60 day notice provision in MCL 224.21was
unconstitutional. Brown, 452 Mich at 363-364. Finally, in Rowland v Washtenaw Co Rd Comm,
477 Mich 197, 200-201; 731 NW2d 41 (2007), the Supreme Court overruled Hobbs and Brown,
and held that the 120-day notice provision in the GTLA was constitutional and that no prejudice
need be shown by the government when a claimant failed to satisfy it.
4
  Rowland, while overruling Brown and Reich, addressed only the GTLA notice provision
holding and made no mention of MCL 224.21(3) or Crook. It considered only whether the
plaintiff had complied with the 120-notice provision of the GTLA. With Reich overruled,
Crook’s holding striking down MCL 224.21(3) is without support and was implicitly overruled.
However, it was not explicitly overruled, which may explain why until Streng, the notice
requirement in MCL 224.21(3) remained dormant, if not dead, in the eyes of bench and bar.




                                                -3-
        Thus, Crook—decided 46 years ago—was the last time that the viability of the pre-suit
notice provisions 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 the defendant is
a county road commission without any discussion of MCL 224.21(3). See Streng, 315 Mich App
at 460-461 n 4 (listing published and unpublished cases applying the GTLA’s notice provision in
actions against county road commissions). As was stated in Streng, 315 Mich App at 455,
“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 per MCR 7.215(J)(2). 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 caselaw through which the plaintiff was forced to
navigate.” Devillers v Auto Club Ins Ass’n, 473 Mich 562, 590, n 65; 702 NW2d 539 (2005).

        The rules governing retroactivity are found in Pohutski v City of Allen Park, 465 Mich
675, 695-696; 641 NW2d 219 (2002). In Pohutski, the Michigan Supreme Court acknowledged
the general rule that judicial decisions are given full retroactive effect. Id. at 695. However, “a
more flexible approach is warranted where injustice might result from full retroactivity.” Id. at
696. 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
       context of civil context, . . . this Court . . . recognized an additional threshold
       question whether the decision clearly established a new principle of law.
       [Pohuski, 465 Mich at 696 (citations 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 establishing 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 based upon 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 691.1401 by Michigan courts. See Streng, 315 Mich App at
463; Bezeau v Palace Sports & Entertainment, Inc, 487 Mich 455, 463; 795 NW2d 797 (2010).

        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, this purpose is served by prospective application as well as by retroactive
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 many decade-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.

                                                -4-
         Also relevant is the fact that the confusion concerning the law was not created by
plaintiff, but rather, by the Legislature and the Judiciary. The Legislature adopted two different
sets of conflicting requirements as to the timing and content of the pre-suit notice. And for
decades, the Judiciary has decided many pre-suit notice cases based upon the requirements of the
GTLA, with no reference to MCL 224.21(3). The role of the government in creating confusion
concerning a legal standard weighs strongly against sanctioning a party for acting in good faith
based upon the apparent law. For instance, in Bryant v Oakpoint Villa Nursing Ctr, 471 Mich
411, 417; 684 NW2d 864 (2004), plaintiff filed a suit against a health care provider sounding in
ordinary negligence. The defendant argued that the two of plaintiff’s claims sounded in medical
malpractice, and so should be dismissed because although the action had been filed during the
three-year limitation period for negligence cases, it had not been filed within the two-year
limitation period for medical malpractice. Id. at 418. The Supreme Court concluded that the two
counts in question sounded in medical malpractice and so “under ordinary circumstances . . .
would be time-barred. Nevertheless, it did not dismiss them because “[t]he equities of [the] case
. . . compel a different result.” Id. at 432. The Court went on to state:

         The distinction between actions sounding in medical malpractice and those
         sounding in ordinary negligence is one that has troubled the bench and bar in
         Michigan, even in the wake of our opinion in Dorris.[5] Plaintiff's failure to
         comply with the applicable statute of limitations is the product of an
         understandable confusion about the legal nature of her claim, rather than a
         negligent failure to preserve her rights. Accordingly, for this case and others now
         pending—that involve similar procedural circumstances, we conclude that
         plaintiff's medical malpractice claims may proceed to trial along with plaintiff's
         ordinary negligence claim. MCR 7.316(A)(7). [Bryant, 471 Mich App at 432.]

        There can be no doubt that the “procedural circumstances” in the instant case, are, as they
were in Bryant, the result of “understandable confusion” resulting from conflicting actions by the
Legislature and the courts. Accordingly, like the Supreme Court in Bryant, 471 Mich at 432, we
conclude that “plaintiff’s . . . claims may proceed to trial.” As discussed above, for decades, the
Judiciary applied the 120-day notice provision of MCL 691.1404(1) in actions against county
road commission defendants. See Streng, 315 Mich App at 460 n 3. Plaintiff filed his pre-suit
notice on August 15, 2013, more than two years and nine months before Streng was decided.

        Because we conclude that Streng applies only to actions arising on or after May 2, 2016,
we affirm the trial court’s denial of defendant’s motion for summary disposition. As the
prevailing party, plaintiff may tax costs under MCR 7.219.



                                                             /s/ Douglas B. Shapiro
                                                             /s/ Michael J. Kelly



5
    Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26; 594 NW2d 455 (1999).


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