BRIAN ZEZULA v. NINA BROWN and DTE ENERGY COMPANY, and KALTZ EXCAVATING COMPANY INC., and INDEPENDENCE TOWNSHIP OF OAKLAND COUNTY
No. 368261
STATE OF MICHIGAN COURT OF APPEALS
March 11, 2025
FOR PUBLICATION. Oakland Circuit Court LC No. 22-197937-NZ.
Before: BOONSTRA, P.J., and K. F. KELLY and YOUNG, JJ.
BOONSTRA, P.J. (dissenting).
I respectfully dissent. It is the role of the Legislature, and not of this Court, to enact exceptions to governmental immunity. See State Farm Fire & Cas Co v. Corby Energy Services, Inc, 271 Mich App 480, 485; 711 NW2d 906 (2006). The majority errs, in my view, by misinterpreting the scope of our Legislature‘s actions, by failing to interpret those actions narrowly as is required, by instead reading into the law what it describes as a “broad exception to governmental immunity for alleged violations of the [MISS DIG underground facility damage prevention and safety act,
I. MISS DIG ACT LIMITED EXCEPTION TO GOVERNMENTAL IMMUNITY
In 2006, this Court held in State Farm that “[b]ecause the immunity provided by the GTLA is broad and its exceptions are to be narrowly construed . . . the MISS-DIG act does not waive or abrogate the immunity provided by the GTLA, either expressly or by necessary inference from the statute.” State Farm, 271 Mich App at 491. Eight years later, in 2014, the Legislature amended the GTLA to provide that “[t]he immunity provided by [the GTLA] does not apply to liability of a governmental agency under the [MISS DIG act].”
The principal question in this case is whether or to what extent the Legislature has enacted an exception to governmental immunity for violations of the MISS DIG act. The majority concludes that the Legislature enacted a “broad exception,” contending that it “need look no further” than the simple fact that the Legislature used the word “liability” in
As noted,
The immunity provided by this act does not apply to liability of a governmental agency under the MISS DIG underground facility damage prevention and safety act. [
MCL 691.1407(7) .]
Of course, the Legislature did not simply use the word “liability” in this provision, but used the phrase “liability . . . under the MISS Dig [act].” Id. (emphasis added). Simply put, that means that we must look to the MISS DIG act itself to see what liability arises under that act. More on that later.
First, I note that the majority relies on In re Bradley Estate, 494 Mich 385; 835 NW2d 545 (2013), to define the term “liability.” Our Supreme Court in Bradley Estate broadly defined the term “tort liability,” as used in
According to the majority, “[i]t follows [from the use of the word ‘liability’ in
Except as provided in this section, this act does not affect the liability of a governmental agency for damages for tort or the application of [the GTLA]. [
MCL 460.732(1) .]
I agree entirely with the majority that “this means that, except as that section may elsewhere provide, the law of tort and the application of governmental immunity are unaffected by the MISS DIG act and apply as they otherwise would.” In other words, a governmental agency continues to enjoy immunity from tort liability unless
As noted, the Legislature did not simply use the word “liability” in
The GTLA does not define the term “under,” so it is appropriate to turn to a dictionary definition of the term. See Epps v 4 Quarters Restoration LLC, 498 Mich 518, 529; 872 NW2d 412 (2015). The most salient definitions of the preposition “under” as used in the phrase “under the MISS DIG [act]” are “subject to the authority or influence of” and “in accordance with.” See Random House Webster‘s College Dictionary (2d ed), p 1422. Regarding the latter definition, Random House Webster‘s College Dictionary provides the example phrase “under the provisions of the law.” Id.
Our caselaw is replete with examples of courts assessing whether and when parties are liable “under the provisions of” a law or a contract through analysis of the relevant statute or contractual provision. See, e.g., Auto Owners Ins Co v Seils, 310 Mich App 132; 871 NW2d 530 (2015) (liability under the dramshop act); Johnson v Pastoriza, 491 Mich 417; 818 NW2d 279 (2012) (liability under the fetal wrongful-death statute); Elezovic vFord Motor Co, 472 Mich 408; 697 NW2d 851 (2005) (liability under the Elliot-Larsen civil rights act); Flanders Indus, Inc v Mich, 203 Mich App 15; 512 NW2d 328 (1993) (liability under the Michigan Environmental Response Act, now recodified into the Natural Resources and Environmental Protection Act); Chrysler Corp v Skyline Indus Servs Inc, 448 Mich 113, 125; 528 NW2d 698 (1995) (rights and liabilities under a contract). It follows then that, in assessing the phrase “liability . . . under the MISS DIG [act],”
(2) A facility owner1 or a facility operator may file a complaint with the commission2 seeking a civil fine and, if applicable, damages from a governmental agency under this section for any violation of this act. [
MCL 460.732(2) .]
The majority acknowledges that the MPSC can receive complaints, adjudicate a government agency‘s liability under the MISS DIG act, and impose fines under
Upon complaint filed with the commission or upon the commission‘s own motion, following notice and hearing, a person, other than a governmental agency, who violates any of the provisions of this act may be ordered to pay a civil fine of not more than $5,000.00 for each violation. . . . [
MCL 460.731(2) .]
Consequently,
By contrast,
There is one other section of the MISS DIG act that bears mentioning, although neither the parties nor the majority refers to it.
This act does not limit the right of an excavator, facility owner, or facility operator to seek legal relief and recovery of actual damages incurred and equitable relief in a civil action arising out of a violation of the requirements of this act, or to enforce the provisions of this act, nor shall this act determine the level of damages or injunctive relief in any such civil action. This section does not affect or limit the availability of any contractual or legal remedy that may be available to an excavator, facility owner, or facility operator under any contract to which they may be a party. [
MCL 460.728 ]4
The majority errs, in my judgment, by ignoring the limited nature of the governmental immunity exception created by
II. SEWAGE DISPOSAL SYSTEM EVENT EXCEPTION
I further respectfully dissent from the majority‘s affirmance of the trial court‘s order allowing plaintiff to amend his complaint for a third time to assert a claim under
For a claim to fall within the sewage-disposal-system-event exception to governmental immunity, the GTLA requires, among other things, that “[t]he sewage disposal system had a defect.” [
“Sewage disposal system” means all interceptor sewers, storm sewers, sanitary sewers, combined sanitary and storm sewers, sewage treatment plants, and all other plants, works, instrumentalities, and properties used or useful in connection with the collection, treatment, and disposal of sewage and industrial wastes, and includes a storm water drain system under the jurisdiction and control of a governmental agency. [
MCL 691.1416(j)
I note that although the majority concludes that there is a question of fact as to whether the sewage disposal system in this case had a defect, the trial court has already held, even before amendment of plaintiff‘s complaint to assert such a claim, that “[t]he Court finds that the sewage disposal system had a defect pursuant to
For these reasons, I respectfully dissent and would instead reverse and remand for entry of an order granting summary disposition in favor of Independence Township.
/s/ Mark T. Boonstra