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158069; 158304 - Estate of Pearce v Eaton Co Rd Comm; Brugger v Midland Co Bd of Rd Comm'rs

Lynn Pearce, Personal Representative of the Estate of Brendan Pearce, Deceased,

 

Joseph Collison

 

Plaintiff-Appellant,

 

v

(Appeal from Ct of Appeals)

 

 

(Eaton – Mauer, J.)

 

Eaton County Road Commission,

 

Jonathan Koch

 

Defendant-Appellee,

 

and

 

 

Lawrence Benton, Personal Representative of the Estate of Melissa Sue Musser, Deceased, and Patricia Jane Musser,

 

 

_____________________________

Defendants.

 

Tim Edward Brugger, II,

 

Patrick Richards

 

Plaintiff-Appellee,

 

v

(Appeal from Ct of Appeals)

 

 

(Midland – Beale, M)

 

Midland County Board of Road Commissioners,

 

 

 

Defendant-Appellant.

Jonathan Koch

 

 

 

Summary

These two cases will be argued together to address conflicting opinions by the Court of Appeals.  In 2015, Brendon Pearce died in a motor vehicle accident, and his estate served a presuit notice on defendant Eaton County Road Commission in accordance with MCL 691.1404 of the governmental tort liability act.  In 2013, plaintiff Tim Edward Brugger, II was injured in a motorcycle accident, and he served a presuit notice on defendant Midland County Board of Road Commissioners in accordance with MCL 691.1404.   In 2016, the Court of Appeals issued an opinion in Streng v Bd of Mackinac Co Rd Comm’rs, 315 Mich App 449 (2016), lv den 500 Mich 919 (2016), holding that MCL 224.21(3), rather than MCL 691.1404, controls the timing and content of a presuit notice directed to a road commission.  The trial courts in both cases denied the defendants’ motions for summary disposition, finding that Streng should be applied prospectively only.  In Brugger v Midland Co Bd of Rd Comm’rs, 324 Mich App 307 (2018), the Court of Appeals held that Streng applied prospectively only.  But in Estate of Brendon Pearce v Eaton Co Rd Comm, 324 Mich App 549 (2018), the Court of Appeals applied Streng retroactively.  The Supreme Court has granted leave to appeal in both cases to 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 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.​