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.