Tim Edward Brugger II v. Midland County Bd of Road Commissioners ( 2020 )

Order Michigan Supreme Court
Lansing, Michigan
April 24, 2020 Bridget M. McCormack,
Chief Justice
158304 David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
TIM EDWARD BRUGGER, II, Richard H. Bernstein
Plaintiff-Appellee, Elizabeth T. Clement
Megan K. Cavanagh,
Justices
v SC: 158304
COA: 337394
Midland CC: 15-002403-NO
MIDLAND COUNTY BOARD OF ROAD
COMMISSIONERS,
Defendant-Appellant.
_________________________________________/
By order of December 4, 2018, the application for leave to appeal the May 15,
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 U.S. 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.
We further ORDER that this case be argued and submitted to the Court together
with the case of Estate of Brendon Pearce v Eaton County Road Commission, Docket No.
158069, at such future session of the Court as both cases are ready for submission. The
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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 Estate of
Brendon Pearce v Eaton Co Rd Comm, Docket No. 158069. 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