20221122_C359999_35_359999.Opn.Pdf ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
DONALD SUPERNAW and LORI SUPERNAW, UNPUBLISHED
November 22, 2022
Plaintiffs-Appellants,
v No. 359999
Muskegon Circuit Court
MUSKEGON COUNTY ROAD COMMISSION and LC No. 20-000658-NI
TRI-US SERVICES INC,
Defendants-Appellees,
and
BIT-MAT PRODUCTS OF MICHIGAN,
Defendant.
Before: SAWYER, P.J., and MARKEY and SWARTZLE, JJ.
PER CURIAM.
Plaintiffs appeal following the trial court’s grants of summary disposition, first for
defendant Road Commission and then for defendant Tri-Us. We affirm the grant of summary
disposition in favor of Tri-Us, but reverse the grant of summary disposition in favor of the Road
Commission and remand for further proceedings consistent with this opinion.
For purposes of this appeal, we accept plaintiffs’ factual claims that plaintiff Donald
Supernaw (hereinafter “plaintiff”) was injured when operating his motorcycle on Farr Road in
Muskegon County when he lost control of the motorcycle when encountering loose aggregate on
the road surface. This was part of a chip sealing process by which an emulsion and stone chips
are put down on the road. The road is thereafter swept to remove from the road surface any loose
stones that had not adhered to the emulsion. Tri-Us contracted with the Road Commission to
perform additional sweeping of the road.
The issue presented on appeal with respect to the Road Commission is whether plaintiffs
properly and timely complied with the statutory requirement to provide defendant with a notice of
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plaintiffs’ intent to sue. It is undisputed that plaintiff sent their notice of intent to the Muskegon
County Clerk 68 days after the accident. The trial court determined that the notice was tardy and
that all the required parties were not served:
The Muskegon County Road Commission, as a governmental agency,
enjoys the protections afforded by sovereign immunity. However, the legislature
has carved out an exception to this shield for claims based upon a failure to maintain
a road in reasonable repair. MCL 691.1402(1). The procedure for processing such
a claim against a county road commission is set forth in MCL 224.21. Brugger v
Midland County Board of Road Commissioners, 324 Mich App 307; 920 NW2d
388 (2018). One of the requirements of the statute is that plaintiff file a notice of
the claim with the county clerk and the chairperson of the defendant within 60 days
after his injury. Id.Plaintiffs moved for reconsideration, which the trial court denied. Subsequently, the Supreme
Court issued their opinion in Estate of Brendon Pearce v Eaton Co Rd Comm, 507 Mich 183; 968
NW2d 323 (2021).1 Plaintiffs moved a second time for reconsideration in light of Pearce, which
the trial court denied on the basis that the court rules do not provide a mechanism to bring a second
motion for reconsideration.2
Ultimately, the issue before the Supreme Court in Pearce was whether this Court correctly
concluded in Streng v Bd of Mackinaw Co Rd Comm’rs, 315 Mich App 449; 890 NW2d 680(2016), that the 60-day notice requirement under the County Road Law, MCL 224.1 et seq.,
prevailed over the 120-day notice requirement of the governmental tort liability act (GTLA), MCL
691.1401 et seq. Pearce, 507 Mich at 187. The Supreme Court concluded the 120-day notice
requirement of the GTLA continues to be the applicable requirement:
The Streng panel should have followed this Court’s decision in Brown [v
Manistee Co Rd Comm, 452 Mich 354; 550 NW2d 215 (1996)] and applied the
GTLA’s presuit requirements, not the requirements provided in the County Road
Law; it could not decide this question for itself. Brown’s holding on that point
survived this Court’s decision in Rowland [v Washtenaw Co Rd Comm, 477 Mich
197; 731 NW2d 41 (2007)], and it was therefore binding on the Streng panel.
Whether Brown correctly decided this question is for this Court to decide. But
because it was not raised by the parties here, we save it for another day.
1
The companion case to Pearce was the Brugger case referenced in the trial court’s opinion.
2
The trial court was correct in this observation. It does raise an interesting question with regards
to what is the appropriate course of action where partial summary disposition is granted but, before
the case is resolved, a change in law would now suggest that the partial summary disposition
should have been denied. While that is an interesting question, it is one that we need not resolve
at this point.
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While it is clear that the Supreme Court has left open the possibility of revisiting its
decision in Brown and might conclude that the 60-day limit of the County Road Law does control,
it is equally clear that the 120-day limit of the GTLA is to be applied until and unless the Supreme
Court makes that determination. In the case before us, the trial court understandably applied the
County Road Law when the motion for summary disposition was brought and did not analyze
whether the notice complied with the requirements of the GTLA. Although defendant Road
Commission invites us to engage in that analysis, we decline that invitation and leave it to the trial
court to address this issue in the first instance.3
We next turn to plaintiffs’ argument that the trial court granted summary disposition in
favor of Tri-Us. The trial court granted summary disposition on two grounds. First, the trial court
concluded that Tri-Us would be liable only if it created a new hazard, for which there was no
evidence:
The Plaintiff’s theory is the defendant failed to sweep the road. The duty to
sweep the road is based solely upon the contract with the Commission. For the
Plaintiff to have a tort claim, he must establish that the Defendant owed him a duty
that was separate and distinct from the contractual obligation. Fulz v Union-
Commerce Associates, 470 Mich 460; 68 NW2d 587 (2004). For a snow plowing
contractor, that duty has been defined to be the obligation to refrain from creating
a new hazard in the course of the snow removal. Id. The removal of debris from
the road is factually indistinguishable from snow plowing. The Plaintiff has
provided no evidence that the Defendant created a new hazard with the alleged
failure to entirely remove the debris. If the debris created a hazard, it existed before
the Defendant performed the sweeping service. Therefore, the Defendant’s tort
claim for negligence fails.
The trial court then addressed plaintiffs’ attempt to argue that they were a third-party
beneficiary to the contract between Tri-Us and the Road Commission. The trial court rejected the
argument on two grounds. The first is that it is a claim that was not pled:
In his response brief the Plaintiff introduces a new theory for recovery as a
third party beneficiary of the contract between the Commission and the Defendant.
Initially, the court notes that this was not pled in the complaint and, on that basis
alone, summary disposition for the Defendant should be granted. However,
assuming the Plaintiff would amend the complaint to salvage his claim, he would
have to allege and prove that the Defendant undertook to do something directly for
his benefit or for a designated class of persons of which he is a member. MCL
600.1405; Brunsell v City of Zeeland, 467 Mich 293; 651 NW2d 388 (2002).
3
Defendant also suggest that we should affirm because plaintiffs frame their argument in terms of
whether the trial court erred in denying their second motion for reconsideration. While plaintiffs
do mistakenly believe that the issue on appeal is the denial of reconsideration, the true issue on
appeal (which plaintiffs do address) is whether summary disposition was correctly granted.
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The trial court then goes on to reject that argument:
This Plaintiff is not directly referred to in the contract. Defendant’s Exhibit
A. For Defendant to be liable to a class, it must be sufficiently described. Brunsell,
supra. To determine if a class is reasonably identified the court is required to
employ an objective analysis that is confined to the contract itself. Id. In this case,
the contract makes absolutely no reference to any class of persons who are intended
beneficiaries. It provides no indication that Plaintiff undertook to do anything
directly for a designated class of persons that included the Plaintiff.
Nevertheless, the Plaintiff contends that there is no question the contract
“meant to benefit” the Plaintiff and other motorists. Plaintiff’s brief, p.9. This
attempt to imply a class based upon who might be injured by a breach of
Defendant’s contractual obligations to the Commission was specifically rejected by
the lead opinion in Koenig v South Haven, 460 Mich 667; 597 NW2d 99 (1999).
In the absence of something in the contract that specifically designates the Plaintiff
or a class of which he is a member as an intended third party beneficiary, Defendant
owed no duty to the Plaintiff as an undesignated incidental beneficiary. Schmalfeldt
v Northpointe Ins. Co., 469 Mich 422; 670 NW2d 651 (2003).
On appeal, plaintiffs only address this last issue, arguing that the trial court misapplied the
decision in Koenig. Even if we were to accept plaintiffs’ argument on this point, it leaves
unanswered the other two grounds: the lack of duty independent of the contract (absent the
creation of a new hazard) and that plaintiffs never actually pled a claim based upon being a third-
party beneficiary to the contract between Tri-Us and the Road Commission. Accordingly, we need
not address the applicability of Koenig as plaintiffs’ claim would nevertheless fail for the other
reasons relied upon by the trial court and which go unrefuted by plaintiffs.
We affirm the trial court’s grant of summary disposition in favor of Tri-Us. We reverse
the grant of summary disposition in favor of defendant Road Commission and remand the matter
to the trial court for reconsideration in light of the Supreme Court’s decision in Pearce and any
further proceedings consistent with this opinion. We do not retain jurisdiction. Tri-Us may tax
costs.
/s/ David H. Sawyer
/s/ Jane E. Markey
/s/ Brock A. Swartzle
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