Beyer v. Fraternal Order of Eagles, Aerie No 668 , 123 Mich. App. 492 ( 1983 )

123 Mich. App. 492 (1983) 333 N.W.2d 314

BEYER
v.
FRATERNAL ORDER OF EAGLES, AERIE NO 668

Docket No. 59634.

Michigan Court of Appeals.

Decided February 24, 1983.

White, Spaniola, Stariha, Potuznik, Reider, Brown, Fielstra & Flynn, P.C. (by Randall D. Fielstra), for plaintiff.

Cholette, Perkins & Buchanan (by Edward D. Wells), for the City of Muskegon.

Before: MacKENZIE, P.J., and R.M. MAHER and C.W. SIMON, JR.,^[*] JJ.

PER CURIAM.

Plaintiff appeals as of right from the January 29, 1982, order granting defendant City of Muskegon's motion for summary judgment and the trial court's February 16, 1982, order denying plaintiff's motion for reconsideration.

On February 14, 1979, at about 1:09 a.m., plaintiff's husband, Carl P. Beyer, was driving his own vehicle east on M-46, or Apple Avenue, near the intersection with Ambrosia Street in the City of Muskegon. While crossing railroad tracks that intersected M-46, Carl P. Beyer's vehicle was struck by a train. Mr. Beyer died soon after.

On March 11, 1980, plaintiff filed her complaint initiating this wrongful death action. She alleged that the City of Muskegon (hereinafter city) failed in its duty to maintain M-46 by failing to remove obstructions and snow accumulations near the intersection with the railroad crossing. Plaintiff made similar allegations against the Muskegon Board of County Road Commissioners (hereinafter board).

On April 7, 1980, defendant city answered admitting that the accident occurred on M-46 but denying any negligence on its part. The city asserted plaintiff's decedent's own negligence as an affirmative defense and asserted the right to raise additional affirmative defenses.

On April 17, 1980, defendant board filed a motion for accelerated judgment. In support of that motion, the board stated:

"1. The accident occurred on M-46 at a C & O crossing.

"2. That M-46 is a state trunkline highway as designated by the Michigan State Highway Department.

"3. In accordance with Michigan statutory authority, counties are relieved of all expenses and legal liabilities arising out of or in the course of construction, improvement, or maintenance of trunkline highways within this state. MCL 250.61 [MSA 9.901].

"4. Pursuant to MCL 250.61, the Board of County Road Commissioners for the County of Muskegon is relieved of all legal liability arising out of the accident occurring on or about February 14, 1979, as alleged in plaintiff's complaint.

"5. That, in addition to being relieved of all legal liabilities pursuant to MCL 250.61, this claim is also barred by the doctrine of governmental immunity as set forth in MCL 691.1407 [MSA 3.996(107)].

"6. Plaintiff has failed to state a cause of action for which relief can be granted."

On May 20, 1980, the trial court granted the board's motion for accelerated judgment and dismissed with prejudice the suit against the board.

Following the above dismissal, the case proceeded to discovery with interrogatories and depositions taken in late 1980. On August 19, 1981, the city moved for summary judgment, GCR 1963, 117, based upon a similar assertion of governmental immunity: "Defendant City of Muskegon is immune from liability because the Michigan State Highway Commission has jurisdiction over M-46, the state trunkline highway involved herein." On January 14, 1982, the trial court filed its opinion granting the city's motion.

On January 22, 1982, plaintiff moved for reconsideration. At the hearing on that motion, the trial judge ruled that only the state was liable, not the city. The trial court was not persuaded by plaintiff's argument that Robinson v Emmet County Road Comm, 72 Mich. App. 623; 251 NW2d 90 (1976), was controlling because the city did not mislead plaintiff about its lack of jurisdiction. The trial court stated that plaintiff knew that she was dealing with M-46, a state highway trunkline, when she filed her complaint. The trial court denied the motion to reconsider.

By statute, governmental agencies are immune from tort liability if the agency was engaged in the exercise or discharge of a governmental function. MCL 691.1407; MSA 3.996(107). A statutory exception to this general immunity is provided in MCL 691.1402; MSA 3.996(102), which states, in part:

"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency." (Emphasis added.)

The state has jurisdiction over all state trunkline highways. Const 1963, art 5, § 28. By statute, the state must incur all maintenance costs and legal liabilities for state trunkline highways, relieving counties, townships, incorporated cities and villages of these responsibilities. MCL 250.61; MSA 9.901. Thus, as this Court has consistently recognized, Robinson, supra; Bennett v City of Lansing, 52 Mich. App. 289; 217 NW2d 54 (1974), despite its contract with the state to maintain M-46, the city was not the appropriate party to sue for damages. Only the state carries that liability.

In Robinson, two young people, a brother and sister, were killed in an auto accident on M-131. The defendant county road commission had a contract with the state to maintain that highway when the accident occurred. The plaintiff alleged that the defendant's failure to duly maintain the highway proximately caused the accident that killed her two children.

In Robinson, the plaintiff filed her complaint about seven months after the accident occurred. The defendant answered within two weeks and moved for summary judgment alleging the accident-causing defect was on a side-portion of the highway which it had no duty to maintain. The motion was denied. About 21 months after the accident, when discovery and the pretrial were concluded, the defendant filed a motion for summary judgment, GCR 1963, 117.2(1), relying on MCL 250.61; MSA 9.901. The motion was denied because the defendant failed to include an affidavit specifying the defense it relied upon. Three months later, the defendant resubmitted the motion with a proper affidavit arguing that only the state had jurisdiction over M-131. By that date, the two-year statute of limitations had run against the state. MCL 691.1411(2); MSA 3.996(111)(2). Ultimately, the trial court granted the motion.

The Robinson majority recognized that the plaintiff should have filed suit against the State Highway Department in the Court of Claims and that the defendant county road commission had a valid defense. But the Robinson majority held that a motion for accelerated judgment was the appropriate pleading for raising the defense of governmental immunity. The Court then recognized the general rule that an incorrectly labeled motion will be considered as if correctly labeled if the non-moving party is not prejudiced. 72 Mich. App. 637. Robinson held that the defendant's tardy pleading in the form of a motion for summary judgment had prejudiced the plaintiff because the statute of limitations had run against the state. The Court also found that the defendant had misled the plaintiff in its first motion for summary judgment wherein the defendant alleged the road involved was "essentially a local road", but designated a state scenic route. The grant of summary judgment was reversed and the matter remanded to the trial court.

Plaintiff argues that Robinson is dispositive here, as defendant in this case also filed its motion for summary judgment after the statute of limitations had run against the state. However, for two reasons this Court concludes that Robinson is not dispositive and the trial court should be affirmed. First, a motion for summary judgment is the appropriate pleading for raising governmental immunity as a tort defense. White v Detroit, 74 Mich. App. 545, 547; 254 NW2d 572 (1977); Butler v Wayne County Sheriff's Dep't, 75 Mich. App. 202, 203; 255 NW2d 7 (1977); Dionne v Trenton, 79 Mich. App. 239, 241; 261 NW2d 273 (1977); St Vincent v Michigan, 86 Mich. App. 688, 691; 273 NW2d 525 (1978). See, also, Austin v Romulus, 101 Mich. App. 662; 300 NW2d 672 (1980).

Second, even if a motion for accelerated judgment were the proper pleading to raise governmental immunity, the facts in this case would not support the Robinson result. Plaintiff in this case has not been similarly prejudiced. Plaintiff obviously knew, or should have known, that M-46 was a state trunkline highway. Plaintiff named Apple Avenue as M-46 in her complaint. Furthermore, plaintiff had notice within weeks after she filed the complaint that only the state had jurisdiction. The board's motion for accelerated judgment raised governmental immunity and relied on all the pertinent statutes. Finally, defendant city never misled plaintiff by stating it had jurisdiction over M-46 or that M-46 was anything but a state trunkline highway.

Therefore, granting the summary judgment was appropriate in this case.

Affirmed. Defendant may tax costs.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.