Background
In December 2020, Brian Zezula’s home suffered a sewage backup after Kaltz Excavating Company bored a new underground electrical connection near his property. The work was ordered by DTE Energy to resolve a neighbor’s faulty electrical service. Before excavating, Kaltz properly notified MISS DIG Systems of the planned work. Independence Township—which owns the local sewer system—responded “NO CONFLICT,” indicating it had no underground facilities in the excavation area and therefore declined to mark any sewer lines. During the bore, Kaltz damaged Zezula’s sewer lead, causing sewage to flood his home.
Zezula sued multiple defendants, eventually adding Independence Township on a theory that the Township had violated the MISS DIG Underground Facility Damage Prevention and Safety Act (MISS DIG Act) by failing to mark its sewer lines. Independence Township moved for summary disposition, asserting governmental immunity under the Governmental Tort Liability Act (GTLA) and arguing that Zezula had neither qualified under the SDSE (sewage disposal system event) exception nor provided the required written notice of his claim. The Oakland Circuit Court denied summary disposition, holding that the GTLA creates a broad immunity exception for MISS DIG Act violations, and also granted Zezula leave to amend his complaint to assert the SDSE exception. The Court of Appeals affirmed in a split decision.
The Michigan Supreme Court granted Independence Township’s application for leave to appeal, limiting review to: (1) whether MCL 691.1407(7) creates a broad civil-action exception to governmental immunity for MISS DIG Act violations; and (2) whether the trial court erred in permitting Zezula to amend his complaint to allege the SDSE exception.
The Court’s Holding
In a unanimous opinion by Justice Thomas, the Michigan Supreme Court reversed and vacated both lower court rulings. On the first issue, the Court held that MCL 691.1407(7)—which states that governmental immunity “does not apply to liability of a governmental agency under the MISS DIG Act”—does not open the courthouse door to civil damages suits. Rather, the scope of that exception is defined entirely by what the MISS DIG Act itself allows against government agencies. MCL 460.732 of that Act is the controlling provision: it states that the Act otherwise does not affect governmental tort liability or the GTLA, and it channels relief against governmental agencies exclusively through a complaint filed with the Public Service Commission. The more general savings clause in MCL 460.728, which preserves civil-action rights for MISS DIG violations, was carried forward from an era when government agencies were fully exempt and was not intended to override MCL 460.732’s specific governmental-liability framework.
On the second issue, the Court held that the trial court abused its discretion by prematurely granting Zezula leave to amend his complaint to plead the SDSE exception. The SDSE exception requires a plaintiff to provide written notice of a damage claim to the governmental agency within 45 days of discovering the damage. Zezula never asserted compliance with that notice requirement or argued he was excused from it—indeed, he did not even respond to Independence Township’s preemptive notice argument. Without any allegation of notice compliance, the trial court could not properly assess whether amendment would be futile, and granting leave on those terms was error. The case was remanded for further proceedings on the SDSE notice issue.
Key Takeaways
- A plaintiff seeking to hold a Michigan governmental agency liable for a MISS DIG Act violation cannot sue in circuit court for monetary damages; the exclusive remedy is a complaint to the Public Service Commission under MCL 460.732.
- The general civil-remedy preservation clause in MCL 460.728 does not apply to governmental agencies—reading it otherwise would render MCL 460.732(1)’s specific governmental-liability provision superfluous and conflict with the narrow-construction rule for immunity exceptions.
- To plead the SDSE exception to governmental immunity, a plaintiff must allege compliance with MCL 691.1419’s 45-day written-notice requirement (or a valid excuse) before a trial court may grant leave to amend; courts cannot defer that threshold question until later briefing.
- The word “may” in MCL 460.732(2) signals that facility owners and operators have discretion whether to file a PSC complaint—not that additional civil remedies against government agencies are available.
Why It Matters
This decision significantly narrows the practical recourse available to property owners damaged by a municipality’s failure to mark underground facilities before excavation. By ruling that civil litigation is foreclosed and the PSC complaint process is the only path around governmental immunity, the Court limits both the forum and the potential recovery: the MISS DIG Act’s administrative track awards cost-of-repair damages only against agencies that have accumulated three prior violation orders, a high bar most plaintiffs will never satisfy. Attorneys representing homeowners and excavators in infrastructure-damage disputes must now redirect clients away from circuit court and toward the PSC—and should expect challenges if they cannot satisfy that administrative route.
The decision also reinforces that Michigan courts will continue to construe exceptions to governmental immunity narrowly and will insist on statutory specificity before allowing civil suits to proceed. The ruling on the SDSE amendment issue serves as a procedural warning: notice compliance is a threshold pleading requirement, not an issue courts may hold in abeyance while plaintiffs develop their claims.