Background
In December 2020, Brian Zezula’s home suffered a sewage backup after Kaltz Excavating Company, hired by DTE Energy to bore a new underground electrical connection to a neighbor’s home, damaged the sewer lead connecting Zezula’s house to the public sewer system. Before excavating, Kaltz had notified MISS DIG Systems as required by law, which in turn alerted Independence Township and other underground facility owners. Independence Township responded “NO CONFLICT,” indicating it owned no facilities in the excavation area, and accordingly marked no sewer lines. Zezula alleged the Township did, in fact, own a sewer main running through the area and violated its obligation to mark it under the MISS DIG Underground Facility Damage Prevention and Safety Act, MCL 460.721 et seq.
Zezula filed suit against Brown, DTE, and Kaltz, and later added Independence Township as a defendant after Kaltz filed a notice of non-party at fault pointing to the Township’s failure to mark its facilities. Independence Township moved for summary disposition on grounds of governmental immunity under the GTLA, MCL 691.1401 et seq., arguing neither the MISS DIG Act exception (MCL 691.1407(7)) nor the sewage disposal system event (SDSE) exception (MCL 691.1416–1419) rescued Zezula’s claim. The Township also argued Zezula had not given the required 45-day written notice under MCL 691.1419(1). Zezula did not respond to the notice argument but asked the trial court for leave to amend his complaint if additional pleading was needed.
The Oakland Circuit Court denied Independence Township’s motion and granted Zezula leave to amend to plead the SDSE exception, reasoning the GTLA created a broad immunity exception for MISS DIG Act violations. The Court of Appeals affirmed in a split published decision. The Michigan Supreme Court granted leave to appeal, limiting the issues to the scope of MCL 691.1407(7) and the propriety of allowing amendment to plead the SDSE exception.
The Court’s Holding
In a unanimous opinion by Justice Thomas, the Michigan Supreme Court reversed the lower courts on both issues. First, the Court held that MCL 691.1407(7)—which states that GTLA immunity does not apply to governmental agency liability “under the MISS DIG Act”—does not open the courthouse door to civil damages claims in circuit court. The scope of that exception is defined by the MISS DIG Act itself, and MCL 460.732 is the only provision in the Act that addresses governmental agency liability. That provision directs aggrieved facility owners or operators to file a complaint with the Public Service Commission, not a civil lawsuit. The Court rejected the argument that MCL 460.728’s general preservation of civil remedies applied to governmental defendants, finding that reading would render the specific governmental-liability provision of MCL 460.732(1) superfluous and would contravene the established rule that exceptions to governmental immunity are narrowly construed.
Second, the Court held that the trial court abused its discretion by prematurely allowing Zezula to amend his complaint to assert the SDSE exception. To survive under that exception, a plaintiff must affirmatively allege compliance with a 45-day written notice requirement to the governmental agency, or show that the agency’s failure to provide information as required by MCL 691.1419(2) excused non-compliance. Zezula had not pled, and had not even responded to Independence Township’s argument, that he satisfied or was excused from that notice requirement. Without that allegation, the trial court could not properly assess whether amendment would be futile, and granting leave was therefore premature.
The Court reversed the Court of Appeals and trial court as to the MISS DIG Act claim, vacated both decisions as to the motion to amend, and remanded to the trial court for further proceedings. Independence Township is entitled to summary disposition on the MISS DIG Act claim; the SDSE amendment question must be revisited after Zezula has had the opportunity to address the notice issue.
Key Takeaways
- A civil damages lawsuit in circuit court is not available against a governmental agency for violations of the MISS DIG Act; the sole remedy that avoids governmental immunity is a complaint filed with the Michigan Public Service Commission under MCL 460.732.
- MCL 460.728’s general preservation of civil remedies does not apply to governmental defendants—it is superseded by the more specific governmental-liability provision in MCL 460.732(1), and reading otherwise would render that provision surplusage.
- The SDSE exception’s mandatory 45-day written notice requirement under MCL 691.1419(1) must be pleaded and addressed before a court may grant leave to amend to assert that exception; failure to plead notice compliance (or a recognized excuse) renders the proposed amendment potentially futile.
- The word “may” in MCL 460.732(2) means only that facility owners have the discretion to file a PSC complaint—it does not signal that alternative civil remedies against governmental agencies exist.
Why It Matters
This decision significantly narrows the litigation options for property owners and contractors damaged by a governmental agency’s failure to mark underground facilities before excavation. By holding that the PSC complaint process is the exclusive avenue for relief against government entities under the MISS DIG Act, the Court forecloses what many had assumed was a direct path to circuit court. Practitioners bringing MISS DIG-related claims against municipalities or townships must now route those claims through an administrative forum—one where the available remedies are more limited and where repeated violations by the agency are a precondition to cost-of-repair damages.
The decision also serves as a reminder that Michigan’s governmental immunity exceptions are construed strictly. Plaintiffs who intend to rely on the SDSE exception must plead and substantiate compliance with the 45-day notice requirement at the outset—they cannot leave that issue unaddressed and expect the trial court to grant leave to amend while holding notice questions in abeyance. Together, the two rulings reinforce the procedural and substantive rigor required to overcome governmental immunity in Michigan infrastructure-damage cases.