Michigan Supreme Court Clarifies Governmental Immunity For MISS DIG Act Violations

Zezula v Brown, Kaltz Excavating Co. & Independence Township

• MSC Opinion Published: June 16, 2026 (Thomas, J., writing for a unanimous Court (Cavanagh, C.J., and Zahra, Bernstein, Welch, Bolden, and Hood, JJ.))

• Docket No. 168483

• Oakland County Circuit Court

Holding: A governmental agency cannot be held civilly liable in circuit court for money damages for violations of the MISS DIG Act. The MISS DIG Act exception to governmental immunity under MCL 691.1407(7) is defined by the MISS DIG Act itself, and that Act provides only one avenue of relief that avoids governmental immunity: a complaint filed with the Public Service Commission under MCL 460.732. The trial court also erred in granting the plaintiff leave to amend his complaint to plead the sewage disposal system event (SDSE) exception before the plaintiff alleged compliance with the notice requirement under MCL 691.1419, because the court could not determine whether the amendment would be futile without first addressing notice. Accordingly, the Court reversed the summary disposition ruling, vacated the order granting leave to amend, and remanded for entry of summary disposition in favor of Independence Township and reconsideration of the motion to amend.

Facts: In December 2020, a neighbor in the plaintiff's cul-de-sac complained to DTE Energy Company about faulty electrical service. DTE determined a new underground electrical connection was needed and hired Kaltz Excavating Company to bore the new service. As required, Kaltz notified MISS DIG Systems of its intent to excavate, and MISS DIG Systems in turn notified Independence Township and other underground facility owners so that they could mark their facilities in the excavation area.

Independence Township responded “NO CONFLICT,” indicating it owned no facilities in the excavation area, and it did not mark any sewer lines. The parties disputed whether and to what extent the Township-owned sewer main was actually in the excavation area. When Kaltz bored the new electrical service, the work damaged the plaintiff's sewer lead, allegedly causing a sewage backup into his home.

The plaintiff sued the neighbor, DTE, and Kaltz. Kaltz filed a Notice of Non-Party at Fault naming Independence Township for failing to mark its sewer main. The plaintiff then amended to add Independence Township, alleging negligence based on violations of the MISS DIG Act. Independence Township moved for summary disposition on governmental immunity grounds, arguing the SDSE exception did not apply and that the plaintiff failed to provide the notice required by MCL 691.1419. At the hearing, the plaintiff asked for leave to amend to add an SDSE claim. The trial court denied summary disposition, holding that MCL 691.1407(7) created a broad exception for MISS DIG Act violations, and granted leave to amend while holding the notice issue in abeyance.

Key Appellate Rulings:

The MISS DIG Act exception to governmental immunity is defined by the MISS DIG Act, which provides no civil cause of action against a governmental agency for money damages.

MCL 691.1407(7) provides that governmental immunity does not apply to “liability of a governmental agency under the MISS DIG Act.” Because that exception is defined by reference to the MISS DIG Act, the Court looked to the Act itself to determine its scope. The only provision of the MISS DIG Act addressing governmental-agency liability, MCL 460.732, allows a facility owner or operator to file a complaint with the Public Service Commission seeking civil fines and, where applicable, damages, with escalating penalties for repeat violations. That administrative complaint process is the sole avenue of relief that avoids governmental immunity.

The general civil-remedy savings provision does not create a damages action against governmental agencies.

The plaintiff and Kaltz relied on MCL 460.728, which disclaims any limit on the right to seek legal and equitable relief in a civil action for MISS DIG Act violations. The Court rejected reading that general provision to override governmental immunity. The savings provision was carried over from the former protection of underground facilities act, which had exempted governmental agencies from liability altogether, suggesting it was not meant to override immunity. Reading it to authorize civil suits against governmental agencies would render the specific immunity provision in MCL 460.732(1) superfluous and would conflict with it. Under the rule that a specific provision controls over a general one, the specific governmental-liability provision (MCL 460.732) prevails over the general civil-remedy provision (MCL 460.728).

The Legislature's use of “may” in the complaint provision does not make the administrative remedy nonexclusive.

The plaintiff and Kaltz argued that because MCL 460.732(2) says a facility owner “may” file a complaint and does not use the words “exclusive” or “shall,” the administrative remedy is not exclusive. The Court disagreed. While “may” is ordinarily permissive, it indicates only what action the statute makes discretionary, not the availability of other remedies. In context, “may” means a facility owner has discretion whether to file a complaint with the Public Service Commission, not that other remedies exist. Reading it otherwise would render MCL 460.732(1) nugatory and would violate the rule that exceptions to governmental immunity are construed narrowly.

Leave to amend to plead the SDSE exception was premature where the plaintiff had not alleged compliance with the statutory notice requirement.

Leave to amend is freely given, but may be denied for particularized reasons, including where amendment would be futile. To maintain a claim under the SDSE exception, a plaintiff must show compliance with the notice requirement of MCL 691.1419, which generally bars recovery unless the claimant notifies the governmental agency in writing within 45 days after the damage is discovered. Here, Independence Township repeatedly argued the plaintiff failed to provide notice, and the plaintiff never responded to that argument or alleged compliance (or an excuse for noncompliance) in the trial court. Without addressing notice, the trial court could not determine whether the proposed amendment would be futile, so granting leave to amend fell outside the range of principled outcomes and was an abuse of discretion.