Michael F. Schmidt Wins Appeal Enforcing the Governmental Immunity Exception for Liability of a Governmental Agency Under the Miss Dig Underground Facility Damage Prevention Safety Act

Zezula v Kaltz Excavating Company, Inc., Independence Township of Oakland County and DTE Energy Company, ____ Mich App ____; ____ NW2d ____ (2025) (Court of Appeals Docket No. 368261)(to be published), we represented Kaltz Excavating Company, Inc. in an alleged sewage backup case brought by the plaintiff and we opposed the motion for summary disposition filed by defendant Independence Township based on governmental immunity.  We argued that the allegation that Independence Township failed to properly mark its facilities as required by the MISS DIG Underground Facility Damage Prevention Safety Act, MCL 460.725 was not entitled to governmental immunity, but rather was excepted from governmental immunity by MCL 691.1407(7) which provides that “the immunity provided by this act does not apply to liability of a governmental agency under the MISS DIG Underground Facility Damage Prevention Safety Act.”  The trial court agreed and denied Independence Township’s motion for summary disposition.  Independence Township appealed to the Michigan Court of Appeals and we opposed Independence Township on appeal.  The Court of Appeals agreed with our argument that MCL 691.1407(7) excepts from governmental immunity allegations made against Independence Township for failing to comply with the Miss Dig Act by failing to mark its facilities.  This is a very important decision for the benefit of excavators who request that facilities in the area of their project be properly marked.