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Party May Pursue Damages Against a Government Entity Despite Immunity Defense

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Ronald D. Richards Jr.
Foster Swift Municipal Law News
June 2012

The Michigan Court of Appeals recently ruled in Coloma Emergency Medical Service, Inc v Dep't of Community Health,1 that damages against a governmental entity may be pursued despite governmental immunity laws. In Coloma, the plaintiff ambulance company sought to expand its area to serve the entire boundary of Berrien County. The Berrien County Medical Control Authority denied the request. Coloma then requested a hearing before the Department of Community Health. The Department did not conduct the required denial justification review for several months. Coloma then sued in circuit court requesting a writ of mandamus (a court order instructing an inferior court, a corporation, person, etc. to perform some duty) to compel the Department to conduct the hearing. Coloma also sought money damages for delay. While the case was pending, the Department sent a letter to Coloma saying it just completed the hearing and review, and affirmed the Authority's decision. The Department then moved for summary disposition under governmental immunity and mootness, among other reasons. The trial court dismissed Coloma's request for mandamus as moot because the Department conducted the review. However, the trial court refused to dismiss Coloma's money damages claim.

The Court of Appeals affirmed. The Court first rejected the Department’s argument that the relevant provisions of the Revised Judicature Act (RJA), when read together, only allow for damages when a writ of mandamus is granted. The Court determined that subsections 4411, 4421, and 4431, do not support that argument and, in fact, compel the opposite conclusion.

The Court further explained that the Department was wrong in contending that the plaintiff's claim for money damages sounds in tort and is barred by governmental immunity. Mercer v City of Lansing,2 squarely refutes the Department's suggestion. Mercer held that the defendants were "not immune from an award of damages under MCL 600.4431," because "the statutory grant of damages in mandamus actions is not subject to the" Governmental Tort Liability Act. The Court noted that a mandamus claim addresses government inaction, while tort immunity addresses the discharge of a governmental function, i.e., governmental action.

1Unpublished per curiam opinion of the Court of Appeals (Docket Nos. 300416 & 300599, dec’d 03-06-12).
2274 Mich App 329; 733 NW2d 89 (2007).