The Michigan Supreme Court Limits the Potential Liability of Municipalities for Alleged Violations of the MISS DIG Act
In the July 2025 edition of our Local Government Law Bulletin, we reported on the Court of Appeals’ decision in Zezula v Brown, which dealt with the potential liability of government agencies, including municipalities, for violations of the Michigan MISS DIG Underground Facility Damage Prevention and Safety Act (the “MISS DIG Act”). We are updating our reporting on that case because the Michigan Supreme Court has now reversed and modified the Court of Appeals’ decision in a way that is beneficial to municipalities.
The Zezula case arose from circumstances in which a sewage overflow occurred in the plaintiff’s home after a contractor struck a sewer lateral when it drilled into the ground to perform electrical line groundwork. The contractor stated that it had asked Independence Township to mark its facilities, but the township had failed to mark its sewer facilities. When the township was sued for damages to the plaintiff’s home that had been caused by the sewage overflow, it asserted that it was immune from liability under the Michigan Governmental Tort Liability Act (the “GTLA”). The Court of Appeals disagreed, however, holding that the township was not necessarily immune from the plaintiff’s claims under the GTLA, and remanded the case for further evaluation in the trial court. The township subsequently appealed and, in a June 2026 opinion, the Supreme Court reversed.
The Supreme Court’s principal point of disagreement with the Court of Appeals centered around the meaning of a 2014 amendment to Section 7 of the GLTA, which provides that immunity from tort liability does not apply to “liability of a government agency under the MISS DIG Act.” The Court of Appeals had construed this language as allowing tort claims to be asserted against municipalities in court for any failure to comply with their responsibilities under the MISS DIG Act. The Supreme Court, however, interpreted the effect of this language differently, in view of certain language of the MISS DIG Act that also addresses governmental liability for violations of that Act.
The Supreme Court noted that the MISS DIG Act contains a provision stating, “[e]xcept as provided in this section, this act does not affect the liability of a governmental agency for damages for tort or the application of [the GTLA].” The Court further noted that the MISS DIG Act authorizes a person to file an administrative complaint with the Michigan Public Services Commission (“MPSC”), seeking fines and, if applicable, damages from a governmental agency that has failed to comply with the Act. When reading these provisions together with Section 7 of the GTLA, the Supreme Court concluded that the filing of an administrative complaint with the MPSC is the sole means for a plaintiff to avoid governmental immunity when seeking redress for a governmental agency’s alleged violation of the MISS DIG Act. A civil action in court for this same purpose would be barred by the GTLA.
The Supreme Court’s Zezula decision is beneficial to municipalities in more than one respect. It not only allows municipalities to avoid the higher cost of civil litigation when resolving claims for alleged violations of the MISS DIG Act; it also reduces the exposure that municipalities have to money damages. This is because the MISS DIG Act provides only for the imposition of civil fines for first and second violations of the Act in a 12-month period and allows a municipality to be held liable for the cost of repairs only upon a third violation of the Act in a 12-month period.
If your municipality is faced with a claim asserted under the MISS DIG Act, please contact an attorney in our Local Government Practice Group, who can assist you with efficiently resolving that claim, consistent with the beneficial limitations provided by the Supreme Court’s Zezula decision.
