MONTE CARLO CONSTRUCTION CO V CITY OF LINCOLN PARK
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STATE OF MICHIGAN
COURT OF APPEALS
MONTE CARLO CONSTUCTION, INC.
and ANTONIO EANGELISTA, INC.,
UNPUBLISHED
Plaintiff-Counterdefendants,
Appellants, Cross Apellees,
v
No. 172298
Wayne Circuit Court
LC No. 92220247 CK
CITY OF LINCOLN PARK,
L.N. HAYDEN, INC, a Michigan
corporation, and AL BENKER, jointly
and severally,
Defendant, Counterplaintiffs,
Apellees, Cross Appellants.
Before: Gribbs, P.J., and Marilyn Kelly and White, JJ.
WHITE, J. (concurring).
I conclude that in the context of this case, the release and declaration provisions relied
on by defendants are ambiguous as to scope.
As to the governmental immunity issue, while the cases relied on by plaintiffs do, indeed,
allow for misrepresentation and fraud claims in circumstances similar to those alleged to be
present here, the cases do not address the governmental immunity issue. As plaintiffs observe,
to the extent tort claims were maintained in those cases, the claims arose out of the contractual
relationship. In the instant case, in addition to their tort claims for gross negligence, fraud and
negligent misrepresentation, plaintiffs’ complaint alleges separate counts of estoppel, breach of
contract, breach of express warranty, breach of implied warranty, and quantum meruit. These
claims overlap the tort claims and are not barred by governmental immunity. The question is not
whether governmental immunity insulates the governmental defendant from any liability arising
from the transaction at issue, but whether plaintiffs’ tort claims, as pleaded separate and apart
from their contract-based claims, are barred. I agree that the circuit court properly dismissed
the tort claims against Lincoln Park on the basis of governmental immunity.
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As to the interest issue, I conclude that Lincoln Park waived any right to submit the
matter to the decision of an agent under MCL 125.1564(1); MSA 5.2949(104)(1) by failing to
designate an agent on a timely basis. MCL 125.1564(2); MSA 5.2949(104)(2). Further,
while Lincoln Park seems to assert that the statute’s dispute resolution procedures apply
because the controversy falls within the provisions of
MCL 125.1563(4); MSA
5.2949(103)(4), the relevant provision is MCL 125.1564(3); MSA 5.2949(104)(3), and
Lincoln Park has not established that provision’s applicability.
As to the claims against L. N. Hayden, Inc. and Benker, I agree that genuine issues
remained as to their status as governmental employees. Further, their entitlement to immunity
under the provisions of MCL 691.1407(2); MSA 3.996(107)(2), if applicable, has not been
established.
In all other respects I join in the per curium opinion.
/s/ Helene N. White
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