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STATE OF MICHIGAN COURT OF APPEALS

RICHARD SANDERS, CAROL SANDERS, JOHN YOUNGBLOOD, MARY JO YOUNGBLOOD, ARTHUR J. LOMBARD, and CHUBB GROUP OF INSURANCE COMPANIES, as Subrogees of RICHARD SANDERS and CAROL SANDERS, Plaintiffs-Appellees, v CITY OF GROSSE POINTE FARMS, Defendant-Appellant.

UNPUBLISHED February 14, 2012

No. 300486 Wayne Circuit Court LC No. 09-002544-NZ

Before: SERVITTO, P.J., and TALBOT and K. F. KELLY, JJ. PER CURIAM. The City of Grosse Pointe Farms ("the City") appeals as of right the trial court's order denying its motion for summary disposition based on governmental immunity and partially granting summary disposition in favor of Richard Sanders, Carol Sanders, John Youngblood, Mary Jo Youngblood, Arthur J. Lombard and Chubb Group of Insurance Companies ("the Homeowners") with respect to whether the City is an "appropriate governmental agency" for purposes of the immunity exception for sewage disposal system events.1 We affirm. This action arises from a June 2008 sewage backup that affected several homes in the Rose Terrace subdivision in Grosse Pointe Farms. The Homeowners' complaint asserted a claim invoking the exception to governmental immunity for a sewage disposal system event. The exception to governmental immunity on which the Homeowners rely provides in part: A governmental agency is immune from tort liability for the overflow or backup of a sewage disposal system unless the overflow or backup is a sewage

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MCL 691.1417(2).

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disposal system event and the governmental agency is an appropriate governmental agency.2 The City filed a motion for summary disposition in which it argued that the exception did not apply because it was not an "appropriate governmental agency" for purposes of the exception. "Appropriate governmental agency" is defined as: [A] governmental agency that, at the time of a sewage disposal system event, owned or operated, or directly or indirectly discharged into, the portion of the sewage disposal system that allegedly caused damage or physical injury.3 The trial court denied the City's motion for summary disposition and granted partial summary disposition in favor of the Homeowners4 "because the undisputed evidence establishes that [the City] owned and operated the portion of the sewage disposal system at Rose Terrace Subdivision that allegedly caused the damage." On appeal, the City argues that it does not own or operate the system that affected the homes in the Rose Terrace subdivision. We disagree. Summary disposition may be granted under MCR 2.116(C)(10) when "there is no genuine issue of material fact, and the moving party is entitled to judgment . . . as a matter of law." Additionally, summary disposition may be raised pursuant to MCR 2.116(C)(7) if "a claim is barred because of immunity granted by law."5 This Court reviews de novo both the applicability of governmental immunity and a trial court's decision on a motion for summary disposition.6 In making its assertion that it does not own the system that caused the alleged damages, the City relies in part on article III,

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Michigan Law