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Michigan Supreme Court Lansing, Michigan 48909 _____________________________________________________________________________________________
C hief Just ice Justices

Maura D . Corrigan

Opinion
THE TRAVELERS INSURANCE COMPANY,
Plaintiff-Appellee,
v THE DETROIT EDISON COMPANY,
Defendant-Appellant,
and
CITY OF DETROIT WATER AND SEWERAGE DEPARTMENT,
Nonparticipating Defendants.
______________________________________________ BEFORE THE ENTIRE BENCH
MARKMAN, J.


Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 27, 2001


No. 116610


We granted leave to appeal in this case, directing the
parties to address: (1) whether the doctrine of primary
jurisdiction is properly characterized as a "defense," and, if
so, (2) whether such a defense is waived by a party's failure
to raise it in the first responsive pleading. 463 Mich 906


(2000), citing Rinaldo's Construction Corp v Michigan Bell
Telephone Co, 454 Mich 65, 70; 559 NW2d 647 (1997), and Grand
Blanc Landfill Inc v Swanson Environmental Inc, 448 Mich 859;
528 NW2d 734 (1995).
For the reasons set forth below, we hold that the


doctrine of primary jurisdiction is not a defense, but rather
a prudential doctrine of judicial deference and discretion.
We further conclude that the doctrine is not waivable, and the
circuit court did not err in deferring plaintiff's claim to
the Michigan Public Service Commission (MPSC ). Therefore, we


reverse the judgment of the Court of Appeals and reinstate the
decision of the Wayne Circuit Court.
I. FACTUAL BACKGROUND
Endeavoring to service certain customers in downtown
Detroit, Detroit Edison Company (Detroit Edison) sent steam
power to Heaven on Earth Inn.1 Because repairs were being


performed on one of its steam lines in January of 1994,
Detroit Edison shut off steam power to the Inn. As a result,
The


the Inn's water pipes froze, and flood damage resulted.

Inn was insured by appellee, Travelers Insurance Company.
After paying on the claim filed by the Inn, Travelers sought
subrogation from Detroit Edison. On October 17, 1995,


Detroit Edison provided the steam power pursuant to
tariff no. 4, which had been filed and approved by the MPSC .
2


1

Travelers filed several tort claims and a breach of contract
claim before the Wayne Circuit Court. On March 19, 1996, the


court granted partial summary disposition on the tort claims
in Detroit Edison's favor. The sole remaining claim that


survived this disposition was the breach of contract claim.2
Nearly twelve months after the circuit court's grant of
partial summary disposition, and seventeen months after the
original complaint had been filed, Travelers moved to amend
its original complaint. Travelers motion. The circuit court granted, in part,


Detroit Edison countered with an answer to


Travelers amended complaint and, for the first time, asserted
the doctrine of primary jurisdiction. that the
MPSC

Detroit Edison claimed


was the agency with the sole authority to assert


jurisdiction over the contract dispute between itself and
Travelers.3 After this assertion, Detroit Edison moved for


Specifically, in count III of the complaint, Travelers
alleged that Detroit Edison had contracted with the Inn to
provide steam service to the Inn's property. Travelers
further alleged that Detroit Edison's cessation of steam
service was a breach of its contractual obligations, and that
such breach caused foreseeable damage to the Inn's property.
Travelers claimed that the Inn sustained property damage in
the amount of $1,632,710.00.
Detroit Edison's assertion that the MPSC had primary
jurisdiction over the action was based on the breach of
contract claim brought by Travelers, alleging that Detroit
Edison had violated general rule no. 4 of MPSC tariff no. 4.
That rule states:
The Company will endeavor, but does not
guarantee, to furnish continuous and adequate steam
3

3

2

summary disposition under MCR 2.116(C)(4)4 on the ground that
the court lacked subject-matter jurisdiction.5
Entertaining the parties' oral arguments on Detroit


Edison's motion, the circuit court ruled that Detroit Edison
could rely on the doctrine of primary jurisdiction, even
though the doctrine was first asserted in an answer to an
amended complaint over eighteen months after the filing of the
initial complaint in the case. conflict among jurisdictions The circuit court noted a
regarding whether primary


jurisdiction can be asserted after judicial proceedings have


service . . . . Service is subject to interruption
by agreement, by accident, or by necessity of
maintenance or system operation or other causes not
under the control of the Company.
The Company will not be liable for damages,
either direct or consequential, caused by any
interruption of service . . . due to strike,
accident, . . . storm or flood, or other natural
disasters or any cause whatsoever beyond its
control except such as may result from failure of
the Company to exercise reasonable care and skill
in furnishing the service. [237 Mich App 485, 487;
603 NW2d 317 (1999).]
That rule disposition

4

provides

that

a

motion

for

summary


may be based on one or more of these grounds, and
must specify the grounds on which it is based:
* * *
(4) The court lacks jurisdiction of the subject
matter.
Detroit Edison also relied on this Court's decision in
Rinaldo's, supra.
4

5


commenced, or whether the assertion has been waived by a
party's failure to raise it. the circuit court stated:
Michigan courts recognize the concept of
primary jurisdiction as, not so much divesting a
court of its subject-matter jurisdiction in favor
of the exclusive jurisdiction of an administrative
agency, but a "concept of judicial deference and
discretion," and that it exists as "recognition of
the need for orderly and sensible coordination of
the work of agency and of courts."
Concerning the present case, the circuit court held that
"while [Detroit] Edison ha[d] defended the case and ha[d]
participated in discovery, nonetheless, the case ha[d] not yet
come to an adjudicatory phase with respect to the breach of
contract claim." The court found that the reasons for not
Citing Rinaldo's, supra at 70,


allowing waiver of primary jurisdiction expressed in Dist of
Columbia v Thompson, 570 A2d 277 (DC App, 1990), also applied
here.6 Further, the court stated that this result was


consistent with the direction of the court in White Lake Ass'n
v Whitehall, 22 Mich App 262, 284; 177 NW2d 473 (1970), to
wit, that the primary jurisdiction doctrine should not be
applied where "judicial proceedings have advanced to a point
where it would be unfair to remit the plaintiff to another and
duplicative proceeding" and where "a court of equity might


Thompson held that the primary jurisdiction doctrine
was not waivable and that policy considerations dictated
against ignoring the doctrine, even after judicial proceedings
had commenced.
5


6


well

conclude

that

the

proper

administration

of

justice


requires it to retain jurisdiction and itself to decide the
matter." The circuit court stated that here there was no


danger of duplicative proceedings as the plaintiff's breach of
contract claims had not yet been tried.
II. APPELLATE HISTORY
Detroit Edison's victory was short lived. In a published
opinion, the Court of Appeals reversed the circuit court's
grant of summary disposition holding that Detroit Edison had
waived primary jurisdiction by failing to raise the doctrine
until eighteen months had passed from the time of the filing
of the original complaint.
In the Court of Appeals view, the trial court erred when
it ruled that primary jurisdiction was a defense similar to
that of subject-matter jurisdiction, and that it could be
raised at any time during the proceedings. Id. at 492.


Citing LeDuc, Michigan Administrative Law,

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