Whether a claim under the Prepaid Funeral & Cemetery Sales Act (PFCSA) was a breach of contract claim; Statutory duty to maintain records under MCL 328.218(1); Governmental immunity; The Governmental Tort Liability Act (GTLA); Pleading in avoidance of governmental immunity; MCL 328.234; The PFCSA’s definition of “person” (MCL 328.215(b)); Whether a defendant was entitled to governmental immunity under MCL 691.1407(2); “Agents”; “Employee”

The court held that while the trial court erred in ruling plaintiffs’ PFCSA claim sounded in contract, it properly denied defendants-City of Benton Harbor and Crystal Springs Cemetery (the City defendants) summary disposition. Although the PFCSA imposes tort liability, its “direct inclusion of a ‘government agency’ as a ‘person’ that can be sued for damages indicates the Legislature’s intent to waive the immunity conferred by MCL 691.1407(1) for governmental agencies.” Further, defendant-C Management was not entitled to governmental immunity as an “agent” of the City and did not qualify as an “employee” entitled to such immunity under MCL 691.1407(2). Thus, the court affirmed the trial court’s denial of summary disposition for defendants where the trial court reached the correct result even though for the wrong reasons. The case arose from a person being buried in the wrong cemetery plot. Plaintiffs alleged the “City defendants breached their statutory duty to maintain their records under MCL 328.218(1). That duty was ‘separate and distinct’ from their contractual obligations with plaintiffs.” Thus, the court found the trial court erred in determining plaintiffs’ PFCSA claim “sounded in contract, not tort, as the underlying claim was premised on City defendants’ breach of a noncontractual duty imposed by law.” As a result, their PFCSA claim was barred unless they pled in avoidance of governmental immunity. The court found that they did. They asserted that a provision of the PFCSA, MCL 328.234, established “an exception to the general rule that government agencies are immune from tort liability when performing a governmental function.” The court agreed that the PFCSA’s plain language showed “the Legislature’s intent to waive governmental immunity under the GTLA and submit government agencies to the jurisdiction of the circuit court. The Legislature expressly applied the PFCSA to City defendants by including ‘governmental agency’ in the definition of a ‘person’ that can be sued.” As to C Management, even if it “was an agent of City defendants, ‘agents’ do not fall under the categories of persons entitled to governmental immunity under MCL 691.1407(2)[.]” It further rejected C Management’s assertion “that ‘employee’ under MCL 691.1407(2) includes private for-profit corporations serving as agents to a governmental agency.”