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TRAVELERS INS. CO. v. DETROIT EDISON CO.

Docket No. 116610, Calendar No. 1.

631 N.W.2d 733 (2001)

465 Mich. 185

The TRAVELERS INSURANCE COMPANY, Plaintiff-Appellee, v. The DETROIT EDISON COMPANY, Defendant-Appellant, and City of Detroit Water and Sewerage Department, Nonparticipating Defendants.

Supreme Court of Michigan.

Decided July 27, 2001.

Attorney(s) appearing for the Case

Grotefeld & Denenberg, L.L.C., (by Todd B. Denenberg and Jeffrey R. Learned), Bingham Farms, MI, for plaintiff-appellee.

John P. Jacobs, Southfield, MI, and Jacob M. Abella, Detroit, MI, for defendant-appellant.

Varnum, Riddering, Schmidt & Howlett, L.L.P., (by Jack D. Sage), Grand Rapids, MI, amici curiae for Dominion Reserves, Inc.

Miller, Johnson, Snell & Cummiskey, P.L.C., (by Jon R. Muth and D. Andrew Portinga), Grand Rapids, MI, amici curiae for North Michigan Land & Oil and Savoy Oil & Gas Shareholder Trust.

Foster, Swift, Collins & Smith, P.C., (by Webb A. Smith, William K. Fahey, and Stephen J. Rhodes), Lansing, MI, and Dennis R. O'Connell and Glen W. Johnson, Detroit, MI, amici curiae for Michigan Consolidated Gas Company.

Opinion

MARKMAN, J.

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, 618 N.W.2d 773 (2000), citing Rinaldo's Construction Corp. v. Michigan Bell Telephone Co...

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