GERLING KONZERN ALLGEMEINE VERSICHERUNGS AG V CECIL R LAWSON
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STATE OF MICHIGAN
COURT OF APPEALS
GERLING KONZERN ALLGEMEINE
VERSICHERUNGS AG, subrogee of the
UNIVERSITY OF MICHIGAN REGENTS,
FOR PUBLICATION
December 3, 2002
9:15 a.m.
Plaintiff-Appellee,
No. 237284
Washtenaw Circuit Court
LC No. 99-011061-CZ
v
CECIL R. LAWSON and AMERICAN BEAUTY
TURF NURSERIES, INC.,
Defendant-Appellant.
Updated Copy
February 14, 2003
Before: Cooper, P.J., and Jansen and R. J. Danhof*, JJ.
PER CURIAM.
Defendants appeal by leave granted the trial court's order denying leave to file a motion
to dismiss pursuant to MCR 2.116(C)(8). We reverse and remand for entry of an order
dismissing plaintiff 's claim with prejudice.
This case arose from a traffic accident involving one vehicle occupied by Ricki Ash and
James Nicastri; one vehicle driven by Barry Maus, who was employed by the University of
Michigan Regents; and a semi truck driven by defendant Cecil R. Lawson, who was employed
by defendant American Beauty Turf Nurseries, Inc. Plaintiff in this case is the insurer of Maus
and the regents. Ash, Nicastri, and Lawson sued Maus and the regents for their injuries; the
cases were settled with plaintiff, on behalf of the regents, paying Ash and Nicastri approximately
$2.2 million and Lawson $85,000.
Plaintiff then filed a complaint against defendants for statutory contribution pursuant to
MCL 600.2925a. Defendants answered, asserting inter alia that plaintiff "failed to state a cause
of action upon which relief may be granted." Several months later, defendants filed a motion for
summary disposition that alleged plaintiff and the regents had not complied with the notice
requirements of the contribution statute. The motion was denied.
One year later, after the trial court's dispositive motion cutoff date, mediation, and
settlement conferences, defendants moved for leave to file a motion to dismiss pursuant to MCR
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* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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2.116(C)(8). Defendants argued that the 1995 tort reforms, specifically MCL 600.2956, MCL
600.2957(1), and MCL 600.6304(1), abrogated plaintiff 's cause of action for contribution.
Without addressing the substantive issue, the trial court denied defendants' motion, stating, "The
period for raising such issues was long since passed. The case is ready for trial. The motion for
leave to file a motion to dismiss based on this case law from over a year ago is denied." The trial
court also issued an order denying defendants' motion for a stay.
We review a trial court's refusal to allow further filings after a discovery deadline under
an abuse of discretion standard. See, e.g., Carmack v Macomb Co Community College, 199
Mich App 544, 546; 502 NW2d 746 (1993). A decision on a motion for summary disposition is
reviewed de novo. Singerman v Muni Serv Bureau, Inc, 455 Mich 135, 139; 565 NW2d 383
(1997). Questions regarding the interpretation and construction of statutes are questions of law,
which this Court also reviews de novo. Stozicki v Allied Paper Co, Inc, 464 Mich 257, 263; 627
NW2d 293 (2001).
Whether the 1995 tort reform legislation permits contribution in cases where one
tortfeasor settled with the injured party is a question of first impression for this Court. Our
primary goal when interpreting statutes is to give effect to the intent of the Legislature.
Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 159; 615 NW2d 702 (2000). We must first
examine the language of the statute, affording the words their common and ordinary meaning.
Stozicki, supra at 263; Nawrocki, supra at 159. If the statutory language is clear and
unambiguous, it reflects the intent of the Legislature and judicial construction is not permitted.
Michalski v Bar-Levav, 463 Mich 723, 731; 625 NW2d 754 (2001). Furthermore, this Court will
not read anything into the statute that is not within the manifest intent of the Legislature as
gathered from the act itself. In re S R, 229 Mich App 310, 314; 581 NW2d 291 (1998).
In its enactment of 1995 PA 161 and 1995 PA 249 (the 1995 tort reform legislation), the
Legislature made many changes to the Revised Judicature Act, including the elimination of joint
liability in a variety of circumstances. See MCL 600.2956, MCL 600.2957, and MCL 600.6304;
Kokx v Bylenga, 241 Mich App 655, 662; 617 NW2d 368 (2000).
MCL 600.2956 states:
Except as provided in section 6304, in an action based on tort or another
legal theory seeking damages for personal injury, property damage, or wrongful
death, the liability of each defendant for damages is several only and is not joint.
However, this section does not abolish an employer's vicarious liability for an act
or omission of the employer's employee.
MCL 600.2957(1) further provides:
In an action based on tort or another legal theory seeking damages for
personal injury, property damage, or wrongful death, the liability of each person
shall be allocated under this section by the trier of fact and, subject to section
6304, in direct proportion to the person's percentage of fault. In assessing
percentages of fault under this subsection, the trier of fact shall consider the fault
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of each person, regardless of whether the person is, or could have been, named as
a party to the action.
Moreover, MCL 600.6304 provides, in relevant part:
(1) In an action based on tort or another legal theory seeking damages for
personal injury, property damage, or wrongful death involving fault of more than
1 person, including third-party defendants and nonparties, the court, unless
otherwise agreed by all parties to the action, shall instruct the jury to answer
special interrogatories or, if there is no jury, shall make findings indicating both
of the following:
(a) The total amount of each plaintiff 's damages.
(b) The percentage of the total fault of all persons that contributed to the
death or injury, including each plaintiff and each person released from liability
under section 2925d, regardless of whether the person was or could have been
named as a party to the action.
* * *
(4) Liability in an action to which this section applies is several only and
not joint. Except as otherwise provided in subsection (6), a person shall not be
required to pay damages in an amount greater than his or her percentage of fault
as found under subsection (1).
Also relevant to the instant action is the contribution statute, MCL 600.2925a(1), enacted
before the 1995 tort reform legislation, which provides, in pertinent part:
(1) Except as otherwise provided in this act, when 2 or more persons
become jointly or severally liable in tort for the same injury to a person or
property or for the same wrongful death, there is a right of contribution among
them even though judgment has not been recovered against all or any of them.
(2) The right of contribution exists only in favor of a tort-feasor who has
paid more that his pro rata share of the common liability and his total recovery is
limited to the amount paid by him in excess of his pro rata share. A tort-feasor
against whom contribution is sought shall not be compelled to make contribution
beyond his own pro rata share of the entire liability.
The 1995 tort reform legislation applies to contribution claims; thus, contribution claims
based on tort involving the fault of more than one person are no longer viable because there is no
joint liability in those circumstances. Kokx, supra at 663-664. Specifically, this Court has
stated:
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[U]nder the plain and mandatory language of the revised statutes, a
defendant cannot be held liable for damages beyond the defendant's pro-rata
share, except in certain specified circumstances. Accordingly, in actions based on
tort or another legal theory seeking damages for personal injury . . . there would
be no basis for a claim of contribution. Moreover, because joint liability remains
in certain circumstances, the Legislature would have no reason to repeal § 2925a,
which provides for a right of contribution . . . . [Id. at 663.]
Further, this Court held: "[T]o the extent that the statutes enacted as part of the Legislature's
1995 tort reform do not allow a person to be held responsible for paying damages beyond the
person's pro-rata share of responsibility as determined under § 6304, claims for contribution are
no longer viable." Id. at 664.
Plaintiff, however, argues that this rule does not apply where the action from which the
contribution claim arises has been settled before trial, that there must be a specific finding
regarding the fault of each tortfeasor to determine its pro rata share of the common liability, and
that it must be given the opportunity to establish that it has paid more than its pro rata share of
the common liability.
We find plaintiff 's argument unpersuasive. The statutory provisions at issue are clear
and unambiguous, as is the case law. Smiley v Corrigan, 248 Mich App 51, 56; 638 NW2d 51
(2001); Kokx, supra. The 1995 tort reform legislation abolished joint and several liability,
replacing it with "fair share liability" in actions of this nature; the parties never become jointly
and severally liable in tort as required by MCL 600.2925a. Smiley, supra at 55. The purpose of
this legislation is to ensure that exposure to liability is limited to a party's own pro rata degree of
fault. Id. Therefore, there is no longer a basis for a party to assert that it was exposed to liability
greater than its pro rata share, and parties in these instances are no longer entitled to contribution.
For purposes of settlement, a party must assess its pro rata share of liability in arriving at the
settlement amount, that is, the amount for which it could be found liable if the action were to
proceed to trial. Under the 1995 tort reform legislation, plaintiff was not exposed to liability
beyond its pro rata share; therefore, plaintiff 's decision to voluntarily pay pursuant to a
settlement must be attributed to its own assessment of liability based on its insured's negligence.
Plaintiff 's claim for contribution based on its allegation that it made a payment greater than its
pro rata share thus cannot be sustained.
In light of the dispositive nature of defendants' proposed motion for summary disposition,
we find that the trial court abused its discretion in denying them leave to file the motion for
summary disposition. Because plaintiff may not seek contribution from defendants, defendants
are entitled to judgment as a matter of law; on remand, the trial court should dismiss plaintiff 's
claim with prejudice.
Although the time set forth in the scheduling order for dispositive motions had expired,
the court rules expressly provide that defendants may "at any time" assert that plaintiff has failed
to state a cause of action. MCR 2.116(D)(3). MCR 2.116(D)(3) "serves to remove any time
limit for asserting [MCR 2.116(C)(8)] as a basis for summary disposition." Yee v Shiawassee Co
Bd of Comm'rs, 251 Mich App 379, 392, n 16; 651 NW2d 756 (2002). This is clearly logical,
because no party should have to defend a claim that is not recognized in the state. Moreover, a
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scheduling order cannot give rise to a cause of action that does not exist. We find the denial of
defendants' motion, on the basis of its relative untimeliness, was an abuse of discretion and,
therefore, in error.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Jessica R. Cooper
/s/ Kathleen Jansen
/s/ Robert J. Danhof
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