GERLING KONZERN ALLGEMEINE VERSICHERUNGS AG V CECIL R LAWSON
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED MARCH 8, 2005
GERLING KONZERN ALLGEMEINE
VERSICHERUNGS AG, subrogee of
REGENTS OF THE UNIVERSITY OF
MICHIGAN,
Plaintiff-Appellant,
v
No. 122938
CECIL R. LAWSON and AMERICAN
BEAUTY TURF NURSERIES, INC.,
jointly and severally,
Defendants-Appellees.
______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
This
case
requires
that
we
consider
whether
a
plaintiff, who has settled an underlying tort claim with an
injured party, may subsequently proceed on a contribution
action against a defendant whom the plaintiff alleges was a
joint tortfeasor whose negligence constituted a proximate
cause of the underlying plaintiff's injuries.
Defendants
argue that tort reform legislation in 1995, specifically
MCL 600.2956, MCL 600.2957, and MCL 600.6304, has abrogated
plaintiff’s contribution action because, had the underlying
tort action proceeded to trial, the jury or judge would
have been required to allocate fault among all tortfeasors
and each tortfeasor, including plaintiff, would have been
required to pay only for its percentage of fault.
Further,
defendants maintain that, if plaintiff paid more in the
settlement than was warranted by its percentage of fault,
it
did
so
as
a
volunteer
and
therefore
cannot
seek
contribution from joint tortfeasors.
These arguments are unavailing for the simple reason
that the 1995 tort reform legislation preserved the right
of a severally liable tortfeasor such as plaintiff to bring
an
action
for
contribution.
Therefore,
we
reverse
the
judgment of the Court of Appeals and remand this case to
the
trial
court
for
further
proceedings
consistent
with
this opinion.
I.
This
case
FACTS
arose
occurred in 1997.
AND
from
PROCEDURAL HISTORY
a
three-vehicle
accident
that
In one vehicle were Ricki Ash and James
Nicastri, the injured parties in the underlying claim; in
the second vehicle, owned by the Regents of the University
of Michigan (Regents), was employee Barry Maus; and in the
third
vehicle,
owned
by
American
Beauty
Turf
Nurseries,
Inc. (American Beauty), was employee Cecil Lawson.
2
Ash and
Nicastri filed suit in the Court of Claims against Maus and
the Regents.
Gerling Konzern Allgemeine Versicherungs AG
(Gerling Konzern), the insurer and subrogee of the Regents,
settled with Ash and Nicastri on behalf of Maus and the
Regents,
and
the
underlying
tort
action
was
accordingly
dismissed with prejudice.
In November 1999, plaintiff in this action, Gerling
Konzern,
Lawson
filed
and
a
contribution
American
Beauty
600.2925d.
Defendants
action
against
to
pursuant
moved
for
defendants
600.2925a-
MCL
summary
disposition
pursuant to MCR 2.116(C)(8), arguing that the tort reform
acts of 1995, 1995 PA 161 and 1995 PA 249, by eliminating
joint
and
including
several
the
liability
underlying
in
action
certain
in
this
plaintiff’s contribution cause of action.
denied
defendants’
motion
for
summary
tort
case,
actions,
abrogated
The trial court
disposition.
On
appeal, the Court of Appeals reversed the order of the
trial court and remanded for entry of judgment in favor of
defendants,
holding
that
plaintiff’s
contribution
action
was barred as a result of the elimination of joint and
several liability and the rule that, in tort actions in
which
liability
is
several
only,
each
tortfeasor
required to pay only for his percentage of fault.
App
241;
657
NW2d
143
(2002).
3
We
granted
is
254 Mich
plaintiff’s
application for leave to appeal, 469 Mich 947 (2003), and
subsequently
ordered
that
the
resubmitted.
471 Mich 855 (2004).
II. STANDARD
OF
case
be
reargued
and
REVIEW
We review de novo the trial court’s decision to grant
or deny summary disposition under MCR 2.116(C)(8).
Maiden
v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
A
motion under MCR 2.116(C)(8) tests the legal sufficiency of
the complaint, and may be granted only where the claims
alleged are “‘so clearly unenforceable as a matter of law
that
no
factual
recovery.’”
development
could
possibly
justify
Maiden, supra at 119 (citation omitted).
We
also review questions of statutory interpretation de novo.
Oade v Jackson Nat’l Life Ins Co, 465 Mich 244, 250; 632
NW2d 126 (2001).
III.
Until
the
enactment
ANALYSIS
of
tort
reform
legislation
in
1995, concurrent tortfeasors in Michigan were “jointly and
severally”
liable.
tortfeasors
caused
This
a
meant
single
or
that
where
indivisible
multiple
injury,
the
injured party could either sue all tortfeasors jointly or
he could sue any individual tortfeasor severally, and each
individual tortfeasor was liable for the entire judgment,
although
the
injured
party
4
was
entitled
to
full
compensation only once.
See
Markley v Oak Health Care
Investors of Coldwater, Inc, 255 Mich App 245, 251; 660
NW2d 344 (2003); Maddux v Donaldson, 362 Mich 425, 433; 108
NW2d 33 (1961).
“At common law, contribution was not, as a
general rule, recoverable among or between joint wrongdoers
or tortfeasors.”
603;
358
NW2d
O'Dowd v Gen Motors Corp, 419 Mich 597,
553
(1984).
The
right
of
contribution,
although now codified in a majority of states, evolved in
equity.
See 4 Restatement Torts, 2d, § 886A, comment c.1
Thus, even though, at law, a “joint and several” tortfeasor
was liable for an entire judgment, equity came to allow
that
tortfeasor
tortfeasors.
to
seek
contribution
from
other
A primary purpose underlying “contribution”
was to mitigate the unfairness resulting to a jointly and
severally liable tortfeasor who had been required to pay an
entire judgment in cases in which other tortfeasors also
contributed to an injury.
However, as part of the 1995 tort reform legislation,
the
Legislature
enacted
MCL
600.2956,
which
provides
in
part, “Except as provided in section 6304, in an action
based on tort or another legal theory seeking damages for
1
This
remains
apparent
in
Michigan’s
relevant
statutory provisions.
For example, MCL 600.2925b(c)
provides,
“[p]rinciples
of
equity
applicable
to
contribution generally shall apply.”
5
personal injury, property damage, or wrongful death, the
liability of each defendant for damages is several only and
is not joint.”
action
based
MCL 600.2957(1) further provides, “In an
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
percentage of fault.”
proportion
to
the
person's
Finally, MCL 600.6304 provides:
(1) In an action based on tort . . . 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 . . . shall instruct the
jury to answer special interrogatories or, if
there is no jury, shall make findings indicating
both of the following:
* * *
(b) The percentage of the total fault of
all persons that contributed to the death or
injury . . . .
* * *
(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).
Thus,
the
1995
legislation
eliminated
joint
and
several liability in certain tort actions, requires that
the fact-finder in such actions allocate fault among all
responsible tortfeasors, and provides that each tortfeasor
need
not
pay
damages
in
an
6
amount
greater
than
his
allocated percentage of fault.
which
an
injured
party
has
As such, in an action in
sued
only
one
of
multiple
tortfeasors and in which §§ 2956, 2957, and 6304 apply, the
tortfeasor would have no need to seek contribution from
other tortfeasors, either in that same action (by bringing
in third-party defendants) or in a separate action, because
no “person shall . . . be required to pay damages in an
amount greater than his or her percentage of [allocated]
fault . . . .”
Section 6304(4).
Thus, the dissent is
correct in observing that the “1995 tort reform legislation
has . . . rendered unnecessary most claims for contribution
in personal injury accidents.”
Yet,
although
the
1995
Post at 8.
tort
reform
legislation
may
have “rendered unnecessary" most contribution claims, this
does not mean that it precludes every type of contribution
claim, in particular that at issue in the instant case.
Even
before
the
1995
legislation,
a
tortfeasor
had
a
statutory right to seek contribution in the event that he
settled a claim, see MCL 600.2925a(3), and this is the type
of contribution at issue here.
Contribution actions have
not always solely been directed toward recovering monies
that
a
“jointly
and
severally”
liable
tortfeasor
was
required to pay as the result of a verdict for which the
tortfeasor
was
fully,
although
7
not
solely,
responsible.
Rather,
such
actions
have
also
been
directed
toward
obtaining contribution from other responsible tortfeasors
following a settlement.
We find no basis in §§ 2956, 2957,
or 6304 to conclude that a right to seek contribution in
these circumstances has been precluded in cases in which
liability among multiple tortfeasors is now “several” only
rather than “joint and several.”
MCL 600.2925a provides, in 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 than 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 tortfeasor against whom contribution is sought shall
not be compelled to make contribution beyond his
own pro rata share of the entire liability.
(3)
A
tort-feasor
who
enters
into
a
settlement with a claimant is not entitled to
recover contribution from another tort-feasor if
any of the following circumstances exist:
(a) The liability of the contributee for the
injury or wrongful death is not extinguished by
the settlement.
(b) A reasonable effort was not made to
notify the contributee of the pendency of the
settlement negotiations.
(c)
The
contributee
8
was
not
given
a
reasonable opportunity to
settlement negotiations.
(d)
faith.
The
settlement
participate
was
not
made
in
in
the
good
These provisions lead to the conclusion that plaintiff
is entitled to seek contribution from defendants, and the
tort reform legislation, in our judgment, does not alter
this
conclusion.
notwithstanding,
The
this
dissent’s
case
overreaching
is
actually
straightforward statutory interpretation.
analysis
one
of
As a result of
the underlying accident in this case, “2 or more persons
bec[a]me . . . severally liable in tort for the same injury
. . . .”
Section 2925a(1).
contribution
among
them
Thus, “there is a right of
even
though,”
as
in
this
case,
“judgment has not been recovered against all or any of
them.”2
Id.
Plaintiff’s right to seek contribution exists
because plaintiff allegedly has, “paid more than his pro
rata share of the common liability . . . .”3
Section
2
Judgment has not been recovered against any
tortfeasor in this case because the injured parties instead
settled with plaintiff.
3
Section 2925b(a) provides that, for purposes of
contribution, “in determining the pro rata shares of
tortfeasors in the entire liability as between themselves
only . . . [t]heir relative degrees of fault shall be
considered.”
Thus, in determining whether a severally
liable tortfeasor has paid more than his “pro rata” share
of the common liability such that he may be entitled to
contribution under § 2925a, § 2925b requires considering
9
2925a(2).
Plaintiff’s “total recovery [in the contribution
action] is limited to the amount paid by him in excess of
his pro rata share.”
Id.
Moreover, § 2925a(3) provides statutory support for
plaintiff’s
contribution
claim
settlement.
Plaintiff,
a
“tort-feasor
[the
injured
into
a
settlement
is
with
resulting
from
who
its
enter[ed]
parties]”
and,
therefore, “is . . . entitled to recover contribution from
another
tort-feasor”
enumerated
in
§
unless
one
2925a(3)(a)-(d)
alleged here to be the case.
of
the
exists,
circumstances
which
is
not
Section 2925a(3).4
each tortfeasor’s relative degree of fault, just as § 6304
requires the fact-finder to consider the relative degree of
fault of each tortfeasor in any action subject to several
liability under that provision.
4
Moreover, MCL 600.2925c(4) provides:
If there is not a judgment for the injury or
wrongful death against the tort-feasor seeking
contribution, his right to contribution is barred
unless he has discharged by payment the common
liability within the statute of limitations
period applicable to claimant's right of action
against him and has commenced his action for
contribution within 1 year after payment, or
unless he has agreed while action is pending
against him to discharge the common liability and
has, within 1 year after the agreement, paid the
liability
and
commenced
his
action
for
contribution. [Emphasis added.]
This provision contemplates situations such as the
instant one, in which a tortfeasor is seeking contribution
even though there has been no judgment against it because
10
IV. RESPONSE
The
grounds.
dissent’s
First,
TO
argument
it
DISSENT
appears
observes,
to
rest
correctly,
on
that
three
under
§
2925a(2), a plaintiff may seek contribution only if he has
paid
more
than
his
share
of
the
“common
liability.”
Therefore, unless a severally liable tortfeasor shares a
“common liability” with other tortfeasors, he has no right
to contribution.
The dissent then concludes that, because
the 1995 tort reform legislation made tort liability in
relevant
actions
several,”
there
“several”
is
no
only
“common
and
not
liability”
“joint
and
among
the
tortfeasors and, thus, no right to contribution under §
2925a(2).
Post at 10-11.
Essentially, the dissent equates
“common liability” and “joint liability” and concludes that
common liability does not exist where liability is several
only.
The dissent’s position is flawed.
Its construction of
“common liability” as used in § 2925a(2) is inconsistent
with
the
Legislature’s
express
statutory
directive
in
§
the tortfeasor has settled with the injured parties.
As
long as the tortfeasor complies with the requirements of
this provision, it may proceed on its contribution claim
pursuant to sections 2925a(3)(a)-(d).
Contrary to the
dissent’s suggestion, post at 12, a tortfeasor’s legal
liability is not “governed by the gamesmanship and legal
strategies of his fellow tortfeasors.”
Rather, such
liability is governed by the language of § 2925a.
11
2925a(1)
that
liability
is
contribution
joint
or
may
be
obtainable
several.
The
where
dissent’s
interpretation of “common liability” essentially reads the
“joint[] or several[]” language out of the statute.5
Moreover, in O’Dowd, this Court specifically addressed
whether
a
tortfeasor
who
was
“severally”
entitled to seek contribution under § 2925a.
a
right
to
specifically
contribution
refers
to
existed
liability
liable
We held that
because
that
was
is
§
2925a
“joint[]
or
several[]”:
[A]ll
that
is
necessary
to
enforce
contribution
[under
§
2925a]
is
that
the
tortfeasors commonly share a burden of tort
liability or, as it is sometimes put, there is a
common burden of liability in tort. . . . If the
defendants are jointly or severally liable in
tort for "the same injury to a person" or for
"the same injury to . . . property" or for "the
same wrongful death", contribution pursuant to [§
[O’Dowd, supra at 6042925a] is obtainable.
606.][6]
5
In discerning legislative intent, a court must “give
effect to every word, phrase, and clause in a statute . . .
.”
State Farm Fire & Cas Co v Old Republic Ins Co, 466
Mich 142, 146; 644 NW2d 715 (2002).
6
O’Dowd further asserted:
The Legislature partially abrogated the
common-law bar [to contribution] by adopting the
1939 Uniform Contribution Among Tortfeasors Act
which provided for contribution in respect of a
judgment obtained against two or more persons
jointly. . . .
Subsequently,
the
12
Legislature
.
.
.
In Salim v LaGuire, 138 Mich App 334, 341; 361 NW2d 9
(1984), the Court of Appeals similarly observed, “(1) the
former bar against contribution among nonjoint tortfeasors
is abolished; (2) the right of contribution exists among
nonintentional wrongdoers who share a common liability; and
(3)
common
responsible
liability
for
an
indivisible injury.”
exists
among
accident
individuals
which
produces
who
a
are
single
(Emphasis added.)
Accordingly, a “common liability” exists in situations
in
which
multiple
tortfeasors
are
liable
for
the
same
injury to a person or property or for the same wrongful
death.
Common
liability
exists
in
such
cases
because
multiple tortfeasors are alleged to be “responsible for an
accident
Id.
which
produce[d]
a
single
indivisible
injury.”
The 1995 tort reform legislation does not negate the
substituted the substance of the 1955 Uniform
Contribution Among Tortfeasors Act for the 1941
act. Section 1 of the statute now provides:
“(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 . . . ." [Emphasis in O'Dowd.]
. . . The revised act by explicitly
providing for contribution among tortfeasors
“severally” liable in tort extended contribution
to [such tortfeasors]. [O’Dowd, supra at 603-604
(citations
omitted;
emphasis
added
unless
otherwise noted).]
13
existence
of
tortfeasors.
common
liability
among
such
multiple
On the contrary, § 6304(1) provides that the
allocation provisions of that section apply to tort actions
“for personal injury, property damage, or wrongful death
involving
fault
of
more
than
1
person,”
just
as
the
contribution provisions of § 2925a(1) apply “when 2 or more
persons become . . . severally liable in tort for the same
injury to a person or property or for the same wrongful
death . . . .”
Section 6304 applies specifically in those
cases in which there is common liability among multiple
tortfeasors,
and
it
is
inaccurate
to
interpret
it
as
meaning that there is no longer any common liability among
responsible
tortfeasors.
Rather,
the
common
liability
remains; what differ merely are the terms and conditions by
which that liability must be satisfied.
That is, by virtue
of § 6304, in cases in which there has been a judgment, a
tortfeasor
need
only
pay
a
percentage
of
liability that is proportionate to his fault.
the
common
Previously,
where there had been a judgment, a tortfeasor could have
been required to pay the entire amount of common liability
and then seek contribution from other tortfeasors according
to their degrees of fault.
Second, the dissent relies on Restatement Torts, 3d:
Apportionment of Liability, § 11, comment c, which states:
14
When, under applicable law, a person is
severally liable to an injured person for an
indivisible
injury,
the
injured
person
may
recover
only
the
severally
liable
person's
comparative-responsibility share of the injured
person's damages.
* * *
c.
Contribution
by
severally
liable
defendant. When all defendants are severally
liable, each one is separately liable for that
portion
of
the
plaintiff's
damages.
Since
overlapping liability cannot occur, severally
liable defendants will not have any right to
assert a contribution claim. See § 23, Comment f.
[Emphasis in original.]
We note that the duty of this Court is to construe the
language of Michigan’s statutes before turning to secondary
sources such as the Restatements.
The specific statute at
issue, § 2925a, allows for contribution after a settlement
in cases in which liability is joint or several.
the
those
above
Restatement
situations,
section
already
refers,
discussed
Moreover,
specifically,
above,
in
to
which
an
injured party has sued only one of multiple tortfeasors and
the court, as it is obligated to do, has applied § 6304.
The
dissent
is
correct
in
observing
that
in
such
situations, the 1995 tort reform legislation, because it
provides that liability is now several only, has “rendered
unnecessary most claims for contribution in personal injury
accidents.”
Post at 8.
“[Because] overlapping liability
cannot occur, severally liable defendants [need] not have
15
any right to assert a contribution claim.”
Restatement
Torts, 3d, § 11, comment c.
However, more relevant to the specific issue raised in
the
instant
case
is
the
Restatement
Torts,
3d:
Apportionment of Liability, § 23, which provides in part:
(a) When two or more persons are or may be
liable for the same harm and one of them
discharges the liability of another by settlement
or discharge of judgment, the person discharging
the liability is entitled to recover contribution
from the other, unless the other previously had a
valid settlement and release from the plaintiff.
(b)
A
person
entitled
to
recover
contribution may recover no more than the amount
paid to the plaintiff in excess of the person's
comparative share of responsibility.
There
is
nothing
in
the
language
of
§
23
or
its
comments to suggest that it does not apply in those cases
in which the settling tortfeasor was only severally liable.
The pertinent question is not whether liability is joint
and
several,
or
several
only,
but
settlement released the contributee.
rather
whether
the
See note 10 later in
this opinion.
Finally, the dissent asserts, despite the fact that §
2925a provides that it applies to cases in which liability
is “joint[] or several[],” that contribution is barred in
cases in which liability is several because a severally
liable tortfeasor, pursuant to § 6304, is never required to
pay more than his allocated share of fault.
16
Thus, the
dissent surmises, “‘plaintiff’s decision to voluntarily pay
pursuant to a settlement must be attributed to its own
assessment
of
liability
negligence.’”
dissent's
Post
analysis
is
at
based
14
on
its
(citation
defective.
insured’s
omitted).
That
a
The
tortfeasor
is
never required, “in an action” to which § 6304 applies, to
pay more than its allocated share of fault is simply not
relevant in determining whether the tortfeasor may exercise
its statutory right to settle with the injured party and
then exercise its statutory right to seek contribution from
other
tortfeasors
on
the
basis
of
each
tortfeasor’s
relative degree of fault.
This is illustrated by the fact that, even before the
1995 tort reform legislation, a tortfeasor whose liability
was
“joint
and
several”
was
never
required,
in
a
settlement, to pay more than what it deemed to be its fair
share of the common liability burden.
Yet, even though not
required, the statute specifically gave (and continues to
give) a tortfeasor who chose to settle for more than its
fair
share
tortfeasors.7
a
right
to
seek
contribution
from
other
Indeed, the dissent would retain that right
7
The important consideration in determining whether a
settling tortfeasor may seek contribution from other
tortfeasors has always been, and continues to be, not
whether the tortfeasor settled for what it considered to be
17
for tortfeasors whose liability remained joint and several.
Because
no
tortfeasor,
including
one
whose
liability
is
“joint and several,” is or has ever been required to settle
for more than his fair share of the common liability and
yet § 2925a provides a right to contribution even after
settling, it is evident that the dissent’s analysis on this
point is defective and cannot be sustained.8
Not only is the dissent’s position ungrounded in the
its fair share of the common liability or, alternatively,
for the entire amount of the common liability, but whether
the settling party complied with the conditions set forth
in § 2925a(3)(a)-(d), including releasing through the
settlement the contributee from further liability to the
injured party. Thus, even if a settling tortfeasor settles
for only what it presumes to be its fair share of the
common liability, if the settlement releases another
tortfeasor, that settling tortfeasor, if it complies with
the remainder of the statutory settlement conditions, may
seek contribution from the released contributee.
For the same reason, we find no merit in the dissent’s
suggestion, post at 16, that the majority's decision will
place parties in an “untenable position” during settlement
negotiations, because they must “pretend . . . that each is
potentially
liable
for
the
whole
of
a
plaintiff’s
injuries.”
Because a settling party may still seek
contribution under MCL 600.2925a for payments made in
excess of its fair share of the common liability, there is
no need to “pretend” to the contrary.
8
The dissent has a point, as noted above, that the
1995
tort
reform
legislation
renders
unnecessary
contribution actions that, in the absence of §§ 2956, 2957,
and 6304, would have otherwise resulted after a “jointly
and severally” liable tortfeasor has been required to pay
an entire judgment to an injured party. Nonetheless, that
these
provisions
also
prohibit
contribution
actions
resulting from a settlement is a concept, as also noted
above, that has no apparent source in Michigan law.
18
relevant statutes, it raises an unnecessary disincentive to
voluntary
settlements,
plaintiffs
and
potentially
harming
both
willing
The
dissent
states
defendants.9
willing
that, “while settlements are generally favored, neither MCL
600.2925a
nor
Legislature’s
MCL
goal
600.6304
was
to
makes
promote
clear
voluntary
that
the
settlement.
Instead, their provisions place the risk of, and burden
for, payment upon a party only to the extent that it is
actually responsible for the injury.”
Post at 15.
The
dissent may be correct in these assertions, but they are
irrelevant.
Section
2925a
may
not
“clearly”
reflect
a
legislative intent of encouraging settlements, but neither
does
it
disfavor
reflect,
clearly
settlements,
or
which
otherwise,
any
is
the
what
intent
to
dissent’s
9
A tortfeasor might rationally conclude, after all,
that it is in his interest to settle for an amount greater
than his estimated pro rata liability as determined by a
trier of fact.
Taking a case to trial and leaving the
allocation of responsibility to the trier of fact can
involve a number of transactional costs.
There are, for
example, fees for attorneys, retained experts and other
litigation costs, possible fiscal losses because of
negative publicity, and opportunity costs incurred by those
required to divert their time and energy from more
productive matters to litigation.
A severally liable tortfeasor might prefer to settle
for more than his pro rata share in order to avoid these
costs. This incentive may be especially powerful when the
tortfeasor believes that he may be found liable for noneconomic damages that defy accurate estimation.
19
construction would produce.
Moreover, to construe § 2925a
as affording a settling party a right to seek contribution
from
other
liability
responsible
is
several
tortfeasors
only
does
in
not
cases
in
which
countermand
the
legislative intent of placing the “risk of, and burden for,
payment upon a party only to the extent that it is actually
responsible for the injury.”
such
a
construction
of
§
Post at 15.
2925a
works
On the contrary,
affirmatively
to
effect that intent.10
10
See CSX Transportation, Inc v Union Tank Car Co, 173
F Supp 2d 696, 699-700 (ED Mich, 2001), in which the United
States District Court for the Eastern District of Michigan,
in a contribution claim filed after a settlement by the
settling party against other responsible tortfeasors, noted
that while § 6304 renders contribution claims unnecessary,
§ 2925a still allows such claims after a settlement, thus
furthering the legislative goals of encouraging settlements
and properly allocating fault:
Plaintiff CSXT is seeking an allocation of
fault between the tortfeasors in this case. It is
seeking neither "joint liability," nor "joint and
several liability." Plaintiff CSXT is entitled,
under Michigan law, to show that the Defendants
and Plaintiff CSXT were/are severally liable
(with
an
appropriate
allocation
of
the
percentages of fault) for the rail tank car
accident in January of 2000.
Because currently, in the usual case [i.e.,
the cases that proceed to trial], the allocation
of fault is mandated, there will usually not be a
circumstance where a tortfeasor has paid more
than his pro-rata share of the common liability.
Thus, there would be no need for a claim for
contribution. This is what Kokx v. Bylenga, 241
Mich. App. 655, 617 N.W.2d 368 (2000) explained.
20
. . .
In the instant case, [because] Plaintiff
CSXT . . . has settled numerous lawsuits, paying
the full share of each, CSXT can assert that it
has paid more than its pro-rata share of the
liability. Thus, under Michigan law, it has a
claim for contribution.
If the purposes behind the Michigan tort
reform legislation were speedy settlement of
suits, and allocation of fault, thwarting CSXT's
ability to seek contribution defies both of those
objectives. First, without the possibility of
seeking "reimbursement" from other tortfeasors,
CSXT would have no interest in seeking a speedy
settlement of claims. Further, allowing CSXT to
bring a claim for contribution furthers the
purpose of holding tortfeasors responsible for
their share of the liability.
A
brief
example
explains
a
possible
misunderstanding of the effect of the tort reform
legislation. Assume two tortfeasors are equally
responsible for an injury. Prior to the tort
reform legislation, they could each be held
liable for 100% of the injury. If one defendant
paid the entire balance, he could sue the second
defendant for contribution. However, after the
tort reform legislation abolished joint and
several liability (in nearly all cases, and the
exceptions are irrelevant here), each could only
be held for 50% of the injury. Therefore, there
would be no need for an action for contribution.
This does not mean that a cause of action
for contribution was completely extinguished by
the legislation; it simply means that in the
usual case [i.e., those that proceed to trial],
it would not be needed. This is bolstered by the
fact that the legislature did not repeal the
contribution statute.
In the instant case, the claims have been
settled without an allocation of fault. One
tortfeasor has paid 100%, although there are
likely other tortfeasors which can be allocated
21
V. CONCLUSION
MCL 600.2925a-600.2925d provide plaintiff a statutory
right
to
seek
contribution
from
other
responsible
tortfeasors after having settled with the injured parties
in the underlying tort action, and tort reform legislation
in 1995 does not alter this right.
that
plaintiff
may
against defendants.
proceed
on
its
Accordingly, we hold
contribution
action
We reverse the judgment of the Court
of Appeals and remand this case to the trial court for
further proceedings consistent with this opinion.
Stephen J. Markman
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
some of the fault. The statute permits a claim
for contribution in this situation -- Plaintiff
CSXT can allege that it has paid more than its
pro-rata share of the liability. The tort reform
legislation did not erase this right.
22
S T A T E
O F
M I C H I G A N
SUPREME COURT
GERLING KONZERN ALLGEMEINE
VERSICHERUNGS AG, subrogee of
REGENTS OF THE UNIVERSITY OF
MICHIGAN,
Plaintiff-Appellant,
v
No. 122938
CECIL R. LAWSON AND AMERICAN
BEAUTY TURF NURSERIES, INC.,
jointly and severally,
Defendants-Appellees.
_______________________________
WEAVER, J. (concurring).
I concur in the majority’s conclusion that plaintiff
may proceed with its contribution action against defendant.
As both the majority and the dissent note, tort reform has
rendered
many
contribution
actions
unnecessary.1
Nonetheless, the contribution statute, MCL 600.2925a, has
not been repealed by the Legislature and remains in effect.
Therefore, we must apply it to the present case.
Further,
I
agree
with
the
majority’s
analysis
of
“common liability,” as that which “exists in situations in
which multiple tortfeasors are liable for the same injury
1
Ante at 7; post at 8.
to a person or property or for the same wrongful death.”
Ante at 13.
Multiple tortfeasors are “‘responsible for an
accident which produce[d] a single indivisible injury.’”
Id. (citation omitted).
While a tortfeasor is now required
to pay only a percentage of liability proportionate to the
tortfeasor’s degree of fault, there remains a single injury
to the person or property for which multiple tortfeasors
may be held liable, according to their degrees of fault.
Thus, there is “common liability.”
The dissent’s analysis of “common liability” would, in
essence,
“common
wipe
out
liability”
Post at 8-12.
the
with
contribution
“joint
statute
and
several
by
equating
liability.”
While there may be good policy reasons to
reconsider how the contribution statute should operate in
light of recent tort reform, these questions are properly
resolved by the Legislature, which may repeal or amend the
statute as it sees fit.
In the present case, it is alleged that there are
multiple tortfeasors responsible for “a single injury” to
Ricki
Ash
liability”
and
James
under
the
Nicastri.
statute,
2
Thus,
and
there
plaintiff
is
“common
may
proceed
with its contribution action.2
For these reasons, I concur
in the result of the majority opinion.
Elizabeth A. Weaver
2
Note that just because plaintiff may proceed with a
contribution action, this does not mean that plaintiff will
prevail.
Plaintiff must establish that defendant is at
fault in the accident, the degree of defendant’s fault, and
that it paid more than its pro rata share of the entire
liability.
3
S T A T E
M I C H I G A N
O F
SUPREME COURT
GERLING KONZERN ALLGEMEINE
VERSICHERUNGS AG, subrogee of
REGENTS OF THE UNIVERSITY OF
MICHIGAN,
Plaintiff-Appellant,
v
No. 122938
CECIL R. LAWSON and AMERICAN
BEAUTY TURF NURSERIES, INC.,
jointly and severally,
Defendants-Appellees.
______________________________
KELLY, J. (dissenting).
Plaintiff
portion
of
seeks
settlement
contribution
monies
from
paid
to
defendants
two
third
for
a
parties
following a traffic accident involving three vehicles.
We
are
is
asked
to
decide
whether
a
contribution
action
possible under the facts of this case and in light of tort
reform legislation enacted in 1995.
The majority finds that such an action is viable, even
considering
that
Michigan
has
adopted
a
negligence scheme for personal injury actions.
plaintiff
percentage
would
of
not
fault
have
had
been
this
liable
case
for
proceeded
comparative
Under it,
defendants'
to
trial.
Because
I
believe
that
the
majority
misreads
this
tort
reform legislation, I disagree with its conclusions.
According
to
MCL
600.2956,
part
of
the
1995
tort
reform legislation, tortfeasors' potential liability in a
personal injury lawsuit is several and not joint.
Applied
to this case, it follows that plaintiff’s insured was not
liable for defendants' negligence.
Hence, it could not
have been held legally responsible to pay damages to third
parties for injuries arising from defendants' negligence.
When plaintiff settled with the third parties, the amount
it agreed to pay could not be held to have included any of
another party’s percentage of fault for the accident.
Consequently, I would find that plaintiff cannot now
seek contribution from the defendants for monies it paid in
settlement of the third parties' claim.
Thus, I would
affirm the decision of the Court of Appeals that any amount
that plaintiff paid in excess of its insured’s percentage
of fault should be deemed a voluntary payment.
FACTS
AND
LOWER COURT PROCEEDINGS
This case is a secondary proceeding that arose from a
three-vehicle traffic accident on October 21, 1997.
vehicle
was
occupied
by
Ricki
Ash
and
James
One
Nicastri.
Another was driven by Barry Maus, who was employed by the
University of Michigan Board of Regents.
2
Plaintiff is the
insurer of Maus and of the regents.
The third vehicle was
a semitrailer driven by defendant Cecil R. Lawson, who was
employed by defendant American Beauty Turf Nurseries, Inc.
Ash and Nicastri sued Maus and the regents for damages
for their injuries.
In a separate proceeding, Lawson sued
Maus and the regents for his injuries.
Plaintiff settled
both lawsuits against Maus and the regents, paying on their
behalf approximately $2.2 million to Ash and Nicastri and
$85,000 to Lawson.
In November 1999, plaintiff filed a separate complaint
seeking
statutory
contribution
under
MCL
600.2925a
from
Lawson and American Beauty Turf for a portion of the amount
it had paid to Ash and Nicastri.
Defendants moved for
summary disposition in their favor, alleging that plaintiff
and
the
regents
had
requirements
of
600.2925a(3)
through
motion
and
the
found
not
complied
contribution
(5).
that
The
with
the
statute.
trial
plaintiff
had
notice
See
denied
court
given
MCL
the
defendants
sufficient notice of its settlement negotiations with Ash
and
Nicastri.
These
claims
are
not
at
issue
in
this
appeal.
After
the
trial
court's
motion
cutoff
date
passed,
defendants moved to dismiss pursuant to MCR 2.116(C)(8).
They
argued
that
the
1995
3
tort
reform
legislation,
specifically
abrogated
MCL
600.2956,
plaintiff's
600.2957(1),
cause
of
action
and
for
600.6304(1),
contribution.
Without addressing the substantive issue, the trial court
denied the motion as untimely.
On appeal, the Court of Appeals reversed the decision
and remanded for entry of judgment in defendants' favor.
It held that, under the express language of the statutes at
issue, contribution was not available to plaintiff.
Mich
App
241,
248;
657
NW2d
143
(2002).
We
254
granted
plaintiff's application for leave to appeal, 469 Mich 947
(2003), and subsequently ordered that the case be reargued
and resubmitted.
471 Mich 855 (2004).
STATUTORY LANGUAGE
This Court reviews de novo a decision on a motion for
summary
disposition.
Questions
regarding
the
interpretation and construction of statutes are questions
of law that are also reviewed de novo.
Northville Charter
Twp v Northville Pub Schools, 469 Mich 285, 289; 666 NW2d
213 (2003).
When construing a statute, our goal is to
ascertain and give effect to the intent of the Legislature
in writing it.
Turner v Auto Club Ins Ass'n, 448 Mich 22,
27; 528 NW2d 681 (1995).
words
that
the
The best measure of intent is the
Legislature
used.
Chandler
v
Dowell
Schlumberger Inc, 456 Mich 395, 398; 572 NW2d 210 (1998).
4
As the Court of Appeals correctly noted, at issue here
is
the
interplay
amendments
of
preexisting
the
between
the
Revised
contribution
provisions
Judicature
provisions
in
the
1995
Act1
and
the
in
MCL
contained
600.2925a, 600.2925b, and 600.2925c.
The pertinent subsections of MCL 600.2925a state:
(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 tortfeasor against whom contribution is sought shall
not be compelled to make contribution beyond his
own pro rata share of the entire liability.
[Emphasis added.]
One
tortfeasor
can
seek
contribution
from
another
regardless of whether a judgment has been entered against
either. MCL 600.2925c(1).
However:
If there is not a judgment for the injury or
wrongful death against the tort-feasor seeking
contribution, his right to contribution is barred
unless he has discharged by payment the common
liability within the statute of limitations
period applicable to claimant's right of action
against him and has commenced his action for
contribution within 1 year after payment, or
unless he has agreed while action is pending
1
1995 PA 161 and 1995 PA 249.
5
against him to discharge the common liability and
has, within 1 year after the agreement, paid the
liability
and
commenced
his
action
for
contribution.
[MCL
600.2925c(4)
(emphasis
added).]
MCL
600.2925b
addresses
the
expression
"pro
rata
share" and includes considerations of fault and equity:
Except as otherwise provided by law, in
determining the pro rata shares of tortfeasors in
the entire liability as between themselves only
and without affecting the rights of the injured
party to a joint and several judgment:
(a) Their relative degrees of fault shall be
considered.
(b) If equity requires, the collective
liability of some as a group shall constitute a
single share.
(c) Principles of equity applicable
contribution generally shall apply.
to
It is against this statutory backdrop that the Court
is asked to address plaintiff's right to contribution under
the 1995 tort reform legislation.
MCL 600.2956 states:
Except as provided in [MCL 600.6304], 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) similarly states:
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 [MCL
6
600.6304], 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
of
each
person,
regardless of whether the person is, or could
have been, named as a party to the action.
In connection with the above, the relevant portion of
MCL 600.6304 provides:
(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 thirdparty 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)
damages.
The
total
amount
of
each
plaintiff's
(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).
ANALYSIS
After reviewing the statutory provisions cited above,
I agree with much of the rationale used by the Court of
Appeals in this case and in its previous opinion in Kokx v
7
Bylenga,
241
Mich
App
655;
617
NW2d
368
(2000).
The
essence of these opinions is that the 1995 tort reform
legislation
has
prevented
and
rendered
unnecessary
most
claims for contribution in personal injury accidents.
Contribution
remains
a
useful
tool
for
fault
liability allocation in certain other circumstances.
and
The
Court of Appeals in Kokx opined:
[U]nder the plain and mandatory language of
the revised statutes, a defendant cannot be held
liable for damages beyond the defendant's prorata
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.]
I
agree
with
these
600.2956
continues
liability
exists
vicarious
liability
specifically
to
in
provides
observations.
recognize
claims
.
.
.
for
For
that
common
involving
.”
joint
And
example,
or
“an
MCL
liability
MCL
joint
employer’s
600.6304(6)
in
medical
malpractice cases.
However, the statutory language at issue in this case
supports defendants' position.
In order for one tortfeasor
to
others,
recover
contribution
from
he
must
pay
complainant more than his pro rata share of the
8
the
common
liability.
The amount that he may recover from the others
is limited to the amount he paid to the complainant in
excess of that for which he was liable.
See also MCL 600.2925c(4).
MCL 600.2925a(2).
In this case, before any such
calculation may be entertained, plaintiff must establish
that under MCL 600.2957 or MCL 600.6304 there is common
liability among the defendants.
This
Court
has
previously
discussed
the
interplay
between contribution and "common liability" as follows:
The general rule of contribution is that one
who is compelled to pay or satisfy the whole or
to bear more than his aliquot share of the common
burden or obligation, upon which several persons
are equally liable or which they are bound to
discharge, is entitled to contribution against
the others to obtain from them payment of their
respective shares. [Caldwell v Fox, 394 Mich 401,
417; 231 NW2d 46 (1975) (emphasis added).]
Thus, in order to enforce contribution under the revised
act, it is necessary that the torfeasors “commonly share a
burden of tort liability or, as it is sometimes put, there
is a common burden of liability in tort.”
O'Dowd v Gen
Motors Corp, 419 Mich 597, 604-605; 358 NW2d 553 (1984).
See also Caldwell, supra at 420 n 5.
However, although these older cases are useful to a
point, they do not take into account the sweeping changes
the Legislature made in tort reform in 1995.
2956,
2957,
and
6304
replaced
9
the
notion
Sections
of
common
liability, which also has been referred to as joint and
several liability, with "fair-share liability."
See Smiley
v Corrigan, 248 Mich App 51, 53 n 6; 638 NW2d 151 (2001),
citing House Legislative Analysis, HB 4508 (Substitute H6), April 27, 1995, p 3.
longer
be
joint
Thus, because liability can no
but
is
now
solely
several
under
circumstances such as exist in this case, there is no basis
for
contribution.
There
which to seek it.
is
no
"common
liability"
from
See Restatement Torts, Apportionment of
Liability, 3d, § B19, comment k, p 183.
The
majority
adopts
plaintiff's
argument
that
§
2925a(1), because it refers to persons who become “jointly
or
severally
tortfeasors
However,
liable,”
are
severally
plaintiff
conjunction
with
may
fails
the
apply
liable
to
to
under
evaluate
limitation
in
cases
§
MCL
§
in
which
600.2956.
2925a(1)
2925a(2).
in
That
subsection expressly restricts the right of contribution to
circumstances where there has been a payment of greater
than one’s pro rata share of “common liability.”
See also
§ 2925c(4).
Thus, it is not enough that tortfeasors are “jointly
or severally liable.”
Before contribution can be sought,
they must share a “common liability.”
This does not occur
when the liability of tortfeasors is several.
10
As stated in
Restatement Torts, Apportionment of Liability, 3d, § 11, p
108:
When, under applicable law, a person is
severally liable to an injured person for an
indivisible
injury,
the
injured
person
may
recover
only
the
severally
liable
person's
comparative-responsibility share of the injured
person's damages.
I
also
find
comment
c
of
the
same
provision
persuasive:
c.
Contribution
by
severally
liable
defendant. When all defendants are severally
liable, each one is separately liable for that
portion
of
the
plaintiff's
damages.
Since
overlapping liability cannot occur, severally
liable defendants will not have any right to
assert a contribution claim. [Id., p 109.]
Therefore, the conclusion in Salim v LaGuire,2 that
common liability could exist among individuals responsible
for an accident causing a single indivisible injury, may
have
been
correct
before
the
enactment
of
tort
reform.
However the injury involved in this case is no longer an
“indivisible injury” under MCL 600.2925a.
has
indicated
its
intention
that
The Legislature
these
"indivisible
injuries" now be divided.
In essence, what the majority appears to argue is that
we
should
continue
our
notions
constituted an indivisible injury.
2
of
what,
in
past,
In so doing, it ignores
138 Mich App 334, 340; 361 NW2d 9 (1984).
11
the
the intent of the Legislature in passing tort reform.
The
majority realizes that, had this case proceeded to trial,
plaintiff
could
not
have
defendants' negligence.
plaintiff
chose
maintains
that
to
the
been
held
responsible
(Ante at 15-16.)
settle
before
injury
trial,
remains
for
Yet, because
the
indivisible
majority
and
thus
plaintiff's contribution action is viable.
I conclude that the Legislature did not intend that a
tortfeasor's
legal
liability
for
personal
injury
be
governed by the gamesmanship and legal strategies of his
fellow tortfeasors.3
Implicit in the majority’s opinion is
the premise that an injury only becomes divisible when a
jury divides it.
I cannot accept this position.
It would
allow the parties to circumvent the tort reform statutes
during
settlement.
tortfeasors'
Rather,
potential
the
liability
Legislature
on
the
has
cause
based
of
action
involved, and what cause is involved is determined at the
commencement of litigation.
The
majority's
analysis
relies
before the existence of tort reform.
on
case
law
decided
It uses this law to
frustrate the Legislature's recognition that injuries may
3
I note that the majority omits the fact that
plaintiff had already entered into a separate settlement
agreement with defendant Lawson before it brought this
contribution action.
12
now share a common origin or cause, yet result in no common
liability or burden in tort.
Similarly, a plaintiff should not rely on the language
of MCL 600.2925b merely because it sets out guidelines for
determining the “pro rata shares” of common liability.
The
statute does not expose a plaintiff to greater liability
than it would otherwise have under § 2956, § 2957, and §
6304.
Where common liability exists, a review could be
made of the measure of pro rata shares under MCL 600.2925b,
possibly subjecting a tortfeasor to more liability than his
actual percentage of fault.
However, § 2925b does not
apply where there is no common liability.
Thus, I think it clear that a pro rata division can be
made only when tortfeasors actually share a common tort
burden
or
liability.
Because
this
case
is
a
personal
injury action, it is governed by MCL 600.2956 and, pursuant
to that statute, there is no common liability.
plaintiff's
insured
was
responsible
only
separate liability to Ash and Nicastri.
for
Hence,
its
own
This fact did not
change simply because plaintiff chose to settle instead of
proceeding
to
a
jury
determination
of
the
actual
percentages of fault of plaintiff's insured and defendants.
Even if plaintiff deliberately paid more than its pro
rata share of the total liability, it cannot recover any of
13
that excess from defendants.
As the Court of Appeals aptly
stated, “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.”
247-248.
254 Mich App
This view is certainly not unusual:
In
a
several
liability
system,
the
nonsettling tortfeasor is held only for his
comparative fault share.
In determining the
percentage responsibility of the nonsettling
tortfeasor, jurors must determine the comparative
share of every tortfeasor, including those who
have settled.
However, a determination that A's
fault was 50% and B's fault was 50% does not
affect A's settlement or his liability.
It
merely means that B is liable for 50%, no more,
no less. If A paid more than 50% of the damages,
that was his decision.
If he paid less, the
plaintiff made a bad bargain, but none of this
matters to B's liability.
[2 Dobbs, The Law of
Torts, Practitioner Treatise Series (2001) § 390,
p 1088.]
The
reading
majority
of
these
opinion
statutes
discusses
creates
at
a
length
how
my
disincentive
to
voluntary settlement (Ante at 19 to conclusion.)
However,
it also acknowledges that "[a] primary purpose underlying
'contribution' was to mitigate the unfairness resulting to
a
jointly
and
severally
liable
tortfeasor
who
had
been
required to pay an entire judgment in cases in which other
tortfeasors also contributed to an injury." (Ante at 5.)
Allowing a contribution action in this case does not serve
14
the Legislature’s purpose in enacting tort reform, which
changed the scheme to fair-share liability.
Moreover,
while
settlements
are
generally
favored,
neither MCL 600.2925a nor MCL 600.6304 makes clear that the
Legislature’s
Instead,
their
liability.
upon
a
goal
was
to
promote
provisions
settlement.4
voluntary
are
designed
to
allocate
They place the risk of, and burden for, payment
party
only
to
the
responsible for an injury.
extent
that
it
is
actually
This applies even if the injury
traditionally would be viewed as indivisible.
The
logic
of
the
majority’s
position
that
its
interpretation encourages settlement and mine hinders it is
shaky.
Once
parties
know
the
rules
involving
negotiations, settlement will be facilitated.
their
Clarifying
the statute’s meaning so that the parties know the extent
of their liability aids negotiations.
It does not preclude
them.
In addition, I find questionable the assertion that
allowing
will
contribution
foster
actions
settlement
goals.
4
under
The
these
circumstances
majority
fails
to
I recognize that the language of MCL 600.2925a(3)
discusses what must be done during settlement negotiations
to permit a subsequent contribution action.
However, I
read this language as barring tortfeasors who do not first
seek the inclusion of other potentially liable parties in
settlement
negotiations,
not
as
a
policy
statement
preferring settlement.
15
recognize the untenable position in which parties will be
placed during settlement negotiations as a result of its
decision.
The parties will be left to negotiate portions
of claims for which they have no possible liability.
better
position
is
to
leave
negotiations
over
The
those
portions to the parties actually responsible.
The parties must recognize that, under tort reform,
each tortfeasor cannot be held responsible for more than
his fair share of the liability for a plaintiff's injury.
But
they
must
also
pretend
the
contrary,
that
each
is
potentially liable for the whole of a plaintiff's injuries.
Thus, in deciding whether to settle a claim, tortfeasors
must
calculate
into
their
settlement
decisions
certain
risks for liability that the Legislature has stated do not
exist.
The
majority's
conclusions
inject
unnecessary
confusion into the settlement process involving personal
injury actions.
CONCLUSION
The
language
in
MCL
600.2925a(2)
and
600.2925c(4)
allows recovery in a contribution action based on "common
liability" only.
in
a
personal
MCL 600.2956 precludes common liability
injury
lawsuit.
Because
the
lawsuit
underlying this action was for personal injury, plaintiff's
insured could not be held liable for contribution.
16
It is
liable only for its “fair share” of the damages incurred by
Ash and Nicastri based on its percentage of fault.
Accordingly, plaintiff cannot justifiably state that
when it settled with Ash and Nicastri it was at risk of
shouldering more than its fair share of a common burden.
It cannot now recover contribution from defendants on the
theory that it paid more than its pro rata share of such
liability.
Therefore, I respectfully dissent from the majority's
decision
that
contribution
is
possible
here.
instead affirm the decision of the Court of Appeals.
Marilyn Kelly
Michael F. Cavanagh
17
I
would
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