TROUTMAN
v.
OLLIS
Docket No. 70356.
Michigan Court of Appeals.
Decided May 1, 1984.Bushnell, Gage, Doctoroff & Reizen (by Noel A. Gage and Kathleen Nesi), for plaintiffs.
Willingham, Cote, Hanslovsky, Griffith & Foresman, P.C. (by James F. Graves and Frederick M. Baker, Jr.), for defendants Miller and Schaftenaar.
Fraser, Trebilcock, Davis & Foster (by Brett J. Bean), for defendant Deneff.
Before: M.J. KELLY, P.J., and CYNAR and J.C. KINGSLEY,[*] JJ.
J.C. KINGSLEY, J.
Plaintiffs appeal by leave *335 granted from an order granting defendants' motion to add Scott Troutman, the minor son of plaintiffs Clyde R. and Mary Troutman, as a necessary party plaintiff.
This action arises out of a motor vehicle accident that occurred on August 5, 1980, in which plaintiffs were injured. At the time of the accident, Mary Troutman was pregnant with, and on September 26, 1980, gave birth to, Scott. Plaintiffs sued defendant Weaver as the owner of the other vehicle involved in the accident, defendant Ollis as driver of that vehicle and defendants Deneff, Miller, and Schaftenaar as joint venturers allegedly engaged in a joint enterprise with defendant Ollis.
Scott was not a party to the action in plaintiffs' original complaint. Plaintiffs later moved to amend their complaint to add Scott as a permissive party plaintiff pursuant to the provisions of GCR 1963, 206.[1] Plaintiffs alleged Scott sustained prenatal injuries resulting in encephalopathy with bilateral upper motor neuron disfunction (hypotonic cerebral palsy) and development disfunction. Plaintiffs voluntarily withdrew this motion, claiming that, because Scott was still an infant, the full extent of his damages caused by the injuries, including any future complications, could not be fully known at that time. Defendants Miller, Schaftenaar, and Deneff (hereinafter defendants) then moved to add Scott as a plaintiff, claiming that he was a necessary party to the action pursuant *336 to GCR 1963, 205.[2] This motion was granted by the trial judge and is challenged on appeal.
Plaintiffs claim that, while he is a proper permissive party plaintiff, Scott is not a necessary party required to be joined as a plaintiff under GCR 1963, 205. That rule requires joinder as parties of all persons "having such interests in the subject matter of an action that their presence in the action is essential to permit the court to render complete relief". GCR 1963, 205.1. An important distinction must be noted between a "necessary" party and a "proper" party as those terms relate to rules for necessary and permissive joinder.
"The designations `necessary' and `proper' parties *337 connote their ordinary meaning. All `necessary' parties must be joined or brought in so that there can be a complete adjudication of rights and interests. `Proper' parties, on the other hand, may be joined or brought in, but their omission does not result in a nonjoinder or give ground for motion to dismiss. As to them, plaintiff has an election to join them or leave them out as he sees fit." 1 Callaghan's Michigan Pleading & Practice (2d ed), § 15.36, p 505.
The Michigan court rule concerning necessary joinder has seldom been construed in the context of the issue presented in this appeal. The federal rule which governs the joinder of necessary parties, FR Civ P 19, is based upon the same principles and objectives that led to the formulation of GCR 1963, 205. Construction of this federal rule is therefore helpful to an understanding of the application of the Michigan rule in this case. See 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed, 1983 Supp), p 299.
FR Civ P 19 does not generally necessitate the joinder of plaintiffs advancing tort claims against the same defendant for injuries arising out of the same transaction or occurrence, even where the potential co-plaintiffs are related by blood or marriage, provided that each plaintiff has a separate, independent cause of action. Cortez v Los Angeles County, 96 FRD 427, 428 (CD Cal, 1983); see also 7 Wright & Miller, Federal Practice and Procedure, § 1623, p 245.
In the case of Field v Volkswagenwerk AG, 626 F2d 293 (CA 3, 1980), multiple plaintiffs asserted rights against the defendant arising out of the same occurrence and presented common questions of law and fact. The trial court denied a motion to dismiss one of the plaintiffs in her individual capacity, emphasizing that her continued presence *338 in the action individually as well as in her representative capacity minimized delay and expense and avoided the risks to the defendant inherent in having to litigate the same basic questions in two forums against different parties. The appellate court reversed that decision and emphasized the distinction between necessary and permissive joinder requirements:
"The right to separate and individual relief asserted against VWAG by Ivana in her individual capacity, however, even though it arises out of the same occurrence, exists quite apart from the claims asserted by Michael Field and Arthur Field's estate and, if upheld, would impose upon VWAG an obligation separate and distinct from its obligations to the other parties. Complete relief under Rule 19(a)(1) `refers to relief as between the persons already parties, not as between a party and the absent person whose joinder is sought, and mere theoretical considerations of disposing of the whole controversy should not be employed' to dismiss an action `where it appears unlikely that absent persons could be adversely affected.' Indeed, to dismiss the action on the ground that Ivana is indispensable would appear `to deny a principal aspect of several liability.'
* * *
"If the right of either Michael Field or Arthur Field's estate to relief against VWAG were established, these parties would be awarded a judgment; if their claims are not sustained, their complaint would be dismissed. In either event, the district court will be able to grant complete relief as between the parties without the joinder of Ivana, and, as we have shown above, it is unnecessary to join Ivana as a party in order to enable VWAG to defend against these claims. VWAG, while it may be entitled to contribution or indemnity from Ivana, cannot be subjected to multiple obligations since its liability, if any, will be serveral. Nor, as Professor Moore has emphasized, does the possibility of a subsequent adjudication that may result in a judgment that is inconsistent as a matter of logic, trigger the application *339 of Rule 19. For when, as alleged here, `several persons are injured by the same tort and proof of damage is individual, the fact that want of estoppel may leave a defendant who has defended successfully against one of the injured parties with the risk that he will be liable to another in a subsequent suit does not make it necessary that all of the punitive plaintiffs to be joined in the same suit, even if * * * there is no jurisdictional inhibition to their joinder." Field, supra, pp 301-302 (footnotes omitted).
Defendants claim they cannot obtain complete relief in the present action without the inclusion of Scott's claim. They also allege that plaintiffs, by withdrawing their motion for permissive joinder while pursuing settlement negotiations on Scott's behalf, seek to settle Scott's claims while at the same time avoiding any discovery with respect to them. Defendants further claim the factors relied on by the trial court, to-wit: judicial economy, avoiding circuity of litigation, promoting full adjudication of all claims with a minimum of effort, allowing defendants to avoid multiple litigation of separate claims arising out of the same transaction and the best interests of Scott himself, compel the joinder of Scott as a plaintiff.
We believe that the term "relief" is used in the Michigan court rule on necessary joinder to denote legal relief only. In this case, the legal relief is the right to money damages. To hold otherwise would require that all claims against a defendant arising out of the same transaction or occurrence be brought in the same action, regardless of the fact that each plaintiff may have a separate and distinct claim for damages. The adoption of such a rule would erase the distinction between necessary joinder and permissive joinder. We conclude that an injured person with a distinctly recognized claim for damages is not in every instance a *340 necessary party plaintiff under GCR 1963, 205 in an action brought by another person or other persons injured in the same occurrence by the same tortfeasor.
Defendants also argue that the rights of Scott will be prejudiced if plaintiffs' action proceeds in his absence. This prejudice will stem from the possibility that, although Scott can assess his damages more accurately in the future, plaintiffs in the present action will have exhausted the insurance proceeds that constitute the only assured source of recovery for his damages.
We share with the trial judge a concern that failure to bring suit at this time on Scott's behalf may ultimately prejudice any efforts by Scott to recover for such damages as he may have suffered in the accident. We believe, however, that the necessary joinder provisions cannot be expanded to cover the present situation. As noted above, that rule necessitates joinder of such persons whose presence "is essential to permit the court to render complete relief". This requirement is not met in a case in which the only relief sought is a money judgment. The proof of his damages is individual to Scott; the liability of the defendants is several to the plaintiffs. While many of defendants' arguments concerning the desirability of joinder in this case have merit, none bring the case within the scope of the necessary joinder rule. It is clear that, while Scott may be permitted to join the action as a plaintiff, he should not be compelled to join the action as a necessary party plaintiff.
We do not address plaintiffs' claim that the rules concerning joinder conflict with the minority saving provisions of MCL 600.5851; MSA 27A.5851. We note, however, that there is persuasive merit to the trial judge's conclusion that no such conflict exists.
*341 We do not reach plaintiffs' second claim on appeal regarding adjournment of the trial date and expanded discovery on the part of the defendants. Resolution of that claim appears necessary only if the order joining Scott as a party plaintiff had been upheld.
Reversed and remanded.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] ".1 Permissive Joinder. All persons may join in 1 action as plaintiffs
"(1) if they assert any right to relief jointly, severally or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action; or
"(2) if it appears that their presence in the action will promote the convenient administration of justice."
[2] ".1 Necessary Joinder. Subject to the provisions of Rule 208 and of sub-rule 205.2, persons having such interests in the subject matter of an action that their presence in the action is essential to permit the court to render complete relief shall be made parties and be joined as plaintiffs or defendants and aligned in accordance with their respective interests.
".2 Effect of Failure to Join. When persons described in sub-rule 205.1 have not been made parties and are subject to the jurisdiction of the court, the court shall order them summoned to appear in the action, and may prescribe the time and order of pleading. If jurisdiction over such persons can be acquired only by their consent or voluntary appearance, the court may proceed with the action and grant such appropriate relief to persons who are parties as will prevent a failure of justice. In determining whether to proceed, the court shall consider:
"(1) whether a valid judgment may be rendered in favor of the plaintiff in the absence of the person not joined;
"(2) whether the plaintiff has any other effective remedy should the action be dismissed because of the nonjoinder;
"(3) the prejudice which may result from the nonjoinder to the defendant or to the person not joined;
"(4) whether such prejudice, if any, may be avoided or lessened by a protective order of the court or provision included in its final judgment.
"Notwithstanding the failure to join any person who should have been joined, the court may render a judgment against the plaintiff whenever it is determined that the plaintiff is entitled to no relief as a matter of substantive law."