Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 23, 2008
DAVID ROMAIN and JOANN ROMAIN,
Plaintiffs-Appellees,
v No. 135546
FRANKENMUTH MUTUAL INSURANCE COMPANY
and IAQ MANAGEMENT, INC.,
Defendants,
and
INSURANCE SERVICES CONSTRUCTION CORPORATION,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
MEMORANDUM OPINION.
The Wayne Circuit Court summarily dismissed IAQ Management, Inc.
(IAQ) from this action because IAQ did not owe plaintiffs a duty under the
contract involved or under general negligence principles. Thereafter, defendant,
Insurance Services Construction Corporation, filed a notice under MCR 2.112(K)
naming IAQ as a non-party at fault. Because IAQ did not owe plaintiffs a duty,
IAQ’s conduct could not have been “a proximate cause of damage sustained by a
party.”1 Therefore, the circuit court properly granted plaintiffs’ motion to strike
the notice of IAQ as a non-party at fault2 because a non-party at fault must be a
proximate cause of the injured party’s damage. Since the circuit court reached the
correct result, we deny defendant’s application for leave to appeal the Court of
Appeals order denying defendant’s interlocutory application for leave to appeal.
However, we write briefly to eliminate a conflict between two published
Court of Appeals opinions. Specifically, we overrule the statement in Kopp v
Zigich3 that “a plain reading of the comparative fault statutes does not require
proof of a duty before fault can be apportioned and liability allocated.” That is an
incorrect statement of Michigan law. In Jones v Enertel, Inc,4 the Court of
Appeals held that “a duty must first be proved before the issue of fault or
proximate cause can be considered.” Under the “first out” rule of MCR
7.215(J)(1), the Kopp panel should have followed Jones or declared a conflict
under MCR 7.215(J)(2). Because the Kopp panel did not declare a conflict, Jones
is the controlling precedent and proof of a duty is required “before fault can be
1
MCL 600.6304(8).
2
MCR 2.112(K).
3
268 Mich App 258, 260; 707 NW2d 601 (2005).
4
254 Mich App 432, 437; 656 NW2d 870 (2002).
2
apportioned and liability allocated” under the comparative fault statutes, MCL
600.29575 and MCL 600.6304.6
In addition to being the controlling precedent under the court rules, Jones
correctly stated Michigan negligence law; Kopp did not. As noted by this Court in
Riddle v McLouth Steel Products Corp: 7
“In a common law negligence action, before a plaintiff’s fault
can be compared with that of the defendant, it obviously must first
be determined that the defendant was negligent. It is fundamental
tort law that before a defendant can be found to have been negligent,
it must first be determined that the defendant owed a legal duty to
the plaintiff.”
The same calculus applies to negligent actors under the comparative fault statutes.
A common law negligence claim requires proof of (1) duty; (2) breach of that
5
MCL 600.2957(1) 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 [MCL 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.
6
MCL 600.6304(1) requires the fact finder to make findings indicating the
total amount of damages and each person’s total percentage of fault. MCL
600.6304(8) defines “fault” to include “an act, an omission, conduct, including
intentional conduct, a breach of warranty, or a breach of a legal duty, or any
conduct that could give rise to the imposition of strict liability, that is a proximate
cause of damage sustained by a party.” (Emphasis added.)
7
440 Mich 85, 99; 485 NW2d 676 (1992), quoting Ward v K mart Corp,
136 Ill 2d 132, 145; 554 NE2d 223 (1990).
3
duty; (3) causation, both cause in fact and proximate causation; and (4) damages.8
Therefore, under Michigan law, a legal duty is a threshold requirement before
there can be any consideration of whether a person was negligent by breaching
that duty and causing injury to another. Thus, when the Legislature refers to the
common law term “proximate cause” in the comparative fault statutes, it is clear
that for claims based on negligence “‘it must first be determined that the [person]
owed a legal duty to the plaintiff.’”9 Additionally, MCL 600.6304(8) includes in
the definition of fault “a breach of a legal duty . . . that is a proximate cause of
damage sustained by a party.” Before there can be “a breach of a legal duty,”
there must be a legal duty. Without owing a duty to the injured party, the
“negligent” actor could not have proximately caused the injury and could not be at
“fault” for purposes of the comparative fault statutes.
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
8
Schultz v Consumers Power Co, 443 Mich 445, 449; 506 NW2d 175
(1993).
9
Riddle, supra at 99 (citation omitted).
4