(dissenting). The central issue in this case is whether plaintiff settled with the individual defendant Richards in violation of the rule in Putney v Haskins, 414 Mich 181; 324 NW2d 729 (1982), reh den 414 Mich 1111 (1982), and MCL 436.22; MSA 18.993, also known as the dramshop act.
The relevant portion of the dramshop act, subsection (5), provides:
"An action against a retailer, wholesaler, or anyone covered by this act or a surety, shall not be commenced unless the minor or the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement. The bond required by this act shall continue from year to year unless sooner canceled by the surety.”
*593The Supreme Court held that a defendant has not been "retained in the action” within the meaning of the statute if a settlement of any kind is reached between the plaintiff and the allegedly intoxicated defendant before "the litigation is concluded by trial or settlement”. Putney, p 184.
In Tebo v Havlik, 418 Mich 350; 343 NW2d 181 (1984), the Supreme Court held that the rule of Putney is applicable to suits where the settlement was entered into after September 28, 1982, the date of the Putney decision. Impanelling of the jury in the instant case occurred July 20, 1983.
On the morning of the commencement of the trial the following stipulation was entered on the record:
”(Ms. Brandon): Second, we would like to put on a stipulation that has been entered into between defendant Richards and plaintiff, in that we will be agreeing to cap the policy limits to 20,000 dollars in exchange for the defendant’s stipulation of allowing in evidence that Mr. Richards’ blood alcohol level was .20 when the breathalyzer test was taken on the night of the accident. Does that summarize:—
"Mr. O’Neill: If I could just elaborate on that. The stipulation is that the plaintiff would agree to limit her recovery against my client, Mr. Richards, to the 20,000 dollars worth of liability insurance that he has, there will be no interest on that amount, in exchange for my client’s admission of negligence and the causation of the accident.
"Also, in exchange for his admittion [sic] that he blew .20 on the breathalyzer test. I don’t know if that is the same as the blood alcohol level.
"Ms. Brandon: All right.
"Mr. O’Neill: Also, further, I indicated I would not object to the calling of Doctor Werner Spitz as a witness on her behalf.
"The Court: Okay.
"Mr. O’Neill: Those are the terms of the stipulation?
*594"Ms. Brandon: Yes.”
Palmiter objected to the stipulation and moved for summary judgment under Putney, supra. The trial court denied Palmiter’s motion, and the case proceeded to trial.
Whatever appellation is given to a settlement agreement, in this case "stipulation”, the language and intent of both the Legislature and Supreme Court is clear. That intent is to bar an action by a plaintiff in a dramshop action if the plaintiff settles with the minor or alleged intoxicated person prior to the conclusion of the litigation by trial or settlement.
Such is the case before us. The plaintiff settled with the alleged intoxicated person and continued her suit against the tavern. The alleged intoxicated person was maintained in the suit only as a nominal party. This is contrary to the objective of the statute and the controlling case law.
A very real effect of such a stipulation or settlement is demonstrated in this case, to wit: the factual defenses of the defendant Richards including negligence, causation, and the right to keep out the results of the Breathalyzer test, were open and available to defendant Palmiter under the dramshop act, but all were waived by Richards. The direct effect of the stipulation or settlement was to strip defendant Palmiter of its defenses.
Stability is needed in this area. The Supreme Court has given the directions to provide that stability. It would delude and deflect the direction given if the trial court is not affirmed.
For the reasons set out I would affirm the trial court.