Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway
FILED MARCH 31, 2009
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
PER CURIAM.
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 nonparty 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 nonparty at fault2 because a nonparty at fault must be a
proximate cause of the damage sustained by the injured party. We affirm the
circuit court’s ruling.
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 apportioned and
liability allocated” under the comparative fault statutes, MCL 600.29575 and MCL
1
MCL 600.6304(8).
2
MCR 2.112(K).
3
Kopp v Zigich, 268 Mich App 258, 260; 707 NW2d 601 (2005).
4
Jones v Enertel, Inc, 254 Mich App 432, 437; 656 NW2d 870 (2002).
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,
2
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
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
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
Riddle v McLouth Steel Products Corp, 440 Mich 85, 99; 485 NW2d 676
(1992), quoting Ward v K mart Corp, 136 Ill 2d 132, 145; 554 NE2d 223 (1990).
8
Schultz v Consumers Power Co, 443 Mich 445, 449; 506 NW2d 175
(1993).
3
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.
Affirmed.
Marilyn Kelly
Michael F. Cavanagh
Elizabeth A. Weaver
Diane M. Hathaway
9
Riddle, supra at 99 (citation omitted).
4
STATE OF MICHIGAN
SUPREME COURT
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.
_______________________________
YOUNG, J. (dissenting).
I dissent from the readoption of our previously vacated July 23, 2008,
memorandum opinion in today’s opinion per curiam. I believe that we erred in
our construction of the definition of “fault,” as used in MCL 600.6304(8).
Specifically, I believe that the majority opinion conflates the common-law concept
of “proximate causation” with the common-law concept of “negligence,” a result
not contemplated by the plain language of the comparative fault statutes. On
reconsideration, I do not believe that the statutes require proof of a duty before a
person may be found to be a proximate cause of an injury and allocated fault.
Rather, duty and proximate causation are two separate elements of a negligence
claim—a wholly different concept than “fault.”
1
Accordingly, I would reverse the trial court’s order striking Insurance
Services Construction’s (ISC) notice of nonparty at fault and remand for further
proceedings at which the relative fault of both ISC and IAQ Management, Inc.
(IAQ), should be taken into consideration.
I. Relevant Facts and Procedural History
Plaintiffs, David and Joann Romain, are homeowners who filed a claim
with their homeowner’s insurance provider, Frankenmuth Mutual Insurance, for
water and toxic mold damage. Frankenmuth referred plaintiffs to ISC to
undertake the remodeling and mold remediation. After ISC completed the
remodeling, Frankenmuth hired IAQ to test the air quality in the home. IAQ
certified that the mold had been remediated and the home was safe for occupancy.
Despite IAQ’s certification, plaintiffs alleged that they began suffering from
illnesses caused by toxic mold. Plaintiffs subsequently filed suit against
Frankenmuth, IAQ, and ISC.
Of import to this appeal, the trial court dismissed plaintiffs’ tort claims
against IAQ because IAQ did not owe a duty to plaintiffs. This ruling has not
been challenged on appeal. ISC subsequently filed a notice of nonparty at fault
under MCR 2.112(K)1 naming IAQ. Ultimately, the trial court struck the notice
1
MCR 2.112(K) provides:
(1) Applicability. This rule applies to actions for personal
injury, property damage, and wrongful death to which MCL
600.2957 and MCL 600.6304, as amended by 1995 PA 249, apply.
2
on the basis of Jones v Enertel, Inc,2 which held that the existence of a duty is a
necessary condition precedent to a consideration of proximate causation and
allocating fault under MCL 600.6304(8). The trial court recognized, however, that
Jones was inconsistent with the subsequent Court of Appeals opinion in Kopp v
Zigich,3 which rejected a duty prerequisite to a finding of fault. Accordingly, the
trial court stayed the proceedings to allow ISC to file an interlocutory application
for leave to appeal.
The Court of Appeals denied ISC’s application for leave “for failure to
persuade the Court of the need for immediate appellate review.”4 ISC then sought
leave to appeal in this Court. We initially affirmed the trial court’s order striking
the notice of nonparty at fault in a memorandum opinion, which is reproduced in
the majority opinion. However, we unanimously granted ISC’s motion for
reconsideration or rehearing and vacated the earlier memorandum opinion. We
asked the parties to address
(2) Notice Requirement. Notwithstanding MCL 600.6304,
the trier of fact shall not assess the fault of a nonparty unless notice
has been given as provided in this subrule.
Subsections 3 and 4 of the court rule outline the procedural and substantive
requirements for the notice and allow a plaintiff to amend its complaint following
the filing of a notice.
2
254 Mich App 432; 656 NW2d 870 (2003).
3
268 Mich App 258; 707 NW2d 601 (2005).
4
Romain v Frankenmuth Mut Ins, unpublished order of the Court of
Appeals, entered November 21, 2007 (Docket No. 278591).
3
whether the Legislature’s use of the term “proximate cause” in MCL
600.6304 conflicts with other statutory provisions, whether the
Legislature intended to impose a legal duty requirement as a
precondition for allocating fault under MCL 600.2957 and MCL
600.6304, and whether, if MCL 600.6304 merely codified the
common-law doctrine of negligence, a finding of duty is a
prerequisite to a finding of fault.[5]
II. Standard of Review
This case involves the proper application of various provisions of
Michigan’s “comparative fault” statutes. We review issues of statutory
construction de novo. Our goal is to give effect to the Legislature’s intent as
expressed in the language of the statute.6
III. Analysis
In 1995, the Legislature enacted tort reform legislation. As part of that
reform, the Legislature abolished joint liability while retaining several liability.
MCL 600.2956 provides: “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.”7
The Legislature also enacted MCL 600.2957 and MCL 600.6304 regarding
the comparative allocation of fault. Section 2957 provides, in relevant part:
5
Romain v Frankenmuth Mut Ins, 482 Mich 992 (2008).
6
Renny v Dep’t of Transportation, 478 Mich 490, 495; 734 NW2d 518
(2007).
7
MCL 600.2956.
4
(1) 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 of each
person, regardless of whether the person is, or could have been,
named as a party to the action.
***
(3) [MCL 600.2956 to 600.2960] do not eliminate or diminish
a defense or immunity that currently exists, except as expressly
provided in those sections. Assessments of percentages of fault for
nonparties are used only to accurately determine the fault of named
parties. If fault is assessed against a nonparty, a finding of fault does
not subject the nonparty to liability in that action and shall not be
introduced as evidence of liability in another action.[8]
Section 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 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 [MCL 600.2925d], regardless of
whether the person was or could have been named as a party to the
action.
(2) In determining the percentages of fault under subsection
(1)(b), the trier of fact shall consider both the nature of the conduct
8
Emphasis added.
5
of each person at fault and the extent of the causal relation between
the conduct and the damages claimed.
(3) The court shall determine the award of damages to each
plaintiff in accordance with the findings under subsection (1),
subject to any reduction under subsection (5) or [MCL 600.2955a] or
[MCL 600.6303], and shall enter judgment against each party,
including a third-party defendant, except that judgment shall not be
entered against a person who has been released from liability as
provided in section 2925d.
(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). This subsection and section 2956 do not apply to a
defendant that is jointly and severally liable under [MCL 600.6312].
***
(8) As used in this section, “fault” includes 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.[9]
By requiring a duty as a precondition of determining “fault” or “proximate
causation,” the majority opinion imports principles of common-law “negligence”
into the tort reform acts. This is not contemplated by the plain language of the
statutes. By its plain language, the definition of “fault” in § 6304(8) does not
require a party to establish the elements of a negligence claim or prove the
existence of a duty before allocating fault to a nonparty.
When a statute employs a common-law term, such as “proximate cause,”
and expresses no intent to alter the common-law meaning of that term, this Court
9
Emphasis added.
6
must interpret the statute consistently with that meaning.10 When the Legislature
uses a “legal term of art,” we must give that term its “peculiar and appropriate
legal meaning.”11
The meaning of “proximate cause” under the common law is easiest to
ascertain in connection with its role as an element of a common-law negligence
claim. In order to establish a negligence claim, a plaintiff must prove: (1) duty, (2)
breach of duty, (3) causation, and (4) damages.12 To establish the element of
causation for a negligence action, a plaintiff must prove that the defendant’s
actions were both a cause in fact and legal cause of its injury.13 The cause in fact
component is established by showing that the injury or harm would not have
occurred “but for” the defendant’s action.14 Legal, or proximate, cause, on the
other hand, “involves examining the foreseeability of consequences, and whether a
defendant should be held legally responsible for such consequences.”15
10
MCL 8.3a.
11
Brackett v Focus Hope, Inc, 482 Mich 269, 276; 753 NW2d 207 (2008).
12
Lorencz v Ford Motor Co, 439 Mich 370, 375; 483 NW2d 844 (1992).
13
Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994).
14
Id. at 163.
15
Id. See also Stoll v Laubengayer, 174 Mich 701, 705; 140 NW 532
(1913) (“[I]t must appear that the injury was the natural and probable consequence
of the negligence or wrongful act, and that it ought to have been foreseen in light
of the attending circumstances.”).
7
As stated, a plaintiff must establish all four necessary elements, including
duty and proximate cause, as a precondition for a finding of negligence. As this
Court explained in Moning v Alfono, the elements of duty and proximate cause are
related:16
Duty is essentially a question of whether the relationship
between the actor and the injured person gives rise to any legal
obligation on the actor’s part for the benefit of the injured person.
Proximate cause encompasses a number of distinct problems
including the limits of liability for foreseeable consequences. In the
Palsgraf case, the New York Court of Appeals, combining the
questions of duty and proximate cause, concluded that no duty is
owed to an unforeseeable plaintiff.
The questions of duty and proximate cause are interrelated
because the question whether there is the requisite relationship,
giving rise to a duty, and the question whether the cause is so
significant and important to be regarded a proximate cause both
depend in part on foreseeability—whether it is foreseeable that the
actor’s conduct may create a risk of harm to the victim, and whether
the result of that conduct and intervening causes were foreseeable.
Initially, the interrelated nature of these elements led me to believe that
proximate causation could not be established absent the existence of a duty.
Although related by the common consideration of foreseeability, proximate cause
and duty are two separate elements of a common-law negligence claim. Though
the absence of foreseeability may defeat proof of both, proof of a duty does not
require proof of proximate causation, nor, most important here, does proof of
proximate cause require proof of a duty. The Legislature omitted the term
“negligence” from the statutes. Therefore, we presume that the Legislature
16
400 Mich 425, 438-439; 254 NW2d 759 (1977), citing Palsgraf v Long
Island R Co, 248 NY 339; 162 NE 99 (1928) (Cardozo, J.).
8
intended for courts to allocate “fault” solely on the basis of the listed options
without importing omitted concepts of common-law negligence.17
More significant, the imposition of a duty requirement in § 6304(8) would
be inconsistent with that subsection’s definition of “fault”: “‘fault’ includes an act,
an omission, conduct, including intentional misconduct, 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.” By using
the term “includes” in conjunction with the term “or,” the Legislature expressed its
intent to make this list of examples nonexhaustive. A court could determine that a
person was a proximate cause of a party’s injury and at “fault” on the basis of
conduct (or lack thereof) not listed in the statute.18 The term “or” further
evidences the Legislature’s intent that a defendant seeking to allocate fault to
another person need only establish one method by which the person was a
proximate cause of the injury.19 The majority opinion makes the proof of a legal
duty the exclusive method for proving fault under § 6304(8) through selective
17
Lamp v Reynolds, 249 Mich App 591, 602; 645 NW2d 311 (2002). See
also AFSCME v Detroit, 468 Mich 388, 400; 662 NW2d 695 (2003) (“[W]e may
not read into the statute what is not within the Legislature’s intent as derived from
the language of the statute.”).
18
The use of the term “includes” by itself can limit or expand a list. This
Court must consider the context in which the term is used to determine the
Legislature’s intent. See Surowitz v Pontiac, 374 Mich 597, 606; 132 NW2d 628
(1965).
19
“Or” is a disjunctive term indicating that a person has a choice between
options. People v Thompson, 477 Mich 146, 161; 730 NW2d 708 (2007)
(Corrigan, J., concurring in part and dissenting in part).
9
quotation: “a breach of a legal duty . . . that is a proximate cause of damage
sustained by a party.” The majority opinion omits the alternatives specified in the
statute, e.g., “an act . . . that is a proximate cause . . . .” It is inconsistent to
identify a breach of a legal duty as one method among many to establish fault, but
then impose the existence of a legal duty as a precondition for finding fault.
The majority opinion’s imposition of a prerequisite duty element is also
inconsistent with §§ 2957(1) and 6304(1)(b), both of which provide that a person
shall be allocated fault regardless of whether he could be named as a party to the
action. These statutes are in pari materia, having a common purpose, and must be
read together to give effect to the statutes in their entirety.20 A person who does
not owe a duty to the plaintiff obviously cannot be named as a party to the action.
Accordingly, a person who does not owe a duty to the plaintiff clearly falls within
the ambit of these provisions. To impose a duty requirement for the allocation of
fault, this Court would have to violate the rules of statutory construction and
rewrite §§ 2957(1) and 6304(1)(b) to include such an exception.21 This is
precisely what the majority opinion does.
Furthermore, the plain language of the statutes does not violate common-
law negligence principles by allowing a plaintiff to collect against a person in the
absence of a duty. Section 2957(3) provides that the allocation of fault cannot
20
People v Harper, 479 Mich 599, 621; 739 NW2d 523 (2007).
21
See AFSCME, supra at 400.
10
subject a nonparty to liability in the current action or be used as evidence against a
nonparty in a separate action. Thus, the allocation of fault to a nonparty is not a
determination that the nonparty was negligent and does not subject him to tort
liability when the plaintiff cannot otherwise prove all the elements of his claim.
IV. Effect of Riddle v McLouth Steel
I further believe that the majority errs by relying on Riddle v McLouth Steel
Products Corp22 for the proposition that a named defendant must establish that a
nonparty owed a duty to the plaintiff as a precondition for a finding of proximate
causation and fault. Riddle was decided by this Court before tort reform in 1995
and the enactment of the comparative fault statutes. Riddle does not pertain to a
defendant allocating fault to a nonparty; rather, it considers whether the tenet that
a landowner owes no duty to business invitees to warn of open and obvious
dangers was abrogated by the adoption of the “comparative negligence” scheme in
Michigan.23
Riddle held that the determination of a duty and the consideration of the
“comparative negligence” of a plaintiff are separate and distinct because they are
22
440 Mich 85, 99; 485 NW2d 676 (1992).
23
Historically, the concept of “contributory negligence” barred a plaintiff
whose own negligence contributed to his injury from collecting any compensation
from a negligent defendant. From 1979 until the tort reforms of 1995, Michigan
courts accepted the common-law concept of “pure comparative negligence.”
Under this scheme, the plaintiff was entitled to a damages award against a
negligent defendant reduced by plaintiff’s relative portion of negligence. See
Placek v Sterling Hts, 405 Mich 638; 275 NW2d 511 (1979).
11
considered at different points in the case. When a plaintiff files suit against a
defendant, the court must determine as a matter of law whether the defendant
owed that plaintiff a duty. A negligence action may proceed against the named
defendant only if there is a legal duty. “Comparative negligence,” on the other
hand, is considered at the end of the trial to reduce the damages a defendant owes
to a plaintiff.24 The statements in Riddle upon which the majority opinion relies
were meant to describe the relationship of a “plaintiff’s negligence in relation to
the defendant’s duty”25 and are, therefore, completely unrelated to the
determination whether the new statutory concept of “fault” may be allocated in the
absence of a duty. As discussed, under our statutory scheme, the existence of a
duty is irrelevant to the allocation of “fault,” which considers only a determination
of proximate causation. This is particularly so when allocating fault cannot
subject a nonparty to liability under § 2957(3).
The majority opinion’s continued mistaken reliance on Riddle, and the
improper importation of negligence principles into §§ 2957 and 6304, is caused, in
part, by the continued use of the term “comparative negligence” to describe the
allocation of fault under the statutes.26 The use of this term is a misnomer when
used in relation to these statutes. Sections 2957 and 6304 make absolutely no
24
Riddle, supra at 95-96.
25
Id. at 98.
26
See, e.g., Barnett v Hidalgo, 478 Mich 151 (2007); 732 NW2d 472;
Holton v A+ Ins Associates, Inc, 255 Mich App 318; 661 NW2d 248 (2003).
12
reference to negligence and, by their plain language, relate solely to the allocation
of “fault.” To remedy any further confusion, I caution the bench and bar to be
more precise when referring to statutory “comparative fault.”
V. Conclusion
Given the plain language of the comparative fault statutes and the common-
law definition of “proximate cause,” I dissent from the majority opinion’s
importation of negligence principles into §§ 2957 and 6304 and the creation of a
prerequisite duty element before proximate causation and fault may be considered.
Put simply, the comparative fault statutes do not describe the allocation of
negligence. The statutes describe the allocation of fault between parties and
nonparties, including persons who could not otherwise be named as a party to the
suit. “Fault” is not defined in terms of negligence, but by a nonexhaustive list of
examples that might amount to a proximate cause of the plaintiff’s injuries.
Accordingly, instead of readopting our previously vacated memorandum opinion,
I would remand the case to the trial court to reinstate the notice of nonparty at
fault.
Robert P. Young, Jr.
Maura D. Corrigan
Stephen J. Markman
13