Gerling Konzern Allgemeine Versicherungs AG v. Lawson

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 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. FACTS AND PROCEDURAL HISTORY

This case arose from a three-vehicle accident that

occurred in 1997. 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. 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, filed a contribution action against defendants

Lawson and American Beauty pursuant to MCL 600.2925a-

600.2925d. Defendants moved for 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 several liability in certain tort actions,

including the underlying action in this case, abrogated

plaintiff’s contribution cause of action. The trial court

denied defendants’ motion for summary 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 is

required to pay only for his percentage of fault. 254 Mich

App 241; 657 NW2d 143 (2002). We 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).

II. STANDARD OF 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 development could possibly justify

recovery.’” 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. ANALYSIS

Until the enactment of tort reform legislation in

1995, concurrent tortfeasors in Michigan were “jointly and

severally” liable. This meant that where multiple

tortfeasors caused a single or indivisible 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 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.” O'Dowd v Gen Motors Corp, 419 Mich 597,

603; 358 NW2d 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 to seek contribution from other

tortfeasors. 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.”

personal injury, property damage, or wrongful death, the

liability of each defendant for damages is several only and

is not joint.” MCL 600.2957(1) further 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

section 6304, in direct proportion to the person's

percentage of fault.” 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 amount greater than his

allocated percentage of fault. As such, in an action in

which an injured party has 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.” Post at 8.

Yet, although the 1995 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 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 tort-
feasor 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.

reasonable opportunity to participate in the
settlement negotiations.

(d) The settlement was not made in good
faith.

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. The dissent’s overreaching analysis

notwithstanding, this case is actually one of

straightforward statutory interpretation. 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). Thus, “there is a right of

contribution among them 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

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 resulting from its

settlement. Plaintiff, is a “tort-feasor who enter[ed]

into a settlement with [the injured parties]” and,

therefore, “is . . . entitled to recover contribution from

another tort-feasor” unless one of the circumstances

enumerated in § 2925a(3)(a)-(d) exists, which is not

alleged here to be the case. 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

IV. RESPONSE TO DISSENT

The dissent’s argument appears to rest on three

grounds. First, it observes, correctly, that 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” only and not “joint and

several,” there is no “common liability” 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.

2925a(1) that contribution may be obtainable where

liability is joint or several. The 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” liable was

entitled to seek contribution under § 2925a. We held that

a right to contribution existed because § 2925a

specifically refers to liability that is “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 [§
2925a] is obtainable. [O’Dowd, supra at 604-
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 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 liability exists among individuals who are

responsible for an accident which produces a single

indivisible injury.” (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 which produce[d] a single indivisible injury.”

Id. 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).]

existence of common liability among such multiple

tortfeasors. 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 the common

liability that is proportionate to his fault. 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:

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. Moreover,

the above Restatement section refers, specifically, to

those situations, already discussed above, in 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

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 rather whether the

settlement released the contributee. 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. Thus, the

dissent surmises, “‘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.’” Post at 14 (citation omitted). The

dissent's analysis is defective. That a 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 a right to seek contribution from other

tortfeasors.7 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

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.

relevant statutes, it raises an unnecessary disincentive to

voluntary settlements, potentially harming both willing

plaintiffs and willing defendants.9 The dissent states

that, “while settlements are generally favored, neither MCL

600.2925a nor MCL 600.6304 makes clear that the

Legislature’s goal was to promote voluntary 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 reflect, clearly or otherwise, any intent to

disfavor settlements, which is what the 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 non-
economic damages that defy accurate estimation.

construction would produce. Moreover, to construe § 2925a

as affording a settling party a right to seek contribution

from other responsible tortfeasors in cases in which

liability is several only does not 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.” Post at 15. On the contrary,

such a construction of § 2925a works 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.

. . .

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

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. Accordingly, we hold

that plaintiff may proceed on its contribution action

against defendants. 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.

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, wipe out the contribution statute by equating

“common liability” with “joint and several liability.”

Post at 8-12. 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 and James Nicastri. Thus, there is “common

liability” under the statute, and plaintiff 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.

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.
______________________________

KELLY, J. (dissenting).

Plaintiff seeks contribution from defendants for a

portion of settlement monies paid to two third parties

following a traffic accident involving three vehicles. We

are asked to decide whether a contribution action is

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 comparative

negligence scheme for personal injury actions. Under it,

plaintiff would not have been liable for defendants'

percentage of fault had this case proceeded 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. One

vehicle was occupied by Ricki Ash and James Nicastri.

Another was driven by Barry Maus, who was employed by the

University of Michigan Board of Regents. 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 not complied with the notice

requirements of the contribution statute. See MCL

600.2925a(3) through (5). The trial court denied the

motion and found that plaintiff had given 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 tort reform legislation,

specifically MCL 600.2956, 600.2957(1), and 600.6304(1),

abrogated plaintiff's cause of action for 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. 254

Mich App 241, 248; 657 NW2d 143 (2002). We 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). The best measure of intent is the

words that the Legislature used. Chandler v Dowell

Schlumberger Inc, 456 Mich 395, 398; 572 NW2d 210 (1998).

As the Court of Appeals correctly noted, at issue here

is the interplay between the provisions in the 1995

amendments of the Revised Judicature Act1 and the

preexisting contribution provisions contained in MCL

600.2925a, 600.2925b, and 600.2925c.

The pertinent subsections of MCL 600.2925a state:

(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 tort-
feasor 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:

1
1995 PA 161 and 1995 PA 249.

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.

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

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 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 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

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 and

liability allocation in certain other circumstances. 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 pro-
rata 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 observations. For example, MCL

600.2956 continues to recognize that common or joint

liability exists in claims involving “an employer’s

vicarious liability . . . .” And MCL 600.6304(6)

specifically provides for joint liability in medical

malpractice cases.

However, the statutory language at issue in this case

supports defendants' position. In order for one tortfeasor

to recover contribution from others, he must pay the

complainant more than his pro rata share of 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. MCL 600.2925a(2).

See also MCL 600.2925c(4). 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).

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