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Michigan Supreme Court Lansing, Michigan

Opinion
DAVID ROMAIN and JOANN ROMAIN, Plaintiffs-Appellees, v

Chief Justice:

Justices:

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

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

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MCL 600.6304(8). MCR 2.112(K). Kopp v Zigich, 268 Mich App 258, 260; 707 NW2d 601 (2005). Jones v Enertel, Inc, 254 Mich App 432, 437; 656 NW2d 870 (2002). 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,
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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. 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.) 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).
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Schultz v Consumers Power Co, 443 Mich 445, 449; 506 NW2d 175
3

(1993).

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).
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STATE OF MICHIGAN SUPREME COURT

DAVID ROMAIN and JOANN ROMAIN, Plaintiffs-Appellees, v 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."
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No. 135546

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 After ISC completed the

undertake the remodeling and mold remediation.

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. 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 Plaintiffs subsequently filed suit against

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.
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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.
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254 Mich App 432; 656 NW2d 870 (2003). 268 Mich App 258; 707 NW2d 601 (2005).

Romain v Frankenmuth Mut Ins, unpublished order of the Court of Appeals, entered November 21, 2007 (Docket No. 278591).
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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:

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Romain v Frankenmuth Mut Ins, 482 Mich 992 (2008). Renny v Dep't of Transportation, 478 Mich 490, 495; 734 NW2d 518 MCL 600.2956.
4

(2007).
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(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

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Emphasis added.
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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

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