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Michigan Supreme Court Lansing, Michigan

Opinion
GERLING KONZERN ALLGEMEINE VERSICHERUNGS AG, subrogee of REGENTS OF THE UNIVERSITY OF MICHIGAN, Plaintiff-Appellant, v CECIL R. LAWSON and AMERICAN BEAUTY TURF NURSERIES, INC., jointly and severally, Defendants-Appellees. ______________________________ BEFORE THE ENTIRE BENCH MARKMAN, J. This case requires that

Chief Justice:

Justices:

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


No. 122938

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. This case arose FACTS from
AND

PROCEDURAL HISTORY three-vehicle accident that

a

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, Ash and

Inc. (American Beauty), was employee Cecil Lawson.

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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, Lawson filed and a contribution Beauty action against to MCL defendants 600.2925adisposition

American

pursuant for

600.2925d.

Defendants

moved

summary

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 the liability in certain in this tort case, actions, abrogated

including

underlying

action

plaintiff's contribution cause of action. denied defendants' motion for summary

The trial court 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. App 241; 657 NW2d 143 (2002). We granted

254 Mich

plaintiff's

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application for leave to appeal, 469 Mich 947 (2003), and subsequently resubmitted. ordered that the case be reargued and

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 A

v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).

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 We

recovery.'"

Maiden, supra at 119 (citation omitted).

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. Until the enactment of ANALYSIS tort reform legislation in

1995, concurrent tortfeasors in Michigan were "jointly and severally" tortfeasors liable. caused a This single meant or that where multiple the

indivisible

injury,

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

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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." 603; 358 NW2d O'Dowd v Gen Motors Corp, 419 Mich 597, 553 (1984). The right of contribution,

although now codified in a majority of states, evolved in equity. See 4 Restatement Torts, 2d,

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