Defendant Mike Gibler, doing business as MG & Company (Gibler), and defendant Thermogas Company, Inc. (Thermogas), appeal as of right the trial court order denying their request for costs pursuant to MCR 2.625 against codefendant Independence Professional Fireworks, Inc. (IPF). We affirm.
These consolidated actions arose following an explosion at the IPF plant that killed five employees (plaintiffs’ decedents). The personal representatives of the estates of four decedents filed a complaint against IPF, but did not name Gibler or Thermogas as defendants. However, IPF filed a notice of nonparty fault under MCR 2.112(K), alleging that Gibler and Thermogas were at fault in causing the deaths of plaintiffs’ decedents because they negligently installed, serviced, or maintained a water heater that was thought to be the initiating cause of the explosion. Thereafter, those plaintiffs filed an amended complaint adding Gibler and Thermogas as defendants. The personal representative of the estate of the remaining decedent filed a separate complaint against the same defendants, and the actions were consolidated.
After being named as defendants in plaintiffs’ wrongful death actions, Gibler and Thermogas moved for summary disposition, and the trial court granted the motion, in part because there had been a “spoliation of evidence” because IPF apparently lost the water heater at issue and could not locate it. 1 At the hearing on Thermogas’s motion concerning the spoliation of evidence, the court acknowledged that, because none of the experts could examine the water heater, any expert testimony regarding causation would be mere speculation and conjecture that did not meet the standards for expert testimony under MRE 702.
After the trial court granted their motion for summary disposition, Gibler and Thermogas moved to tax costs against codefendant IPF. Thermogas argued that, pursuant to MCR 2.625(A) and (F), IPF should pay its costs because IPF brought Thermogas into plaintiffs’ suit by filing the notice of nonparty fault. Gibler argued that he and his company were entitled to costs because he was a “prevailing party” against IPF under MCR 2.625.
In response, IPF argued that neither Gibler nor Thermogas was entitled to costs because, under MCR 2.625, neither was a “prevailing party in an action” against IPF because the notice of nonparty fault did not create a cause of action between IPF and Thermogas or Gibler. The trial court, in its opinion and order denying Gibler and Thermogas’s motion for costs, held that
On appeal, Gibler and Thermogas argue that, under MCR 2.625, they are entitled to costs from codefendant IPF regardless of whether a cause of action existed between them and IPF. We disagree.
This Court reviews a trial court’s ruling on a motion for costs under MCR 2.625 for an abuse of discretion.
Klinke v Mitsubishi Motors Corp,
The relevant provisions of MCR 2.625 state:
(A) Right to Costs.
(1) In General. Costs will be allowed to the prevailing party in an action, unless prohibited by statute or by these rules or unless the court directs otherwise, for reasons stated in writing and filed in the action.
(B) Rules for Determining Prevailing Party.
(2) Actions With Several Issues or Counts. In an action involving several issues or counts that state different causes of action or different defenses, the party prevailing on each issue or count may be allowed costs for that issue or count. If there is a single cause of action alleged, the party who prevails on the entire record is deemed the prevailing party.
(3) Actions With Several Defendants. If there are several defendants in one action, and judgment for or dismissal of one or more of them is entered, those defendants are deemed prevailing parties, even though the plaintiff ultimately prevails over the remaining defendants.
MCL 600.2421b(3)(a) defines a “prevailing party” as follows:
In an action involving several remedies, or issues or counts which state different causes of actions or defenses, the party prevailing as to each remedy, issue, or count.
Gibler and Thermogas argue that because they prevailed on the “issue” of causation regarding their liability for a defective water heater, each was a “prevailing party in an action” involving other defendants. Specifically, Gibler and Thermogas contend that they prevailed against codefendant IPF because IPF was the party who filed the notice of nonparty fault against them, which required them to incur costs in their defense. The issue in this case is therefore whether a defendant is entitled to recover costs from a codefen-dant who filed a notice of nonparty fault under MCR 2.112(K) naming the defendant when summary disposition is granted in the defendant’s favor. We conclude that, in such a case, the defendant is not entitled to costs from the codefendant under MCR 2.625.
Gibler and Thermogas were not prevailing parties against codefendant IPF under MCR 2.625. “[I]n order to be considered a prevailing party, that party must show, at the very least, that its position was improved by the litigation.”
Forest City Enterprises, Inc v Leemon Oil Co,
Our opinion in
Blue Cross & Blue Shield of Michigan v Eaton Rapids Community Hosp,
[W]e conclude that this Court’s essential reasoning in Kim was simply that the intervening plaintiff remained a party in interest for the purpose of taxation of costs because it was a party in interest for the purpose of recovery, it could have participated in the proceedings, and would have participated in any recovery.
A real party in interest is one who is vested with the right of action on a given claim, although the beneficial interest may be in another. [Blue Cross, supra at 311 (citations omitted).]
In this case, we hold that Gibler and Thermogas were not “parties in interest” for the purpose of recovery against codefendant IPF. Like the defendants in
Juno, Klinke,
and
Blue Cross,
Gibler and Thermogas were parties in interest and improved their positions against
plaintiffs
when they obtained a dismissal in their favor. However, the argument that Gibler and Thermogas had any type of vested right of action or right of recovery against codefendant IPF is contrary to the case law defining a “prevailing party” because, as codefendants, they held no adverse position in relation to IPF on which to prevail. The ultimate issue of fault stemming from the resolution of the water heater causation theory would have benefited Gibler’s and Thermogas’s positions against
plaintiffs,
but not against codefendant IPF. Therefore, because Gibler and Thermogas had no vested right to recover from codefendant IPF, they could not be considered prevailing parties under MCR 2.625
against IPF, and they had no right to tax
Finally, we reject Gibler and Thermogas’s contention that codefendant IPF is ultimately responsible for costs in this case because IPF forced plaintiffs to name Gibler and Thermogas as party defendants by filing the notice of nonparty fault. Gibler and Thermogas argue that plaintiffs had no choice but to name them in the action because, without doing so, IPF would have had a persuasive “empty chair” defense. Gibler and Thermo-gas also argue that the Legislature never intended for a post-tort reform defendant, such as IPF, to be able to file a notice of nonparty fault, effectively compelling plaintiffs to name Gibler and Thermogas as defendants, and then be insulated from the responsibility of being subject to taxation of costs incurred by Gibler and Thermogas, particularly when IPF was responsible for spoliation of the evidence.
The problem we observe with this argument is that whether a nonparty is named as a party defendant is purely within a plaintiffs discretion. MCR 2.112(K)(4);
Rinke v Potrzebowski,
Affirmed.
Notes
In response to Gibler and Thermogas’s motion for summary disposition, plaintiffs filed a conditional concurrence. Plaintiffs agreed that summary disposition was appropriate given the missing water heater, as long as IPF would not be permitted to refer to the “water heater defendants” at trial.