GERLING KONZERN ALLGEMEINE VERSICHERUNGS AG v LAWSON
Docket No. 122938
Supreme Court of Michigan
March 8, 2005
Argued October 5, 2004 (Calendar No. 1).
472 MICH 44
Dоcket No. 122938. Argued October 5, 2004 (Calendar No. 1). Decided March 8, 2005.
Gerling Konzern Allgemeine Versicherungs AG, as insurer and subrogee of the Regents of the University of Michigan, brought an action in the Washtenaw Circuit Court against Cecil R. Lawson and American Beauty Turf Nurseries, Inc., seeking contribution pursuant to
In an opinion by Justice MARKMAN, joined by Chief Justice TAYLOR, and Justices CORRIGAN and YOUNG, the Supreme Court held:
The plaintiff may proceed on its contribution action notwithstanding that, as a result of the 1995 tort reform legislation, liability among joint tortfeasors in a variety of tort actions, including the underlying action relevant to this matter, is several only and that, in tort actions in which liability is several, the jury
- Although the 1995 tort reform legislation may have rendered unnecessary most contribution claims, this does not mean that it precludes the specific type of contribution claim at issue in this matter. There is no basis in
MCL 600.2956 ,600.2957 , or600.6304 for concluding that a right to seek contribution following a settlement is precluded in cases in which liability among multiple tortfeasors is now several only rather than joint and several. - Because two or more persons became severally liable in tort for the same injury, there is a right of contribution among them even though judgment has not been recovered against all or any of them. The plaintiff‘s right to seek contribution exists because the plaintiff allegedly paid more than its pro rata share of the common liability, although the plaintiff‘s total recovery is limited to the amount paid in excess of its pro rata share.
- A common liability exists in situations in which multiple tortfeasors are liable for the same injury or wrongful death. The 1995 tort reform legislation does not negate the existence of a common liability among such multiple tortfeasors. Section 6304 applies specifically to those cases in which there is a common liability among multiple tortfeasors.
- That a tortfeasor is never required, in an action to which
§ 6304 applies, to pay more than its allocated share of fault is not relevant in determining whether the tortfeasor may exercise its statutory right to settle with the injurеd party and then exercise its statutory right to seek contribution from other tortfeasors on the basis of each tortfeasor‘s relative degree of fault.
Justice WEAVER, concurring, noted that the contribution statute,
Reversed and remanded to the circuit court.
Justice KELLY, joined by Justice CAVANAGH, dissenting, stated that, under
Before one tortfeasor may recover contribution from other tortfeasors, he must pay the complainant more than his pro rata share of the common liability. In order to enforce contribution, it is necessary that the tortfeasors commonly share a burden of tort liability or that there be a common burden of liability in tort.
Although
1. CONTRIBUTION — SETTLEMENTS — SEVERAL LIABILITY.
A right to seek contribution following a settlement is not precluded as a result of the 1995 tort reform legislation in cases in which liability among multiple tortfeasors is now several only rather than joint and several (1995 PA 161, 1995 PA 249).
2. CONTRIBUTION — SETTLEMENTS — MULTIPLE TORTFEASORS.
A tortfeasor who enters into a settlement with an injured party is entitled under
3. TORTS — MULTIPLE TORTFEASORS — COMMON LIABILITY.
The 1995 tort reform legislation does not negate the common liability that exists in situations in which multiple tortfeasors are liable for the same injury or wrongful death (1995 PA 161, 1995 PA 249).
Lacey & Jones (by Michael T. Reinholm) for the plaintiff.
G. W. Caravas & Associates, P.C. (by Gary W. Caravas), and Kopla, Landau & Pinkus (by Mark L. Dolin) for the defendants.
Amicus Curiae:
John P. Jacobs, P.C. (by John P. Jacobs), for the Detroit Edison Company.
OPINION OF THE COURT
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
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 ocсurred 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
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
(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 rеsponsible 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
Yet, although the 1995 tort reform legislation may have “rendered unnecessary” most contribution claims,
(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 sharе. 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.
(c) The contributee was not given a 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 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,
IV. RESPONSE TO DISSENT
The dissent‘s argument appears to rest on three grounds. First, it observes, correctly, that under
Notes
The dissent‘s position is flawed. Its construction of “common liability” as used in
Moreover, in O‘Dowd, this Court specifically addressed whether a tortfeasor who was “severally” liable was entitled to seek contribution under
[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
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 existence of common liability among such multiple tortfeasors. On the contrary,
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 secоndary sources such as the Restatements. The specific statute at issue,
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 liаbility 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
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
Not only is the dissent‘s position ungrounded in the 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
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 casеs, 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 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.
TAYLOR, C.J., and CORRIGAN and YOUNG, JJ., concurred with MARKMAN, J.
WEAVER, J. (concurring). I conсur in the majority‘s conclusion that plaintiff may proceed with its contribution action against defendants. As both the majority and the dissent note, tort reform has rendered many contribution actions unnecessary.1 Nonetheless, the contribution statute,
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 to a person or property or for the same wrongful death.” Ante at 56. 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.”
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.
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. Becаuse I believe that the majority misreads this tort reform legislation, I disagree with its conclusions.
According to
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, whо 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
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, sрecifically
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 954 (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
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
The pertinent subsections of
(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. [Emphasis added.]
One tortfeasor can seek contribution from another regardless of whether a judgment has been entered against either.
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. [
MCL 600.2925c(4) (emphasis added).]
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.
(c) Principles of equity applicable to contribution generally shall apply.
It is against this statutory backdrop that the Court is asked to address plaintiff‘s right to contribution under the 1995 tort reform legislation.
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.
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
(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 dam-
ages 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 а right of contribution.... [Id. at 663.]
I agree with these observations. For example,
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.
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).]
However, although these older cases are useful to a point, they do not take into account the sweeping changes the Legislature made in tort reform in 1995. Sections 2956, 2957, and 6304 replaced the notion of common liability, which also has been referred to as joint and several liability, with “fair-share liability.” See Smiley v Corrigan, 248 Mich App 51, 53 n 6; 638 NW2d 151 (2001), citing House Legislative Analysis, HB 4508 (Substitute H-6), April 27, 1995, p 3. Thus, because liability can no longer be joint but is now solely several under circumstances such as exist in this case, there is no basis for contribution. There is no “common liability” from which to seek it. See Restatement Torts, Apportionment of Liability, 3d, § B19, comment k, p 183.
The majority adopts plaintiff‘s argument that
Thus, it is not enough that tortfeasors are “jointly or severally liable.” Before contribution can be sought, they must share a “common liability.” This does not
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.
I also find comment c of the same provision persuasive:
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. [Id., p 109.]
Therefore, the conclusion in Salim v LaGuire,2 that common liability could exist among individuals responsible for an accident causing a single indivisible injury, may have been correct before the enactment of tort reform. However, the injury involved in this case is no longer an “indivisible injury” under
In essence, what the majority appears to argue is that we should continue our notions of what, in the past, constituted an indivisible injury. In so doing, it ignores the intent of the Legislature in passing tort reform. The majority realizes that, had this case proceeded to trial, plaintiff could not have been held responsible for defendants’ negligence. (Ante at 57-58.) Yet, because plaintiff chose to settle before trial, the majority maintains that the injury remains indivisible and thus plaintiff‘s contribution action is viable.
I conclude that the Legislature did not intend that a tortfeasor‘s legal liability for personal injury be governed by the gamesmanship and legal strategies of his fellow tortfeasors.3 Implicit in the majority‘s opinion is the premise that an injury only becomes divisible when a jury divides it. I cannot accept this position. It would allow the parties to circumvent the tort reform statutes during settlement. Rather, the Legislature has based tortfeasors’ potential liability on the cause of action involved, and what cause is involved is determined at the commencement of litigation.
The majority‘s analysis relies on case law deсided before the existence of tort reform. It uses this law to frustrate the Legislature‘s recognition that injuries may now share a common origin or cause, yet result in no common liability or burden in tort.
Similarly, a plaintiff should not rely on the language of
Thus, I think it clear that a pro rata division can be made only when tortfeasors actually share a common tort burden or liability. Because this case is a personal injury action, it is governed by
Even if plaintiff deliberately paid more than its pro rata share of the total liability, it cannot recover any of that excess from defendants. As the Court of Appeals aptly stated, “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.” 254 Mich App 247-248. This view is certainly not unusual:
In a several liability system, the nonsettling tortfeasor is held only for his comparative fault share. In determining the percentage responsibility of the nonsettling tortfeasor, jurors must determine the comparative share of every tortfeasor, including those who have settled. However, a determination that A‘s fault was 50% and B‘s fault was 50% does not affect A‘s settlement or his liability. It merely means that B is liable for 50%, no more, no less. If A paid more than 50% of the damages, that was his decision. If he paid less, the plaintiff made a bad bargain, but none of this matters to B‘s liability. [2 Dobbs, The Law of Torts, Practitioner Treatise Series (2001), § 390, p 1088.]
The majority opinion discusses at length how my reading of these statutes creates a disincentive to voluntary settlement (Ante at 60-63 to conclusion.) However, it also acknowledges that “[a] primary purpose underlying ‘contribution’ was to mitigаte 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.” (Ante at 50.) Allowing a contribution action in
Moreover, while settlements are generally favored, neither
The logic of the majority‘s position that its interpretation encourages settlement and mine hinders it is shaky. Once parties know the rules involving their negotiations, settlement will be facilitated. Clarifying the statute‘s meaning so that the parties know the extent of their liability aids negotiations. It does not preclude them.
In addition, I find questionable the assertion that allowing contribution actions under these circumstances will foster settlement goals. The majority fails to recognize the untenable position in which parties will be placed during settlement negotiations as a result of its decision. The parties will be left to negotiate portions of claims for which they have no possible liability. The better position is to leave negotiations over those portions to the parties actually responsible.
The parties must recognize that, under tort reform, each tortfeasor cannot be held responsible for more than his fair share of the liability for a plaintiff‘s injury.
CONCLUSION
The language in
Accordingly, plaintiff cannot justifiably state that when it settled with Ash and Nicastri it was at risk of shouldering more than its fair share of a common burden. It cannot now recover contribution from defendants on the theory that it paid more than its pro rata share of such liability.
Therefore, I respectfully dissent from the majority‘s decision that contribution is possible here. I would instead affirm the decision of the Court of Appeals.
CAVANAGH, J., concurred with KELLY, J.
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 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 73, 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
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 . . . 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).]
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. . . .