Plaintiffs filed this action to recover a shortfall in insurance proceeds after a house fire, claiming that defendants negligently failed to procure adequate homeowner’s insurance to cover plaintiffs’ home аfter remodeling. We granted defendants’ application for leave to appeal an order of the trial court striking defendants’ notice of nonparty fault under MCR 2.112(K). We affirm.
i
Plaintiffs carried homeowner’s insurance on their home through defendant Richard Kujala, an agent for defendant A+ Insurance Associates, Inc. According to plaintiffs, 1 sometime before July 1999, they substantially remodeled their home and had a new roof installed by a contractor. At that time, they contacted Kujala to increase their insurance coverage in light of their home’s increased value.
Following the remodeling, plaintiffs encountered water leaks in the roof, allegedly resulting from ice dams that formed because of defects in the roofing work. On January 30, 2000, plaintiff Jess Holton placed an electric heater on the roof in an attempt to
Plaintiffs filed suit against defendants in September 2000 to recover the insurance shortfall. Plaintiffs alleged five causes of action: negligent failure to procure requested cоverage; breach of express or implied oral contract; negligent performance of contractual duty; negligent performance of a voluntary undertaking; and negligent failure to advise concerning adequacy of coverage.
Defendants filed a notice of nonparty fault under MCR 2.112(K)(3)(a), claiming that plaintiffs and the construction company were wholly or partially liable for plaintiffs’ damages and that each should be allocated a percentage of fault under Michigan’s statutory provisions for comparative
The trial court agreed with plaintiffs, concluding that defendants could not request that liability for the lack of adequate insurance coverage be apportioned to anyone else because defendants were the only parties potentially responsible for plaintiffs’ lack of insurance coverage. The trial court granted plaintiffs’ motion to strike defendants’ notice of nonparty fault, noting, however, that defendants were entitled to argue that plaintiffs were resрonsible for the lack of insurance coverage.
n
This case presents an issue of first impression concerning the application of comparative fault principles under Michigan’s 1995 tort reform, 2 embodied in MCL 600.2957 and MCL 600.6304, tо an injury resulting from alleged negligent procurement of insurance coverage. The issue presented is whether a defendant insurer is entitled to an allocation of fault for conduct in an underlying property loss, when a plaintiff seeks recovery for a shortfall in insurance coverage on the basis of the insurer’s negligence in procuring insurance. We conclude that in the circumstances presented, allocation of fault for the underlying сonduct, i.e., the fire, does not apply to plaintiffs’ action to recover a shortfall in insurance proceeds and, therefore, defendants’ notice of nonparty fault under MCR 2.112 was improper. The court did not err in granting plaintiffs’ motion to strike defendants’ notice.
A
This Court reviews a trial court’s decision whether to admit evidence for an abuse of discretion.
Chmielewski v Xermac, Inc,
B
With the enactment of tort-reform legislation in 1995, Michigan generally eliminated joint liability in tort actions,
3
creating statutory provisions for the allocation of fault among all those liablе for the plaintiff’s injury or death, including nonparties to an action. MCL 600.2956, MCL 600.2957, and MCL 600.6304;
Rinke v Potrzebowski,
Defendants argue that the trial court abused its discretion in holding that MCR 2.112 could not be
applied to introduce evidence of plaintiffs’ and the nonparty contractor’s fault in causing the home fire and thereby allow a finding that plaintiffs and the nonparty contractor are liable for a percentage of plaintiffs’ claimed damages
l
Our first consideration is whether the provisions for comparative negligence apply to plaintiffs’ action. We cоnclude that they do. MCR 2.112(K) states that it “applies to actions for personal injury, property damage, and wrongful death to which MCL 600.2957; MSA 27A.2957 and MCL 600.6304; MSA 27A.6304, as amended by
As this Court observed in
Williams v Arbor Home, Inc,
2
Having concluded that the provisions for comparative fault allocation apply to plaintiffs’ action, we next consider whether the provisions operate to permit an allocation of fault to plaintiffs and the roofing contractor in plaintiffs’ action against defendants for the failure to procure insurance. We conclude that a proper application of comparative fault dоes not permit an allocation of fault for causing the fire, which is merely the underlying basis of the insurance claim against defendants.
Michigan law recognizes a cause of action in tort for an insurance agent’s failure to procure requested insurance coverage, which includes an insurance agent’s duty to advise an insured upon a showing of a special relationship.
Haji v Prevention Ins Agency, Inc,
In argument below, defense counsel characterized plaintiffs’ action as one arising out of a fire, which defendants contend
As the trial court noted, defendants’ argument рoses the classic “but for” argument of causation, which in this context simply extends to further remote causes, i.e., but for someone building the home, plaintiffs would not have suffered a loss. “[T]he adoption of a comparativе negligence doctrine does not act to create negligence where none existed before.”
Jones, supra
at 437. In an action for negligence, a defendant may not be held liable where there is not a prima facie showing of (1) a duty, (2) breach of that duty, (3) causation, and (4) damages.
Id.; Case v Consumers Power Co,
Stated simply, plaintiffs’ claim is that their damages occurred because of inadequate insurance coverage, not because of the home fire. Their action is premised on defendants’ alleged liability for negligence resulting in the lack of proper insurance coverage. Defendants have proffered no evidence showing that plaintiffs’ or the contractor’s alleged negligence in causing the fire is a factor in whether the resulting property damage would be covered under plaintiffs’ homeowner’s insurance, which defendants allegedly failed to provide. That is, on the evidence before us, the cause of the fire is no more relevant in this case
than it would be if it related to a purely accidental event, such as a lightning strike. A defendant attempting to mitigate his liability through a comparative fault defense has the burden of alleging and proving that another person’s conduct was a proximate cause of the plaintiff’s damages.
Lamp v Reynolds,
Further, to establish the requisite causation between an alleged wrongful act and resulting damages, the actor’s conduct must be shown to be both a cause in fact and a legal or proximate cause of the plaintiff’s damages.
Id.
at 599-600. While causation is generally a matter for the trier of fact, if there is no issue of material fact, then the issue is one of law for the court.
Reeves v Kmart Corp,
in
The trial court correctly ruled that defendants are entitled under thе statutory provisions for comparative fault, to seek an apportionment of fault for the alleged liability concerning plaintiffs’ lack of insurance, but not with regard to liability for the cause of the fire.
Affirmed.
Notes
This recitation of facts is based on the parties’ briefs, as well as the lower court record, and is not intended to be conclusive with regard to disputed factual issues.
With certain exceptions, which are not here at issue. See
Kokx v Bylenga,
This interpretation is in keeping with the general rules of statutory inteipretation, which direct that, generally, a modifying clause will be construed to modify only the last antecedent, unless a contrary intent is indicated.
Sun Valley Foods Co v Ward,