Laurel Woods Apartments v. Roumayah

Roumayah 631 v Laurel Woods APARTMENTSv ROUMAYAH WOODS LAUREL 15, 2006, Decided at Detroit. 269506. Submitted November Docket No. 8, 2007, a.m. at 9:10 March brought Apartments in the Circuit an action Oakland money Roumayah for against Najah to recover and Rebecca Court Roumayahs apartment from the damage leased to an the fire McDonald, J., court, granted the plaintiff. James The trial John summary disposition in with for accordance motion defendants’ Labombard, Group holding Hampshire in Ins New expressly (1986), has not App under which a tenant who damage may negligently agreed not be liable for caused to be damage. plaintiff appealed. for such held Hable Appeals held: The Court of granting the defendants’ motion 1. The trial court erred agreement parties summary disposition, to the lease because damage contractually agreed that defendants were Hable holding they premises. The which caused to the case, action, apply neghgence is an does not to this which awas of contract. action for breach HabiHty aboHshingjoint statutory provision and several 2. The contractually agreeing preclude parties from does not damage jointly Hable for would be of them caused. either proceedings. Reversed and remanded for further J., dissenting, the trial court’s would have affirmed Borrello, Najah Roumayah summary disposition grant in favor of whether Rebecca case to the trial court to determine remanded the plaintiffs property. The lease caused unequivocal agreement express did not contain negHgently the defendants to be Hable HabiHty, impose required and to premises, as Labombard considering years precedent iden- almost when circumvent by labeling than a tort action a contract claim rather tical facts Further, Legislature abol- over substance. claim exalts form HabiHty plaintiff joint seeks to in cases where ished and several another on tort or actions based recover for legal theory, clearly and the here seeks to recover for property damage apartment allegedly negli- gence defendants; accordingly, of one of the the defendants should severally liable, jointly liable. — - Liability 1. Landlord and Tenant Leases for Fire Loss. may contractually A tenant be held hable for fire under a agreement stating lease any that the tenant shall be held hable for to the 2. Contracts — — Liability Validity. Joint and Several statutory joint ahohtion of and several in tort actions preclude parties does not contractually agreeing from to be held (MCL jointly 600.2596). and hable for

Marcus Evangelista, (by EC. Marcus Evangelista), for Laurel Apartments. Woods

Gross, Silverman, Nemeth & (by P.L.C. T. Mary Nemeth), for Rebecca Roumayah.

Pedersen, Keenan, King, Wachsberg & Andrzejak, (by PC. Eric A. Andrzejak), for Najah Roumayah. Before: WILDER, EJ., and KELLY and BORRELLO, JJ. InJ. this breach of claim, KELLY, Laurel Woods Apartments appeals as right an order granting summary disposition in favor of defendants Najah Roumayah niece, and his Rebecca Roumayah. We reverse and remand.

I. FACTS This case arises from a kitchen an apartment owned and operated by plaintiff and by leased defendants. signed Defendants agreement that, in addition to listing Najah and Rebecca Roumayah “jointly severally” “Tenant,” as and defining “Premises” apartment 208, as contained the following provision: Roumayah Opinion Court Damage of Premises. Ten- Repairs Maintenance good appliances and all keep the Premises ant shall no and shall allow waste repair, condition any Tenant shall also be liable Premises or utilities. other Premises or to Landlord’s to the units, (i.e., equipment) that is common facilities other by of Tenant or Tenant’s the acts or omissions repairs perform all maintenance and guests. Landlord shall elements, mechanical, roof, all walls and structural systems cost and at Landlord’s plumbing and electrical by Tenant[’]s acts damage is caused expense, unless such expense incurred neglect, in case such cost and which paid Tenant. Landlord shall apartment, a fire moved into the After defendants in the that resulted substantial occurred damage kitchen firefighters’ investigation premises. The originated top on of the kitchen revealed that the inspection report included a statement stove. The cooking, thought but Rebecca that she was in the other turned offthe stove.While she was she had up talking phone, on the the kitchen lit flames. room attempted to call did not succeeduntil she She but building. was outside alleging complaint defendants filed a that

Plaintiff pursuant premises and, caused agreement, paragraph are liable for 9 of the lease alleged damages. defendants Plaintiff that those obliga- perform their contractual failed or refused agreement. and, therefore, the lease tions breached summary subsequently for filed a motion Plaintiff 2.116(0(10), arguing disposition pursuant to MCR regarding question of fact whether there was no that Roumayah that, jointly fire and under caused the Rebecca agreement, and were the lease they any damage severally obligated that summary Defendants filed a countermotion for dis- 2.116(C)(8). position pursuant to MCR Defendants first that, asserted in New Ins Hampshire Group Labom- bard, App 369; (1986), 399 NW2d 527 this Court that despite held a contractual that the provision agreed “yield up” tenant “in like premises taken,” express condition as when there was no agree- ment that tenant would liable to the landlord for damage, that, fire and the held absent Court such an agreement, tenant could not be liable for negli- gently damage. contended Defendants that case, like in there was no express they would be liable fire damage. portions Defendants cited several agree- the lease that, they ment argued, indicated that plaintiff carried that defendants were released from such liability covered a policy. also that Najah Roumayah Defendants asserted could not be liable because there was no question fact regarding fire, joint whether he caused the several was in violation MCL 600.2956 and public policy. also Defendants asserted while the evidence a demonstrated that fire caused the damage at issue, it unclear was whether Rebecca Roumayah fire. caused the

Plaintiff filed a reply argued brief which it that all of defendants’ arguments presumed that plaintiffs claim, claim negligence was a solely but it was breach of contract claim. Accordingly, Labombard was inappli- 600.2956, cable as MCL was which relates to torts. Plaintiff also asserted there “no was doubt” that Rebecca caused the fire.

At the hearing, motion the trial asked court whether any provision there was in the lease expressly required the tenant to maintain fire insur- 635 v was not. there counsel answered anee. Plaintiffs grant I’m stated, going [defen- “Then The trial court The controls.” I think [Labombard] motion. dants’] motion denying plaintiffs entered an order trial court defendants’ mo- granting summary disposition to MCR pursuant summary disposition tion 2.116(C)(8).

II. ANALYSIS erred in that the trial court Plaintiff first contends disposition summary motion for granting defendants’ defendants were contrac- Labombard when pursuant We for the tually liable agree. motion for sum granted trial court defendants’ 2.116(C)(8) MCR on

mary disposition pursuant a claim on which relief failed to state basis that on a written an action is based may granted. When copy to attach a contract, necessary it is generally 2.113(F). Accordingly, MCR complaint. part pleadings contract becomes written of review under MCR themselves, purposes even for 2.116(C)(8). City Inc v Group, Restaurant Liggett (2003). Pontiac, 127, 133; 676 NW2d 633 grant a trial court’s decision review de novo We to MCR pursuant summary disposition deny 2.116(C)(8). Rozwood, 109, 118; Mich 597 v Maiden summary disposition “A motion for NW2d 2.116(C)(8) sufficiency of legal tests under MCR plead only and allows consideration complaint claim when the granted only ings. The motion should be that no matter of law as a clearly so unenforceable right possibly justify could development factual PKT, Inc, 322, 332; MacDonald recovery.” omitted). (2001) (citation NW2d 274MICH 631 op Opinion the Court A. LIABILITY FOR DAMAGE CAUSED BY TENANTS question The first is whether defendants are contrac- damage premises allegedly for the to tually liable the Roumayah. by Rebecca caused agreement designates Roumayahs The lease as undisputed “Tenant” and unit #208 as “Premises.” It is agreement. parties signed provides: that both It Damage Maintenance of Premises. Repairs Ten- keep ant shall appliances good Premises and all and repair, condition and shall allow no waste any or Premises utilities. Tenant shall also be for damage to the to Premises or Landlord’s other (i.e., units, other common facilities and equipment) that is by caused the acts or omissions or Tenant Tenant’s guests. perform Landlord shall all repairs maintenance and roof, elements, mechanical, walls and structural all plumbing and systems electrical at Landlord’s cost and expense, damage by unless such Tenant[’]s caused acts neglect, in which expense by case such cost and incurred paid Landlord shall be Tenant. [Emphasis added.] emphasized portion Plaintiff asserts that of this paragraph unambiguously provides that defendants are Roumayah liable for Rebecca caused to the premises. contrary, pur- Defendants, claim that repair suant to Labombard, cannot recover fire agreement costs from defendants because the did express agreement they not contain an would be negligently causing liable for fire and because require the lease did not defendants insure the building purchased

In Labombard, owner insur- company accordingly, ance and, from the insurance companypaid damages arising insurance from a fire a tenant. 370. The supra company building owner sued the tenant Laurel Woods fire causing a tort, negligent that she was claiming defendant filed a Id. at 371. The on the premises. 2.116(C)(8) that the asserting motion MCR pursuant “absolved her that, argued as rental Id. She also premises.” law, not liable for fire matter of a tenant Id. The Labom- negligence. or her own his an ex- there was Court first examined whether bard the defendant would be liable agreement that press negligence. from the defendant’s damage resulting 374, none, found id. at it Having Id. at 373-374. attempt the in an the remainder of contract reviewed had The Court parties contemplated. what the discern clearly “agreement concluded that evidences fire would mutual parties’ expectation Reading the lessor.” Id. at 376. be obtained concluded, whole, “Nothing this Court contract as a however, that defendant agreement suggests, the rental insurer, for the lessor, or his agreed to be liable Id. damage.” of negligently full amount that, express held an Accordingly, this Court “absent a tenant to be liable to agreement by and unequivocal negli- fire insurer in tort for or the lessor’s lessor the tenant premises, gently caused would duty no to the lessor or insurer which has (Empha- damages.” a claim for such support negligence added.) sis Labombard to this case. apply

Labombard does action, a whereas this is breach negligence was a plain in Labombard makes holding contract action. The against limiting negligence claims the Court was there in which tenants for fire circumstances Thus, liability. agreement allowing such express is an parties’ the Labombard Court considered although has no holding in Labombard agreement, here. applicability

Rather, deciding action, breach contract we follow well-established rules of contract construc- language tion. Where of a contract clear and is unambiguous, construction of the contract question is a Meagher Wayne Univ, App 700, law. State Mich (1997). 721; 565 NW2d 401 A contract ambiguous is not fairly if it admits of but one interpretation. Id. 722. A “give every word, court must effect phrase, clause a contract avoid interpretation that would render any part of the contract surplusage or nugatory.” Inc, v United Ins Klapp Group Agency, 459, 468; 663 NW2d 447 However, if provisions of a irreconcilably conflict, the con- tractual language ambiguous, ambiguous presents contractual language question fact to by a jury. decided Id. at

The lease in this case is clear and unam- biguous. It states, “Tenant shall also be for any damage to the Premises ... that is caused by the acts or omissions of Tenant or guests.” Tenant’s Accordingly, defendants, “Tenant,” who are defined as are liable for “any damage” their act or omission. Fire clearly encompassed by the broad term “any And damage.” defendants’ is not limited to damage caused by negligence, rather, their but it ex- any tends to that they cause, negligently or otherwise. that,

Defendants contend despite para paragraph 13, 16, graphs and 171 suggest that the parties agreed that plaintiff would insure premises. These para provide, graphs in relevant part, that defendant will 1 13. Access to the Premises. Tenant shall allow Landlord and agents inspect, Landlord’s reasonable access to the Premises to alter, repair, improve upon prior or the Premises 24 hours notice. representatives, shall Tenant also allow insurance carriers and Opinion the Court that inspect premises, to carriers allow insurance other to release each “agree loss, injury or for which damage, liability for any from inspect police, to inspectors, or localhealth authorities department prior upon permitted 24 hours law to the extent the Premises notice. Damage. And Insurance. extent Loss or To the Property 16. agents law, shall not be and Landlord’s

permitted Landlord property any damage to or loss of Tenant’s for bursts, flood, casualty fire, on the by theft, pipe or other Premises, storage carport, room. Landlord recommends or personal protect Tenant’s insurance to Tenant obtain renter’s damage.... and Tenant against Landlord property such loss or loss, damage any for agree each other from to release any the extent of injury insurance is carried to for which or policy. recovery under an Damages casualty partially of Premises. If or Destruction destroys to a tenantable Premises but it can be restored Term, expiration Landlord prior of the Lease condition dispatch; repair reasonable option the Premises with has the however, obligation repair Premises shall be Landlord’s actually proceeds received amount of insurance limited to the may equitably obligation rent Landlord. Tenant’s period extent Tenant during restoration to the abated thereof) (or any portion removes Premises vacates the obstruct Landlord’s personal that would otherwise casualty damaged delay repairs areas. If a access or reasonably it is Premises to the extent totally the Premises for anticipated must vacate that Tenant (2) during repairs would which period in excess of two weeks unwilling if Landlord is unable be made or otherwise may Premises, terminate this Lease repair Landlord then (5) days after the by giving notice five written within Tenant delay casualty reasonable shall not be hable Landlord during repairs. housing Tenant providing Tenant or for any portion extended responsible of fire or not be shall may to maintain on the coverage Landlord elect insurance that App 274 Mich 640 631 Opinion of the Court any insurance is carried to the extent recovery under an insurance policy,” upon casualty, plaintiffs obligation repair premises be “shall limited amount of insurance proceeds actually received [plaintiff].” However, in none of provisions these does plaintiff agree to the premises. Rather, insure these provisions applicable are the premises are insured if party. either Nor paragraph irreconcilably does 9 con- 16, paragraphs 13, Rather, flict with and 17. the parties agreed that defendants would be for any damage liable they premises and, caused to the premises if the were insured, parties both would be from liability released any the extent of recovery under an policy. To read the contract as defendants suggest would render paragraph nugatory, which, considering that pro- do irreconcilably visions conflict, impermissible. Klapp, supra at parties agreed 467-469. Because the defendants would damage they caused to the premises, the trial court erred in granting defendant’s motion for summary disposition on the basis of Labombard.

B. JOINT AND SEVERAL LIABILITY Plaintiff also contends jointly defendants are alleged liable for pursuant the contract. This issue not properly preserved appellate review because the trial court did not address it. Adam v Sylvan Glynn Course, 95, 197 Mich App Golf (1992). 98; 494 However, NW2d may “this Court preservation overlook requirements if the failure to consider the result in issue would manifest if injustice, consideration is necessary for proper determination case, or if the issue involves a question of law and necessary the facts for its resolution have pre- been Constr, Inc, v sented.” Smith Foerster-Bolser Woods Laurel address this 427; We NW2d and the of law lower question it involves a issue because resolve the facts to contains sufficient court record issue. court should that the trial

Najah Roumayah contends (1) pur- him because against the claim have dismissed jointly held and 600.2956, to he cannot be suant MCL (2) that he and there is no evidence severally liable caused the fire. provides:

MCL 600.2956 6304, provided in in an action based on Except as section legal theory seeking damages personal or tort another death, liability injury, damage, wrongful of or joint. only damages and is each defendant for is several However, employer’s not abolish an vicari- this section does employer’s liability for an act or omission of the ous employee. in Konzern Supreme Allge- Court noted Gerling

Our 44, Lawson, 51; 693 Versicherungs meine AG v 472 (2005), legislation NW2d that the tort-reform actions, joint and in tort eliminated certain several requir[ing] that in such actions allocate fact-finder tortfeasors, among responsible providing] fault all and an pay damages need not in amount each tortfeasor such, As greater percentage than his allocated of fault. only injured party an action in which has sued one 600.2956, multiple [MCL tortfeasors and in which 600.2957, apply, and the tortfeasor would have 600.6304] tortfeasors, from other either no need to seek contribution defendants) (by bringing third-party in that action same action, “person no shall... be separate or because damages required greater in an amount than his or percentage [Citations fault....” omit- [allocated] her ted.] strictly It is

However, case not sound in tort. this does claim, provides: a breach of contract (“Lease”) THIS APARTMENT LEASE AGREEMENT made and entered into this date of June 2005 between L.L.C[.]; LAUREL WOODS APARTMENTS with an ad- Drive, Southfield, Laurel Michigan dress Woods (“Landlord”) severally) Najah (jointly Roumayah & (“Tenant”). Roumayah Rebecca It undisputed Najah Roumayah Rebecca signed agreement. Thus, plain to its according terms, Najah the parties agreed that and Rebecca jointly were liable.

By terms, its plain MCL 600.2956 does not preclude agreement; it applies tort actions “or another legal theory seeking damages for personal injury, prop- erty damage, wrongful death.” While this breach contract claim clearly seeks to recover for plaintiffs property, are sought pursuant contract and therefore are contract damages that arise incidentally from property damage. MCL 600.2956 does provide that it applies to a legal theory seeking contract damages. Nor there any indication that the Legislature, by 600.2956, MCL amending sought limit or eliminate the parties’ freedom to contract. The agreed that parties jointly would be severally for any damage liable that either them caused. This is not precluded by MCL 600.2956.

While we agree there is no Najah evidence that Roumayah fire, this not preclude does his liability. contractual above, As mentioned the contract Najah named and Rebecca Roumayah sever- “jointly ally” as “Tenant.” The contract further provided “Tenant any shall also be liable Premises ... that is caused the acts or omissions Tenant or Tenant’s guests.” Accordingly, Najah Rou- mayah any damage is liable for caused to the premises by himself, Roumayah, Rebecca guest. other Roumayah Laurel Woods Dissenting Opinion by J. Borrello,

C. CONCLUSION summary granting dispo- The court erred trial plainly favor when the contract defendants’ sition in that both defendants unambiguously provided jointly were The trial them caused to the

either one of summary disposi- partial have granted court should question The on this issue. tion in favor plaintiffs question is a fact remains, however, whether there caused the Rebecca whether regarding this issue its alleged damage. Plaintiff raised trial court summary disposition, but the motion for having defendants’ mo- it, granted never addressed instead. grounds tion on other proceedings con- and remand for further We reverse not retain jurisdiction. We do opinion. sistent with EJ., concurred. WILDER, I dissent from (dissenting). respectfully BORRELLO, were con- conclusions that defendants majority’s as in such manner

tractually bound to nullify holding Hampshire in New Ins this Court’s 369; NW2d 527 Group v disagree I with I dissent because Additionally, provisions MCL majority’s apply failure to this case. 600.2956 concern- right court conclusion trial reached reliance on contractual its

ing defendants’ Labombard, In this decision in Labombard. Court’s the land- subrogee of company, as for the lord, suit the defendant tenant brought against three-year-old tenant’s damages incurred after building playing fire to the while with daughter set Dissenting by Opinion Bokrello, agreement Id. at 370. The rental matches. contained in following provision, which the defendant tenant agreed: keep premises, including equipment

“[4.] To appliances, every during and fixtures of kind and nature agreement good the term of rental as repair and at expiration thereof, yield up same like condition as taken, damage by when reasonable wear and the elements 1, excepted.” quoting [Id. at 371 n agreement.] the rental The rental also agreement following contained the provision: premises wholly If

“[9.] become untenantable through damage destruction fire not occasioned Tenant, negligence agreement this rental shall be void; partially untenantable, if repair the Landlord shall speed, the same obligation with all convenient and the monthly pay Tenant to fee rental shall continue in provided full force repairs completed such shall be within forty days.” [Id.]

This Court affirmed the trial court’s granting order summary disposition tenant, favor of the noting that “[t]he rental did not address the issue of [the tenant’s] to the premises re- sulting from negligence.” 374, her Id. citing at Nation- wide Mut Fire Ins Co v Co, Detroit Edison Mich App 62; 289 NW2d 879 After discussing similar cases from other jurisdictions, this Court examined the rental agreement at and noted it issue did not contem- plate the tenant’s liability for fire damage including — paragraph obligated which the tenant rent— total notwithstanding destruction of the residence fire, regardless of the tenant’s fault. supra Further, “reasonably 375-376. a tenant may expect” that rental payments will be used cover fire insur- ance premiums. Id. at 376. Accordingly, “absent 645 by Dissenting Opinion Borrello, J. to be by a tenant agreement unequivocal express in tort for fire insurer or the lessor’s to the lessor liable premises, negligently which would or insurer duty no lessor tenant has Id. at damages.” for such claim negligence support 377. Service, Medical Emergency Community

In Antoon v (1991), the 592; 479 Inc, 476 NW2d App to the defendant. building leased a plaintiffs landlord fire, damaged by were Subsequently, premises by the tenant’s alleged the landlord was caused which agreement was “silent Id. at 593. The lease negligence. fire insurance to who was to obtain respect with Id. at allocated.” [damage] of fire was how risk Labombard, held that “a Court, citing 594. The Antoon premises for fire lessee is an negligence express absent resulting from the lessee’s for such agreement providing in the lease provision at 596. liability.” Id. Tire, 32; Inc, App 169 Mich

In v Capital Stefani an (1988), addressed the effect of this Court NW2d a tenant to insure the leased explicit requiring clause responsibility the tenant’s against fire loss on premises There, damage. caused fire negligently following provision: contained the specified, hereinbefore “In addition to the rentals premiums rented all agrees Tenant as additional premises and on the against loss fire on the on said improvements situated fully in- addition, keep premises Tenant shall In damage.” casualty glass plate against fire and sured 33-34, agreement.] quoting the lease [Id. at

Dissenting Opinion Borrello, Court noted that Labombard Court “[t]he Stefani seemed especially concerned about two interrelated the provisions factors: in the lease about fire expectations insurance and the parties.” Id. Further, regardless stated this Court express assumption

tenant’s negligence, own the tenant could not reason- ably that portion believe a of its rent was to going rental the proceeds because lease not was silent regarding the tenant’s responsibility to maintain fire insurance on the leased premises. Id. at 37. The then jury Court the affirmed verdict awarding damages to the at landlord. Id. 38.

Contrary cases, to line of the majority contends that the trial court erred in on relying and supra, states that the instant matter is a breach contract action rather than an action negli- based on gence. According majority, to because Labombard applies only negligence cases or cases that sound contract, tort rather than in inapplicable. it is Because the mere announcement of a legal conclusion does not so, it make I respectfully dissent.

A review of the lower court record does support majority’s Furthermore, contention. though dis by missed the majority as inapplicable to the facts set case, forth in this Labombard addressed a agree lease ment and the allegedly negligent actions of the tenant. Antoon, As we noted in supra Clark v citing Dalman, 251, 261; (1967), 150 NW2d 755 “the things the state of create[d] that furnishe[d] the occasion of the Specifically, tort.” agreement lease merely brings together the and tenant and landlord may set forth the limits on the liability. tortfeasor’s Thus, pursuant jurisprudence, to our we must look to agreement the lease to determine whether defendants Dissenting Opinion Boerello, in tort to be liable agreed unequivocally expressly Further, must we damages. caused negligently that indicates agreement lease determine whether not be would that fire insurance expected parties both parties and whether the premises on obtained of fire loss. the risk allocated para- relevant only concedes majority this issue is concerning agreement the lease graph significance Contrary great paragraph it, paragraph I conclude assigns majority general “yield more than a nothing agreement envisions defendants’ up” provision apartment and tear normal wear —almost It states the one in Labombard. provision identical damage to the will be “liable that defendants of” or omissions the acts Premises .. . that is for all responsible plaintiff and that damage is unless such apartment repairs cost case such neglect, which defendants’ “acts paid by by” shall incurred expense unequivocal “express not the This is defendants. to the lessor or to be liable by a tenant fire caused negligently for fire insurer in tort lessor’s Labombard by envisioned premises” to the damage Antoon Both Labombard for a waiver. Antoon by de- agreement unequivocal express an require fire negligently for caused in tort fendants to be liable by defen- agreement not an Paragraph 9 is damage. damage apart- to the in tort for fire to be liable dants agreement the lease Moreover, 9 of paragraph ment. Labombard, supra provision “yield up” to the similar the did not address Court found n which this at 1, result- premises liability for tenant’s that the Thus, I conclude would negligent acts. ing from and un- express not contain does agreement lease in tort to be liable defendants agreement equivocal Dissenting Opinion by Borrello, and, for negligently premises, furthermore, nothing there is in the lease agreement from Court precedent that removes this case set forth in Labombard. Contrary to conclusions Labombard majority, I contend that of are so facts to applica- similar those in this matter as to make its a bility foregone conclusion.

Furthermore, a reading provi- of the remainder of the my sions issue “con- supports interpretation First, tract.” paragraph requires defendants allow department inspectors” “insurance carriers” and “fire to the apartment premises access inspect and allows apartment access to the to make any repairs supra at 373-374. given prior notice. See Second, under paragraph plaintiff recommends that only defendants obtain renter’s loss or their personal property is caused fire. Plaintiff specifically excludes its for any damage by fire personal Third, to defendants’ property. section, under and Regulations” “Rules which is appended agreement, agree lease not to activity “allow on around the Premises that would result in an increase fire insurance premiums Finally, Premises.” and most importantly, agree- ment specifically excludes defendants’ responsibility for “any portion coverage fire or extended insurance” that plaintiff “may elect to maintain on the More- Premises.” over, defendants’ for rent contin- responsibility payments regardless ues whether the destruction is caused negligence. defendants’ language

“The should given its ordinary and plain meaning.” Meagher v Wayne State Univ, 700, 722; Mich App 565 NW2d 401 The lease unambiguously excludes defen- dants’ responsibility apart- fire insurance on the 649 v Dissenting Opinion Boerello, of the any not allocate Further, the contract does ment. damage prop- for fire to defendants risk of loss could Thus, defendants Antoon, supra erty. rental payments portion that reasonably expect could and premiums fire insurance to cover were used not for fire were they reasonably conclude at 376-377. Labombard, supra property. coverage plain- of defendants’ Regardless defendants apartment, to self-insure tiffs decision the lease obligated under not were Ac- apartment. caused fire negligently not err in the trial court did hold that cordingly, I would for fire responsible that defendants were concluding apartment. I am not majority because with join I cannot action a defendants’ merely by labeling persuaded years circumvent 20 Court can claim” this “contract In identical facts. considering almost when precedent creates a distinction holding view, majority’s my of the claim regarding the essence none exists where analysis, accepts conclusively, and without case and this against plain- action of its characterization defendants’ aby is not bound claim.” This Court a “contract tiff as cause of action because for its choice of labels party’s form over substance. effectively exalt would 208; 441 Livonia, App Mich 177 City Johnston case in this presented If the facts NW2d a “tort” rather than claim to a “contract” amount Antoon, can be said claim, then the same sum, In all, progeny. of their most, if not “contract” case a announced this merely has majority years holding has obviated so claim in this state. jurisprudence contention majority’s disagree with I also liable, MCL despite jointly are Dissenting Opinion by Borrello, J. 600.2596, damages plaintiffs recoverable and lost rental income. personality legislation, of its reform part Michigan “As tort Legislature joint liability several abolished and and replaced liability.’ significance with ‘fair share [it] change of the is that each pay only tortfeasor will portion total award that reflects v percentage tortfeasor’s of fault.” Smiley Corrigan, 51, 55; 248 Mich App MCL NW2d provides 600.2956 as follows: provided 6304, in Except as section in an action based on theory legal seeking damages tort or another for personal injury, damage, death, property wrongful liability or only joint. each defendant is several and is not However,this employer’s section does not an abolish vicari- liability ous act employer’s an or omission employee. 600.2957(1)

MCL further “In provides, an action based tort legal on or another theory seeking damages for injury, damage, personal property wrongful death, or of each liability person shall be allocated under this fact and, subject 6304, section trier of to section in direct proportion to the person’s percentage of fault.” Thus, Supreme as our Court in Gerling noted Konzern Allgemeine Lawson, Versicherungs AG v 51; (2005), legislation NW2d tort reform joint liability actions,

eliminated and several in certain tort requir[ing] that the fact-finder in such actions allocate tortfeasors, among fault all responsible provid[ing] and pay damages each tortfeasor need not in amount greater percentage such, than his allocated of fault. As injured only an action in party which an has sued one of multiple 600.2956, [MCL tortfeasors in which 600.2957, apply, 600.6304] the tortfeasor would have tortfeasors, no seek need to from other contribution either defendants) (by bringing third-party that same action Dissenting Opinion Borrello, action, “person because no shall... separate in a or greater amount than his damages in an required ” omit- [Citation fault.... percentage [allocated] her ted.] majority offered analysis disagree

I with joint and several the applicability regarding clear abundantly It is in this case. presented to the facts for ... “damages ... seeking legal on “tort or another action based in an damage” statute] language [of “If the theory.” MCL 600.2956. neither construction is unambiguous, judicial clear and en- the statute must be permitted, nor required Ren-Pharm, Inc, 269 Mich vBell forced as written.” (2006). Clearly, plaintiff 464, 466; NW2d 285 App apartment to recover seeks negligence. Roumayah’s by Rebecca allegedly caused MCL 600.2956 apply Thus, way there is no concluding that defendants this case without facts of may plaintiff liable for are recover. record shows

Furthermore, review evidence affirmative failed to set forth has plaintiff or con- Roumayah caused Najah demonstrating Najah A review of in the apartment. the fire tributed to present that he was not indicates Roumayah’s affidavit there Because the fire occurred. when apartment at the Najah Rou- whether regarding of fact question no is on trial court direct the fire, I would mayah summary disposition granting order to enter an remand favor. in his majority opinion in the raised

An issue not uninsured damages for may recover plaintiff whether I would Because property. personal real and losses to I would recovery, entitled to such hold that summary disposition affirm grant trial court’s Dissenting Opinion by Borrello, defendant Najah Roumayah with respect to any theory liability, and also affirm the trial court’s conclusions that this Court’s decision Labombard is applicable to the facts of this case. I would remand the matter to the trial court for trial on the issues whether Rebecca Roumayah caused the damage to plaintiffs personalty and whether this damage caused plaintiff to lose rental income or other uninsured losses.

Case Details

Case Name: Laurel Woods Apartments v. Roumayah

Court Name: Michigan Court of Appeals

Date Published: Jul 10, 2007

Citation: 734 N.W.2d 217

Docket Number: Docket 269506

Court Abbreviation: Mich. Ct. App.