Tebo v. Havlik

418 350 Mich 350 TEBO v HAVLIK BURNS v CARVER (Calendar 10, 68033, 6, Argued April 1983 Nos. Nos. 70881. Docket Tebo, 11) 6, February Rehearing as to 1984. denied . Decided 419 Mich 1201. brought Dorothy the Tebo action in Robert M. Tebo and E. Saginaw dramshop against Edward Court under the act Circuit Havlik, of with a the driver an automobile which collided Tebo, against by Dorothy Brim- E. and Steven vehicle driven Bar, Forbes, Long and mer of the Branch and Gerald owners Bar, Denter, Liquor alleging Oakley Fred owner the intoxicated at the time of the accident and that Havlik was beverages alcoholic to him bar owners had sold furnished trial, plaintiffs visibly while was intoxicated. Before he Judgment Levy on Execution Not to entered into a "Covenant Havlik, Pending with under' he was released in Action” which $50,000, expressly "re- of all in excess but was judgment summary for tained” in the action. Denter’s motion required ground on the that Havlik was not retained as denied, preclude dramshop in his motion limine to act was plaintiffs submitting damages for which evidence they compensation granted under the no-fault act was received court, Armstrong, Court the trial Hazen R. J. The Freeman, JJ., Danhof, C.J., Cavanagh Appeals, M. F. 52297). (Docket grant motion in limine No. reversed summary judgment appeals the his motion for Denter denial of grant motion in and the reversal of of his limine. 28, 1982, pendency appeal, September During on [1, [3, [5, [4, ^{[10] [9]} Validity 22 Am Jur Settlement with 2, 5, 11, 12] 4 Am Jur death as 42 ALR3d 229. 20 Am Jur 8] 6] 45 Am Jur 12] Am Jur Am Jur and construction 7 Am Jur releasing liability 2d, Appeal and 2d, Damages 2d, References 2d, Intoxicating Liquors 2d, Courts §§ 2d, or release of 2d, Intoxicating Liquors 590. Courts Automobile 206§ Error § 85, 231, §§ "no-fault” under civil et Points 183,184, person seq. 309. 233 et Insurance 368. directly automobile insurance 231. § Headnotes damage § seq. 610. § liable act. 78 ALR2d 998. injury plans. Tebo v Havlik Haskins, Supreme Putney decided Mich Court (1982),holding allegedly person that an intoxicated named as a defendant action a tavern owner is not meaning "retained” in the action within the of the "name and provision dramshop the retain” of act where a settlement of any plaintiff kind is reached between the and intoxicated the person litigation by settlement; before the is concluded trial or plaintiff at the time a settlement between the and the person against intoxicated made the the action tavern owner dismissed; allegedly and must that continuation of the party formally as a intoxicated defendant nominal dis- requirements satisfy missed the suit insufficient to the act. Burns, Lois for herself and as administratrix of estate the of Burns, deceased, brought Wayne Frank a similar action in the dramshop against Circuit Court the act under Richard Pior- nack, II, the of an driver automobile which struck and killed Burns, Piornack, against Frank and Richard B. owner the vehicle, Chase, and Vincent Carver and Brian owners Jock’s Pub, II, alleging Piornack, that Richard was intoxicated at the time the accident and that bar the owners had sold or beverages visibly furnished alcoholic while to him he was 21, 1982, May plaintiff intoxicated. On the a executed "Release II, Piornack, and Settlement of with Claim” Richard which court, Hausner, "retained” him in the action. The trial John H. J., granted judgment summary Carver and Chase’s motion for holding Putney. Supreme on the basis of the in Court granted plaintiff’s application prior appeal the for leave to to by Appeals. decision the Court of opinion by joined Brickley, by In an Justice Cav- Justices (as anagh only) separate Boyle, to Burns and concurrences by Ryan, Supreme Chief Justice Williams held: Court dramshop The rule that a settlement in a action between plaintiff allegedly and an intoxicated defendant will result in a applies dismissal of the action the tavern owner actions where the settlement was entered into after the date of rule, announcing September in decision the case 1982. The no-fault act does not alter rule that the common-law recovery damages by receipt from a is not tortfeasor reduced money by plaintiff compensation from other sources in injuries; act, duplicative recovery for his under is limited insurer, only where the limitation would benefit no-fault thus providing an incentive for lower insurance rates. Brickley Justice wrote: 418 Mich 350 dramshop requires allegedly 1. The act that an intoxicated dramshop defendant be retained in a action as an interested party litigation prevent defendant until is concluded so as to by ensuring fraud and collusion that the defendant will have a personally testifying, examining direct financial stake in wit- nesses, arguing negligent. that his actions were not Once fixed, settlement, has been as the incentive is

gone though even the defendant is "retained” as a nominal defendant. Until this construction of the 2. act was announced Court, Supreme however, interpretation of the act Appeals permitted long the Court of such settlements so nominally unques- the defendant was retained. Because of the tioned status of such settlements before the announcement of rule, unjust permit applica- it new would be retroactive tion of the new rule. Legislature persons participate 3. The intended that who required give up possibility the no-fault scheme be injuries exchange redundant for lower insur- Analysis provisions ance rates. of the setoff of the act reveals a recovery only careful effort limit such where the limitation insurer; would-benefit a no-fault there is no indication that the Legislature dramshop intended to benefit defendants or their respect insurers. Abolition of the collateral-source rule with to nothing legislative defendants would do to fulfill the goal of the no-fault act. Brickley Chief Justice Williams concurred with Justice ex- cept agreed meaning that he with Justice Levin as to the application appeal by Supreme denial of for leave.to Court. Ryan Michigan appellate Justice concurred. When a court unequivocally construes a statute and declares what it means obligated accept the bench and bar are the construction as authoritative, lawyers expected profes- can be to render sional advice consistent with the without construction assum- ing Supreme that the construction will be overruled. Where the apрellate Court declines to review a decision of an intermediate court, accept upon the bench and bar should be free to and act aberrant, interpretation, that court’s no matter how with confi- retroactively. dence that the rules will not be later rewritten Supreme statutory interpreta- When the Court does overrule a court, by appellate tion an intermediate it must determine requires give whether fundamental fairness that it its decision prospective only. retroactive effect or to make the effect In this case, apply retroactively penalize the rule would those lawyers contrary and their clients who relied on a rule an- Tebo v Havlik Prospective application Appeals. will nounced the Court injustice. in the least result Levin, Kavanagh, joined Justice concurred Justice agreed part in Tebo. He and dissented in Burns prospective, application but would not rule should be of the Supreme disapproving suggest Court that a decision of the interpretation by overruling unquestioned or uncontradicted given prospective Appeals invariably should the Court agree that the common-law collateral-source effect. He did not personal injury protection to include rule should be extended paid to the owner of an automobile a no-fault benefits insurer. suggested unquestioned not be that an or uncon- 1. It should Appeals interpretation by may Court of invari- tradicted on, concept ably with be relied because that is inconsistent appeal by Supreme Court does not that a denial leave anything regarding the intimate Court’s view of the merits of a Appeals. decision of the Court of There is considerable institu- norm, pressure tional to settle cases. Settlement is the trial the climate, exception. lawyer In that it would be difficult for a maintain, against professional judicial opinion, the tide of Appeals might that because a Court of decision be overruled he safely could not advise his clients to settle a lawsuit on the context, therefore, authority of In that decision. this the clients lawyers juggernaut who accommodated the institutional accepted governing as the rule a decision of the Court of Appeals possible part it that made to settle one of a three- dispute parties cornered without the consent of all the should penalized by application Supreme not be a retroactive disapproving disapproving Court case and the decision case given prospective only. should be effect insurer, 2. The no-fault act substitutes one automobile who no-fault/liability injured person’s be the insurer of the vehicle, another, liability vehicle or of some other negligently vehicle, operated insurer of a as the source of reparations wage/work statutory loss within the limit and expense. medical Before the enactment of the no-fault paid by negligently operated amounts insurer of a wоuld, damage compensat- vehicle for such elements of to avoid ing injured person loss, greater an in an amount than his have damages payable by been subtracted from a non-motorist tort- feasor, e.g., parts an automobile or manufacturer. There should Legislature, not he changing ascribed to the the automobile wage/work insurer that reimburses for and loss medical ex- pense, about, bring through intent to extension of common- Mich (the rule), recovery of double law doctrine collateral-source enlargement parallel expense and a medical work loss and Damages repara- liability and tortfeasors. of non-motorist statutory paid by required common and law of to be tions action, pursuant damages PIP benefits in a tort this state — independent, separate, generated from act—are not the no-fault source, sources, namely from the same but rather or collateral reparations Damages public policy are of this state. act, now, out of payable the enactment of the no-fault as before paid by premiums pool money owners and funded with a imposed discharge on vehicles to drivers of motor with the of this state. It is not consistent them the law law, purpose policy of the no-fault common or with of the reparations system, provide to read a more cost-effective act benefits, recovery permit duplicative at the no-fault act to once, required paid by the law collectible but to be common law rule, judi- of the collateral-source this state. The rationale enacted, promulgated cially the no-fault act was does not before benefits; require inexorably include PIP extension of the rule to legislative so extended absent evidence of a it should not be legislative program purpose provide, part of the embodied for such double and increase in the in the no-fault exposure tortfeasors. of non-motorist against requiring from verdicts 3. The rule the subtraction that are of amounts received from other sources tortfeasors provide reparations required the law of for the same loss apply against a as well as this state should to a verdict tavern against any other non-motorist tortfeasor. a verdict reversed, summary judgment in Burns is and the case is Tebo, summary judgment In the motion for remanded for trial. denied, affirmed, Appeals of the the decision Court trial. the case is remanded for (1981) App 311 NW2d 372 affirmed.

Opinion by Brickley, Intoxicating Dramshop — — Liquors 1. Act Name and Retain. person allegedly The rule intoxicated who is named as that an dramshop against owner is not defendant in a action a tavern meaning act retained in the action within the plaintiff any where a kind is reached between the settlement litigation person and the is concluded intoxicated before settlement; is made trial or that at the time settlement plaintiff person the action between the and the intoxicated dismissed; that the fact the tаvern owner must be allegedly as a nominal that the intoxicated defendant continues Tebo v Havlik formally

party dismissed from the action insuffi- is not and requirements satisfy retain of the act the name and cient to applies was entered into after where the settlement to actions 1982, by September announced the date the rule was 18.993). (MCL436.22; Supreme MSA Court Dramshop — Intoxicating — Liquors 2. Act Name Retain. and requires allegedly dramshop intoxicated defen- act The dramshop party in a action as an interested dant be retained prevent litigation so as to fraud until is concluded defendant ensuring by a that the defendant will have direct and collusion witnesses, personally testifying, examining in financial stake negligent; arguing were not once that his actions settlement, fixed, gone by the incentive is even has been a though a nominal the defendant is "retained” as defendant 18.993). (MCL436.22;MSA Appeals Binding — — — 3. Rule. Decisions of Courts Court panel by majority judges any the Court A decision Appeals is a decision of that Court controls statewide by panel Appeals until contradicted another of the Court of 800.4). (GCR1963, Supreme overruled Court reversed or — — 4. Rule. Act Collateral-Source Torts No-Fault The no-fault act does not alter the common-law rule that recov- ery damages by receipt from a tortfeasor is not reduced money by plaintiff compensation from other in sources injuries; duplicative recovery only his under the is limited (MCL where the limitation would benefit a no-fault insurer 500.3135[2]; 24.13135[2]). MSA — — 5. Torts No-Fault Act Collateral-Source Rule. Legislature persons participate intended that who in the no- required give up possibility fault scheme be of redundant recovery injuries rates, exchange in for lower insurance but only such is limited where the limitation would ben- insurer; actions, dramshop efit the no-fault abolition of the dramshop collateral-source rule would benefit the defendant (MCL nothing goal and would do to fulfill the of the no-fault act seq.; seq.). 500.3101et MSA 24.13101 et

Concurring Ryan, Intoxicating Dramshop — — — Liquors 6. Act Name and Retain Appeals — Court of Decisions.

The rule allegedly that nominal retention of an intoxicated dramshop satisfy defendant in a action is insufficient to 418 Mich provision act where a retain” “name and plaintiff between the defendant

settlement is reached 28, 1982, prospectively only September applied should be announced, the bench which the rule was where the date on accept contrary previously construc- and bar were invited to panels Appeals ñve of the Court of in the tion of the statute application years, prospective will result course of six because 18.993). (MCL436.22; injustice MSA the least Opinion by Dissenting Levin, Binding Appeals — — — Rule. 7. of Decisions Courts Court binding precedent Appeals is which A decision of the Court of a by must followed trial courts unless and until there is a conflicting panel Appeals by decision another of the Court of Court, disapproved by Supreme until it is or overruled the but banc) (with possible exception en it is not a of a decision decisis, rule of lаw within the doctrine of stare because it is not binding Supreme panels on either the Court or other Appeals. Court of Appeals Supreme — — — — of Decisions Court 8. Courts Court Decisis. Stare Supreme disapproves or overrules A decision Court which Appeals is not a declaration of a new decision Court overruling precedent, rule or the of established because a (with possible exception Appeals decision of Court banc) within a decision en is not a rule of law the doctrine stare decisis. Appeal Supreme — — Denied. 9. Courts Court Leave to appeal by Supreme A denial of leave to Court is not an expression opinion regard analysis with to the or conclusion Appeals. of the Court of Retroactivity. Supreme — — — 10. Courts Court Decisions Supreme generally A decision it Court is retroactive unless precedent overrules established or otherwise declares a new rule; retroactivity of a new rule be limited. Damages — — — 11. Insurance No-Fault Collateral-Source Rule. protection injury statutory reparations Personal beneñts are damages which substitute for common-law and are not a source recovery primary recovery collateral source of for Tebo v Havlik expenses wage resulting medical losses from an automobile rule, accident; prohibits the collateral-source which the setoff of sources, policies recoveries from collateral such as insurance on paid premium, against which the tortfeasor has not recovery applied personal from a tortfeasor should not be (MCL injury protection seq.; beneñts 500.3101 et MSA 24.13101 seq.). et Damages Dramshop — — — 12. Insurance No-Fault Actions. action, giving dramshop

Under circumstances rise to a no-fault insurer and a tavern owner have a common burden of payment expenses wage person of medical losses to a thus, injured accident; personal injury protec- in an automobile beneñts, duplicative tion where of a in a action, should be subtracted from a verdict the tavern (MCL 436.22, 18.993, seq.; owner 500.3101 et MSA 24.13101 et seq.). Meyer Smith, Bovill, Fisher, Borchard, & P.C. Meyer), (by James T. Borchard and David B. plaintiffs Tebo.

Philip S. Della Santina for defendants Brimmer and Forbes.

Smith Brooker, & P.C. (by Huffman, Michael J. Connolly, Jarema), Thomas A. and Robert A. for defendant Denter.

Lopatin, Miller, Freedman, Bluestone, Erlich, Stephen Rosen & Bartnick (by G. Silverman and Shaw) Richard E. for plaintiff Burns. Grenn) Grenn & Grenn (by Frederick M. for defendants Carver and Chase.

Amicus Curiae: Wesley, Ross, Summer & P.C. (by Stuart Ulanoff Lovell), A. Ulanoff and Jerald R. for Stonewall Insurance Company. Mich 350 Brickley, question involve J. These cases

Brickley, Haskins, Putney in decision this Court’s whether (1982), interpreting 324 NW2d dramshop of the provision the name and retain act, given application. retroactive is to be Burns, complaint her on Febru- plaintiff filed

In died 26, 1981, plaintiff’s that decedent alleging ary in an automobile sustained as injuries a result Piornack, II. Plaintiff also with Richard collision and Brian Vincent Carver appellees alleged Pub, Chase, liable for serv- of Jock’s were owners in ing intoxicating beverages Piornack violation 436.22; MSA 18.993. On dramshop MCL 1982, and 21, executed a "Release plaintiff May agree- with Piornack. The Settlement Claim” $20,000 exchange in Pior- ment provided action, re- to be in the but nack was "retained” Following liability. from all this Court’s leased were Putney, appellees moved decision 18, granted February On summary judgment. 1983, for leave to granted plaintiff’s application we Appeals. the Court of appeal prior decision 417 Mich 887 Tebo, plaintiff complaint January

In filed her on alleged injuries 1977. She she suffered of a collision with automobile driven result complaint An was by Edward Havlik. amended filed, naming Brimmer as defendants Steven Forbes, Bar, Long Gerald owners of the Branch Bar, Denter, and Fred Oakley Liquor owner predicating their on liability provisions 4, 1977, plaintiff act. August On Levy Havlik entered into "Covenant Not Action”, Execution on under Judgment Pending which Havlik was released of all in excess $50,000, but he was in the expressly "retained” action. Denter’s motion for on summary judgment Tebo v Havlik Opinion by Beickley, J. grounds that plaintiff had failed to retain required Havlik as act was de- 7, nied on December 1978. Denter subsequently a motion limine brought preclude plaintiff from submitting evidence of any damages plaintiff which received compensation under MCL 500.3101 et seq.; MSA 24.13101 no-fault seq. et granted The trial court this motion and was reversed on interlocutory appeal. 109 Mich App (1981). 413; 311 NW2d 372 Putney was decided while application Denter’s appeal leave to was pending. Denter moved for summary judgment 865.1(7). 1963, this Court pursuant to GCR We granted appeal leave to to consider both the mo- tion for summary judgment and the decision of the Court of Appeals. Mich 887 Haskins, In Putney supra, p this Court construed the "name and provision retain” dramshop act. We found in the statutory language legislative mandate that the allegedly intoxi- cated person be "retained as an interested party defendant until the litigation concluded”. Only [is] by requiring the allegedly person intoxicated remain at risk could the name provi- and retain sion’s purpose of preventing fraud collusion be completely fulfilled. As we stated: "One of the ways provision the 'name and retain’ prevents fraud and by ensuring collusion is defendant will have a direct person- financial stake in ally testifying, witnesses, examining arguing he did not act in negligent manner. Once the defen- limited, dant’s is fixed and he has no incentive produce witnesses or testimony tending prove he was 'visibly intoxicated’ question. on the date in The dramshop defendant may have much diffi- more culty in identifying, locating, obtaining favorable testimony from the acquain- defendant’s friends or tances who observed him at relevant times.” Mich 350 418

360 Opinion Brickley, J. obviously present agreements cases in the persons allegedly intoxicated do not retain the Liability meaning act. of within Putney to be retroac- If is deemed has been'fixed. tive, plaintiffs’ must be dismissed. actions gen Although been stated it has often complete retroactivity, this rule one of eral Court has approach.1 adopted flexible a " single thumb no rule of there is 'It is evident of accomplish the maximum can used to which in circumstances. The varying in set of justice each magnitude of rights, property of vested volvement public taken on bodies without impact decision on the old showing substantial reliance warning or a Detroit, 364 v may influence the result.’ Williams rule (1961) (opinion of 265-266; 1 111 NW2d Mich Smith, T. M. in Justices Talbot which Justice Edwards concurred). Kavanagh Souris application flexibility opinion in "The benefit absolutely If bound the tradi- court were evident. application, it would be se- rule of retroactive tional verely hampered changes ability in needed its make in that could result in the law because of the chaos prior v regard to under that law.” Placek enforcement 638, 665; Heights, 405 275 NW2d Sterling Mich City (1979). 511 Appreciation change of the effect a settled only can Court to favor law limited have has led this prior overruling retroactivity law. when imputed negligence Thus, when the doctrine of Green, 218; was overruled in Bricker 313 Mich v (1946), applied only 21 NW2d 105 the decision was pending the case the Court and to before im- future cases. of charitable When doctrine 1 retroactivity Moody, see For review of this Court’s treatment Michigan, Application Law-Changing 28 Retroactive Decisions (1982). Wayne L Rev 439 361 Tebo Havlik Bkickley, in Parker v Port Huron overruled munity was (1960), 1; 1 Mich 105 NW2d Hospital, limited to the of the decision was retroactive effect Even where statutory the Court. before parties involved, this Court has has been construction justice of a decision when retroactivity limited Tubular Prod- See Gusler v Fairview required. so ucts, Franges (1981); 270; NW2d Corp, 274 NW2d v General Motors Mich our interpre- us is whether question before applied retroactively of a statute should be tation In Putney, date. we found the statute’s effective to the require of the statute to be to import the clear intoxi- allegedly name and retain plaintiff to Putney a case of first at risk. Were person cated courts, Michigan in the we would hold impression gave no rea- language plaintiffs the statutory the settlements entered into to believe that son portion the "retain” of the with comply would however, not a case of first Putney, statute. was Michigan in the courts. impression Alexander, In Buxton v 507; 245 App 69 Mich lv den 399 Mich 827 (1976), (1977), NW2d brought and plaintiff by was struck automobile owners who against suit the driver and the bar he was allegedly visibly served the driver while trial, plaintiff to impaired. days prior Four Agreement”, entered un- into an "Indemnification limited to der which the driver’s was $19,000. expressly The driver was "retained” agree- the action. In the effect of this analyzing against ment on the action the bar plaintiff’s owners, of the purpose court looked provision by name and retain as stated the Court Clements, 367; in Salas v Appeals App 57 Mich rev’d (1975), 226 NW2d 101 418 Mich by Brickley, (1976), perjury. to avoid collusion NW2d the Court stated: purpose, from that Extrapolating policy of the purpose this is "Balanced litigation. The statute encourage settlement to law not intended plaintiff prohibit settlement between a except where claims tortfeasor his intoxicated simultaneously set- first or owners are against tled. On indicates tavern language the statute contrary, require the intoxicated only an intention enacting In as a defendant. to be retained tortfeasor this legislation’ Legislature has 'special interest plaintiff prohibit from intention manifested an only a claim versus a tavern. The going jury with tort- only name but must retain the plaintiff must not But is all the statute re- in the lawsuit. feasor plaintiff a 'hold harmless’ prohibit a quires. To here, settlement, impede would as was used type prompt that litigation force trials of cases disposition of Buxton, supra, p 511. settled.” would otherwise be course, implicitly Buxton was overruled Of Court, this Until was decided Putney. Putney however, Buxton remained as the uncontradicted provision. name and retain interpretation Nonetheless, argued any it reliance it was because plaintiffs misplaced on Buxton was of rather than one Appeals, a decision of the Court argument of this Court. This fails to take into Michigan appellate account the structure of the system. panel Appeals

A decision of a of the Court of 1963, the 800.4. A deci- a decision of Court. GCR is, of by any panel Appeals sion of Court therefore, controlling statewide until contradicted or re- by panel Appeals another of the Court of In the by versed or overruled this Court. See 532; 524 Hague, Matter of 412 Mich 315 NW2d (1982); Clerk, App Hackett v Ferndale 1 Mich City (1965). 6; of possibility 133 NW2d 221 While the claim of reversal or contradiction lessen a 363 Tebo v Havlik by Brickley, And, reliance, although it.2 preclude it does not Buxton an contradiction of possibility of the existed, Appeals of panel other of Court expressions by panels happen. Subsequent did not did on the same issue Appeals of the Court Buxton. See authority to lessen the nothing Harris, v 567; 325 NW2d Cussans App 118 Mich Gibson, 466; v 94 Mich 289 Putney (1982); App 793 nom v Has (1979), Putney rev’d sub NW2d 837 kins, Corp, v Southland 90 supra; Rowan Mich Bedford, Denham v (1979); 61; 282 NW2d 243 App aff'd 407 (1978), 107; 82 266 682 App Mich NW2d (1980). 517; 168 In light Mich 287 NW2d of Buxton at the time Putney unquestioned status Court,3 it unjust was decided this would be apply Putney retroactively persons other than in that those before the Court case.4 say appeal the state of That is not to denial leave to fixes strengthens prospectivity of a law or the case later precedential overruling See Frishett appeal A no case. denial has value. leave Co, v State Farm Mutual Automobile Ins 378 Mich 733 (1966). We, therefore, weight ascribe no to our denial of leave to however, appeal given weight, in Buxton. must be some is that What Appeals an uncontradicted decision of the Court of must be followed by the circuit courts. notes, pressure As our brother Justice Levin the institutional great. light policy towards settlement Court 412 Mich In oft-stated of this settlement, favoring see, Stations, Inc, e.g., Payless Brewer v 673, Co, 679; (1982); Alger Ogden George NW2d v F 402, 407; (1958), party’s 91 NW2d 288 on Buxton reliance hardly can be deemed unreasonable. 286; Donnelly, We find United States v Estate of 397 US 90 S Ct 1033; (1970), support retroactivity, 25 L Ed 2d 312 cited in full to be There, distinguishable. subject 1960, respondents purchased property Appeals to federal tax liens in reliance on the Court of (CA 1944), Youngblood States, decision in v United 141 F2d 912 wherе the 6th Circuit had failing held certain federal tax liens invalid comply Michigan filing requirements. with In United States (CA Rasmuson, 8, 1958), however, 253 F2d 944 the 8th Circuit held comply that such federal tax liens need not with local law. The Supreme ultimately agreed position Court 8th with the taken Co, 291; Circuit. United States v Union Central Life Ins 368 US 82 S holding Ct retroactively 7 L Ed 2d 294 In was to be that Union Central Supreme applied respondents Donnelly, Court stated: 418 Mich Brickley, the full to the harsh effect which In contrast Putney injured would have on retroactivity prospective application will have little plaintiffs, in those pending on defendants effect agreements have been cases where settlement Putney made, the defense of will be though even them, the law will remain simply unavailable. For hold that Putney 1976 to 1982. as it was from We v Haskins to all cases where settle- applicable alleg- ment are entered into with the agreements after the date of decision edly person intoxicated in Putney. Denter, appeal

In to defendant granting leave following question we directed that be briefed: "[Wjhether no-fault insurance MCL seq.; seq., 500.3101 et MSA 24.13101 et alters the common-law collateral-source rule”. We answer in question negative. that narrow 3135(2) provides: Section of the no-fault act "(2) Notwithstanding law, any provision other tort arising ownership, maintenance, liability use within this from the respect of a state motor vehicle with 3101(3) (4) security required by which the was section and except effect is abolished as to: "(c) loss, Damages expenses, for allowable work survivor’s loss as defined in sections 3107 to 3110 in excess of daily, monthly, 3-year con- limitations rulings by appeals, appar- particularly "Deviant circuit courts of dictum, provide generally 'justified necessary ent cannot reliance’ withholding application to warrant ing ing retroactive of a decision constru- decisions constru- Congress cases, a statute as intended it. In rare might effect, federal statutes be denied full retroactive as for statute, instance where this Court overrules its own construction of a Simpson (1964), Co, 13, 25; cf. v Union Oil 377 US 84 S Ct 12 L Ed 2d Donnelly, supra, but this is not such a case.” 397 US 295. assuming Donnelly Even that we would have decided as did the Court, Supreme ignoring United States the structural differences Michigan, between the federal courts and the courts of Buxton cannot be considered a "deviant” decision. It was uncontradicted. Havlik Tebo v by Opinion Brickley, J. damages is party liable for The in those sections. tained liability by reducing his or her exemption entitled the amount payable on been "that would have of taxes have re- injured person would of income account injured.” MCL she had not been if he or ceived 24.13135(2). 500.3135(2); MSA all court, moved to exclude Denter trial In the losses on economic regarding plaintiffs testimony barred tort provision the above grounds received com- plaintiff had to the extent damages act. The the no-fault insurance under pensation motion, and on interlocu- granted trial court reversed, relying Appeals the Court of appeal tory Tuttle, 411 Mich of Amеrica v Ins Co on Citizens rev’g (1981), App 536; 309 NW2d 294 NW2d Tuttle, brought suit for plaintiff the motorist

In he collided with the de- sustained when damages This Court held kept cow. negligently fendant’s the defen- the cause action that because negligent cow-keeping, plain- dant arose out of 3135(2) act. by tiffs action was barred § We stated: own, vehi-

"Only persons who maintain or use motor liability injuries or subject cles can be to tort ownership, or use of damage by caused maintenance .motor vehicle the no-fault non-motor- [under act]. liability for subject ist injuries tortfeasor cannot be to tort damage ownership, mainte- by caused of tort nance or use of a motor vehicle. The abolition liability from) (arising injuries damage caused vehicle, ownership, maintenance or use of a motor therefore, liability of the non- does not abolish the tort tortfeasor.” 411 Mich 545-546. motorist own, case, main- In the Denter did not present tain, plain- or use the vehicle that caused motor 418 Mich 350 Bkickley, instead, arises out liability, His injuries.

tiffs alleged intoxicating liquors sale of to a visibly his Just as the tort person. intoxicated bar of so too is the remainder inapplicable, § act inapplicable. Notwithstanding language of the no- insurance does not apply present fault act case, Denter ‍​​‌‌‌‌​​​‌‌​‌​‌​‌‌​‌‌​‌‌​‌‌​​​​‌‌‌​‌​‌‌‌​​‌‌‌​​​‍contends the act manifests prohibit damages intent legislative tort actions the plaintiff all where has been short, insurance. In re- compensated Denter quests abolition the collateral-source rule. We find in the no-fault no reason insurance act comply request. with that

The common-law collateral-source rule provides damages that the from a tortfeasor recovery plaintiffs not reduced receipt money injuries for his from other compensation sources. Co, Michigan Motts Cab 264 NW Shearer, (1868). Perrott v (1936); 855 17 48 In Mich insurance, the context of the rationale for the rule plaintiff given up is that has consideration and is entitled to the contractual benefits. The plain- foresight tiffs and financial sacrifice should not tortfeasor, inure to the benefit of the who has nothing contributed to the plaintiffs insurance coverage. gratuitous Similarly, compensation should not inure to the benefit of the tortfeasor. nothing, except tortfeasor has contributed activity plaintiffs which caused the injuries.

The no-fault insurance act was a radical restruc- turing rights of the and liabilities of motorists. Through comprehensive action, the Legislature sought accomplish goal an providing equitable prompt redressing inju- method of ries in way which made insur- mandatory Shav- ance coverage affordable all motorists. See Tebo v Havlik Brickley, General, 402 554; 267 NW2d Mich Attorney ers v (1979). light It den (1978), cert US 934 the no- provisions of goal that the setoff of that act must be viewed. insurance fault provisions of the setoff purpose The obvious act benefits. The duplicate to eliminate the act is companies the insurance the amount "reduces out, them to making possible it must pay it charge, must they amount reduce the are in those situations where benefits only so does Farm Mutual Auto- v State redundant”. O’Donnell Co, 524, 546; Ins Mich 273 NW2d mobile effect, trade-off. Legislature made a In in the no- required participate Those who were up possibility redundant gave fault scheme recoveries, to receive the but were intended they rates. of lower insurance benefit in the no-fault provisions setoff Analysis limit legislative careful effort act reveals where the limitation duplicative only insurer, providing a no-fault thus would benefit for lower insurance rates. Section 3116 incentive requires personal injury protection of the act no-fault benefits be reduced to the extent equivalent compensation insured has received from tort outside judgments arising from accidents state, motor- accidents with uninsured ists, and harm. This intentionally caused reduction of benefit payable benefits inures to the injured of the no-fault in situations party’s insurer where the tortfeasor would not be within normally coverage the of the no-fault Similarly, act. § of the act provides personal protection injury no-fault benefits are to the be reduced amount of governmental provided required by benefits provided Again, law to be to the insured. injured when the additional to the insured compensation Opinion Williams, C.J. scope the of the outside from a source

has come act, by having insurer benefits the no-fault no-fault to the insured. compensation less pay tort provides of the act Finally, § arising from their own- persons judgments maintenance, of a motor vehicle or use ership, no-fault act are allowable scope of the within personal injury exceed they extent to the only injured received no-fault benefits protection Although the act. 3107 to 3110 of under party §§ insurer it is under §3135 benefits, still, no- it is normally, who tortfeasor fault insurer. action, present

As relevant in the no- participated Denter has not defendant to turn around the Denter asks us scheme. fault a tortfeasor to benefit of the no-fault act policy only This would not a no-fault insurer. than rather the no-fault extension of unwarranted be an its intent. Abolition contrary it would but noth- to him would do rule as collateral-source lower no-fault legislative goal of to fulfill ing of the no- structure rates. The careful insurance legislative no provisions evinces fault act’s setoff and their dramshop defendants to benefit intent insurers. reversed, Burns, is summary judgment

In trial. is remanded for and the cause 865.1(7), Tebo, to GCR pursuant In denied, the deci- summary judgment motion for affirmed, Appeals sion of the Court of is remanded for trial. cause Cavanagh Burns only) as to (participating Brickley, Boyle, JJ., concurred with Brick- Williams, my I with brother C.J. concur ley brother Levin agree my I with except Tebo Havlik by Opinion Ryan, J. application to meaning for leave of of denial the to appeal by Supreme Court. the (concurring). anof the functions of One Ryan, authoritatively appellate declare is to court legislative meaning language enactments. of of only purposes function of that one, One, of but lawyers practicing their advise to enable to certаinty degree and a reasonable clients with predictability by may be taken which to action personal daily economic and in their clients those construing interpret- In the course affairs. ing appellate courts statutes, state’s this countless language legislative repeatedly does held have not Every plainly say. always it what seems mean experi- any practicing lawyer judge often told courts have ence knows that our legislative language of a bench and bar say appellate it courts what the enactment means means and not necessarily in the words used what to mean. the statute seem

Practicing jurisprudence involves law such appellate may very never be An court real risks. particular upon interpret or, if statute called asked, request years only after receive the application interpretation "unauthoritative” practicing lawyers have who been thousands of required and how to advise clients whether guidance interpre- proceed judicial without appellate question. If the tation of the statute request court, of a statute when a for construction presented it, in a enactment construes the reading way at theretofore which is odds with latecoming given practicing lawyers, it judicial ordinarily ac- construction is nevertheless "misper- cepted by including all, have those who meaning statute, as the ceived” the correct correct interpretation general rule is ab initio. The 418 Mich Ryan, J. one of Such retroactivity. judicial corrective hind- sight accepted is understood and by bench and bar an ordinary indigenous as risk to a profession in which service to a client rests largely upon the vicissitudes of scholarship, analysis, judgment, and prediction practice essence the of law. —the Practicing lawyers live every day with the under- standing that they may reading be a statute way appellate with which an court will subse- disagree. quently They accept that risk.

However, Michigan when a appellate court does construe a statute and unequivocally declares means, what it the entitled, bench and bar are obligated, indeed to accept that construction authoritative, and lawyers can be expected to ren professional der advice consistent with that inter pretation in the confidence that the risk of misin terpretation of the statutory language has been lifted from their shoulders.1 While risk is ever present higher that a appellate court may disagree with an intermediate appellate court’s interpreta tion statute, of the meaning of a and lawyer his client should expected not be to assume that that happen. will When it does happen, it is higher the court’s duty determine whether the decisional error court, of the lower considered in light traditional doctrines of appellate review and no tions of fairness, fundamental requires higher court given retroactive, decision be limited retroactive, or even only prospective When, effect. as in Alexander, Buxton v 507; Mich App (1976), NW2d 111 lv den 399 (1977), Mich 827 Supreme Court, upon being asked to review the Court Appeals statute, construction de- 1People Phillips, 63, 74; v (1982); People Mich 330 NW2d 366 (1977), George, explicate Mich 250 NW2d 491 the niceties of point at appellate judgment final, which an intermediate court binding, precedential. and Havlik Tebo v Ryan, J. review, for corrective opportunity dines act and accept free to and bar should bench no interpretation, court’s the intermediate upon aberrant, in the confidence matter how rewritten later not be game will rules of retroactively. made may be distinctions scholarly nice

While hair- jurisprudential sound unimpeachably and application defense splitting undertaken deci- court appellate intermediate canons that and rever- to modification subject always sions are Court Supreme higher authority, sal nonprecedential appeal denial of leave the lower court amount to affirmation does not must lawyers decision, practicing the fact is that real clients about and now to real give advice here damages, suffering and related and pain claims clients, their For them and involving real dollars. appellate intermediate nothing that an the truism concrete is is set in jurisprudential court ever says no help. Buxton, appellate supra, the intermediate

In justice erroneously Michigan’s level of one court provision retain that the name and concluded it what 436.22; MSA 18.993 did not mean MCL Haskins, Putney v said. unequivocally and plainly holding, In 181; 324 729 so 414 Mich NW2d While it and misled bench and bar. misadvised order the defen subsequent denying this Codrt’s to appeal interlocutory application for leave dant’s not, sense, have been taken as any should decision,2 the Appeals of the Court of approval lawyer practicing inference only common-sense 2 opinion denying appeal express no on the merits leave to Orders Co, Ins 378 of Mich 733 case. Frishett v State Farm Mutual Automobile (1966) Peters, (order); Corp Realty 336 Mich Great Lakes (1953); Heating 328-329; Malooly & Venti- 57 NW2d 901 v York (1935). 240, 247; lating Corp, NW Mich 350 Ryan, J. surely Buxton was that have drawn was could repeatedly logic inference was of that The

law. fortified panels other least four when at patently Appeals erro followed Buxton’s Court of holding, despite it was obvi the fact neous language plain ously of the stat with the at odds years, until this for six The result is ute. Court’s and the in the action” was supra, Putney, direct, clear, the Legislature decision unequivocal mandate of the person actually "retained was intoxicated disregarded. simply no There acting upon litigants, knowing many way of how guided judicially advice the understandable prog counsel, eny, Buxton and its the rule of followed damages many of dollars in millions or how partial paid in settlement of have been cases, remaining litigation followed disregard 436.22; 18.993 claims, in of MCL MSA subsequently Putney. decided give Putney question now whether appellate re effect traditional rules retrоactive application prospective only dictate, or view requires. plaintiffs in these cases contend fairness give merely prospective Putney effect, we If we compound mischief done in Buxton effec suspending tively years valid for six an otherwise litigants retroactively penalizing statute, counsel followed the letter of MCL their who declining opportunity 18.993, 436.22; MSA per actually settle claims son intoxicated separately, going to trial its inher often with ently unjust uncertain and sometimes results.4 3 (1982); Harris, 567; App 325 NW2d 793 See Cussans v 118 Mich Gibson, (1979), 466; Putney App 289 837 rev’d sub v 94 Mich NW2d Haskins, App Putney supra; Corp, v 90 Mich nom Rowan Southland Bedford, 107; 61; (1979); App 266 NW2d 243 Denham v (1978), NW2d 682 aff'd 407 Mich NW2d who, Similarly disadvantaged to the stat- person are those obedience ute, against actually intoxicated and settled the claim the dramshop. any against were thus the forced to abandon claim Havlik Tebo v Ryan, effect, vindicate we give Putney retroactive

If we their clients attorneys and of those judgment the contrary, the construction who, despite judicial statute, the ignored the letter of followed in Buxton prog- and its decision Appeals Court of of portion to settle a pressure resisted the and eny following In separately. dramshop claims multiple penalize course, however, unfairly would we that panels of five of the invitation accepted those who plain language Appeals ignore of the Court portion of and settled the statute the balance assurance that the implied claim with later. In- safely litigated claim could be lawyers are those countless category in that cluded and succumbed litigants who faced my to which brother juggernaut” "settlement refers, part is indeed a and which Levin law in circuits this practice many real-world therefore, obvious, appellate It state. error of Buxton has a dilemma created judicial assuring no there can be extrication from which fairness to all. absolute taking for and either

Arguments abound we make a requires course. The error which judicially choice is induced on balance seems resolution minimizes re- call whatever enough It injustice. lawyers sultant price pay their clients must run the risk and of erroneously anticipating judicial decisions inter- preting language. meaning statutory They not, cases, at penalized should least in these following such decisions. reasons, I only, those and those reasons

For pro- in the for limited judgment concur Court’s 436.22; of MCL spectivity MSA 18.993. disposition

I likewise concur in the Court’s the collateral-source rule issue. 418 Mich 350 Opinion by Dissenting Levin, J. Burns, (concurring partially in and J. Levin, Tebo). Court’s

dissenting agree We this Haskins, 181; 324 Putney decision (1982), applied prospectively, should be NW2d 729 in Burns and to that extent and therefore concur however, in Tebo. We would suggest, not that a overruling disapproving of this Court decision interpretat or "uncontradicted "unquestioned” an Appeals invariably the Court of should by ion”1 given prospective effect. separately write because Robert

We also permitted not be to recover Dorothy Tebo should wage the defendant taverns damages from loss expense they already and medical for which have reimbursed, to the no-fault automo pursuant been act,2 through personal liability payment bile (PIP) not injury protection benefits. We would common-law doctrine concept extend the PIP known as the collateral-source rule3 to include where, here, the PIP benefits benefits even are paid to the owner of an automobile no-fault insurer of that automobile. in no-fault act substitutes one automobile

surer, who be the insurer of no-fault/liability vehicle or of injured person’s some other vehic le,4 another, negli insurer of a liability vehicle, gently operated repara as the source of wage/work tions for limit statutory loss within the expense. and medical Before the enactment no-fault paid amounts insurer of 1Ante, pp 363 and 362. seq.; seq.

2 1972 PA MCL 500.3101 et MSA 24.13101 et 3See fns 24 and 52. may may The other vehicle not in the accident. be involved See 24.13114, 500.3114; concerning priority MCL pants MSA of claims occu- vehicles, 500.3115; 24.13115, concerning of motor MCL MSA priority persons vehicles, occupants of claims of of motor seq.; concerning assigned seq., MCL 500.3171 et 24.13171 MSA et facility plan. claims Tebo v Havlik Dissenting Opinion Levin, negligently operated for such elements vehicle injured compensating damage would, an to avoid greater person loss, than his have in an amount damages payable by a non- subtracted been e.g., parts tortfeasor,5 automobile or motorist Legis ascribe the We would not manufacturer. changing lature, the automobile insurer wage/work ex loss and medical reimburses through bring pense, about, extension an intent to (the collateral-source doctrine common-law of rule), recovery loss medical of work double parallel enlargement expense of the and a non-motorist tortfeasors. of required paid by

Damages reparations to be statutory of state —dam- common and law this the pursuant ages action, PIP in a tort benefits generated independent, no-fault act—are separate, sources, the but rather from or collateral public policy namely source, the of this state. same payable Damages reparations now, as are act, no-fault out of the enactment the before premiums paid pool money funded with discharge and drivers of motor vehicles to owners liability imposed by of this on them law policy It is state. not consistent with purpose law, common act system, or with the of the no-fault provide reparations a more cost-effective permit duplica- to read the no-fault act to recovery benefits, law tive at common collectible required paid by once, of this but law state. judi- rule,

The rationale of the collateral-source cially promulgated act was before the no-fault require inexorably enacted, does not extension benefits; the rule to PIP it should not be so include legislative purpose extended absent evidenсe of a fn 32. See 418 Mich Dissenting Levin, J. em- legislative program part as to provide, double for such in the no-fault bodied tort- non-motorist exposure of in the and increase feasors.

I retroactiv- decided the has generally This Court Sometimes ad hoc. question ity-prospectivity regard with reasoning its has stated Court cases, and, it in other conflicting considerations than its conclusion. little no more stated has in particular has been resolved question intuition. No reasoning and process cases deciding ques principle decision or rule of must, question Perhaps tion has evolved. indicates, unavoidably be decided opinion the lead generalized the Court’s somewhat on the basis of requires.6 "justice” of what perception case, are, colleagues, we with our In the instant denied leave to that after this Court impressed Appeals Court of the decision of the appeal Alexander, 507; 245 in Buxton v App 69 Mich (1976),7 reliance widespread 111 there was NW2d And, as stated and bar on that decision. by bench the decisions of subsequent in the lead opinion, nothing to lessen the author Appeals Court of did of Buxton.8 ity to pressure institutional

There is considerable conferences settle cases. Pretrial and settlement pressure and exert to settle. Settlement mediation climate, norm, it exception. the In that the trial difficult, for a although impossible, would be not maintain, professional to the tide of lawyer 6Ante, p 361.

7 (1977). 399 Mich 827 8Ante, p 363. 377 v Havlik Tebo Opinion by Dissenting Levin, Buxton might be opinion, that because judicial clients to not advise his safely he could overruled of that decision. authority on the settle a lawsuit therefore, that context, agree we In this who institu lawyers accommodated clients decision accepted Buxton —a tional juggernaut of a to one three- possible part it settle that made of all the consent dispute without cornered rule, pe not be should governing parties —as Putney application nalized a retroactive only.9 elfect given prospective it be that should opinion, does the lead suggest, not We would interp "unquestioned” or "uncontradicted that an may invari Appeals the Court of retation”10 is inconsistent relied That rationale ably be on. to concept appeal denial leave with the regarding this Court’s anything intimate does not of the Court of view on the merits of decision 11 en Adoption of that rationale would Appeals. on the Court’s discretion considerably croach cases grant appeal. many leave to In whether to 9 grant argument we We further down for whether should would set 1982, 22, Putney, rehearing rehearing denied November reconsider- 26, 1111, 1983, appears April it 414 because it ation denied Mich applicable might "unjust” to there stated retroac- be make rule tively only that case. 10See fn 1. adoption providing of the 1963 Constitution Before applica- Appeals, of an Court of this Court declared that denial "[t]he * * * appeal equivalent tion for of an affirmation lеave Heating sought Malooly reviewed”. v & Venti- decree York (1935). 240, 247; lating Corp, Lakes See also Great 270 Mich 258 NW Peters, 325, 328-329; Corp Realty v 336 Mich NW2d applications appeal leave This rule was extended denials of Appeals Farm from decisions of in Frishett State the Court (1966), Co, Mutual where it was Automobile Ins Supreme questions appeal said "means Court that a denial leave to expresses present respect legal dealt no view with opinion Appeals”. State of with in Court also Bar of the of See 201, 208; Michigan Trainmen, Mich v Brotherhood of Railroad 383 37, (1970); Judge, 377 Circuit Mich NW2d Walters Arenac 42; 138 NW2d 751 418 Mich Dissenting Levin, J. rationale would not achieve a just balancing rights litigants advocating competing views of what the substantive rule should be.

This Court frequently grant declines to leave to appeal although a majority the justices may be by, troubled or have doubts regarding, the reason ing or conclusion of the Court Appeals. The Court may deny leave appeal it because con cludes that the decision of the Court of Appeals, although erroneous, possibly is not "clearly errone ous”, or that it will not "cause material injust is, ice”.12 There by hypothesis, no conflict "with decisions the Supreme Court or other Court of Appeals Court, decisions”. The which must yearly 2,500 consider some applications for leave ap peal (the and requests for review latter from indi gent persons offense),13 convicted of an on the first presentation question of a perceive that the "subject matter of the appeal involves legal principles of major significance to the jurispru dence of the State”.14

Some may urge that there is a need for a rule one way other, or the and that this Court should speak on clearly question whether a decision 12 "Appeal may Supreme upon be taken only applica- to the Court granted, tion and leave Supreme Court, in the discretion of the any Appeals, final, decision of the interlocutory Court of upon showing of a appeal any meritorious basis for following one of the grounds. "(1) subject appeal matter legal principles involves major significance jurisprudence of the State. "(2) The Appeals decision of the clearly Court of erroneous and injustice. will cause material "(3) The is in Supreme decision conflict with decisions of the Court Appeals other Court of decisions. "(4) any appeal In interlocutory of an Appeals, order of the Court of it must appellant be shown that would suffer substantial harm awaiting judgment taking final appeal.” before GCR 853.1. 1977-4, lxvii; Administrative Order No. Administrative 1983-4, Order No. 417 Mich li. 14See fn 12. 379 Tebo v Havlik Opinion by Dissenting Levin, by be relied on bench Appeals may of of the Court it is for the possible do not think that and bar. We Nevertheless, absolutely. so commit itself Court to go we should not ordinarily recognizing question to decide the is beyond necessary what it to summa- us, appropriate we believe before understanding pertinent principles: rize our (a) Appeals binding are the Court of of decisions the trial by must be followed which precedent conflicting until there is a deci unless and courts or a Appeals15 disapproving Court of sion of Court; this overruling by decision (b) this Court does appeal of leave denial opinion regarding of expression not constitute an App of the Court of or conclusion analysis eals;16

(c) Appeals (except of a decision of Court banc) is not a rule of law en a decision possibly decisis, it of since binds within the doctrine stare nor Appeals17 of the Court of panels neither other 15 courts; Appeals binding the trial A of of on decision the Court decisions, conflicting court follow the view if that it finds most are a trial there persuasive. Hague, See the Matter of 412 Mich In (1982). 532, 552; 315 NW2d 524 16 fn 11. See 17 binding panels Appeals A is not on other decision the Court Clerk, Appeals. City 1 Mich of the App 6, 11; See Hackett v Ferndale Court Hague, supra. (1965); 133 NW2d 221 In the Matter Appeals Accordingly, law is not a rule of a decision of Court of aspect "a on within that of the doctrine of stare decisis that declares that binding judgment is decision on an issue of law embodied in a final aspect though, even under of that court decided it” another doctrine, binding it would be on other courts as owe obedience "such (2d decisions, Moore, its to ed), all future IB Federal Practice cases”. 183, 2d, Courts, pp 0.402[1],p 5. also 20 Am Jur 519-520. § § See binding to its As its effect on "such other courts as owe obedience decisions”, see also fn 15. appellate A an estab- decision court on the merits of issue any equal lishes “law of or lower rank the case” court the same and, proceedings subsequent which case addressed are extent, binding Appeals on a decision of the Court of would be 744, 2d, Error, Appeal panel of 5 §§ another 747, that Court. Am Jur Saginaw Twp, pp 191. CAF Co v See also Investment 418 Mich 350' Dissenting Opinion by Levin, J. Court;18 Supreme

(d) subsequent decision this Court disap- 428, 454; However, Appeals Mich 302 NW2d the Court of Supreme subsequent law of the case does not bind the appeal Court on a case; in the same fn 18. see application appeal The denial of an for leave to does not consti expression opinion regarding analysis tute an the Court of NW2d 227 the Court of or conclusion of Appeals. Keetch, See fn 11. In Jones v (1972), rejected argument this Court that a decision of Appeals thereby could become the law of the case and Supreme losing party Appeals bind the opted Supreme Court if the in the Court of proceed on remand rather than to seek review in the Co, 118, 130; Court. See also Hack v Concrete Wall (1957). 85 NW2d 109 Thus, losing party Appeals whether a in the Court of does not appeal application appeal, or this Court denies an for leave to judgment Appeals preclude of Court of does not review this subsequent stage proceedings. Court at a of the (1) Supreme similarly The United States Court has held: a denial of express any concerning certiorari does nоt lower court’s Co, view the merits of the judgment, Hamilton-Brown Shoe Co v Wolf Brothers & 251, 258; 269; (1916); Maryland 240 US 36 S Ct 60 L Ed 629 v Show, Inc, 912, 917; 252; Baltimore Radio 338 US 70 S Ct 94 L Ed 562 (1950) Frankfurter, (opinion J.); Lovorn, 255, of Hathorn ‍​​‌‌‌‌​​​‌‌​‌​‌​‌‌​‌‌​‌‌​‌‌​​​​‌‌‌​‌​‌‌‌​​‌‌‌​​​‍v 457 US 262, 11; 2421; (2) (1982); fn 102 S Ct 72 L Ed 2d 824 a denial of Appeals certiorari does not render the Court of decision the law of the purposes subsequent Supreme review, case for of Court Mercer v Theriot, 152, 153-154; 1157; (1964); 377 US 84 S Ct 12 L Ed 2d 206 (3) Lovorn, supra; losing party Hathorn v the failure of the in the Appeals petition United States Court of for certiorari does not judgment purposes render that court’s the law of the case for subsequent review, Supreme Court United v States United States Smelting, Refining Co, Mining 186, 198-199; 537; & 339 US 70 S Ct 94 (1950). L Napier Co, Ed 750 Shipping See also Panama R Co v 166 US 280, 284; 572; (1897); Anderson, 17 Messenger S Ct 41 L Ed 1004 v 225 436, 444; 739; (1912); US Hughes 32 S Ct 56 L Ed 1152 Tool Co v Airlines, Inc, 363, 365, 1; Trans 647; World 409 US fn 93 S Ct 34 L Ed (1973); (CA 1940). Higgins, 312, 1, 2d 577 White v 116 F2d 317 majority supreme A explicitly the state courts which have question addressed this decision cannot court of seek permission appellate have also held that a lower court’s case, binding upon supreme become the law of the state, losing party appeal even if the on the first did not denied, supreme supreme review in the court or the court had appeal appellate judgment. Sjos after the first court Sproule, 40, 41; trom v Textile (1965); 33 Ill 2d 210 NE2d 209 vVia Asbestos Co, Inc, 210, 212; (1957); 335 Fantony Mass 139 NE2d 393 v 525, Fantony, 532; (1956); Podwitz, 21 NJ 122 A2d 593 Hornstein v v 443, 450; 674; 254 NY (1930); Pengelly Thomas, 173 NE 84 ALR 1 51, (1949). 60; 151 Ohio St Bingaman, 84 NE2d 265 Contra: Gore v 118, 119-120; Cal (1942); Howe, 2d Berry 124 P2d 17 39 Wash 2d 235, 238; (1951); Motors, 122, Taylor, 235 P2d 170 ROA Inc v 220 Ga Tebo v Havlik Dissenting Opinion Levin, J. Appeals decision overruling a Court proving of a new rule” a "declaration not constitute does precedent”; of established "overruling or the (e) retroac generally of this Court a decision precedent established unless it overrules tive rule, which case a new otherwise declares new rule.19 retroactivity of the limit Court II between in a collision injured Dorothy Tebo was automobile driving and an she was an automobile no-fault S. Havlik. The Edward being driven Dorothy vehicle Tebo insurer automobile Inter-Insurance Automobile driving,20 Detroit was $35,000 PIP in excess benefits Exchange, paid and medical wages for lost Tebo Dorothy Robert ex pense.21 295, Jett, (1964); 126; Casualty 175 Tenn & Ins Co v 137 SE2d 459 Life Baker, 298; (Tex 207 SW2d See also Baker v 133 SW2d 1947), holding Supreme App, Court’s dismissal Civ application "approval” of lower court’s action. for review constitutes Johnson, 537; generally 457 US 102 S Ct United States v See (1982); Angeles Dep’t Water & Power v 73 L Ed 2d 202 Los (1978);

Manhart, 702; 1370; Hankerson 98 S Ct 55 L Ed 2d 657 435 US (1977); Carolina, 233; 2339; S Ct 53 L Ed 2d 306 v North 432 US 97 252, (1982); 265-266; People People Phillips, Stephens, 330 NW2d 675 v 416 Mich (1982). 63, 67-75; 366 v 416 Mich 330 NW2d 20 Dorothy was the automobile Tebo The record indicates driving by of them. was owned her or her husband or both 21 the no-fault PIP benefits for work loss within Under statutory expense payable by limit a no-fault insurer and medical are 500.3107; regard severity injury. MCL MSA without meeting statutory injury severity 24.13107. Where the threshold serious is of a function, (death, permanent impairment body serious injured disfigurement), permits person in an the no-fault act for noneconomic loss automobile accident against to maintain action in the collision. MCL the owner or driver of á vehicle involved 500.3135; MSA 24.13135. See fn 26. $1,000 per 30-day period, Work loss and survivors’ loss is limited to $2,252 per 30-day by living adjustment now but reason of cost of 500.3107, 24.13107, period. 500.3108; MCL MSA 24.13108. expense coverage The with Blue Cross-Blue Tebos had medical 418 Mich 350 382 by Dissenting Opinion Levin, J. action Hаv

The Tebos commenced this taverns, Long lik the owners of two They Liquor Bar and the Bar. Oakley Branch at the time of alleged that Havlik was intoxicated subject were the accident and that the taverns The Tebos set under act.22 $50,000. Havlik for tled with Denter, Li doing Oakley Fred business as the Bar, in limine to exclude quor filed a motion wages expense medical evidence of lost through the Tebos had been reimbursed which insurer of by of PIP benefits the no-fault payment granted. The motion was The the Tebo automobile. reversed.23 It invoked the "collat Appeals Court rule”, money re eral-source which declares insurance, source, e.g, from a automobile ceived "operate does not generally other than a tortfeasor damages wrongd from the to lessen recoverable oer”,24 Dorothy and held that Tebo could recover the tav expense loss and medical wage her had been reimbursed for those although erns she of her damage the no-fault insurer elements judgment would reverse the automobile.25 We chased automobile was payable MSA James, Restatement coverage medical Shield of 24Id., ^[22] 25The Court said: Tebo 1972 PA 24.13109(1). Torts, they to the Tebos p expense with the no-fault v Michigan. 415. Havlik, Torts, 2d, did not elect to coordinate § 25.22, See also cases discussed required by without MCL When no-fault pp 1343-1344; § 436.22; Mich 920A, Blue Cross-Blue Shield. regard coverage. App 413; the no-fault act to reimburse them MSA 18.993. Comments b and to whatever benefits were Dobbs, Remedies, automobile insurance was 311 NW2d 372 no-fault insurer of the Tebo the Blue Cross-Blue Shield in fn 52 and 2 c, See MCL pp 514-515. § 8.10, 500.3109a; Harper p paid 581; pur- & against damages applied recover- rule has been to bar a setoff "This injured plaintiff payments by from a tortfeasor of received able coverage policy providing for the losses caused under an insurance Shearer, (1868); Mich Motts the defendant. Perrott v (1936).” Co, 437, 443-446; Michigan Havlik, Tebo v 264 NW Cab supra, p fn 23 415. 52. and Motts are discussed in fn Perrott Tebo Havlik v Dissenting Levin, Appeals the circuit and reinstate the Court granting to the exclude motion court’s decision expense wages for and medical lost evidence through fully reimbursed Tebos were which the payment PIP benefits.

Ill provides liability act The no-fault automobile against an cannot be maintained that an action for noneco- of motor vehicle owner or driver a for rule is that it would that rationale The Court said "unjust to him to of the tortfeasor allow enrichment” constitute an reduce recovery in right exercising liability plaintiffs, "a contract his because paid against they which had consideration their insurer” for already premiums, their loss. had been reimbursed form of Havlik, supra, p have countered that 415. Commentators Tebo payment purchased prompt generally and to to assure insurance is cover cover the premium paid many perils only to that a fraction of the is so occurs, any unjust peril enrichment could which and that by requiring tortfeasor reimburse contribute be avoided the loss of the insurer. Professor Dobbs has written: "Perhaps support argument weakest made in collateral most in the courts— rule the one that has been mentioned source get any wrongdoing reduction the in the defendant should not the benefit .source, plaintiff’s damages by since this be a a collateral would given plaintiff rather 'windfall’ since a should be windfall arguments. wrongdoer. many answering It is than to the There are prevents possible regard anything that diminishes or tortfeasor’s windfall, potential liability as a but since there is no standard amount tort, costly payable involving for a and since some torts little fault are harm, involving while seem Furthermore, much fault cause little or it does others no very liability meaningful as a windfall. refer to diminished suggested rule no one has the collateral source decreases, adjusted be and all, it is should applied as fault increases in fact regard without to the tortfeasor’s fault at and even widely liability cases where agreed, moral fault is strict and there is fault. It now no addition, many no tort cases on 'fault’ involve based all and in a number of cases at substantial liability, scantily negligence. is in fact whatever To strict clad in the rhetoric of so, may argument 'wrongdoer’ this for the of the extent be Finally, collateral rule source fails. whatever said wrongdoer, individual that in cases a defendant as truth is most insurer, judgment collectible individual not the the is insured and it is defendant, deprive pays. only this who Not does insurance, 'wrongdoer’ any support it also thesis of where there is higher responsible means rule is insur- that the collateral source Dobbs, 8.10, premium supra, pp ance costs.” fn 24 586-587. § 384 418 350 Mich Dissenting Opinion by Levin, J.

nomic loss injuries statutory unless the meet "death, threshold impairment serious of body function disfigurement”.26 or serious An action can be maintained against an owner or driver for in economic loss excess of the PIP pre benefits (excess loss) by scribed the no-fault act economic regard without threshold.27 The statutory no-fault act does not limit the tort of non- liability (e.g., motorist tortfeasors an parts automobile or tavern) manufacturer or may who have caused or contributed to an automobile accident.28

Thus, if Mrs. physical Tebo’s was of a injury threshold, severity that met the statutory Tebos could maintain this properly against action Havlik, vehicle, the driver of the other for noneco and, regard nomic loss without to the statutory threshold, for excess economic loss. Also without regard threshold, to the statutory they main may tain this action for all29their economic and noneco damages against nomic the taverns that allegedly liquor sold Havlik while he was visibly intoxicated. Damages are in personal injury awarded a ac- 24.13135, 500.3135; abolishing liability See MCL MSA tort for loss, limits, statutory arising ownership, economic within the from the maintenance, respect security or use of a motor vehicle with to which (no-fault insurance) or, authorized, insurance where self is in effect retaining liability injured but tort for loss where the noneconomic person permanent death, function, impairment body has suffered sеrious disfigurement. serious See fn 21. 27See fn 26. Tuttle, Citizens Ins Co of America v 309 NW2d 174 injured person may have failed to seek PIP benefits within 500.3145; the time limited the no-fault act. MCL MSA 24.13145. In case, tardy may such a claimant seek to obtain a full subject economic loss from a tortfeasor otherwise for the loss. may dispute respecting There be a factual the amount of work loss expense or medical accident. The or whether it was caused an automobile injured person may dispute settle the with the no-fault dispute insurer and seek to obtain the amount in an action a tortfeasor. Tebo v Havlik Dissenting Levin, his person injury a compensate tion contributes one tortfeasor than Where more loss.30 loss, he recover all may person’s injury to a who contributed any tortfeasor damages from his not recover them he loss31but to his required more than the amount aggregating sum in full his loss.32 Accord compensate him from one tortfeasor amount recovered ingly, upon judgment of a settlement the result Inc, this person if the contract contract same tort person harm against whether or Torts, Law, 18, p verdict the court should calculate the amount whether the are injured payment statement 441. verdict would be reduced. $150,000 design any recovery and 513. informed of the settlement or of recovered unless the 31 See Vroman, 32 "A See Manuel v The rule is so "A payments The Restatement of Prosser, contemplates "The maintaining § payment payment Allison for which others are liable § wrong of an as whom he 25.1, the person should had been fulfilled.” or the settlement by liability.” nearly Torts, primary 215 parties tortfeasors, 429; automobile fuel tank was Torts jury p 1299. had not v made from a made by Mich Chandler, place and whether Weitzman, 2d, payment 2 plaintiff. well established that as has any person or the Restatement (4th a nuisance. The aim by 316 NW2d stipulated 4 possible § by 449, 465; paid by the person injured gas Restatement occurred, another who a tortfeasor or ed), Torts at least to the extent of the plaintiff judge 11 Mich station for The Court held that the damages subsection is made before or after 386 Mich measuring damages McCormick, Damages, § in the condition he making is credited provides: 47, or not made in General Motors otherwise, should Torts, and that the pp 296-297; Dooley, as NW 542, Torts, 2d, the amount for a tort should (1982), is, the tortfeasors diminishes 157; (3), it is so negligent only question by the 2d, required or believes compensation subtract in Brewer v 550 position p a 191 § 333. payment (1863); person 433A, § NW2d 1 damages agreed 920A, parties agreed for to be subtracted design would he his by Comment he 2 § compensation, acting jury judgment.” would be alleged negligent Harper 137, Payless $150,000 place following 474 is liable to the is, tort subsection which the payment had at presented have of the station should subject a claim for Modern p 560. (1971); for him a liability, been breach of the claim i, & Stations, occupied in if the time of already pp injured James, that a not be made, 4 Re- Wood (1), paid, from Tort jury jury 439- was p a 418 Mich Dissenting Opinion Levin, J. required, by law, to a rule of common be sub judgment any. verdict оr rendered tracted against- them another tortfeasor.33 As between rights selves, have of contribu the tortfeasors indemnification.34 tion or subjecting The common-law rules a tortfeasor damages injured for all the suffered limiting injured person single person, recovery to a but many contributed however tortfeasors question loss, establish that whether one can seek to recover for his loss from two or more question and the whether a full sources can be obtained from each several sources are separate questions. Although may, the Tebos con with the no-fault maintain an action sistent against under the the taverns act for damages, noneconomic, their it all35 economic wage not follow that a verdict for does loss and damages against expense medical tavern should not be reduced whatever is recovered for work expense through payment loss and medical PIP clearly benefits, as such a verdict would be expense reduced if the work loss medical had damages been recovered as from another tortfeas question or.36 The whether the amount of the PIP expense benefits for work loss and medical re any ceived the Tebos should be from subtracted against verdict the taverns for those elements of damage already for which the Tebos have been through payment reimbursed of PIP benefits is separate question a from whether the no-fault act liability tortfeasors, limits the tort of non-motorist 33See fn 32. 600.2925a; 27A.2925(1); Spartan Asphalt Moyses See MCL MSA Co,

Paving 314; Fox, (1970); 174 NW2d 797 Caldwell v Mich 231 NW2d 46 35See fn 29.

36See fn 32. Havlik Tebo v Dissenting Levin, J. ad- this Court decided already question tortfeasors. to non-motorist versely amount requiring rule common-law The be sub tortfeasor from one recovery earlier of an another against verdict subsequent from tracted continues, the enactment after tortfeasor from the owner recoveries apply no-fault noneconomic for an automobile or driver Thus, re if the defendants loss. excess economic not taverns but action were in the instant maining in other automobiles drivers of or were owners $50,000 collision, settlement in the volved or excess Havlik for noneconomic from obtained ver any be subtracted loss would economic to apply rule also continues them. The dict as an is a non-motorist such the tortfeasor where or the owner of manufacturer parts or automobile VI) (see $50,000 Part a tavern —the a cow37 from any be subtracted settlement would or noneco defendant for economic from such a decided, Thus, this case is however nomic loss. an owner or driver recovered from amounts loss, or from a or excess economic noneconomic or noneco tortfeasor for economic non-motorist loss, from a continue to be subtracted nomic will an damage against verdict for like elements of non-motorist tortfeasor. other owner or driver injured person, here is question whether eco- who recover for noneconomic or excess may owners, once, driv- many nomic loss but however ers, cows, manufacturers, have may or taverns loss, second time contributed to his recover a Tuttle, supra, which held that § Citizens Ins Co of America v liability of non-motorist of the no-fault act did not abolish the tort tortfeasors, an errant a collision between an automobile and involved question presented adversely to the owner cow. The decided the cow was whether a non-motorist was relieved negligence by the no-fault act. Dissenting Opinion Levin, J. tortfeasor for economic loss

from a non-motorist paid pursuant PIP recompensed by benefits fully the no-fault act. IV arising action out of an personal injury This is a 1972, Legislature accident. In en automobile no-fault automobile act38 and liability acted the VI) (see Part amended separate legislation legislative act.39 Both enactments. were deficiencies in the tort responses perceived sys tem, law. statutory common law and proceeds principal

Insurance have been the injury source of for suffered in an auto- accident, of a severity mobile whether above threshold, below the both statutory before of the no-fault act. after the enactment Before person enactment of the no-fault injured an automobile accident who recovered from a tort- wage expense feasor for loss or medical ordinarily received from the insurer of payment If tortfeasor. more than one tortfeasor was liable loss, whatever was recovered from the (or himself) insurer of one tortfeasor the tortfeasor was, under requiring common-law rule tortfeasor, setoff of a recovery from another sub- tracted from any judgment verdict tortfeasor who also contributed to loss.

The no-fault act changes the automobile insurer from which reparations be recovered wage/work statutory loss within the limit and insurer, expense. medical An automobile often but not necessarily the no-fault insurer of automo-

38See fn 2. 436.22; 1972 PA MCL MSA 18.993. Tebo v Havlik Dissenting Opinion Levin, rather than the injured person40 owned bile driver insurer of the owner or liability automobile fault, at vehicle found to have been of another or other economic loss within wages for lost pays expense.41 medical statutory limits and rule, Under another common-law recoveries from from a "collateral source” are subtracted in awarding damages or tort.42 judgment verdict the tortfeasor or the Damages, paid by whether insurer, are not deemed to have been tortfeasor’s received from a collateral source and are so subt of insurance proceeds payable racted.43 The insurance, holder or of a as beneficiary policy distinguished proceeds paid from insurance dis- always One does not recover PIP benefits from his own no-fault person insurer. A reside who does not own an automobile and does not with a who owns an automobile insured for PIP relative benefits recovers from the insurer оf the owner or driver of a vehicle occupied assigned in the accident or from the involved claims or, applicable, operated facility where the insurer of a vehicle in the 500.3114, transporting passengers. 500.3115; business of MCL MSA 24.13114, injured employee residing 24.13115. An and relatives with him occupant employee’s while an vehicle receive PIP employee benefits "to which the is entitled from the insurer of the 500.3114; furnished vehicle”. MCL MSA 24.13114. person may A who owns an automobile and is uninsured recover benefits, automobile, injuries PIP ifas he did not own an if he suffers in an automobile accident in which his vehicle is not involved. Heard Co, v State Farm Mutual Automobile Ins 324 NW2d 1 insurance, may paid. yet There be no PIP benefits Large sured. MCL carriers, corporations, employers may common be self-in- 500.3101; MSA 24.13101. 41See fn 21.

42See fns 24 and 52. 43 "Payments joint made one who is not himself liable as a go person against injured tortfeasor will to diminish the claim of the responsible they compensa- others for the same harm if are made claim, distinguished payments tion of that as from collateral insurance, benefits, nursing sources such as sick donated medical or services, voluntary wages by employer, continuance of and the (3), Torts, 2d, 885, pp like.” 4 Restatement Comment on subsection § 335-336. Torts, 2d, 920A, 513, p See also 4 Restatement b and Comments § c, p 514. fn See 32. 418 Mich Dissenting Opinion by Levin, J. liability, generally

charge tortfeasor, are of a regarded and, source as received from a collateral damage thus, not subtracted from a award are injured who contributed to the a tortfeasor person may, person’s injured therefore, An loss. proceeds paid to him as a retain the of insurance beneficiary policyholder or and recover a second time from a tortfeasor.44 wage/work contend that because Tebos loss expense statutory within the limit and medical are longer payable by no an owner or driver of a injured or his insurer to the motor vehicle person damages person responsible and the now payment is often a those losses no-fault person, injured insurer of a vehicle owned paid expense amounts for work loss and medical by a no-fault insurer as PIP benefits are received may from a collateral source and not be subtracted damage from a for those elements of verdict non-motorist, against a tortfeasor. A A number of rationales have been in advanced justification of the collateral-source rule. The ratio questioned by commentators, nales have been who generally are critical of the collateral-source rule and of its heedless expansion.45

44See fn 52. 45The collateral-source doctrine and the distinction between fire (see text) accompanying fns 55 and 56 and and accident in insurance regard generated this have considerable comment. Professors critical Harper and James have written: urged "Because the rule in accident insurance cases is so often as a legislation, anаlysis. model for social insurance it invites careful It is justified ground money product often on the that the insurance is the foresight. precisely of the claimant’s own thrift and But same thing property respect is true of insurance in to each of the notions may foresight argument. that them. underlie thrift and Let us examine (1) Accident insurance is sometimes likened to an investment heavy and so to life insurance with its investment features. But the as the premium buys only 'straight protection’ just accident insurance Tebo v Havlik Dissenting Opinion Levin, premium against fire or collision insurance does. If the event insured happen during policy premium does not the term of the has still fully spent protection. Nothing been for the comes back. There is no (2) saving may and in strongly recovery or investment feature at all. The rule double thought certainty But the be a desirable inducement insure. speed payments, they will be made of insurance fact law, operate many tort at common situations where there no may property in insurance. Moreover it be noted that here as any is irrelevant in scheme of insurance where this consideration (3) may thought participation compulsory. It be that a man should wishes; bargain pay free to for double if he and that be so in the case of accident insurance and has not in the he has done may property insurance. It is true that this reflect the case parties policies today of the and that modern are so intentions written. simple concept But it is not as as that. The of strict indem- nity, property insurance is not rooted in the intentions of the wagering parties sion in the doctrine of insurable within which policy prohibit expres- found but has interest, sphere and this limits the parties (Emphasis supplied.) are free to contract. implications foregoing problem "The discussion for the fairly legisla- social insurance seem tion is concerned with furnished a weak clear. To the extent that welfare compensation indemnity, accident insurance analogy, and there seems to be no basis for double recovery contribution on his legislation providing to the claimant whether the is one for a part Presumably or not. such schemes are not provide Certainly any intended to such intent in the submitted that the courts should be The seek' to redistribute the wealth compensation county, windfalls. there is little if trace of philosophy legislation, of the American and it is exceedingly reluctant to find it. only theory justify that would such a result is one which would beyond point indemnity for, probably calls and we do not want to do that in our though such a notion lie the current British behind well get solution that lets a claimant insurance benefits in full and social only possible recovery. him makes Moreover even if the wealth is credit half of tort them redistributed, this would be a haphazard James, Torts, capricious way Harper do it.” 2 & tó 25.22, pp 1351-1354. § Professor Dobbs has written: many possible "In instances the collateral source rule it is argue plaintiff paid receiving that the for the benefit he is now ought argu- payment. that the defendant not benefit from This that ment can be made both in cases of insurance benefits and in cases of benefits, employment plaintiff since in the case of insurance the has benefits he has paid directly fringe employment and in the case of paid indirectly by taking salary. plaintiff paid a lower But if for these benefits, not, surely, hope recovery merely it was in of a double but gain expectations security, recovery minimal and if a double is denied him his And, although plaintiff paid will not be frustrated. the premiums insurance, necessarily pay for his he did not an amount equal benefits, alone, pay was and he did not for the fund Dissenting Opinion Levin, J. opinion case states: in the instant The lead insurance, the the rationale for "In the context given up plaintiff has is that [collateral-source]rule the contractual benefits. entitled to and is consideration The not contributed age. ure to the benefit contributed foresight plaintiff’s should financial sacrifice tortfeasor, who has the benefit of inure to nothing plaintiff’s insurance cover compensation Similarly, gratuitous in should not has The tortfeasor of the tortfeasor. activity nothing, except caused which plaintiffs injuries.”46 arguments "fore- the Tebos exercised The gave "up sight”, sacrifice”, and made a "financial the contractual entitled to and are consideration many persons ignore benefits”, who recover pre- paid no-fault insurance have not PIP benefits they an automobile and do not own miums because paid of those who have sacrifice financial governmentally premiums no-fault insurance on mandated, like a tax or assessment an exaction premiums owning Payment vehicle. a motor exercise of is not made a no-fault insurer obligation, foresight, compliance with the but security for the no-fault to furnish under the fact, by many In both the created others in similar situations. benefit) (or fringe plaintiff and others >whocontribute to the insurance get cheaply security they fund can be fund relieved of the compensation. seek more if the can obligation pay in double when that will result really plaintiff 'paid Thus what has for’ abolished, legal if source rule were function of the the a double allowing rule: the collateral plaintiff paid opportunity security will and not for the have law, by paid only recovery. He has for more because the requires pay recovery, in effect him to for more. double just deny easily result that law could him double with the 8.10, Dobbs, Remedies, premiums go pp 584-585. his could down.” § (Emphasis supplied.) Note, Damages: The Collateral The Collateral See also Unreason in the Law (1964); Rule, Flemming, L Source Source Harv Rev 56-57, Damages, Rule and 71 Cal L Rev Contract 46Ante, p 366. v Havlik Tebo by Dissenting Levin, J. question payment A different PIP benefits. of purchased presented PIP were if benefits be would expense major disability say, medical are, personal the the of exercise benefits —in insurance by recipient, the unconstrained of the initiative recipient provide with the of statute —to mandate supplement by provided law or to not benefits provided law. that are those who of an automobile sure, an owner be To insurer the no-fault from no-fault benefits receives "given up to be have said of that automobile may be said consideration”, no-fault benefits and benefits”, characteriza but such to tions, governmentally "contractual again, ignore is the "consideration” and that the

mandated exaction specified scope are and amount of no-fault benefits by statute.47 arguments tortfeasor should not

The the payment PIP from the benefits because benefit nothing, except activity he the which "contributed plaintiff’s injury” and "contributed caused the ig plaintiff’s coverage” nothing to the insurance the benefit of a nore that a tortfeasor who obtains against him of the subtraction from a verdict recovery amount of a from another tortfeasor also nothing to have contributed could be said cost of other tortfeasor or activity his than tortfeasor’s insurance other activity which, combination with gave plaintiff’s injury.48 tortfeasor, other rise prescribed pursuant language policy The to law no-fault negotiable agreement subject hence is not the contract. assumption fallacy "One court has observed behind damages who has acted 'there is some norm of which a defendant * * ought pay his act No without reasonable care such norm is available. is careless wrongdoer flagrant ordinarily Even most conduct; damages fact from his not liable for unless harm in results degree occur, depends, not on the when harm does his 418 Mich Dissenting Opinion Levin, J. PIP benefits a no-fault in- payment "gratuitous compensation”; is not the cost of surer providing paid by such benefits is a multitude compli- of motor in owners drivers vehicles obligation, their under the ance with no-fault payment to furnish the of such bene- security fits.

B Court of Appeals although The said that the no- requires fault act owners motor vehicles no-fault insurance49 and the thus carry Tebos did insurance, for no-fault voluntarily contract "[nevertheless, premiums paid for were the cover age and the insurance benefits were still obtained wholly independent of and collateral from a source to the defendants. We will not sidestep the collat ground eral rule the source on that the insurance (Emphasis was mandatory.”50 supplied.) The decision the Court Appeals allowing a wage double expense loss and medical (i) generalization rests on the insurance pro- (ii) source, are ceeds a collateral the change brought about no-fault act in the insurer fault, injury, physical on idiosyncracies but the extent of earning capacity of injured person, degree on own latter’s culpability. Furthermore, there is no indication refusals mitigate degrees fault; varying have been sensitive to moral wrongdoer, merely tortfeasor, negligent intentional subject only and he who is * * * to absolute are treated in the same fashion. Not relationship damages is the between fault and the amount of too useful, attempts responsi- attenuated to be but to hold the defendant beg question. ble very for the 'harm’ he has caused The issue in controversy is what compensated; constitutes the 'harm’ be it does salary expenses include actually not in fact discontinued and medical never incurred, proceeds expenses or is it exclusive of insurance injury Note, from which the relieves the victim?” in the Unreason Damages: Rule, Law of The Collateral Source 77 Harv L Rev 748- 500.3101; MCL MSA 24.13101. Havlik, supra, p Tebo fn 23 416. v Havlik Tebo Dissenting Levin, loss wage/work responsible pay who expense limit and medical statutory within of an owner liability insurer from the automobile in- no-fault to an automobile at fault or driver (iii) in the instant surer, and the circumstance to reimburse required no-fault insurer case the of her own automo- is the insurer Dorothy Tebo bile. in developed re doctrine

The collateral-source insurance, and was extended to fire and life51 spect and other benefits and forms of insurance to other programs, insurance whether Those payments.52 proceeds frequently of life an investment. Life insurance is quantified readily paid for a loss which cannot are insurance dollars. damage nevertheless be for loss of life must While awards bounds, proceeds of life kept the rule that within reasonable damage rarely award not to be subtracted from are insurance results redundancy. has been observed: It theory, might a court exclude with the consideration "Consistent wrong ground proceeds the on that life insurance the evidence of merely payment, of but nevertheless admit evidence accelerated suggested proceeds. The distinction turns on an accident insurance by why does one inquiry not made the courts: which has been speculating the purchase If is on insurance? the insured accident recovery possibility an in the event of accident attributable of double another, warranted; may wrong the be to the mitigation enlightened jurisdiction might regard public of exclusion of evidence although bargained give he an would him less than for— contrary bargain as to such purchasing likely policy. the is But it seems more that insured litiga- payments necessity security prompt of and sure without the — regard of the and financiar resources tion and without prospective tion hospitaliza- purchase of defendants. The motives behind susceptible If this to similar characterization. insurance seem correct, why compelling there exists no reason the insured view Note, get bargained he for.” Unreason in the should more than See 741, Rule, Damages: L 750- of Source 77 Harv Rev Law The Collateral (1964). 751 52 (1868), Shearer, 48, 55 the oldest Perrott v 17 Mich be Michigan plaintiff collected case on the collateral-source doctrine. The plaintiff policy under a should not of fire insurance. Defendant claimed that plaintiff goods recover from him for the loss the because of by proceeds receipt of This had been made whole the insurance. anomalous, plaintiff although Court ruled that was entitled not He had no it seemed somewhat wrongdoer, was was a recover twice. Defendant proceeds. payment responsibility of of insurance relieved the any equities plaintiff with the and no concern

396 418 350 Mich Dissenting Opinion by Levin, might policy plaintiff not the have had. The owner of the did contract buy right insurance for benefit of the He had a of the tortfeasor. away by taking paid given out action and had "equivalent” it insurance. He not premium The in the and was entitled benefit of it. nothing paid for it and to no return. In tortfeasor to was entitled answer plaintiff argument property, twice for that recovered his Court said: him, wrong recovers but once for the done and he receives the "[H]e money way upon insurance a contract to which the defendant in no wrongful privy, equities.” respect give to which and in his own act-can him no Id., p 56. holding superseded subsequently in Perrott was a statute (see 55), providing followed in rights subrogation a fire fn insurer but was Cronkite, (1878), Baylis Hagan v 416 39 Mich v Co, (1891), Chicago, v 615; D 86 & C G T J R Mich 49 NW 509 and Peter Co, Chicago 324; & 121 NW 295 W M R Mich 80 In Lebel v Swincicki, 427, 433-434; (1958), 354 93 281 Mich NW2d the Court said provided the insurance had not been with the intention Co, benefitting Paige See Earl a tortfeasor. also Cawood v & 239 Mich 485; 378 (1927);Squires County Comm’rs, 214 NW 402 v Kalamazoo Road (1967) insurance). (uninsured 613; 65 Mich 147 motorist NW2d Co, 437; (1936), Michigan In Motts v Cab 274 Mich NW wages, court held that a victim is tort entitled recover for lost although wages paid. charged jury been court had The trial had recovery wages salary that payments there could no be lost unless the period employer disability made over the were gratuities gifts. noting split authority mere While there is a question, "prevailing on the Court followed it said what was the Chatlos, quoted doctrine” and reversed. The Court from Roth v (1922): Conn ‍​​‌‌‌‌​​​‌‌​‌​‌​‌‌​‌‌​‌‌​‌‌​​​​‌‌‌​‌​‌‌‌​​‌‌‌​​​‍116 A 332 impelling affection, payment philan- the motive their "[WJhether thropy, contract, injured beneficiary bounty is the of their * * * injury. payment him who caused Such service or such is is injured person. gift for the benefit of the It is a to him. But it since injury, one of the elements he is entitled recover the reasonable value of the service.” Mich 444-445. Royer Eskovitz, 279, 283; Motts was followed in Mich 100 NW2d (1960), 306 payment applicable employer’s where the rule was held to an employee’s 41; expenses. Canning of his medical In v Hanna ford, (1964), 127 NW2d 851 the Court extended the involving partnership profits. rationale of Motts to a case Although appears directly point, no decision this Court to be on suggesting several receipt security contain dicta of social benefits (see 54) See, e.g., fn bar does not tortfeasor. McCullough Trucking Co, 108, 115-116; v Ward 368 Mich 117 NW2d (1962) ("In 167 question the few cases in the which has far thus engaged courts, uniformly the of attention the it been has held that recovery wrongful the by amount of for death be act should not receipt benefits,” diminished security the of social quoting 84 Anno: 764, 765); ("It Swincicki, p sug- ALR2d supra, may Lebel v 434 gested security payments also that such [social were made survivors’] 397 Tebo v Havlik Dissenting Levin, insured, the dece the paid by were premiums the employer,53 or his dent, family, of his member a form of mandated substitute stаtutorily not a were all, at which, compensated if for loss reparations54 respect they are recipients. solely analogous discussed.”); In this for the benefit policies, payments above under the insurance to made the 47; Vries, 119 369 NW2d v De Mich Iron Works Leitelt (all (1963) compensation security benefits workers’ social and 101 decedent, employer, not or and were paid his both for the were tortfeasor). Co, Wright Delray v C R See also the intended 361 Mich benefit 619; 106 247 NW2d (1949), 179, Probelske, 188; the 36 NW2d v In Kurta damages were rejected that awarded claim defendant’s Court receipt unemployment plaintiffs benefits of and said excessive did not serve to damages. mitigate his precluded enacted, compensation originally act the workers’ As compensation accepting injured bene- both workers’ a worker from an maintaining against third-party tortfeasor. The an action fits and put of If he elected receive to an election remedies. was worker workers’compensation, subrogated employer to the worker’s was barring dupli- concept third-party of That tortfeasor. claim cative a recovery the amendment of has continued since been of remedies and compensation eliminate the election act to workers’ yet compensation injured sue the permit a and worker to seek workers’ tortfeasor; portion goes recovery third-party the first insurer, employer employer, for workers’ to reimburse the his paid paid, any compensation worker is treated excess that have been and benefits extent, payment, to of future advance (1st Sess) 10, III, part compensation Ex PA workers’ benefits. See 17.237(827). 155; 418.827; PA 1969 PA MCL MSA § Vroman, supra, paid employer’s under fn 32 insurer In Wood impression com- it was liable under the workers’ the mistaken permissible, recovery pensation was law. The Court said that double obligation pay. 4 Restate- no But see since the insurer in fact had Torts, 2d, 885, 920A. ment §§ security analogous to Social not PIP benefits. Social benefits are upon provide security occurrence benefits income maintenance statutory eligibil- give any rise to of countless different events which only arising ity. provided of the owner- are out PIP benefits loss maintenance, ship, operation, as motor or use of a motor vehicle security 500.3105; MSA 24.13105. While both social vehicle. MCL payable provide become PIP income maintenance benefits benefits, accident, security disabling social because of automobile benefits, provided by this state as the law of with PIP are contrast replacement reparations recovery a tort action a substitute or or as funding of from a or his insurer. source tortfeasor security time when is a tax enacted for first social social benefits funding program PIP security was instituted. The source benefits, money pool replaces and a tort it which —a by premiums operators paid by of automobiles— funded owners 418 Mich 350 Dissenting Levin, J. compensated was theretofore mainly through liа Parenthetically, insurance. a bility owner property longer no retain the proceeds of fire insur duplicative and seek ance a recovery against a assertedly responsible loss; tortfeasor for the fire the standard fire insurance policy subrogates of any right insurer action of the insured.55 This apply rule seems to generally insura property nce.56

When collateral-source doctrine developed, life, health, accident, disability, insur- medical ance all were seen the courts ancillary or alternative to the sources then of primary source in an recovery against action a tortfeasor from the collection tortfeasor his in- liability Since surer. the enactment of the no-fault however, the primary source of recovery wage/ of work loss within the limit statutory and medical expense resulting an automobile accident PIP benefits. Because owner or only driver to tort subject excess economic loss and because most automobile accidents do not tortfeasors, involve person non-motorist an injured will not have a tort source of ordinarily recovery wage/work loss and expense paid medical now as PIP benefits under the no-fault act. policies,

Insurance including expense medical insurance,57 purchased voluntarily and not under the constraint governmental mandate,58 remain essentially unchanged remains after the enactment of the no-fault act. 500.2832; See MCL MSA 24.12832. 56 Harper Torts, James, 25.22, p & § see fn 45. paragraph See third fn 21. 58The rationale of LeBlanc v State Mutual Ins Farm Automobile Co, (1981), Legislature 301 NW2d 775 was that governmental intended health benefits there involved (MCL 500.3109a; 24.13109[1]) included under § 3109a MSA and not (MCL they governmental were not under 3Í09 § benefits 24.13109). 500.3109; MSA Havlik Tebo v Levin, Dissenting Opinion PIP primary recovery sources collateral An action recovery. source benefits (an parts automobile tortfeasor non-motorist tavern) of a cow or or the owner manufacturer speak To source. the collateral now become has independent, as an source primary ignore is to recovery source collateral separate, insurer by a no-fault payable PIP benefits for source ordinarily only are the limit and statutory loss within wage/work acci- arising out an automobile expense medical dent.

C proceeds-collateral of the "insurance The effect Legislature to to the ascribe source” rationale PIP benefit intent to create two classes recipients:

1) PIP from a no-fault those benefits who recover no-fault insur- recipiént paid whom the insurer to who, PIP the rationale premiums, on ance thus of insurance proceeds benefits are source, can from collateral deemed received a a a time from recover for the same loss second tortfeasor, and non-motorist 2) and who those do not own an automobile who from, PIP benefits a self-insured say, recover vehicle, who, PIP because the ownеr a motor thus of insurance and proceeds benefits are not the source, can- not received a collateral deemed a not for loss time from recover the same a second non-motorist tortfeasor. Legislature ascribing

Absent a basis an intent to of PIP benefits create two classes to recipients, the no-fault act should be construed a have recipients allow all of PIP benefits who tortfeasor cause of action a non-motorist 418 Mich 350 Dissenting Levin, J. any time collect second disallow PIP benefit recipient duplicative recovery. The "insurance proceeds-collateral jus- source” rationale does not tify today’s decision.

V argument benefits, The that PIP at least where paid by the no-fault insurer a vehicle owned injured person, the source rests about are received from a collateral large part change brought on the the no-fault act in the insurer automobile responsible pay reparations wage loss and expense. question presented pri- medical thus marily depends legislative only on intent and sec- ondarily scope on the of the common-law collat- doctrine. eral-source question

The true whether PIP benefits proceeds are or are not the of insurance within the meaning of the collateral-source rule but whether Legislature provide bring intended for or recovery by recipients about double PIP benefit against who have a cause action a non-motorist tortfeasor. Legislature provide specifically

The did not paid whether PIP benefits for work loss or medical expense should be deemed received from a collat eral source and on that basis not subtracted from recovery reimbursing wage a tort or medical for the same loss

expense, person with the result that a injured in an automobile accident can recover both damages PIP benefits from a no-fault insurer and compensate from a non-motorist tortfeasor for accordingly, must, same loss.59 We determine 59 Legislature question The has dealt with the whether certain duplicative against recoveries should be deducted from or offset PIP expense benefits. Medical and other recoveries from certain sources are subtracted where the owner vehicle has elected coordi- 401 Havlik Tebo v Dissenting Opinion Levin, J. 500.3109(3); premium. exchange MCL a reduced nate benefits in 24.13109(1). provided 24.13109(3), 500.3109a; Benefits MSA MCL MSA state, including any required provided under the laws of to be benefits, Freight compensation Mathis v Interstate Motor workers’ (1980), govern- 164; System, 708 or the federal 408 Mich 289 NW2d benefits, ment, including security State O’Donnell v social survivors’ (1979), Co, 524; 829 404 Mich 273 NW2d Farm Mutual Automobile Ins required are to be subtracted. See fn 60. Legislature provided insurer has that a no-fault recovery recoup except obtained from a motorist PIP benefits from a tort duplicative recovery a obtained from a motorist who is not provisions of tort under the of the no-fault act. See relieved DAIIE, 477; 500.3116; MCL MSA 24.13116. Workman v 404 Mich NW2d 373 3116, enacted, originally literally required person Section who repay received PIP benefits to the no-fault insurer out of a tort claim received, recovery recovery, equal a sum to the benefits but not more than the attorney expenses exclusive of fees and other reasonable Workman, 509-510, effecting pp recovery. incurred in In this beyond purpose Legislature Court held it the intent and of the permit (paid to nomic loss: the subtraction of PIP benefits for non-excess eco- loss) recovery from a tort for noneconomic and excess economic "However, statutory language light of if this is read in the [§ 3116] 3135, apparent patent absurdity: we are left with an § hand, Legislature, remedy any provides injured person on the one an limited tort while, hand, providing in 3135 of the act on the other § pursuant recovery effectively tort achieved to 3135 will be taken § away under 3116 of the act. § 3135, light "Accordingly, in we construe to mean that an § § personal paying injury protection insurance carrier benefits is enti- recovery person injured tled to reimbursement from the tort of a as a if, that, only result of a motor vehicle accident and to the extent recovery damages personal injury tort includes for losses for which protection paid. Thus, [Emphasis beneñts were since § added.] remedy personal injury abolishes tort protection covered under the losses provisions injured plaintiff insurance should nothing right recover for which the insurance carrier will have a interpretation reimbursement under not purposes 3116. We believe this § of § only gives 3135, full effect to but it § also effectuates the essential section, namely, prevent recovery of this double of eco- persons right nomic loss those who retain their to sue tort for (Emphasis original.) economic loss under the act.” separate opinion, expressed In provide we the view that to the no- rights "subrogation” fault insurer with a tort was (see Waters, neither remarkable Foremost Life Ins Co v [1982]) unconstitutional, 329 NW2d 688 nor but concurred in the Legislature, result because the in 1978 PA had amended § "clarify” meaning Legislature to intended that the and we were satisfied that the arising the new version of 3116 § would control cases both before and after its enactment: Mich 350 418 402 Dissenting Levin, act the no-fault structure of history from presented on the issue of that act construction its purpose. with consonant is most A on the decision opinion today’s rests The lead on as as the collat no-fault act well policy to a refers section opinion rule. The eral-source PIP from a setoif providing act the no-fault to be required provided benefits benefits (e.g., social secu federal or state law provided by compensation and workers’ survivors’ benefits rity benefits)60 authorizing to a a no-fault section Legislature appears intends that § where that the "Because it now recovery only third-party require the defendant injury this out tort reimbursement of a state, uninsured, accident out of or the is occurs inflicted, intеntionally result on we concur in Court’s was Workman, supra, pp 522-523. issue.” provided by insurers amended Reimbursement of no-fault 3116(1) where, liability of tort is limited because the abolition § within this state that are with an insured vehicle accidents intentionally person an accident state where (MCL 24.13135), 500.3135; injured caused MSA upon arising duplicative recovery a tort claim a realizes occurring involving this an uninsured vehicle or outside injury intentionally caused. argue barring a no- 3116 as amended should be read To that § duplica- being for PIP benefits from a fault insurer from tive to ascribe to the reimbursed recovery be economic obtained from a non-motorist would loss Legislature beyond purpose intent the "evil” an sought to 3116. be remedied the amendment of § 3116, liability including the tort The no-fault addresses § provides system reparations owners and drivers and lieu of a motorist’s tort a substitute statutory for work loss within the expense. provisions do not limit and medical The of the no-fault act involving See Ins America affect actions non-motorists. Citizens Co of (in Tuttle, 547, considering p supra, v where this Court 3135 of § act, which, "only”) said no-fault that the non-motorist is "outside the basic no-fault ing like amended uses the word § system of allocat- address the costs of accidents”. The amendment of 3116 does not § question duplicative economic loss whether obtainedcby person injured from non-motorist. 500.3109; 24.13109; questions MCL MSA see fn whether 59. security governmental have certain are benefits other social benefits DAIIE, App argued awaiting been and are decision. Jarosz 86; (1981), (1982); gtd Thompson v 310 NW2d 903 lv 414 Mich 872 DAIIE, (1981), gtd App Mich 873 Mich 309 NW2d lv Tebo v Havlik Dissenting Opinion Levin, J. recovery PIP from a tort recoup insurer benefits expense obtained from a wage loss or medical motorist who is not relieved of tort liability,61 recoupment that setoff or reduces observes such PIP The providing opinion the cost of benefits.62 policy concludes that the no-fault act is "to limit limita duplicative recovery only where the insurer, provid tion would benefit a no-fault thus ing incentive for lower insurance rates”.63 opinion "partic continues the taverns had not ipated scheme”, in the no-fault states that the act legislative "evinces no intent to benefit insurers”, defendants and their concludes it would be to the intent of the contrary no-fault act "to benefit a tortfeasor rather than a no-fault insurer” nothing because do so would "do fulfill the legislative goal of lower no-fault insur ance rates”.64

First, of the analysis opinion lead assumes the cost of automobile insurance would not be reduced if duplicative wage/work loss expense and medical was eliminated. The cost would, however, be reduced if a no-fault insurer can obtain reimbursement in respect to PIP bene fits paid it from a non-motorist tortfeasor such as a tavern. Although the question reimbursement presented and therefore should not be de cided, explicitly by implication, a substantial argument could be made that a no-fault insurer should be able to claim reimbursement from a non-motorist tortfeasor.65 500.3116; 24.13116; MCL MSA fn see 59. 62 Ante, p 367. 63Ante, p 367. 64Ante, p 368. 65 holding A that a no-fault insurer can maintain such an action engender would litigation, primary further purpose of which

would be to reallocate 500.3116; losses between insurers. MCL MSA 418 Mich Dissenting Levin, J. reflects

Second, opinion the lead analysis of of the operative effect misunderstandings today’s consequence and of the no-fault act opinion that in the The statement "[i]n decision. who trade-off. Those effect, made a Legislature scheme no-fault required participate were recoveries, redundant up possibility of gave receive the benefit intended to they but were rates”,66 incorrect is based on an insurance lower to required "Those predicate. drivers] [owners scheme” did not have in the no-fault participate "give to recoveries redundant possibility the enactment no-fault up”. Before in an automobile accident injured owner driver once,67 then if he was only but could collect at the driver of other vehicle fault and fault other was both at and collectible. tortfeasor Third, the extent "participates”, tortfeasor a being to liabil- required, subject is participation person for the same loss. While ity injured liabil- persons under such a common burden of least have of contri- ity today, rights at generally, (see VI, 82, fns bution themselves Part between 83), the of avoiding duplicative recoveries policy person provides litigation injured 24.13116 obtains a tort not be insurer to for such where the further duplicative recovery motorist is not relieved of from a who liability arguable the no-fault It thus it would under act. policy of the act allow a no-fault inconsistent with PIP seek to recover benefits from a non-motorist. provisions Among Act of the Uniform Contribution Tortfeasors (MCL 600.2925a; 27A.2925[1]) applicable a MSA would not be because Nevertheless, no-fault is not a insurer insurer tortfeasor. a no-fault liability non-motorist tortfeasor under a common burden of are payment wage/work statutory for the limit and loss within the expense. arguable equitable medical It is that an action for contribu- against tion be maintained a no-fault insurer a non-motorist Co, 314, Moyses Spartan Asphalt Paving tortfeasor. Cf. v 383 Mich 331, 420, (1970); Fox, 174 797 394 Mich fn NW2d Caldwell 5, 421; (1975); Fidelity Guaranty Co v States & NW2d United Liberty Co, 365, 373; App Mutual Ins NW2d 66 Ante, p 367. 67See fn 32. Tebo v Havlik Dissenting Opinion by Levin, depended has not on person evidence that each subject liability participated fact in contribut- ing to reimbursement of the loss. It is not a precondition to the common-law precluding rule duplicative judgment shall have been rendered a tortfeasor partici- who has pated in an program insurance for the benefit of An injured persons. uninsured motorist would be entitled to the benefit of the common-law rule if there had been a settlement with another tortfea- who, together motorist, sor with the uninsured subject person to the injured for the same loss.

Fourth, PIP decision that benefits are not received from a collateral source would not confer a benefit on taverns. Such a decision would rather maintain the status quo, namely rule that рrecludes duplicative recovery by requiring reparations obtained from another source be sub- tracted from a verdict against a non-motorist tort- feasor.

Fifth, it does not follow from the truism that reducing the aggregate amount paid or payable by a no-fault insurer for PIP benefits by amounts received the PIP recipient benefit or recouped by the no-fault insurer from certain other sources reduces the cost of providing PIP benefits and thus rates, should result in lower insurance the no- fault act reflects a policy barring duplicative recovery only where a no-fault policyholder may benefit through lower rates. Stated it conversely, does not follow that the no-fault act reflects a to policy allow duplicative recovery unless avoidance of double recovery reduces the cost of no-fault insurance.

The provisions of the no-fault act relied on in the lead opinion (requiring a setoff of benefits 418 Mich Dissenting Opinion Levin, J. state or provided to under be required provided allowing dupli- recoupment and for laws federal not re- a motorist from benefits obtained cative a legislative policy liability) tort reflect lieved of of the common law allow- parallel policy for to his loss be reimbursed ing injured person these consequence of cost- necessary The but once. statutory policies law is to and saving common-law required by benefit on whoever confer a provide to law of this state statutory and common reparations providing the cost of or contribute The inference drawn persons. to injured the no-fault consequence, this majority to benefit separate legislative policy act reflects to the exclu- insurers and their insureds no-fault insureds, tortfeasors their sion of non-motorist sequitur. ais non not, as this no-fault act does Court observed Tuttle, Ins of America v Citizens Co

in Mich (1981), 547; 309 tort NW2d address Thus no-fault act liability of non-motorists. any separate legislative policy does not reflect respecting non-motorists. That the no-fault act benefits, policy redundancy in PIP reflects a bar provid- and thus to reduce the cost to motorists benefits, ing imply separate legis- such does policy provide lative with the redundancy in reparations attendant increase cost where the are required provided by non-motorists. not,

Allowing lead recovery may double notes, rates, opinion increase automobile insurance but it will increase insurance rates to automobile cows, manufacturers, taverns, parts owners any other non-motorists. increase in the Since exposure of non-motorist result tortfeasors will those increased insurance and other sub- costs ject to such increased turn exposure, which Havlik Tebo v by Dissenting Opinion Levin, consumer, the increased passed must be on unavoidably be re- cost of double will automobiles, parts, alcoholic flected in the cost of milk, be ultimately and thus will beverages, for automobile persons pay the same whо paid by pays In the last the consumer analysis, insurance. no-fault systems all the costs of the tort and systems. in those redundancy and thus for all Legislature not ascribe to the This Court should purpose saving narrow consumer cost, passed when that redundancy only cost of him in the form of automobile insurance on to intending bring and of about both premiums, passing and the attendant on of the redundancy in the form redundancy cost of that to consumers automobiles, parts, cost of alcoholic of increased milk. beverages, and

B wage/work loss and Although reparations PIP paid now are as expense generally medical may, benefits an automobile insurer who here, be the automobile insurer of a vehicle owned "damages” rather than as injured person, vehicle, offending insurer of by the automobile under funding source of the remains the same pool no-fault act as before its enactment —a funded money premiums paid by with owners discharge drivers of motor vehicles to imposed on them law of this state.

Judgments con- individuals and business no- cerns —before and after the enactment fault generally apart are not collectible act — pool insurance. But for the funded with money insurance could col- premiums, judgments few lected, gave and the flood of rise to litigation that the no-fault act occurred. Before would hot have the no-fault act —and after its enactment— now 418 Mich by Dissenting Opinion Levin, J. to insurance paid premiums drivers

owners pool money a thereby provided companies and now, (and, and settlements judgments from which benefits) paid. PIP are in an act, a person injured no-fault

Before the from a tortfea who recovered accident automobile ordinarily expense or for loss medical wage sor automo public liability from the payment received Although the source the tortfeasor. insurer of bile than the an insurer rather was tortfeasor, regard payment law did not in liability by a tortfeasor’s proceeds insurance Whatever was recov collateral source. surer a tortfeasor from automobile insurer one ered law was, general rule of the common under discussed, from any verdict subtracted previously other judgment tortfeasors.68

C making payment that argued It was person, liability insurer injured automobile (and aby for the tortfeasor substituting payment is not damages tortfeasor or his insurer source), from a but money received collateral recovers recipient here the of PIP benefits who recipi from the no-fault insurer who insured PIP in much paid ent’s automobile for the benefits payable the same as one for benefits way pays insurance, pursuant expense to life medical proceeds of which are from deemed received collateral source.69 fn See 32. expense Where a no-fault insured coordinate elects to medical (see 21), paragraph expense insurance third the medical insur- of fn substitutes, provided, thereby

ance the conclude the еxtent of the benefits basis, would, statutorily PIP mandated benefits. We on that expense in such a case medical insurance functions security is not that extent as no-fault and as PIP benefits and hence received from a collateral source. Havlik Tebo v by Dissenting Levin, J. analogize mandated PIP benefits The effort policies proceeds man- of insurance law to policy governmental the funda- overlooks dated payment mandated between mental difference governmental policy the insurer and one governmental apart policyholder contract mandate. benefits, the one on PIP insurance

No-fault expense insurance and hand, and medical and life distinguishable in a other, benefits, are on the expense particulars. Life and medical number arising generally from multi cover loss insurance peril single perils, ple as an automobile such not a only payable loss are PIP benefits accident. arising respect Life and medical automobiles. in to compen fully generally expense will insurance expense PIP Medical loss. for the financial sate compensate loss, full amount of for the benefits compensate most PIP benefits will and work-loss loss, persons70 and an of their the full amount may be maintained economic loss action for excess against fault.71 or driver at an owner prove person

Although injured need not now payment assured, of loss fault, the elements paid as the same are are for which PIP benefits compensable tort action in a that were those before no-fault. another owner or driver repara- "damages” PIP The substitute benefits pursuant payable to sometimes, here, as tions are living adjustment, loss is now By work reason of the cost of $2,252 per 30-day period. are up Because PIP benefits recoverable not taxable narily to income, PIP benefits is ordi- as the amount recoverable 500.3107; It wage MSA 24.13107. of the actual loss. MCL 85% person’s he injured from work appears income thus would have benefits will that unless the $29,000, approximately the work-loss performed fully compensate exceeds wages. for his lost him $20,000/ public liability requires insurance The no-fault act $40,000 damage MCL injury occurs in this state. where the 500.3131; 24.13131. MSA Mich Dissenting Opinion by Levin, J. insurance, they

a "contract” but are statutory open of contract. It is not to payable independently agree on policyholder insurer benefit prescribed terms other than those statute. PIP benefits, distinguished payable from benefits under life or medical are re expense policy, quired paid, to be under the priority system regard no-fault without to whether the injured has an insured-insurer person relationship with any insurer.72 recipient PIP money paid by a benefits to automobile, is,

the no-fault insurer of his con trast with premiums paid a life or medical insurer, expense governmentally mandated exac tion to finance a social welfare pro entitlement gram, through companies administered insurance and self-insured enterprises, requiring the pay ment of reparations persons for the benefit of all injured regard automobile accidents without whether they own automobiles73 or contribute the cost of financing or funding pool money from which PIP benefits are paid. to,

PIP benefits as, are akin closely function statutorily mandated automobile accident damages or reparations for wage expense. loss and medical Damages reparations required paid to be by law — —are, all agree, would not a PIP collateral source. benefits are reparations required paid to be law. by They are payable by an automobile insurer —now as before enactment of the no-fault act —out of the pool of money premiums paid funded with owners and drivers of motor discharge vehicles to the liability imposed and arising by operation of state, law of this torts, formerly the law of now the no-fault act.

72See fn 4. fn See 4. Tebo v Havlik Dissenting Opinion Levin, J. tortfeasor, it is not a no-fault insurer While the liability of the loss insurer substitutes formerly payable though Al- motorist tortfeasor. a regard pays to without no-fault insurer a parts manufac- fault, an automobile or too so (or insurer), liability subject to which turer its carefully may product it however for a defective product. sought produce the to have liability of a no-fault insurer of the The source (and vehicle), tavern, of a self-insured owner ‍​​‌‌‌‌​​​‌‌​‌​‌​‌‌​‌‌​‌‌​‌‌​​​​‌‌‌​‌​‌‌‌​​‌‌‌​​​‍of a parts manufacturer, automobile or an owner of a fundamentally cow, the same: are (the governmental policy, no-fault either a statute acts) (the a rule of law tort law or negligence product liability) of this state. and of liability pay discharge Payments PIP of a in discharge pay a tort in benefits and generated independent, judgment are separate, sources, from the same but collateral persons state, this which causes source: the law of to insurance) purchase (generally by provide the funds reparations required by pay law.

D nothing language, history, There is suggesting purpose of the no-fault act Legislature through intended, the extension person rule, that a common-law collateral-source injured in an automobile accident who is insurer recovers PIP benefits from a no-fault paid premiums were should be whom insurance permitted time for the same to recover a second wage/work expense tort- from a loss and medical feasor. extending rule

The effect of the collateral-source paid policy proceeds to include the the of a no-fault Legis- PIP is to ascribe to the form of benefits 418 Mich Dissenting Opinion by Levin, J. act, enacting the no-fault not purpose, by lature a the no-fault insurer for to substitute only the source of other driver and his insurer wage/work expense, for loss and medical payment (or, depending on one but also to reward some how all) opinion, injured persons reads the lead who cause of action a non-motorist have a recovery deprive tortfeasor with double non-motorist tortfeasors of the reduction liability amount of their that had theretofore re- reparations from the subtraction ob- sulted subjects tained from others the law the same loss.

Treating no-fault benefits as received from a purpose collateral source is consistent with the and structure of the no-fault act. The of the policy requiring common-law rule the subtraction of du reflected, plicative benefits is also as noted in the opinion, provisions lead of the no-fault act.74 the same common-law and Fundamentally statu tory policy duplicative recovery— —avoidance $50,000 requires subtraction of the paid by Havlik from from a or any recovery motorist non- motorist tortfeasor for noneconomic and excess loss, requires economic also subtraction of the $35,000 paid as PIP benefits to from any the Tebos benefits, recovery, duplicative of the PIP statutory from a non-motorist tortfeasor.

In enacting Legislature the no-fault sought provide a more efficient and cost-effective automobile accident reparations It is not system. that, consistent with purpose to hold in effect discussing 500.3109; 24.13109, providing See fn 59 MCL MSA provided required the subtraction from PIP benefits of benefits law, provided by 500.3116; federal or state and MCL MSA 24.13116, allowing a no-fault insurer to recover PIP benefits out of a duplicative recovery tort from an owner or driver of a motor vehicle liability by who is not relieved of tort the no-fault act. Tebo v Havlik Dissenting Opinion Levin, J. changing from the the source or his other automobile driver of the owner liability (who insurer no-fault to an automobile insurer owned of the vehicle is the insurer sometimes benefits), Legisla- recipient by PIP the of the the persons injured to to enable intended ture also injury time from a a second the same recover for tortfeasor, in those cases at least non-motorist by owned of the vehicle the no-fault insurer where say, recipient than, owner a self-insured rather the pays Such a construction the PIP benefits. exposure tortfea- of non-motorist the

—increases insurers, the enactment who before their sors and against judg- system could offset no-fault of the payments or his a motorist tortfeasor all ment liability insurer; automobile wage recovery —provides for loss double expense once; recoverable but theretofore medical apparent purpose of the with —is inconsistent aspects replace Legislature of the certain to the payment recovery system PIP with the tort act. under the no-fault benefits paid to the the PIP benefits We conclude be subtracted under the no-fault act should Tebos from a tort wage and medical loss expense non-motorist tortfeasor. from a

VI requiring from a ver- The rule the subtraction sources from other dict of all amounts obtained provide reparations required for the that are applicable state, of this same loss where the verdict law against automobile applies parts cow, of a manufacturer or thе owner tavern. as well where the verdict 418 Mich 350 Dissenting Opinion Levin, J. Legislature, suppose There is no reason to no-fault act and in 1972 enacted both the which intended that dramshop amendments no-fault act would increase the enactment 1972 amendments of taverns. The exposure In opposite. dramshop just act indicate "intoxicated”, eliminating adding "visibly” before "name and damages, adding exemplary clearly requirement,75 Legislature retain” providing sought to reduce the cost to taverns act. reparations pursuant subtracting amounts argued It has been subject from other sources received noth paying result in a tavern the same loss other sources is if the amount received from ing award. That greater jury may than a verdict however, is, whenever there is a subtraction.76 true tavern, plain there is more than one

Where to trial proceed tiff settle with one tavern and that The rule nevertheless is with the others. in from one tavern settle whatever is recovered against verdict any subtracted from ment is to be in no This too could result actual other taverns.77 that do not settle. against taverns recovery Haskins, Putney v person the intoxicated After there cannot be must be retained the action and settlement, If there had agrees. a unless the tavern $50,000 or against a verdict the taverns been $50,- against Havlik for another amount him, against paid in settlement of the claim The recovery. one there would have been but $50,000 judge78 would have been subtracted

75See fn 22. Payless $150,000 paid by in Brewer v Sta- General Motors (1982) tions, great- Inc, could have been 316 NW2d 702 Payless. jury against any See fn 32. awarded er than amount Weitzman, supra, p 167. Larabell v Schuk- v fn 32 See Manuel 419, 423; necht, Mich 14 NW2d 50 78See fn 32. Tebo Havlik Opinion by Dissenting Levin, J. any unless a the taverns79 verdict from apply the non-motorist should where different rule it an automo than where is is a tavern tortfeasor parts cow. or the owner of a manufacturer bile purpose urged and of of the tort law that a It is encourage potential tortfea- act is eliminating due care and sors to act with purpose. recovery duplicative does not serve liability significant tort First, areas of there are subject liability if he even where a tortfeasor liability Second, most tort due care. has exercised impact recov- insurance; of a tort is funded ery likely particular effect tortfeasor and on a marginal. Third, often future behavior are on his recovery subtracting PIP tort benefits or his insurer not result in the tortfeasor would liability; they escaping would remain liable all (frequently potentially loss for noneconomic liable exposure) greater economic loss. and excess encourage potential liability those should That care, due who otherwise exercise who would not argu- Fourth, constrained, to do so. can be so requires ignores the common-law rule ment the subtraction sor recovery tortfea- of a from another subject loss; if this for the same dupli- argument requiring of a for not subtraction thought sound, then cative to be general requiring оf recoveries rule subtraction reparations abol- from other tortfeasors should be permitted injured person ished to recover his and an should damages many times as full as 79The in from an deduction of an amount obtained settlement against likely to intoxicated driver from a verdict tavern is not a occur in the future as there can no unless the intoxi- settlement settle; released cated driver and the tavern both the tavern would be liability only if intoxicated driver. the settlement with the (see such, only contribution There will henceforth be no setoff as but 600.2925a; 27A.2925[1]) possibly where MCL MSA indemnification persons. the owner and the driver are different 350

416 418 Mich Dissenting Opinion Levin, contributed tortfeasors who there are collectible his loss. case concerns setoff

Although the instant contribution, made80 arguments have been in concept expressed on an extension of a based Hartfield, 4 582; v 145 NW2d Virgilio App Mich (1966), Appeals the Court of held 367 where dramshop act could not sued under taverns against contribution maintain an action for Virgilio was decided before intoxicated driver.81 80 Hartfield, 582; Virgilio App holding 145 in 4 Mich NW2d v 517, Benedict, (1966), App v 39 Mich 367 523; was adverted to in Barton (1972), grounds sub nom Podbielski 197 898 rev’d on other NW2d (1974), Bowl, Inc, 380; Argyle 220 where the 392 Mich NW2d 397 v said, Virgilio: authority of Court on require question dramshop that the defendant cannot "There is no driver-defendant, recovery recovery theory of from the since the contribution in the in the theory wrongful from the death action is different action.” applicable holding Virgilio not there in was The Court said that question but rather one here is not one of contribution because "[t]he mitigation by prior Id. In with the intoxicated driver”. settlement (1974), Heineman, 509; App the Court Mich 224 NW2d 687 Reno v of 56 holding considering Virgilio, Appeals, in followed Barton after was admissible evidence with the intoxicated driver a settlement mitigation damages injured person’s in an action dramshop act. tavern under the held, however, Appeals panels that no have of the Court Other Gibson, App Putney 94 Mich v should be made. See subtraction 486; (1979) grounds Virgilio), (relying rev’d on other on 289 NW2d (1982); Haskins, 181; Putney 324 NW2d v 414 Mich sub nom (1972). 422; Campbell, App See NW2d 836 v 38 Mich Bohannon following fn 67. text right Virgilio, Appeals no held that there was In the Court of tavern, because the driver and a contribution between an intoxicated statute at that sors”, "joint provided tortfea- time for contribution between previously 236, §2925, declared and this Court had 1961 PA negligence concurring independent acts that combined to cause the tortfeasors whose joint plaintiffs Geib are not tortfeasors. loss Slater, 31 NW2d liability Virgilio of the intoxicated that the The Court in also said theory of a common did not arise under driver and of the tavern liability. negli- liability against driver is the intoxicated The basis of any theory grounded gence. on "is not The tavern’s Virgilio, p negligence, of the statute”. arises because of violation but 585. 417 Tebo v Havlik by Dissenting Opinion Levin, J. Co, Paving Asphalt v Spartan 383 Mich Moyses (1970),82 adop 314; 797 and before 174 NW2d Among Uniform Contribution tion of the revised that contribution Act.83 It is now clear Tortfeasors 81) (see 82 supersedеd by Virgilio fn been forth in has The rule set Co, Spartan Asphalt Paving Moyses 383 decision in v this Court’s Mich (1970), 314, 331, 334; 797 as elucidated in Caldwell v 174 NW2d 420-421, (1975), Fox, 401, by changes fn 231 NW2d 46 394 Mich 83) (1974 (see Act PA 318 added MCL fn in the Revised Judicature 600.2925b; 27A.2925[2], 600.2925a; and MCL MSA MSA 27A.2925[1] 147) among provide by for contribution 1982 PA since amended regard they joint tortfeasors or to whether are tortfeasors without whether the tortfeasors are tiff. theory liability. sufficient that is a common of It now there liability plain under a common burden of 331, history Moyses, p reviewed the of 2925 of the § In the Court acknowledged "joint Revised Judicature Act and would not include tortfeasors” joined may those who be as defendants under the person] damages responsible injured for court rules "and held to [the causally cooperating non-joint sustained on account of their or but acts omissions, one, say by negligence the violation of a statute another, by like the act and the breach still another of express legally implied warranty". (Emphasis supplied.) among Court abolished the common-law limitations on contributions wrongdoers, leaving equitable principles "issue contribution to express implied as known and now in hitherto matters of con- Moyses, p tract”. such action the Uniform Contribution 335. The Court said that it was stimulated take "by principles the national advancement of set forth in Act, Among supra, Tortfeasors the ten- dency provide by judicial right of other courts to action the wrongdoers, contribution on behalf of all but intentional and the compelling admonitions of modern writers like William [Dean L.] Moyses, p Prosser”. 334. Fox, supra, In Caldwell v the Court said that the doctrine of among wrongdoers contribution non-intentional had been returned Moyses original equitable "to the rules”. Lovins, 101, App 117-119; (1970), In Mason v 24 Mich NW2d Gibson, 485, Putney supra, p relied on in suggested basis been "[n]o [had] $9,500 allocating pecuniary settlement between the damage loss of the widow and child and the other elements of which the administrator could seek to recover”. Here, elements payable loss for which PIP benefits are and for which offset sought Heineman, from a tavern is are identical. See Reno v supra, p 512. 27A.2925G) seq.; seq. change MCL 600.2925a et MSA et The 1974 (see 82), in Law ond Annual adopted urging the Revised Judicature Act fn at the Commission, (Michigan Revision Commission Law Revision Sec- Report, p 57), repealed 2925 and substituted as § Act, 2925a-2925d §§ 600.2925d; of the Revised Judicature MCL 600.2925a- 27A.2925(1)-27A.2925(4), MSA the substance of the 1955 63). (12 Among Uniform Contribution Tortfeasors Act ULA Section Dissenting Levin, separate are although tortfeasors can be enforced wrongdoers, "joint” rather than and concurrent theory liability, not a common although there is one tortfeasor liability although of the other while the on fault based the common law or rule of a statute based on All that regard to fault. without allowing recovery is that contribution necessary to enforce is now liability.84 burden of a common there be "jointly "persons” or sever- provides between for contribution -2925a paid (Emphasis supplied.) A tortfeasor who has ally in tort”. liable right liability pro-rata has of the common a his share of more than contribution. of the theory requirement a common that there be There is no seeking enough and liability. tortfeasor contribution It is that the commonly sought share a contribution is both one from whom 1982, plaintiff. liability the Revised In sort of burden of some degrees provide that the relative of amended to Judicature Act was only themselves be considered "as between of should fault tortfeasors rights injured party joint affecting a of and without 27A.2925(2). 600.2925b; 147, judgment”. PA MCL MSA 1982 several 84 Among Tortfeasors Act 1939 or 1955 Uniform Contribution Alaska, Arkansas, Colorado, twenty jurisdictions: adopted in has been Delaware, Nevada, Massachusetts, Florida, Hawaii, Mississippi, Maryland, Dakota, Mexico, Carolina, Jersey, North North New New Dakota, Island, Ohio, Pennsylvania, South Tennessee Rhode Annotated, 1, Wyoming. 1983 Cumulative 12 Laws § See Uniform Supplement, p 58. adopted twenty the 1939 or 1955 that have either states Of theory a common courts of seven have said that uniform liability 365 (Del, (1982); (D Brooks, prerequisite A2d Clark v 377 is not a contribution. (Del Clark, 1977), Super, 391 747 aff'd sub nom Blackshear v A2d Co, 95; 1978); 434 NE2d 1008 Wolfe v Ford Motor 386 Mass Inc, Supp Cooperative, 225 F 940 v McKenzie Electric White 1964) law); Bakery, ND, Quality (applying Dakota Adler’s North Blair, Gaseteria, Inc, 55; (1960); 97 Neveroski v Inc v 32 NJ 159 A2d 365; (1976); Capital Corp Super Fireco of of 358 A2d 473 Cartel v 141 NJ 548; (1980); City Jersey, 410 674 Sanchez v New Espanola, 81 NJ A2d (Ct 1980), 676; App, rev’d on other 94 NM 615 P2d 993 66; grounds Mfg City Espanola, 95 618 sub nom Aalco Co v NM (CA Co, 3, (1980); 485 F2d 31 P2d 1230 Chamberlain v Carborundum 1973) law); Kingsport Corp, (applying Pennsylvania City 429 v SCM 1976) (ED law, Tenn, Supp (applying but not mention F ing F2d 224 act did not 96 Tennessee Co, act); R v Foote Mineral 384 the uniform see also Southern Co 1967) (CA (Tennessee 6, adoption of the uniform law before require theory). a common require adopted a uniform act do not Six states that have not Stores, Safeway theory prerequisite Inc common as a to contribution. 550; (1978); Nest-Kart, 322; Rptr 146 579 P2d 441 v 21 Cal 3d Cal 419 Tebo v Havlik Dissenting Opinion Levin, J. tortfeasor, insurer, albeit A no-fault npt tavern with a liability burden under a common loss within the wage/work payment person to a expense limit and medical statutory Although an accident. in an automobile injured statutory a tavern action the basis wrongdoing, proof on depend does Co, 1; Package Machinery 70 Ill 2d 374 Div v Reed-Prentice Skinner NE2d 437 Bros, (1978); Morgan (1977), Kirk v 946 cert den 436 US (1982); 914; Mutual Inc, Federated App 444 NE2d 504 Ill 3d 111 (Iowa, Dunkelberger, 137 172 NW2d Implement v Hardware Ins Co & State, NW2d 1969), grounds 256 partially Lewis v on other overruled Chicago 181, (Iowa, 1977); Chicago, v & & P R Co R I see also 189 (1961) (CA 1960), 8, Co, cert den 364 US 931 F2d 110 N W R statute); Niagara (applying Guillard v Ma and a federal Iowa law (CA 1973) Works, (applying Minnesota 488 F2d 20 & Tool chine law); (1981); Comardo, 821; 107 Misc 2d NYS2d Anderson v (Tex 1976), Gonzales, App, Bristol-Myers 548 SW2d 416 Civ rev’d Co v (Tex, 1978); Avery grounds see also v Mare 561 SW2d on other 1980) law). (CA 5, (applying Corp, Texas 628 F2d 441 mont states, expressly following have not disclaimed the In the which theory theory requirement, appears it that a common would common not be (1969); DeGama, required. v 51 Hawaii 450 P2d 998 Tamashiro (D 1968) Hawaii, Dietz, Supp (applying 283 F Albert act); law; adopted v has the uniform Bedard Hawaiian Hawaii (D Greene, (Me, 1979); Winquist, Supp v 451 F 388 409 A2d 676 Testa 1978) law, RI, (applying uniform Rhode Island which includes a questioning on contribution between two defendants liable and not different theories). prerequisite theory is not a to contribution under A common Co, Supp Reynolds 1141 v Southern R 320 F certain federal statutes. (ND 1969) (Federal Act, Ga, collecting Employers’ Liability cases from courts); Corp v and federal Fischbach & Moore International state Crane (CA (D 1979), R-14, Md, Barge Supp 632 F2d 1123 476 F 282 aff'd 1980) law). (maritime 4, following arrangement according The is an of the cases to the bases liability involved: Separate negligence employer: employee Clark. both and an Negligence implied of a vehicle manufacturer and breach of war- ranty merchantability by a vehicle assembler-seller: Wolfe. Adler’s, Stores, liability negligence: Safeway Strict and Chamber- lain, Skinner, Bristol-Myers, and Sanchez. acts) (fraud Statutory deception violation and and common-law fraud: Neveroski. Misrepresentation, City negligence, passive negligence: active and Kingsport. Dunkelberger negligence dramshop Common-law violation: Anderson. Negligence Co; Chicago, Reynolds. and FELA violation: R I & P R 418 420 Mich 350 Dissenting Opinion by Levin, J. does not liability substantially differ from the

basis of of an parts automobile manu- product facturer liability, which also arise proof wrongdoing. without It dramshop also has been asserted that act penal a different rule should therefore apply. Although dramshop act contains penal provisions, as well as remedial punitive damages have not been recoverable under the dramshop Legislature act.85 The amended the statute in 1972 85 brought damage (dramshop) Actions under the civil statutes of generally regarded penal 2d, other states are as in nature. 45 Am Jur 608, Intoxicating Liquors, p Early 891. decisions of § this Court adopted exemplary damages the view that could be awarded under dramshop punish Kirchgessner, act to the defendant. Larzelere v 276, 283; (1889); Melsheimer, 73 172, 176; 41 NW 488 Mich Rouse v 82 Mich (1890); Oaks, 578, 582; 46 NW 372 v Peacock 85 Mich 48 NW (1891). 1082 However, subsequent distinctly repudiated the Court’s decisions this Voorheis, 648, 652; (1904); view. Bowden v 135 Mich 98 NW 406 (1905). 61, 68; Phillips, Manzer v 139 Mich 102 NW 292 These exemplary damages decisions held that awarded caused under the statute could be only compensate injury feelings plaintiff wilful, wanton, plaintiff’s rights or reckless invasion of by man, Voorheis, 652; the defendant. Bowden v 135 Mich Hink v Sher- (1911). 352, 360; 164 Mich 129 NW 732 See also v Haviland Chase, (1898) (dicta). 214, 217; Moreover, 116 Mich 74 NW 477 these expressly rejected exemplary damages decisions could be the contention that imposed punish keeper example a saloon or "to make an keeper] public good”. Boydan Haberstumpf, the tavern [of for the v 137, 140; (1901). Cheever, 129 Mich 88 NW 386 See also Ford v (1895). 679, 685; damages Mich 63 NW 975 Thus "[t]he [under punitive; they may exemplary provided are not act] Schuknecht, 419, the statute”. Larabell v 308 Mich (1944). NW2d 50 years There have been two references in the since 1900 to the penal Bailey Briggs, 303, 304; statute as a measure. See v 143 Mich (1906) (this statutory NW 863 part penal section is "in and in part remedial”); ("The Benedict, supra, p Barton v 'actual’ dam- ages appear nature, compensatory would to be remedial and while 'exemplary’ damages appear penal nature.”), would to be subsequently Eastman’s, Inc, Baldridge App relied on in 6-7; penal aspects NW2d 615 referred to the Court Bailey, though, provisions in prohibiting liquor are the sale of liquor Sunday; provision granting minors and the sale of on a would, remedy therefore, civil still fall within the "remedial” rubric. only authority The speculative support cited the Barton Court its Bailey Briggs; conclusion is v the Court did not address Tebo v Havlik Dissenting Opinion by Levin, recovery exemplary damages.86 eliminate It is now clear that only compensatory damages are recoverable.87

We conclude that the rule requiring subtrac- against tion from verdicts tortfeasors of amounts received from other required sources that are provide reparations for the same loss by the law of this apply against state should to a verdict a tavern as well as a verdict an automobile parts or manufacturer or the owner of a cow.

VII The Oakley Liquor Bar moved to exclude evi- holding exemplary damages the earlier decisions of this Court dramshop purpose were not to be awarded under the act for the punishing making public example See, offending keeper. of the saloon Voorheis, e.g., supra; Phillips, supra; Bowden v Manzer v Hink v Sherman, supra. pre-1972 penal punitive All doubt whether the statute was Legislature nature was removed in Í972 when the amended the exemplary damages provision. 1972, statute and the damages. Since eliminated plaintiff act compensatory limits the to a of actual or 86See fn 22. construed, liberally act has been and this Court legislative has ruled strained intent is not to be ascertained employed. Eddy or narrow construction of the words v Courtright, 264, 267; (1892); 91 Mich Argyle 51 NW 887 Podbielski v

Bowl, Inc, 380, (1974). 384-385; 392 Mich 220 NW2d 397 See also Heide, App 309; Dickerson v 69 Mich 244 NW2d 459 Thus, statutory language ambiguous, where may this Court tend to adopt competing See, e.g., the more liberal of the alternatives. LaBlue Specker, (1960) 558; v (illegitimate 358 Mich 100 NW2d 445 and non- person” protection viable fetus is a "child” or "other within statute); ("name Clements, (1976) Salas v 399 Mich 247 NW2d 889 provision prohibit and retain” identity does not action if the known). person of the intoxicated is not held, however, Legislature This Court has also because has statutorily imposed liability upon liquor derogation licensees in liability, common-law rule despite NW2d 892 603; strictly of no the statute must be construed Eaton, ‍​​‌‌‌‌​​​‌‌​‌​‌​‌‌​‌‌​‌‌​‌‌​​​​‌‌‌​‌​‌‌‌​​‌‌‌​​​‍34, 39; its remedial nature. Holland v 373 Mich (1964); Co, Fidelity Browder v International Ins (1982); Haskins, Putney supra. NW2d 668 A court provisions altogether Here, add no cluded Legislature. excluded there is ambiguity resolved; Legislature explicitly to be in 1972 ex- any recovery exemplary damages. . Dissenting Opinion Levin, J. expense. Arguably, wage loss and medical

dence admitted, and the amount evidence should be such judge88 then as PIP benefits subtracted paid the tavern. The ele any against judgment are pay which PIP benefits damage ments however, not, in an action are recoverable able driver,89 intoxicated who allegedly under the amended be and retained must named Putney v Haskins. It as in dramshop act construed seems, therefore, it would trial simplify to the jury the evidence with such advice exclude thought appropri if regard, any, ate. Burns, and in Tebo remand

We concur would opin- consistent with this proceedings for further ion. J., Levin,

Kavanagh, concurred with fn 32. See fn 26. See

Case Details

Case Name: Tebo v. Havlik

Court Name: Michigan Supreme Court

Date Published: Feb 6, 1984

Citation: 343 N.W.2d 181

Docket Number: Docket Nos. 68033, 70881. (Calendar Nos. 10, 11)

Court Abbreviation: Mich.