Theophelis v. Lansing General Hospital

Lansing Hospital THEOPHELIS v LANSING GENERAL HOSPITAL (Calendar 2). Argued May 78166. Docket No. No. Decided 6, 1988. June Theophelis, personal representative James of the estate of Schneider, deceased, Gene C. Schneider, L. and Gene Schneider and Gloria themselves, brought wrongful death action in Ingham against Lansing Hospital, the Circuit Court General Capital Anesthesiologists, P.C., and certain and a doctors nurse anesthetist, alleging malpractice in the treatment and care of the deceased. Prior to trial certain of the defendants were authorizing dismissed and an order a settlement with the nurse began, plaintiffs anesthetist was issued. After the trial the anesthesiologist. entered into a similar settlement with the specific plaintiffs’ Both releases included reservations of the against remaining claims defendants. trial, court, During Brown, J., that, Thomas L. ruled hospital while the settlements released the from vicarious liability for the of the anesthetist actions and the anesthesiolo- gist, concerning being evidence their conduct was admissible as necessary jury’s understanding independent allega- to the negligence against remaining tions of defendants. The court hospital request special recommended that the return of jury verdicts to determine whether the rendered its verdict on hospital’s independent liability. the basis of the vicarious or Judgment jury plaintiffs was entered on a verdict for the for $1 Kelly Appeals, Cynar, P.J., million. The Court of and M. J. (Docket 72194). JJ., rehearing, Evans, affirmed No. On Cynar, P.J., (M. Appeals, Kelly, J., Evans, Court of J. dissenting), jury’s vacated the award and remanded the case for trial, finding grant a new the trial court’s of a directed verdict hospital plaintiffs’ independent for the on all but one of the hospital competent claims left no evidence or expert testimony support sending remaining issue of independent liability plaintiffs jury. appeal. to the opinion joined an Griffin, Justice Chief Justice _In References 2d, 8-15, Am Jur Propriety Torts 77. §§ jury’s apportionment damages and effect of as between jointly severally tortfeasors liable. 46 ALR3d 801. Riley opinion Brickley, and Justice and an Boyle, Justice Supreme Court held: among- The amendment of the contribution tortfeasors act did abrogate agent the common-law rule that release of an discharges principal vicariously agent’s a liable for the acts. Riley joined by Griffin, Justice Chief Justice and Justice amending among Brickley, stated that the contribution act, Legislature abrogate tortfeasors the did not intend to the agent discharges common-law doctrine that release of an the principal liability agent’s of vicarious for the acts. Its more purpose incorporate right evident was to the common-law of among wrongdoers jointly severally contribution all whether or provide wrongdoer liable to that release of a concurrent operate wrongdoers. case, does not as a release of other In this question legal discharging the releases in had the effect of the hospital-principal. The releases should not be reformed as rule, covenants not to sue so as to avoid the common-law no showing having been made that the releases were not what was parties. intended law, agent 1. At common a valid release of an for tortious operates recovery against principal conduct to bar a under a theory liability, though specifically of vicarious even the release against principal. legislative history reserves claims among provides the contribution tortfeasors act no basis for a abrogation contention that an of this common-law doctrine was Rather, present adopted, intended. at the time the version was purpose incorporate then-existing was to common law. 2. The releases at issue should not be reformed as covenants request not to sue. The for reformation was first raised on appeal, persons directly process involved in the settlement parties appeal, and the formulation of the releases are not on showing and there was no that the releases were not what the parties intended. Boyle, writing separately, agreed Justice that the Court of Appeals remanding erred in the case for a new trial and would agree, assuming release, the document was a that MCL 27A.2925(4) 600.6925d; abrogate MSA does not the common-law agent vicariously principal rule that release of the of a liable operates discharge However, principal. on the basis of record, possible it is not reach firm conclusion that the and, thus, question document in was a release that resolution appropriate. Rather, of the substantive issue is the case should be remanded to the trial court for a determination of whether principal the document was intended to release the or to be a agents. covenant not to sue certain Cavanagh joined by Levin, Archer, Justice Justices Lansing writing separately, employee-agent stated that the release of an vicariously employer-principal; a vicar- does not release a liable iously employer-principal is a tortfeasor —one of two or liable injury persons in tort for the same within the more Act, meaning of the Revised Judicature 2925d. law, two or more tortfeasors contributed At common where plaintiffs injury, a settlement reflected in a document to a containing language settling of release of the tortfeasor neces- discharged Ordinarily, sarily one tortfea- all other tortfeasors. tortfeasor. The sor could not obtain contribution from another changed jurisdictions, common-law rule has been in most how- ever, Now, generally, by statute or case law. a settlement with tortfeasor, though containing reflected in a document one even tortfeasors, release, discharge language and a does not other pays pro-rata liability who more than a share of the tortfeasor Likewise, may other tortfeasors. enforce contribution person vicariously liable for the torts of settlement with a another, language containing of release reflected in a document sue, covenanting discharge any person not to does not other plain- regardless subject for the tort whether theory person is vicarious or direct. tiffs part, part, reversed in and remanded. Affirmed provisions dissenting, of the Archer, Justice stated that statute, or that a release or covenant not to sue contribution given good judgment, a faith to one of two or not to enforce injury wrongful persons in tort the same more for death, discharge any tortfeasors from does not other specifically provided, apply tortfeasors should to all unless including injury, vicariously liable. In liable for the same those trial, case, in its en- this the evidence introduced at viewed jury hospital tirety, sufficient for the to determine that the was negli- independent as well vicarious acts of was liable for as special gence, request and the defendants’ failure to verdicts urged by the trial court so as to determine the basis error, waiving impermissibly thereby jury’s verdict invited appeal. issue on (1986) part App 564; 384 NW2d 823 affirmed part. reversed in Among Liability — — Tortfeasors. Torts Vicarious Contribution among tortfeasors act did The amendment of the contribution agent abrogate dis- rule that release of an the common-law (MCL agent’s principal vicariously charges acts liable for a 27A.2925[4]). 600.2925d;MSA (by Story Kraus, C. Farhat, & P.C. Richard Mich Opinion by Griffin, Kraus), Wyble, Church, Robinson, Kritselis & (by Kritselis), plaintiffs. P.C. William N. for the Wagner Kenney, Kitch, Saurbier, Drutchas, & (by Wagner Healy P.C. Ronald E. and Susan Zit- terman), Lansing Hospital. for defendant General malpractice J. In this medical Griffin, action required are we to determine a whether Michigan among amendment1 of the contribution act, tortfeasors MCL 600.2925; 27A.2925, MSA abrogated the common-law rule settlement agent operates with, of, and release an to dis- charge principal from vicarious for agent’s acts. We conclude that the amendment had no such effect.

We are asked also to decide whether releases plaintiffs executed case this should be reformed as covenants not to sue as a means of avoiding the common-law rule. Our answer is in negative.

i Christopher seven-year-old Schneider, Gene boy, Lansing was admitted General tonsillectomy tympanotomy. and bilateral On following tympanotomy 16, 1978, June tonsillectomy, before the the child suffered a car- diac arrest. half After an hour of resuscitative spontaneous effort, the child resumed a heartbeat, and was taken to the unit intensive care where he placed respirator on a and cardiac monitor. physicians hospital Several on the staff examined the child and directed treatment in the intensive following day, care unit. On the second cardiac arrest occurred. The child’s condition continued to 2925a-d, 318,

1 1961 PA added §§ PA 1.§ Lansing Opinion by Griffin, J. days later, until deteriorate his death six on June 22, 1978. personal representative par-

Plaintiffs, wrongful decedent, filed this ents of the action dants named were Jana anesthetist who administered anesthesia for the surgery, anesthesiologist. death Ingham Among Circuit Court. defen- Palmer, a certified nurse supervising Gilmore, D.O., and Jack employed by Capital Both were Anesthesiologists, P.C., had a which contract perform hospital. anesthesia Additional de- Lansing Hospital; fendants General included Gilroy, performed surgery; D.O., Gerald who pediatrician; Sciamanna, D.O., David a resident physicians. and several other Capital Anesthesiologists physicians other than those named above were dismissed for rea- appeal. plain- sons unrelated to this Prior to trial agree- tiffs entered into a settlement and release ment with Nurse Palmer in ment of exchange pay- for a began, Shortly after the trial $85,000. plaintiffs also entered into a settlement and re- agreement lease a structured settlement with Dr. Gilmore. The latter was

providing pay- for a cash payments ment of and for installment $72,000 period twenty years depending more, over a or upon guaranteed father, the life of the decedent’s with a

total of at least In both $417,000. instances, a release was executed in consideration payments provision of the settlement and a reserving specifically plain- included in the release remaining tiffs’ claims defendants.2 complaint allegations Plaintiffs’ included of inde- provided pertinent part: The releases operative It is intended that this Release shall be as to Jana only any Palmer persons and shall not be construed to release other entity may who liable in tort for the same be 27A.2925(4). 600.2925d; wrongful death. MCL MSA 430 Mich Opinion Griffin, J. pendent negligence3 part hospital. on the of the complaint charged hospital also the with vi negligence part carious on the of although employees who, Palmer and Gilmore hospital, alleged of the agents were to be ostensible hospital of the under Grewe v Mt Clemens Hosp, General 240; 273 NW2d 429 (1978). During hospital the course of the trial the allegations negligence moved to strike all of on the part upon theory of Palmer and Gilmore the that operated hospital the settlements to release the from vicarious for the torts of Palmer and Although judge recognized Gilmore. the trial the agent common-law rule that release of an dis charges principal, the he nevertheless denied the negli motions to strike and admitted evidence of gence part on the of Palmer and Gilmore on the ground necessary jury’s it was to the under standing independent negligence against of claims remaining Lansing defendants, General, Dr. Sciamanna, Dr. and Gilroy.4 It is intended and understood that this release shall be Gilmore, operative construed to release only, as to Jack D.O. and shall not be any persons may other or entities who be alleged wrongful

liable in tort for the pher alleged death of Gene Christo- Schneider, deceased, any damages and and all other alleged wrongful to result from the death. MCL 27A.2925(4). 600.2925d;MSA term, "independent negligence,” only Our use of the is intended purpose identifying by plaintiffs for the directed to those claims which were hospital policies procedures opposed and to those claims directly upon negligent which rested acts of Nurse Palmer and liability” Dr. Gilmore and are referred to as "vicarious claims. Obviously, hospital policies procedures if claims directed to directors, agents hospital during involved acts of officers or of the scope corporate activity, any liability hospital of the for such acts Alexander, (3d Corporations would also be "vicarious.” See Henn & ed), 234, pp particular 624-625. Plaintiffs did not name the officers or agents hospital complaint. in their See Jones v Martz & Meek Co, Const NW2d hospital request The trial court recommended special require jury extent, verdict which would to indicate the if Lansing Griffin, trial,

After a two-week returned jury million, against hospital verdict $1 Gilroy found no cause of action Drs. Sciamanna. The trial court reduced amount $742,261, allowing the verdict for a setoff of amounts received from the with settlements Palmer and Gilmore.

Initially, judgment below was affirmed however, Court Appeals; the of rehearing on was reversed. While that holding the release of Palmer and Gilmore the discharged from hospital liability a on of theory respondeat Court superior, the recognized such provided that a release protec no from tion liability independent negli for acts of However, gence. noting after that the court trial granted had the a hospital directed on all verdict one but of plaintiffs’ independent claims of negli gence against the hospital, the panel’s majority remaining concluded on rehearing 5 as to the single im competent there was "no evidence cla or expert it. testimony” support Finding the evidence insufficient to submit of question a the hospital’s independent negligence to jury, the of Court Appeals set aside the verdict and re manded the for case a new trial.6 granted

We leave appeal, limited to two is- (1) sues: whether the settlements reached with Palmer hospital Gilmore released the any, upon to which its verdict would be based vicarious or independent for acts. single remaining allegation against hospital indepen of negligence, Appeals dent ation "ascertain that in all as determined the Court of on reconsider record, hospital of negligently was a claim that the failed to pediatric precordial stethoscope cases shall be used.” J., dissented, maintaining that 6 Kelly, there was sufficient evi support independent negligence against dence to hospital, particularly granted a claim of light of the fact that the trial court had plaintiffs complaint motion to amend their to conform to a. proofs. 430 Mich 473 Griffin, J. under MCL their actions liability vicarious (2) 27A.2925(4); and whether 600.2925d; MSA reformed as releases, should be protected, if not so not to sue. 426 Mich covenants ii hospital it was determined below Since independent negli- act any not guilty appeal— us on issue that is before gence —an except hospital precluded recovery liability. of vicarious theory on Gil- alleged that Palmer and Although plaintiffs were actu- agents hospital, they more were Anesthesiologists, P.C. Capital ally employees However, an exclusive contract Capital since had and the hospital, within the perform anesthesia anesthesiologist was of an anesthetist or choice the decedent’s consultation with made without Palmer and Gilmore it is contended that parents, estoppel, un- agents, agents by ostensible were Grewe, supra. our on proceed analysis We with der that basis. agent of an for

At common a valid release law recovery against to bar operates tortious conduct liability, on a of vicarious principal theory reserves specifically though even 2d, 53 Am Jur Mas principal. against claims 1199; Servant, 408, 416-418; 126 ALR pp ter and § Bacon v United CJS, Release, 50, p 76 689. See § (CA 8, States, Spaeth, Max v 1963); 321 F2d 880 1961). (Mo, Michigan 1 courts have 349 SW2d Slater, v common-law rule. Geib adhered to this (1948), on 316; 31 65 overruled 320 Mich NW2d Palmer, 363; 86 Moore v 350 Mich grounds other Gupta, Lincoln v (1957); App NW2d Lansing Hospital v Griffin, 615; (1985); 370 NW2d 312 Willis v Total Health Care, 125 Mich App (1983); NW2d Pulte, Inc, Drinkard William J App 67; NW2d argue Plaintiffs this common-law rule is in inapplicable the instant case reason of the Michigan act, 600.2925; contribution MCL MSA 27A.2925. In particular to they point 2925d § which, 1974, in pertinent amended reads in part:

When a release or a covenant not to sue or not judgment given good is enforce faith to 1 of 2 persons or more liable in tort for injury the same or the wrongful same death:

(a) It discharge does not any the other tortfea- wrongful sors from injury or death unless provide. [Emphasis supplied.] its terms so Plaintiffs argue that word "tortfeasors” the statute persons includes whose is solely upon based theory respondeat supe- rior, as in the case of principal agent. We disagree. Michigan contribution act not does include definition the terms "1 of 2 or persons more tort,” tort-feasors,”

liable in or "other as used the above-quoted 2925d. The Uniform Contribu- (1955 Among Act, tion Tortfeasors 12 ULA 4§ rev), upon which based, act Michigan like- Hence, wise fails define the term "tortfeasor.”7 arisen, the present question has a split has ''joint The 1939 version of the ucata the term defined tortfeasors” persons severally jointly as two or more or liable in tort for the same injury person property, judgment or whether has been However, recovered all or some of them. the 1955 revised act eliminated the definition and the term itself. See Commissioners’ Comment, 12 ULA 64. 430 Mich 473 482 Griffin, to whether among jurisdictions8 developed "tortfeasor” is a principal vicariously of 2925d. purposes in 1941 to enactment prior law and

At common statute,9 1941 PA contribution Michigan among or 303, recoverable contribution Motors v General tortfeasors. O’Dowd between (1984). 597, 553 603; 358 NW2d Corp, 419 Mich joint of one Also, the release at common law tort- joint released other automatically tortfeasor tort- feasors, of a concurrent although the release tortfeasors. concurrent did not release other feasor Bank, Isle App 68 Mich Presque Witucke v See Scott, 132 McBride (1976); 907 599; 243 NW2d v Henry In MacDonald 176; 93 243 NW Weeks, 626, 628-629; 256 & Hornblower (1934), explained: 572 this Court NW subject joint has been The law of tortfeasors much con- reasoning and many refinements of principle is underlying . . . The opinion. flict of that indivisible and none. cause of action single and the the tort is all feasors exists . . . destroyed as to one of action is the cause [W]hen others, though it

tortfeasor, even it falls as to of the others. attempted preserve So, is released one tortfeasor where damage, others are part payment of on discharged expressly re- although contract (Alas, 1977), Sweat, Airlines, Compare 568 P2d Alaska Inc v (Mo, Center, Mercy 713 SW2d Medical and Aherron v St John’s (CA 1963), 8, States, 1986), Sea F2d 880 United with Bacon v (D SC, Co, Distributing Supp 340 273 F v Coastal Air Line R Co board 191; Co, App 1967), Ill 3d 488 NE2d Const Bristow v Griffitts (1972), Meier, 420; (1986), Dickey 197 NW2d 385 188 Neb v Estate of (1960), Mullins, Parrill, Barsh v 351 P2d 194 186 Kan Jacobson v Crauthers, (Okla, 1959), Pipeline vCo and Mid-Continent 338 P2d 845 1954). (Okla, 267 P2d 568 PA statute was amended The 1941 contribution 318. 1974 PA Lansing by Opinion Griffin, J. of right

serves action them. [Citations omitted.]

However, which gov- common-law rules once rights erned among joint contribution and concur- rent should not tortfeasors be confused with the rooted common-law of deeply doctrine release an agent discharges principal vicarious The rationale for latter liability. rule is en- on tirely grounded different and is nature very of the principal’s liability. derivative

Vicarious is liability indirect im- responsibility posed by operation of law. In modern jurispru- dence, liability justified vicarious is as "a rule of policy, a allocation a risk.” & deliberate Prosser (5th Keeton, ed), 69, p Torts 500. As explained 92, Dessauer Hosp, v Memorial General 96 NM (1981), P2d "Vicarious is on a relationship based parties, irrespective between participation, omission, by either liable, act one vicariously it under which has been determined as a policy person matter of that one should be liable for the act of the other. Its true basis is largely public one of or social policy under which has that, fault, irrespective been determined a party respond should [Citing be held for the acts of another.” Melin, 369, 375-376; Nadeau v 260 Minn (1961).] 110 NW2d 29 " stated, fact, More bluntly hard the reason '[i]n is the employers’ damages are ” Keeton, taken deep pocket.’ from a Prosser & supra, p quoting Vicarious Baty, Liability (1916), p principal, having 154. The committed no act, tortious is as that is "tortfeasor” term commonly According defined. to Black’s Dic- Law (5th ed), a tionary wrong-doer; tortfeasor "a is one who commits or of a guilty tort.” 430 Mich Griffin, J. con- Although Michigan’s enactment scope statute narrowed the of concomi- tribution and re- applicable tant doctrines contribution Geib, supra, lease, this Court made clear abrogate did not the common-law rule statute agent discharges principal. that release of an in Geib was wrongdo- The defendant of no guilty However, he liable as the ing. vicariously negligently owner of an automobile which was trial, operated plaintiff another.10 Prior set- negligent tled with and released the driver. How- ever, discharge its terms the did not owner-defendant. Geib moved for summary judg- defendant ground negligent

ment on the that release of the operated Opposing driver to release the owner. the motion, to 2 of the 1941 Michi- plaintiff pointed gan contribution which in essence provided statute that a claimant’s release of one tortfeasor joint impair right would not the claimant’s of action against other not re- joint tortfeasors who were leased.11 the

Holding inapplicable statute because the the Geib tortfeasor, joint defendant was not a Court, opinion,12 in a unanimous reasoned that

101929 CL 4648.

11 provided Section 2 of 1941 PA 303 as follows: having persons It all or of shall be lawful for claim cause joint compound, action or more tort-feasors to settle with, discharge, any prior judg- at time to rendition of a action, any everyone joint ment tort-feasors for such sum as such in said or more of said fit, person may deem without right person persons impairing the of such or to demand and said claim or cause of action from the collect the balance of tort-feasors, against person, remaining joint such whom action, persons, has such claim or cause of and not so released. Geib, opinion supra, The decision has been criticized. See Beres, 318, App 327-329; Judge in Duncan v Levin (1968). NW2d Lansing Hospital v Griffin, act; of no guilty tortious he did not "[defendant in the participate tort; commission of the and his operation arises only by law.” The compared Court the vicarious liability of the auto- mobile owner "with that of a surety the hon- of an esty employee, whose obligation differs from that of surety.” his 320 Mich 321.

A development brief review of Michigan’s contribution statute will demonstrate Legislature focused on other concerns and evinced no intention abrogate common-law rule agent release of an discharges principal enacted, it liability. vicarious After was the 1941 First, statute was criticized for several reasons. statute allowed contribution if a only "joint judg obtained, ment” allowing thereby plaintiff Second, favor joint one tortfeasor over others. made contribution available to the insurer one liable, jointly who was or severally differ thereby entiating unfairly between insured uninsured Third, persons. contribution under the statute did to concurrent apply only tortfeasors but "joint v Moyses tortfeasors.” See discussion Co, Spartan Paving Asphalt 383 Mich 327- McDermott, Morgan (1970); NW2d 333, 371-372; 169 NW2d 897 In 1961 Legislature enacted a virtual redraft the 1941 part of act as of the Revised Judicature Act. 1961 changes PA 236. few made dealt criticism, principally "joint judgment” with the Morgan, supra, pp 374-375, and the accommoda- tion of court rule applicable revisions to third- Moyses, supra, p 329. practice. However, party as Black, Court, Moyses writing Justice for the saw it, Section 2925 1961 PA is a near-verbatim [of (CL 1948, 691.561 et

redraft of PA No 303 Griffin, in the interval that the act of seq.). It turned out supposedly pur- of its considerably short 1941 was aim; providing the substantive poseful among jointly or between right of contribution not wilful tortfeasors. severally or liable but deficient, having correspondingly 2925 is Section right only extent of the desired to the provided contribution between feasors,” among litigant "joint or tort- upon plain- only and that the nod of judge. circuit possibly tiff or of the whimsical [383 Mich 327.] Moyses In this Court considered whether negligence in a action was entitled defendant from another tortfeasor whose liabil- contribution several, joint. to the but ity plaintiff fact the 1961 statute lim- Frustrated tortfeasors,” rights "joint ited contribution Moyses Court announced: have decided to overrule what left [W]e

Michigan’s common-law bar of contribution be- among "wrongdoers,” inten- or wilful or tween tional wrongdoers excepted. [383 334.] "wrongdoers,” In addition to its use of the word other provided guidance concerning the Court overruling of its action: scope tortfeasors, speaks specifically joint one When (a) wrongdoers the he does not refer liabilities legal positions, arise out of variant

whom concurrently applied legally different derelic- but severally responsible to tions of whom make them (b) plaintiff damages, or to the acts or independently rather omissions of several who act (c) concert, may than in to those who —under defendants, by present joined rules of court —be (see 1963, 206), respon- plaintiff and held GCR him damages on account of sible to sustained cooperating non-joint acts or causally their but Lansing Hospital by Opinion Geippin, J. one, omissions, say by negligence the the viola- another, dramshop by like tion of a statute the act express by and the breach still another of an or [Id., Empha- legally implied warranty. pp 331-332. original.] in sis Moyses

Thereafter, within years few decision, the ver- Legislature present enacted PA 318. sion of the contribution statute. As O’Dowd, supra, explained this Court in among The former limitation on contribution tortfeasors to the class of tortfeasors where a judgment per- was obtained two or more jointly thought preclude sons to contribution (i) separate, where the acts of the tortfeasors were independent, joint or concurrent rather than or in (ii) concert, or where the tortfeasors were in liable legal by tort on diiferent explicitly providing sors theories. revised act among for contribution tortfea- "severally” tort extended contribu- tion to these situations.

There can be no the Legislature doubt that intended its 1974 by expand right revision to However, of contribution. there is no basis in the legislative history for the contention that it also abrogate intended common-law doctrine release of agent discharges principal. an Rather, Legislature’s more evident purpose the criticisms of Moyses was to satisfy adopting as a mat- its holding, which extended contribution ter of common wrongdoers, law whether through- liable. its use "jointly” "severally” By "tortfeasor,” out statute rather than tortfeasor,” Legislature made its "joint evident purpose the then-ex- incorporate, abrogate, isting common law as fashioned Moyses.

Despite opportuni- the fact there were three so, Legislature expressed ties to do has never Griffin, change in law contended an intent to make the Legisla- Obviously, case. plaintiffs this a accomplished pur- such easily ture could have in as used defining the word "tortfeasor” pose by who, no though of guilty the act to include one the tort of another. is liable for wrong, vicariously Instead, in its 1961 and 1974 the chose Legislature of altogether to eliminate a definition versions included in the tortfeasor” which had been "joint 1941 act. is the importance to this discussion primary

Of principle fundamental derogation must be in of the common law

statutes strictly construed, . . . and will not be extended of by implication abrogate established rules .... . . . must be con- common law The statute harmony legisla- sensibly strued tive with Schultz, purpose. Snyder & Steele v [Rusinek Co, 502, 508; 309 NW2d Lumber (1981), See also reh den Co, 356 Mich Hack Investment Co v Concrete Wall 416; (1959).] NW2d containing language In a statute interpreting 2925d(a), the Illinois Court virtually identical Co, Const 140 Ill Appeals in Bristow v Grifiitts (1986), reached a con 3d 488 NE2d 332 App Noting clusion similar to ours. common "[t]he abrogated not to be deemed statute law is legislative it that was the clearly appears unless intent,” 193, id. at the court said: depends upon this case The resolution of

meaning "tortfeasors” as used of the word 2(c). is plaintiffs section The maintain word persons phrase "one or more synonymous with A arising injury.” of the same liable in tort tortfeasor has also been defined one out "wrong-doer; as a (Black’s of a tort.” guilty commits or is who Lansing Hospital Griffin, J. ed, Dictionary 1979].) Law Under [5th liability, employer doctrine vicarious an is held party liable to a third when employer even is free from all fault. justified The doctrine is as a employer, deliberate allocation of risk. The engaged having seeking it, profit business and negli better able to foresee harm caused gence his employees and to insure (Prosser Keeton, than innocent party. third & 69, ed, Thus, Torts sec. at 499-501 1984].) [5th employer is held as a policy, matter of but wrongdoer' he is The liability of the master and servant for the acts the servant is deemed that of one tortfeasor and is a consolidated or (Towns [1978], unified one. 2d v Yellow Cab Co 73 Ill 1221.) 113, 124; master, 382 NE2d therefore, would "any not be of the other tortfea [Id., pp sors.” 193-194.] We are convinced that our interpretation of harmonizes with other provisions of §2925d the contribution act.13 example, For provides: 2925b § Except law, as provided otherwise in deter- mining pro the rata shares of in tortfeasors the liability entire as only between themselves affecting rights

without of injured party to joint a judgment: and several

(a) degrees Their relative of fault be shall con- sidered. (b) equity If requires, liability collective of group

some as a shall single constitute a share._ 13 principal despite Some courts have to concluded that hold a agent’s goal his act, i.e., release would a frustrate second of the contribution early and final settlement of claims. Because the act preserves right 2925a(7), indemnity, argued of see it § is that such actually spawns litigation circuity a result and leads to of action. See 547, 552, possibility indemnity 24 ALR4th 567. The of actions has recognized Lawson, 653, been at least in Craven v 534 SW2d (Tenn, 1976); Corp, 152, App Ritter v Technicolor 27 Cal 3d Rptr (1972); Swanigan Co, 179, Cal State Farm v Ins Wis 2d 201-203; (1980); Co, 299 NW2d 234 Cleave Van v Gamboni Const 524, 528-529; Nev 706 P2d 845 430 Opinion by Griffin,

(c) applicable to contribu- Principles equity of [Emphasis supplied.] generally apply. shall tion 2 of the Uni- The Comment Commissioners’ Act, 12 ULA Among Tortfeasors form Contribution statute 87, Michigan this upon part which based, a the vicarious indicates that of a tort- is subsumed principal/employer agent/employee: feasor positive terms resolves several

This section policy. questions difficult

Second, equity rule which invokes including the common lia- requires liability, class relationships, to be bility arising from vicarious single For treated share. instance wrong of of a and servant master single be treated as servant should fairness examples those involv- share. are situations Other ing of an unincor- property, members co-owners association, engaged joint in a enter- porated those prise the like .... respect with its own

Taking a similar view statute, Horejsi another court contribution 1984) (ND, has Anderson, 353 NW2d stated: negligence” attributable "percentage of the the entire

the of servant constitutes conduct to "single liability jointly of attributable share” Thus, plaintiff the the and servant. when master right gives up to re- servant he his releases the servant, cover, damages master or from either the negligence. Because this by the servant’s caused represents "single the negligence of percentage Lansing Hospital Griffin, J. liability liability share” of covered the common servant, master and the master is necessar- ily liability from vicarious the re- released for [Emphasis supplied.] leased servant’s misconduct. Comment, See also 43 Boston LU R context, A, B, and C Put if in another are sued is guilty negligence because each of which resulted plaintiff, to a injury pro-rata their shares the common be liability are to under determined the regard contribution statute without to whether A’s not a principal, wrongdoer, is also as a joined A, fourth defendant. As an agent, between and his principal, tortfeasor, there is one only and they represent one only share the common liability.

Section 2925d of the contribution act which is plaintiff invoked the in this case makes clear that a release or a covenant not A given to sue (B discharge would not "other the tortfeasors” C) However, from liability. says statute no more, leaving in place deep-rooted common-law that of A principle discharge would his principal. Any illogical other would result be unjust agent because release of removes only imputing basis principal. Accordingly, we conclude the release by plaintiffs Nurse Palmer and Dr. Gilmore had effect of legal discharging hospital vicarious for their acts or omissions.

III argument we consider the re- Finally, leases executed favor Nurse and Dr. Palmer be Gilmore should reformed as covenants not 473 430 Mich 492 Griffin, out, pointed recognize, plaintiffs have sue.14 We given a covenant not to sue to at common law that Boucher v his discharge principal. did not agent an Thomsen, 312, 866 321-322; 328 43 NW2d Mich (1950). However, to reform in this case we decline reasons. for several the releases utmost cau- required proceed are with Courts to reform written exercising jurisdiction in tion Hutton, v 79; 98 25 L Ed Ivinson US instruments. (1878), 2d, Am Jur Reformation 66 see also 66 Instruments, 3, plaintiffs’ 528. In this p case § is made for the first time for reformation request Jacobs, 222, 233; v Napier See 429 Mich on appeal. Ed, v Bd of Durant State (1987); 862 414 NW2d (1985). 364, 396; 381 662 424 Mich NW2d Gilmore, Dr. note Nurse Palmer We pro- in directly involved the settlement who were releases, longer parties are no cess and Automobile action. See Citizens’ Mutual present 434, 439-440; 64 Downing, Ins Co v (1954). 2d, 66 Am Jur Reformation NW2d Instruments, 100, 631-632. pp § stated, proof "the burden of is

As this Court has seeking of a written instru one reformation upon Fisher, River Bank v 558, Mich Rouge ment.” (1964). Absent mutual mis 562; 127 NW2d 426 a significance a covenant to sue has been The use and not explained as follows: distinguished not to from a release A covenant sue is to be relinquishment present of the it is not a abandonment that right agreement merely not to sue on an or claim but an extinguish existing action. As It cause of claim. does parties agreement, result is the to the the final

between primarily in the effect as cases. The difference is same both parties, mainly on in the and is based the fact to third discharge, an immediate release or case of a there is merely agreement not to in the other there is an case whereas 2d, Release, 2, p prosecute CJS, Release, 679. See also § a suit. Am Jur [66 1-3, 318, pp PA 2925d refers 629-630. §§ and covenants not to sue.] both releases Lansing Hospital v Separate Opinion by Boyle, J. coupled fraud, take or unilateral mistake with evidence, convincing shown clear this Court has declined reform written instruments. Morris, Windham 121 NW2d Finally, unilateral misunderstanding legal of effect an instrument is not a sufficient Nordella, for reformation. Wiersma v ground 260 Corp, Malone v SCM 574; (1932); Mich 245 520 NW (1975). App 11; Mich In NW2d the showing of a absence that the releases were not what was intended by parties, the the documents Utley, See Denton v will be not rewritten. NW2d

IV we Accordingly, would affirm the of decision the Court Appeals except of respect. one Instead of remanding trial, for a new we would remand to the court circuit for entry judgment in favor of hospital. the C.J., J.,

Riley, Brickley, concurred with Griffin, J. I with

Boyle, agree the conclusion that the Court Appeals was in remanding error this case for new trial. that Assuming the document release, was a I agree would also with Justice 600.2925d; that conclusion MCL MSA Griffin’s 27A.2925(4) does not abrogate the common-law rule that the agent release the of a vicariously liable principle operates discharge principal. to the I have written separately despite because close record, examination of the trial court I am unable to a firm reach conclusion the that trial court held question am, that the document was a I release. 430 Mich Separate Opinion Boyle, J. therefore, persuaded not this an presents case for appropriate record resolution substan- In this judgment, tive issue. matter should be my trial court for a remanded the determination whether document was intended to release principal merely was intended as cove- agents. nant not to sue certain hospital’s

The trial court denied the defendant and stated that statute did motion strike court, time, not trial at same apply. The acknowledged the common-law rule that However, agent principal. an bars suit have although logically should followed barred, superior claim respondeat would be instructed, without that Lans- jury objection, ing could be found vicariously General of Gilmore and Palmer. The matter was acts verdict, and general submitted to the on a jury hospital did move for a directed verdict or notwithstanding the verdict on the vicar- judgment liability theory. ious to the question par- facts raise a as how

These trial court’s characteri- ties themselves viewed the that the possible zation of the document. It is held that that the court had parties understood hospital to release the and operated the document it to unnecessary felt that that the defense in instruction view the vicarious object to had the motion to strike been of the fact that for directed that the defendant moved made and It negligence. of independent the claims verdict on special to submit the the failure possible is that an strategy, trial over- was sound questions verdict trial, technical is protracted and sight in a if that judge’s trial conclusion by the explained form, the the verdict requested had not counsel It could be also should not intervene. trial judge explained however, facts are that these speculated, Lansing Hospital Separate Opinion Boyle, as to of the court part on the trial misgivings was a release.1 the document whether If, indeed, release the document was a rather sue, might to there be a than a covenant not negli- the of the admitting reason for evidence the Gilmore to facilitate gence of Palmer of understanding plaintiffs’ theory jury’s However, if this was independent negligence. admission, it illogical reason for seems only on the court instructed vicarious alternative for a presented grounds with jury in of plaintiffs. verdict favor colloquy Portions of the trial court’s with coun- at the time of on the motion to ruling sel resolving strike underscore this difficulty Thus, trial court threshold issue. observed: The case law seems indicate that’s the situa released], hospital tion me is but seems to [the great pains particular were in taken this instance law, attempt to avoid the obvious effect of the so difficult to they it’s fault Plaintiffs took when actions, pitfalls, care to avoid the their in preparing here, petition this and the court suggestion so I think that my first the one prefer adopt, proceed that I to trial let and then not, the Court determine whether or facts, fact, [sic], any independent there is acts negligence part on the of the other Defendants put that feasor, category joint will them tort master-servant, opposed to a and if there are, that we jury separate submit that to the on a special they specifically verdict find re garding they apply these Defendants as to the acts, acts, part or lack on the of Jana Palmer. Okay. 1These observations are not intended as a reflection on the trial parties. perspective appellate court or counsel for the The of an court is, definition, single precise on a

focused issue more than the rich shifting range lengthy and of issues dealt with in a trial. Separate Boyle, J. arguments parties’ this have assumed The court held that the trial release or was a document is consid- the document Whether it to be a release. is, judgment, construction its or a ered a contract Bradway Miller, law, course, a matter of Mich NW 648; 167 opinion upshot this is that both of all of opinion in this reversal for

for affirmance it of a release when on the effect have focused case is is a release there means clear whether no this case.

Turning itself, it clear that the document used, it is not clear but "release” was the word what sense instance, the docu- For it was used. plaintiffs gave Gilmore ment and Palmer ing indicates indemnity agreement” hold- a "release any harmless individual defendants these potential in- A future action cause of action. upon theory premised demnity only could be joint liability, or several since vicarious right give to contribution. to a rise instead would Also, tion, mo- at the time of trial court noted as the away in the to take seems the document way granted by sentence whatever second in the first sentence. "release” parties also undermine The discussions was intended that the document firm conclusion hospital. Thus, hear- at the settlement release the questioned ing, plaintiffs’ his client counsel regard as follows: to the document And, further, you relying are Q. [Mr. Kritselis] dismissing anybody are not upon the fact that we Capital Anesthe- only, than Dr. Gilmore else other siologists only, and that all Mahoney only, Dr. Dr. Hospital Lansing General claims Gilroy various theo- under the Dr. Sciamanna that those claims pleadings, in the

ries set forth that? you understand continue. Do will Lansing Opinion Levin, J. A. Yes. [Mr. Schneider]

This lends to Mr. Kritselis’ credibility statement own, postverdict unsworn statement at a motion preserve that he intended the consent judgment hospital. his vicarious theories These statements are also consistent with the fact that not hospital did contribute to the settle- ment underlying amounts the "releases.” an instrument is a or a cove- [W]hether sue, designation

nant not to of the instrument as "release” or "covenant not to sue” is immate- rial. To determine the nature of the document it is terms, necessary amount used, to look to its the words paid, agreement, the substance of the parties. intention of the ALR2d 420. [73 Torts, 2d, 885, See also Restatement comment c.] view, In my the correct resolution of this case requires a definite determination as to whether was, fact, document a release. To do this properly, the matter should be remanded court, trial since it quite that an likely ambigu- will ity be found and that parol evidence will be required.

I would reverse the determination of the Court of Appeals grant trial,2 a new vacate the judg court, ment of the trial and remand for proceed ings consistent with opinion. this J. At

Levin, law, common where two or more tortfeasors contributed to a plaintiffs injury, settlement reflected in a document containing lan- guage of release of the settling tortfeasor necessar- inexplicably, Appeals Somewhat the Court of remanded for a new trial, despite holding improp the issue of vicarious erly jury despite holding submitted to the its there was support plaintiffs’ insufficient evidence to independent negligence. theory alternative Mich Levin, And ordinar- all other tortfeasors.1 discharged ily contribution from not obtain tortfeasor could ily, another tortfeasor.2 changed in most rule has been common-law by subsequent common- statute

jurisdictions that a provided It is generally law decision. now tortfeasor, although reflected settlement with one release, does language in a containing document a tortfeasor And discharge other tortfeasors. may of the liability more than his who share pays tort- by other generally now enforce contribution feasors.3 presented is whether common- question rule, a re-

law that a settlement with tortfeasor language of re- containing flected in a document tortfeasors, con- discharges other necessarily lease person is an tinues released govern where person vicari- agent or of another who is employee of under ously liable doctrine common-law respondeat employee for torts superior that a release of the agent, or with the result or agent discharges employee employer or although reserves claims principal are against persons subject other who wrongful alleged for death. injury v Geib Slater, 316; 31 65 In 320 Mich NW2d (1948), PA a 1941 this Court considered section 303,4 the 1939 provision on a Uniform modeled Act,5 providing Among Tortfeasors Contribution with person may “joint that an settle a injured Slater, Keeton, (5th ed), 49, p 332. See Geib v § Prosser & Torts (1948). 316; 31 NW2d 65 (5th Moyses Keeton, ed), 50, p v See 336. § Prosser & Torts Paving Co, 314, Spartan Asphalt 334; 174 NW2d 797 (5th 49, 50, Keeton, ed), 332, p 336; p 12 ULA & Torts § § Prosser Torts, 2d, p 333. Restatement 691.561, part pertinent in 1970 CL 1948 CL carried forward 600.2925.

5 12 ULA 57. Theophelis Lansing Hospital Levin, J. yet against tortfeasor” and an action maintain joint The Court held another that this tortfeasor. provision applicable remedial was in a case where the settlement with tortfeasor tortfeasor was torts the defendant whose vicari- ously liable because their liabilities were several joint, they "joint and not and thus were not tort- feasors.” opinion

The lead would hold that the defendant hospital vicariously to be liable for the. —found physician plaintiff torts of a and nurse with whom settlement, entered into a reflected in a containing language document of release —is not a meaning tortfeasor within the of 1974 PA 318,6 substituting language of Uniform Contri- Among bution Act Tortfeasors for the 1941 act. any per- We would hold that a settlement with subject liability, including person son to tort vicariously another, liable for the torts reflected containing language in a document either of re- language covenanting sue, lease or not to does not agreed —unless otherwise the document —dis- charge any person subject other tort regard plaintiff’s theory without liability to whether the person the other is that he is vicariously liable.

i operative The effect of the common-law rule concerning given the effect to be a settlement with by judicial a tortfeasor had been ameliorated deci- legislation sion before the enactment of the 1941 incorporating provisions of the 1939 Uniform Act legislation incorporating provisions and the 1974 the of Uniform Act._ 27A.2925(1)-27A.2925(4). 600.2925a-600.2925d; 6 MCL MSA Section by

2925b has been amended 1982 PA 147 and 1986 PA 178. 430 by Levin, J. A Transport City v 1935, Court Cook In this (1935), 91, ob- 92; 261 NW 272 Mich Corp, authority weight of great served substituting avoided rule could be common-law release. The Court to sue for a not a covenant between distinction acknowledged "[t]he finespun to sue is not agreement and an However, whole law overtechnical. and seems character.” is of like tortfeasors joint "[T]he the dis- draws overwhelming weight authority agreement the effect of an and denies tinction tortfeasors.” joint a release of other to sue one as it in Cook that would Court concluded This not because weight authority,” "follow distinction, exer- except as a mental "the approved id., cise,” policy reasons: p but not to sue agreement of an [Bjecause such effect peace and party buy his way offers a for a a doubtful opportunity compromise an allows forego requiring injured party an claim without against known compensation full right of the wrongdoers. tortfeasor a settlement with one longer No need tortfeasors. discharge all other necessarily rule could be of the common-law effect operative (a cove- paper substituting piece one avoided release).7 sue) (a for another nant not to B left of the think that what was would One Co, 662; Similarly & Tool 274 Mich v Nat’l Machine see Slinkard 387; Corp, (1936); Republic 294 Mich Co, v Steel 265 NW 494 Garstka 626; (1940); Casualty 309 Mich Lincoln Mutual Kallas v NW Schuknecht, (1944); NW2d 16 NW2d 99 50 Larabell Slater, supra. (1944); Geib v Lansing by Levin, J.

common-law rule would now by history. be not, Restatement now provides that a release does law, as a matter of discharge common others liable for the same agreed harm unless it will Court, discharge so them.8 This having common- in changed law decision Cook operative effect rule, could, of the common-law by common-law decision, Court,9 as has the United Supreme States complete the unfinished work by adopting revision of the common-law rule as set forth in the Torts, Restatement 2d.

This Court’s construction of the 1941 in act Geib is seen the lead opinion as standing the way. There the Court held that a settlement with a negligent driver of an automobile reflected in a release necessarily discharged the owner of the automobile because were they not "joint tortfea- sors” within meaning legislation the 1941 providing person that a having a claim against "2 joint more tort-feasors” settle may with and discharge one or more of them without impairing right person of such to maintain an action the remaining joint tortfeasors.

Although this Court had frequently used the term "joint tortfeasor” persons describe sever- ally liable in tort to the injured plaintiff,10 the Torts, 2d, 885(1), p 333; part n, 504, post, p Restatement see n 16. 9See n 17. 10See, e.g., City Transport Corp, 95, supra, p Cook v where this bus, passenger Court apparently against held in an action on a automobile, the driver of another that a covenant not to sue the operator owner or described, of the bus did not release the other driver and preceding as set forth the text n the owner and operator tortfeasors,” "joint of the bus and the other driver as dissenting opinion where the said reason for this rule is that all “[t]he joint jointly severally (Emphasis supplied.) tortfeasors are liable.” Beres, 318, 326, App See also cases collected Duncan v n 15; 166 NW2d 678 (see jurisdictions accepted Courts in jargon e.g., other the common 430 Mich Opinion by Levin, legislation as in Geib construed the 1941 Court in con- acting to applicable only effect tortfeasors plain- those liable severally and not to cert tiff.

c Co, Paving Spartan Asphalt v 383 Moyses In (1970), 797 this Court 314, 334; NW2d of the term "joint Geib’s construction considered for context an action contribu tortfeasor” in the pertinent part, question tion. In whether by could be maintained an action for contribution sever against tortfeasor another severally liable of the 1941 tortfeasor under the section ally liable Act12 providing on the Uniform act modeled among "joint tortfeasors.” for contribution held, Moyses as a matter of com- The Court the Geib construction would law, no mon Moyses, for In longer bar an action contribution. sought the owner of an contribution automobile allegedly of an defective manufacturer of the 1941 history tire. Court reviewed the legislative efforts to rewrite com- subsequent and right (by providing mon-law doctrine a substantive among by tortfeasors and joint of contribution discharge settlement one permitting rights impairing more of them without others) of those legislative and Geib’s construction efforts, "to left of decided overrule what Michigan’s of contribution be- common-law bar 16) lawyers judges "joint who the term tortfeasor” n used liable, severally jointly as well as and held describe those legislation applicable Act was based on 1939 Uniform remedial severally Raparot, jointly as liable tortfeasors. See Smith v well as 193, 195; (1967); Draper, 95 RI Holve v Idaho 225 A2d 505 P2d 4. See n

12 12ULA 57. Lansing Hospital Levin, J. among 'wrongdoers,’ tween or wilful or intentional wrongdoers excepted.” super-

The Court thus common-law decision seded, ing contribution, as to actions for limit- Geib’s "joint

construction of term tortfeasor.” Henceforth, an action contribution could be severally maintained one liable tortfeasor against another. opinion contended, nevertheless, It is in the lead except provided legislation, that, in the 1974 analysis common-law doctrine and the Geib still question control where is whether the release severally of one tortfeasor releases other severally liable tortfeasors.

ii promulgated The first Torts, Restatement of in discharged 1932, stated that a release all others harm, liable for the same in unless —as the instant parties agree case—"the to the release that discharge release shall not the others.”13 It was further that stated a "covenant not to sue one discharge any tortfeasor for a harm does not other liable for the harm.”14

By commentary 1981, it in was observed to "arbitrary Torts, 2d, the Restatement that distinction” between a release and covenant not "frequently to and had sue resulted in the unintended unpaid-for discharge of one of the tortfeasors. This earlier rule is not consistent with the modern point American of view.”15 Torts, 2d,

The rule in stated the Restatement "[a] that ity of valid release one tortfeasor from liabil- given by injured person, harm, for a does discharge harm, not others liable the same Torts, 2d, 885, p 4 Restatement 460. § 1 4 Id. b, Torts, 2d, p 4 Restatement comment 334. 430 by Levin, them.”16 discharge that agreed unless it is will it did case, provided the release In the instant may or entities who persons other "any not release wrongful death.” alleged in for the liable tort be Supreme Court has held The United States Torts, 2d, 885(1),p 333. § 4 Restatement regarding Torts cove- first The rule stated in the Restatement Torts, 885(2). 2d, in § not to sue restated Restatement nants comment states: independent present, persons tortious At whose c. Rationale. 879) (see in most to a tort are cases conduct contributes tortfeasors, regarded joint distinction them as without between producing cooperate Like- a tortious result. those who today given for are effective if consideration wise releases regarded although as con- not seal and are therefore under Furthermore, give grants. tendency is to rather tracts effect to tion is executed. possible than parties than to the to a transaction rather intent regard controlling as the formalities with which the transac- developed it is The law has now so that parties expressed carry the intent of the out Thus, given. if it is the document the release is the understanding which parties payment tortfeasor that the compensation injury full for the suffered and therefore bewill claim, longer is no an enforceable full satisfaction of the there against any tortfeasor. claim clearly of rule. A covenant not to sue d. Limits and effect discharge it is intended indicates liability its form that not hand, jointly tortfeasors liable. On other other given to them is form of a release one of document normally tort and harm. fests the the usual discharge all for the as intended to claims construed discharge operates same others also for the If, however, language mani- there is in the release that preserve rights his that the intended to releasor others, given to this manifestation. effect is rights against other that the It is essential reservation require- expressed in the itself. Such a tortfeasors be ment releases are advice. The proved evidence document unwary, might easily prove boobytrap for the since signed legal commonly by individuals without may agreement as to of the be the effect release evidence; objection parol by external fact second tortfeasor who rule met that the question party instrument. is not a to the raises fraud as the result a basic mistake or of A release obtained may the rescission the claim rescinded and after or duress be under all the circumstances the tortfeasors revives. On agreement, may Restate- of an see there be rescission

which Draft). (Tent. 2d, Contracts, ment, 301-319 §§ Lansing Hospital Levin, that clearly a release intends —as did the release in the instant case —to rights save the releasor’s against another person to tort subject does not automatically rights. surrender these Court said that the "ancient common-law rule” "grounded upon formalistic doctrine that a extinguished the cause of action.”17 The Court declared: adopt To the ancient common-law rule would settlements, partial

frustrate such promote litigation, Restatement rule plaintiffs’ thereby adoption while of the First trap unwary would create a for straightforward attorneys. The rule is party that a whom this is the only parties releases those other he intends release. Our conclusion that appropriate giving rule for effect to under releases laws antitrust is further but tressed the Restatement’s abandonment in a requiring express tentative draft of the rule vation of reser rights them, in order to save and its adhere.[18] adoption of the rule to which we I see no reason perpetuate "the ancient com- rule,”19 mon-law piece where the of paper reflect- ing the is in settlement the form of a release sue, rather than the form of a covenant not to "a trap unwary plaintiffs’ attorneys”20 and their unfortunate clients.

III act, The 1974 substituting the 1955 Act Uniform act, RJA, for the 1941 enacted 2925d concerning 321, 343; Research, Corp Inc, Zenith Radio 401 US v Hazeltine 795; (1971); Mfg Co, CtS 28 L Ed 2d 77 Top Aro Inc v Convertible 1526; Co, Inc, Replacement 377 US 84 S Ct 12 L 2d 457 Ed 18 Zenith, supra, p n 17 347. 19 Id., p 343.

20 Id., p 347. 430 Levin, J. the of tortfeasor on of release one the effect a of another: liability to not or a covenant not sue or When given good faith judgment is

to enforce iú persons liable tort for injury the more same or wrongful the same death: or (a) tort any other discharge It not does injury wrongful for feasors liability provide.[21] [Emphasis death unless its terms supplied.] so RJA, as lead would read 2925d opinion The § Geib as well generally severally superseding —for apply tortfeasors —but a different liable jointly not him- non-settling defendant is rule where the to vicarious "wrongdoer” subject is self wrongdoing for of another.

A not proposed distinction is The basis of in Boucher v Thom Court considered policy. (1950), sen, 312, 316; 43 NW2d accept, policy arguments advanced declined excepting vicariously instant case for rule tortfeasor from the that another defendants if injured person set- relieved of 21RJA, 2925d continues: § (b) other to the It reduces the claim tort-feasors any stipulated by release or amount the covenant

extent or whichever it, paid to the extent of the amount the consideration greater. amount is the (c) given discharges it is from all It the tort-feasor to whom any liability for other tortfeasor. [MCL contribution 600.2925d; 27A.2925(4).] MSA adopted in this Acts were the 1939 nor the Uniform Neither however, is, additions and deletions. There state without substantive no substantive difference RJA, correspond- between 2925d ing language of Uniform Act. the 1955 Lansing Opinion by Levin, J. ties, sue, covenant not to with another tortfea- policy terms, sor. In there is no difference between a covenant not to sue and a release. person injured Boucher, Geib,

In as in in an automobile accident had settled with the driver of employer the automobile and automobile had been left for with whom the his

servicing sought to maintain an action the owner of the only automobile.22 The factual difference between Geib and Boucher was that the settlement was reflected in a release in Geib and a covenant not to sue in Boucher.

This Court observed in Boucher that the owner guilty negli- of the automobile was not himself gence "solely by and that his arose virtue Rejecting policy arguments of the statute.”23 simi- lar to those advanced in the instant case that the recovery would, owner against if should be obtained right him, have "the to insist on reim- [indemnity] bursement defendants, the other surety,”24 that in effect his status is that of a defending and that "the entire burden of action should him,”25 not be cast on this Court exception declined to carve out an for the vicari- ously relieving automobile, owner of him statutory liability of his on the basis that injured person had settled with the driver of employer. automobile and his policy arguments

The that have been advanced express right There was an reservation of the to sue the owner of automobile, Boucher, supra, p 315. 23Boucher, supra, p 316. 24Id., p 317. Geib, supra, p In the Court had advanced much the same argument years rejected which two and one-half later in Boucher. Geib, finding discharged In owner, the release of the driver liability "may compared the Court said that the owner’s be surety honesty employee, obligation

with that of a for the of an whose surety.” differs from that of his 25Boucher, supra, p 317. Opinion by Levin, distinction, in support of the proposed excepting liable defendant from the vicariously operative RJA, 2925d, effect were urged upon thus rejected by this Court in Boucher just two and a half after years Geib decided.

B The basis of proposed distinction is the rule of construction in derogation statutes common law must be construed and not strictly by implication. extended proposed distinction finds no support Torts,

common law stated the Restatement 2d.26

In both Geib and Boucher the vicarious liability subjecting arose virtue the statute the owner of an negligent automobile driving person of a who drives the automobile with permission.27 the owner’s case,

In liability the instant the vicarious arises pursuant if at all to the common-law doctrine of an respondeat superior subjecting employer/princi- pal employee/agent. for the acts of his liability equated liability

Geib the vicarious that arises that arises statute with the vicarious respon- doctrine of by virtue common-law the defendant superior. deat The Court said of owner of the automobile: upon the doc statutory liability is based [H]is respondeat superior. may compared It be

trine of honesty for the of an em surety that of a with obligation that of his ployee, surety[28] differs from whose 26See n 16. 257.401; MSA 9.2101. MCL 28 Geib, supra, p 321. Lansing Levin, J. opinion

The lead nevertheless draws a distinc- liability arising by tion between statute, vicarious Boucher, as in Geib and and vicarious arising opinion speaks at common law. The lead deeply "the rooted common-law doctrine that re- agent discharges principal lease an liability.”29 opinion vicarious The states that "this Court made clear in statute did not Geib, supra, ^[1941] abrogate the common-law rule that agent discharges principal.”30 release of an The opinion further states that there no basis legislative history incorporating of the 1974 act the 1955 Uniform Act for the contention that the Legislature abrogate "intended to the common-law agent discharges doctrine that release of an principal.”31 opinion primary "[o]f states that importance to this discussion is the fundamental principle derogation 'statutes of the com- strictly construed, mon law must be not be extended . . . and will by implication abrogate estab- ”32 lished . rules of common law . . .’ construction, There is to sure such a be rule just that, but it is rule of construction. The question Legislature ultimate is what did in- tend. language RJA, §

Neither the 2925d nor the analysis permits drawing in Geib33 a distinction vicariously between tortfeasors liable as a result of vicariously common-law doctrine and those 29Ante, p 483.

30Id., p 484.

31Id., p 487.

32Id., p 488. did Geib not hold that the owner of the was dis automobile liability charged apply from because the act was not intended to wrong person to a release of a tortfeasor vicariously for whose another was applicable liable. It held that the 1941 act not because tortfeasors,” liable, applied only "joint persons jointly it and that apply severally the act did not to a of a liable In tortfeasor. so holding distinguish vicariously the Court did not between tortfeasors 430 Mich by Levin, J. by RJA, § virtue of statute. 2925d should not be person superseding injured read as Geib where wrongdoer in factual with the actual settles situation presented in Geib—an owner of an auto- driving statutorily liable for the another mobile who was discharged held to have been from liabil- inapplicable ity by a release of the driver —but analogous situation, to in Geib as in the adverted opinion in the as a statement and relied on lead rule, of the common-law a master this Court of respondeat superior liable under the doctrine for the torts of his servant. Legisla- suppose

There is no reason sought provide one rule where the vicari- ture liability and another when arises statute ous by a document law: If one settles arises at common containing language person of release with a vicariously is liable tortfeasor tort another whose by discharged not statute, the other tortfeasor is liability, arises at if the vicarious from but discharged. tortfeasor the other law common Lawyers legislators conjure judges — —not such distinctions. draw applicable

Construing in both RJA, § 2925d as (emphasis implication” not "extend cases does (em- "Strictly supplied) construed,” RJA, §2925d. applies supplied) phasis in both RJA, § 2925d provides "a release that either RJA, § 2925d cases. or "persons or more to sue” two a covenant not discharge any the other "does tort” liable wrong- injury for the tort-feasors (Emphasis provide.” terms so unless its ful death vicariously those doctrine a result of common-law liable as by virtue of statute. requisite oneness Geib, not the that there was the Court found In finding that for a liabilities and driver’s the owner’s the bases of owner and that opinion declares joint lead tortfeasors. driver were liability” and constitute have a "common and driver the owner "only tortfeasor.” one Lansing 511 by Opinion Levin, J. "tortfeasor,” whole, as used a Read as supplied.) "persons means RJA, 2925d, for and is shorthand § the other tort- "any Construing in tort.” liable meaning all "per- (emphasis supplied) feasors” the strict distinction is in tort” without sons liable not construing "tort-feasor” does construction. So Carving out a extend implication. by term adverted to by for a situation exception narrow narrow, extend, not Geib is to analogy implication.” "by "strict” construction

c argues principal, The opinion lead "[t]he act, no is not a 'tortfea having committed tortious According sor’ as that term is defined. commonly (5th ed), to Black’s Law a tortfeasor Dictionary wrong-doer; 'a one who commits or is of a guilty tort.’,34 Legislature

The can be its own lexicographer.35 throughout The term "tortfeasor” is used act, incorporating the 1955 Uniform Act. If it does meaning not include within the of "tortfeasor” a person to tort subject vicariously for the (i) acts of another then a person liable vicariously may enforce contribution under the provisions (enacted act)36 RJA, (or 2925a the 1974 § Moyses, possibly even opinion as the lead would 34Ante, p 483. Sands, (4th ed), 45.01, Statutory p 2A Sutherland Construction § §45.14, 1; p (“Certainly legislature compelled by any is not

superior obey dictionary gram force to definitions or the rules 46.01, mar”); 74; 46.02, 46.05, p p 81; p 92; 46.07, 110; 47.07, p § § § § § 1971). Corbin, Contracts, p 572B, p (Supp, cf. 3 § right only of contribution exists in favor of a tort paid pro feasor who has more than his rata share of the 2925a(2). [RJA, Emphasis supplied.] common .... § accompanying

See ns 42 and 43 and text. 430 Mich Levin, it37) against restrict severally "wrongdo- (ii) er,”38 (also RJA, 2925b enacted act),39 for the providing determination pro-rata shares of contribution to be made by "tortfeasors,” does not apply person to a vicari- ously judgment liable where a is about to enter two or "wrongdoers” more and a person vicariously wrong liable for the of one of them. to the 1955 Uniform commentary Act ac-

companying language RJA, incorporated as states, however, 2925b that "the of a § master and servant wrong of the servant should in fairness be treated as a single share.”40 RJA, provided: 2925b §

In determining pro rata shares of tort-fea- sors in the entire liability:

(a) degrees Their relative of fault shall not be considered. (b) If equity requires, the collective group single

some as a shall constitute a share. (c) Principles equity applicable to contribu- generally tion apply. Emphasis shall PA 318. [1974 supplied.]__ 37Moyses overruled what was left of the common-law bar of "contri Id., among 'wrongdoers.’” p (Emphasis sup bution between or 334. 487-488) plied.) (ante, opinion pp vicariously The lead stresses that a person "wrongdoer.” accordingly argued liable the basis of that contribution between is not a It can be on analysis barring the common-law doctrine severally liable tortfeasors was not overruled in Moyses brought by person where action for contribution is a subjected And, liability. thus, vicariously to vicarious that the liable by analysis tortfeasor continues to be barred the Geib from maintain ing a common-law action for contribution. physician employed hospital. by Such as a staff 27A.2925(2). 600.2925b; 39 MCL MSA by adding 12 ULA 87. 1974 PA 318 was amended 1982 PA only affecting the words "as between themselves and without the to the rights introductory phrase, injured party joint judgment” of the to a and several (a). deleting the word "not” in subdivision additionally 178, adding

The act was amended 1986 PA the words law,” "Except provided by beginning as otherwise to the introductory phrase. Lansing Opinion by Levin, phrase

The word "some” in the "some as a "tortfeasors,” refers to group” clearly and means "some tortfeasors as a group.” As set forth in the "group” such a includes commentary, master and servant. Accordingly, "the collective liability e.g., [tortfeasors, master and servant,] some aas group single shall constitute share.” It thus appears the drafters of the Uniform Act intended that those vicariously would be subject language RJA, to the enacted as 2925b § and hence that they regarded be as tortfeasors within the meaning language. of that

The intention of the drafters of the 1955 Uni- form Act that a master be regarded as a "tortfea- sor” is further manifested language of the 1955 Uniform adopted Act the 1974 Legislature 2925a(7) RJA, and the accompanying commen- § 2925a(7) RJA, tary. provides: This impair right section does not any of indem nity existing under law. Where 1 tort-feasor another, entitled to indemnity right indemnity obligee the contribution, is for indemnity and not indemnity obligor and the is not entitled to obligee contribution from the any for portion of his indemnity obligation.[41] The commentary accompanying foregoing pro- vision states:

Where a master is vicariously liable for the tort servant, of his the servant possible has no claim to master; contribution from the and the master does not need contribution from the servant and will it, not seek since he is entitled to full indemnity. master, course, The of may recover contribution 600.2925a(7); 27A.2925(1)(7). MCL MSA 430 Levin, J. any against third he has no from tortfeasor whom [Emphasis supplied.][42] right indemnity. RJA,

Reading together with commentary 2925a(7), regarded it is clear that the drafters a § master, to vicarious under subject respondeat superior common-law doctrine of for servant, the tort of his as a "tortfeasor” within the meaning phrase "[wjhere of the 1 tort-feasor is from is indemnity entitled another.” master the tortfeasor "entitled and the indemnity,” to in- obliged servant is "another” tortfeasor demnify master.

The reference in the to the mas- commentary right ter’s from any "recover contribution third that the drafters of the 1955 tortfeasor” indicates Act master a regarded Uniform tortfeasor 2925a(2) RJA, meaning providing within § right of contribution exists only "[t]he paid favor of a tort-feasor who has more than his . . .”43 pro-rata share of the common . (Emphasis supplied.) language

In of the 1955 Uniform adopting Act, the 1974 an Legislature evidenced intention (master) an employer employee as well as an (servant) for purposes was a "tortfeasor” 2925a, RJA, concerning the enforcement of con- § RJA, 2925b, "wrongdoer,”44 tribution § 42 12ULA 66. accompanying See n text. 38. See ns (master) employer An is entitled to seek indemnification from an (servant). employee Indemnity excepted operative from the effect of RJA, 2925a: (7) impair any right indemnity This section does not under

existing indemnity law. Where 1 tort-feasor is entitled to another, right indemnity obligee indemnity is for contribution, obligor indemnity and the is not entitled to not contribution from the obligee indemnity any portion of his 600.2925a; obligation. 27A.2925(1).] MSA [MCL Lansing Levin, J. concerning pro-rata the determination shares of RJA, contribution, §2925d, concerning and to tort person subject effect of a release of one persons of other liability liability subject on the To "tortfeasor” is shorthand for repeat, thereto. means liable in tort.” "persons and

IV of its penultimate paragraph analysis In the departs deroga- somewhat from the opinion lead be read analysis may of the common-law tion RJA, as, effect, carving exception out an to 2925d, of a "re- concerning operative effect § sue,” release, to for a lease or a covenant not sue, not even covenant where possibly another settlement is with a tortfeasor whom liable, regard without whether is vicariously of the vicarious is a statute or the liability basis law. common

A RJA, argues lead on the basis of opinion 2925b, shares, concerning pro-rata that "the vi- § principal/employer of a is sub- carious agent/employee,”45 sumed a tortfeasor A, agent, princi- an and his and that between "[a]s tortfeasor, they repre- pal, only there is one liability.”46 one share of the common only sent added.) continues that opinion The lead (Emphasis RJA, 2925d, of a release on concerning the effect tortfeasors, "makes clear that of other A given not to sue release or a covenant (B and discharge the 'other tortfeasors’ would opinion The lead continues liability.” fromO 45Ante, p 490.

46Id., p 491. 430 Mich Levin, J. says leaving place more, the "statute no deep-rooted principle common-law that the release discharge principal. Any of A would result would be his other

illogical unjust and because re- agent only lease of the removes the basis for imputing liability principal.”47 to the arguments "only The that there is one share of liability” "[a]ny the common and that other result illogical unjust would be the liability because release of agent only imputing removes the basis for principal” apply equal

to the with force whether the basis of the vicarious is a law, statute or the common or whether the docu- reflecting ment the settlement is a release or a covenant not to sue. arguments repeat, were,

Those I considered and rejected by this Court in Boucher the context of sought interposed a covenant not to sue to be as a vicariously defense RJA, liable defendant. applies by § 2925d its terms to "a release or a opinion, covenant not to sue.” The lead in declar- ing policy grounds on RJA, § 2925d does not principle overrule the common-law that a agent discharges principal,48 of an casts a principle shadow on the common-law set forth in years Boucher, decided two and one-half after discharge Geib, that a covenant not to sue does not vicariously even a liable defendant.

B arguments "only that there is one share of liability” "illogical the common unjust” vicariously person to hold liable the wrongdoer after the release of the actual because "only imputing the release removes the basis for 47 Id. 48 Id., p 487. Lansing Opinion by Levin, J. person vicariously

liability” liable, re- to the are liability context, finements, in the vicarious of the the rationalizing arguments that were made development of the common-law doctrine that the necessarily released all release of one tortfeasor other tortfeasors. common-law doctrine as

The theories of the persons acting in concert in the case of enunciated joint that a release of one —true tortfeasors —were "necessarily other, there was in released since eyes one cause of action of the law but two, acts, the same which was sur- liable for apply to there was no reason While rendered.”49 wrongdoers, independent analysis it the same generally to of all tort- extended all releases was among reasons, for, "the cause of feasors other eyes nature in the of the action is its indivisible injury, unity and "the essential law,”50 party injured is entitled to but the fact that impossible compensation therefor, make it for one person injured one tortfeasor to settle with discharging the other.”51 The common-law without opinion in the lead was based on the rule relied on same damages theories, that "the recoverable or that "the the tort are entire and not severable” person injured to receive one com- is entitled but pensation for his injury.”52 result, and the the unintentional These theories person subject to tort of a otherwise liabil- Today, "justly ity, there can be were condemned.”53 any recovery amount recovered double because no must be de- from one tortfeasor settlement judgment anoth- rendered ducted from (5th Keeton, ed), 49, p 332. Prosser & Torts § 50 Id., p 333. 2d, Release, 37, p 716. 51 66Am Jur § 408, 2d, Servant, p 416. Am Jur Master and § (5th Keeton, ed), p 333. & Torts Prosser Opinion by Levin, J. er.54 Piecemeal collection from different defendants clearly permitted judgment.55 is cause of after The "one "indivisibility”

action,” of the cause of liability” arguments action, and "common can be by employing avoided a covenant not to sue to reflect the settlement.

c single, While the indivisible cause of action anal- ysis opinion might set forth in has, the lead be argued, more substance in the context of vicarious liability general than it had in the more context in concerning which the common-law doctrine developed, analysis effect of a release such argument rejected by the drafters of the 1955 grounds: policy injured persons Uniform Act on subject those to tort should be encour- aged partial person to enter into settlements and a subject by declining to tort not, should join in a claims, settlement of all be able to preclude partial settlements with tortfeasors will- ing buy peace. their

By incorporating in 1974 the 1955 Act, Uniform Legislature public policy enunciated as the grounds policy underlying this state the 1955 Uniform Act. This Court should not resurrect an repudiated analysis support outdated and of a public policy. result inconsistent with that analysis opinion Unless the of the lead is ex trap sue, tended to a covenant not to it is but a unwary lawyers and their unfortunate clients. To analysis extend to covenants not to sue would be to overrule Boucher.56 _ Corp, 597, 609, O’Dowd v General Motors n RJA, 2925d(b), supra.

NW2d See n 21 § Keeton, (5th ed), 49, p Prosser & Torts 333. opinion Legislature The lead assumes that was aware of Geib Lansing Hospital by Levin, J.

D analysis opinion The lead effect attrib- 1974 Legislature utes to the an intent to enact legislation "name and retain” for the benefit hospitals vicariously and other defendants liable at (and possibly common law as well for the benefit of statute) although defendants vicariously liable legislation such was enacted for the first time dramshop later the context of years liability57 and has not otherwise been enacted. that,

If it is on an thought policy grounds, injured person should not be able to enter into a partial wrongdoer settlement with for whose acts law, another liable at common then vicariously should, Boucher as a matter of common-law deci- sion, should, The injured person be overruled. decision, further common-law then no have longer option maintaining only against an action person liable; vicariously injured person required should be to maintain an action wrongdoer the actual as well as the vicariously person. liable person

The would then be barred from injured settling with the actual partially wrongdoer by release, or by covenant not to sue and the actual wrongdoer be to required would be named and throughout retained litigation. vicariously person empowered would then be to stymie wrongdoer a settlement the actual was will- nurses, ing Physicians to enter into. like those case, in the instant a practical would as matter be precluded attempting buy peace their failing signaled approval. expressly it in effect overrule Ante, pp applicable analysis 487-488. to Boucher: The same would be Legislature by failing expressly the overrule it in effect aware Boucher signaled approval. 436.22; MCL MSA 18.993. 430 Mich 473 Opinion Levin, J. claims as vicarious as well independent respecting hospital. of the the consent without negligence commencing or sure, might, hospital To be commence an action indicating will 2925a(7), RJA, for in provided as indemnification § physician the efforts of a to frustrate be able hospital. the consent of nurse to without settle hospital for a is, however, unusual It somewhat or nurse. physician from a indemnification seek v have con- jurisdictions from other Two cases to reach the same the 1955 Uniform Act strued did so on a opinion the lead but result as does different analysis.58 in Craven v Court of Tennessee Supreme

The 1976), Lawson, 653, (Tenn, con- 534 SW2d in the master/ apply act does not cluded that court relationships. The servant/agent principal, language conclusion on the rested that RJA, Act, Michigan adopted Uniform 2925a(7), the master/ in effect providing from the is entitled to indemnification principal The court said: servant/agent. exists, act right contribution Where no Thus, the section purport to intrude. does not discharges to sue

providing that a covenant does not from contribution and the covenantee feasor, application discharge has no any other tort master-servant, relationship, principal-agent to the solely derivative. where adopted court appellate An Illinois intermediate Co, in Bristow v Griffitts Const the same view ante, 489, p n 13. See Lansing Levin, J. (1986).59 Ill App 3d NE2d court declared that the language of the 1955 Uni- Act, RJA, form in Michigan 2925d, enacted as § designed encourage settlements. Because find we an action for indemnity remains viable in the employee in involving cases liability, vicarious gain nothing this case would in return for his $20,000 relinquishing right his to defend un- less the covenant extinguished not to sue also the employer’s We, therefore, liability. vicarious find a party whose is solely derivative is not "any of the meaning other tortfeasors” within the language RJA, Michigan enacted in as [the § 2925d].

The in fallacy the reasoning of the Tennessee and Illinois courts is that the drafters of the 1955 Uniform Act carefully excepted from operative the effect of that act the master/principal and ser- vant/agent as, relationships insofar only but such exception, it might thought be an that action for contribution might be maintained one the other.60 question

The whether a release or a covenant person sue a for whose tort another vicariously liable discharged person so vicari- ously liable had arisen and been decided Geib, courts,61 number of including this Court in the construction of the 1939 act or language mod- eled thereon before the 1955 act was drafted. There is no basis for supposing that the drafters of act, the 1955 who so carefully excepted62 the mas- Bristow, evidencing In both Craven and the document the settle language ment was a covenant not to Act enacted as The sue. of the 1955 Uniform RJA, speaks 2925d § both a release and a covenant not to sue accompanying without distinction. n 21 See text. if., accompanying See ns 36 text. 61See, e.g., Raparot, Holve, supra; supra, p Smith v 195. 2925a(7). RJA, By Opinion by Levin, J. servant/agent relationships ter/principal, provisions operative in Michi- enacted effect of concerning gan RJA, contribution, over- § 2925a as although they making, intended, a looked like master/principal, exception regarding the servant/ provisions drafting agent relationships en- concerning Michigan RJA, § 2925d acted effect on of a release sue covenant not liability of another. tort argument by the advanced Illinois interme appellate employee that

diate court would "gain nothing $20,000” in return for his unless extinguished employer’s liability is also vicarious expected ignores employee may not have that employer’s indemnity be that his claim for events, would extinguished. here all there is no In claim physician were or ex the nurse and misled pected their settlements with ex tinguished hospital’s indemnity. It for the claim hospital again for that it is unusual a relevant indemnity physician; the from a nurse or seek nurse and gained may

physician in have the instant case something Theo their settlements with phelis.

VI majority jurisdictions that The have consid- that release of ered this issue have determined a the vicariously servant/agent does not release master/principal.63 liable Airlines, Sweat, P2d 916

In Alaska Inc v (Alas, 1977), Supreme con- Court Alaska that a the 1955 Uniform Act and concluded strued 63Indeed, opinion, only lead Craven v of the authorities cited in the Co, (following Craven), supra, Lawson and Bristow v Griftitts Const opinion. and the result of the lead discuss the Uniform Act reach See, reasoning e.g., holding criticized. Van Craven’s Cleave v Gamboni Const have been Co, 706 P2d 845 Nev Lansing v Levin, J. an did not a agent

settlement with vicari Plaintiffs were ously principal. injured liable crash of an Chitina Air airplane operated by Service, Air independent an contractor Alaska into a not to sue64 They lines. entered covenant dismissing stipulation with Chitina prejudice. person brought claim with The injured Airlines, an action Alaska claimed which that subject vicarious Chitina’s act because Chitina auto "release matically released Alaska.”65

The Alaska adop court considered the Alaska Act, RJA, tion of the 1955 Uniform identical §2925d, the act to "two or more per refers that in tort” sons liable and "other tortfeasors” without "tortfeasors,” defining and concluded that the act was "intended to include vicariously those liable. It is not may technically be Airlines Alaska 'tort-feasor,’ but it is 'one of liable in more two ”66 Airlines, Alaska su injury.’ tort for the same pra, p 930. Court, in Van Cleave Supreme Nevada Co, Const 524, 530;

Gamboni Nev P2d (1985), Nevada, held that adopting the Act, abrogated Uniform the common-law rule that discharges release of an employee automatically Alaska vicariously Approving employer. Airlines view of Cra- criticizing opposing ven, court said: recognize expressed public

We policy distinguish The 1955 Uniform Act does not between a release and terms, applies By a covenant not to sue. its to See n 21 both. accompanying text. 65 Airlines, supra, p Alaska 923. Raparot, supra, court where the Court reached the same conclusion on the Smith v n 10 The relied on Supreme Rhode Island "joint basis of the definition of tort-feasor” in the 1939 Uniform Act. Holve, supra. Similarly see n 10 Levin, J. encourage established the Uniform Act is "to discourage rather than settlements.” 12 ULA 65. recognized One commentator has that the "release provisions of the 1955 Revised Act were intended settlements, promote to so a construction of the achieving objec- should be directed to statute Comment, Liability Torts—Vicarious tive.” —Cove- Agent Affecting nant Not to Sue Servant or Liability of Master of L Rev ^[188] (1976). [sic] Principal, Tenn ... If we determined that Uniform Act does apply [plaintiffs] against to claim the em- not discouraging prompt ployer, we would be resolu- actions, settlements, encouraging tions of such expressed public policy in contravention injured party probably Act. "An the Uniform reluctant to settle with the servant or would be extinguish agent, thereby his cause of action principal, the master or unless he could agent an settle with the servant or amount compensate him for his entire loss.” sufficient Id. at 198. Alu in Harris v

A court United States district (WD America, minum Co of 550 F Supp 1982) law), Va, (construing Virginia rejected also the view of Alaska Airlines Craven adopted appears plain language apply that "the act’s liable, as the act’s vicariously who is party persons or more coverage extends to 'one of two . . . .” The Vir injury in tort for the same liable Harris’ view of Court confirmed ginia Supreme Co, Inc Supply in Thurston Metals & Virginia law 475, 483-485; 339 SE2d 538 Taylor, Va settle plaintiffs ruled that The court insured did not dis the defendant’s ment with insurer-principal. charge vicariously was a corporation the insurer found that court of the Uniform meaning within "tortfeasor” Lansing 525 Opinion by Levin, J. Act and followed Harris and Alaska Airlines in so holding.67 Supreme

The Court of Utah held in Krukiewicz v Draper, 725 P2d 1349, (Utah, 1986), 1351-1352 that a given release one "joint tortfeasor” does not release another joint tortfeasor who is vicariously liable for his negligence. servant’s Utah had en acted a statute patterned after the 1939 Uniform Act which included the Uniform Act’s definition of "joint tortfeasor” as "one of two or persons, more or jointly severally liable tort for the same to injury person or . . . .” property The court relied on several cases68 that construed the 1939 Uniform Act’s definition of joint tortfeasor to in clude the master-servant relationship, and contin ued:

In 1955 the Uniform Act was revised. The 1955 version of the Uniform Act does not contain a "joint However, definition of tort-feasor.” the 1955 Act does state provisions that apply persons "where two or more jointly become severally liable in tort for the same injury to person or . . .” property. jurisdictions All but one which have language, construed this which is es- sentially identical to joint the definition of tort- have also held Act, feasor contained the 1939 relationship master-servant subject language the 1955 Act’s making applicable jointly See, those severally e.g., tort. America, Harris v Aluminum Co of 550 F Supp (WD 1024, Va, 1982); 1030 Van Cleave v Gamboni Co, 845, (Nev, Const 706 1985); P2d 847 Alaska Airlines, Sweat, 916, (Alas, Inc v 568 P2d 929-30 Thurston, evidencing In both Harris and the document the settle language ment was a covenant not to sue. The of the 1955 Uniform RJA, speaks Act enacted as not to sue without distinction. See n 21 and 2925d of both a release and a covenant accompanying text. Clark, 747, (Del, 1978); Blackshear v 391 A2d Smith v Holve, Raparot, supra; Brooks, supra; n 10 n 10 Clark v 377 A2d 365 (Del 1977). Super, 430 Mich Levin, 1977). language held that Only one court has which deals with the release Act apply based joint tort-feasors does not v Law relationship, Craven on a master-servant son, and (Tenn, 1976), SW2d v Aluminum Co opinion been criticized. Harris has America, Cleave v 1029-30; Supp 550 F at Van Comment, Gamboni, Covenant 706 P2d at Virginia’s Bury the Common Sue: Effort to Not to Regarding Release of Joint Tortfea Rule the Law sors, Comment, 809, (1980); 833 14 U Rich L Rev to Sue Liability Not Torts—Vicarious —Covenant Affecting Liability of Master Agent or as Servant (1976). 188, Principal, 44 L Rev or Tenn [Kru kiewicz, supra, p Emphasis 1352. added.][69] majority Additionally, have of courts that principal on of a release of the effect considered agent liability the Uni have construed of an princi vicariously liable to include the form Acts pal that the have stated Several as a "tortfeasor.” depend it is on whether of a release does effect vicariously agent given liable to the or principal.70 reject adopting line of cases and Airlines-Harris the Alaska Also Co, 290; Management 216 Cal Bragg 39 Cal 3d ing Rptr plaintiffs not release is Mesler v Craven Supreme held that Court The California subsidiary 702 P2d 601 company operator did crane settlement with corporation. parent important Act has two the Uniform version of The California "joint (1) speak of tortfeasors” does not the California act differences: tort,” and for the same to be liable "tortfeasors claimed instead of

but solely (2) persons for the applies . . . liable or more to "one the act liability another, of a in case of the of them or of tort of one added). Id., (emphasis p of his servant." master for the tort expressed adopted in Supreme the view also Court The Texas (Tex, Foods, Inc, 603 SW2d v Morton in Knutson Alaska Airlines sue). 1980) (covenant must that a release The court held not to require- this extended identify parties The court to be released. solely liable on nonreleased defendant in which the to cases ment the released had superior. plaintiffs case who respondeat in that theory The principal who was agents sue the nonreleased could thus vicariously liable. effect of a supreme dealt with courts have Three state Lansing Opinion by Levin,

Only Craven, Bristow and criticized Krukie supra, support opini wicz, the result of the lead opinion All the other cases cited in the lead on.71 plaintiffs principal/master liability agent/ release of the on the The courts held that their state’s servant. versions of the 1939 and applied. Mercy Uniform In Acts Aherron v St John’s Medical Center, 500, (Mo, 1986), Supreme 713 SW2d the Missouri plaintiffs vicariously hospital Court held that the did not release the release of the liable servant/agent doctor under a Missouri statute "substantially the same as” the 1955 Uniform Act and said: "[a]n employee vicariously employer 'persons and a are liable liable in tort injury wrongful vicariously for the same ployer or death’ "a em- liable employee’’ as well as its are "other tortfeasors” under the act. added.) (Emphasis Clark, (Del, The Missouri court relied on Blackshear v 391 A2d 747 1978), Supreme plaintiffs where the Delaware Court had held that a hospital malpractice release of the in a medical action did not release physician-employee under a Delaware statute modeled on the Referring language 1939 Uniform Act. persons to the "2 . . . severally said, . . . injury,” [are] tort for the same the court language repeated opinions: that has been in other relevant, The basis of relationship is not nor is the among short, those liable for the tort. In it makes no difference upon

whether the Center’s respondeat superior is based the doctrine of any legal concept. point other (at least) that both it "severally” and the Doctor are liable for injury plaintiff. Therefore, the same the Uniform Contribu- Among applies. [Id., tion p Tort-Feasors Act 748.] Hampshire Supreme Court, The New Hedberg, in Waters v 126 NH 546; (1985), 496 A2d 333 followed Blackshear and Alaska Airlines. Further, day, Hampshire the same the New court declared in Cham Kingston, 553; (1985): berlain v Town of 126 NH 496 A2d 337 question This . . . injured raises the plaintiff, whether an who employee has settled a claim with an tortfeasor and has employee, covenanted not against ployer may to sue the maintain an action employer independent the where no fault of the em- alleged. is employer’s alleged The sole basis of the liability respondeat superior. is the doctrine of Our Hedberg, 546; decision of this date in Waters v 126 NH (1985) presented 496 A2d 333 the obverse of this case. The given release in then employer, Waters was to the the suit was permitted against to be employee. maintained the The case, considerations are no different in this and the suit like- wise is not barred. 71 Bristow, In an appellate Illinois intermediate court considered an RJA, Illinois statute identical to compet- 2925d. The court noted the 430 Mich 473 528 Levin, act construe a uniform or either do not construe not on a uniform act.72 statutes based question represented ing by Alaska Airlines and Craven on the views involving vicarious the Act included situations whether Uniform liability. The noted in Craven "the court reasoned Bristow court that right purport intrude a Uniform Act did not where that indemnity, the contribution, Bristow, p 194. The Bristow not existed.” liability sharing act the of then observed that the "envisions court defendants,” emphasizing culpability culpable of "the two between the plaintiff precise legal parties the him for rather the means which than compensate ultimately his able to make each defendant is loss.” question Id., however, p opinion, appears to the 195. turn not on The reasoning "wrongdoing” "culpability” on of of or but the Craven, right indemnity regarding distinction the the between language quoted right the from Bristow of contribution. See part v. Corp, App opinion 3d Ritter 27 Cal The lead also cites v Technicolor (1972), Co, 152; Rptr Swanigan v State Farm Ins 99 Wis 103 Cal 686 (1980), Cleave, supra. 179; 299 and Van 2d NW2d 234 Ritter, statute, "By of an declared: California In court discharge principal liability, agent from tort before trial does not his principal though alleged recovery from basis even his vicarious sole Id., p agent.” of for the acts his 153. Swanigan, Uniform instead In the court relied not on the Act but the governing provision of a Wisconsin statute on sponsors cally specifi- applications. The court of minors on driver’s license sponsor-minor rejected rela- characterization of defendant’s accepted tionship that if it as that of master-servant and noted even characterization, accept that not conclusion it "need [defendant’s] principal agent rights reserves a release operates which Id., principal.” p n 2. as a matter of law to release the Co, supra, that the the Van v Gamboni Const also noted While Cleave indemnity, impair any right Act followed Uniform line of cases relationship does opposed to Craven and characterized the master-servant joint tortfeasors. one of 72 (1972), Meier, 420; Dickey did 197 NW2d 385 v Estate of Neb Restatement, statute, relying Bacon v on the not construe instead (CA 8, States, 1963), below, Max v discussed United 321 F2d 1961). (Mo, continuing vitality Spaeth, of Max is The SW2d after Missouri Aherron, Supreme questionable Court’s decision ("Max pp supra, . 500-501 . . includes dicta 'release not determine releases the servant.’ We need whether master involving correctly in cases vicarious states the law Missouri dicta pertinent provided by liability. rule is Missouri version [the Act]”). the Uniform Parrill, statute was Jacobson v 186 Kan No discussed (1960), Mullins, (Okla, 1959), Mid- P2d 845 Barsh v P2d 1954), (Okla, Crauthers, Pipeline 267 P2d Co v Continent (D Co, Supp Distributing Air v 273 F Seaboard Line R Co Coastal 1967). SC, Lansing Hospital v Dissenting Archer, J. VII We would hold that the release of an employee/ agent does not a vicariously liable em- ployer/principal, and that the vicariously liable "tortfeasor,” employer/principal is a one of two or more "persons liable in tort” for the same injury RJA, within meaning 2925d. We would § reverse the Court of Appeals and reinstate jury’s not, however, verdict. There are four votes to do so. Nor are there four signatures on the lead opinion. In order to resolve this appeal, join we Boyle’s the remand provided for in Justice opin- ion.

Cavanagh Archer, JJ., concurred with Levin, J.

Archer, (dissenting). granted We leave to release, consider whether a containing provision expressly reserving plaintiffs’ claim employer hospital-principal, executed con- sideration of settlement payments received from independent contractors-agents, nevertheless re- leased the hospital from vicarious liability under States, supra, p 883, Bacon v United distinguishable is only because the Missouri statute was not based on a uniform act but also spoke because the statute joint of “two or more tort-feasors or wrongdoers.” (Emphasis supplied.) Unlike the 1955 Uniform Act and RJA, 2925d, speak "persons tort,” which of two or more liable in language of may the Missouri appeared statute have to offer more support for discharged the view that a release vicariously principal "culpable” who was not personally in that he "did no wrong.” events, following In all Supreme the decision of the Missouri Aherron, Court in Missouri. may Bacon longer represent like Max no the law of Horejsi Anderson, (ND, 1984), 353 NW2d distinguishable because language the court peculiar relied on to North Dakota’s version of the Uniform Act. 430 Opinion by Dissenting Archer, J. 27A.2925(4),1 and, if the 600.2925d; MSA MCL contractors-agents independent is the release of protected 600.2925d; MSA MCL not 27A.2925(4), as a should be reformed

the release effectuating thereby sue, the in- not to covenant settling parties not dis- which would tent the hospital. charge the language plain the of Michi-

I hold that would gan’s statute, 600.2925d; MCL MSA contribution 27A.2925(4), applies to all as amended in including injury, the liable for same tortfeasors vicariously Therefore, need I not those liable. a to reform the as reach the issue whether I further hold that the not to sue. would covenant entirety, trial, in its introduced at viewed evidence jury determine that the the to sufficient for .was independent hospital well as as was liable negligence. Finally, I hold would vicarious acts request special hospital’s ver- failure to impermissibly urged by the court dicts trial hospital’s thereby error, and waived the invited right appeal the issue.

I of the Court would reverse decision against jury Appeals reinstate the verdict Lansing General defendant Hospital._ to sue not to enforce a release or a covenant not or When persons given good judgment 2 or faith to 1 of more wrongful injury or the same death: tort for same (a) any discharge other of the tort-feasors It does injury wrongful liability provide. its so for the death unless terms (b) other to the claim tort-feasors It reduces the stipulated by any the covenant amount release or extent of or to the extent whichever amount is it, paid for of the consideration amount greater. (c) discharges given from all tort-feasor to whom is It any tort-feasor. for contribution other Lansing Dissenting Opinion Archer,

PACTS 16, 1978, Schneider, Christopher Gene On June Lansing seven-year-old boy, admitted on the recommendation of his Hospital, General Wirt, D.O., Robert for a family physician, tonsillec- bilateral tomy tympanotomy. After tympa- and before of the tonsil- commencement notomy, developed the child increase lectomy, drastic legs fingers heart and his cya- rate became Palmer, Jana anesthetist certified nurse notic. for the surgery, had administered who anesthesia Gilmore, D.O., supervising called in Jack anes- the thesiologist. present Dr. Gilmore not been had during room the operating the child surgery. The suffered a arrest. subsequently cardiac After half efforts, an hour of resuscitative the child resumed heartbeat, spontaneous and was taken to the unit placed intensive care where he was on a respirator and cardiac monitor. Various physicians hospital on at the examined the child staff directed treatment in the intensive care unit. The following a second arrest occurred. day, cardiac respirator While maintained on a in the intensive unit, care the child’s condition to deteri- continued later, 22, until orate his death six on June days 1978.

Plaintiffs, personal representative the the child, parents wrongful of the filed this death Ingham action in the Circuit on Court June Palmer, 1980. The defendants named Jana were anesthetist, Gilmore, Dr. the certified nurse the anesthesiologist, both of whom employed were by Capital Anesthesiologists, Capital P.C. had the exclusive contract anesthesia perform within the The other hospital. defendants included Lans- D.O., the ing Hospital, Gilroy, General Gerald ear- specialist nose-throat who performed tympano- 430 Dissenting Opinion Archer, assisting tomy, D.O., resi- Sciamanna, David personnel. pediatrician, medical and various dent physicians, well as trial, as a number Prior to Anesthesiologists, Capital rea- dismissed for were prior appeal. trial, a Also to this unrelated sons motion for amount authorizing in the settlement an order against only, Palmer, $85,000 was nurse began, plaintiffs granted. into a entered trial After $172,739 with in the amount settlement similar Dr. stances, anesthesiologist. In in- Gilmore, both in consideration release was executed provision payments in- and a the settlement reserving plain- specifically cluded remaining defendants.2 tiffs’ claims There were objections the defendants no raised language settlements, to the to the as authorizing the release, order or to the court’s release. hospital during

Subsequently, trial, moved concerning allegations the actions of strike all Palmer and Gilmore hospital agents of the ostensible (under Mt Clemens General Grewe v [1978]). Hosp, 273 NW2d theory upon were based motions hospital from vicarious settlements released and Gilmore of Palmer for the actions part: provide pertinent in The releases operative as to Jana that this Release shall be It is intended any only to release other and shall not be construed Palmer persons may entity for the same be liable tort who 27A.2925(4). 600.2925d; wrongful MSA death. MCL that this release shall be It intended and understood Gilmore, only, operative and shall not be as to D.O. Jack may any persons who be other or entities construed to release liable pher wrongful alleged of Gene Christo- in tort for the death damages Schneider, deceased, any and all other wrongful alleged alleged death. MCL from the to result 27A.2925(4). 600.2925d; MSA Lansing Hospital v Dissenting Archer, despite express the reservation of those claims in the settlement order. While the trial court ruled hospital that vicarious the settlements released the from for the actions of Palmer and permitted concerning Gilmore, it the evidence go conduct of the released defendants to to the jury, reasoning necessary that the evidence was jury’s understanding independent allega- negligence against remaining tions of dants, defen- Lansing General, Sciamanna, Dr. and Dr. Gilroy. The trial court also recommended that the hospital request special the return of verdicts to jury determine whether verdict was based upon ity. hospital’s independent vicarious or liabil- rejected request. The defendants the court’s During plaintiffs’ proofs, trial, at the close of upon motion, defendants’ the trial court allegations independent hospital struck certain negligence plaintiffs’ plaintiffs’ complaint, granted but complaint motion to amend their proofs. complaint conform to the The amended allegations hospital continued to include require precordial stethoscope failed to use of a pediatric cases. jury After a trial, two-week returned a against Lansing Hospi- verdict defendant General tal the amount of million. It $1 found no cause Gilroy of action as to Drs. and Sciamanna. The verdict was reduced the settlement amount of $257,739, judgment and, 2, 1983, on June against Lansing entered General $742,261. Appeals 4, 1985, On March the Court of affirmed jury concluding verdict, the acts of

settling properly tortfeasors were introduced where plaintiffs ability prove "critical to the their independent hospital.” claims The ophelis Lansing Hosp, App General rehearing, 205; 366 NW2d 249 On a divided 473 Mich Dissenting Archer, J. and re- verdict Appeals jury of set aside Court Having trial. found that the case for a new manded on all but a directed verdict granted the trial court claims hos- independent one plaintiffs’ of Appeals decided there was now pital, the Court of expert testimony” sup- "no competent evidence the, part on port independent the issue of jury. Theophelis v hospital send to the (On Hosp Rehearing), 148 Mich Lansing General 564, 567; Judge 384 NW2d 823 Michael App Kelly dissented, continuing to the J. adhere original Appeals set forth in the Court of analysis Id., opinion. 568.

i common of found under Appeals Court law, Palmer and Dr. Gilmore "the release of nurse based on a hospital any liability released superior.” App 204; 141 Mich respondeat of theory I An App disagree. appreciation 566. 148 Mich development Michigan’s of contribu historical statute, 600.2925d; 27A.2925(4), MCL MSA is tion understanding disagree for an our necessary of Appeals. ment Court with rule is that Michigan The common-law joint more tortfeasors releases one or others, express an reservation regardless Scott, tortfeasor. McBride v rights against another v Acme (1903); Lindsay 176; 93 NW 243 Mich Co, 367; Plaster 190 NW 275 Cement Endtz, v Mich NW Moffit (1922); Weeks, & (1925); Henry MacDonald v Hornblower (1934). This 626; 256 NW 572 rule is there can be but one theory upon based wrong, for a action joint compensation Lansing Dissenting Opinion by Archer, satisfied injured once the has party paid been any joint tortfeasors.3

The harshness of and dissatisfaction with the common-law rule has resulted a modern trend towards designed various devices to avoid its ef- fect.4 These devices included the use of covenants sue,5 uniform legislation abrogating rule, such as the Uniform Contribution Among Act,6 statutes,7 Tortfeasors among state other 2d, Release, See 66 Am Jur 1.§ of, sue, See anno: primarily Release or covenant not to one tort, expressly reserving rights against liable, for secondarily but one recovery against latter, 547, 551; as bar to 24 ALR4th anno: Release joint discharging liability of one tortfeasor as of others: Modern trends, 403, 73 ALR2d 407-408. sue, opposed release, A covenant not to as to a is a collateral undertaking discharge parties’ specific which indicates the intention not to remaining joint tortfeasors, expressly reserving without rights against 408 joint Godfrey, tortfeasors. See Robinson v 2 Mich (1852); Morgan Butterfield, (1855); City 3 Mich 615 Cook v Transport Corp, 91; (1935); 261 NW 257 Boucher v Thom sen, (1950);annotations, supra; NW2d n 4 anno: (or sue) principal Release of liability covenant affecting not to or master tort, agent versa, 533, of servant or or vice 92 ALR2d 538. 1939, In the National Conference of Commissioners on Uniform approved Among State Laws the Uniform Contribution Tortfeasors Act, 63, provided given 12 ULA which in 4 that a § to one of persons injury discharge several any the part: liable in tort for the same does not provide. other tortfeasor unless its terms so A 1955 revision of states, pertinent act extended 4 to § covenants not to sue. It When a release or covenant not to sue or not to enforce

judgment given good persons faith to one of two or more injury wrongful liable in tort for the same or the same death: (a) discharge any It does not of the other tortfeasors from liability provide; injury wrongful for the or death unless its terms so against but reduces the claim the others to the any stipulated by covenant, extent of amount the release of the it, paid or in the amount of the consideration for whichever is greater . . . .” adopted The uniform act jurisdictions. has been in at least sixteen among act, See anno: Uniform contribution tortfeasors 34 ALR2d 1107, 547, 551, 565-567, 403, 24 ALR4th and 73 ALR2d 434-435. (which Obligations Act, preceded The Uniform Joint the Uniform Act) Among adopted by Contribution Tortfeasors and which has been 430 Mich 473 Dissenting Opinion Archer, J. s.8 thing Generally, these devices obviate the need for the setting common-law rule off the amount of any settlement. 1941,

In the Michigan Legislature chose to ame liorate of the common-law rigidity rule enacting a variation of the Uniform Contribution Among statute, Act. Tortfeasors 1941 PA 2, 1948 691.562; 27.1683(2), CL MSA provided: It persons having shall be lawful for all a claim joint 2 or more or tort- cause of action

feasors compound, with, discharge, settle at any prior time judgment rendition of a in said action, any everyone joint or more of said tort- feasors for such sum person fit, may as such deem impairing right without person of such persons to demand and collect the balance of said remaining joint claim or of cause action from the tort-feasors, person, persons, whom such action, has such claim or cause and not so [Emphasis released. added.]

Unlike the 1941 Uniform Contribution Among Act, Tortfeasors the original Michigan statute did not include "joint the definition of tortfeasor.” The use of the term "joint tortfeasor” without defini- tion resulted in problems interpretation. See Slater, Geib v 320 316; (1948), Mich NW2d Palmer, Moore v grounds overruled on other states, minority provides joint obligor, a the release of one tort, person which includes a liable in shall not release all unless it right contrary. contains a reservation of to the See anno: 73 ALR2d 432, See, supra. also, Judgment n 4 anno: Federal Tort Claims Act: against States, negligent employee releasing or settlement with United versa, or vice 42 ALR2d 960. 7 See n 4. abrogating Other devices the common-law rule include the Re 885(1) Torts, 2d, (2), provides statement covenants not to sue the same harm. ments, 2d, § which that releases and discharge any not do other tortfeasor 547, 551, Judg 24 ALR4th See and Restatement 51, provides agent which that a settlement with an discharge generally principal. does not of the Lansing Hospital v Dissenting Opinion by Archer, J. 363; 86 NW2d 585 (1957); Moyses Spartan Asphalt Co, Paving NW2d Geib,

In supra, 320, the issue was whether defendant owner of an automobile driven negligent employee "joint was a tort-feasor” within the statute. This Court held that the statute did apply automobile owner because the owner was not a "joint tort-feasor.”

While the 1955 revision of the uniform act elimi- nated the term "joint tortfeasor” and substituted "tortfeasor,” the term the language of the 1961 Michigan revision authorizing release of joint tortfeasor without discharging any others re- mained identical original to the Later, act.9 in an effort to resolve the definitional problem, this in Moyses, supra, Court defined "joint tortfeasors,” stating, (or more) persons two owe to [W]here another

the same duty their neglect common (or more) duty that have injured, such other is the two joint committed a. tort and joint therefore are tortfeasors. Legislature expressed its dissatisfaction with the various judicial interpretations evolved following its failure to define tort- "joint feasors” in the 1941 statute and its 1961 amend- ment amending 600.2925d; MCL MSA 27A.2925(4) to totally eliminate use of the term "joint tortfeasor.” The 1974 amendment provides in pertinent part: When a release or a covenant not to sue or judgment given good enforce is in faith to 236, 600.2925; See 1961 PA MCL MSA 27 A.2925. See also Duncan Beres, 318, 328, (1968) App (opinion 15 Mich n 166 NW2d 678 J.).

Levin, 430 Mich Dissenting Opinion Archer, persons injury in or more liable tort for the same wrongful or the same death:

(a) discharge any It does not of the other tort- wrongful liability injury feasors from for the or provide. [Emphasis death unless its terms so added.] change language "per

The 1974 to include in tort” to eliminate the term sons liable "joint Legislature’s tortfeasors” indicates the in apply tention to in tort for the same the statute to all tortfeasors liable

injury regardless of whether joint. present their ute, nugatory To read the stat otherwise would render amended provision statute, related 2925d(b). 2925d(b) provides Section that a release covenant not sue "reduces the claim other tort-feasors to the extent of the amount stipulated by the release or the covenant . . . .” Every part given See n 1.10 meaning of a statute be should part nugatory. and no should be rendered Corp, 639, 665; Baker v General Motors 409 Mich (1980); Wolodzko, 297 NW2d 387 Stowers v (1971). 119, 133; 191 NW2d 355 predeces- statute, The 1974 amended unlike its application joint sor, does not limit its tortfea- express language Rather, sors. of the current applies persons statute to "1 of 2 or more injury wrongful tort for the same or the same Liability injury” death.” "in tort for the same liability. would include claims founded in vicarious hospital "1 The defendant . of 2 or more wrongful . . . liable in tort for the same . . Thus, death.” its vicarious falls within having jurisdictions statute. Other with statutes language identical or to the 1974 amend- similar 10See, also, Comm, Mayhew v Berrien 399, 410; Road Co NW2d Lansing 539 v Dissenting Opinion Archer, princi- I find the would agree.11 Accordingly,

ment Geib, 1974 supra, prior in to the ple established lan- plain to be conflict with amendment therefore, 2925d, longer no valid. and guage § supported by further is interpretation My provisions of interpreting related recent decisions Corp, 419 v General Motors 2925a. See O’Dowd Air Piper (1984), 597; 553 and 358 NW2d Dumon, 647 445; 421 Mich 364 NW2d Corp craft v Piper, (1984). In both O’Dowd we acknowl on the relation the statute’s focus is edged that party and the injured the defendants ship between the defen relationship between rather than the dants themselves. a statute must be construed importantly,

More v State intent. O’Donnell legislative light Co, 524; Mutual Automobile Ins 404 Mich Farm (1979). Legislature’s 829 Clearly, 273 NW2d 600.2925d; MSA enacting MCL intention 27A.2925(4) "(1) encourag[e] settlements (2) compen- plaintiff fully that a assur[e] v Berrien Mayhew injuries sustained.” sated Comm, 399, 411-412; 326 Co Road NW2d (1982). to settle plaintiff This enables a policy 366 his cause of action losing without agent with an respondeat theory liable under a party remaining defendant allowing the superior, while full adjudica- the courts for a access to complete indemnification. rights tion of his liabilities Foods, Inc, 805 v Morton 603 SW2d See Knutson 1980). (Tex, to survive would common-law rule

To allow the they because would settling parties deter 11 Sweat, (Alas, 1977); Airlines, Ritter Inc v 916 Alaska 568 P2d See (1972); Corp, Clark 152; Rptr App 103 Cal 686 v Technicolor v 27 Cal 3d Clark, (Del Brooks, 1977); Blackshear v Super, 391 A2d A2d 365 Co, 524; Const (Del, 1978); Cleave v Gamboni Nev Van Center, Mercy John’s Medical (1985); 713 SW2d Aherron v St P2d 845 Hedberg, (Mo, 1986); A2d 333 126 NH Waters 430 Mich Dissenting Opinion by Archer, J. losing necessary risk other claims to obtain full compensation. Any inequities argued by the defen- requirements dant are obviated the setoff im- posed by provisions related of the statute. See 27A.2925(1) seq.; seq. MCL 600.2925a et MSA et I hospital’s reject argument that enforcement of encourage the release in these cases would a circu- ity right of action in view of its to indemnification. 27A.2925(1)(7). 600.2925a(7); MCL MSA I believe encourage § the remedial nature of 2925d—to set- compensation tlements and plaintiff full assure to the injuries precedence possi- for over —takes problems. indemnity ble The defendant in- be prejudice demnified suffers no because the settle- actually possi- ment results of reduction its liability paid ble the amount in settlement. See supra. espe- Knutson, Loss indemnification is cially problem agent not a in cases where the or employee policy settles for the full amount of the limits under his insurance. See Munson v 1967).12 (CA States, 6, 380 976 United F2d Further- question more, where, here, in cases as there ais negli- negligence of active as well vicarious gence, may right the defendant have no to indem- nity.13 disagree hospital’s argument

I also with that atmosphere ripe this Anew would create an for 12 Corp, supra. Ritter Cf. v Technicolor nil 13 today, I would not rule on that I note that While issue recent Appeals seeking party Court decisions have held common- indemnity negligence. any law E W Bliss must be free from v active Pontious Co, 718, App (1981); 102 Mich 302 293 Hill v NW2d Co, 693, Equipment App 696-697; 527 Sullivan Mich NW2d 209, Detroit, (1978); App 215-216; Palomba East 112 Mich v (1982); Bundy, App 399; 342 NW2d 898 NW2d 567 NW2d NW2d 90 Johnson v Co, (1983); App 1, 10; 324 335 Reed v St Clair Rubber Mich (1982); App 580; Corp, D-M-E Skinner v (1983); McIntyre’s Computer Group, Mini v Sales Inc 1986). (ED Mich, Corp, Supp Synergy 644 F Creative Lansing Dissenting Opinion Archer, If there is indication that a any

collusion.14 settle- collusion, ment involved a trial court can on rely "good requirement faith” 2925d to find in good the settlement was not made faith. To further avoid any impropriety, challenges to the good faith of the settlements should made at be the time of settlement or to trial. prior 600.2925d; under MCL

Accordingly, MSA 27A.2925(4), the release defendants Palmer and Gilmore did not hospital the defendant agents vicarious the actions of its I reverse the decision of the employees. would Appeals Court of and reinstate the judgment Lansing Hospital. defendant General

ii 600.2925d; I Because conclude that MCL MSA 27A.2925(4) applicable in cases of vicarious lia- I bility, necessary pursue do not find the issue releases, protected whether the if not the stat- ute, should be reformed as covenants not to sue discharge hospital which the to effectuate the settling parties. intent the

hi the of MCL Notwithstanding applicability 27A.2925(4) 600.2925d; hospi- MSA defendant tal’s vicarious also reflects that liability, record possible it would have for the to find the jury been negligence. hospital independent acts allegations While the trial court struck certain hospital negligence plaintiffs’ independent to direct a complaint upon hospital’s motion verdict, simultaneously the trial court allowed 14Lansing that no collusion General admits its brief in the settlements involved herein. occurred 430 Mich Dissenting Opinion by Archer, plaintiffs to amend their complaint to conform to proofs. The hospital concedes that the issue whether defendant hospital had been indepen- dently negligent in failing to require the use of the precordial stethoscope as standard operating proce- dure remained a viable issue for the jury. When trial, at testifying plaintiffs’ expert, Dr. Zsigmond, recognized, albeit context, different fail- ure to precordial use the stethoscope in this case was a "very severe major deviation from good standard of practice.” precordial stethoscope issue and Dr. Zsigmond’s were testimony submit- ted, without objection, to the jury. If there sufficient evidence tending to support the jury’s verdict, a court cannot set it aside even if it might be doubt as to the ultimate facts. Baldwin v Nall, 25, 29; 34 NW2d 539 Hence, Kelly’s I agree Judge with dissent on rehearing that when viewed in its entirety, evidence at introduced trial regarding use of the precordial could stethoscope support the jury’s verdict.

iv Finally, hospital contends that a new trial required would be even if this Court held that hospital could be vicariously liable for Palmer’s actions, and Gilmore’s as it cannot be determined verdict, from the jury’s upon which basis it found Alt, Baker v liability. (1965). However,

NW2d 614 the record reflects that the trial judge repeatedly recommended and en- couraged hospital to request the return special verdicts at the proofs close of to determine upon what basis hospital found. The rejected request.

Had hospital made the request, any confu- sion as to the upon basis which the found the jury Lansing Hospital v Dissenting Opinion by Archer, J.

hospital would "A disappeared. party have cannot sit back and the jury after decides him claim given error after he had been the fullest to correct opportunity any alleged error at Nall, Dax, supra, Baldwin Watson v trial.” 320, 330; 54 NW2d 674 Accord- I ingly, would find that the hospital’s failure to request special at urging verdicts trial impermissible error, court invited waiving thereby right its complain on this issue.

CONCLUSION I would reverse the decision of the Court of Appeals and reinstate the judgment against Lans- ing Hospital. General

Case Details

Case Name: Theophelis v. Lansing General Hospital

Court Name: Michigan Supreme Court

Date Published: Jun 6, 1988

Citation: 424 N.W.2d 478

Docket Number: 78166, (Calendar No. 2)

Court Abbreviation: Mich.