Bell v. Ren-Pharm, Inc.

• Decision Date: 19 January 2006
• Docket Number: Docket No. 255977.
• Citation: Bell v. Ren-Pharm, Inc., 713 N.W.2d 285, 269 Mich. App. 464 (Mich. App. 2006)
• Parties: William BELL and Heather Bell, as guardians of Taylor Blasi, a minor child, Plaintiffs-Appellees, v. REN-PHARM, INC., d/b/a Mattawan Pharmacy, and Edward Nantais, Defendants-Appellants, and Paragon Health, P.C., and Craig A. Mahoney, M.D., Defendants.
• Court: Court of Appeal of Michigan — District of US

713 N.W.2d 285

269 Mich. App. 464

William BELL and Heather Bell, as guardians of Taylor Blasi, a minor child, Plaintiffs-Appellees, v.REN-PHARM, INC., d/b/a Mattawan Pharmacy, and Edward Nantais, Defendants-Appellants, and Paragon Health, P.C., and Craig A. Mahoney, M.D., Defendants.

Docket No. 255977.

Court of Appeals of Michigan.

Submitted December 6, 2005, at Grand Rapids.

Decided January 19, 2006, at 9:00 a.m.

Released for Publication March 31, 2006.

Chambers, Steiner & Sturm, P.L.C.(by Martin R. Sturm), Kalamazoo, for the plaintiffs.

Jonathan S. Damon, Grand Rapids, for the defendants.

Before: WHITBECK, C.J., and BANDSTRA and MARKEY, JJ.

BANDSTRA, J.

The question presented is whether the joint and several liability of a defendant under the tort reform statute, MCL 600.6304(6)(a), extends to damages attributable to the fault of a named nonparty.We conclude that the trial court correctly determined that it does, and we affirm.

Factual Background

The minor child, Taylor Blasi, experienced burns to his legs after an ointment supplied by defendantsRen-Pharm, Inc.; and pharmacist Edward Nantais(the owner and operator of Ren-Pharm, Inc.) was applied by his grandmother, Geraldine Martindale.

As a result of Taylor's injuries, plaintiffs sued defendants, but not Martindale.However, defendants named Martindale as a nonparty at fault.¹Following trial, the jury issued a special verdict finding that the negligence of Martindale and defendants proximately caused Taylor's injuries and that defendants were 20 percent at fault while Martindale was 80 percent at fault.The trial court determined that defendants were jointly and severally liable for the damages attributable to Martindale's fault, notwithstanding defendants' argument that joint and several liability should not extend to persons who are not a party to an action.That is the sole question presented on appeal.

Standard of Review

We review de novo questions of statutory interpretation.Shinholster v. Annapolis Hosp.,471 Mich. 540, 548, 685 N.W.2d 275(2004).Our primary goal in statutory construction is to discern and give effect to the Legislature's intent.Id. at 548-549, 685 N.W.2d 275.We first examine the specific language of the statute, because the Legislature is presumed to have intended the meaning it has plainly expressed.Dana v. American Youth Foundation,257 Mich.App. 208, 212, 668 N.W.2d 174(2003).If the language is clear and unambiguous, judicial construction is neither required nor permitted, and the statute must be enforced as written.Shinholster, supra at 549, 685 N.W.2d 275;Dana, supra at 212, 668 N.W.2d 174.

Analysis

Pursuant to tort reform amendments of the Revised Judicature Act, the fact-finder in a tort action is ordinarily instructed to determine "[t]he percentage of the total fault of all persons that contributed to the death or injury . . . regardless of whether the person was or could have been named as a party to the action."MCL 600.6304(1)(b).In most tort actions, liability "is several only and not joint," meaning that "a person shall not be required to pay damages in an amount greater than his or her percentage of fault" as determined by the fact-finder.MCL 600.6304(4).However, this case falls within an exception to that rule because it is a medical malpractice action in which plaintiffs have been determined to be without fault.MCL 600.6304(6)(a).Accordingly, "the liability of each defendant is joint and several. . . ."Id.

Defendants argue that, because this phrase only mentions "each defendant," its plain meaning is that defendants are jointly and severally liable only for damages arising from the fault of other defendants, not at-fault nonparties.Defendants argue that, had the Legislature wanted the liability to extend to such nonparties, the statute would have been drafted to say "the liability of each defendantand nonparty is joint and several."To the contrary, plaintiffs argue that the statute clearly makes each defendant jointly and severally liable for all damages, including those attributable to the fault of a nonparty.We conclude that both of these arguments are wrong; the statute is simply silent on the question presented.

As part of tort reform legislation, MCL 600.2956 generally abolished joint and several liability and replaced it with "`fair share liability"' where each tortfeasor only pays the portion of the total damage award that reflects that tortfeasor's percentage of fault.Markley v. Oak Health Care Investors of Coldwater, Inc.,255 Mich.App. 245, 253, 660 N.W.2d 344(2003), quotingSmiley v. Corrigan,248 Mich.App. 51, 55, 638 N.W.2d 151(2001).In other words, joint and several liability has, in general, been replaced with several liability.However, in medical malpractice cases like this one, the statutory exception at issue preserves joint and several liability for defendants determined to be at fault.MCL 600.6304(6)(a) does nothing more than this.It does not provide that a defendant's joint and several liability only extends to damages attributable to the fault of other named defendants, as defendants argue,² and it does not provide that a defendant's joint and several liability extends to damages found to be attributable to the fault of any person, including a nonparty, as plaintiffs argue.The statute merely provides that defendants are jointly and severally liable, without specifying the extent of that liability.

Although plaintiffs cite both MarkleyandSalter v. Patton,261 Mich.App. 559, 682 N.W.2d 537(2004), neither of these precedents, nor any others we could find, addressed the statutory question presented.As noted above, however, the Legislature preserved the then-existing joint and several liability system for cases such as this when it otherwise abrogated those principles for other cases.Accordingly, we consider it appropriate to consider general principles of joint and several liability in determining the question at issue.Markley, supra at 256, 660 N.W.2d 344("joint and several liability principles presumptively remained intact, where, as here, joint and several liability was not abrogated by the Legislature.").That approach is consistent with the presumption that the Legislature knew the law surrounding joint and several liability when it decided to preserve that liability in cases such as this.SeeAmerican Federation of State, Co., and Muni. Employees v. Detroit,267 Mich.App. 255, 269, 704 N.W.2d 712(2005).Because the tort reform act is silent on the question presented, it is logical to assume that the Legislature intended the question would be resolved using generally applicable principles of joint and several liability, as long as those principles do not conflict with current statutes.³Markley, supra at 256-257, 660 N.W.2d 344.

Turning to general principles of joint and several liability, we conclude that plaintiffs are correct and that defendants' joint and several liability extends to damages attributable to the fault of a nonparty such as Martindale.The current Restatement of Torts states the general rule of joint and several liability⁴ as follows:

If the independent tortious conduct of two or more persons is a legal cause of an indivisible injury, each person is jointly and severally liable for the recoverable damages caused by the tortious conduct.[Restatement Torts, 3d, Apportionment of Liability, § A18, p. 160.]

By its language, this provision extends joint and several liability to damages arising out of the "tortious conduct of two or more persons," not just parties to the litigation.Further, the comment to this provision points out that one of its "important consequences" is that "a plaintiff may sue and recover all damages from any defendant found liable . . . [putting] the burden of joining and asserting a contribution claim against other potentially responsible persons on the defendant."Id. at p. 160, comment a. In other words, a defendant is liable for "all damages," even those arising from the fault of "other potentially responsible persons," and even if they have not been named as parties in a tort action.Id.

The Third Restatement of Torts does not alter the principles of joint and several liability as they were summarized in the Second Restatement of Torts.Id.The Second Restatement of Torts also provided that the joint and several liability of a defendant extends to damages caused by a person not a party to a tort action: "[i]f two persons would otherwise be liable for a harm, one of them is not relieved from liability by the fact that the other has an absolute privilege to act or immunity from liability to the person harmed."4 Restatement Torts, 2d, § 880, p. 325.This rule "applies to situations in which one who, because of a relation to another or because of a general immunity from tort liability, is not civilly responsible for an act that except for the immunity would have created liability, and in which there is another whose conduct is also a legal cause of the harm."Id. at p. 325, comment a. In such a situation, a person who is not immune and who is subject to suit is jointly and severally liable for damages arising out of the acts of a person not named as a party because of some immunity protection.

That was the situation presented in the only Michigan precedent we could find on point, Johnston v. Billot,109...