Brannstrom v. Tippman
| Decision Date | 22 May 1985 |
| Docket Number | Docket Nos. 75560,76825 |
| Citation | 141 Mich.App. 664,367 N.W.2d 902 |
| Parties | Nanci L. BRANNSTROM, Plaintiff-Appellant, v. Edward Allen TIPPMAN, Defendant, and Edwin Kulka, Individually and d/b/a Auburn Hotel and Lounge, and Clyde C. Dexter and Margaret R. Dexter, Individually and d/b/a Boulevard Lounge, all jointly and severally, Defendants-Appellees. James BRANNSTROM and Edith Brannstrom, Plaintiffs-Appellants, v. Edward Allen TIPPMAN, Defendant, and Edwin Kulka, Individually and d/b/a Auburn Hotel and Lounge, and Clyde C. Dexter and Margaret R. Dexter, Individually and d/b/a Boulevard Lounge, all jointly and severally, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
George R. Phillips, Bay City, for Nanci Brannstrom.
George R. Phillips, Bay City, and Barry B. George, Midland, for James and Edith Brannstrom.
Seward, Tally & Piggott, P.C. by John W. Piggott, Bay City, for Edwin Kulka.
Kaufman, Payton & Kallas by Constantine N. Kallas, Southfield, for Clyde and Margaret Dexter.
Before V.J. BRENNAN, P.J., and CYNAR and OPPLIGER *, JJ.
On August 7, 1981, Delbert J. Brannstrom was fatally injured when the motorcycle he was driving collided with an automobile operated by defendant Edward E. Tippman. These appeals involve separate dramshop actions brought by the decedent's ex-wife, Nanci Brannstrom (No. 75560), and by the decedent's parents, James and Edith Brannstrom (No. 76825). Both complaints allege that shortly before the accident occurred the dramshop defendants illegally furnished intoxicating liquor to defendant Tippman at a time when Tippman was under the age of 21 years and was visibly intoxicated. In both cases the trial court granted the dramshop defendants' motions for summary judgment under GCR 1963, 117.2(1). Plaintiffs appealed in both cases and the matters were consolidated.
Nanci Brannstrom originally filed an action against the dramshop defendants on behalf of the decedent's minor children. As personal representative of the decedent's estate, Nanci subsequently filed a wrongful death action against defendant Tippman. The trial court consolidated the cases and apparently told trial counsel that it would dismiss the suit on behalf of the children unless the wrongful death complaint on behalf of the estate was amended to add a claim against the dramshop defendants. The wrongful death complaint was amended in accordance with the court's direction. The consolidated cases were then mediated and the award was accepted. A judgment in favor of the children was entered against the dramshop defendants in the amount of $300,000, and the action on behalf of the estate against the dramshop defendants was dismissed with prejudice. 1
The present actions were filed by Nanci and by the decedent's parents in their own names in July, 1983. The trial court granted summary judgment in favor of the dramshop defendants against Nanci on December 5, 1983, and against James and Edith Brannstrom on February 22, 1984. 2
The first issue is whether the present dramshop actions are barred by the consent judgment entered in the wrongful death action on behalf of the estate. We answer that question in the negative.
The dramshop act provides in pertinent part:
"A wife, husband, child, parent, guardian, or other person injured in person, property, means of support, or otherwise, by a visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of intoxicating liquor to the person, if the sale is proven to be a proximate cause of the injury or death, shall have a right of action in his or her name against the person who by the selling, giving, or furnishing the liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the injury." M.C.L. Sec. 436.22(5); M.S.A. Sec. 18.993(5).
The wrongful death statute, M.C.L. Sec. 600.2922; M.S.A. Sec. 27A.2922, states in part:
Defendants contend that because these actions arise out of the decedent's death, plaintiffs' dramshop claims should have been brought by the personal representative as part of the wrongful death action. However, in O'Dowd v. General Motors Corp., 419 Mich. 597, 358 N.W.2d 553 (1984), the Supreme Court held that the personal representative in a wrongful death action is not a proper party to bring a dramshop action. Rather, an action for loss of companionship or support under the dramshop act must be brought by the injured parties in their own names. O'Dowd, supra p. 605, fn. 20, 358 N.W.2d 553. See also Genesee Merchants Bank & Trust Co. v. Bourrie, 375 Mich. 383, 134 N.W.2d 713 (1965). Therefore, the trial judge erred to the extent that he held that the present dramshop actions were precluded by the judgment in the prior wrongful death case.
The next issue is whether the decedent's ex-wife and parents have pled claims upon which relief may be granted. A motion under GCR 1963, 117.2(1) tests the legal sufficiency of the claim and is determined by reference to the pleadings alone. The test is whether the claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Cramer v. Metropolitan Savings Ass'n (Amended Opinion), 136 Mich.App. 387, 397, 357 N.W.2d 51 (1984).
Nanci's complaint alleged that, while she had divorced the decedent, at the time of his death they were living together as husband and wife, along with their children. Paragraph 18 alleges the following:
"That as a result of the death of Delbert J. Brannstrom, the Plaintiff has been injured in her property, means of support or otherwise, which injuries include, but are not limited to, the loss of support, inheritance, society, companionship, consortium, aid and comfort of Delbert J. Brannstrom, as well as the sense of deprivation, grief, shock, and mental suffering * * *."
The parents' complaint alleges the following injuries:
"That as a result of the death of their son, the Plaintiffs have been injured in their property, means of support or otherwise, which injuries include, but are not limited to, the loss of the society, companionship, aid and comfort of their son, the loss of their investment in his upbringing and the loss of his services, as well as the sense of deprivation, grief, shock, and mental suffering * * *."
Both complaints also allege that the death resulted in plaintiffs' inability to secure repayment of loans made to the decedent.
The dramshop provision quoted above creates a cause of action in favor of a "wife, husband, parent, guardian or other person injured in person, property, means of support, or otherwise * * * ". (Emphasis added.) The courts of this state have given a liberal construction to the words of the dramshop act, and the term "or other person" has been given a broad interpretation. LaBlue v. Specker, 358 Mich. 558, 568, 100 N.W.2d 445 (1960). In view of the liberal construction given to the dramshop act, we conclude that plaintiffs are persons entitled to bring an action under the statute and have sufficiently alleged that they were "injured in person, property, means of support, or otherwise".
The next issue is whether plaintiffs' inability to retain the alleged intoxicated person would bar these actions. The name and retain provision of M.C.L. Sec. 436.22(5); M.S.A. Sec. 18.993(5) states:
"An action against a retailer, wholesaler, or anyone covered by this act or a surety, shall not be commenced unless the minor or the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement."
The purpose of the provision is to prevent collusion between the plaintiff and the alleged intoxicated person. Salas v. Clements, 399 Mich. 103, 108-109, 247 N.W.2d 889 (1976). The Supreme Court and this Court have recognized that the provision should not be strictly enforced to produce "an unreasonable, unjust result, a result which is inconsistent with the purpose of the 'name and retain' amendment * * * ". Salas, supra, p. 109, 247 N.W.2d 889. Thus, compliance with the requirement has been excused where the injured plaintiff has no cause of action against the alleged intoxicated person and where circumstances suggest there is no potential for collusion. See Salas, supra, Newman v. Hoholik, 138 Mich.App. 66, 359 N.W.2d 253 (1984), Schutz v. Murphy, 99 Mich.App. 386, 297 N.W.2d 676 (1980).
The trial court in granting summary judgment against Nanci Brannstrom stated that she had no direct cause of action against defendant Tippman. We express no opinion on that question. 3 Regardless of whether plaintiffs have individual causes of action against Tippman, he is a defendant in the wrongful death action arising out of the same accident, and both cases have been assigned to the same trial judge. We believe the potential for collusion in this lawsuit is negated by Tippman's retention in the wrongful death action. We therefore hold that, in the event defendant Tippman is dismissed from these actions on...
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