Buxton v. Alexander, Docket No. 25942

• Decision Date: 15 June 1976
• Docket Number: Docket No. 25942
• Citation: 69 Mich.App. 507,245 N.W.2d 111
• Parties: Roger BUXTON and Karen Buxton, husband and wife, Plaintiffs- Appellants, v. Loretta ALEXANDER et al., Defendants-Appellees. 69 Mich.App. 507, 245 N.W.2d 111
• Court: Court of Appeal of Michigan — District of US

Page 111

245 N.W.2d 111

Roger BUXTON and Karen Buxton, husband and wife, Plaintiffs- Appellants, v. Loretta ALEXANDER et al., Defendants-Appellees.

Docket No. 25942.

69 Mich.App. 507, 245 N.W.2d 111

Court of Appeals of Michigan.

June 15, 1976.

Released for Poublication Sept. 9, 1976.

[69 MICHAPP 507] Rensberry & Foster by Richard G. Bensinger, Gaylord, for plaintiffs-appellants.

[69 MICHAPP 508] James D. Dreyer, Gaylord, Jack Carpenter, Petoskey, Richard J. Zerafa, Elk Rapids, for defendants-appellees.

Before QUINN, P.J., and D. E. HOLBROOK and BEASLEY, JJ.

BEASLEY, Judge.

The issue here is whether, when an intoxicated Defendant executed a Settlement and Indemnity Agreement with the injured Plaintiffs, the 1972 'Name and Retain' amendment to the Dramshop statute precludes further claim against a tavern owner.

The facts are that on July 12, 1972, while a pedestrian in a parking lot in Mancelona, Plaintiff, Roger Buxton, was struck by a car operated by Defendant, Lorettz Alexander, and owned by her and her husband, Defendant, James Alexander.

On November 7, 1973, Plaintiff and his wife started suit, claiming Defendant, Loretta Alexander, drove negligently causing injury and damage to Plaintiffs and, in a separate court, claiming Defendant Taverns sold and furnished intoxicating liquors to Defendant, Loretta Alexander, while she was visibly intoxicated, which sales were the proximate cause of damage to Plaintiffs.

Four days prior to trial, Plaintiffs entered into an 'Indemnification Agreement' with Defendants, Loretta and James Alexander, and said Auto Owners Insurance Company, the insurer of the vehicle. This agreement provided, in pertinent part, as follows:

'It is expressly understood by the parties, and the undersigned, that by virtue of Michigan's dram shop act [69 MICHAPP 509] the said Loretta and James Alexander may continue to be named and retained in the above captioned law suit; however, for the above mentioned consideration the undersigned do agree to hold Loretta Alexander and James Alexander and Auto-Owners Insurance Company harmless and to indemnify said persons or corporations for any monies that might be adjudged against them to the plaintiffs herein by and (sic) impaneled jury or court of law in excess of the aforementioned Nineteen Thousand and no/100 ($19,000.00) Dollars consideration.'

The Defendant Tavern owners thereupon filed a Motion for Accelerated Judgment on the grounds that the 'Indemnification Agreement' constituted a settlement with the alleged intoxicated driver and that, as a result, Plaintiffs' action must be dismissed for failure to comply with the 'Name and Retain' provision of the Dramshop Act, M.C.L.A. § 436.22; M.S.A. § 18.993 as amended:

'No action against a retailer or wholesaler or anyone covered by this act or his surety, shall 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.'

From the trial court's order granting Defendants' Motion for Accelerated Judgment, Plaintiffs appeal as a matter of right.

In this case Plaintiffs-Appellants attack the constitutionality of the so-called 'Name and Retain' amendment of 1972 to the Dramshop Act, claiming it violates the equal protection clause of both the Michigan and the United States Constitutions. But, no claim was made in the trial court that the 'Name and Retain' amendment was unconstitutional. Where the constitutional issue is not preserved[69 MICHAPP 510] in the trial court by raising that question, it is too late to raise it for the first time on appeal. Furthermore, in Salas v. Clements, 57 Mich.App. 367, 226 N.W.2d 101 (1975), this Court upheld the constitutionality of the 'Name and Retain' statute. Plaintiffs' claim that the statute is unconstitutional is therefore denied.

But in addition, Plaintiffs say they complied with the statute by naming Defendants Alexanders when they commenced suit and that their hold harmless agreement expressly retains Defendants Alexanders in the litigation.

Regarding the first portion of the statute which requires making...