Certified Questions from U.S. Court of Appeals for the Sixth Circuit, In re, Docket No. 68258

• Citation: 416 Mich. 558,331 N.W.2d 456
• Decision Date: 23 December 1982
• Docket Number: J,No. 5,Docket No. 68258,5
• Parties: , 35 UCC Rep.Serv. 382 . William J. KARL, Plaintiff-Appellant, v. BRYANT AIR CONDITIONING COMPANY and Carlysle Compressor Company, both Divisions of Carrier Corp., a foreign corporation, jointly and severally, Defendants-Appellees. une Term 1982. Calendar Supreme Court of Michigan
• Court: Supreme Court of Michigan

Page 456

331 N.W.2d 456

416 Mich. 558, 35 UCC Rep.Serv. 382

In re CERTIFIED QUESTIONS FROM the UNITED STATES COURT OF

APPEALS FOR the SIXTH CIRCUIT on Appeal from the

United States District Court, Eastern

District of Michigan, Southern

Division.

William J. KARL, Plaintiff-Appellant, v. BRYANT AIR CONDITIONING COMPANY and Carlysle Compressor

Company, both Divisions of Carrier Corp., a

foreign corporation, jointly and

severally, Defendants-Appellees.

Docket No. 68258, June Term 1982.

Calendar No. 5.

Supreme Court of Michigan.

Argued June 8, 1982.

Decided Dec. 23, 1982.

Ronald R. Stempien, P.C. by Ronald R. Stempien, Southgate, for plaintiff-appellant.

Law Offices of Gofrank & Kelman, and Law Offices of Capriccioso & Gofrank by Barry M. Kelman, Phillip G. Bozzo, Sally Steinhart, Southfield, for defendants-appellees.

Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick by Steven G. Silverman, Richard E. Shaw, Detroit, for amicus curiae Michigan Trial Lawyers Ass'n.

Ernest R. Bazzana, Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, Detroit, for amici curiae Ass'n of Defense Trial Counsel and Michigan Defense Trial Counsel.

WILLIAMS, Justice.

INTRODUCTION

This is a case of first impression. The issues are whether the comparative negligence provisions of M.C.L. Sec. 600.2949; M.S.A. Sec. 27A.2949, ¹ applies to a products liability action sounding in "negligence, breach of warranty and other misconduct"; and, if so, whether it is retrospective; and, if retrospective, whether it is constitutional.

This diversity case was removed from Oakland Circuit Court to the United States District Court for the Eastern District of Michigan. Plaintiff was injured when the terminal of an industrial air conditioner manufactured by defendant, a foreign corporation, blew out. After a verdict for the plaintiff, the federal trial judge, under M.C.L. Sec. 600.2949; M.S.A. Sec. 27A.2949, reduced plaintiff's damages by the corresponding amount that plaintiff was negligent, which was 95% of the total.

Specifically, we have agreed to answer three questions certified to us by the United States Court of Appeals for the Sixth "I. Whether the Michigan products liability statute, MCL 600.2945 et seq.; MSA 27A.2945 et seq., is to be construed as abrogating the principle of Michigan implied warranty jurisprudence that a plaintiff injured by breach of an implied warranty is entitled to recover the full measure of damages sustained, irrespective of any negligence by the plaintiff.

Circuit. The three questions are the following:

"II. Whether the Michigan products liability statute, MCL 600.2945 et seq.; MSA 27A.2945 et seq., if so construed, is to be applied to an implied warranty action accruing and sued upon prior to the enactment of the statute and brought to trial after the effective date of the statute.

"III. Whether the Michigan products liability statute, MCL 600.2945 et seq.; MSA 27A.2945 et seq., if so construed and applied, violates the Due Process Clause (art 1, Sec. 17) of the Michigan Constitution of 1963."

We hold first that under M.C.L. Sec. 600.2949; M.S.A. Sec. 27A.2949 a plaintiff injured by breach of an implied warranty is not entitled to recover the full damages sustained, if the plaintiff was negligent. Second, under Michigan law, the comparative negligence principle established in M.C.L. Sec. 600.2949; M.S.A. Sec. 27A.2949 can be applied to an implied warranty action accruing and sued upon prior to the enactment of the provision, but brought to trial after the effective date of that provision. Third, applying the statute in that way does not violate the Due Process Clause of the Michigan Constitution. Const.1963, art. 1, Sec. 17.

FACTS

In certifying the instant case from the Court of Appeals for the Sixth Circuit under GCR 1963, 797.2, the following statement of facts was entered by order:

"On May 23, 1975, while employed in Southfield, Michigan, as an air conditioner repairman, plaintiff William Karl was injured when the terminal of an industrial air conditioner manufactured by defendants blew out. On February 28, 1978, plaintiff filed suit in Oakland Circuit Court, alleging negligence and breach of implied warranty. Thereafter, the action was removed by defendants to the United States District Court for the Eastern District of Michigan pursuant to 28 USC 1441. As a case falling within federal diversity jurisdiction, the substantive law which the trial judge was obliged to apply, and which this Court is required to apply, is the substantive law of the State of Michigan.

"While this case was pending in the trial court, the Michigan Legislature, on December 13, 1978, enacted the Michigan products liability statute, MCL 600.2945 et seq. [MSA 27A.2945 et seq.], effective immediately. Therefore, this action came for trial before the Hon. Charles W. Joiner and a jury. At the conclusion of trial, the jury returned a special verdict finding, in pertinent part, that the total damages sustained were $52,000.00, that defendants breached an implied warranty, that plaintiff was negligent, and that plaintiff's negligence amounted to 95% of the total.

"Defendants then sought entry of judgment in the amount of $2,600 (5% of $52,000), while plaintiff sought entry of judgment in the amount of $52,000, the full measure of damages. Judge Joiner accepted the position advocated by defendant. Plaintiff then appealed to this Court, presenting the above-described issues of Michigan law."

I. WHETHER THE MICHIGAN PRODUCTS LIABILITY STATUTE, M.C.L. Sec. 600.2945 ET SEQ.; M.S.A. Sec. 27A.2945 ET SEQ., IS TO BE CONSTRUED AS ABROGATING THE PRINCIPLE OF MICHIGAN IMPLIED WARRANTY JURISPRUDENCE THAT A PLAINTIFF INJURED BY BREACH OF AN IMPLIED WARRANTY IS ENTITLED TO RECOVER THE FULL MEASURE OF DAMAGES SUSTAINED, IRRESPECTIVE OF ANY NEGLIGENCE BY THE PLAINTIFF.

The United States Court of Appeals for the Sixth Circuit has requested that we The plaintiff argues that both historically and presently products liability actions may sound either in negligence or breach of warranty without establishing privity with the defendant. See Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 134-135, 90 N.W.2d 873 (1958); Piercefield v. Remington Arms Co. Inc., 375 Mich. 85, 98, 133 N.W.2d 129 (1965). ³ He then makes three points. First, " 'concepts of negligence and fault, as defined by negligence standards, have no place in warranty recovery cases. Proof of negligence is unnecessary to liability for breach of implied warranty and the lack of it is immaterial to defense thereof' ". Piercefield, supra, 96, 133 N.W.2d 129, quoting Picker X-Ray Corp. v. General Motors Corp., 185 A.2d 919 (D.C.App., 1962). ⁴ Second, the Legislature did not repeal the implied warranty cause of action in enacting M.C.L. Sec. 600.2949; M.S.A. Sec. 27A.2949 and thereby create a "single theory of recovery" as found by Jorae v. Clinton Crop Service, 465 F.Supp. 952 (E.D.Mich., 1979). In other words, he argues there is no warrant to diminish the verdict by the percentage of plaintiff's comparative negligence, because a breach of warranty action is extant and is a contractual, not a negligence, action. Among other reasons advanced for this conclusion were (a), that since redress was sought for injury caused by "manufacture, construction, design", etc., the Legislature was not thinking of an implied warranty action, and (b), that the term "comparative fault" was rejected in favor of the term "comparative negligence". ⁵ Third, in Defendant, on the other hand, has made two main arguments. First, referring to Jorae, supra, and to Justice Levin's opinion, as a Court of Appeals judge, in Cova v. Harley Davidson Motor Co., 26 Mich.App. 602, 614, 182 N.W.2d 800 (1970), the defendant suggests that the Legislature in 1978 P.A. 495 may have intended to create "one theory of 'products liability' " and thereby eliminate the so-called contractual exemption from contributory negligence and comparative negligence. Second, defendant argued that the Legislature intended the comparative negligence provision to apply by its plain and specific language to "all" and "any" products liability actions.

                consider whether the federal trial judge erred, as a matter of Michigan law, in reducing plaintiff's recovery by 95% under the comparative negligence principle adopted in M.C.L. Sec. 600.2949;  M.S.A. Sec. 27A.2949.  This requires us to determine whether the comparative negligence principle in that section was intended to apply to products liability actions sounding in implied warranty. 2
                M.C.L. Sec. 600.2949;  M.S.A. Sec. 27A.2949, the Legislature intended to apply comparative negligence only to products liability negligence actions;   and this also indicates that the Legislature was not thinking of implied warranty actions
                

Our reading of the statute does not require us to determine whether the Legislature completed the possible confluence of products liability negligence and implied warranty actions into one cause of action or whether two separate actions still remain extant. We hold that the combination of Sec. 2949, the products liability comparative negligence section, and Sec. 2945, the section defining products liability actions, by plain, unambiguous language, indicates that the Legislature intended to apply comparative negligence to all products liability actions, regardless of whether two separate actions in negligence and breach of warranty remain extant or whether a new unified products liability action was created by the act.

Before examining the actual language of the statute, it is well to have in mind certain rules of statutory construction. The most important rule, of course, is to discover and give effect to the legislative intent. Spartan Asphalt Paving Co. v. Grand Ledge Mobile Home Park, 400 Mich. 184, 187, 253 N.W.2d 646 (1977); Dussia v. Monroe County Employees Retirement System, 386 Mich. 244, 248, 191 N.W.2d 307 (1971).

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