Dobson v. Maki
| Decision Date | 16 July 1990 |
| Docket Number | 110739 and 116468,Docket Nos. 110738 |
| Citation | 457 N.W.2d 132,184 Mich.App. 244 |
| Parties | Christine DOBSON, personal representative of the Estate of Heather Ann Lentz, deceased, and Christine Dobson, individually, Plaintiff-Appellee, v. Todd Reuben MAKI, John Reuben Maki, John Veker, and Calvin C. Chagnon, Defendants-Appellees, and Richard Herbert Stein and Paul DesRochers, Jr., Defendants, and Bill's Corner Store, Inc., Defendant-Appellant. Debra ROGERS, by her next friend, Bertha Rogers, and Bertha Rogers, and Shirley Rogers, individually, Plaintiffs-Appellees, v. Todd Reuben MAKI, John Reuben Maki, John Veker, Calvin C. Chagnon, and Paul DesRochers, Jr., Defendants-Appellees, and Richard Herbert Stein, Defendant, and Bill's Corner Store, Inc., Defendant-Appellant. UNITED STATES FIDELITY AND GUARANTY COMPANY, an Insurance Company licensed in the State of Michigan, Plaintiff-Appellant, v. Paul DesROCHERS, Jr., Christine Dobson, personal representative of the Estate of Heather Ann Lentz, deceased, Christine Dobson, individually, Todd Reuben Maki, John Reuben Maki, John Veker, Debra Rogers, by her next friend, Bertha Rogers, Bertha Rogers, individually, Shirley Rogers, Richard H. Stein, Calvin C. Chagnon, and Bill's Corner Store, Inc., Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Goodman & Makinen by Michael E. Makinen, Hancock, for Christine Dobson.
Wisti & Jaaskelainen, P.C. by Mikael G. Hahner, Hancock, for Bertha and Shirley Rogers.
Weber, Swanson & Dettmann by Keith E. Swanson, Marquette, for U.S. Fidelity and Guar. Co.
Garfield W. Hood, L'Anse, for Bill's Corner Store, Inc.
Before SHEPHERD, P.J., and SULLIVAN and NEFF, JJ.
In these consolidated appeals, Bill's Corner Store, a defendant in the principal action, appeals by leave of this Court from the trial court's decision denying its motion for summary disposition as to claims for damages arising out of the indirect sale of alcohol to a minor by the plaintiffs in the principal action. United States Fidelity and Guaranty Company (USF & G), plaintiff in its subsidiary declaratory judgment action, appeals as of right from the trial court's order denying its motion for summary disposition and order of judgment finding that USF & G has a duty to defend Paul DesRochers, Jr., a defendant in the principal action. USF & G additionally appeals from the trial court's denial of a default judgment against Paul DesRochers, Jr.
The principal action arose as the result of an automobile accident. In March of 1987, Todd Reuben Maki, Heather Ann Lentz and Debra Rogers left a party that they had been attending. Maki, who had allegedly consumed alcohol at the party, was the driver of the vehicle. After leaving the party the vehicle collided into a tree. Heather Lentz was killed and Debra Rogers suffered serious injuries.
An admission fee was charged to enter the party which the three young people had attended. In return, kegs of beer were provided to the partygoers. Paul DesRochers, Jr., was allegedly one of several persons who had arranged the party. Bill's Corner Store is the establishment from which the kegs of beer were allegedly purchased by the party organizers. USF & G is the insurance company which carries homeowner's insurance on Paul DesRochers, Sr., father of Paul DesRochers, Jr.
Bill's Corner Store argues that the trial court erred in denying its motion to strike or in the alternative its motion for summary disposition as to paragraph 5 of Count 5 of the principal plaintiffs' complaints. We agree. Paragraphs 4 and 5 of Count 5 of the principal plaintiffs' complaints allege:
4. That in violation of the prohibitions as set forth in MCLA 436.22 [MSA 18.993], Defendant, Bill's Corner Store, Inc. by and through their agents, servants and employees, on March 14, 1987, sold, furnished, or gave alcoholic beverages to a minor, to-wit: Defendant, Todd Reuben Maki, or in the alternative, to persons who were acting as the implicit agents of Defendant, Todd Reuben Maki, when Defendant licensee knew, or in the exercise of reasonable care, should have known that said individuals were acting as agents or for Defendant, Todd Reuben Maki, in that repeated purchases of alcoholic beverages were made and that Defendant, Todd Reuben Maki, was present during the purchase of said alcoholic beverages.
5. That Defendant, Bill's Corner Store, Inc., further violated the prohibitions as set forth in MCLA 436.22, in that said Defendant, by and through its agents, servants and employees, sold alcoholic beverages to a minor, to-wit: Defendant, John Veker, and that such sale was a proximate cause of the damages in this Complaint set forth, in that such alcohol sold by Defendant Bill's Corner Store, Inc., to Defendant, John Veker, was consumed and made available to other minors, including Defendant, Todd Reuben Maki.
The trial court granted the motion for summary disposition with respect to the claim in paragraph 4 of Count 5 on the basis that it was a claim for the indirect sale of alcoholic beverages to a minor which the trial court held is not a permissible claim under the dramshop act. The trial court however found paragraph 5 of Count 5 to be a proper claim.
In 1986 subsection (3) of the dramshop act, M.C.L. § 436.22(3); M.S.A. § 18.993(3), was amended. Prior to its amendment that subsection provided:
A retail licensee shall not directly or indirectly, individually or by a clerk, agent, or servant sell, furnish, give, or deliver alcoholic liquor to a minor except as provided in this act, nor to a person who is visibly intoxicated. A retail licensee who violates this subdivision shall pay all actual damages that may be awarded to a person for injuries inflicted upon the person, the person's property or means of support, or otherwise resulting from the selling, furnishing, giving, or delivering of alcoholic liquor to the person.
Following its 1986 amendment by 1986 P.A. 176, § 1, subsection (3) states:
A retail licensee shall not directly, individually, or by a clerk, agent, or servant sell, furnish, or give alcoholic liquor to a minor except as otherwise provided in this act, nor directly or indirectly, individually or by a clerk, agent, or servant sell, furnish, or give alcoholic liquor to a person who is visibly intoxicated.
There is no dispute that the amended version of the dramshop act is applicable to this case. In the amended version the Legislature clearly deleted the provision for indirect sales to minors, while leaving intact liability for indirect sales to visibly intoxicated persons. By the clear wording of the statute we can conclude that the Legislature intended to preclude dramshop liability for the indirect sale of intoxicants to minors.
The trial court erred when it failed to grant appellant summary disposition as to paragraph 5 of Count 5 of the principal plaintiffs' complaints. That allegation, in our opinion, is nothing more than an ambiguous allegation of liability based upon the indirect sale of alcohol to a minor. We further find that the allegation in paragraph 5 of Count 5 is not permissible pursuant to M.C.L. § 436.22(4); M.S.A. § 18.993(4). That subsection of the dramshop act states:
Except as otherwise provided in this section, an individual who suffers damage or is personally injured by a minor or visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of alcoholic liquor to the minor or visibly intoxicated person, if the unlawful sale is proven to be a proximate cause of the damage, injury, or death, or the spouse, child, parent, or guardian of that individual, shall have a right of action in his or her name against the person who by selling, giving; or furnishing the alcoholic liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the damage, injury, or death. [Emphasis added.]
It is our opinion that M.C.L. § 436.22(4); M.S.A. § 18.993(4) does not contemplate liability where the minor inflicting the injury and the minor who purchased the alcohol were not the same person. If we were to read this section as allowing liability where the sale of alcohol to one minor was the proximate cause of the injury caused by another minor who had ingested the alcohol, we would invalidate the Legislature's explicit withdrawal of indirect liability for the sale of alcohol to minors.
We conclude that appellant was entitled to judgment as a matter of law on the allegation contained in paragraph 5 of Count 5 of the principal plaintiffs' complaints. MCR 2.116(C)(8). The trial court's decision denying the motion is reversed.
We next address the claims of USF & G which pertain to the action brought by it for declaratory relief. USF & G sought to have the trial court find that it had no duty to defend Paul DesRochers, Jr., on the basis that he was not covered by his father's homeowner's insurance policy. USF & G maintains that the younger DesRochers was not domiciled at his father's home. In the declaratory relief action all of the parties to the consolidated personal injury cases were named as defendants.
USF & G first asserts that the trial court erred in failing to grant a default judgment against Paul DesRochers, Jr. It is not disputed that DesRochers failed to file an answer to the complaint and in fact was not contesting USF & G's claim that he was not domiciled with his father at...
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