O'Dowd v. General Motors Corp.

• Decision Date: 03 December 1984
• Docket Number: No. 5,Docket No. 70460,5
• Citation: 419 Mich. 597,358 N.W.2d 553
• Parties: Kathleen O'DOWD, Personal Representative of the Estate of Dennis J. O'Dowd, Deceased, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, a Delaware corporation, Defendant-Third-Party Plaintiff-Appellant, and UNIROYAL CORPORATION, Defendant-Third-Party Plaintiff-Appellee, v. HILLCREST COUNTRY CLUB, a Michigan corporation, Third-Party Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 553

358 N.W.2d 553

419 Mich. 597

Kathleen O'DOWD, Personal Representative of the Estate of Dennis J. O'Dowd, Deceased, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, a Delaware corporation, Defendant-Third-Party Plaintiff-Appellant, and UNIROYAL CORPORATION, Defendant-Third-Party Plaintiff-Appellee, v. HILLCREST COUNTRY CLUB, a Michigan corporation, Third-Party

Defendant-Appellee.

Docket No. 70460.

Calendar No. 5.

Supreme Court of Michigan.

Argued May 8, 1984.

Decided Dec. 3, 1984.

Ronald R. Stempien, P.C., Ronald R. Stempien, Southgate, Gregory J. Stempien, P.C., as successor firm to Stempien & Stempien, P.C., Gregory J. Stempien, Livonia, for plaintiff-appellee.

Dykema, Gossett, Spencer, Goodnow & Trigg, Derek I. Meier, Jeffrey M. Lipshaw, Detroit, for defendant-third-party plaintiff-appellant; Mary Ann McKinnon, Gen. Motors Corp., Detroit, of counsel.

LEVIN, Justice.

The question presented is whether an automobile manufacturer, subject to liability to the personal representative of the estate of a person killed in an automobile accident pursuant to the wrongful death act, ¹ and a purveyor of intoxicating liquor, subject to liability under the dramshop act ² to the wife and child of the deceased for providing liquor to the deceased, are "jointly or severally liable in tort for the same injury to a person or property or for the same wrongful death" for purposes of Sec. 1 of the contribution statute. ³ We hold that they are where the wrongful death action is maintained by the personal representative for the benefit of the deceased's wife and child, and therefore the automobile manufacturer may seek contribution from the club which furnished the liquor.

I

This wrongful death action was commenced against General Motors, the manufacturer of the automobile Dennis J. O'Dowd was driving when he was killed in an automobile accident. ⁴ As required by the wrongful death act, this action was brought by the personal representative of his estate, his wife, Kathleen O'Dowd. ⁵ The complaint seeks to recover on a product liability theory and for four categories of damages: 1) medical, hospital, and funeral expenses incurred by the estate; 2) pain and suffering endured by O'Dowd following the accident and before his death; 3) loss of support, society, and companionship suffered by the heirs of his estate; and 4) loss of support, society, and companionship suffered by O'Dowd's wife, Kathleen, and son, Thomas. ⁶

During the hours preceding the accident, O'Dowd had consumed beer and liquor at the Hillcrest Country Club. The trial court granted General Motors leave to file a third-party complaint seeking contribution from Hillcrest on the basis of an alleged violation of the dramshop act. ⁷ The Court of Appeals reversed. The Court reasoned that contribution was not obtainable because this action had been brought by the personal representative of O'Dowd's estate and only O'Dowd's heirs could maintain a dramshop action against Hillcrest:

"Because the potential liability of the club is to plaintiff in her individual capacity it cannot be said to be a common liability with that of [General Motors] to plaintiff as personal representative of her husband's estate. In these circumstances, contribution is not appropriate and the country club should not have been added as a third-party defendant." O'Dowd v. General Motors Corporation, unpublished opinion per curiam of the Court of Appeals, decided October 12, 1982 (Docket No. 58178). ⁸

We reverse.

II

At common law, contribution was not, as a general rule, recoverable among or between joint wrongdoers or tortfeasors. ⁹ The Legislature partially abrogated the common-law bar by adopting the 1939 Uniform Contribution Among Tortfeasors Act which provided for contribution in respect of a judgment obtained against two or more persons jointly. ¹⁰ This Court abolished remnants of the common-law rule in Moyses v. Spartan Asphalt Paving Co., 383 Mich. 314, 329, 334, 174 N.W.2d 797 (1970). ¹¹

Subsequently, the Legislature, at the urging of the Law Revision Commission, ¹² substituted ¹³ the substance of the 1955 Uniform Contribution Among Tortfeasors Act ¹⁴ for the 1941 act. Section 1 of the statute now provides:

"(1) Except as otherwise provided in this act, when 2 or more persons become jointly or severally liable in tort for the same injury to a person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them." (Emphasis added.) ¹⁵

The former limitation on contribution among tortfeasors to the class of tortfeasors where a judgment was obtained against two or more persons jointly was thought to preclude contribution where (i) the acts of the tortfeasors were separate, independent, or concurrent rather than joint or in concert, or (ii) where the tortfeasors were liable in tort on different legal theories. ¹⁶ The revised act by explicitly providing for contribution among tortfeasors "severally" liable in tort extended contribution to these situations.

Under the revised act, all that is necessary to enforce contribution is that the tortfeasors commonly share a burden of tort liability ¹⁷ or, as it is sometimes put, there is a common burden of liability in tort.

III

Had O'Dowd survived the accident, and Kathleen or Thomas ¹⁸ had joined him in bringing a product liability action against General Motors, Hillcrest and General Motors would share a common burden of tort liability to Kathleen and Thomas. ¹⁹ If O'Dowd had been injured by a drunken driver, the tavern, the manufacturer of the automobile and the driver could be under a common burden of tort liability to O'Dowd and his wife and child. Yet it is argued, and the Court of Appeals held, that General Motors and Hillcrest cannot share a common burden of tort liability in this case because any tort liability on the part of General Motors in this wrongful death action would be owed to the personal representative of O'Dowd's estate and any tort liability on the part of Hillcrest would be owed to O'Dowd's heirs in their individual capacities. ²⁰

Thus, O'Dowd's personal representative essentially contends that contribution among tortfeasors is obtainable only where a common burden of tort liability is owed to the same plaintiff. We do not agree.

A

Section 1 of the contribution statute provides for contribution among tortfeasors "jointly or severally liable in tort for the same injury to a person or property or for the same wrongful death". The statute does not in terms focus on the identity of the plaintiff, but rather on the nature of the injury suffered; section 1 says nothing about the capacity in which the plaintiff brought the action. We do not understand the phrase "to a person or property" as conditioning contribution among tortfeasors on liability to the same plaintiff, but rather as providing that contribution is obtainable without regard to whether the defendants have been sued for injury to person, injury to property, or wrongful death. If the defendants are jointly or severally liable in tort for "the same injury to a person" or for "the same injury to * * * property" or for "the same wrongful death", contribution pursuant to Sec. 1 is obtainable. It was not part of the legislative purpose to provide for contribution from a dramshop where the injured person survives an automobile accident, but to deny it where he was killed in the accident.

This view is supported by Sec. 4 of the statute, which omits the phrase "to a person or property" and provides for setoff when the plaintiff settles with "1 of 2 or more persons liable in tort for the same injury or the same wrongful death ". (Emphasis supplied). ²¹ The Legislature did not intend to limit contribution under Sec. 1 to tortfeasors liable to the same plaintiff while requiring setoff under Sec. 4 where tortfeasors are liable for the same injury or for the same wrongful death, but are not liable to the same plaintiff.

B

In Moyses, supra, this Court "returned the doctrine of contribution among non-intentional wrongdoers to the original equitable rules". Caldwell v. Fox, 394 Mich. 401, 419-420, 231 N.W.2d 46 (1975). It would not be consistent with equitable rules to deny contribution because a wrongful death action may only be maintained by the deceased's personal representative. The Supreme Court of Minnesota, responding to the argument that there was no common liability to the injured person in tort, said

"Contribution is a flexible, equitable remedy designed to accomplish a fair allocation of loss among parties. Such a remedy should be utilized to achieve fairness on particular facts, unfettered by outworn technical concepts like common liability." Lambertson v. Cincinnati Corp, 312 Minn. 114, 128, 257 N.W.2d 679 (1977).

The contribution statute provides a substantive basis for contribution, grounded in the concept that where more than one person is legally responsible for the loss they should share in and contribute to the cost of providing reparations, which is not dependent on the form of the several causes of action. Cf. Sziber v. Stout, 419 Mich. 514, 358 N.W.2d 330 (1984).

C

General Motors is not seeking contribution for two categories of damages sought in this wrongful death action by the personal representative of O'Dowd's estate: 1) medical, hospital, and funeral expenses incurred by the estate; and 2) pain and suffering endured by O'Dowd following the accident and before his death. Kathleen and Thomas O'Dowd could not recover for such elements of damages from Hillcrest in a dramshop action, and General Motors cannot obtain contribution therefor.

General Motors is seeking contribution with respect to damages compensating for the loss of support, society, and companionship. With respect to these damages, General Motors and Hillcrest may become "severally liable in tort * * * for the same wrongful death", and contribution is proper under Sec....