Felsner v. McDonald Rent-A-Car, Inc.

• Decision Date: 07 April 1992
• Docket Number: RENT-A-CA,INC,Docket No. 125275
• Citation: 484 N.W.2d 408,193 Mich.App. 565
• Parties: Michael J. FELSNER, Plaintiff-Appellee, v. McDONALD, Gregory C. Ferrebee, Norman Thrasher, and Philip Wooldridge, Defendants, and Spinners Performing Arts, Inc., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 408

484 N.W.2d 408

193 Mich.App. 565

Michael J. FELSNER, Plaintiff-Appellee, v. McDONALD RENT-A-CAR, INC., Gregory C. Ferrebee, Norman Thrasher, and Philip Wooldridge, Defendants and Spinners Performing Arts, Inc., Defendant-Appellant.

Docket No. 125275.

Court of Appeals of Michigan.

Submitted March 3, 1992, at Detroit.

Decided April 7, 1992, at 9:05 a.m.

Released for Publication June 22, 1992.

Thomas W. Ricard, Detroit, for plaintiff-appellee.

Vandeveer Garzia by Pamela L. Abbott, Detroit, for Spinners Performing Arts, Inc.

Before NEFF, P.J., and GRIBBS and MURPHY, JJ.

PER CURIAM.

Defendant Spinners Performing Arts, Inc., appeals by leave granted from an order of the circuit court denying its motion for reconsideration of the denial of its motion for summary disposition. We reverse.

This action arose from a traffic accident in which plaintiff, while riding a motorcycle, struck a van driven by Gregory Ferrebee. At the time of the accident, Ferrebee was employed as a valet by defendant Spinners Performing Arts, Inc., a corporation formed by the singing group known as the Spinners. The van was owned by McDonald Rent-A-Car, Inc., and was used by Ferrebee to transport costumes for defendant.

Plaintiff filed suit against Ferrebee and McDonald Rent-A-Car and eventually added defendant, alleging that defendant is liable on a theory of respondeat superior for the negligence of Ferrebee. The amended complaint does not allege any acts of independent negligence against defendant.

Plaintiff's claims against Ferrebee and McDonald Rent-A-Car were mediated. Defendant was not a party to the mediation. The mediation panel evaluated plaintiff's claim against Ferrebee and McDonald at $130,000. The three parties accepted the evaluation, and judgment was entered pursuant to the evaluation. The judgment was paid, and plaintiff executed a satisfaction of judgment in favor of Ferrebee and McDonald.

Defendant moved for summary disposition on the ground that plaintiff's release of Ferrebee also discharged defendant. The circuit court denied defendant's motions for summary disposition and for reconsideration.

Defendant contends that plaintiff's acceptance of the mediation evaluation with regard to Ferrebee also released it because it was sued only on a theory of vicarious liability for Ferrebee's negligence. At common law, all joint tortfeasors were released when one of the joint tortfeasors was released. Slater v. Ianni Construction Co., 268 Mich. 492, 494, 256 N.W. 495 (1934); Willis v. Total Health Care of Detroit, 125 Mich.App. 612, 617, 337 N.W.2d 20 (1983). Pursuant to M.C.L. Sec. 600.2925d; M.S.A. Sec. 27A.2925(4), however, the release of one joint tortfeasor no longer releases the other joint tortfeasors. Willis, supra, at 617, 337 N.W.2d 20. That section provides, in pertinent part:

When a release or a covenant not to sue or not to enforce judgment is given in good faith to 1 of 2 or more persons liable in tort for the same injury or the same wrongful death:

(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide. [M.C.L. Sec. 600.2925d; M.S.A. Sec. 27A.2925(4).]

A principal sued solely on the theory of vicarious liability for the negligence of its agent under the doctrine of respondeat superior, however, is not a joint tortfeasor. Theophelis v. Lansing General Hosp., 430 Mich. 473, 483; 424 N.W.2d 478 (1988); Willis, supra, 125 Mich.App. at 617, 337 N.W.2d 20. The release of the agent from liability therefore discharges the principal from vicarious liability. Theophelis, supra, 430 Mich. at 491, 424 N.W.2d 478; Lincoln v. Gupta, 142 Mich.App. 615, 621-622, 370 N.W.2d 312 (1985).

Plaintiff contends that the common-law rule that release of the agent discharges the principal from vicarious liability was abrogated by M.C.L. Sec. 600.2925d; M.S.A. Sec. 27A.2925(4). Our Supreme Court in Theophelis, however, addressed this question at length and concluded that the intent of the Legislature was not to abrogate this common-law rule. Theophelis, supra, 430 Mich. at 485-491, 424 N.W.2d 478.

In Theophelis, the plaintiffs sued a hospital and several medical personnel, alleging that the hospital was vicariously liable for the negligence of the staff and also alleging independent acts of negligence by the hospital. The plaintiffs settled with two of the individual defendants for whom the hospital was allegedly vicariously liable. The trial court, however, refused to strike the allegations regarding the hospital's vicarious liability for those defendants.

The jury returned a verdict of $1 million against the hospital and verdicts of no cause of action against the remaining defendants. This Court affirmed on appeal, 141 Mich.App. 199, 366 N.W.2d 249 (1985), but reversed on rehearing, 148 Mich.App. 564, 384 N.W.2d 823 (1986), holding that the release of the two individual defendants discharged the hospital from any vicarious liability with regard to those defendants. On appeal by leave granted, our Supreme Court held that M.C.L. Sec. 600.2925d; M.S.A. Sec. 27A.2925(4) did not abrogate the common-law rule that the release of an agent releases the principal from vicarious liability for the acts of that agent. Theophelis, supra, 430 Mich. at 480-491, 424 N.W.2d 478.

We disagree with plaintiff's contention that Theophelis is not a majority opinion and is therefore not a binding determination of this question....