Harris v. Lapeer Public School System

• Decision Date: 04 May 1982
• Docket Number: Docket No. 55497
• Citation: 114 Mich.App. 107,318 N.W.2d 621
• Parties: Elizabeth HARRIS and Larry Harris, Plaintiffs-Appellants, v. LAPEER PUBLIC SCHOOL SYSTEM, Defendant-Appellee, and LAPEER COUNTY ROAD COMMISSION and Rhonda Laverne Frederick, Defendants-Third-Party Plaintiffs-Appellees, v. Larry M. LAMPHIER, Individually, and as special guardian of Sherrie Lynn Lamphier, Third-Party Defendant, and CRESTVIEW MANOR, a Michigan co-partnership, Bernard J. Morgulec and Alexander G. Patchak, Jointly and Severally, Defendants-Cross-Plaintiffs-Appellees, v. CHATEAU CONSTRUCTION COMPANY, Defendants-Cross-Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 621

318 N.W.2d 621

114 Mich.App. 107

Elizabeth HARRIS and Larry Harris, Plaintiffs-Appellants, v. LAPEER PUBLIC SCHOOL SYSTEM, Defendant-Appellee, and LAPEER COUNTY ROAD COMMISSION and Rhonda Laverne Frederick, Defendants-Third-Party Plaintiffs-Appellees, v. Larry M. LAMPHIER, Individually, and as special guardian of

Sherrie Lynn Lamphier, Third-Party Defendant,

and

CRESTVIEW MANOR, a Michigan co-partnership, Bernard J.

Morgulec and Alexander G. Patchak, Jointly and Severally, Defendants-Cross-Plaintiffs-Appellees, v. CHATEAU CONSTRUCTION COMPANY, Defendants-Cross-Defendants-Appellees.

Docket No. 55497.

Court of Appeals of Michigan.

Submitted Jan. 5, 1982.

Decided March 4, 1982.

Released for Publication May 4, 1982.

John C. Foster, St. Clair Shores, and Kitch, Suhrheinrich, Smith, Saurbier & Drutchas, P. C., Detroit, for plaintiffs-appellants.

Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark, Detroit, for Lapeer Public School System and Rhonda Frederick.

Barbier, Goulet & Petersmarck, P. C., Mount Clemens, for Lapeer County Road Commission.

Thomas J. Doyle, Flint, for Crestview Manor, Patchak and Morgulec.

Before BASHARA, P. J., and ALLEN and T. M. BURNS, JJ.

PER CURIAM.

Plaintiffs appeal from the trial court's orders granting accelerated judgment in favor of the defendants on the ground that a release executed by plaintiffs barred their cause of action.

On December 15, 1976, an automobile driven by Sherrie Lynn Lamphier collided with a school bus operated by Rhonda Laverne Frederick and owned by defendant Lapeer Public School System. Plaintiff Elizabeth Harris was a passenger in the Lamphier automobile.

The accident occurred at an intersection marked by a stop sign and an advertising sign erected by cross-defendant Chateau Construction Company for defendant Crestview Manor. Frederick alleges that these signs obstructed her view of the highway and forced her to pull out onto the highway to obtain an unobstructed view of the cross street. As Frederick drove the bus into the intersection, it was struck by the automobile operated by Mrs. Lamphier, who was allegedly unable to avoid the collision because of the icy condition of the road. As a result of the accident, plaintiff Elizabeth Harris was injured resulting in loss of her spleen and Mrs. Lamphier suffered brain damage.

On December 22, 1977, plaintiffs executed a release supplied by Larry Lamphier's insurers, State Farm Insurance Company and Farm Bureau Insurance Company. The release provided in pertinent part:

"For the Sole Consideration of Eight Thousand and no/100 ---- Dollars, the receipt and sufficiency whereof is hereby acknowledged, the undersigned hereby releases and forever discharges Larry M. Lamphier his heirs, executors, administrators, agents and assigns, and all other persons, firms or corporations liable or who might be claimed to be liable, none of whom admit any liability to the undersigned but all expressly deny any liability from any and all claims, demands, damages, actions, causes of actions or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 15th day of Dec., 1976 at or near Lapeer Michigan.

"Undersigned hereby declares that the terms of this settlement have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned, and for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident.

"Undersigned hereby accepts draft or drafts as final payment of the consideration set forth above." (Underlined portions are handwritten.)

Plaintiffs commenced this action on December 14, 1978, against defendants Lapeer Public School System and Rhonda Laverne Frederick, Crestview Manor, co-owned by partners Alexander Patchak and Bernard Morgulec, and Lapeer County Road Commission. Plaintiffs added Chateau Construction Company as a party defendant on November 27, 1979. Thereafter, defendants Crestview Manor, Patchak and Morgulec filed a cross-claim against Chateau.

On January 28, 1980, defendant Lapeer Public School System added Larry Lamphier, individually and as special guardian of Sherrie Lynn Lamphier, as a third-party defendant. Larry Lamphier interposed plaintiffs' release as a defense to the suit and subsequently filed a motion for accelerated judgment. Following Lamphier's response, the other defendants (Crestview Manor, Patchak and Morgulec, Lapeer Road Commission, Lapeer Public School System and Chateau) moved to amend the pleadings to include the release as an affirmative defense. All defendants then filed motions for accelerated judgment pursuant to GCR 1963, 116.1(5), on the ground that the terms of the release discharged all defendants from liability.

The trial court granted defendants' motions to amend and, in orders of December 15, 1980, granted accelerated judgments in favor of defendants Lapeer Public School System and Rhonda Frederick, Lapeer County Road Commission, Crestview Manor, Patchak and Morgulec. Plaintiffs appeal from these orders.

No order of accelerated judgment was granted in favor of defendant Chateau Construction Company, although the trial court entered an order dismissing the "third-party action" against it on January 7, 1981. Chateau did not file a brief on appeal and it is unclear whether Chateau is a party to this appeal.

Plaintiffs' first contention that the trial judge erred in allowing defendants to amend their pleadings to include the release as an affirmative defense is without merit.

While a failure to include an affirmative defense in defendants' first responsive pleading generally waives that defense, Pryber v. Marriott Corp., 98 Mich.App. 50, 296 N.W.2d 597 (1980), aff'd 411 Mich. 887 (1981), such a defense may be introduced through amendment under GCR 1963, 118.1. Ben P. Fyke & Sons v. Gunter Co., 390 Mich. 649, 213 N.W.2d 134 (1973). A motion to amend should ordinarily be granted and will be denied only for particular reasons:

"In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be 'freely given'." Id., 656, 213 N.W.2d 134, citing Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

The foregoing reasons are absent here. The record does not establish any bad faith or dilatory motive on the part of the defendants. They became aware of the existence of the release only when Larry Lamphier raised the defense in answer to the school system's third-party complaint. Defendants then moved without undue delay to raise the defense. Further, plaintiffs have not established undue prejudice arising from the amendments.

Plaintiffs also contend that defendants' motions were untimely under GCR 1963, 116.1, which provides in part:

"In a party's first responsive pleading, or by motion filed not later than his first responsive pleading, a party may demand that service of process be quashed or that judgment be entered dismissing 1 or more claims asserted against him * * *."

Plaintiffs' argument that defendants' failure to move for accelerated judgment prior to or concurrently with their first responsive pleading waived their right to bring the motion has been rejected by this Court in Manufacturers Construction Co. v. Covenant Investment Co., 43 Mich.App. 123, 127, 204 N.W.2d 54 (1972), lv. den. 388 Mich. 810 (1972), wherein this Court reasoned:

"[T]he acceptance of amendments raising affirmative defenses which will completely dispose of the case necessarily creates this problem each time the amendment is followed by a motion for accelerated judgment. Requiring a party in such...