Hengartner v. Chet Swanson Sales, Inc.

• Decision Date: 04 May 1984
• Docket Number: Docket No. 63589
• Citation: 132 Mich.App. 751,348 N.W.2d 15
• Parties: Nancy HENGARTNER, Plaintiff-Appellant, v. CHET SWANSON SALES, INC., a Michigan corporation, Defendant-Appellee. 132 Mich.App. 751, 348 N.W.2d 15
• Court: Court of Appeal of Michigan — District of US

Page 15

348 N.W.2d 15

Nancy HENGARTNER, Plaintiff-Appellant, v. CHET SWANSON SALES, INC., a Michigan corporation Defendant-Appellee.

Docket No. 63589.

132 Mich.App. 751, 348 N.W.2d 15

Court of Appeals of Michigan.

Submitted Aug. 3, 1983.

Decided March 20, 1984.

Released for Publication May 4, 1984.

[132 MICHAPP 753] Robb, Dettmer & Phillips, P.C. by Mark M. Messing, Traverse City, for plaintiff-appellant.

Running, Wise & Wilson by Richard W. Ford, Traverse City, for defendant-appellee.

Before V.J. BRENNAN, P.J., and SHEPHERD and QUINNELL ^*, JJ.

QUINNELL, Judge.

In this action, plaintiff sought to recover for injuries allegedly caused by defendant's failure to adequately repair the brakes of her automobile. The circuit court held that plaintiff had failed to state a claim upon which relief could be granted, and defendant's motion for summary judgment pursuant to GCR 1963, 117.2(1) was granted. Plaintiff appeals as of right.

A motion for summary judgment under this subrule tests the legal sufficiency of the complaint. It must be resolved by treating as true all well-pled factual allegations and determining whether the claims made are so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. See, for example, Fuhrmann v. Hattaway, 109 Mich.App. 429, 433, 311 N.W.2d 379 (1981). Plaintiff's complaint alleges that she took her automobile to defendant for inspection and repair of the brakes, that defendant in fact did not inspect and repair the brakes but represented to plaintiff that it had, that defendant expressly and implicitly represented to plaintiff that the brakes were in good operative condition,[132 MICHAPP 754] that plaintiff was involved in a collision caused by brake failure almost immediately after leaving defendant's premises in her automobile, and that as a result of the collision plaintiff suffered various personal and property injuries.

Plaintiff relies on the Motor Vehicle Service and Repair Act, M.C.L. Sec. 257.1301 et seq.; M.S.A. Sec. 9.1720(1) et seq., and in particular on M.C.L. Sec. 257.1336; M.S.A. Sec. 9.1720(36), which provides:

"A facility that violates this act or who, in a course of dealing as set forth in this act or rules, engages in an unfair or deceptive method, act, or practice, is liable as provided in this act to a person who suffers damage or injury as a result thereof in an amount equal to the damages plus reasonable attorney fees and costs. If the damage or injury to the person occurs as the result of a wilful and flagrant violation of this act, the person shall recover double the damages plus reasonable attorney fees and costs." (Emphasis added.)

The phrase "liable as provided in this act" is troubling. The only other substantive provision in the act concerning a cause of action on the part of a private person is M.C.L. Sec. 257.1331; M.S.A. Sec. 9.1720(31), which provides in part:

"A customer is entitled to recover any amount paid to an unregistered facility for the repair of a motor vehicle belonging to that customer."

Conceivably, it could be argued that Sec. 36 does not create a cause of action itself, but merely provides for penalties for flagrant violations of the act and for costs and attorneys' fees, with recovery otherwise limited by Sec. 31. However, such an argument fails to account for the significant differences in the language employed in the two sections. The [132 MICHAPP 755] primary purpose of statutory construction is to ascertain and give effect to the intention of the Legislature. See, for example, Browder v. International Fidelity Ins. Co., 413 Mich. 603, 611, 321 N.W.2d 668 (1982). Courts presume that the Legislature did not intend to do a useless thing and therefore give effect to every part of a statute if reasonably possible. Turner v. Ford Motor Co., 81 Mich.App. 521, 526, 265 N.W.2d 400 (1978). Section 36 refers to "damage or injury" while Sec. 31 allows recovery of any amount paid to an unregistered facility for repair of a motor vehicle, without regard to whether any damage or injury resulted from the repair. On the other hand, Sec. 36 refers to "an unfair or deceptive method, act, or practice" while Sec. 31 refers merely to "an unregistered facility". Moreover, Sec. 36 refers to "any person who suffers damage or injury" while Sec. 31 refers merely to "a customer".

Section 36 must be read as creating a cause of action separate and distinct from that created by Sec. 31. Because of the significant differences in the terms employed in the two sections, a contrary result would mean that terms in the two sections would be given no effect. We conclude that "liable as provided in this act" refers to M.C.L. Sec. 257.1337; M.S.A. Sec. 9.1720(37), which establishes the vicarious liability of motor vehicle repair facilities for actions of certain individuals and of certain individuals for actions of facilities:

"(1) If a mechanic or mechanic trainee is employed by, or enters into a contract with, a motor vehicle repair facility, that mechanic or mechanic trainee for the purposes of a civil action brought pursuant to this act shall be considered to be an agent of the motor vehicle repair facility and the methods, acts, and practices of the mechanic or mechanic trainee shall be [132 MICHAPP 756] construed as the methods, acts, and practices of the motor vehicle repair facility.

"(2) A person who directly or indirectly controls a motor vehicle repair facility or its employees, as well as a general partner, officer or director of the facility shall be jointly and severally liable among themselves for a violation of this act, unless that person can demonstrate that he did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the violation occurred. There is a right to contribution as in cases of contract among persons so liable."

Defendant relies on a section of the statute governing no-fault automobile insurance, M.C.L. Sec. 500.3135; M.S.A. Sec. 24.13135, which provides with certain exceptions for the abolition of tort liability arising from the ownership, maintenance, or use of a motor vehicle. However, where two statutes are in conflict, the more specific statute, enacted subsequently to the more general statute, will prevail. In re Cole Estate, 120 Mich.App. 539, 548, 328 N.W.2d 76 (1982). The statute governing no-fault automobile insurance was enacted by 1972 P.A. 294, while the Motor Vehicle Service and Repair Act was enacted by 1974 P.A. 300. The latter statute is addressed more specifically to the problem of liability arising out of unfair or deceptive methods, acts, or practices by motor vehicle repair facilities. Therefore, in the event of any conflict between the two statutes in the context presented here, the latter statute will prevail.

We note that defendant is mistaken in relying on cases holding that M.C.L. Sec. 500.3135; M.S.A. Sec. 24.13135 prevails over provisions of the garage keepers' liability act, M.C.L. Sec. 256.541 et seq.; M.S.A. Sec. 9.1721 et seq. Buckeye Union Ins. Co. v. Johnson 108 Mich.App. 46, 310 N.W.2d 268 (1981), lv. den. 414 Mich. 873 (1982); Liberty Mutual Ins. Co. v. Ins. Co. of [132 MICHAPP 757] North America, 117...