Lark v. Detroit Edison Co.

• Citation: 297 N.W.2d 653,99 Mich.App. 280
• Decision Date: 11 August 1980
• Docket Number: 44254,Docket Nos. 44253
• Parties: Dennis LARK and Kathleen Lark, Plaintiffs, v. DETROIT EDISON COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. RELIANCE TRUCK COMPANY, Third-Party Defendant-Appellee. Lorraine BELOW, Domiciliary Administratrix of the Estate of Bernal Below, Deceased, and Martin Miller, Ancillary Administrator of the Estate of Bernal Below, Plaintiffs, v. DETROIT EDISON COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. RELIANCE TRUCK COMPANY, Third-Party Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

Page 653

297 N.W.2d 653

99 Mich.App. 280

Dennis LARK and Kathleen Lark, Plaintiffs, v. DETROIT EDISON COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. RELIANCE TRUCK COMPANY, Third-Party Defendant-Appellee.

Lorraine BELOW, Domiciliary Administratrix of the Estate of Bernal Below, Deceased, and Martin Miller, Ancillary Administrator of the Estate of Bernal Below, Plaintiffs, v. DETROIT EDISON COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. RELIANCE TRUCK COMPANY, Third-Party Defendant-Appellee.

Docket Nos. 44253, 44254.

Court of Appeals of Michigan.

Aug. 11, 1980.

Released for Publication Nov. 5, 1980.

John L. Christensen, Detroit, for defendant and third-party plaintiff-appellant.

Christine D. Oldani, Detroit, for Reliance Truck Co.

Martin M. Miller, Detroit, for Lorraine Below and Dennis Lark.

Before BASHARA, P. J., and RILEY and QUINNELL, ^* JJ.

RILEY, Judge.

These consolidated appeals arose out of two lawsuits brought against Detroit Edison Company (hereinafter Edison) for negligence in failing to provide two employees of Reliance Truck Company (hereafter Reliance) with a safe place to work.

In the fall of 1976, Edison was allowed to file third-party complaints against Reliance. Reliance subsequently filed motions for summary judgment on each third-party complaint. The motions were based on the fact that both Reliance and Edison were insured by Hartford Accident and Indemnity Company. Reliance argued that since it is impossible to sue oneself, the complaints should be dismissed. Edison believed that Reliance's interpretation of the insurance policy was correct and did not oppose the motions. The motions for summary judgment were granted on March 22, 1978.

On February 2, 1979, Edison filed motions to set aside orders dismissing the third-party complaints. Edison alleged that since the orders were entered, it had become aware of an exception in its insurance policy which would allow suit against Reliance. Edison argued that the lower court should set aside the summary judgments based on GCR 1963, 528.3. The lower court disagreed and denied Edison's motions on March 7, 1979.

GCR 1963, 528.3 provides relief from a final judgment or order under certain limited circumstances. Two of these reasons have been alleged by Edison here:

"(1) mistake, inadvertence, surprise, or excusable neglect (and) * * *

"(6) any other reason justifying relief from the operation of the judgment."

The lower court found no reason to set aside the summary judgments. This was a discretionary decision, one which will not be disturbed on appeal absent a clear showing of an abuse of discretion. See O'Neill v. O'Neill, 65 Mich.App. 332, 336, 237 N.W.2d 315 (1975); Freeman v. Remley, 23 Mich.App. 441, 448, 178 N.W.2d 816 (1970).

Edison first claims that it made a mistake by not opposing the motions for summary judgment. We do not believe that GCR 1963 528.3(1) was designed to relieve counsel of ill-advised or careless decisions. See Federal's Inc. v. Edmonton Investment Co., 555 F.2d 577 (CA 6, 1977); Hoffman v. Celebrezze, 405 F.2d 833 (CA 8, 1969). Its application should be limited to extraordinary circumstances where the failure to set aside the court's final determination will result in substantial injustice.

In Kibby v. Rhoads, 29 Mich.App. 261, 185 N.W.2d 117 (1970), plaintiff received a default judgment against the defendant for a slip and fall injury. Subsequently, plaintiff sued defendant's insurer in a garnishment action. Even though it was properly served with notice of the suit, the insurer did not defend the original action, claiming that it thought the suit had been dropped. The insurer than tried to have the default judgment set aside under GCR 1963, 528.3(1). This Court agreed with the trial court's conclusion that neither inadvertence, mistake, nor excusable neglect had been established. The Court found the insurer's story to be "incredible". Even if true, the Court stated, it was inexcusable that the insurer would not have investigated thoroughly whether the plaintiff had actually dropped the suit.

We find Edison's actions to be equally indefensible. Edison consciously chose not to answer the summary judgment motions because it believed Reliance's insurance contract covered the accidents. With diligence, Edison easily could have read the contract and...