Piper Aircraft Corp. v. Dumon

• Decision Date: 01 February 1985
• Docket Number: Docket No. 70006,A,No. 16,16
• Citation: 421 Mich. 445,364 N.W.2d 647
• Parties: PIPER AIRCRAFT CORPORATION, Plaintiff-Appellee, v. Gerald M. DUMON, Administrator of the Estate of David W. Logan, Deceased, Defendant, and Milton H. Berz, Jr., and Mary Jane Berz, Individually and d/b/a Berz Flying Service, Jointly and Severally, Defendants-Appellants. pril Term 1984. Calendar421 Mich. 445, 364 N.W.2d 647
• Court: Michigan Supreme Court

Page 647

364 N.W.2d 647

PIPER AIRCRAFT CORPORATION, Plaintiff-Appellee, v. Gerald M. DUMON, Administrator of the Estate of David W Logan, Deceased, Defendant and Milton H. Berz, Jr., and Mary Jane Berz, Individually and d/b/a Berz Flying Service, Jointly and Severally Defendants-Appellants.

Docket No. 70006, April Term 1984.

Calendar No. 16.

421 Mich. 445, 364 N.W.2d 647

Supreme Court of Michigan.

Argued April 4, 1984.

Decided Dec. 28, 1984.

Released for Publication Feb. 1, 1985.

Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C. by Thomas M. Peters, Detroit, for plaintiff-appellee.

Buchanan & Buchanan, P.C. by G. Cameron Buchanan, West Bloomfield, for Berz.

RYAN, Justice.

In a previous, underlying cause of action for personal injuries arising out of a plane crash, a joint and several judgment was rendered against plaintiff Piper Aircraft Corporation, defendant Logan, and defendants Berz. We are asked to determine whether, in this action for contribution, plaintiff Piper Aircraft Corporation may recover of defendants Logan and Berz such amounts as it has paid to the injured persons over and above its pro-rata share, where the liability of defendants Berz is vicarious, predicated solely upon the aircraft owners statute, M.C.L. Sec. 259.180a; M.S.A. Sec. 10.280(1). We agree with the judgment of the Court of Appeals and hold that Piper Aircraft Corporation may have contribution against the defendants Berz.

I FACTS

This litigation had its origins in an airplane crash that occurred on March 29, 1969. A Piper Cherokee Six, manufactured by the Piper Aircraft Corporation, was being piloted by David W. Logan ¹ and carried four passengers, two of whom were George P. Schwartz and Gregory J. Schwartz. Logan had rented the plane from Milton H. Berz, Jr., and Mary J. Berz, doing business as Berz Flying Service (all collectively referred to as "Berz"). On January 2, 1970, George P. Schwartz and Judith P. Schwartz, and Gregory J. Schwartz and Judith M. Schwartz brought actions for personal injuries sustained by George P. and Gregory J. Schwartz in the aircraft accident. The Schwartzes, sought a joint and several judgment against Piper, Logan, and Berz. It appears that the liability of Piper was predicated on a products liability theory based upon a claim of defective design of a fuel tank switch. The liability of Berz was based on 1958 P.A. 114, the aircraft owners statute, an amendment to the Aeronautics Code (1945 P.A. 327), M.C.L. Sec. 259.180a; M.S.A. Sec. 10.280(1). ²

Those actions were tried to a verdict before a jury and judgments were entered in favor of the plaintiffs on August 14, 1974.

The jury verdict in favor of Gregory J. Schwartz was in the amount of $136,500 against "defendants The Estate of David W. Logan, Deceased, Milton H. Berz, Jr. and Mary Jane Berz, Individually and doing business as Berz Flying Service, and Piper Aircraft Corporation, a foreign corporation, jointly and severally." The jury also returned a verdict against the same defendants, jointly and severally, in favor of Judith M. Schwartz in the amount of $36,750, in favor of George P. Schwartz in the amount of $215,250, and in favor of Judith P. Schwartz in the amount of $57,750. The judgments provided for taxed-costs and for interest from the date of filing the complaint. ³

On August 26, 1974, Logan and Berz paid 50 percent of the judgments owed to Gregory J. Schwartz and Judith M. Schwartz, including principal and interest. On the same date, Logan and Berz paid an amount somewhat less than 50 percent of the judgments, in favor of George P. Schwartz and Judith P. Schwartz. ⁴

Over two years later, on January 4, 1977, shortly after this Court originally denied Piper's application for leave to appeal, Piper paid the remaining 50 percent owing on the judgments in favor of Gregory J. Schwartz and Judith M. Schwartz, as well as costs and interest on costs. On the same date, Piper paid the balance of the judgments in favor of George P. Schwartz and Judith P. Schwartz. ⁵

Less than six months later, ⁶ on June 21, 1977, Piper filed a complaint in the Oakland Circuit Court claiming, pursuant to M.C.L. Sec. 600.2925; M.S.A. Sec. 27A.2925, "contribution and/or recovery of payment beyond its pro rata share" from Berz and Logan, jointly and severally, in the amount of $44,049.06. ⁷ Berz answered the complaint, admitting indebtedness to plaintiff Piper but only in the amount of $1,929.52. However, Berz explicitly denied that it was a joint tortfeasor with Piper, and averred that, as a result, M.C.L. Sec. 600.2925 had no application to plaintiff's alleged cause of action. Berz advises us, although without record support, that defendant Logan did not answer the complaint in this action for contribution, and that a default judgment has entered.

Piper moved for summary judgment on April 13, 1978, pursuant to GCR 1963, 117.2(2) and (3). The brief in support of Piper's motion cited M.C.L. Sec. 600.2925a(2), the amended contribution statute. See fn. 9. Berz answered Piper's motion, again asserting that plaintiff and defendants were not joint tortfeasors and that Berz had been only vicariously liable to the Schwartzes by virtue of the aircraft owners statute. Berz also claimed that the amended contribution statute was applicable only to torts committed on or after January 1, 1975. On September 6, 1978, Berz filed a counter motion for summary judgment pursuant to GCR 1963, 117.2(1), claiming, in essence, that Berz was not a joint tortfeasor and that, as a matter of law, since it was not a joint tortfeasor, it was not liable for contribution.

After a hearing on the cross motions for summary judgment, the Oakland Circuit Court, by opinion dated October 6, 1978, and judgment dated October 24, 1978, denied Piper's motion and granted Berz' motion for summary judgment of no cause of action against Piper. Relying on this Court's opinion in Moyses v. Spartan Asphalt Paving Co., 383 Mich. 314, 174 N.W.2d 797 (1970), the trial court concluded that Berz was not a joint tortfeasor within the meaning of the contribution statute. Analogizing to the liability imposed upon an automobile owner under the civil liability act for negligent operation of the vehicle by another, M.C.L. Sec. 257.401; M.S.A. Sec. 9.2101, the trial court stated that the liability imposed on the owner of an aircraft was similar and that such liability is imposed after a finding of negligent operation on the basis of the passive fact of mere ownership of the aircraft. The trial court stated: "The fact that the owner's negligence in this case was passive defeated a claim for contribution."

Both Piper and Berz moved for rehearing, and on November 5, 1979, the trial court issued a supplemental opinion reaffirming its prior decision that plaintiff was not entitled to contribution. In its opinion, the trial court concluded that "[t]he rule in Michigan remains that an owner negligent only by reason of the owner liability statute is not a joint tortfeasor," quoting Brinks v. Chesapeake & Ohio R. Co., 295 F.Supp. 1318, 1321 (W.D.Mich.1969), and that since Piper and Berz were not joint tortfeasors, the right to contribution did not apply.

Piper appealed, and the Court of Appeals reversed the decision of the trial court. 111 Mich.App. 613, 314 N.W.2d 709 (1981). The Court of Appeals found that the contribution statute, M.C.L. Sec. 600.2925; M.S.A. Sec. 27A.2925, was dispositive of the case, stating that the joint judgment against all original defendants, Logan, Berz, and Piper, brought them within the provisions of the contribution statute. The Court noted that Piper had paid more than its pro rata share of costs, interest, and principal in a judgment wherein all three original defendants were found jointly and severally liable. The Court of Appeals further stated that the time for defendant Berz to dispute the basis and extent of their liability was during the original suit in a cross-claim against Piper; it explained that once the joint judgment was rendered, it was too late for Berz to litigate the question of the extent of their liability as joint tortfeasors under the contribution statute. ⁸

Berz moved for rehearing, which was denied on July 27, 1982. Berz then filed an application for leave to appeal here, and this Court granted leave on December 6, 1983. 418 Mich 879 (1983).

II ANALYSIS

We begin our inquiry with the statute that was in effect when the underlying cause of action in this case accrued. M.C.L. Sec. 600.2925; M.S.A. Sec. 27A.2925 provided:

"Whenever a money judgment has been recovered jointly against 2 or more defendants in an action for bodily injury or death resulting therefrom, or property damage, and such judgment has been paid in part or in full by 1 or more of such defendants, each defendant who has paid more than his own pro rata share is entitled to contribution with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payment. Joint tort-feasors who are summoned in as third party defendants pursuant to court rule may likewise be liable for contribution. No person may be compelled to pay to any other defendant an amount greater than his pro rata share of the entire judgment." ⁹ (Emphasis added.)

Piper asserts that it is entitled to contribution from Berz based upon two theories. First, the plain language of the contribution statute allows recovery. A money judgment was "recovered jointly " against Piper, Berz and Logan. Piper paid more than its pro rata share, and thus Piper may have contribution against Berz. Second, Piper avers that it is entitled to contribution on the basis of this Court's decisions in Moyses v. Spartan Asphalt Paving Co., 383 Mich. 314, 174 N.W.2d 797 (1970), and Caldwell v. Fox, 394 Mich. 401, 231 N.W.2d 46 (1975).

Berz answered the motion for summary judgment as well as the complaint, asserting that Piper is not entitled to contribution because Piper and Berz were not joint...