Reurink Bros. Star Silo, Inc. v. Clinton County Road Com'rs

• Decision Date: 19 August 1987
• Docket Number: Docket No. 88010
• Citation: 409 N.W.2d 725,161 Mich.App. 67
• Parties: REURINK BROTHERS STAR SILO, INC., a Michigan Corporation, and Harry A. Stark, Jr., Plaintiffs-Appellants, v. CLINTON COUNTY ROAD COMMISSIONERS, Defendant-Appellee. 161 Mich.App. 67, 409 N.W.2d 725
• Court: Court of Appeal of Michigan — District of US

Page 725

409 N.W.2d 725

REURINK BROTHERS STAR SILO, INC., a Michigan Corporation and Harry A. Stark, Jr., Plaintiffs-Appellants, v. CLINTON COUNTY ROAD COMMISSIONERS, Defendant-Appellee.

Docket No. 88010.

161 Mich.App. 67, 409 N.W.2d 725

Court of Appeals of Michigan.

Submitted Oct. 10, 1986.

Decided Feb. 4, 1987.

Released for Publication Aug. 19, 1987.

[161 MICHAPP 68] Robert G. Chaklos, Sr. and Thomas C. Wimsaty, Saginaw, for plaintiffs-appellants.

Foster, Swift, Collins & Coey, P.C., by James D. Adkins and James B. Doezema, Lansing, for defendant-appellee.

Before MAHER, P.J., and HOLBROOK and STEMPIEN , JJ.

PER CURIAM.

This is an appeal by the plaintiffs, Reurink Brothers Star Silo, Inc., and Harry A. Stark, Jr. (Reurink Brothers), from the trial court's order of summary judgment on their claim for contribution against the Board of County Road Commissioners of the County of Clinton for failure to state a claim upon which relief may be granted.

The underlying injury occurred on August 2, 1983, at approximately 4 p.m. Harry A. Stark, Jr., was driving south on an unpaved section of Tallman Road at or near its intersection with Herbison Road in the County of Clinton. Stark's vehicle was registered to Reurink Brothers. At the same time, Elizabeth Musat, was driving another vehicle on an unpaved section of Herbison Road, [161 MICHAPP 69] approaching the intersection with Tallman Road. The two vehicles collided and Mary Musat died of resulting injuries.

A wrongful death claim was brought against Reurink Brothers, on behalf of the estate of Mary Musat. Judgment was entered in favor of the estate of Mary Musat in the amount of $706,418.53 on September 11, 1984. A timely appeal was taken by Reurink Brothers. However, on March 29, 1985, that appeal was dismissed by stipulation pursuant to a settlement in the amount of $750,000.

On July 16, 1985, Reurink Brothers filed the instant claim in the Clinton Circuit Court, seeking contribution on the part of the defendant as a joint tortfeasor under Michigan's contribution statute, M.C.L. Sec. 600.2925a et seq.; M.S.A. Sec. 27A.2925(1) et seq. In its responsive pleading, on August 12, 1985, the county brought a motion to dismiss, alleging that Reurink Brothers failed to plead that the county was joined in the prior action, failed to plead that the settlement extinguished the county's liability and failed to plead that notice was provided to the county. That motion was granted, resulting in this appeal.

Reurink Brothers argues that the trial court erred by granting summary disposition. The county's motion was brought under MCR 1985, 2.116(C)(8), failure to state a claim upon which relief may be granted. As we have held on a number of occasions, motions brought under this subrule are decided on the pleadings alone. Haddrill v. Damon, 149 Mich.App. 702, 704-705, 386 N.W.2d 643 (1986).

"The motion tests the legal basis of the complaint, not whether it can be factually supported. Unless the claim is so clearly unenforceable as a matter of law that no factual development can [161 MICHAPP 70] possibly justify a right to recovery, the motion should be denied. McCallister v Sun Valley Pools, Inc, 100 Mich App 131, 135; 298 NW2d 687 (1980), lv den 411 Mich 905 (1981)."

The right to contribution in Michigan is controlled entirely by statute, since there was no right to contribution at common law. Paisley v. United Parcel Service, Inc., 38 Mich.App. 450, 455, 196 N.W.2d 813 (1972), Wilhelm v. The Detroit Edison Co., 56 Mich.App. 116, 157, 274 N.W.2d 289 (1974), lv. den. 393 Mich. 787 (1975), and Sziber v. Stout, 419 Mich. 514, 527, 358 N.W.2d 330 (1984). Michigan's contribution statute, as amended by 1974 P.A. 318, provides in part:

"(1) Except as otherwise provided in this act, when 2 or more persons become jointly or severally liable in tort for the same injury to a person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.

"(2) The right of contribution exists only in favor of a tort-feasor who has paid more than his pro rata share of the common liability and his total recovery is limited to the amount paid by him in excess of his pro rata share. A tort-feasor against whom contribution is sought shall not be compelled to make contribution beyond his own pro rata share of the entire liability." M.C.L. Sec. 600.2925a; M.S.A. Sec. 27A.2925(1).

Here, paragraph 11 of the complaint alleged that the action was brought pursuant to M.C.L. Sec. 600.2925a et seq.; M.S.A. Sec. 27A.2925(1) et seq. Paragraphs 5-7 describe the fatal accident at or near the intersection of Tallman and Herbison Roads in Clinton County. Paragraphs 3 and 13 allege that the county had jurisdiction over the crossing and [161 MICHAPP 71] therefore had responsibility for its care and control. Paragraph 8 states that a wrongful death claim was brought against Reurink Brothers on behalf of the deceased. Paragraphs 9 and 10 allege:

"9.

"That Judgement has been entered in the Circuit Court for the County of Clinton in favor of David L. Musat, Personal Representative of the Estate of Mary Elizabeth Musat, deceased, in the amount of Seven Hundred Six Thousand Four Hundred Eighteen and 53/100 ($706.418.53) Dollars, said Judgment having entered on the 11th day of September, 1984.

"10.

"That the appeal which was timely taken from said Judgment was dismissed by Stipulation on March 29, 1985, pursuant to a settlement in the amount of Seven Hundred Fifty Thousand ($750,000)."

Numerous other paragraphs of the complaint allege various contributing acts or omissions of the county.

Nowhere in the complaint does Reurink Brothers allege that it paid more than its pro rata share of the common liability. However, the county's motion alleged only the following deficiencies in Reurink Brother's pleadings:

"(a) Plaintiffs did not join this Defendant in the suit brought against the Plaintiffs by the Estate of the Deceased nor did the Plaintiffs make timely notification to the Road Commission of its intent to file a claim.

"(b) Plaintiffs have not alleged that the settlement entered into by the Plaintiffs and the Estate of the Deceased extinguished the common liability arising from the accident."

The errors alleged by the county were intended [161 MICHAPP 72] to refer to the following provision within the contribution statute:

"(3) A tort-feasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor if any of the following circumstances exist:

"(a) The liability of the contributee for the injury or wrongful death is not extinguished by the settlement.

"(b) A reasonable effort was not made to notify the contributee of the pendency of the settlement negotiations.

"(c) The contributee was not given a reasonable opportunity to participate in the settlement negotiations.

"(d) The settlement was not made in good faith." M.C.L. Sec. 600.2925a(3); M.S.A. Sec. 27A.2925(1)(3).

As the county asserts, Reurink Brothers failed to plead that the settlement it entered into extinguished the county's liability. Reurink Brothers also failed to allege that it had paid its pro rata share of the common liability or that a reasonable effort was made to notify the contributee (the county) of the negotiations.

The statute implicitly sets forth the elements of a claim for contribution by a settling tortfeasor:

(1) There must be joint liability on the part of the plaintiff and defendant;

(2) The plaintiff must have paid more than its pro rata share of the common liability;

(3) The settlement entered into by the plaintiff must extinguish the liability of the defendant;

(4) A reasonable effort must have been made to notify the defendant of the pendency of the settlement negotiations;

(5) The defendant must be given a reasonable [161 MICHAPP 73] opportunity to participate in settlement negotiations; and

(6) The settlement must be made in good faith.

Since the complaint in this instance did not allege either (3) or (4), it fails to state a cause of action. We also note that the complaint fails to allege (2), (5) and (6), though that issue was not raised by the county in the trial court.

Despite its pleading that it "settled" the prior action and despite the fact that the county's motion was filed under MCR 2.116(C)(8), Reurink Brothers argues that this Court should look outside of the pleadings to determine that it in fact "satisfied the judgment." Thus, Reurink Brothers would have this Court conclude that its claim does not fall under paragraph (3) of the statute, M.C.L. Sec. 600.2925a(3); M.S.A. Sec. 27A.2925(1)(3), but under paragraph (5)

"A tort-feasor who satisfies all or part of a judgment entered in an action for injury or wrongful death is not entitled to contribution if the alleged contributee was not made a party to the action and if a reasonable effort was not made to notify him of the commencement of the action. Upon timely motion, a person receiving such notice may intervene in the action and defend as if joined as a third party." M.C.L. Sec. 600.2925a(5); M.S.A. Sec. 27A.2925(1)(5).

Even if Reurink Brother's complaint is read to state a cause of action under paragraph (5), it fails to properly allege that the county was made a party to the prior action and...