Rowbotham v. Detroit Auto. Inter-Insurance Exchange

• Decision Date: 27 May 1976
• Docket Number: Docket No. 22700,INTER-INSURANCE
• Citation: 244 N.W.2d 389,69 Mich.App. 142
• Parties: Thomas Henry ROWBOTHAM and Cheryl J. Rowbotham, Plaintiffs- Appellants, v. DETROIT AUTOMOBILEEXCHANGE, and Secretary of State of the State of Michigan, Defendants-Appellees. 69 Mich.App. 142, 244 N.W.2d 389
• Court: Court of Appeal of Michigan — District of US

Page 389

244 N.W.2d 389

Thomas Henry ROWBOTHAM and Cheryl J. Rowbotham, Plaintiffs- Appellants, v. DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE, and Secretary

of State of the State of Michigan,

Defendants-Appellees.

Docket No. 22700.

69 Mich.App. 142, 244 N.W.2d 389

Court of Appeals of Michigan.

May 27, 1976.

Released for Publication Aug. 11, 1976.

[69 MICHAPP 143] Sanford M. Kesten, Flint, for plaintiffs-appellants.

Dice, sweeney & Sullivan by Kenneth B. Howard, Jr., Detroit, for defendants-appellees.

Before D. E. HOLBROOK, P.J., and BRONSON and RILEY, JJ.

RILEY, Judge.

Plaintiffs appeal a Wayne County Circuit Court order of summary judgment, apparently[69 MICHAPP 144] issued because the court believed plaintiffs had not stated a cause of action. GCR 1963, 117.2(1).

In 1969, defendant issued an automobile insurance policy to plaintiffs, but cancelled the policy when plaintiffs failed to pay the premiums. Despite the cancellation, plaintiffs submitted a claim to defendant for damages they sustained and damages they caused in an automobile accident. Defendant mistakenly paid $1,249, part to plaintiffs and part to an accident victim. On discovering the error of the payment, and after failing to reach an informal settlement, defendant sued plaintiffs and received a judgment for $1,249, plus costs and interests. After plaintiffs failed to comply with a court approved payment plan, defendant sought leverage to force payment. Defendant, through retained counsel, asked the court clerk of the 71st District Court to file a certification of an unsatisfied judgment, allegedly authorized by M.C.L.A. § 257.511; M.S.A. § 9.2211. The statute, partially set out in the margin, ¹ requires that the clerk of the court forward to the Secretary of State a certification of failure to satisfy a 'judgment', with 'judgment' having a particular statutory definition. ² The clerk [69 MICHAPP 145] filed a certificate, and the Secretary of State suspended Mr. Rowbotham's operator's license, allegedly pursuant to the statute. M.C.L.A. § 257.512; M.S.A. § 9.2212.

Two years later, plaintiffs filed the present suit in the Wayne County Circuit Court, alleging in general terms that defendant's conduct in causing the suspension of Mr. Rowbotham's license was 'wrongful, negligent, and illegal'. The 71st District Court subsequently set aside the certification of unsatisfied judgment, informing the Secretary of State that the resulting suspension was improper. The District Court ruled that defendant's judgment against plaintiffs was not the sort of unsatisfied judgment, as denied in the statute, that mandated license suspension. ³

The Wayne County Circuit Court, after allowing plaintiffs to amend their complaint by adding factual allegations, granted defendant's motion for summary judgment. The court's order does not specify the reason for granting summary judgment. However, the transcript of certain of the proceedings below suggests that the court believed defendant had done nothing tortious in requesting the court clerk to file the certification.

We can understand the court's reluctance to accept plaintiffs' complaint as stating a cause of action. Their theory of liability seems novel and does not fit squarely into any traditional tort doctrine. Nonetheless, we hold that the grant of summary judgment was improper. The novelty of [69 MICHAPP 146] plaintiffs' theory should not automatically call for rejection of their claim; in truth, the theory is novel because defendant chose a form of debt leverage that was itself novel. A plaintiff should not be barred from court, via a summary judgment order, merely because a creditor has discovered a new, and improper, method of exacting payment.

We say that this claim is novel because it does not clearly satisfy the traditional requirements of the two torts that we could ordinarily consider: abuse of process and malicious prosecution.

The essential elements to an action for abuse of process are the existence of an ulterior purpose and an act in the use of the process not proper in the regular conduct or prosecution of the proceedings. The action lies for the improper use of the process after it had been issued, not for maliciously causing it to issue. Spear v. Pendill, 164 Mich. 620, 130 N.W. 343 (1911). To restate the proposition, the tort concerns the willful use of a valid process to obtain a result the law did not intend. Moore v. Michigan National Bank, 368 Mich. 71, 748 117 N.W.2d 105 (1962).

In the present case, plaintiffs' complaint comes close to alleging an abuse of process. The allegation that defendant chose to gain debt collection leverage by causing the suspension of Mr. Rowbotham's license is an allegation of an improper purpose in the use of the certification procedure. The only fact that would distinguish the present facts from a case such as Marlatte v. Weickgenant, 147 Mich. 266, 110 N.W. 1061 (1907), is the recognition that, on these facts, a certificate could not have been issued for any purpose. In Marlatte, the instigation of larceny charges would have been proper had defendant creditor's purpose not been to frighten the plaintiffs into paying money. 147 [69 MICHAPP 147] Mich. at 274, 110 N.W. 1061. In comparison, in the present case, there was no occasion for a proper use of the certificate procedure, as the judgment procured by defendant was not the sort of judgment that warranted a clerk's certification.

It is somewhat incongruous that a defendant can escape an abuse of process claim with a defense that the process could not have been issued for any purpose. Although incongruous, that is presently the status of the abuse of process tort. There is no tort of abuse of process because there was no legitimate process to be abused.

Turning to malicious prosecution, we note the traditional elements of that tort:

'1. A criminal proceeding instituted or continued by the defendant against the plaintiff.

'2. Termination of the proceeding in favor of the accused.

'3. Absence of probable cause for the proceedings.

'4. 'Malice', or a primary purpose other than that of bringing an offender to justice.' Prosser, Torts (4th ed), § 119, p. 835 (Footnote omitted).

See also Wilson v. Yono, 65 Mich.App. 441, 443, 237 N.W.2d 494 (1975).

The Michigan courts have clearly expanded this tort to include malicious civil proceedings. See, E.g., Brand v. Hinchman, 68 Mich. 590, 36 N.W. 664 (1888) (writ of attachment) and Leeseberg v. Builders Plumbing Supply Co., 6 Mich.App. 321, 149 N.W.2d 263 (1967) (writ of attachment). We believe that a proceeding maliciously instituted to deprive a person of his operator's license can qualify as a proceeding warranting a tort suit, for the proceeding may adversely affect a legally protected interest. Cf., Carver v. Lykes, 262 N.C. 345, 137 S.E.2d 139 (1964) (real estate broker's license).

[69 MICHAPP 148] Defendant urges that the summary judgment order be upheld because the existence of probable cause is conclusively established by defendant's assertion that it relied on the advice of counsel. Defendant cites Davis v. McMillan, 142 Mich. 391, 105 N.W. 862 (1905), for the proposition that advice of counsel is an absolute defense.

'Was there a question for the jury in the matter of probable cause? Defendant's counsel say that there was not, for the reason that they acted upon the advice of counsel, which is a complete justification. To make such a complete defense, it is necessary that the advice be sought and acted upon in good faith, and that a full disclosure of all material facts be made to counsel.' 142 Mich. at 393--394, 105 N.W. at 863.

Defendant further argues that the question of probable cause is a question of law for the court to decide and that the present trial judge's decision to grant summary judgment should not be disturbed. See Sottile v. DeNike, 20 Mich.App. 468, 472, 174 N.W.2d 148 (1969).

However, the Sottile opinion does not authorize summary judgment in any case where defendant merely avers probable cause by alleging reliance on counsel. The Davis v. McMillan, supra, excerpt, clearly requires that the advice be sought and acted on in good faith, with a full disclosure made to counsel. Michigan Courts have often allowed the jury to consider the probable cause issue even when defendant invokes the defense of reliance on counsel. E.g., Leeseberg v. Builders Plumbing Supply Co., supra, 6 Mich.App. at 326, 149...