Sziber v. Stout
| Decision Date | 31 October 1984 |
| Docket Number | Nos. 68466-68469,68485-68489,s. 68466-68469 |
| Citation | 419 Mich. 514,358 N.W.2d 330 |
| Parties | SZIBER v. STOUT. TAUSCH v. STOUT. 419 Mich. 514, 358 N.W.2d 330 |
| Court | Michigan Supreme Court |
Derrick C. Eaton, Saginaw, for plaintiff Karen Tausch.
Stanley Zimostrad, Bay City, for defendants, third-party plaintiffs-appellants Brian J. Stout and Geraldine A. Stout.
William E. Jungerheld, Saginaw, for defendant, third-party plaintiff-appellant Harry E. Sziber, Sr.
Collison, Chasnis & Dogger, P.C. by Charles C. Collison, Saginaw, for third-party defendant-appellee Bd. of County Road Com'rs for Tuscola County.
Milliken, Magee & Yuille by David S. Magee, Flint, for third-party defendant-appellee Bd. of County Road Com'rs for Lapeer County.
Lilly, Domeny & Durant, P.C. by Jeffrey E. Gwillim, Kalamazoo, Van Buren County Road Com'n.
L.W. McEntee, Birmingham, for amicus curiae County Road Ass'n of Michigan.
We are asked to determine whether a board of county road commissioners, as a governmental agency responsible for the maintenance of roadways pursuant to M.C.L. Secs. 224.21 and 691.1402; M.S.A. Secs. 9.121 and 3.996(102), may be impleaded by a defendant-third-party plaintiff on a claim for contribution pursuant to M.C.L. Sec. 600.2925; M.S.A. Sec. 27A.2925. 1 As a corollary thereof, we are required to determine whether, assuming that such a third-party defendant may be impleaded pursuant to a claim for contribution, the third-party plaintiffs' claims in these cases are barred by the statute of limitations. We answer the first question in the affirmative, and the second in the negative.
Bernice Sziber and her four-year-old son, Harry E. Sziber, Jr., died as a result of injuries suffered in a two-car automobile collision that occurred at an open intersection in Tuscola County in September of 1973. One day short of three years later, in September of 1976, plaintiff Karen Tausch, as special administratrix of the estates of Bernice Sziber and Harry E. Sziber, Jr., filed a wrongful death action against Harry Sziber, Sr., the husband and father of the decedents and the driver of the car in which they were passengers at the time of the accident, and against Brian J. Stout and Geraldine A. Stout, the driver and the owner, respectively, of the other car involved in the accident.
The collision occurred at the intersection of Swaffer and Willits Roads which divided the counties of Lapeer and Tuscola.
In April and June of 1978, the defendants each brought a third-party action against the Boards of County Road Commissioners of the counties of Lapeer and Tuscola (hereinafter the road commissions), seeking contribution for all or any part of any judgment which might be entered against them. The third-party defendant road commissions moved for accelerated judgment pursuant to GCR 1963, 116.1(5), asserting that the two-year statute of limitations established in M.C.L. Sec. 691.1411; M.S.A. Sec. 3.996(111) barred the third-party complaints. 2 In an opinion dated October 26, 1978, and by judgment dated May 1, 1979, the trial court granted the third-party defendants' motions for accelerated judgment on the ground that the complaints were indeed barred by the statute of limitations because the contribution actions were not brought within two years of the accrual of the underlying causes of action.
On August 18, 1980, a consent judgment was entered in favor of the estate of Harry E. Sziber, Jr., against the Stouts in the amount of $12,933, and against Harry E. Sziber, Sr., in the amount of $12,120. On August 25, 1980, a consent judgment was entered in favor of the estate of Bernice Sziber against the Stouts in the amount of $25,000, and against defendant Harry E. Sziber, Sr., in the amount of $20,000. Apparently those judgments have been satisfied, and it is for those amounts that the third-party plaintiffs Harry E. Sziber, Sr., and the Stouts seek contribution from the third-party defendant road commissions.
The Court of Appeals affirmed the trial court's accelerated judgments dismissing the third-party actions, but did not address the issue whether the third-party plaintiffs' claims were barred by the statute of limitations. The Court concluded instead that the "third-party plaintiffs' actions are not within the scope of the waiver of governmental immunity found in M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102)". The Court of Appeals said:
111 Mich.App. 450, 458, 315 N.W.2d 166 (1981).
We granted the third-party plaintiffs' application for leave to appeal. 414 Mich. 864 (1982).
In the contribution actions, the road commissions, adopting the reasoning of the Court of Appeals, maintain, inter alia, that the third-party plaintiffs may not prevail because they are not within the class of persons who may bring an action against a county for defective roads.
We begin our resolution of this first issue recognizing that unless "otherwise provided" by the Legislature, all governmental agencies are immune from tort liability when engaged in the exercise and discharge of a governmental function. M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107) provides:
(Emphasis supplied.)
This Court has held that the road commissions are governmental agencies within the meaning of the governmental immunity statute, and that the maintenance and improvements of highways are governmental functions. Thomas v. Dep't of State Highways, 398 Mich. 1, 11-12, 247 N.W.2d 530 (1976). However, the Legislature has "otherwise provided" a statutory exception to that general grant of tort immunity by enacting Sec. 1402 which provides, in relevant part:
"Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency." MCL 691.1402; MSA 3.996(102). (Emphasis supplied.)
The road commissions argue that M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102) does not authorize third-party plaintiffs to bring their contribution action because the statute expressly limits relief to persons who suffer bodily injury or property damage and the third-party plaintiffs have not suffered any such loss. Therefore, the argument continues, since the third-party plaintiffs have no cause of action against the road commissions under the maintenance- -of-roads exception to the governmental immunity statute, and since no other applicable exception has been shown to exist, the road commissions are immune from liability in this case.
Different panels of the Court of Appeals have reached conflicting conclusions in resolving this issue. In Genesee County Road Comm. v. State Highway Comm., 86 Mich.App. 294, 298-299, 272 N.W.2d 632 (1978), the principal defendant-third-party plaintiff road commission brought an action for contribution against the third-party defendant State Highway Commission. The Court stated:
.
See also Lenawee Road Comm. v. Transportation Dep't, 128 Mich.App. 528, 530, 340 N.W.2d 316 (1983); Converse v. Isabella County, 126 Mich.App. 331, 340, 336 N.W.2d 918 (1983).
Three years later, in May v. Wolverine Tractor Co., 107 Mich.App. 163, 309 N.W.2d 594 (1981), app. dis. 412 Mich. 863, 325 N.W.2d 1 (1982), another panel of the Court of Appeals considered a third-party action brought by a tractor manufacturer against the Oakland County Board of Road Commissioners for contribution arising out of a claim against the tractor manufacturer for injuries suffered by a workman in a highway accident. As to the third-party plaintiff tractor manufacturer's right to maintain an action against the road commission for contribution, the Court stated:
"We disagree with [the] narrow interpretation [given the statute in Genesee County, supra ]. Concededly, statutes in derogation of a common law are to be strictly construed. Notwithstanding that rule, a statute must also be construed sensibly and in harmony with the legislative purpose.
* * *
"A plaintiff's lack of diligence, oversight or deliberate choice in not naming a governmental defendant must not be permitted to place upon a named defendant an unfair share of responsibility." 107 Mich.App. 163, 168-170, 309 N.W.2d 594.
Our resolution of this issue is more easily understood if we defer it until after we discuss the road commissions' next theory of defense, because the former follows logically from the latter.
The road commissions next assert that not only are the third-party plaintiffs not afforded a right of action under the statute waiving immunity of governmental entities for defective roads for...
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