Sziber v. Stout

• Decision Date: 26 January 1982
• Docket Number: 53845,53349,Docket Nos. 53473,53474 and 53162
• Citation: 315 N.W.2d 166,111 Mich.App. 450
• Parties: Harry E. SZIBER v. Brian J. STOUT. Karen TAUSCH v. Brian STOUT. 111 Mich.App. 450, 315 N.W.2d 166
• Court: Court of Appeal of Michigan — District of US

Page 166

315 N.W.2d 166

Harry E. SZIBER v. Brian J. STOUT.

Karen TAUSCH v. Brian STOUT.

Docket Nos. 53473, 53845, 53349, 53474 and 53162.

111 Mich.App. 450, 315 N.W.2d 166

Court of Appeals of Michigan.

Submitted June 12, 1981.

Decided Nov. 17, 1981.

Released for Publication Jan. 26, 1982.

[111 MICHAPP 452] Zimostrad, Wenzloff, Allsopp & Zimostrad, P. C., Bay City, for Brian J. Stout and Geraldine A. Stout.

Chaklos, Jungerheld & Della Santina, P. C. by Gary J. Goodman, Saginaw, for Harry E. Sziber, Sr.

Collison, Chasnis & Dogger, Saginaw, for Board of County Road Com'rs of County of Tuscola.

Milliken, Magee & Yuille, Flint, for Board of County Road Com'rs of County of Lapeer.

Before DANHOF, C. J., and CAVANAGH and FREEMAN, ^* JJ.

PER CURIAM.

Three circuit court cases have been consolidated for purposes of this appeal. Third-party plaintiffs, Harry Sziber, Sr., Brian Stout and [111 MICHAPP 453] Geraldine Stout, appeal from accelerated judgments granted in favor of third-party defendants, the Tuscola and Lapeer County Road Commissions.

The facts of the three cases involved herein are not at issue. All three negligence actions arose out of the same two-automobile accident which occurred on September 28, 1973, at the intersection of Schaeffer and Willits Roads, such intersection dividing Tuscola and Lapeer Counties.

All three actions were commenced on September 27, 1976, by plaintiffs against the various defendants, third-party plaintiffs who were either the drivers or owners of the automobiles involved in the collision. Subsequently, the third-party plaintiffs sought to implead third-party defendants pursuant to GCR 1963, 204. In April and June of 1978, third-party plaintiffs filed their complaints for contribution alleging that third-party defendants had negligently maintained the intersection which was the scene of the accident and that such negligence was a proximate cause of the automobile accident. ¹

In October of 1978, the trial court entered a written opinion which held that a claim of contribution against governmental agencies, such as third-party defendants, must be brought within two years of an automobile accident or be barred by the statute of limitations. Orders granting accelerated judgment in favor of third-party defendants were subsequently entered.

[111 MICHAPP 454] On appeal, third-party plaintiffs argue that as a general rule the fact that the period of limitations has expired and suit is barred against the original plaintiff's action does not bar a suit for contribution between joint tortfeasors since that cause of action does not accrue until payment of damages by the party asserting the right to contribution. ² Third-party plaintiffs assert that this general rule is applicable to the instant case. They contend that the trial court arbitrarily distinguished the rights of a private litigant from those of a governmental tortfeasor when it determined that a claim of contribution against third-party defendants must be brought within two years of an automobile accident, rather than within six months after the right to contribution arises, as provided in M.C.L. § 600.2925; M.S.A. § 27A.2925. ³ Relying on Reich v State Highway Dep't, 386 Mich. 617, 194 N.W.2d 700 (1972), third-party plaintiffs argue that the trial court's treatment of third-party defendants violates equal protection in that it arbitrarily divides negligent tortfeasors seeking contribution into two classes-those who must sue governmental agencies within two years of a negligent act and those who have six months after payment of the judgment to seek contribution from private joint tortfeasors.

As framed by the third-party plaintiffs, the sole issue before us is whether the trial court erred in granting accelerated judgment in favor of third-[111 MICHAPP 455] party defendants on the basis that the contribution actions were barred by the statute of limitations. However, as shall be seen below, we need not address this issue since we believe that a more basic question is dispositive of this case: Does the doctrine of governmental immunity preclude a county road commission from being impleaded pursuant to a claim for contribution by defendants who have not been personally injured or who have not suffered property damage as a result of the accident?

There is no doubt that, had they so desired, the original plaintiffs could have brought actions against third-party defendants pursuant to M.C.L. § 224.21; M.S.A. § 9.121. Third-party defendants' liability under M.C.L. § 224.21; M.S.A. § 9.121 is to be found under M.C.L. § 691.1402; M.S.A. § 3.996(102). Forest v. Parmalee, 402 Mich. 348, 356, fn. 2, 262 N.W.2d 653 (1978).

M.C.L. § 691.1402; M.S.A. § 3.996(102) provides in 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."

The plaintiffs' right to commence an action pursuant to M.C.L. § 224.21; M.S.A. § 9.121 and M.C.L. § 691.1402; § 3.996(102) would have been subject to the two-year statute of limitations period set out at M.C.L. § 691.1411; M.S.A. § 3.996(111). Forest, supra, 356, fn. 2, 262 N.W.2d 653. Since plaintiffs did not bring suit against third-party defendants within the two-year statute of limitations period, any cause of action they might have had is now barred.

Because the original plaintiffs could have [111 MICHAPP 456] brought suit against third-party defendants pursuant to M.C.L. § 224.21; M.S.A. § 9.121 and M.C.L. § 691.1402; M.S.A. § 3.996(102), does it necessarily follow that third-party plaintiffs have a right to contribution from third-party defendants? There is currently a split among two panels of this Court as to how this question should be answered.

In May v. Wolverine Tractor & Equipment Co., 107 Mich.App. 163, 309 N.W.2d 594 (1981), a panel of this Court concluded that the governmental waiver of immunity in M.C.L. § 691.1402; M.S.A. § 3.996(102) permitted the government to be impleaded pursuant to a claim for contribution by a defendant who was not injured and who suffered no property damage as a direct result of an accident. In reaching this conclusion the May Court reasoned that M.C.L. §§ 691.1402-691.1406; M.S.A. §§ 3.996(102)-3.996(106) evidenced a legislative intent to protect the public from injury by imposing upon governmental agencies the duty to maintain safe public places and that this purpose would be advanced by imposing liability upon governmental units via contribution. May also reasoned that this approach would avoid situations where a plaintiff, through lack of diligence or deliberate choice, might not name a governmental defendant and thereby place upon a named defendant an unfair share of responsibility.

An analogous situation was addressed in Genesee County Road Comm. v. State Highway Comm., 86 Mich.App. 294, 272 N.W.2d 632 (1978), where another panel of this Court held that the plaintiff county road commission did not have the right to seek contribution from defendant State Highway Commission for damages the county road commission had paid to a person (Michael Mitchell) injured[111 MICHAPP 457] in an automobile accident. ⁴ In denying contribution, Genesee interpreted the dimension of the waiver of governmental immunity found in M.C.L. § 691.1402; M.S.A. § 3.996(102), and stated:

"Although this section would have permitted the action in behalf of Michael Mitchell to be pursued against the state, it does not authorize the sort of action attempted here. This is because the statute limits relief to that class of persons who suffer bodily injury or property damage. Plaintiffs, of course, have suffered no such loss. Statutory exceptions to governmental immunity are to be strictly construed. Stremler v. Dep't of State Highways, 58 Mich.App. 620, 632-633, 228 N.W.2d 492 (1975). Subsequent language in MCL 691.1402; MSA 3.996(102), limiting actions to 'injury or loss suffered on or after July 1, 1965,' should not be read to expand the class of person who could bring a suit against the state. Rather, this language merely refers to the bodily injury and property damage mentioned previously therein." Id., 298-299, 272 N.W.2d 632.

As noted above, a county road commission's liability in tort flows from M.C.L. § 691.1402; M.S.A. § 3.996(102), as does the State Highway Commission's. Thus, under Genesee, third-party plaintiffs do not have a substantive right to bring an action for contribution against third-party defendants.

We agree with the interpretation of M.C.L. § 691.1402; M.S.A. § 3.996(102) set forth in Genesee.

Where a statute, such as M.C.L. § 691.1402; M.S.A. § 3.996(102), creates liability in derogation of common law, it must be strictly construed. Yount v. National Bank of Jackson, 327 Mich. 342, 347-348, 42 N.W.2d 110 (1950), McEvoy v. Sault Ste. Marie, 136 Mich. 172, 98 N.W. 1006 (1904), Stremler v. Dep't of State Highways, 58 Mich.App. 620, 228 [111 MICHAPP 458] N.W.2d 492 (1975) lv. den. 404 Mich. 815 (1979). We find that by its plain language M.C.L. § 691.1402; M.S.A. § 3.996(102) permits a cause of action to be brought against a county road commission only by that class of persons who have sustained bodily injury or damage to their property as a result of a governmental agency's failure to keep a highway in reasonable repair. Third-party plaintiffs do not fall within this class and, therefore, their action is barred by the doctrine of governmental immunity. See Thomas v. Dep't of State Highways, 398 Mich. 1, 247 N.W.2d 530 (1976).

We acknowledge that our interpretation of M.C.L. § 691.1402; M.S.A. § 3.996(102), could, conceivably, lead to situations where a plaintiff (through lack of diligence or oversight in not naming a governmental defendant) might place upon a named defendant a greater share of responsibility...