Tebo v. Havlik

Decision Date06 February 1984
Docket Number70881,Docket Nos. 68033
Citation418 Mich. 350,343 N.W.2d 181
PartiesRobert M. TEBO and Dorothy E. Tebo, Plaintiffs-Appellees, v. Edward Joseph HAVLIK, Steven Brimmer and Gerald Forbes, a partnership, doing business as Long Branch Bar, Defendants-Appellees, Fred Denter, doing business as Oakley Liquor Bar, Defendant-Appellant. Lois BURNS, Administratrix of the Estate of Frank Burns, Deceased, and Lois Burns, Individually, Plaintiff-Appellant, v. Vincent CARVER and Brian Chase, doing business as Jock's Pub, Defendants-Appellees, and Richard Piornack, II and Richard B. Piornack, Defendants.
CourtMichigan Supreme Court

Grenn and Grenn by Frederick M. Grenn, Dearborn, defendants-appellees, for Edward Havlik, Steven Brimmer and Gerald Forbes.

Ulanoff, Ross, Summer & Wesley, P.C. by Stuart A. Ulanoff, Jerald R. Lovell, Southfield, for amicus curiae Stonewall Ins. Co.

Smith, Bovill, Fisher, Meyer & Borchard, P.C. by James T. Borchard, David B. Meyer, Saginaw, for plaintiffs-appellees Robert and Dorothy Tebo.

Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick by Steven G. Silverman, Richard E. Shaw, Detroit, for plaintiff-appellant Lois Burns.

Philip S. Della Santina, Saginaw, for defendants-appellees Vincent Carver and Brian Chase.

Smith & Brooker, P.C. by Michael J. Huffman, Thomas A. Connolly, Robert A. Jarema, Saginaw, for defendant-appellant Fred Denter. BRICKLEY, Justice.

These cases involve the question whether this Court's decision in Putney v. Haskins, 414 Mich. 181, 324 N.W.2d 729 (1982), interpreting the name and retain provision of the dramshop act, is to be given retroactive application.

In Burns, plaintiff filed her complaint on February 26, 1981, alleging that plaintiff's decedent died as a result of injuries sustained in an automobile collision with Richard Piornack, II. Plaintiff also alleged that appellees Vincent Carver and Brian Chase, owners of Jock's Pub, were liable for serving intoxicating beverages to Piornack in violation of the dramshop act, M.C.L. § 436.22; M.S.A. § 18.993. On May 21, 1982, plaintiff executed a "Release and Settlement of Claim" with Piornack. The agreement provided that in exchange for $20,000 Piornack was to be "retained" in the action, but released from all liability. Following this Court's decision in Putney, appellees moved for and were granted summary judgment. On February 18, 1983, we granted plaintiff's application for leave to appeal prior to decision by the Court of Appeals. 417 Mich. 887 (1983).

In Tebo, plaintiff filed her complaint on January 17, 1977. She alleged that she suffered injuries as a result of a collision with an automobile driven by Edward Havlik. An amended complaint was filed, naming as defendants Steven Brimmer and Gerald Forbes, owners of the Long Branch Bar, and Fred Denter, owner of the Oakley Liquor Bar, predicating their liability on the provisions of the dramshop act. On August 4, 1977, plaintiff and Havlik entered into a "Covenant Not to Levy Execution on Judgment in Pending Action", under which Havlik was released of all liability in excess of $50,000, but he was expressly "retained" in the action. Denter's motion for summary judgment on the grounds that plaintiff had failed to retain Havlik as required by the dramshop act was denied on December 7, 1978. Denter subsequently brought a motion in limine to preclude plaintiff from submitting evidence of any damages for which plaintiff received compensation under the no-fault act, M.C.L. § 500.3101 et seq.; M.S.A. § 24.13101 et seq. The trial court granted this motion and was reversed on interlocutory appeal. 109 Mich.App. 413, 311 N.W.2d 372 (1981). Putney was decided while Denter's application for leave to appeal was pending. Denter moved for summary judgment in this Court pursuant to GCR 1963, 865.1(7). We granted leave to appeal to consider both the motion for summary judgment and the decision of the Court of Appeals. 417 Mich. 887 (1983).

In Putney v. Haskins, supra, 414 Mich. p. 188, 324 N.W.2d 729, this Court construed the "name and retain" provision of the dramshop act. We found in the statutory language a legislative mandate that the allegedly intoxicated person be "retained as an interested party defendant until the litigation [is] concluded". Only by requiring the allegedly intoxicated person to remain at risk could the name and retain provision's purpose of preventing fraud and collusion be completely fulfilled. As we stated:

"One of the ways the 'name and retain' provision prevents fraud and collusion is by ensuring that the defendant will have a direct financial stake in personally testifying, examining witnesses, and arguing that he did not act in a negligent manner. Once the defendant's liability is fixed and limited, he has no incentive to produce witnesses or testimony tending to prove that he was not 'visibly intoxicated' on the date in question. The dramshop defendant may have much more difficulty in identifying, locating, and obtaining favorable testimony from the defendant's friends or acquaintances who observed him at relevant times."

The agreements in the present cases obviously do not retain the allegedly intoxicated persons within the meaning of the dramshop act. Liability has been fixed. If Putney is deemed to be retroactive, plaintiffs' actions must be dismissed.

Although it has often been stated that the general rule is one of complete retroactivity this Court has adopted a flexible approach. 1

" 'It is evident that there is no single rule of thumb which can be used to accomplish the maximum of justice in each varying set of circumstances. The involvement of vested property rights, the magnitude of the impact of decision on public bodies taken without warning or a showing of substantial reliance on the old rule may influence the result.' Williams v. Detroit, 364 Mich. 231, 265-266; 111 NW2d 1 (1961) (opinion of Justice Edwards in which Justices Talbot Smith, T.M. Kavanagh and Souris concurred).

"The benefit of flexibility in opinion application is evident. If a court were absolutely bound by the traditional rule of retroactive application, it would be severely hampered in its ability to make needed changes in the law because of the chaos that could result in regard to prior enforcement under that law." Placek v. City of Sterling Heights, 405 Mich. 638, 665, 275 N.W.2d 511 (1979).

Appreciation of the effect a change in settled law can have has led this Court to favor only limited retroactivity when overruling prior law. Thus, when the doctrine of imputed negligence was overruled in Bricker v. Green, 313 Mich. 218, 21 N.W.2d 105 (1946), the decision was applied only to the case before the Court and to pending and future cases. When the doctrine of charitable immunity was overruled in Parker v. Port Huron Hospital, 361 Mich. 1, 105 N.W.2d 1 (1960), the retroactive effect of the decision was limited to the parties before the Court. Even where statutory construction has been involved, this Court has limited the retroactivity of a decision when justice so required. See Gusler v. Fairview Tubular Products, 412 Mich. 270, 315 N.W.2d 388 (1981); Franges v. General Motors Corp, 404 Mich. 590, 274 N.W.2d 392 (1979).

The question before us is whether our interpretation of a statute should be applied retroactively to the statute's effective date. In Putney, we found the clear import of the statute to be to require the plaintiff to name and retain the allegedly intoxicated person at risk. Were Putney a case of first impression in the Michigan courts, we would hold that the statutory language gave plaintiffs no reason to believe that the settlements entered into would comply with the "retain" portion of the statute. Putney, however, was not a case of first impression in the Michigan courts.

In Buxton v. Alexander, 69 Mich.App. 507, 245 N.W.2d 111 (1976), lv. den. 399 Mich. 827 (1977), the plaintiff was struck by an automobile and brought suit against the driver and the bar owners who allegedly served the driver while he was visibly impaired. Four days prior to trial, the plaintiff entered into an "Indemnification Agreement", under which the driver's liability was limited to $19,000. The driver was expressly "retained" in the action. In analyzing the effect of this agreement on the plaintiff's action against the bar owners, the court looked to the purpose of the name and retain provision as stated by the Court of Appeals in Salas v. Clements, 57 Mich.App. 367, 226 N.W.2d 101 (1975), rev'd 399 Mich. 103, 247 [418 Mich. 362] N.W.2d 889 (1976), to avoid collusion and perjury. Extrapolating from that purpose, the court stated:

"Balanced against this purpose is the policy of the law to encourage settlement of litigation. The statute is not intended to prohibit settlement between a plaintiff and his intoxicated tortfeasor except where claims against tavern owners are first or simultaneously settled. On the contrary, the language of the statute indicates only an intention to require the intoxicated tortfeasor to be retained as a defendant. In enacting this 'special interest legislation' the Legislature has manifested an intention to prohibit a plaintiff from going to a jury with only a claim versus a tavern. The plaintiff must not only name but must retain the tortfeasor in the lawsuit. But that is all the statute requires. To prohibit a plaintiff from a 'hold harmless' type settlement, as was used here, would impede the prompt disposition of litigation and force trials of cases that would otherwise be settled." Buxton, supra, 69 Mich.App. p. 511, 245 N.W.2d 111.

Of course, Buxton was implicitly overruled by Putney. Until Putney was decided by this Court, however, Buxton remained as the uncontradicted interpretation of the name and retain provision. Nonetheless, it is argued that any reliance by plaintiffs on Buxton was misplaced because it was a decision of the Court of Appeals, rather than one of this...

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