Tebo v. Havlik

• Decision Date: 10 September 1981
• Docket Number: Docket No. 52297
• Parties: Robert M. TEBO and Dorothy E. Tebo, Plaintiffs-Appellants, v. Edward Joseph HAVLIK, Steven Brimmer and Gerald Forbes, a co-partnership,d/b/a Long Branch Bar, and Fred Denter, d/b/a Oakley Liquor Bar, jointly andseverally, Defendants- Appellees. 109 Mich.App. 413, 311 N.W.2d 372
• Court: Court of Appeal of Michigan — District of US

Page 372

311 N.W.2d 372

Robert M. TEBO and Dorothy E. Tebo, Plaintiffs-Appellants, v. Edward Joseph HAVLIK, Steven Brimmer and Gerald Forbes, a co-partnership,d/b/a Long Branch Bar, and Fred Denter, d/b/a Oakley Liquor Bar, jointly andseverally Defendants- Appellees.

Docket No. 52297.

109 Mich.App. 413, 311 N.W.2d 372

Court of Appeals of Michigan.

Sept. 10, 1981.

Released for Publication Nov. 4, 1981.

[109 MICHAPP 414] Smith, Bovill, Fisher & Meyer, P.C. by James T. Borchard, Saginaw, for plaintiffs-appellants.

Smith & Brooker, P.C. by Michael J. Huffman and Mona C. Doyle, Bay City, for defendant-appellee Fred Denter d/b/a Oakley Liquor Bar.

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

DANHOF, Chief Judge.

Plaintiffs appeal by leave granted from a trial court order excluding evidence of medical expenses and economic losses in a dramshop action.

Plaintiff Dorothy E. Tebo was injured when the car she was driving was struck by another automobile driven by defendant Edward Joseph Havlik. Both of these individuals had no-fault insurance coverage and Dorothy Tebo was reimbursed for her medical expenses and economic losses under the personal protection insurance coverage of her policy. Plaintiffs asserted a claim under the Michigan Dramshop Act, M.C.L. § 436.22; M.S.A. § 18.993, against defendants Steven Brimmer and Gerald [109 MICHAPP 415] Forbes, d/b/a Long Branch Bar, and Fred Denter d/b/a Oakley Liquor Bar, based upon the alleged unlawful sale of intoxicants by these defendants to Havlik prior to the accident.

One of the dramshop defendants filed a motion in limine requesting the exclusion of evidence of medical expenses and economic losses claimed by plaintiffs to the extent that such items were paid for by Dorothy Tebo's no-fault insurance carrier. The court granted this motion and plaintiffs appeal.

Plaintiffs rely on the collateral source rule, which provides that compensation due a party from an independent source other than the wrongdoer does not operate to lessen damages recoverable from the wrongdoer. Blacha v. Gagnon, 47 Mich.App. 168, 171, 209 N.W.2d 292 (1973). This rule has been applied to bar a setoff against damages recoverable from a tortfeasor of payments received by the injured plaintiff under an insurance policy providing coverage for the losses caused by the defendant. Perrott v. Shearer, 17 Mich. 48 (1868), Motts v. Michigan Cab Co., 274 Mich. 437, 443-446, 264 N.W. 855 (1936). The rationale for such application of the collateral source rule has been stated as follows:

"To allow the defendant to reduce his liability because the plaintiffs exercised a contract right of recovery against their insurer, a right for which the plaintiffs paid consideration in the form of premiums, would be an unjust enrichment of the defendant." Beaird v. Brown, 58 Ill.App.3d 18, 21, 15 Ill.Dec. 583, 585, 373 N.E.2d 1055, 1057 (1978).

Defendants correctly point out that plaintiff did not voluntarily contract for no-fault insurance [109 MICHAPP 416] because the coverage was required by M.C.L. § 500.3101; M.S.A. § 24.13101. Nevertheless, premiums were paid for the coverage and the insurance benefits were still obtained from a source wholly independent of and collateral to the defendants. We will not sidestep the collateral source rule on the ground that the insurance was mandatory.

The case of Barton v. Benedict, 39 Mich.App. 517, 197 N.W.2d 898 (1972), overruled on other grounds in Podbielski v. Argyle Bowl, Inc., 392 Mich. 380, 220 N.W.2d 397 (1974), cited by defendants, is not controlling. In Barton, this Court held that actual damages recoverable under the Dramshop Act should be mitigated by a settlement with the intoxicated person to avoid redundancy of compensation. This holding is in line with the general rule that a plaintiff is entitled to receive no more than the amount of the judgment from or on behalf of joint tortfeasors. However, the present case involves insurance proceeds, rather than recovery from another tortfeasor.

A case more in point is Bohannon v. Campbell, 38 Mich.App. 422, 196 N.W.2d 836 (1972). There, the plaintiff was injured in an automobile accident with an uninsured motorist. He received benefits under the uninsured motorist coverage of his own automobile policy and received sick pay benefits under a group insurance program maintained by his employer. Plaintiff brought a successful dramshop action against a tavern owner who served liquor to the driver of the other car involved in the accident and on appeal, the dramshop defendant argued that he was entitled to have the uninsured motorist and sick pay benefits set off against his liability to defendant. This Court disagreed, citing the collateral source rule.

[109 MICHAPP 417] In addition to directly...