Under Tort Reform, Can a Party “Notice” an “Immune” Non-Party to Offset its Own Liability?

This is an interesting issue, that has not been precisely addressed in a published opinion by Michigan Appellate Courts.  Although, there are cases that have danced around the issue.  This problem arose from the Michigan Supreme Court’s ruling in several cases, which culminated in the rule that in order for a party to “offset” the non-party at fault, that non-party must have had a “legal duty” to the injured party; otherwise, a notice of non-party fault will be stricken as to that party.  The simplistic, but understandable rationale of this is that it would be absurd to allow the naming of non-parties with no legal duty to the plaintiff to offset those other parties that are otherwise responsible to pay a collective 100% of the plaintiff’s damages.

However, the concept of “immunity” from suit, whether it be a common-law immunity, like “parental immunity” see Slager, infra, or statutory, like “governmental” immunity, throws a proverbial wrench into the analysis because immunity does not mean that there is no duty.  In fact, in the context of governmental immunity, the underlying duty on the part of a governmental entity or party not to injure another through negligence remains; i.e., there is nothing that can absolve the inherent duty.  However, immunity provides protection from suit, for policy reasons (as with all legal definitions of “duty” in tort law), not because the immune party does not otherwise have a legal duty.  So how does this affect the party attempting to file a notice of non-party fault as to a governmental entity, that is otherwise immune from suit for negligence (with limited statutory exceptions in Michigan)?

My take on the issue is that such a notice of non-party fault should stand.  There is nothing in Michigan Supreme Court jurisprudence to the contrary, and in fact there is a slew of recent Court of Appeals decisions that see this not only in the common-law principles regarding immunity and duty, but also in the tort reform statutes governing non-parties at fault.  The statutory provision allows for the notice regardless of whether the non-party could be named in a suit, and regardless of whether or not and to what extent there is a “remedy” as to that non-party.  This is the same as saying that while an immune party cannot be subjected to suit, and therefore one cannot recover a remedy from that party, this does not mean that the party has no legal duty and that their “fault” cannot be used to offset the named defendant’s potential liability.  The lower appellate courts that have addressed this issue seem to be going in the direction herein explained.  Further rationale for allowing the notice of non-party to stand as to “immune” parties is whether and to what extent that party “contributed” to the injury.  This is the factual support for allowing that party’s “negligence” to offset the other defendants’ liability, even if the non-party cannot be held liable – they still have a “duty” and they still contributed to the injury.  This is interesting, and the proposition that one can name an immune non-party to offset his or her own liability seems, at first blush, to be unsettling, but it is supported by sound legal principles concerning duty, tort law, and the law of common-law and statutory immunity.

In Slager v. Kid’s Kourt LLC, ___ Mich App ___ (2010) (slip opinion attached) Slager, the Court of Appeals held that a notice of non-party at fault can be issued with respect to any party that is a contributing factor to a single injury.  The Court avoided the question which was at the crux of the lower court ruling, whether a person or entity protected by immunity could nonetheless be named as a nonparty at fault.  However, since Slager, courts have construed it to mean that regardless of the availability of a remedy from the party named, i.e., that a suit may not actually be successful because of a potential immunity, MCL 600.2957 “allows a notice of nonparty at fault against any party, immune or not, who contributes to a single injury.” See e.g., Johnson v Abrams, Unpublished Opinion of the Michigan Court of Appeals, dated February 24, 2011 (Docket No. 287906) (attached) Johnson v. Abrams.

Likewise, in Schmeling v. Whitty et al, Unpublished Opinion of the Michigan Court of Appeals, dated February 15, 2011 (Docket No. 292190) (slip opinion attached) Schmelling v Whitty et al, the Court held that even though the provisions of the Worker’s Disability Compensation Act provide the exclusive remedy for an injured employee against his or her employer, it did not follow that the employer and co-worker of the injured plaintiff could not be named as potential non-parties at fault.  Schmelling does not address the issue of the relationship between the notice of non-party fault as to a governmental entity, but rather the statutory immunity under the Workers Compensation Disability Act and the exclusive remedy provisions.  I would point out that one of the parties requested publication, which was denied.  The date for appealing the denial of the motion for reconsideration was May 19, 2011. I do not know whether an application was filed, but this would not present the exact issue of governmental immunity, but it would go a long way in clarifying the issue nonetheless.

This follows the logic and reasoning of the Supreme Court’s decision in Romain v. Frankenmuth Mut. Ins. Co., 483 Mich 18, 20-21 (2009), and more importantly, the plain language of the comparative fault provisions, namely MCL 600.2304(1)(b), which, as noted by the Schmeling panel, explicitly provides that a defendant can notice a nonparty at fault even though that nonparty could not be sued.  “In other words, a person can owe a duty to a plaintiff even when the plaintiff cannot recover any remedy from that person.” Schmeling, supra at 2 (emphasis in original).  Moreover, MCL 600.2957(1) explicitly provides that the trier of fact shall allocate the liability “regardless of whether the person is, or could have been, named as a party to the action.”  Finally, MCL 600.2957(3) provides that a finding of fault does not subject a nonparty to liability, but is used to determine the fault of the named parties.

As mentioned, it does not appear that the precise issue has been squarely addressed by the Court of Appeals in a published opinion or by the Michigan Supreme Court.  Current trends of the published precedent however Romain, supra and Slager, supra, as well as unpublished opinions of the Court of Appeals, e.g., Schmeling, supra; Johnson, supra, point to the conclusion that MCL 600.2957 allows a notice of nonparty at fault against any party, immune or not, who contributes to a single injury.

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