Romain v. Frankenmuth Mutual Insurance

The Wayne Circuit Court summarily dismissed IAQ Management, Inc. (IAQ), from this action because IAQ did not owe plaintiffs a duty under the contract involved or under general negligence principles. Thereafter, defendant, Insurance Services Construction Corporation, filed a notice under MCR 2.112(E) naming IAQ as a nonparty at fault. Because IAQ did not owe plaintiffs a duty, IAQ’s conduct could not have been “a proximate cause of damage sustained by a party.”1 Therefore, the circuit court properly granted plaintiffs’ motion to strike the notice of IAQ as a nonparty at fault2 because a nonparty at fault must be a proximate cause of the damage sustained by the injured party. We affirm the circuit court’s ruling.

We write briefly to eliminate a conflict between two published Court of Appeals opinions. Specifically, we overrule the statement in Kopp v Zigich3 that “a plain reading of the comparative fault statutes does not require proof of a duty before fault can be apportioned and liability allocated.” That is an incorrect statement of Michigan law. In Jones v Enertel, Inc,4 the Court of Appeals held that “a duty must first be proved before the issue of fault or proximate cause can be considered.” Under the “first out” rule of MCR 7.215(J)(1), the Kopp panel should have followed Jones or declared a conflict under MCR 7.215(J)(2). Because the Kopp panel did not declare a conflict, Jones is the controlling precedent and *21proof of a duty is required “before fault can be apportioned and liability allocated” under the comparative fault statutes, MCL 600.29575 and MCL 600.6304.6

In addition to being the controlling precedent under the court rules, Jones correctly stated Michigan negligence law; Kopp did not. As noted by this Court in Riddle v McLouth Steel Products Corp:7

“In a common law negligence action, before a plaintiffs fault can be compared with that of the defendant, it obviously must first be determined that the defendant was negligent. It is fundamental tort law that before a defendant can be found to have been negligent, it must first be determined that the defendant owed a legal duty to the plaintiff.”

The same calculus applies to negligent actors under the comparative fault statutes. A common-law negligence claim requires proof of (1) duty; (2) breach of that duty; (3) causation, both cause in fact and proximate causa*22tion; and (4) damages.8 Therefore, under Michigan law, a legal duty is a threshold requirement before there can be any consideration of whether a person was negligent by breaching that duty and causing injury to another. Thus, when the Legislature refers to the common-law term “proximate cause” in the comparative fault statutes, it is clear that for claims based on negligence “ ‘it must first be determined that the [person] owed a legal duty to the plaintiff.’ ”9 Additionally, MCL 600.6304(8) includes in the definition of fault “a breach of a legal duty . .. that is a proximate cause of damage sustained by a party.” Before there can be “a breach of a legal duty,” there must be a legal duty. Without owing a duty to the injured party, the “negligent” actor could not have proximately caused the injury and could not be at “fault” for purposes of the comparative fault statutes.

Affirmed.