This case deals with the “notice of non-party fault” issue and whether or not and to what extent the “fault” of a party that cannot be sued, due to any number of legal disabilities, i.e., immunity granted by law, exclusive remedy provisions in worker’s compensation statutes (the situation in this case), can still be attributed to “offset” the percentage of fault of the defendant at the liability stage of a proceeding.
Coming off the heels of the Michigan Supreme Court’s 2009 decision in Romain v Frankenmuth Mut Ins Co, 483 Mich 18, 20-21 (2009), which held that before a person can be named as a non-party at fault, it must first be shown that the person owed a duty to the plaintiff. However, “duty” and “liability” are separate and distinct concepts, as the Court of Appeals rightly points out in this decision.
The Court here confirms my thinking that even if a party would not be liable in suit, e.g., as a governmental entity for immunity or for some other reason (in this case the exclusive remedy provision of the Workmens’ Compensation Disability Act), that party might still have had a “duty” to the plaintiff and therefore a party defendant can still attribute “fault” to that non-party for purposes of offset under Michigan’s Comparative Fault scheme. To my knowledge this has not been applied in the immunity setting, but the purpose of the notice of non-party fault provision and the offset would seem to apply vis-à-vis the defendant giving the notice regardless. Interesting issue.
The Court of Appeals seems to agree. See the highlighted sections. Thanks and please do not hesitate to contact me if you have any questions. Carson Tucker
Court of Appeals Interprets Notice of Non-Party Fault Offset to Apply Even if Party at Fault Cannot Be Liable in Suit | Schmelling v Whitty et al | Carson Tucker – JDSupra.
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Published by Carson J Tucker, JD MSEL
Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs.
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Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia.
United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003
Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
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