Lautzenheiser v. Jolly Bar & Grille, Inc ( 1994 )

206 Mich. App. 67 (1994) 520 N.W.2d 348

LAUTZENHEISER
v.
JOLLY BAR & GRILLE, INC.

Docket No. 158533.

Michigan Court of Appeals.

Submitted April 12, 1994, at Grand Rapids. Decided May 20, 1994. Approved for publication June 23, 1994, at 9:05 A.M.

William G. Reamon, P.C. (by William G. Reamon, Sr.), for the plaintiffs.

Frank S. Spies, for Jolly Bar and Grille, Inc.

Before: MICHAEL J. KELLY, P.J., and HOOD and S.B. MILLER,^[*] JJ.

PER CURIAM.

Plaintiffs appeal by leave granted an order of the circuit court dismissing their suit against defendant Jolly Bar & Grille, Inc. (hereinafter defendant) for failure to fulfill the 120-day notice requirement in the dramshop act. We affirm.

MCL 436.22(5); MSA 18.993(5) provides in relevant part:

An action under this section shall be instituted within 2 years after the injury or death. A plaintiff seeking damages under this section shall give written notice to all defendants within 120 days after entering an attorney-client relationship for the purpose of pursuing a claim under this section. Failure to give written notice within the time specified shall be grounds for dismissal of a claim as to any defendants that did not receive such notice unless sufficient information for determining that a retail licensee might be liable under this section was not known and could not reasonably have been known within the 120 days.

Plaintiffs' automobile accident occurred on October 13, 1990. Plaintiffs signed a contingent fee retainer agreement with their attorney on November 5, 1990. On November 14, 1990, an investigator for plaintiffs' counsel interviewed a passenger in the other (Vandermeer) car and learned that the occupants of the other car, including the driver, had been drinking at defendant's establishment just before the accident. Although later interviews revealed some inconsistences in the passenger's story, the November 14 interview established that the driver drank three or four rum and colas at defendant's bar that evening after already having shared a case of beer with four friends late that afternoon. Plaintiffs' counsel also had access to a UD-10 accident report form that showed that the driver was charged with operating a vehicle while under the influence of intoxicating liquor, MCL 257.625; MSA 9.2325. Plaintiffs did not send notice of their claim under the dramshop act to defendant until August 27, 1991.

The 120-day notice period expired on March 5, 1991. The issue is whether plaintiffs could reasonably have been expected to know of their claim under the dramshop act before that date. We hold they could. Within the first ten days of the 120-day period, plaintiffs knew that the driver of the other car had been charged with driving while intoxicated and that he had been drinking at the Jolly Bar & Grille just before the accident. This is sufficient to satisfy the requirements of MCL 436.22(5); MSA 18.993(5).

Whether defendant was prejudiced by the delay in notice is irrelevant under the language of the notice provision. Brown v JoJo-Ab, Inc, 191 Mich. App. 208, 212; 477 NW2d 121 (1991). Whether plaintiffs' counsel was originally retained with the specific task of pursuing a dramshop act claim is also irrelevant because it was clear in the retainer agreement that he was hired to investigate all possible theories of recovery. Whether the facts available to plaintiffs during the 120 days were enough to ensure a solid, fully verifiable dramshop act claim is irrelevant because the notice provision only requires notice where a dramshop owner might be liable under the act.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.