C Zane Lee Batton v. Auto Owners Insurance ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ZANE LEE BATTON, UNPUBLISHED
August 3, 2023
Plaintiff-Appellant,
v No. 363258
St. Clair Circuit Court
AUTO OWNERS INSURANCE, LC No. 21-000557-NI
Defendant,
and
SCOTT DAVID ROMESBURG and ROMESBURG
INTERNATIONAL, LLC,
Defendants-Appellees.
Before: GADOLA, P.J., and MURRAY and MALDONADO, JJ.
MURRAY, J. (concurring).
I concur with the conclusion that the trial court erred in granting defendant Scott
Romesburg’s motion for summary disposition, as there are disputed material facts on whether
plaintiff was more than 50% at fault for the accident and is therefore ineligible to recover for the
injuries sustained. MCL 500.3135(2)(b). I write separately to emphasize that counsel should be
more careful in the law cited in briefs.
Specifically, in his brief on appeal plaintiff relies in part on an outdated and overruled
summary disposition (actually summary judgment under the 1963 court rules) standard, arguing
that under MCR 2.116(C)(10), the trial court must deny a motion if “a record might be developed
that will leave open an issue upon which reasonable minds could differ,” citing Ringewold v Bos,
200 Mich App 131; 503 NW2d 716 (1993). Yet it has been almost 15 years since the Supreme
Court (1) explicitly recognized that that standard was inapplicable under the Michigan Court Rules
established in 1985, and (2) reversed the cases citing to that standard. Indeed, in Smith v Globe
Life Ins Co, 460 Mich 446, 455 n 2; 597 NW2d 28 (1999), the Supreme Court was very specific
in holding that the old standard, requiring denial of a motion if a record “might be developed” that
could create a question of material fact, was no longer viable:
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We take this occasion to note that a number of recent decisions from this
Court and the Court of Appeals have, in reviewing motions for summary disposition
brought under MCR 2.116(C)(10), erroneously applied standards derived from
Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). These decisions have
variously stated that a court must determine whether a record ‘might be developed’
that will leave open an issue upon which reasonable minds may differ, see, e.g.,
Farm Bureau Mutual Ins Co of Michigan v Stark, 437 Mich 175, 184; 468 NW2d
498 (1991); First Security Savings Bank v Aitken, 226 Mich App 291, 304; 573
NW2d 307 (1997); Osman v Summer Green Lawn Care, Inc, 209 Mich App 703,
706; 532 NW2d 186 (1995), and that summary disposition under MCR
2.116(C)(10) is appropriate only when the court is satisfied that ‘it is impossible for
the nonmoving party to support his claim at trial because of a deficiency that cannot
be overcome.’ Paul v Lee, 455 Mich 204, 210; 568 NW2d 510 (1997); Horton v
Verhelle, 231 Mich App 667, 672; 588 NW2d 144 (1998).
These Rizzo-based standards are reflective of the summary judgment
standard under the former General Court Rules of 1963, not MCR 2.116(C)(10).
See McCart [v J Walter Thompson USA, Inc, 437 Mich 109, 115 n 4; 469 NW2d
284 (1991)]. Under MCR 2.116, it is no longer sufficient for plaintiffs to promise
to offer factual support for their claims at trial. As stated, a party faced with a
motion for summary disposition brought under MCR 2.116(C)(10) is, in responding
to the motion, required to present evidentiary proofs creating a genuine issue of
material fact for trial. Otherwise, summary disposition is properly granted. MCR
2.116(G)(4).
Consequently, those prior decisions of this Court and the Court of Appeals
that approve of Rizzo-based standards for reviewing motions for summary
disposition brought under MCR 2.116(C)(10) are overruled to the extent that they
do so.
We recognized this point a decade ago in Grand Trunk Western R, Inc v Auto Warehousing Co,
262 Mich App 345, 350; 686 NW2d 756 (2004), yet still today we receive briefs that improperly
cite these obviously inapplicable standards. Counsel should be more careful to cite to controlling
law.
/s/ Christopher M. Murray
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