Cussans v. Harris , 118 Mich. App. 567 ( 1982 )

118 Mich. App. 567 (1982) 325 N.W.2d 793

CUSSANS
v.
HARRIS

Docket No. 55201.

Michigan Court of Appeals.

Decided August 23, 1982.

John A. Streby, for plaintiff.

Law Offices of Seth H. Barsky, P.C. (by Edward B. Meth), for defendants.

Before: M F. CAVANAGH, P.J., and R.M. MAHER and K.B. GLASER,^[*] JJ.

K.B. GLASER, J.

The trial court granted accelerated judgment, pursuant to GCR 1963, 116.1(5), in favor of defendants. Plaintiff appeals as of right.

This is a dramshop action arising out of an automobile accident which occurred on October 3, 1976. In his complaint, plaintiff alleged that defendant Roy B. Harris, doing business as The Shanty (hereinafter referred to as "defendant bar"), illegally furnished intoxicating liquor to defendant Mangett, the alleged intoxicated person (AIP), while the latter was visibly intoxicated, that as a proximate result of the illegal sale Mangett was involved in an automobile accident with plaintiff, and that plaintiff suffered serious injuries as a result of the accident. On June 9, 1978, plaintiff entered into a settlement agreement with defendant Mangett and executed a document entitled, "Release With Indemnifying Agreement". Shortly thereafter, plaintiff commenced this action in the trial court, naming only defendant bar and alleging a violation of the dramshop act. MCL 436.22; MSA 18.993. Defendant bar moved to dismiss the complaint based on plaintiff's failure to name and retain the AIP. Several times subsequently, the trial court ordered plaintiff to add the AIP as a party defendant. However, not until October 18, 1979, did plaintiff file an amended complaint which added Mangett as a party defendant. Thereafter, defendant Mangett moved for accelerated judgment claiming that plaintiff's action against him was barred by the statute of limitations and the June 9, 1978, release. Likewise, defendant bar renewed its motion claiming that plaintiff's action against it was barred because he was unable to name and retain the AIP as required by the statute. The trial court granted defendants' motions. On appeal, plaintiff claims that, (1) the dramshop act does not require a plaintiff to name the AIP as a party defendant before effecting a settlement with him, (2) the applicable statute of limitations is three years, MCL 600.5805(8); MSA 27A.5805(8), and (3) the June 9, 1978, agreement between plaintiff and defendant Mangett should be interpreted as a covenant not to sue, rather than an outright release.

In pertinent part, the dramshop act reads as follows:

"(5) A wife, husband, child, parent, guardian, or other person injured in person, property, means of support, or otherwise, by a visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of intoxicating liquor to the person, if the sale is proven to be a proximate cause of the injury or death, shall have a right of action in his or her name against the person who by the selling, giving, or furnishing the liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the injury. * * * An action shall be instituted within 2 years after the injury or death * * *. An action against a retailer, wholesaler, or anyone covered by this act or a surety, shall not be commenced unless the minor or the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement. * * *" MCL 436.22(5); MSA 18.993(5).

The purpose of the latter sentence, added by amendment in 1972 and commonly known as the name and retain provision, has been stated by the Supreme Court as follows:

"The provision will eliminate the common practice whereby the intoxicated person enters into a settlement with the injured plaintiff for a token sum, and thereafter energetically assists the plaintiff with the prosecution of a suit against the tavern owner. The provisions will also discourage possible collusion and perjury by those too weak to resist the obvious temptation inherent in the original dramshop act, which has now been recognized by the Legislature and corrected through this amendment."

Salas v Clements, 399 Mich. 103, 108-109; 247 NW2d 889 (1976), quoting Salas v Clements, 57 Mich. App. 367, 372; 226 NW2d 101 (1975). Also, Schutz v Murphy, 99 Mich. App. 386, 389; 297 NW2d 676 (1980). Regardless of how the June 9, 1978, agreement is characterized, it is clear that the name and retain provision must be complied with, i.e., the plaintiff must keep the AIP in the lawsuit, although it is not required that the latter remain as an active party or have a continuing monetary interest in the outcome. Putney v Gibson, 94 Mich. App. 466, 468-478; 289 NW2d 837 (1979), lv gtd 408 Mich. 897; 291 NW2d 358 (1980), Buxton v Alexander, 69 Mich. App. 507, 511; 245 NW2d 111 (1976), lv den 399 Mich. 827 (1977). However, in limited circumstances, compliance is excepted if the plaintiff cannot, after due diligence, identify, i.e., name, the AIP, Salas, supra, 106, 110, Putney, supra, 474-475, Woodbeck v Curley (After Remand), 107 Mich. App. 784, 786; 310 NW2d 242 (1981), or cannot retain the AIP as a party defendant because the plaintiff has no cause of action against him. Schutz, supra, Farmers Ins Group v Clear, 94 Mich. App. 655, 660; 290 NW2d 51 (1980). Plaintiff does not come under either exception. Rowan v Southland Corp, 90 Mich. App. 61, 69; 282 NW2d 243 (1979).

Moreover, since the accident occurred on October 3, 1976, and since plaintiff did not attempt to add Mangett as a party defendant until October 18, 1979, it is clear that plaintiff failed to comply with the two-year period of limitation contained in the dramshop act. The Supreme Court has specifically found that the general statute of limitations does not apply to dramshop actions. Holland v Eaton, 373 Mich. 34, 38-40; 127 NW2d 892 (1964), overruled on other grounds Lambert v Calhoun, 394 Mich. 179, 184; 229 NW2d 332 (1975). Also, Jones v Bourrie, 369 Mich. 473; 120 NW2d 236 (1963), Browder v International Fidelity Ins Co, 98 Mich. App. 358, 361; 296 NW2d 60 (1980), Nunnally v International Fidelity Ins Co, 94 Mich. App. 291, 294; 288 NW2d 356 (1979). Further, even if a common-law cause of action should survive against the AIP, Rowan, supra, 68-69, and the general three-year statute of limitations were applicable, MCL 600.5805(8); MSA 27A.5805(8), plaintiff did not attempt to add Mangett until more than three years after the date of the accident.

"We hasten to add that GCR 1963, 118.4 does not alter this result by allowing the plaintiff to add a party defendant by an amended complaint and relate the action back to the original date of injury. The general rule is that an amendment does not relate back to the original filing date for purposes of adding a new party defendant when the statute of limitations has expired as to that defendant." (Citations omitted.) Browder, supra, 361.

Consequently, since any action against Mangett was barred due to the running of the period of limitation, the trial court properly granted accelerated judgment in his favor. It necessarily follows then that, since plaintiff could not retain Mangett, the trial court also properly granted accelerated judgment in favor of defendant bar.

Affirmed. Defendants may tax costs.

NOTES

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