Vermilya v. Carter Crompton Site Development Contractors, Inc ( 1993 )

201 Mich. App. 467 (1993) 506 N.W.2d 580

VERMILYA
v.
CARTER CROMPTON SITE DEVELOPMENT CONTRACTORS, INC

Docket No. 143779.

Michigan Court of Appeals.

Submitted March 7, 1993, at Lansing. Decided September 8, 1993, at 9:10 A.M.

Sumpter, Perry & McDonald, P.C. (by Thomas E. McDonald), for the plaintiff.

Thomas J. Doyle, for the defendant.

Before: DOCTOROFF, C.J., and SAWYER and MURPHY, JJ.

PER CURIAM.

Plaintiff, Harlan Vermilya, as conservator for Matthew Vermilya, a minor, appeals from an order of the Bay Circuit Court granting defendant summary disposition and dismissing plaintiff's products liability action against defendant. We reverse and remand.

Matthew Vermilya was a sixth-grade student at Kolb Middle School in Bay County, Michigan, when he was injured while on the school's playground when a portable soccer goal fell on him. The goal was allegedly manufactured by defendant. Plaintiff filed suit in the Bay Circuit Court against Kolb Middle School, and later moved to add as defendants the children with whom Matthew was playing at the time of the accident and the principal of the school. The trial court permitted plaintiff to add the other children as defendants, but refused to allow the principal to be added on the basis of governmental immunity. The trial court also dismissed the action against the school on the basis of governmental immunity. The case regarding the remaining defendants was submitted to mediation, and all parties accepted the mediation panel's evaluation. A judgment was entered consistent with the mediation evaluation, awarding plaintiff $100,000, inclusive of costs and interest from all defendants. The judgment was fully satisfied.

Shortly after the judgment was entered, plaintiff filed this action against defendant in the Genesee Circuit Court, alleging that defendant manufactured the portable soccer goal in Genesee County and that the goal lacked adequate warnings, lacked adequate care and use instructions, and failed to contain instructions regarding the anchoring of the goal or the devices to be used to anchor it. Defendant filed its answer and plaintiff filed an amended complaint, to which defendant also filed an answer. Defendant then moved for a change of venue to Bay County pursuant to MCL 600.1629(1)(b); MSA 27A.1629(1)(b), which the circuit court granted. Once in Bay County, defendant moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10), arguing that the satisfied mediation judgment barred plaintiff from pursuing this action against defendant. The Bay Circuit Court granted defendant's motion for summary disposition.

Plaintiff contends that the transfer of venue to Bay County was erroneous because venue was proper in Genesee County. We agree. MCL 600.1629; MSA 27A.1629 provides:

(1) Subject to subsection (2), in an action based on tort, the following provisions apply:

(a) A county in which all or a part of the cause of action arose and in which either of the following apply is a proper county in which to commence and try the action:

(i) The defendant resides, has a place of business, or conducts business in that county.

(ii) The registered office of a defendant corporation is located in that county.

(b) If no county satisfies the criteria under subdivision (a), a county in which all or part of the cause of action arose and in which either of the following apply is a proper county in which to commence and try the action:

(i) The plaintiff resides, has a place of business, or conducts business in that county.

(ii) The registered office of a plaintiff corporation is located in that county.

* * *

(2) Either party may file a motion for a change in venue based upon hardship or inconvenience. Venue shall only be changed under this subsection to the county in which the moving party resides....

In Lorencz v Ford Motor Co, 439 Mich 370, 377; 483 NW2d 844 (1992), our Supreme Court recently interpreted the requirement of MCL 600.1629(1)(a); MSA 27A.1629(1)(a) that an action be brought in a county "in which all or a part of the cause of action arose" to include a county in which a product was manufactured or designed defectively. Because defendant in this case manufactured or designed the allegedly defective goal in Genesee County, venue was proper in Genesee County. Lorencz, supra.

We review a trial court's decision to grant or deny a motion for a change of venue for clear error. Coleman v Gurwin, 195 Mich App 8, 10; 489 NW2d 118 (1992). Although it is possible for a trial court to grant a party's motion for a change of venue that is based upon hardship or inconvenience, in this case, defendant's motion was based upon the contention that venue was improper in Genesee County. The decision of the Genesee Circuit Court to change venue was therefore clearly erroneous. Because we conclude that the change of venue was in error, we need not reach plaintiff's contention that defendant failed to challenge venue in a timely manner.

Plaintiff also contends that the Bay Circuit Court erred in granting defendant summary disposition. We agree. Defendant argued, and the trial court determined, that plaintiff's judgment against the defendants in the previous litigation, which arose as a result of a mediation evaluation accepted by all parties in that case, constitutes a determination of the full amount of plaintiff's loss, and that satisfaction of that judgment constitutes a full satisfaction of the amount to which plaintiff is entitled. Where the conduct of two or more actors proximately causes a single, indivisible injury to a plaintiff, the plaintiff may pursue any or all of the defendants for compensation for the injury, but is entitled to only one satisfaction. Barkman v Montague, 297 Mich 538, 542; 298 NW 273 (1941); Verhoeks v Gillivan, 244 Mich 367, 371; 221 NW 287 (1928); Kaminski v Newton, 176 Mich App 326, 328; 438 NW2d 915 (1989). See also MCL 600.2925c(5); MSA 27A.2925(3)(5). When a judgment is based upon actual litigation of the amount of damages and the judgment is paid in full, the plaintiff has no enforceable claim against any other obligor responsible for the same loss. See Kaminski, supra, 331; Restatement Judgments, 2d, § 50, comment d, p 40.

In Espinoza v Thomas, 189 Mich App 110, 117-118; 472 NW2d 16 (1991), however, this Court held that, although an accepted mediation evaluation serves as a final adjudication of the claims mediated and is binding upon the parties to the mediation, the acceptance of a mediation award is not analogous to a judgement entered after a trial. Rather, MCR 2.403(M) provides:

(1) If all the parties accept the panel's evaluation, judgment will be entered in that amount. The judgment shall be deemed to dispose of all claims in the action and includes all fees, costs, and interest to the date of judgment.

(2) In a case involving multiple parties, judgment shall be entered as to those opposing parties who have accepted the portions of the evaluation that apply to them.

This language suggests that a judgment entered pursuant to a mediation evaluation can be effective against only those parties who actually participated in the action and cannot bind parties not privy to the proceedings. Further, the process used to arrive at a mediation evaluation differs from the trial process in that under the mediation rule no fact finding is necessary, no formal opinion is issued, and the parties are significantly limited in the presentation of evidence. See, generally, MCR 2.403. In arriving at a mediation evaluation, the mediation panel considers factors similar to those considered in the settlement process; for example, the mediators may consider insurance policy limits, the certainty of the claim, and the likelihood of recovery from the defendants. Thus, the dollar figure suggested in a mediation panel's evaluation does not constitute the actual valuation of the plaintiff's damages, but, instead, suggests a settlement figure that is reached by considering the plaintiff's damages as one of several factors. See Espinoza, supra, 118; see also Klawiter v Reurink, 196 Mich App 263, 266; 492 NW2d 801 (1992). The trial court therefore erroneously concluded that plaintiff's suit was barred by the previous judgment entered pursuant to acceptance of the mediation evaluation.

Reversed and remanded. We do not retain jurisdiction.