Laster v. Gottschalk , 75 Mich. App. 290 ( 1977 )

J. H. Gillis, J.

This case arises from a January 1, 1971 head-on collision between cars driven by Hershel Laster and Ronald Gottschalk. Elayne and Nadine Laster sued the Gottschalks. The Gottsch-alks added the Board of County Road Commissioners of the County of Macomb (hereinafter referred to as the Board) as third-party defendant, alleging that it had built too narrow a road at the place of the accident, constructed or maintained the contour of the roadway so that it increased the danger, and removed and piled snow in a manner that further decreased the width of the road. The Last-ers then amended their complaint to include the Board. Following settlement between the Gottsch-alks and the Lasters, the Gottschalks were discontinued as parties by order and stipulation. The Board then filed a third-party complaint against the Gottschalks and Hershel Laster. The trial court denied the Gottschalks’ motion for accelerated judgment and they appeal, asserting that the Board has no substantive right against them. The Board counters, claiming the rights to indemnification and contribution. Our Court granted leave to appeal and we now proceed to consider the issues raised.

This case is substantially similar to Witucke v Presque Isle Bank, 68 Mich App 599; 243 NW2d 907 (1976), lv den, 397 Mich 842 (1976), and on that basis we affirm the trial court in denying accelerated judgment. As in Witucke, indemnification is not at issue in the instant case. 68 Mich App 599, 613. See also Minster Machine Co v Diamond Stamping Co, 72 Mich App 58; 248 NW2d 676 (1976), and cases cited therein. We interpret Witucke to mean that contribution may be at issue here; however, we feel the need to offer further guidance to the trial court in view of the factual situation presented in this case.

In Witucke, the plaintiff had to show negligence on the part of the settling party in order to recover from the remaining defendant. Such is not the case here; a jury could determine that both the Gottschalks and the Board were negligent, that neither was negligent, or that one or the other was negligent. The settlement does not admit liability; therefore the issue of negligence on the part of the Gottschalks is at issue in the case of the Lasters versus the Board.

We point out that this case involves concurrent tortfeasors (if both defendants are determined negligent), not joint tortfeasors. Therefore, MCLA 600.2925; MSA 27A.2925 does not apply. See Wi-tucke v Presque Isle Bank, supra, at 604-609. Although the settlement between the Lasters and the Gottschalks prohibits the Lasters from suing the Gottschalks, it does not resolve all of the conflicts between the Board and the Gottschalks. Boucher v Thomsen, 328 Mich 312; 43 NW2d 866 (1950). The Lasters and the Gottschalks cannot negotiate away the rights of the Board. The decision of the Lasters to settle with the Gottschalks does not determine the Board’s right to contribution. "The right to contribution may be established by third-party plaintiffs’ (here original defendants’), proofs alone”. Caldwell v Fox, 394 Mich 401, 420-421; 231 NW2d 46 (1975). (Citation omitted.) We are somewhat troubled with the fact that one who has settled out of a lawsuit may be forced back into it. However, it is equally unfair that the Board, having objected to the settlement and not being made a party thereto, should be denied the opportunity to adequately defend itself.

We note that the settlement agreement provided that it would operate to satisfy the pro rata share of the Gottschalks for any judgment rendered against them. Although this prevents the Board from actually paying more than its pro rata share should the Gottschalks and the Board be determined to be concurrent tortfeasors, it does not determine liability. Therefore, if the jury is only allowed to deliberate on the Board’s negligence, any finding of liability will be total. The settlement could not be introduced by the Board to show the Gottschalks’ payment of part of the judgment if there is no determination of the Gottschalks’ liability.

Upon trial of this matter, if it is determined that both the Gottschalks and the Board are liable, then the Board will be liable for their pro rata share only, the pro rata share of the Gottschalks having been satisfied by the settlement. Krevsky v Naccarato, 56 Mich App 704; 224 NW2d 731 (1974), lv den, 394 Mich 772 (1975).

If it is determined that the Gottschalks are solely liable, obviously the Board will be discharged from liability, and the judgment would be deemed satisfied by the settlement.

If it is determined that the Board is solely liable, then it will be liable for the entire judgment minus the amount of the settlement pro tanto, therefore preventing double recovery.

If neither are deemed negligent, then plaintiffs receive the settlement only, the consideration being plaintiffs’ promise not to sue the Gottschalks.

Affirmed. Costs to appellees.

R. M. Maher, J., concurred.