Tennille v. Action Distributing Co.

570 N.W.2d 130 (1997) 225 Mich. App. 66

Mark TENNILLE and Shanay Pace, by her next friends, Mark Tennille and Cheryl Pace, Plaintiffs-Appellants,
v.
Daniel John Hackney, Robert Darryl Hurrington, Harriet Washington, and ACTION DISTRIBUTING CO., INC., Defendants-Appellees.

Docket No. 192789.

Court of Appeals of Michigan.

Submitted April 2, 1997, at Detroit. Decided August 15, 1997, at 9:15 a.m. Released for Publication November 6, 1997.

Larkin & Larkin, P.C. by Joseph Larkin, Livonia, for Mark Tennile and Shanay Pace.

Mellon, McCarthy & Van Dusen, P.C. by Timothy R. Van Dusen and Bruce A. Measom, Troy, for Action Distributing Co., Inc.

Before MARKEY, P.J., and BANDSTRA and HOEKSTRA, JJ.

PER CURIAM.

Plaintiff Mark Tennille was injured in an automobile accident when the vehicle in which he was a passenger, and which was operated by defendant Darryl Hurrington and owned by defendant Harriet Washington, was struck by a vehicle driven by defendant Daniel J. Hackney, who was intoxicated. Hackney was nineteen at the time of the accident and was employed by defendant Action Distributing Co., Inc., a liquor wholesaler. Earlier in the evening in question, Hackney had kept, paid for, and consumed a case of beer that had been refused by a customer of Action to whom he had made a delivery.

Following the accident, plaintiff filed suit against all defendants. Shanay Pace, plaintiff's minor daughter, filed a derivative loss of consortium claim. Before trial, the trial court granted Action partial summary disposition and eventually ordered dismissal of the remaining claim against Action as well. Trial proceeded against the remaining defendants, but only defendant Hackney was found liable. It is the dismissal of plaintiff's claims against Action that plaintiff challenges on appeal. Specifically, plaintiff argues that summary disposition of his statutory and common-law claims was improper because the trial court incorrectly determined that plaintiff's exclusive remedy against Action was under the dramshop act, M.C.L. § 436.22; M.S.A. § 18.993, a provision of the Michigan Liquor Control Act, M.C.L. § 436.1 et seq.; M.S.A. § 18.971 et seq., and that plaintiff's dramshop claim was without merit. We disagree with the trial court's conclusion that the dramshop act provided plaintiff's exclusive remedy. Rather, we hold that the dramshop act does not apply to wholesale licensees like Action. Accordingly, plaintiff's other claims against Action should not have been dismissed on that basis, and we reverse the order dismissing those claims and remand the case for further proceedings consistent with this opinion.

Although Action was not originally listed as a party defendant, plaintiff filed an amended complaint including Action as a defendant, and, eventually, a second amended complaint that alleged: (1) Action violated the Liquor Control Act by providing alcohol to Hackney and failing to supervise him, (2) Action's conduct amounted to common-law negligence, negligence per se, and gross negligence, (3) Action violated common-law duties arising from the master-servant relationship or respondeat superior, and (4) Action was liable under the dramshop act.

Following the filing of plaintiff's second amended complaint, the trial court found that the dramshop act was plaintiff's exclusive remedy and entered an order granting partial summary disposition to Action, dismissing plaintiff's claims "sounding in negligence, respondeat superior, master/servant, etc." With regard to plaintiff's dramshop claim, the trial court determined that because Action was not a retail licensee it could not have violated M.C.L. § 436.22(3); M.S.A. § 18.993(3), which applies only to retail licensees. However, the trial court determined that Action could be liable to plaintiff under the dramshop act if plaintiff could prove an "unlawful sale" under M.C.L. § 436.22(4); M.S.A. § 18.993(4) by showing that Action knowingly furnished alcohol to defendant Hackney in violation of M.C.L. § 436.33(1); M.S.A. § 18.1004(1), which governs sales to minors.

Shortly thereafter, plaintiff moved for reconsideration of the trial court's order, arguing that the trial court committed error in requiring plaintiff to prove that Action knowingly furnished alcohol in light of the dramshop act's provision for strict liability. The trial court denied plaintiff's motion and also dismissed plaintiff's dramshop claim, finding that Action could not be held liable for the illegal acquisition of the intoxicants by Hackney because Action lacked knowledge of the acquisition and Hackney was acting outside the scope of his employment.

On appeal, plaintiff contends that the trial court erred in determining that plaintiff's exclusive remedy in this case was under the dramshop act. We agree.

The dramshop act, which created a new remedy not available at common law, "occupies the field of liability arising out of the selling, giving or furnishing of alcoholic liquor to minors or visibly intoxicated persons." LaGuire v. Kain, 440 Mich. 367, 374, 487 N.W.2d 389 (1992). Our Supreme Court has construed the act to be a "complete and self-contained solution" for cases arising under "dramshop-related" facts. Browder v. Int'l Fidelity Ins. Co., 413 Mich. 603, 615-616, 321 N.W.2d 668 (1982). The Legislature codified this intent by enacting 1986 PA 176, which states that the dramshop act "provides the exclusive remedy for money damages against a licensee arising out of the selling, giving, or furnishing of alcoholic liquor." M.C.L. § 436.22(11); M.S.A. § 18.993(11).

At issue in this appeal is whether the Legislature intended the word "licensee" in subsection 11 to apply to all licensees, thus making the dramshop act the exclusive remedy for all claims against liquor licensees of any type, or merely against retail licensees. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Sanchez v. Lagoudakis (On Remand), 217 Mich.App. 535, 540, 552 N.W.2d 472 (1996). To discover legislative intent, statutory provisions should be read in context to provide, if possible, an harmonious and consistent enactment as a whole. Weems v. Chrysler Corp., 448 Mich. 679, 699-700, 533 N.W.2d 287 (1995). Statutory language should be reasonably construed, and the purpose of the statute should be kept in mind. Barr v. Mt. Brighton Inc., 215 Mich.App. 512, 516, 546 N.W.2d 273 (1996).

We conclude that the intent of the Legislature was to limit the application of the exclusive remedy provision of the dramshop act to retail licensees. Support for this conclusion is found in the preamble to the Liquor Control Act. Although a preamble to an act is not to be considered authority for construing an act, it is useful for interpreting the purposes and scope of the act. Malcolm v. East Detroit, 437 Mich. 132, 143, 468 N.W.2d 479 (1991). Here, the preamble to the Liquor Control Act provides, in relevant part, that is it an act "to prescribe liability for retail licensees under certain circumstances" (emphasis added).

A plain reading of the provisions of the Liquor Control Act in their entirety further supports our conclusion that the Legislature did not intend for wholesale licensees to be covered by the exclusive remedy provision of the dramshop act. The Liquor Control Act separately defines "retailer" and "wholesaler," M.C.L. § 436.2m(f), (i); M.S.A. § 18.972(13)(f), (i), and subsection 3 of the dramshop act states that "a retail licensee shall not ... sell, furnish, or give alcoholic liquor" to a minor (emphasis added). Subsections 6, 8, 9, and 12 of the dramshop act also refer to "retail licensees." Even though subsections 4 and 11, which address actions for injuries and exclusiveness of remedy, do not contain such specific references, we believe that, when the Liquor Control Act is read as a whole, its provisions indicate a legislative intent to exclude wholesalers from dramshop liability.^[1]

Refusing to view the dramshop act as a whole and looking at certain subsections in isolation, Action argues that subsections 4 and 11, which lack specific references to retail licensees, should be applicable to wholesalers such as themselves and that subsection 4 provides a separate cause of action for "unlawful" sales by any "person." We believe this position to be wholly without merit. We conclude that subsection 4, which addresses actions for injuries "pursuant to this section" of the Liquor Control Act, must be read in conjunction with subsection 3, which provides the only basis for liability under the dramshop act and clearly places that liability only on retail licensees. Furthermore, this Court and our Supreme Court have previously declined to expand the class of "people" who may be liable under this act beyond retail licensees. See, e.g. Longstreth v. Gensel, 423 Mich. 675, 684-685, 377 N.W.2d 804 (1985); Vander Bossche v. Valley Pub, 203 Mich.App. 632, 638, 513 N.W.2d 225 (1994); Lover v. Sampson, 44 Mich.App. 173, 180, 205 N.W.2d 69 (1972). In Millross v. Plum Hollow Golf Club, 429 Mich. 178, 189, 413 N.W.2d 17 (1987), our Supreme Court concluded that the word "unlawful" in the dramshop act simply qualified a plaintiff's right to recover and did not affect the applicability of the act.

Moreover, we believe the Legislature's repeated use of the terms "retailer" and "retail licensee" throughout the sections that immediately follow the dramshop act and further implement its provisions to be additional evidence that only retailers can be liable for dramshop violations. M.C.L. § 436.22a(1); M.S.A. § 18.993(1)(1) regulates the process of obtaining liability insurance by "any retailer or applicant for a retail license" for the purpose of providing security for "the damages specified in section 22." M.C.L. § 436.22c; M.S.A. § 18.993(3) regulates service of process in lawsuits against "a retailer as defendant ... to enforce the liability in section 22." Likewise, M.C.L. § 436.22h(1); M.S.A. § 18.993(8)(1) provides that a "retail licensee" may present evidence that it was adhering to "responsible business practices" in defense of "a civil action under section 22."

Finally, several Michigan courts have addressed the Legislature's objective in enacting the dramshop act. In Browder, supra at 611, 321 N.W.2d 668, our Supreme Court found that the Legislature's objective was to "discourage bars from selling intoxicating beverages to minors or visibly intoxicated persons." In Lover, supra at 180, 205 N.W.2d 69, a case involving a social host, this Court held that use of the phrase "dramshop act" to describe M.C.L. § 436.22; M.S.A. § 18.993 was evidence that only tavern owners were intended to be held liable under its provisions.

In sum, we hold that the dramshop act applies only to retailers of intoxicating liquor. Consequently, the trial court erred in finding that Action, a wholesaler rather than a retailer of alcoholic beverages, was entitled to dismissal of plaintiff's other claims of liability because the dramshop act provided plaintiff's exclusive remedy.

We reverse the order of the trial court finding the dramshop act to provide plaintiff's exclusive remedy and dismissing plaintiff's other claims.^[2] On remand, the trial court should consider the merits of plaintiff's remaining claims. We do not retain jurisdiction.

NOTES

[1] We also note that the subsections of the dramshop act have been revised over the years. Former subsections specifically included references to actions against wholesalers. We believe that the absence of such provisions in the current version of the law further evidences the Legislature's intent to exclude wholesalers from dramshop liability. See, e.g., 1980 PA 351, 1972 PA 196.

[2] Given our conclusion that the dramshop act applies only to retail licensees, the trial court's order dismissing plaintiff's dramshop claim is affirmed, albeit for different reasons than those stated by the trial court.