Volume XXIII, No. 6
March 11, 2011

From the Co-Editors
James L. Borin & Simeon R. Orlowski



Since the inception of the non-party at fault rules created in 1995 Tort Reform Act, there has been tension
as to whether or not an employer could be listed as a non-party at fault. There have been conflicting decisions that have left questions in this area, but recently, the unpublished decision of Schmeling v Whitty, Court of Appeals No. 292190, decided February 15, 2011, provided some clarity.
The essence of the non-party at fault statute is that it allows the trier of fact, be it a jury or judge, to
allocate liability among all persons found to have been at fault. The statute makes clear that this is “regardless of whether the person is, or could have been named as a party to the action.”
The Court of Appeals addressed this issue once before in the case of Kopp v Zigich. This is the infamous
case of an individual who slipped on some debris left by a a dog while delivering a hot tub and proudly defended by your author. In that case the Court of Appeals held that the employer could be named as a non-party at fault, but in doing so they ruled that there was no requirement of a legal duty before a party could be named as a nonparty at fault. The Michigan Supreme Court then addressed the issue again in the case of Romain v Frankenmuth. In that decision the Michigan Supreme Court indicated that there first must be a legal duty owed by the person or organization to the Plaintiff before the person or organization could be named as a non-party at fault. They over ruled Kopp v Zigich since the Court of Appeals did not find a legal duty necessary. The Romain case did not involve a claim where an employer was seeking to be held responsible under the non-party at fault rules.
In the Schmeling case, the Plaintiff was injured while a passenger in an ambulance traveling through an
intersection and which collided with a vehicle driven by Mr. Whitty. The Defendant named as a non-party at fault the Plaintiff’s co-worker, the driver of the ambulance, and the ambulance company. The Plaintiff then sought to strike this notice of non-party at fault, claiming that an employer could not be named as the non-party at fault.
The trial court accepted this position and struck the pleading.
In addressing this issue, the Court of Appeals distinguished between two concepts, the first being the
issue of duty and the second being what remedies are available to a person. They pointed out that the Worker’s Compensation Act provides the exclusive remedy for those hurt in work-place accidents against their employers.
The fact that this provides the remedy does not change the nature of the legal duty owed by the employer. The Court stated:
Although worker’s compensation benefits are the exclusive remedy for an employee
injured while working, it does not follow that employers and co-employees do not
owe an employee any duty.
On the basis of this ruling, the Court reversed the trial court and indicated that the Plaintiff could seek to have fault apportioned to the co-employee and the Plaintiff’s employer.
To the extent that someone wishes to suggest to you that you cannot attempt to apportion fault against
an employer, this decision should be very helpful in combating that position. In addition to its sound legal basis, the decision also makes common sense. Rarely would you ever find someone who would try to suggest that an employer does not owe a duty of safety to its employees. This is a basic element of almost every aspect of law.
Also, in many circumstances, the employer, through its worker’s compensation carrier, is seeking reimbursement of the amounts it has paid. Clearly, an employer has an interest in the litigation. It would seem to be entirely unfair that an employer’s fault would not be apportioned to it, especially in those circumstances where the employer is seeking reimbursement for the very amounts it has paid.



The Grand Rapids office of Garan Lucow Miller P.C. is pleased to present its Annual Spring Breakfast Seminar
on April 13, 2011 at the Frederik Meijer Gardens and Sculpture Park, located at 1000 East Beltline, NE in Grand Rapids {(616) 957-1580}.

Comprehensive written materials will be distributed to all who attend. After the seminar, feel free to
enjoy all of the open indoor and outdoor garden areas as our guest, including the exciting Butterfly Exhibit! In addition, a membership to Frederik Meijer Gardens and Sculpture Park will be presented to two lucky seminar attendees, along with day passes to enjoy this lovely venue.

If you are able to attend this complimentary annual event, please register via e-mail to: or phone Lynn Beatty at (616) 742-5500 or (800) 494-6312 for reservations.
We look forward to seeing you!

8:00 – 8:25 am Registration and Continental Breakfast
8:25 – 8:30 am Welcome and Introduction
David N. Campos, Moderator
8:30 – 9:00 am The Three Phases of Surveillance
Speaker: Bob Chapman
Blue Diamond Investigations, LLC
9:00 – 9:20 am Premises Liability Update
C Lugo v Ameritech – Chinks in the Armor C Who will be Deemed an
Owner of an Animal that Causes Injury? C Social Host Claims – Narrow
Avenues for Recovery if the Facts are Right
Speaker: David A. Couch
9:20 – 9:40 am Adjusters and Their Estate Planning
C How to Avoid the 6 most Common Estate Planning Mistakes C Medicaid
Planning C Special Needs C New Tax Laws
Speaker: Tara L. Velting
9:40 – 10:00am Coverage Issues
C Fraud C Theft C Joyriding C Excluded Drivers C Excluded Drivers C
Priorities C Parked Vehicles C Alighting C ORV’s C UM/UIM
Speaker: Thomas G. Herman
10:00 – 10:15 am Break
10:15 – 10:35 am The Medical Marihuana Controversy
COverview of Michigan Medical Marihuana Act C How to Obtain It C Compensable Benefit in
Michigan under the No-Fault Act?
Speaker: Sarah L. Walburn
10:35 – 10:55 am No-Fault Home Accommodation Claims
C Griffith v. Wilcox
Speaker: Emily L. Partridge
10:55 – 11:15 am Third-Party Auto Threshold & Renewed Importance of Surveillance
Life After “McCormick” C Surveillance and “the Pay Off”
Speaker: L. Ladd Culbertson
11:15 – 11:45 am Michigan Auto No-Fault Update
C Case Law Update C Year in Review and Anticipated
Future Case Law Development
Speaker: David N. Campos
11:45 – noon Questions and Answers



The Troy Breakfast Seminar will be held on Thursday October 27, 2011 at the Troy Marriott.
Please watch Law Fax for further information.