Author(s): Jennifer Bruening

Michigan Supreme Court affirms that a nonparty must owe plaintiff a duty before fault can be assessed against it.

In the July 28, 2008 edition of LawFax, we reported that the Michigan Supreme Court, resolving a conflict between two Court of Appeals decisions, held that before a party can argue the fault of a nonparty to the jury, the party seeking to name the nonparty must show that the nonparty owed a duty to the injured party. Subsequently, as reported in our November 7, 2008 issue, the Court vacated its July 2008 decision pending rehearing. On March 31, 2009, the Court re-adopted its July decision. Romain v Frankenmuth, docket number 135546 (March 31, 2009).

The dispute in Romain centered around defendant’s notice of nonparty fault, which plaintiff moved to strike arguing that because the nonparty did not owe a duty to the plaintiff, its conduct could not have been a proximate cause of plaintiff’s damages, and thus, the jury could not allocate any portion of plaintiff’s damages to the nonparty. The trial Court granted plaintiff’s motion to strike, and the Supreme Court has now upheld that ruling. In its brief opinion, the Court sought to resolve the conflict between Jones v Enertel, 254 Mich App 432 (2002) and Kopp v Zigich, 268 Mich App 258 (2005). The Jones panel took the position that “a duty must be proved before the issue of fault or proximate cause can be considered.” By contrast, the Kopp panel determined that the comparative fault statutes do not “require proof of a duty before fault can be apportioned and liability allocated.” The Romain Court determined that the Kopp decision incorrectly stated Michigan law.

The Supreme Court reasoned that the term “proximate cause” in the comparative fault statutes makes clear that, at least for negligence-based claims, it must first be determined that the person owed plaintiff a legal duty. Furthermore, the statutes define fault as encompassing a “breach of a legal duty,” which logically cannot occur unless a legal duty existed. Absent owing a duty, no breach can occur, and the “negligent” nonparty actor couldnothaveproximatelycausedthecomplained-ofinjury. Inanegligenceaction,therefore,onemustprove that the nonparty actor owed plaintiff a duty before the jury can assess fault to that nonparty.

Of particular interest, and an issue raised in our November 7, 2008, follow-up LawFax, is the potential impact that Romain could have upon those seeking to name an employer as a nonparty at fault. The Court did not address that issue and did not suggest that its decision would have altered the outcome of Kopp. The Romain case, however, did not involve an employer, therefore, it is not known what position the Court would take on the issue. Presently, however, we can suggest this: the holding in Romain concerns itself with the existence of a duty, irrespective of whether a lawsuit against the alleged tortfeasor could be viable in our Courts. The comparative fault statutes, MCL 600.6304 and 600.2957, require allocation of damages “regardless of whether the person was or could have been named as a party to the action.” While our State law under the Worker’s Disability Compensation Act limits the remedies available to a plaintiff, the comparative fault statutes contemplate situations in which an action cannot be brought against a party, such as those that might be barred by the exclusive remedy provisions of the WDCA. Against the backdrop of the Kopp and Romain opinions, and coupled with the language contained in the comparative fault statutes, the Romain holding, therefore, does not alter our previous analysis that the Court’s decision does not prevent a defendant from naming an employer as a nonparty at fault.


Insurance policies covering losses of houses as a result of fire or other causes typically exclude coverage for buildings that have been left vacant or unoccupied for a specified period of time. Many policies, however, do not define the terms “vacant” or “unoccupied.” Until recently, there has been no Michigan law providing an answer as to how these terms are to be interpreted.

In the case of Vishaj v Farm Bureau Gen. Ins. Co. of MI, an unpublished opinion issued 3/17/09, the Court of Appeals has provided guidance. In that case, a Farm Bureau policy provided that there would be no coverage for a loss that occurred “while a described building, whether intended for occupancy by owner or tenant, is ‘vacant’ or ‘unoccupied’ beyond a period of 30 consecutive days.” Through a motion for summary disposition, it was determined that no one had continuously resided in the building for two years. The plaintiff’s father would spend a night in the home every other week. However, there were no beds in the house and he would bring in a sleeping bag. He would occasionally cook, but also went to McDonald’s for meals. While at the house, he would do light maintenance tasks such as mowing the lawn and shoveling snow.

Noting that there was no definition for the terms “vacant” or “unoccupied” in the policy, the Court turned to Black’s Law Dictionary and a Random House Webster’s Dictionary for common definitions. Rejecting Plaintiff’s claim that vacant means completely empty, the Court concluded that, “the terms ‘vacant’ and ‘unoccupied’ mean, ‘not routinely characterized by the presence of human beings.’” Applying that definition, the Court affirmed the summary disposition ruling of the trial judge on the basis that the building had been vacant or unoccupied beyond a period of 30 consecutive days, despite the fact the plaintiff’s father stayed on the premises one night every other week during the period. As the case is unpublished, it is not binding on subsequent courts, however, it should prove helpful in those cases where the owner claims the building was not vacant or unoccupied because either personal belongings were present or the specified period was interrupted by someone occasionally spending a night on the premises.

Note – There are statutory limits and requirements, found in MCLA 500.2833, as to what specific terms may and must be included in fire insurance policies. One calls for 60 days of vacancy or non-occupancy, rather than the 30 days set forth in the Farm Bureau policy. The Court did not address this apparent conflict with the statute. Analysis of the relevant statutes and case law suggests that had this point been raised, a different outcome may have resulted.