Donajkowski v. Alpena Power Co.

596 N.W.2d 574, 460 Mich. 243

• Court: Michigan Supreme Court
• Decided: June 30, 1999
• Docket: 108468, Calendar No. 2
• Status: Published

Opinions

Young, J.

We granted leave in this case to address the scope of the Michigan contribution statute, MCL 600.2925a; MSA 27A.2925(1). Specifically, we are presented with the question whether an employer being sued for sex discrimination based upon the terms of a collective bargaining agreement may seek contribution from a union that was a party to that labor agreement. We hold that Michigan law permits an employer to bring such a contribution action.

i

FACTS AND PROCEDURAL HISTORY

Plaintiff Christina Donajkowski began working for defendant Alpena Power Company in 1985. In 1986, she became a meter reader, and the first female member of Local 286, Utility Workers of America, AFL-CIO.¹ Plaintiff Beth McDonald joined Donajkowski as a meter reader and member of the union in 1989. Later that year, Alpena Power and the union negotiated a three-year collective bargaining agreement that created a new classification entitled “general labor/meter reader.” Donajkowski and McDonald were placed in this new classification. Pursuant to the agreement, the wage range for the new classification was between $7.50 and $10.50 an hour.

Because the members of the new classification, which included two men, had been making more than $10.50 an hour before the agreement, the agreement froze their wages. The two men in the general labor/meter reader classification moved into other classifications before the agreement took effect, leaving only plaintiffs Donajkowski and McDonald in the general labor/meter reader classification. The agreement provided pay increases for the other union classifications. There were no women in these other classifications.

Alpena Power hired plaintiff Deedra Duranceau into the general labor/meter reader classification in 1990. Duranceau started at $7.50 an hour and received regular increases until she reached the $10.50 maximum.

When Alpena Power and the union could not agree on a new contract in 1992, Alpena Power instituted the terms of its last best offer and union members worked without a contract. Defendant’s last best offer maintained the basic structure of the 1989 collective bargaining agreement insofar as it maintained the maximum wage for the general labor/meter reader classification while providing increases for the other classifications. The effect of these terms was to freeze the wages of the three female union members — all of whom were in the general labor/meter reader classification — while granting increases for the remaining classifications, which were populated by male union members. However, nonunion female employees also received pay increases during this period.

In 1993, plaintiffs and the union filed suit against Alpena Power alleging sex discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.] MSA 3.548(101) et seq., and the Equal Pay Act, 29 USC 206(d)(1). After the union was dismissed as a party-plaintiff pursuant to stipulation, defendant filed a third-party complaint seeking contribution from the union in the event defendant was found liable to plaintiffs. Defendant argued that the union should be jointly liable for any discrimination stemming from the collective bargaining agreement because that agreement was the result of negotiation between defendant and the union. The trial court allowed the third-party complaint, over the union’s protest.² Eventually, the trial court also granted summary disposition for defendant on plaintiffs’ claims. Plaintiffs and the union then appealed. The Court of Appeals reversed the grant of summary disposition, but affirmed the decision allowing the third-party complaint against the union.³ Alpena Power and the union both sought leave to appeal. We denied Alpena Power’s application, but granted leave to the union.⁴ Thus, the merits of the underlying claims are not at issue here, and we only concern ourselves with the propriety of defendant’s third-party complaint against the union.

n

THE PARTIES’ ARGUMENTS

The parties correctly assert that a claim for sex discrimination sounds in tort. See Stimson v Michigan Bell Telephone Co, 77 Mich App 361, 366, n 3; 258 NW2d 227 (1977). Our Legislature has declared that there is a right of contribution among joint tortfeasors:

Except as otherwise provided in this act, when 2 or more persons become jointly or severally liable in tort for the same injury to a person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them. [MCL 600.2925a(l); MSA 27A.2925(1)(1).]

The defendant employer contends that, to the extent it is liable to plaintiffs for sex discrimination, the union is liable as a joint tortfeasor under the statute. For its part, the union contends: (1) an intentional tortfeasor may not seek contribution, and (2) the Civil Rights Act should be construed as prohibiting any attempt by an employer to seek contribution from a union.

As explained below, we are not persuaded by the union’s arguments, and we conclude, as did the trial court and the Court of Appeals, that the plain language of the contribution statute permits defendant to pursue a third-party claim against the union.

m

STANDARD OF REVIEW

We review questions of statutory construction de novo. McAuley v General Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998). In construing a statute, our purpose is to ascertain and to give effect to the Legislature’s intent. Reardon v Mental Health Dep’t, 430 Mich 398, 407; 424 NW2d 248 (1988). If the language of a statute is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). We must give the words of a statute their plain and ordinary meaning. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995).

IV

ANALYSIS

A. THE CONTRIBUTION STATUTE

At common law, courts have often drawn distinctions between intentional and nonintentionai tortfeasors vis-a-vis their right to seek contribution.⁵ Indeed, Michigan common law prohibits an intentional tortfeasor from seeking contribution.⁶ However, our Legislature has not seen fit to maintain that common-law distinction in our statutory scheme. Thus, unlike a number of other states, our contribution statute does not include any limitation or prohibition concerning intentional tortfeasors.⁷ Whatever the policy arguments for or against such a rule,⁸ we conclude that the Legislature has unambiguously provided that contribution may be had between tortfeasors without regard to the intentional character of their acts, and we are not at liberty to ignore the plain language of the statute.

The union relies upon a number of cases addressing the distinction between intentional and nonintentional tortfeasors. Most of those cases dealt with the common law. See Moyses v Spartan Asphalt Paving Co, 383 Mich 314; 174 NW2d 797 (1970), overruled in part on other grounds in Hapner v Rolf Brauchli, Inc, 404 Mich 160, 182, n 5; 273 NW2d 822 (1978); Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975); Fidelity & Deposit Co of Maryland v Newman, 109 Mich App 620; 311 NW2d 821 (1981); Johnson v Bundy, 129 Mich App 393; 342 NW2d 567 (1983). In addition, the facts in Moyses, Caldwell, and Johnson involved negligence, breach of warranty, or products liability, rather than intentional torts. Thus, to the extent that any of these cases suggest that the contribution statute does not apply to intentional tortfeasors, they do so only in dicta.

The only Michigan case that directly addresses the statutory contribution rule is Hunt v Chrysler, 68 Mich App 744, 747-750; 244 NW2d 16 (1976), where the Court concluded that an intentional tortfeasor may bring an action for contribution under the statute. The union does cite one federal case, In re Air Crash at Detroit Metropolitan Airport, 791 F Supp 1204, 1226 (ED Mich, 1992), wherein the federal district court stated that “Michigan courts have ruled that an intentional tortfeasor may not recover contribution under the [contribution statute].” However the court in In re Air Crash was mistaken; no Michigan court has so held. The court in In re Air Crash confused the Michigan common-law rule with that established in the Michigan contribution statute, and essentially relied on dicta from the cases it cited for this proposition.⁹ We conclude that, on the basis of its plain and unambiguous terms, the Michigan contribution statute, with specific exceptions,¹⁰ authorizes an intentional tortfeasor to seek contribution.

B. THE CIVIL RIGHTS ACT

The union also argues that the Civil Rights Act should be read to preclude an action for contribution brought by an employer against a union. The union does not point to any language in the act requiring or even hinting at such a result. Instead, the union relies on a case involving title vn, the federal counterpart to our Civil Rights Act. In Northwest Airlines v Transport Workers Union of America, 451 US 77, 90-95; 101 S Ct 1571; 67 L Ed 2d 750 (1981), the United States Supreme Court found that title vn did not provide an employer charged with a civil rights violation with a right to contribution from the union. The Court also concluded that, in the absence of congressional authorization, the Court was without authority to grant an employer such a right. Id. at 95-98.

While we often examine federal law in construing our Civil Rights Act, Michigan law is not analogous to federal law on this point. Under federal law, there is no statutory right to contribution, whereas in Michigan there is. Under these circumstances, Northwest Airlines is wholly inapplicable.¹¹

The union additionally argues that the Civil Rights Act “impliedly repealed” the contribution statute. We find no merit in this argument.

We will only infer the repeal of a statute in narrow circumstances, and there is a strong presumption against such a finding. House Speaker v State Administrative Bd, 441 Mich 547, 563; 495 NW2d 539 (1993). A repeal may be inferred: (1) when it is clear that a subsequent legislative act conflicts with a prior act, or (2) when a subsequent act of the Legislature clearly is intended to occupy the entire field covered by a prior enactment. Id. Here, the union has failed to meet the heavy burden of establishing either of these criteria. Nothing in the Civil Rights Act directly conflicts with the contribution statute, nor is there any evidence that the Civil Rights Act was intended to address, much less completely occupy, the field of contribution. Under these circumstances, there is absolutely no basis for finding that the contribution statute has been impliedly repealed by the Civil Rights Act.

C. PUBLIC POLICY

Finally, the union argues that public policy precludes an employer from seeking contribution from a union. We are unaware of, and the union has failed to identify the source of, any free-standing public policy that would operate to protect a wrongdoer from paying for its own discriminatory actions. Indeed, the articulated legislative policy of this state is that discrimination in employment on the basis of sex is forbidden. MCL 37.2202; MSA 3.548(202). If, as defendant has alleged in its contribution action, the union was complicit with defendant in discriminating, then they are both wrongdoers and neither should be able to escape liability.

v

RESPONSE TO THE DISSENT

We find it easier to consolidate our response to the dissent, rather than providing it piecemeal.

The dissent has taken on the leviathan burden of justifying the position that plaintiffs’ union may escape liability for its alleged role in fostering employment discrimination in the workplace. Stripped to its essentials, the dissent would hold that a union may conspire to discriminate on the basis of sex, and, when called to account at the bar of justice for its role in that conspiracy by the others charged, escape liability. Thus, the dissent would grant this union a blanket immunity from contribution that is unavailable to any other person, corporation, or entity in our state.

To make the matter plain, the legal question posed by this case is simple: Where a plaintiff has alleged that the terms of a collective bargaining agreement negotiated by her employer and her union discriminate against her on the basis of her gender, may the union escape liability for its asserted complicity in that act of discrimination? As set forth above, we hold that the union is accountable for its role in any alleged discrimination in the workplace and is subject to a contribution action as a joint tortfeasor. By contrast, the dissent concludes that a union alleged to be complicit in workplace sex discrimination is nonetheless immune from contribution.¹²

The dissent’s answer to this charge is that the plaintiffs are free to file a discrimination suit against then-union. The dissent fails to point out that this is true in all cases involving joint tortfeasors; a plaintiff is always free to file suit against any or all tortfeasors. Yet, our Legislature has seen fit to allow contribution among joint tortfeasors, even when the plaintiff chooses not to sue all of them.¹³ The dissent’s recognition that plaintiffs are free to sue their union also seems to contradict the dissent’s primary argument, that plaintiffs here (and, perhaps, plaintiffs in general) need the assistance of their union in order to maintain a discrimination suit. We find it odd that the dissent urges union litigation support as its primary policy rationale for avoiding contribution liability. While assisting union members with litigation may be a laudatory union object, surely it is secondary to the union’s core duty to negotiate and administer labor agreements. The irony here is that plaintiffs contend that their union negotiated pay provisions that were discriminatory. We are not prepared to overlook a union’s alleged discrimination in performing this core duty in order to further one of the union’s secondary functions, and we do not believe that the dissent’s rationale for granting this union a “free pass” can withstand scrutiny.

A. THE DISSENT’S STATUTORY CONSTRUCTION ARGUMENT

The linchpin of the dissent’s argument that a union charged with discrimination in the workplace may not be held accountable for such discrimination is its “construction” of the contribution statute. The dissent acknowledges that the contribution statute, according to its plain terms, allows contribution among “joint tortfeasors.” The dissent further recognizes that the statute does not distinguish between joint tortfeasors whose conduct injures by intentional design and those whose conduct injures by negligence. Notwithstanding the absence of any supporting language in the statute, the dissent finds a legislative intent to distinguish between the two kinds of joint tortfeasors.

The dissent relies in part on one of our longstanding rules of statutory construction — that statutes enacted in derogation of the common law are narrowly construed. After properly stating the rule, however, the dissent immediately misapplies it.¹⁴

Relying upon Moyses, supra, the dissent asserts that the term “joint tortfeasor” was a term of art defined in our common law to refer only to negligent tortfeasors. Even if this were true, it is simply irrelevant: four years after Moyses was decided, our Legislature amended the contribution statute to remove any reference to the phrase “joint tortfeasors.”¹⁵ Moreover, to the extent the Court in Moyses addressed a right of contribution among intentional tortfeasors, it did so only in dicta; the issue before the Court there was whether several, but not joint, tortfeasors could seek contribution. There was simply no allegation that any of the defendants in Moyses were intentional tortfeasors. Yet the dissent appears prepared to treat Moyses as binding authority on this point.

Despite evidence of a legislative intent to eliminate any distinction between negligent and intentional tortfeasors, the dissent attempts to revive the contrary dicta from Moyses by pointing out that our Legislature has not seen fit to overrule that dicta. Aside from the obvious fallacy in this argument (why would this or any other court expect the Legislature to react to dicta?), we note that the Legislature only amended the contribution statute to bring it into conformity with the Uniform Contribution Among Tortfeasors Act in 1974,¹⁶ four years after Moyses was decided. It was at this point that the Legislature apparently made the decision not to adopt the model act’s provision prohibiting contribution among intentional tortfeasors. Thus, if we accept the dissent’s argument that silence can be an indication of legislative intent (which, as made clear below, we do not), the Legislature, by its decision in 1974 not to adopt the intentional tortfeasor provision of the model act, has already “overruled” Moyses on this point.¹⁷

In response to the dissent’s legislative acquiescence argument, we must take this opportunity to observe that legislative acquiescence is an exceedingly poor indicator of legislative intent. Justice Taylor took great pains to point this out last term in Rogers v Detroit, 457 Mich 125, 163-166; 579 NW2d 840 (1998), and his remarks regarding the majority opinion in that case apply equally to the dissent here:

[The majority’s legislative acquiescence argument] is remarkable indeed and is perhaps what former Harvard University Law School Professor Thomas Reed Powell meant when he said in discussing legislative acquiescence arguments of this type:

“ ‘[C]ongress has a wonderful power that only judges and lawyers know about. Congress has a power to keep silent. ... Of course when congress keeps silent, it takes an expert to know what it means. But the judges are experts. They say that congress by keeping silent sometimes means that it is keeping silent and sometimes means that it is speaking.’ ” [Report to the Attorney General, Using and Misusing Legislative History: A Re-Evaluation of the Status of Legislative History in Statutory Interpretation, U S Dep’t of Justice, Office of Legal Policy, January 5, 1989, p 110, n 475, citing Powell, The Still Small Voice of the Commerce Clause, in 3 Selected Essays on Constitutional Law 931, 932 (Ass’n of American Law Schools 1938), quoted in Tribe, Toward a syntax of the unsaid: Construing the sounds of congressional and constitutional silence, 57 Ind L J 515, 522 (1982).]

I believe that the majority’s legislative factual history argument ... is, as Justice Scalia so aptly said of similar legislative history arguments, “frail substitute!] for bicameral vote upon the text of a law and its presentment to the [executive].” Thompson v Thompson, 484 US 174, 192; 108 S Ct 513; 98 L Ed 2d 512 (1988). In fact, if such “history” tells us anything, its meaning eludes me. At the very most, it is a “history” that allows the reader, with equal plausibility, to pose a conclusion of his own that differs from that of the majority.²

The majority’s analysis poses yet a further problem, for it should not be assumed that the Legislature even agrees it has a duty to correct interpretations by the courts that it considers erroneous. As Judge Stephen Markman, of our Court of Appeals, insightfully observed on this topic in one of his scholarly writings, “no sensible theory of statutory interpretation would require Congress to devote a substantial portion of its time to extinguishing judicial forest fires.” Markman, On interpretation and non-interpretation, 3 Benchmark 219, 226, n 60 (1987).

As is clear, in my view, this case is an excellent example of the misuse of the doctrine of legislative acquiescence. Indeed, whether it can ever be appropriate to use legislative acquiescence has in the past been the subject of heated debate on this Court. In Autio v Proksch Construction Co, 377 Mich 517, 527; 141 NW2d 81 (1966), Justice Souris described it as “a pernicious evil designed to relieve a court of its duty of self-correction” and indicated that it “has been examined and rejected by this Court before, but its current resurrection demands we perform the task once more lest our silence be construed as signifying its unanswerable validity.” In the course of his discussion, Justice Souris quoted language from Van Dorpel v Haven-Busch Co, 350 Mich 135, 145-146; 85 NW2d 97 (1957), which is worthy, of consideration:

“Now this beguiling doctrine of legislative assent by silence possesses a certain undeniable logic and charm. Nor are we oblivious to the flattery implicit therein; double flattery, in fact; flattery both to the profound learning and wisdom of the particular supreme court which has spoken, and flattery to a presumably alert and eagerly responsive State legislature. One pictures the legislators of our various States periodically clamoring and elbowing each other in their zeal to get at the pearls of wisdom embalmed in the latest decisions and advance sheets of their respective supreme courts — and thenceforth indicating their unbounded approval by a vast and permanent silence.

“Yet there are several dark shadows in this picture. For one, it suggests a legislative passion for reading and heeding the decisions of our supreme courts which we suspect may be scarcely borne out by the facts. For another, pushed too far such a doctrine suggests the interesting proposition that it is the legislatures which have now become the ultimate courts of last resort in our various States; that if they delay long enough to correct our errors those errors thus become both respectable and immutably frozen; and, finally, the larger and more dismal corollary that if enough people persist long enough in ignoring an injustice it thereby becomes just.”

If it has not been clear in our previous decisions, we wish to make it clear now: “legislative acquiescence” is a highly disfavored doctrine of statutory construction; sound principles of statutory construction require that Michigan courts determine the Legislature’s intent from its words, not from its silence.

Finally, we note that the dissent would use legislative acquiescence to bind the Legislature not only to our past holdings, but also to mere dicta. We think it presumptuous to bind the Legislature to that which we do not even bind ourselves. Hett v Duffy, 346 Mich 456, 461; 78 NW2d 284 (1956), overruled on other grounds in Weller v Mancha (On Rehearing), 353 Mich 189, 194; 91 NW2d 352 (1958).¹⁸ Heaven for-fend if the Legislature is obligated to respond to every excursus of the third branch or else be deemed bound thereby.

The language of the contribution statute plainly allows contribution among joint tortfeasors of all stripes. We are unconvinced by the dissent’s effort to look beyond the words of the statute and find a distinction between intentional and negligent tortfeasors that is otherwise unapparent.

B. THE DISSENT’S VIEWS ON THE CIVIL RIGHTS ACT

Again we agree with the generic proposition propounded by the dissent that Michigan courts frequently look to the federal law arising under title vn for guidance in construing our own Civil Rights Act. Koester v City of Novi, 458 Mich 1, 11-12; 580 NW2d 835 (1998).

However, we disagree that the Northwest Airlines decision provides aid to the union’s attempt to avoid contribution liability for discrimination in which the union participated. As stated by the Supreme Court in Northwest, title vn contained no provision touching upon contribution and there was no federal statute authorizing contribution. In the absence of any federal statute supporting a contribution action, the Supreme Court declined to impose one, believing this to be a legislative prerogative of the Congress. This is precisely the opposite of our situation; Michigan’s Legislature has exercised its prerogative by creating a general right of contribution among joint tortfeasors. This being the case, Northwest is entirely inapposite and provides no support for the dissent’s position.

C. THE DISSENT’S PUBLIC POLICY ARGUMENT

As stated previously, we find no basis for a “free floating” public policy argument that the union may escape liability for its alleged participation in gender discrimination. Without a single citation of authority, the dissent suggests a public policy based upon the following:

A union is designed to advance the interests of its members. ... By permitting an employer to seek contribution from [it], the majority creates a conflict of interest, placing a union and its members in an adversarial posture . . . [and] denying [employees] access to legal representation from their unions. [Post at 275-276.]

We find no inherent contradiction between the union’s duty to its members and its obligation to avoid participating in discriminatory practices prohibited by the Civil Rights Act.¹⁹ That is, there is no conflict between one statutory policy that says a union’s duty is to its members, and another statutory policy that prohibits a union from conspiring to injure a union member. In fact, these propositions are in total harmony. If there is a conflict of interest in this case between the plaintiff and her union, it arises because our Civil Rights Act precludes her union from participating in unlawful employment discrimination. To the extent that the union here may have participated in negotiating the terms of a collective bargaining agreement that resulted in gender discrimination, the dissent has failed to articulate any sound public policy that justifies insulating the union from liability for such misconduct. Indeed, we believe that holding the union accountable for such misconduct via a contribution action will actually support the fundamental goal of our Civil Rights Act to eradicate discriminatory employment practices.

Surely, all would agree that the goal of the Civil Rights Act is broadly to prevent discrimination in the workplace. But the dissent apparently believes that the union here should enjoy some special protected status unavailable to any other person or entity. The dissent simply fails to adequately explain the reason for and the source of a public policy that would provide a free pass to this union (or any other entity) alleged to have participated in such discrimination. In sum, given the choice between vindicating Michigan’s civil rights laws and protecting this union, the dissent has chosen the latter.

VI

CONCLUSION

In light of the plain language of the contribution statute, we find no evidence of a legislative intent to preclude an employer from seeking contribution from a union in this context. Accordingly, we affirm the decision of the Court of Appeals.

Weaver, C.J., and Brickley, Taylor, and Corrigan, JJ., concurred with Young, J.

1 The union consisted of approximately twenty-three members at the time this suit was originally filed.

2 When this suit was originally filed, plaintiffs were represented by the attorney for the union. At the trial court’s urging, the union attorney withdrew as counsel for plaintiffs after the third-party complaint was filed.

3 219 Mich App 441, 444-446; 556 NW2d 876 (1996).

4 457 Mich 870 (1998).

5 See Fidelity & Deposit Co of Maryland v Newman, 109 Mich App 620; 311 NW2d 821 (1981). See also 18 Am Jur 2d, Contribution, § 47, pp 53-54, and cases cited therein.

6 Moyses v Spartan Asphalt Paving Co, 383 Mich 314, 334; 174 NW2d 797 (1970), overruled in part on other grounds in Hapner v Rolf Brauchli, Inc, 404 Mich 160, 182, n 5; 273 NW2d 822 (1978); Fidelity & Deposit Co, n 5 supra.

7 The Michigan contribution statute is based on the Uniform Contribution Among Tortfeasors Act. Until 1974, the Michigan contribution act was apparently based on the 1939 version of the uniform act. See the history appended to 1948 CL 691.561. In 1974, the Michigan Legislature amended the statute, and adopted most of the provisions of the 1955 revision of the uniform act. The 1955 revision of the uniform act provides, in part:

(a) Except as otherwise provided in this Act, where two or more persons become jointly or severally liable in tort for the same ir\jury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.

(c) There is no right of contribution in favor of any tortfeasor who has intentionally [wilfully or wantonly] caused or contributed to the injury or wrongful death. [12 ULA 194 (emphasis added).]

A number of other states have adopted subdivision 1(c) in some form. See Ariz Rev Stat Ann 12-2501(0); Cal Civ Proc Code 875(d); Colo Rev Stat Ann 13-50.5-102(3); Fla Stat Ann 768.31(c); Nev Rev Stat 17.255; NC Gen Stat 1B-I(c); ND Cent Code 32-38-01(3); Ohio Rev Code Ann 2307.32(A); Okla Stat Ann, tit 12, § 832(C); SC Code Ann 15-38-20(C); Term Code Ann 29-ll-102(c). At least two states have adopted different language, which presumably has a similar effect. See Ky Rev Stat Ann 412.030 and Va Code 8.01-34, which both state: “Contribution among wrongdoers may be enforced when the wrong results from negligence and involves no moral turpitude.”

Thus, it is particularly noteworthy that the Michigan Legislature declined to adopt the subsection of the uniform act prohibiting an intentional tortfeasor from seeking contribution.

8 We note that there are persuasive policy arguments supporting both sides of the question whether intentional tortfeasors should be able to seek contribution. Cf. Northwest Airlines v Transport Workers Union of America, 451 US 77, 88; 101 S Ct 1571; 67 L Ed 2d 750 (1981) (“Recognition of the right [to contribution] reflects the view that when two or more persons share responsibility for a wrong, it is inequitable to require one to pay the entire cost of reparation, and it is sound policy to deter all wrongdoers by reducing the likelihood that any will entirely escape liability” [emphasis added]) with Bedard v Greene, 409 A2d 676, 677-678 (Me, 1979) (the court recognized twin rationales for denying an intentional wrongdoer the right to contribution: the “clean hands” notion that “the law will not lend its aid to him who founds his cause of action upon an immoral or illegal act” [citation omitted]; and a deterrence goal: “the deterrent effect of tort liability would be weakened by allowing intentional wrongdoers to spread their liability to others”).

9 The court relied on Johnson, supra, and Salim v LaGuire, 138 Mich App 334; 361 NW2d 9 (1984). As noted above, Johnson did not involve an intentional tort, and did not directly address this issue. Similarly, Salim involved a negligence action, and only reached this issue in dicta. Id. at 335, 341.

10 The statute specifically states that it does not apply in certain cases, such as those involving breaches of trust or other fiduciary obligations. MCL 600.2925a(8); MSA 27A.2925(1)(8); Fidelity & Deposit Co, supra at 623-626. Those exceptions do not apply here.

11 Indeed, to the extent it suggests that a right to contribution might be available under state law, id. at 97, n 38, the reasoning in Northwest Airlines actually favors defendant.

12 We erqpress no opinion regarding whether the union’s conduct was, in fact, discriminatory. The merits of such a claim are to be resolved in the contribution action. The only issue posed in this case is whether the union is amenable to a contribution action under our contribution statute because of its participation in negotiating terms of a collective bargaining agreement that plaintiff has alleged to be sexually discriminatory in her action against her employer.

13 We note that this Court has already dismissed the dissent’s argument. See CaldweU, supra at 420 (“[Plaintiff’s caprice in choosing to join or not to join third-party defendants is not determinant of third-party plaintiffs’ right to contribution”). Indeed, we believe that allowing a plaintiff to determine the allocation of liability unilaterally is antithetical to the purpose of a contribution statute. See Markey v Skog, 129 NJ Super 192, 201; 322 A2d 513 (1974) (The policy of a contribution statute “seeks to prevent plaintiffs, by their unilateral actions, from electing where to place the burden of a common fault”).

14 We note that this venerable rule acts as a guide to the courts in construing statutes, not as a limitation on the Legislature. In other words, the fact that a statute enacted in derogation of the common law must be construed narrowly is not to say that the Legislature is precluded from changing the common law. Quite the contrary; our Legislature is always free to change the common law. Indeed, it has express constitutional authority to do so. Const 1963, art 3, § 7; Myers v Genesee Co Auditor, 375 Mich 1, 7; 133 NW2d 190 (1965) (O’Hara, J.).

As we previously noted, in enacting the contribution statute, our Legislature chose to abandon all of the restrictions that the common law imposed on contribution actions among joint tortfeasors. As the dissent recognizes, the contribution statute at issue here was based upon the model contribution act that itself retained the prohibition recognized in our common law after Moyses — that intentional tortfeasors could not maintain a contribution action.

The fact that our Legislature did not include this restriction in adopting its version of the model contribution act is significant to any good-faith effort to give meaning to the Legislature’s intent. Gibson v Neelis, 227 Mich App 187, 194; 575 NW2d 313 (1997) (“[Djeviation from the language in a model act is presumed to be deliberate”). The deletion of the model act’s provision restricting contribution among intentional tortfeasors is clearly inconsistent with an intent to maintain any distinction between intentional and negligent tortfeasors.

15 1974 PA 318.

¹⁶

17 The dissent asserts that this Court “continued to recognize the distinction between intentional and nonintentional tortfeasors in Downie v Kent Products, Inc, 420 Mich 197, 217; 362 NW2d 605 (1984).” Post at 269, n 5. However, the dissent fails to point out that Downie did not actually address this distinction, and that the portion of Downie emphasized in the dissent’s block quotation is merely dicta. In Downie, just as in Moyses, there was no allegation that any of the defendants were intentional tortfeasors.

2 Commentators have noted that one can posit myriad reasons explaining the Legislature’s failure to correct an erroneous judicial decision, including:

(“Complete disinterest [sic]”; “Belief that other measures have a stronger claim on the limited time and energy of the body”; “Belief that the bill is sound in principle but politically inexpedient to be connected with”; “Unwillingness to have the bill’s sponsors get credit for its enactment”; “Belief that the bill is sound in principle but defective in material particulars”; “Tentative approval, but belief that action should be withheld until the problem can be attacked on a broader front”; “Indecision, with or without one or another of the foregoing attitudes also”; “Belief that the matter should be left to be handled by the normal processes of judicial development of decisional law, including the overruling of outstanding decisions to the extent that the sound growth of the law requires”; “Positive approval of existing law as expressed in outstanding decisions of the Supreme Court”; “Ditto of the courts of appeals’ decisions also”; “Ditto also of district court decisions”; “Ditto also of one or more varieties of outstanding administrative determinations”; “Etc., etc., etc., etc., etc.”) [Report to the Attorney General, Using and Misusing Legislative History: A ReEvaluation of the Status of Legislative History in Statutory Interpretation, U S Dep’t of Justice, Office of Legal Policy, January 5, 1989, p 113, n 485, citing Hart & Sacks, The Legal Process: Basic Problems in the Making and Application of Law, pp 1395-1396 (tent ed, 1958).]

18 The Court in Hett, supra at 461, put it quite well: “Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand are, however illuminating, but obiter dicta and lack the force of an adjudication.”

19 Indeed, a union has no authority to bargain away union members’ rights secured by a civil rights act. Alexander v Gardner-Denver Co, 415 US 36, 51-52; 94 S Ct 1011; 39 L Ed 2d 147 (1974).