Green v. Wilson

565 N.W.2d 813, 455 Mich. 342

• Court: Michigan Supreme Court
• Decided: July 22, 1997
• Docket: Docket Nos. 104028, 104034 and 104039, Calendar No. 9
• Status: Published

Opinions

Kelly, J.

This case presents two issues: 1) whether Michigan courts may exercise limited personal jurisdiction over a nonresident who becomes intoxicated in Michigan, chooses to drive intoxicated in Michigan, and causes an accident in another jurisdiction, and 2) whether compliance with the name-and-retain provision of the dramshop act will be excused when the allegedly intoxicated person is dismissed from litigation for lack of personal jurisdiction. MCL 436.22(6); MSA 18.993(6). We conclude that defendant Fraser Wilson’s acts in Michigan that preceded his allegedly tortious acts in Canada were insufficient to subject him to subsection (2) of MCL 600.705; MSA 27A.705. Therefore, we would reverse the Court of Appeals determination that Michigan courts may exercise limited personal jurisdiction over him.

As Wilson cannot be retained in the suit, it is necessary to determine whether the dramshop action against defendants Jason Enterprises and Vivio’s was properly dismissed. We conclude that the failure to retain Wilson was due to a jurisdictional defect that plaintiffs could not avoid. We also conclude that fear of collusion between plaintiffs and defendant Wilson is significantly reduced in this case. Under the circumstances, strict compliance with the name-and-retain provision would frustrate the purpose of the dramshop act. Consequently, we would affirm the Court of Appeals decision that allows a continuation of the dramshop action against defendants Jason Enterprises and Vivio’s.

i

Plaintiffs Diane Green and Leslie Lynn Martin, both residents of Michigan, and defendant Wilson, a resident of Ontario, were involved in an automobile accident in the Detroit-Windsor tunnel. The accident occurred in Canada, approximately one thousand yards south of the Michigan-Ontaiio border. Plaintiffs allege that Wilson was exceeding the speed limit when his car crossed the center line and collided head-on with their car. Plaintiffs further allege that Wilson was intoxicated.

Plaintiffs sued Wilson for negligence in Wayne Circuit Court and instituted dramshop actions against defendants Vivio’s, Inc., and Jason Enterprises, Inc. Both Vivio’s and Jason Enterprises operate bars in the City of Detroit. In their complaint, plaintiffs allege that both establishments served alcohol to Wilson while he was visibly intoxicated. Plaintiffs also assert that the accident occurred when Wilson was returning home from the defendant bars.

Wilson moved for summary disposition under MCR 2.116(C)(1), arguing that the court lacked personal jurisdiction over him. The trial court granted the motion, holding that Wilson was not within the reach of Michigan’s long-arm statute, MCL 600.705; MSA 27A.705. The trial court also dismissed the dramshop actions against Jason Enterprises and Vivio’s, because the plaintiffs failed to retain the allegedly intoxicated person as a defendant.¹ The Court of Appeals held that Michigan courts do have jurisdiction over Wilson for the purposes of this litigation. The Court further held that compliance with the name-and-retain clause of the dramshop act would be excused when the allegedly intoxicated person is dismissed for lack of personal jurisdiction. 211 Mich App 140; 535 NW2d 233 (1995). We granted leave to appeal. 453 Mich 901 (1996).

n

A personal jurisdiction analysis is a two-fold inquiry: (1) do the defendant’s acts fall within the applicable long-arm statute, and (2) does the exercise of jurisdiction over the defendant comport with due process? Starbrite Distributing, Inc v Excelda Mfg Co, 454 Mich 302; 562 NW2d 640 (1997). It is useful to review the history and interplay between state long-arm statutes and the Due Process Clause² before applying them in this case.

The United States Supreme Court expanded the constitutional scope of personal jurisdiction with its decision in International Shoe Co v Washington, 326 US 310; 66 S Ct 154; 90 L Ed 95 (1945). Post at 368-369. In International Shoe, the Court inteipreted the Due Process Clause as not conferring jurisdiction. Rather, it construed the clause as establishing the outer limits of permissible jurisdictional power. The actual grant of personal jurisdiction comes from legislative long-arm statutes that invest courts with the power to exercise personal jurisdiction.³

Long-arm statutes establish the nature, character, and types of contacts that must exist for purposes of exercising personal jurisdiction. Due process, on the other hand, restricts permissible long-arm jurisdiction by defining the quality of contacts necessary to justify personal jurisdiction under the constitution. See Hadad v Lewis, 382 F Supp 1365, 1371 (ED Mich, 1974). Thus, situations may arise where a long-arm statute permits greater jurisdiction than does the constitution.⁴ See Starbrite at 315 (Weaver, J., concurring in part and dissenting in part). Likewise, there may be instances where a state court will lack the power to exercise personal jurisdiction over a defendant, even though jurisdiction may be constitutionally permissible. See Mallory v Conida Warehouses, Inc, 113 Mich App 280, 286-288; 317 NW2d 597 (1982).

There are primarily two types of long-arm statutes: the “self-adjusting,” such as the California long-arm statute, and the “laundry-list,” such as Michigan’s MCL 600.705; MSA 27A.705. The Cahfomia statute has been called self-adjusting because it stretches automatically to extend jurisdiction wherever the Due Process Clause permits. Like a complete solar eclipse, the due process and statutory analyses overlap entirely. Therefore, only a one-step analysis is necessary. Glannon, Civil Procedure, Examples and Explanations (2d ed), pp 24-27.

Laundry-list statutes enumerate specific acts that give rise to personal jurisdiction. They do not permit a one-step analysis, even in circumstances where they are thought to be “coextensive” with due process. Their analysis is akin to a partial solar eclipse, with part of the statute granting jurisdiction within the permissible constitutional scope and part of the statute possibly outside it. Id.

The Sifers’ Court is the first in Michigan that was credited with stating the concept that limited personal jurisdiction is coextensive with due process. Since Sifers, many Michigan state and federal courts have interpreted Michigan long-arm statutes as coextensive with due process.⁵ In Sifers, the Court stated:

We are called upon in this case to construe a Michigan statute which represents an attempt on the part of the Michigan legislature to expand to its full potential limited personal jurisdiction of Michigan courts over nonresidents.

Unless we are prepared to say that Michigan is forbidden by the Federal Constitution to exercise jurisdiction to the extent indicated in the statute we should not construe the statute so restrictively. [Sifers v Horen, 385 Mich 195, 198; 188 NW2d 623 (1971) (emphasis added).]

We interpret Sifers to mean that, if a defendant’s actions or status fit within a provision of a long-arm statute, jurisdiction may be extended as far as due process permits.⁶ The long-arm statute is coextensive with due process insofar as the statute is limited by due process, and, therefore, the statute and due process share the same outer boundary. The reasoning implicit in Mallory supports this interpretation. Mallory, supra at 286-288.

In Mallory, the Court of Appeals determined that none of the statutory grounds for personal jurisdiction permitted the exercise of personal jurisdiction over a sister state. Id. at 286-287. It reasoned that the Legislature did not intend to permit such a suit in Michigan, regardless of what due process would allow. Consequently, there was no need to conduct a due process analysis. Id. at 288.

The coextensive nature of Michigan’s long-arm jurisdiction becomes pertinent only if the particular acts or status of a defendant first fit within a long-arm statute provision. As the Mallory Court implicitly concluded, this does not mean that the two are equal and require a single inquiry based solely upon due process restrictions.

The provisions enumerated in § 705 would be superfluous if the Legislature intended that any activity that is constitutional also satisfy a long-arm statute. Furthermore, the Michigan Legislature could have written language into the statutes that confers jurisdiction to the broadest limits of due process, as other states have done. It chose not to do so.⁷

in

The State of Michigan may exercise limited personal jurisdiction over Wilson if two conditions are met: First, Wilson’s conduct must fall within a provision of Michigan’s long-arm statutes. Second, the exercise of jurisdiction must comport with due process. Starbrite, supra.

The state’s long-arm statute pertaining to acquiring limited personal jurisdiction over individuals on the basis of specific acts is codified at MCL 600.705; MSA 27A.705. It states:

The existence of any of the following relationships between an individual or his agent and the state shall constitute a sufficient basis of jurisdiction to enable a court of record of this state to exercise limited personal jurisdiction over the individual . . . arising out of an act which creates any of the following relationships:

* * *

(2) The doing or causing an act to be done, or consequences to occur, in the state resulting in an action for tort.

Plaintiffs allege that Wilson’s activities in Michigan fall within subsection 2 of § 705.

Section 705 does not delineate specific types of acts that suffice for purposes of subsection 2. The only guidance it provides is that the “act” or “consequences of the act” must “result in an action for tort.” A plain language reading of these words reveals that either the tortious conduct or the injury must occur in Michigan.

In this case, for purposes of subsection 2, the act is the allegedly negligent careening of defendant’s speeding vehicle into plaintiffs’ vehicle while defendant drove intoxicated. Plaintiffs alleged that Wilson “travel[ed] at an excessive rate of speed throughout the [Windsor] tunnel and did cross the center line in [an] attempt to pass a motor vehicle, striking head-on in the northbound lane a vehicle being operated by the plaintiff . . . .” That act occurred in Canada. The consequences of the act also occurred in Canada, where the plaintiffs sustained injuries. Any liability of the defendant liquor establishments under the dram-shop act had to be triggered by the accident in Canada.

We are unpersuaded by the dissent’s contention that the “act” is Wilson’s drinking and driving while in Michigan. Post at 374-375. At the time Wilson left Michigan, he had committed no tort. The acts in Michigan that preceded Wilson’s allegedly tortious acts in Canada were insufficient to subject him to subsection 2 of MCL 600.705; MSA 27A.705.

While the Court can envision a situation where an act in Michigan results in a tort elsewhere, this case does not involve one. Most states find the exercise of personal jurisdiction over nonresidents for out-of-state driving accidents under analogous circumstances impermissible. Casad, Jurisdiction in Civil Actions, ¶ 7.02[2][e][i], p 7-34. Consequently, we do not believe that subsection 2 jurisdiction is appropriate in this case. Since Wilson’s acts do not fit under the § 705 long-arm statute, we do not reach due process for the reasons noted in part n of this opinion.

rv

We next analyze whether the dramshop action against defendants Jason Enterprises and Vivio’s may continue without Wilson.

The dramshop act provides an exclusive statutory remedy against liquor licensees for selling alcohol to minors or visibly intoxicated persons. MCL 436.22; MSA 18.993. As a condition of maintaining a dram-shop action, a plaintiff must “name-and-retain” the alleged intoxicated person until the litigation is concluded by trial or settlement. MCL 436.22(6); MSA 18.993(6). One recognized purpose of the name-and-retain provision is to preclude collusion between the plaintiff and the allegedly intoxicated person. Putney v Haskins, 414 Mich 181, 187; 324 NW2d 729 (1982). This is accomplished by ensuring that the intoxicated person has a financial stake in the outcome of the case. Id.

Generally, the Court has determined that a failure to retain the named intoxicated defendant as required by subsection 6 results in a termination of the dram-shop action. Putney at 188; Spalo v A & G Enterprises (After Remand), 437 Mich 406, 409-411; 471 NW2d 546 (1991). However, members of the Court have also reasoned that certain circumstances mandate a looser application of the name-and-retain provision. See Salas v Clements, 399 Mich 103; 247 NW2d 889 (1976); Shay v JohnKal, Inc, 437 Mich 394, 401-402; 471 NW2d 551 (1991).

The Court in Salas reasoned that a departure from the literal construction of a statute was justified because the named defendant was unknown. Id. at 109-110. The Court reasoned that requiring the plaintiff to retain an unknown defendant may actually encourage collusion between the intoxicated defendant and the dramshop. Id. at 110. A dismissal due to plaintiffs’ failure to retain an unknown defendant produced an absurd and unjust result and was inconsistent with the purposes and policies of the dramshop act. Id.

In Shay, a plurality of the Court reasoned that strict adherence to the name-and-retain provision was unjustified. Chief Justice Cavanagh and Justice Levin concluded that the risk of fraud and collusion was so attenuated that a violation of the name-and-retain provision did not occur. Id. at 402. Justices Brickley and Boyle concluded that there was no conflict between the mediation rules and the dramshop act. However, they concluded that, if a plaintiff rejected mediation in order to comply with the name-and-retain provision, no sanctions should follow. Thus, four justices allowed the suit to continue without the named defendant. Id. at 405.

In this case, the plaintiffs brought Wilson into the dramshop action as required by subsection 22(6). As discussed in part n of this opinion, their failure to retain him was due to a jurisdictional defect that plaintiffs could not avoid.

Since the identity of Wilson is known, the complete absence of collusion that existed in Salas is not present here. However, it is highly unlikely that there was the collusion between plaintiffs and Wilson envisioned by the Court in Putney given the reasons for plaintiffs’ failure to retain Wilson. In fact, strict compliance could lead dramshops to encourage intoxicated nonresident defendants to contest jurisdiction to avoid a dramshop action. See Salas at 110. Therefore, under the circumstances of this case, we conclude that the possibility of collusion is remote and that subsection 7 of the dramshop act further reduces it. MCL 436.22(7); MSA 18.993(7).

Under subsection 7, a dramshop has a “right to full indemnification from the allegedly visibly intoxicated person for all damages awarded against the licensee.” MCL 436.22(7); MSA 18.993(7).⁸ Consequently, one would expect Wilson not to engage in energetic assistance of the plaintiffs’ case as was discussed in Salas at 110. Subsection 7 seems to allow the dramshops to enforce the indemnification provision in a separate cause of action against Wilson if necessary. Presumably, the dramshops could enforce such a provision in Canada. Thus, even though Wilson is not a party to this lawsuit, his financial stake in it will remain strong.

We agree with the Court of Appeals reasoning that strict enforcement of the name-and-retain provision would be unfair in this case. 211 Mich App 141. The plaintiffs may be able to exercise their negligence cause of action in Canada against Wilson, but are apparently without a cause against the dramshops there.⁹ Furthermore, since a dramshop action is the exclusive remedy against a licensee who serves a visibly intoxicated person in Michigan, the dramshops will be subject to no penalty. MCL 436.22; MSA 18.993. To deny plaintiffs the opportunity to bring a cause of action against the dramshops would frustrate the essential purpose of the dramshop act. See Salas at 109-110.

Lastly, we are unpersuaded by the defendants’ fear of undue burden with respect to defending the dram-shop action. With the existence of the indemnification provision, it seems that defendants will have little difficulty deposing Wilson. Also, if necessary, the parties should be able to obtain letters rogatory in order to depose Wilson under the Canadian legal system. See, e.g., In re Fecht v Deloitte & Touche, 28 OR3d 188 (1996).

As Wilson cannot be retained because of a jurisdictional defect beyond plaintiffs’ control, we find that strict compliance with the name-and-retain provision would frustrate the purpose of the dramshop act. MCL 436.22(6); MSA 18.993(6). As a result, we would affirm the Court of Appeals decision that allows a continuation of the dramshop action against defendants Jason Enterprises and Vivio’s.

Cavanagh and Boyle, JJ., concurred with Kelly, J.

1 Michigan’s dramshop act states, in part:

An action under this section against a retail licensee shall not be commenced unless the minor or the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement. [MCL 436.22(6); MSA 18.993(6).]

2 US Const, Am XIV.

3 See, generally, Juenger, Judicial jurisdiction in the United States and in the European communities: A comparison, 82 Mich L R 1195 (1984).

4 [Although the statute may, by its terms, give jurisdiction to the court, it must also pass constitutional muster as applied to the particular case. [United States v Ivey, 747 F Supp 1235, 1239 (ED Mich, 1990).]

5 See, e.g., Ins Comm’r v Arcilio, 221 Mich App 54, 73; 561 NW2d 412 (1997) (“[0]ur long-arm statute has been interpreted to grant the broadest basis for jurisdiction consistent with due process”); Rainsberger v McFadden, 174 Mich App 660, 662-663; 436 NW2d 412 (1989) (“This statute has been construed as giving the courts the broadest grant of jurisdiction consistent with due process”); Kriko v Allstate Ins Co of Canada, 137 Mich App 528, 531; 357 NW2d 882 (1984) (“[The long-arm statute] was intended to give Michigan courts the full extent of power possible to gain personal jurisdiction over nonresident defendants as is consistent with the principles of due process”); Michigan Coalition of Radioactive Material Users v Griepentrog, 954 F2d 1174, 1176 (CA 6, 1992); Chandler v Barclays Bank PLC, 898 F2d 1148, 1150 (CA 6, 1990); FFOC Co v Invent AG, 882 F Supp 642, 651 (ED Mich, 1994); Chrysler Corp v Fedders Corp, 643 F2d 1229, 1236 (CA 6, 1981); Widger Chemical Corp v Chemfil Corp, 601 F Supp 845, 847 (ED Mich, 1985); Subacz v Town Tower Motel Corp, 567 F Supp 1308, 1311 (ND Ind, 1983).

6 One author notes that reference to statutes as coextensive with due process is often misleading. He believes that such phraseology would be

better interpreted to mean that the specific categories of jurisdiction conveyed by the long-aim statute are to be interpreted, as liberally as the due process clause will allow. [Glannon at 27 (emphasis added).]

7 The Illinois Legislature added a catch-all provision to its enumerated statute in 1989. See Anderson, The long reach of Illinois’ long-arm statute: The catch-all provision, 84 Ill B J 504 (1996).

8 Subsection 7 was added by the 1986 amendments of the dramshop act.

9 We do not express an opinion as to what causes are possible against these particular defendants in Canada. In an analogous reverse situation, however, the Court of Appeals found that Michigan courts were unable to exercise jurisdiction over Canadian dramshops. See Mozdy v Lopez, 197 Mich App 356; 494 NW2d 866 (1992).