LaGuire v. Kain

487 N.W.2d 389, 440 Mich. 367

• Court: Michigan Supreme Court
• Decided: July 29, 1992
• Docket: Docket Nos. 89871, 90657, (Calendar Nos. 6-7)
• Status: Published

Opinions

Brickley, J.

The question presented in these companion cases is whether Michigan’s Liquor Control Act, as amended in 1986,¹ entitles a minor’s estate or a minor’s family to recover from a liquor licensee for injuries allegedly resulting from the licensee’s illegal provision of alcohol to a minor. We hold that the 1986 amendments of the dramshop act bar both a minor’s estate and the family of that minor from recovery under the act. Therefore, we reverse the decisions of the Court of Appeals in Waranica v Cheers Good Time Saloons, Inc, 186 Mich App 398; 464 NW2d 902 (1990), and LaGuire v Kain, 185 Mich App 239; 460 NW2d 598 (1990).

I

Each of these cases arises out of an automobile collision that occurred after the defendant liquor licensee allegedly illegally served alcohol to the driver of a vehicle, a minor, who became intoxicated, caused a collision resulting in the minor’s death, and injured others.

A

In LaGuire v Kain, the plaintiff’s decedent, Michael John Mihailuk, then seventeen, purportedly used an altered driver’s license to purchase alcoholic beverages from the defendant liquor licensee, William James Kain, doing business as Copa Nite Club. After leaving the bar, the decedent drove his car across the center line and collided head-on with another vehicle, injuring the driver, Lisa Lord, and killing himself. Lisa Lord sued Betty Jane LaGuire, personal representative of the estate of the decedent, Michael John Mihailuk, and his parents, Michael Grant Mihailuk and Janet Sue Mihailuk. The defendants in the original suit, the minor’s estate and parents, filed cross-claims against the liquor licensee. After Lisa Lord, the original plaintiff, settled with the minor’s estate and family and gave up her claim against the licensee, the trial court realigned the parties and ordered a revised caption, which represented the original defendants, the minor’s estate and his family, as plaintiffs, and the licensee as the defendant.²

The defendant licensee moved for summary disposition on the basis that the statute failed to create a cause of action in favor of plaintiffs. Relying on Cornack v Sweeney, 127 Mich App 375; 339 NW2d 26 (1983), the defendant argued that no cause of action existed in favor of the minor or his estate before the 1986 amendments and that the 1986 amendments of the statute created no cause of action in their favor. In response, the plaintiffs focused on subsection 10 of the dramshop act, MCL 436.22(10); MSA 18.993(10). In analyzing that provision, the plaintiffs relied on Stowers v Wolodzko, 386 Mich 119; 191 NW2d 355 (1971), for the rule of statutory construction providing that the expression of one thing in a statute excludes the inclusion of other similar things. Plaintiffs claimed that because neither the minor nor the minor’s family were specifically mentioned in subsection 10, which barred actions by visibly intoxicated persons, the statute was not intended to bar their claims. The trial court agreed with the plaintiffs.

The defendant filed a motion for reconsideration, noting that Rosas v Damore, 171 Mich App 563; 430 NW2d 783 (1988), had been released after argument of the defendant’s motion for summary disposition. The defendant contended that Rosas had interpreted the amended statute to preclude a noninnocent party, including a minor, from recovering damages under the statute. In response, the plaintiffs sought to undermine the authority of Rosas by suggesting that it erroneously relied on Longstreth v Gensel, 423 Mich 675; 377 NW2d 804 (1985), a case involving common-law liability of social hosts and not applicable to dramshop liability under the statute. Concluding that it was bound by Rosas, the trial court granted the motion for reconsideration and granted summary disposition for the defendant with respect to the claims of the minor’s estate and the claims of the minor’s parents.

The Court of Appeals reversed, holding that both the minor’s estate and the minor’s family were entitled to sue under the amended statute.³ Noting that before the 1986 amendments the actions would have been barred, the Court of Appeals examined the language and structure of the amended statute in light of several rules of construction, concluding that both a minor and the minor’s family could sue. The Court then certified that its opinion conflicted with Rosas v Damore, supra, and Saavedra v Ghannan, 183 Mich App 234; 454 NW2d 134 (1989).

We granted leave to appeal. 437 Mich 1046 (1991).

B

In Waranica v Cheers Good Time Saloons, Inc, the parents of decedent Deborah Waranica, Thomas and Barbara Waranica, and two siblings, Colleen and John Waranica, sued a liquor licensee, Cheers Good Time Saloons, claiming that the licensee unlawfully sold, gave or furnished alcohol to Deborah Waranica, a minor, before her death in a car accident on April 10, 1987. The plaintiffs claimed that, as a result of her intoxication, Deborah Waranica drove her car on the wrong side of a state highway and collided head-on with another car.

The defendant unsuccessfully sought summary disposition, contending that MCL 436.22 et seq.; MSA 18.993 et seq. did not provide a cause of action for the family of a minor who had been illegally served alcohol. The Court of Appeals granted the defendant leave to appeal the trial court’s order denying summary disposition.

The Court of Appeals affirmed the trial court’s ruling, deciding that the minor’s family had a cause of action under the amended statute. The Court of Appeals took as its starting point the traditional interpretation of the dramshop act that precluded the intoxicated person’s action, the non-innocent party doctrine. It then examined the 1986 amendments to see whether the language changed prior law to give the imbiber a cause of action. Disagreeing with the LaGuire Court’s rationale, the Waranica Court concluded that the Legislature did not intend to allow minors who are noninnocent parties to sue. Reviewing the effect of changes in subsections 4, 6, 8, and 10, the Court concluded that, although the minor’s suit was precluded by the noninnocent party doctrine, the family’s suit was permissible.

This Court granted the defendant leave to appeal and ordered that the case be argued and submitted to the Court together with LaGuire v Kain. 437 Mich 1046 (1991).

II

The dramshop act⁴ occupies the field of liability arising out of the selling, giving or furnishing of alcoholic liquor to minors or visibly intoxicated persons. Jackson v PKM Corp, 430 Mich 262, 279; 422 NW2d 657 (1988). In enacting the dramshop act, the Legislature created a new remedy, not available at common law, and "provided a specific action with which to achieve that remedy.” Browder v Int’l Fidelity Ins Co, 413 Mich 603, 613; 321 NW2d 668 (1982). This Court previously acknowledged that the Legislature has attempted to keep the act internally balanced, id. at 614, resulting in a "complete and self-contained solution to a social problem not adequately addressed at common law.” Id. at 615. Therefore, in interpreting the various provisions of the dramshop act, this Court must reconcile seeming inconsistencies, if possible, in order to give a common effect to the entire act that is consistent with the Legislature’s intent. In re State Hwy Comm, 383 Mich 709, 714; 178 NW2d 923 (1970).

Statutory interpretation analysis must begin with an examination of the words chosen by the Legislature. Subsection 4 of the dramshop act, as amended in 1986, sets forth the persons entitled to bring a cause of action:

Except as otherwise provided in this section, an individual who suffers damage or is personally injured by a minor or visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of alcoholic liquor to the minor or visibly intoxicated person, if the unlawful sale is proven to be a proximate cause of the damage, injury, or death, or the spouse, child, parent, or guardian of that individual, shall have a right of action in his or her name against the person who by selling, giving, or furnishing the alcoholic liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the damage, injury, or death. [MCL 436.22(4); MSA 18.993(4). Emphasis added.]

Before its amendment in 1986, the dramshop act provided:

A wife, husband, child, parent, guardian, or other person injured in person, property, means of support, or otherwise, by a visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of intoxicating liquor to the person, if the sale is proven to be a proximate cause of the injury or death, shall have a right of action in his or her name against the person who by the selling, giving, or furnishing the liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the injury. [Subsection 22(5) of the Michigan Liquor Control Act, 1980 PA 351.]

The first question we address is whether the amended wording of subsection 4 provides an imbibing minor’s estate with a cause of action. We conclude that it does not.

Before the 1986 amendments to the dramshop act, former subsection 5 set forth the parties who were entitled to recover for injuries proximately caused by the selling, giving or furnishing of intoxicating liquor to a visibly intoxicated person. Under the former wording, the enumeration of the parties who could recover included "[a] wife, husband, child, parent, guardian, or other person injured in person, property, means of support, or otherwise, by a visibly intoxicated person . . . .” 1980 PA 351, § 22(5) (emphasis added).

Construing substantially similar language in Brooks v Cook, 44 Mich 617, 618-619; 7 NW 216 (1880), this Court considered whether the intoxicated person could recover under the act. We noted that the intoxicated person "may generally be supposed to be injured in some degree by intoxication, so that his case would furnish the most frequent occasion for a suit if he should see fit to resort to legal proceedings.” Id. We concluded, however, that although the intoxicated person could be included within the scope of the words "other person,” had the Legislature intended to benefit the intoxicated person it would have expressed its intention distinctly and unequivocally. Id. Therefore, this Court held that an intoxicated person did not have a cause of action under the act as previously worded. The judicially created "noninnocent party doctrine,” first adopted in the Brooks case, has been applied consistently to bar recovery by an intoxicated person under the dram-shop act since 1880.

The plaintiffs concede that before the 1986 amendments of the act an intoxicated person had no cause of action. However, the plaintiffs argue that the new language of subsection 4, creating a class of plaintiffs referred to as "individuals” and certain relatives of those "individuals,” broadened the class of persons who could recover to include a minor or his estate. The defendants assert that the new language of subsection 4 precludes a suit by an imbibing minor or that minor’s estate because an imbibing minor is not an individual who suffers damage or is personally injured by a minor or a visibly intoxicated person. We agree with the defendants that neither an imbibing minor nor that minor’s estate has a cause of action under the dramshop act, as amended in 1986. While the former wording of the act left some question whether an intoxicated person could recover, because of the Legislature’s inclusion of the words "other person” in its enumeration of the persons who may sue under the act, subsection 4 now leaves no doubt that an imbibing minor may not recover.

Subsection 4, as amended, divides the persons at issue under the act into three distinct categories: 1) "individuals] who suffer[] damage or [are] personally injured,” as well as the spouses, children, parents, or guardians of those individuals, all of whom are given a cause of action; 2) minors and visibly intoxicated persons who damage or personally injure "individuals”; and 3) persons who, by selling, giving, or furnishing alcoholic liquor, have caused or contributed to the intoxication of the person or have caused or contributed to the damages, injury, or death, against whom the "individuals” and spouses, parents, etc., in the first category have a cause of action under the act. Thus, in order to recover under the dramshop act, as amended, a person must qualify as an "individual” or the "spouse, child, parent, or guardian of that individual.” Clearly, an imbibing minor falls into the category of those persons who injure, rather than those who are injured by a minor or visibly intoxicated person, referred to in subsection 4 as "individuals.” Therefore, because an intoxicated minor is not an "individual” who "suffers damage or is personally injured by a minor or visibly intoxicated person . . .,” MCL 436.22(4); MSA 18.993(4), neither the minor nor his estate has a cause of action under the act.

Having concluded that the revised language of subsection 4, in its ordinary meaning, does not contemplate recovery by the imbibing party, whether he is a minor or a visibly intoxicated person, we must next determine whether the family of an imbibing minor has a cause of action under the amended act. Because an intoxicated minor does not qualify as an "individual” under subsection 4, neither do members of his family qualify as parents, guardians, etc., of an "individual” as used in that subsection. Therefore, in order to have a cause of action, the relatives of an imbibing minor must qualify as "individuals” themselves. We conclude that recovery by the plaintiffs in the instant cases was not contemplated by the Legislature.

Originally, the emphasis of the dramshop act was placed on recovery by the wives and children of habitual drunkards. The title to 1875 PA 231 read as follows:

An act to prevent the sale or delivery of intoxicating liquors, wine, and beer, to minors, and to drunken persons, and to habitual drunkards; to provide a remedy against persons selling liquor to husbands or children in certain cases.

Although an intoxicated person was barred from recovery under the former language of the dram-shop act by the noninnocent party doctrine, Brooks, supra, early cases allowed the family of an intoxicated person to recover. Most commonly, the wife of an habitual drunkard would sue a liquor seller for loss of her means of support due to the sale of intoxicating beverages to her husband.⁵ The original version of the act gave a cause of action to "[e]very wife, child, parent . . . who shall be injured in person or property, means of support, by any intoxicated person, or by means of the intoxication of any person . . . .” 1875 PA 231, § 3.

Although the right of family members of an intoxicated person to recover was clear under the former wording of the act, this Court considered whether strangers to the intoxicated person had a cause of action in Flower v Witkovsky, 69 Mich 371; 37 NW 364 (1888). In that case, the plaintiff claimed that the defendant had Unlawfully sold whiskey to two minors and that the minors damaged the plaintiff’s property by reason of their intoxication. The defendant argued that the only persons entitled to recover under the act were those persons who stood in some relation to the intoxicated person. This Court rejected such a narrow interpretation of the act, reasoning that the Legislature’s use of the words "or other person” in its enumeration of possible plaintiffs was intended to cover all persons injured in person or property by intoxicated persons, and specifically was meant to cover just such a case as the one at bar. Id. at 373-374.

Thus, under the former wording of the act, the class of possible plaintiffs included both persons related to the intoxicated person and strangers. Further, before the 1986 amendments a plaintiff could recover both for direct personal injury or property damage, as well as for more indirect injury that is dependent on the injury of another person, such as the loss of "means of support, or otherwise.” 1980 PA 351, § 22(5). The "or otherwise” language would encompass such injuries as loss of services, parental training, guidance or companionship, etc. The former version of the act did not distinguish between the different classes of plaintiffs with regard to the kind of injury for which each could recover.

In contrast, the new wording of subsection 4 separates the persons who have a cause of action into two distinct classes. First, an "individual” who suffers damage or is personally injured by a minor or visibly intoxicated person is given a cause of action. MCL 436.22(4); MSA 18.993(4). Further, the spouse, child, parent, or guardian of that "individual” may also recover. Id. Thus, as under the wording of the former act, both persons who are directly injured by an intoxicated person, and persons whose injuries are more indirect and dependent upon another person’s injury, such as the loss of means of support, may recover. However, under the amended wording, the pool of potential plaintiffs who have a cause of action for indirect injury has been significantly narrowed to include only the spouse, child, parent, and guardian of an injured "individual.”

The amended wording of subsection 4 indicates the Legislature’s shift in emphasis from protecting the family of an habitual drunkard to protecting third persons. This new emphasis on recovery by third persons, as opposed to recovery by the family of an intoxicated person, does not support the conclusion that the Legislature intended the term "individual” to apply to the members of an intoxicated minor’s family. While the Legislature retained a cause of action for certain relatives, the Legislature carefully specified that only the relatives of an "individual,” as used in subsection 4, could recover. To allow a minor’s family members to recover under the dramshop act as "individuals” would be contrary to the Legislature’s expressed intent and would also significantly increase the number of potential plaintiffs, a result that is inconsistent with the Legislature’s creation of a narrowly tailored right and remedy unknown at common law. Browder, supra.

For example, in order for Michael and Janet Mihailuk to recover, these parents of an intoxicated minor must be "individuals” pursuant to subsection 4. Therefore, according to that interpretation of the revised wording, the Mihailuks’ parents, the grandparents of the intoxicated minor, also have a cause of action under subsection 4. Likewise, the siblings of an intoxicated minor, Colleen and John Waranica, would also have a cause of action as "individuals” under subsection 4, despite the fact that if Colleen and John Waranica were siblings of an injured "individual” they would not be able to recover because subsection 4 does not extend a cause of action to the "siblings” of an "individual.” Even more absurd, by allowing the relatives of an imbibing minor to recover as "individuals,” then their spouses, children, parents, and guardians may also recover under the act.

Clearly, the Legislature could not have intended the family of an intoxicated minor to enjoy a greater potential for recovery than the narrowly delineated classes of relatives of an "individual,” when the minor himself does not even have a cause of action. The dissent argues that nothing in the amended wording of subsection 4 supports the assertion that a family member of a visibly intoxicated person or minor cannot recover as an "individual.” Boyle, J. at 390. However, if the members of an intoxicated minor’s family may recover as "individuals” under subsection 4, then any person who suffers indirect injury, whether or not he is the spouse, child, parent, or guardian of the person directly injured, would also have a cause of action as an "individual” under subsection 4.⁶ Clearly, the dissent’s construction makes superfluous and meaningless the explicit enumeration in subsection 4 of the parties other than an "individual” who may recover.

Neither do we believe that the "legislative history” cited by the dissent counsels against our holding that the family of an imbibing minor cannot recover under subsection 4. See Boyle, J. at 391-394. While the dissent characterizes the question whether to allow the minor’s family to recover as a "critical issue” before the conference committee, there is no indication that such was the case. Although the dissent describes the "legislative history” as showing that various groups and individuals focused their lobbying efforts on the issue what persons would be entitled to sue under the amended act, the sources cited by the dissent support the conclusion that the real critical debate concerned whether the family of any intoxicated person, whether an adult or a minor, would be given a cause of action. See id. at 393, n 14. It appears that the Legislature resolved this debate by eliminating, through the new wording of subsection 4, any cause of action for the families of an intoxicated person.

Finally, the dissent’s claim that subsection 4 should be read to give an intoxicated minor’s family a cause of action, because of the Legislature’s continued "special treatment” of minors and their families in other statutory provisions, id. at 394, is clearly undercut by the dissent’s agreement with our holding that the intoxicated minor, like his adult counterpart the visibly intoxicated person, is barred from recovery under the dramshop act, as amended.

Thus, we believe that the Legislature was quite careful to limit which family members may recover and to whom they must be related in order to have a cause of action. Because we hold that an imbibing minor cannot recover under the act, as amended, we also hold that the family members of that minor, who are not "individuals” pursuant to subsection 4, also have no cause of action.

III

Our holding that neither a minor’s estate nor the family of an intoxicated minor may recover under subsection 4 of the dramshop act is supportéd by the literal wording of other subsections of the act using the term "minor.” Subsection 6 provides: Because we cannot envision that a minor’s estate and the relatives of a minor would have a cause of action against the minor for injuring himself, it appears that neither of these parties could satisfy the "name and retain” requirements of subsection 6. See Scholten v Rhoades, 67 Mich App 736, 743-744; 242 NW2d 509 (1976).

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).]

The Court of Appeals has created an exception to the name and retain requirement on facts similar to those presented in the instant cases. Scholten, supra. In Scholten, the Court reasoned that because a parent could recover under the dram-shop act for injury to a child occasioned by the child’s own misdoing, by reason of the sale of intoxicants to that child, a literal application of the name and retain provision would be "awkward, strained and absurd.” Id. at 744. Whatever persuasiveness the Court of Appeals opinion may have had, the Scholten decision predated the 1986 amendments of the dramshop act. As we held above, although the former wording of the act clearly allowed for recovery by the family of an intoxicated person, the new wording of subsection 4 has eliminated such recovery. Therefore, although a literal application of the name and retain requirement would have been strained and absurd in Scholten, under the amended version of the statute a literal reading of subsection 6 is entirely consistent with our holding that neither an imbibing minor’s estate nor the family of that minor may recover under the dramshop act.

Likewise, our holding is supported by the literal wording of subsection 8, which provides, in pertinent part: "All defenses of the alleged visibly intoxicated person or the minor shall be available to the licensee. . . .” MCL 436.22(8); MSA 18.993(8). Because we cannot envision that a minor’s estate and the relatives of a minor would have a cause of action against the minor for injuring himself, a literal application of subsection 8 means that a cause of action by these plaintiffs against the liquor licensee would also fail.⁷ Thus, as with subsection 6, an exception to this subsection is not required to avoid an absurd or strained result because the minor’s estate and his family are already barred from suit under subsection 4.⁸

Finally, our holding is also not inconsistent with subsection 10.⁹ Subsection 10, on its face, neither eliminates nor preserves recovery under the act by a minor’s estate or the family of an intoxicated minor. The plaintiffs urge us to interpret subsection 10 according to the rule of statutory construction that the express mention of one thing in a statute implies the exclusion of others. See 2A Sands, Sutherland Statutory Construction (5th ed), § 47.23, p 216 ff. Subsection 10 purports to establish exclusions from the operation of subsection 4. Thus, the statutory interpretation maxim would indicate that subsection 4 should apply to all cases not specifically excluded in subsection 10. Id. at 217. Therefore, under the plaintiffs’ interpretation of the two subsections together, both a minor’s estate and the family of the minor have a cause of action under subsection 4 merely because they are not explicitly precluded from recovery under subsection 10. We disagree.

If the wording of subsection 4 were ambiguous, then perhaps the plaintiffs’ interpretation of subsection 10 would tip the balance.-However, while our holding with regard to subsection 4 appears to make subsection 10 surplusage,¹⁰ the alternative would be to force a construction upon subsection 4 that is not supported by the wording of that subsection merely to explain an absence of language in subsection 10. Further, to divine a legislative intent from the omission of the word "minor” in subsection 10, in order to allow recovery by the minor’s estate and his family, creates substantial conflicts between the other subsections of the act. Such a holding would require us to explain away the specific language of subsections 4, 6, and 8, supporting the conclusion that these parties do not have a cause of action. We acknowledge a possible ambiguity arising from the absence of language in subsection 10, yet we decline to adopt the plaintiffs’ construction of the act.

We hold that consistent interpretations of subsections 4, 6, and 8 support the conclusion that the Legislature, in its shift of emphasis from protecting the family of an intoxicated person to protecting third persons, intended to prevent recovery by both a minor’s estate and the minor’s family. Thus, we reverse the decisions of the Court of

Appeals in both Waranica v Cheers Good Time Saloons and LaGuire v Kain.

Cavanagh, C.J., and Levin, Riley, and Griffin, JJ., concurred jvith Brickley, J.

1 1986 PA 176, MCL 436.22 et seq.; MSA 18.993 et seq.

2 The minor’s estate and the minor’s parents also filed cross-claims against another defendant, Charles Baker Scott, III, on the ground that he had supplied the decedent with alcohol. When the parties were realigned and the caption restructured, the third-party defendant was listed as a defendant. He is not involved in this appeal.

3 The Court of Appeals consolidated LaGuire v Kain with Falker v Hanibal’s, Inc (Docket No. 117778), an unrelated cause of action involving a seriously injured minor who claimed he had purchased alcoholic beverages from the defendant without providing identification and who sought damages for his injuries. The parties settled their dispute and stipulated to request that this Court dismiss their appeal prior to oral argument.

4 Section 22 of the Liquor Control Act, 1933 (Ex Sess) PA 8, as amended by 1986 PA 176, MCL 436.22 et seq.; MSA 18.993 et seq.

5 See, e.g., Kreiter v Nichols, 28 Mich 496 (1874); Kehrig v Peters, 41 Mich 475; 2 NW 801 (1879); Steele v Thompson, 42 Mich 594; 4 NW 536 (1880).

6 In fact, the dissent argues that subsection 4 was amended because the former language was interpreted broadly, even to allow the ex-wife of a decedent to recover as an "other person.” This broad construction caused confusion and duplicative litigation because dramshop defendants could not be sure that some additional " 'other person’ ” would not bring a claim. Boyle, J. at 389. However, the dissent’s interpretation of subsection 4 defeats the Legislature’s purpose of limiting the class of potential plaintiffs by giving to the term "individual” the same liberal construction that was given to the words "other person” under the former act.

7 Before the 1986 amendments, this provision only made available to the licensee the factual defenses of the alleged intoxicated person or minor. See 1980 PA 351, § 22(5).

8 The dissent misconstrues our argument with respect to subsections 6 and 8. We do not seek to "indirectly” abolish recovery by an intoxicated minor’s family through a literal reading of these subsections. See Boyle, J. at 394, 396, 397. On the contrary, such recovery is barred by subsection 4, and a literal reading of subsections 6 and 8 merely supports our conclusion with respect to subsection 4.

9 The alleged visibly intoxicated person shall not have a cause of action pursuant to this section nor shall any person have a cause of action pursuant to this section for the loss of financial support, services, gifts, parental training, guidance, love, society, or companionship of the alleged visibly intoxicated person. [MCL 436.22(10); MSA 18.993(10).]

10 We note as well that even the dissent’s construction of the act makes part of subsection 10 surplusage. The dissent agrees with our holding that the amended wording of subsection 4 does not allow an imbibing minor or visibly intoxicated person to recover. The dissent does not explain why subsection 10 explicitly precludes recovery by a visibly intoxicated person, but does not preclude recovery by a minor. However, the dissent rests its entire conclusion on the theory that those persons not excluded from recovery by subsection 10 may recover under subsection 4. See Boyle, J. at 391.