Bodell v. Califf , 164 Mich. App. 95 ( 1987 )

164 Mich. App. 95 (1987) 416 N.W.2d 341

BODELL
v.
CALIFF

Docket No. 96176.

Michigan Court of Appeals.

Decided August 28, 1987.

Libner, Van Leuven & Kortering (by John A. Braden), for plaintiff.

Frank S. Spies, for defendant William M. Christensen.

Before: CYNAR, P.J., and WEAVER and J.H. HAUSNER,^[*] JJ.

PER CURIAM.

Plaintiff appeals as of right from an order granting defendant-appellee, Willard M. Christensen, doing business as Thunderbird Lounge, summary disposition on the basis that plaintiff failed to "name and retain" the alleged intoxicated party as required by MCL 436.22(5); MSA 18.993(5). We affirm.

The instant complaint was filed on January 25, 1985. In the complaint, plaintiff alleged that on April 7, 1984, defendant Ernest L. Califf, the alleged intoxicated person (AIP), was heading south on Whitehall Road in Montague, Michigan. Plaintiff was proceeding north when Califf's vehicle crossed the center line and collided with Bodell's auto.

Prior to the accident, Califf had been at the Thunderbird Lounge where he consumed alcoholic beverages. Califf's blood-alcohol level was at 0.19 percent and plaintiff tested at 0.16 percent.

In December, 1985, defendant Christensen's liquor liability insurer, Transit Casualty Company, was placed in receivership. In accordance with MCL 500.7945; MSA 24.17945, the trial court issued an ex parte order on December 23, 1985, staying the proceedings until June 6, 1986.

Meanwhile, plaintiff proceeded to mediation with Califf. The mediation panel awarded plaintiff $10,000 on February 21, 1986. Plaintiff unconditionally accepted the award and judgment was entered on March 24, 1986. Thereafter, on April 17, 1986, plaintiff executed a satisfaction of judgment as to defendant Califf. The order for stay of proceedings was still in effect.

On September 5, 1986, defendant Christensen filed a motion for summary disposition of dismissal contending that plaintiff had not complied with the name and retain provision in the dramshop act, MCL 436.22(5); MSA 18.993(5), by settling with the AIP. Following an October 6, 1986, hearing, the trial court granted Christensen's motion and dismissed the case. From this dismissal, plaintiff appeals.

Plaintiff argues that since the name and retain provision of the dramshop act conflicts with the court rules governing mediation, the statutory provision must fall.

The trial court granted defendant Christensen summary disposition pursuant to MCL 436.22(5); MSA 18.993(5) which provides in part:

An action against a retailer, wholesaler, or any-one covered by this act or a surety, 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.

Recently, in Riley v Richards, 428 Mich. 198; 404 NW2d 618 (1987), our Supreme Court discussed the above provision. In Riley, the Supreme Court reviewed its prior decisions which interpreted this provision. In Putney v Haskins, 414 Mich. 181; 324 NW2d 729 (1982), reh den 414 Mich. 1111 (1982), the Court held that an AIP had not been retained in an action "if a settlement of any kind is reached between the plaintiff and the allegedly intoxicated defendant before `the litigation is concluded by trial or settlement.'" Id., p 184. The policy for such a requirement is to prevent fraud and collusion between a plaintiff and an AIP. Riley, supra, p 207.

The Riley Court indicated that this strict interpretation appears antithetical to the general policy of encouraging parties to settle their disputes before or during litigation. However, the Riley Court concluded that the Legislature intended no exception to this provision due to the dangers of fraud and collusion. Id., p 214.

In our case, plaintiff settled with the AIP while the litigation was pending as to the dramshop defendant. Therefore, plaintiff failed to name and retain the AIP as required by the statute.

We do not agree with plaintiff's argument that the name and retain provision conflicts with the court rule governing mediation. Mediation is not mandatory on any party. MCR 2.403. Here, plaintiff had a choice to either forego mediation or elect to submit to mediation. By agreeing to mediate, plaintiff forfeited his opportunity to proceed against the dramshop defendant since the AIP was no longer a party to the action as required by MCL 436.22(5); MSA 18.993(5).

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.