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No. 135546
| David Romain and Joann Romain, |
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Christopher W. Bowman |
Plaintiffs-Appellees, |
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(Appeal from Ct of Appeals) |
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(Wayne - Murphy, J.) |
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| Frankenmuth Mutual Insurance and Iaq Manage- |
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| ment, Inc., |
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Defendant, |
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| Insurance Services Construction, |
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Anthony F. Caffrey III |
| Defendant-Appellant. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiffs-Appellees' Brief on Appeal>>
Defendant-Appellant's Brief on Appeal>>
Defendant-Appellant's Reply Brief>>
John Braden's Amicus Curiae Brief>>
Michigan Association of Justice's Amicus Curiae Brief>>
Michigan Defense Trial Counsel, Inc.'s Amicus Curiae Brief>>
Michigan Manufacturers Association's Amicus Curiae Brief>>
Background
David and Joann Romain’s home was contaminated with toxic mold. They submitted an insurance claim to Frankenmuth Mutual Insurance, which hired IAQ Management to test the home; the insurer also referred the Romains to Insurance Services Construction to remediate the mold. After the home was remediated and certified mold-free, the Romains moved back in, but later suffered mold-related illnesses. The Romains sued Frankenmuth, IAQ, and Insurance Services Construction. IAQ moved for summary disposition, arguing in part that it owed no legal duty to the Romains and should be dismissed from the lawsuit. The trial court granted IAQ’s motion, ruling that IAQ did not have a contractual relationship with the Romains and so had no legal duty to them; moreover, IAQ had not engaged in misfeasance by making the mold situation worse, the trial court held. Insurance Services Construction then filed a notice naming IAQ a non-party at fault under Michigan Court Rule 2.112(K) and Michigan’s comparative fault statutes, MCL 600.2957 and MCL 600.6304. MCL 600.2957 states: “In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each person shall be allocated under this section by the trier of fact and, subject to [MCL 600.6304], in direct proportion to the person’s percentage of fault. In assessing percentages of fault under this subsection, the trier of fact shall consider the fault of each person, regardless of whether the person is, or could have been, named as a party to the action.” MCL 600.6304 defines “fault” as including “an act, an omission, conduct, including intentional conduct, a breach of warranty, or a breach of a legal duty, or any conduct that could give rise to the imposition of strict liability, that is a proximate cause of damage sustained by a party.” The trial court granted the Romains’ motion to strike the notice of non-party fault. Insurance Services Construction then filed an application for leave to appeal to the Court of Appeals; after the Court of Appeals denied that application, Insurance Services Construction appealed to the Supreme Court. In an opinion, the Supreme Court denied leave to appeal, but addressed a conflict between two published Court of Appeals opinions interpreting Michigan’s MCL 600.2957 and MCL 600.6304. Insurance Services Construction filed a motion for rehearing, and the Supreme Court vacated its opinion and granted leave to appeal.
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