M Civ JI 43.01A Contribution Among Tort-Feasors by Relative Fault [ Instruction Deleted ]

Comment

For rights to contribution among persons jointly liable in tort, see MCL 600.2925a–.2925d.

In late 1995, the Michigan legislature abrogated joint liability in most cases and thereby eliminated most actions for contribution among tort-feasors:

Except as provided in section 6304, in an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each defendant for damages is several only and is not joint. However, this section does not abolish an employer’s vicarious liability for an act or omission of the employer’s employee.

MCL 600.2956.

The Michigan Court of Appeals has held that the 1995 tort legislation (1995 PA 161 and 249) eliminated most claims for contribution. Kokx v Bylenga, 241 Mich App 655; 617 NW2d 368 (2000). According to Kokx, the allocation of fault section (MCL 600.6304), which limits a party’s liability for damages to his or her own percentage of fault, eliminates the possibility that a party will pay more than his or her pro rata share of common liability, which is a prerequisite to a contribution claim under MCL 600.2925a.

Section 6304 created two exceptions to the abolishment of joint liability. MCL 600.6304(4). The first exception applies to medical malpractice actions. In medical malpractice actions in which the plaintiff is determined to be without fault, liability of defendants is joint and several. MCL 600.6304(6)(a). In medical malpractice actions in which the plaintiff is determined to have fault, a mechanism for allocating uncollectable amounts to certain defendants is provided. MCL 600.6304(6)(b), (7). The second exception to the abrogation of joint liability is for defendants who have been found liable for an act or omission that also constitutes one of the enumerated crimes for which the defendant was convicted. MCL 600.6312.

In cases in which joint tort-feasor liability remains, this instruction is unnecessary because in actions based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death that involve fault of more than one person including third-party defendants and nonparties (unless otherwise agreed by all parties), the jury is required to determine the percentage of the total fault of each person that contributed to the death or injury. MCL 600.6304(1)(b).

History

M Civ JI 43.01A was added February 1983. Deleted May 1998.