                          STATE OF MICHIGAN

                           COURT OF APPEALS



GREGORY TAYLOR and JAMES NIEZNAJKO,                                FOR PUBLICATION
                                                                   October 14, 2014
               Plaintiffs-Appellees,                               9:00 a.m.

v                                                                  No. 314534
                                                                   Genesee Circuit Court
MICHIGAN PETROLEUM TECHNOLOGIES,                                   LC No. 12-098397-NI
INC.,

               Defendant-Appellee,

and

CONSUMERS ENERGY COMPANY,

               Defendant-Appellant.



Before: METER, P.J., and K. F. KELLY and M. J. KELLY, JJ.

PER CURIAM.

        In this class action suit to recover damages related to an explosion and fire, defendant,
Consumers Energy Company, appeals by leave granted the trial court’s order denying its motion
to dismiss the claims alleged against it by plaintiffs, Gregory Taylor and James Nieznajko. On
appeal, Consumers Energy argues that Taylor and Nieznajko amended their complaint to include
claims against Consumers Energy after the expiration of the applicable period of limitations.
Although Taylor and Nieznajko filed their amended complaint after defendant, Michigan
Petroleum Technologies, Inc., indicated its belief that Consumers Energy was a third-party at
fault, Consumers Energy maintains, because Michigan Petroleum did not comply with the
requirements applicable to a notice of non-party at fault, Taylor and Nieznajko could not rely on
MCL 600.2957(2) to extend the period of limitations and the trial court should have dismissed
the claims as untimely. We conclude the trial court erred when it determined that the
identification of Consumers Energy as a potential third-party at fault met the notice requirements
stated under MCR 2.112(K). Because the identification did not satisfy the notice requirements,
Taylor and Nieznajko could not rely on MCL 600.2957(2) to avoid application of the three year
period of limitations and the trial court, accordingly, should have dismissed the claims against
Consumers Energy under MCR 2.116(C)(7). For these reasons, we reverse and remand for entry
of an order dismissing the claims against Consumers Energy.

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                                        I. BASIC FACTS

       Michigan Petroleum owned and operated a facility in Clio, Michigan, which was part of
its White Oil Division. The White Oil facility had several buildings, including a building on the
north end of the property that was used to store petroleum products. On August 4, 2009, there
was an explosion and fire at the north building. Because of the hazardous nature of the materials
involved in the fire, emergency personnel evacuated more than 4,500 people from nearby homes
and businesses.

        In June 2012, John Digicomo and Taylor sued Michigan Petroleum. They alleged that
Michigan Petroleum negligently operated the White Oil facility and that Michigan Petroleum’s
operation of the facility amounted to a nuisance that interfered with their use and enjoyment of
their own property. They further alleged that Michigan Petroleum’s improper operation of the
White Oil facility led to the explosion and fire, which harmed them. Finally, they asked the trial
court to certify them as representatives for all similarly situated persons who might have been
harmed by the explosion and fire at the White Oil facility.

        On August 2, 2012, just days before the three-year anniversary of the explosion and fire,
Michigan Petroleum filed its answer. In a separate section at the end of its answer, Michigan
Petroleum listed various allegations that it characterized as “Affirmative and/or Special
Defenses.” In the third paragraph, Michigan Petroleum alleged that any damages resulting from
the fire “were caused by . . . Consumers Energy, its employees and suppliers, who supplied
and/or failed to service defective electrical equipment, or who otherwise failed to anticipate or
alleviate an electrical power event which caused the fire . . . suddenly and without warning.”

         In October 2012, Michigan Petroleum stipulated to the entry of an order allowing Taylor
to file an amended complaint, which would substitute Nieznajko for Digicomo as plaintiff, and
which would include claims against Consumers Energy. In that same month, Taylor and
Nieznajko filed their amended complaint. They asserted a claim of negligence against Michigan
Petroleum and added a claim that Consumers Energy negligently failed to inspect, maintain, or
repair its electrical equipment at the White Oil facility, which caused the explosion and fire.
They also alleged that both Michigan Petroleum and Consumers Energy’s actions amounted to a
nuisance. Finally, they asked the trial court to certify them as the representatives of all similarly
situated persons who might have been harmed by the explosion and fire at the White Oil facility.

        Consumers Energy responded by moving for summary disposition in November 2012.
Consumers Energy argued—in relevant part—that the allegations in the complaint by Nieznajko
and Taylor demonstrate that their claims involve injuries to persons or property that must be filed
within 3 years.1 See MCL 600.5805(10). Nieznajko and Taylor, Consumers Energy stated, did
not amend their complaint to include claims against it until more than 3 years after the explosion
and fire. Consumers Energy maintained that the 3-year period was not extended under MCL
600.2957(2), because Michigan Petroleum did not serve Nieznajko and Taylor with a notice of


1
 Consumers Energy moved for summary disposition on other grounds, which the trial court also
denied. The trial court’s decision as to these alternate bases for relief is not before us.


                                                -2-
nonparty-at-fault that complied with MCR 2.112(K). Accordingly, it asked the trial court to
dismiss the claims against it as untimely under MCR 2.116(C)(7).

       Nieznajko and Taylor disagreed that Michigan Petroleum failed to give notice of
nonparty at fault. Specifically, they argued that Michigan Petroleum gave them notice that
Consumers Energy might be at fault through its allegations stated in the third paragraph of its
affirmative defenses.

        The trial court held a hearing on the motion in January 2013. It agreed that Michigan
Petroleum substantially complied with MCR 2.112(K) by notifying Nieznajko and Taylor that
Consumers Energy might be at fault in its affirmative defenses. Because Nieznajko and Taylor
filed their amended complaint within 91 days of the notice and filed their original complaint
before the expiration of the applicable period of limitations, the trial court determined that the
claims against Consumers Energy were timely under MCL 600.2957(2). As such, it denied
Consumers Energy’s motion in an order entered that same month.

      On Consumers Energy’s request, the trial court stayed further action to allow Consumers
Energy to appeal its decision.

        In January 2013, Consumers Energy asked for leave to appeal to this Court, which this
Court denied. See Taylor v Mich Petroleum Tech, Inc, unpublished order of the Court of
Appeals, entered October 18, 2013 (Docket No. 314534). Consumers Energy then applied for
leave to appeal to our Supreme Court and, in lieu of granting leave, the Supreme Court remanded
the case back to this Court for consideration as on leave granted. See Taylor v Mich Petroleum
Tech, Inc, 495 Mich 983; 843 NW2d 927 (2014).

                            II. NOTICE OF NONPARTY AT FAULT

                                 A. STANDARDS OF REVIEW

        This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775
NW2d 618 (2009). This Court also reviews de novo whether the trial court properly interpreted
and applied statutes and court rules. Brecht v Hendry, 297 Mich App 732, 736; 825 NW2d 110
(2012).

                       B. COMPARATIVE FAULT AND NONPARTIES

         In 1995, the Legislature generally abolished joint and several liability in favor of several
liability. See 1995 PA 161. The Legislature gave effect to this policy change through several
statutes, including MCL 600.2957 and MCL 600.6304.

        Under MCL 600.6304(1), in an “action based on tort or another legal theory seeking
damages for personal injury, property damage, or wrongful death involving fault of more than 1
person, including third-party defendants and nonparties,” a trial court must instruct the jury—or
make independent findings after a bench trial—to answer special interrogatories assigning the
“percentage of the total fault of all persons that contributed to the” injury at issue. The allocation
of fault must include the fault of “each plaintiff” and should be allocated without regard to

                                                 -3-
whether the “person was or could have been named as a party to the action.” MCL
600.6304(1)(b). The liability is “several only and not joint” and no person may be required to
pay “damages in an amount greater than his or her percentage of fault.” MCL 600.6304(4). The
trial court may only enter a judgment against a party to the suit. MCL 600.6304(3).

        Similarly, MCL 600.2957(1) provides that “the trier of fact” must allocate “the liability
of each person” involved in an “action based on tort or another legal theory seeking damages for
personal injury, property damage, or wrongful death,” subject to the provisions of MCL
600.6304, “in direct proportion to the person’s percentage of fault.” As with MCL
600.6304(1)(b), the finder of fact must allocate fault in proportion to the person’s percentage of
fault “regardless of whether the person is, or could have been, named as a party to the action.”
MCL 600.2957(1). Thus, the finder of fact must allocate fault even for nonparties, but the
allocation does not give rise to liability:

       Assessments of percentages of fault for nonparties are used only to accurately
       determine the fault of the named parties. If fault is assessed against a nonparty, a
       finding of fault does not subject the nonparty to liability in that action and shall
       not be introduced as evidence of liability in another action. [MCL 600.2957(3).]

        Because the finder of fact must allocate fault even to nonparties, the Legislature provided
plaintiffs with an opportunity to bring the nonparty into the litigation: “after identification of a
nonparty,” the plaintiff may sue the nonparty by moving for permission to amend his or her
complaint to allege “1 or more causes of action against that nonparty” within 91 days of the
identification, which motion the trial court must grant. MCL 600.2957(2). Moreover, the
Legislature provided that the plaintiff’s “cause of action added under” MCL 600.2957(2) “is not
barred by a period of limitation” if the cause of action would have been timely “at the time of the
filing of the original action.” Id. That is, if during the course of the litigation the plaintiff
receives an “identification of a nonparty,” who may be at fault, the plaintiff may sue the nonparty
and the amended complaint will—for all practical purposes—relate back to the date that the
plaintiff filed his or her original complaint.

         With these statutory provisions, the Legislature enacted substantive changes to the law of
torts by altering the balance of two competing principles: the principle that every person injured
by another person or persons has the right to be fully compensated for the harm and the principle
that those who cause a particular harm should only be responsible for his or her share in
producing the harm. See McDougall v Schanz, 461 Mich 15, 30-31; 597 NW2d 148 (1999)
(defining substantive law, as opposed to procedural law). By permitting the allocation of
liability to nonparties, the Legislature decreased the risk that a particular defendant will be
required to pay compensation for another party’s share of the harm caused to the plaintiff, but
increased the risk that the plaintiff will not receive full compensation for his or her injuries. This
might occur where the plaintiff learns about a nonparty’s role during discovery, but after the
passage of the period of limitations. To mitigate the risk that an injured party will not be fully
compensated, the Legislature provided plaintiffs with an opportunity to amend their complaints
to include those nonparties who are identified during the course of the litigation and further
provided that the amendment would be deemed timely if the claims would have been timely had
the plaintiffs included them in their original complaints. Accordingly, with the enactment of
MCL 600.2957(2), the Legislature made a clear policy choice in favor of allowing a plaintiff to

                                                 -4-
amend his or her complaint to include a nonparty within 91 days of the “identification of [the]
nonparty” and have that amendment relate back to the filing of the original complaint for
purposes of the applicable period of limitations. See Trentadue v Buckler Lawn Sprinkler, 479
Mich 378, 403-405; 738 NW2d 664 (2007) (stating that the Legislature has the unquestioned
right to enact periods of limitation and provide for tolling under specified conditions).

                                         C. MCR 2.112(K)

        The Legislature did not define what constitutes an “identification of a nonparty” for
purposes of MCL 600.2957(2) and did not address who must make the identification under that
statute. Because the Legislature chose not to limit the phrase “identification of a nonparty” to
acts done by any particular party and did not define what constitutes an identification within the
meaning of MCL 600.2957(2), the statute could refer to any identification—formal or
informal—by any party, if the words used were given their common and approved usage. See
Ford Motor Co v City of Woodhaven, 475 Mich 425, 439; 716 NW2d 247 (2006) (providing that
courts must normally give the words used in a statute their common and approved usage); The
Oxford English Dictionary (2d ed, 1991), p 618 (defining “identification” to mean the “action of
identifying or fact of being identified”). However, after the Legislature enacted these changes,
our Supreme Court promulgated an amendment to MCR 2.112, which addressed the procedures
applicable to the allocation of liability to nonparties. See 453 Mich cxix.

        That rule “applies to actions based on tort or another legal theory seeking damages for
personal injury, property damage, or wrongful death to which MCL 600.2957 and MCL
600.6304” apply. MCR 2.112(K)(1). The Supreme Court provided that the trier of fact “shall
not assess the fault of a nonparty unless notice has been given as provided” under MCR
2.112(K)(3). See MCR 2.112(K)(2). The notice must be filed by a party “against whom a claim
is asserted” and must assert that the nonparty is “wholly or partially at fault.” MCR
2.112(K)(3)(a). The notice must “designate the nonparty and set forth the nonparty’s name and
last known address, or the best identification of the nonparty that is possible, together with a
brief statement of the basis for believing the nonparty is at fault.” MCR 2.112(K)(3)(b). Finally,
the notice must be filed within 91 days after the party files its first responsive pleading. MCR
2.112(K)(3)(c).

        As can be seen, the court rule provides the procedures with which a “party against whom
a claim is asserted”—a defendant—must comply before a “trier of fact” will be permitted to
allocate fault to a nonparty. MCR 2.112(K)(2); MCR 2.112(K)(3). That is, a defendant’s failure
to give the notice required under the court rule amounts to a procedural waiver of the right to
have a nonparty assigned fault as provided under MCL 600.6304 and MCL 600.2957. In
addition, the court rule recognizes that service of the notice required under MCR 2.112(K)(3)
triggers the plaintiff’s right to file a claim under MCL 600.2957(2): if a party receives “a notice
under this subrule,” the party served “may file an amended pleading stating a claim or claims
against the nonparty within 91 days of service of the first notice identifying that nonparty.”
MCR 2.112(K)(4). The rule also clarifies that, where there are multiple notices under the court
rule for the same nonparty, the plaintiff must exercise its right to amend under MCL 600.2957(2)
within 91 days of the first notice. Thus, the court rule impliedly limits a plaintiff’s ability to take
advantage of MCL 600.2957(2)—notwithstanding that there may have been an identification
within the meaning of that statute—on the basis of a defendant’s failure to give the notice

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required under MCR 2.112(K). And, indeed, this Court held that a plaintiff may not take
advantage of that statute unless a defendant provides the plaintiff with a notice of nonparty at
fault that complies with MCL 600.2957(2). See Staff v Johnson, 242 Mich App 521; 619 NW2d
57 (2000).

        In Staff, the lawyer for defendants, Curtis C. Marder, M.D. and his professional
corporation, informally notified the plaintiff, John L. Staff, that another physician may have been
responsible for the administration of the drug at issue. Id. at 524-526. The trial court later gave
Staff permission to amend his complaint to include claims against Joel A. Johnson, M.D. and his
professional corporation, who were identified as “prospective non-party defendants.” Id. at 526.
Johnson moved for summary disposition on the grounds that Staff’s claim against him and his
professional corporation was untimely and was not entitled to the relation back provision stated
under MCL 600.2957(2) because there had not been a formal notice of nonparty at fault. Id. at
527. The trial court acknowledged that there had been no formal notice, but determined that
such notice was not required. Id. There was also evidence that Staff’s lawyer stipulated to forgo
the notice requirement. Id. at 529.

         On appeal, this Court rejected the notion that Staff’s lawyer could stipulate to forgo the
notice requirement and concluded that the failure by Marder’s lawyer to provide formal notice
was purposeful because he “could not establish reasonable diligence for failing to timely name
[Johnson and his professional corporation].” Id. at 529. The Court also rejected the contention
that the provisions of MCL 600.2957(2) govern despite the time limit provided under MCR
2.112(K)(3)(c). Staff, 242 Mich App at 530-531. It explained that statutes governing a period of
limitations are procedural, not substantive, and, therefore, the Supreme Court’s rules prevail
when there is a conflict between a statutory provision governing the period of limitations and a
related court rule. Id. at 531-532. The Court further justified its holding on the basis of public
policy: “Parties could use the statute to add parties years after the litigation commenced to delay
trial or encourage resolution by increasing the potential for settlement without regard to the
rights of additional parties to be free from fear of litigation.” Id. Because the parties must
strictly comply with the court rule’s notice provisions before a party may be added under MCL
600.2957(2), which was not done, the Court in Staff reversed the trial court’s decision to deny
Johnson’s motion for summary disposition under MCR 2.116(C)(7). Id. at 533-534.

                               D. APPLICATION OF THE LAW

        Here, Michigan Petroleum did not serve Taylor and Nieznajko with a formal notice of its
intent to have the finder of fact allocate fault to Consumers Energy, as required under MCR
2.112(K). Rather, it alleged—under the heading of affirmative or special defenses—that any
damages “were caused by circumstances beyond [Michigan Petroleum’s] control,” which
included “the intervening and superseding acts of negligence” by “Consumers Energy, its
employees and suppliers, who supplied and/or failed to service defective electrical equipment, or
who otherwise failed to anticipate or alleviate an electrical power event which caused the fire
. . .” Although the court rule does not require the party giving notice to give notice in a separate
document, by referring to “a notice” and “the notice” which has been “filed”, our Supreme Court
indicated that the requirements of that rule must be met by a provision that is filed under the
rule—that is, the filing must be identified as one purporting to give notice that the defendant is


                                                -6-
asserting his or her right to have the finder of fact allocate fault to a third party under the court
rule. See, e.g., MCR 2.112(K)(3).

        When Michigan Petroleum identified Consumers Energy as the party responsible for the
harm, it did so in its affirmative defenses. Affirmative defenses must be stated under a “separate
and distinct heading” and must include a statement of the facts constituting the defense. MCR
2.111(F)(3). The notice provisions applicable to affirmative defenses also serve a purpose that is
distinct from that served by MCR 2.112(K). With an affirmative defense, the defendant does not
challenge the plaintiff’s prima facie case, but denies that the plaintiff is entitled to the requested
relief. Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 312; 503 NW2d 758 (1993).
By requiring the party asserting such a defense to state the facts constituting the defense under a
separate and distinct heading, the court rules ensure that the adverse party will have sufficient
information to take a responsive position. Id. at 317. By contrast, a notice of nonparty at fault
notifies the plaintiff that the defendant intends to have the finder of fact consider the fault of a
third party and ensures that the plaintiff will have the opportunity to timely assert a claim against
that party. Because the notice requirements serve distinct purposes and involve different criteria,
a party may not properly join these notices into a single section. Rather, each notice must be
separately stated under a distinct heading, if not in a separate document.

        In any event, even if Michigan Petroleum could properly give notice of nonparty at fault
along with its notice of affirmative defenses, its notice was still deficient in several respects.
Michigan Petroleum did not identify Consumers Energy as a nonparty at fault, did not cite MCR
2.112(K), and did not otherwise state that it was asserting its right to have the finder of fact
allocate fault to Consumers Energy. The actual statement—at best—gave notice that Michigan
Petroleum would argue that its acts or omissions did not proximately cause the injuries at issue
or that there was an intervening unforeseeable act that cut off liability. See, e.g., Veltman v
Detroit Edison Co, 261 Mich App 685, 694-696; 683 NW2d 707 (2004) (holding that a
defendant’s failure to file a notice of nonparty at fault under MCR 2.112(K) did not preclude the
defendant from presenting evidence that the injury at issue was caused by a nonparty because
that evidence went to causation). Therefore, it did not serve as the notice required by MCR
2.112(K).

        In addition, in order to comply with the court rule, the party giving notice must
“designate the nonparty and set forth the nonparty’s name and last known address, or the best
identification of the nonparty that is possible, together with a brief statement of the basis for
believing the nonparty is at fault.” MCR 2.112(K)(3)(b). Michigan Petroleum did not, however,
“designate” Consumers Energy as a nonparty at fault, did not provide an address for Consumers
Energy—despite the fact that it is a well known business, and did not provide a “basis for
believing” that Consumers Energy was at fault beyond its bald assertion that Consumers Energy
caused the explosion and fire. Even if a party could serve a notice of nonparty at fault in its
affirmative defenses, the notice here plainly did not comply with the requirements stated under
MCR 2.112(K)(3). Accordingly, the trial court erred when it determined that Michigan
Petroleum complied with the notice requirements stated under MCR 2.112(K)(3).




                                                 -7-
                                      III. CONCLUSION

       The trial court erred when it determined Michigan Petroleum provided Taylor and
Nieznajko with the notice required under MCR 2.112(K)(3). Moreover, because proper notice
under that rule is a prerequisite to the application of MCL 600.2957(2), the trial court could not
apply that statute to save Taylor and Nieznajko’s otherwise untimely claims against Consumers
Energy. The trial court should have dismissed those claims under MCR 2.116(C)(7).

        Reversed and remanded for entry of an order dismissing Taylor and Nieznajko’s claims
against Consumers Energy. We do not retain jurisdiction. As the prevailing party, Consumers
Energy may tax its costs. MCR 7.219(A).



                                                            /s/ Patrick M. Meter
                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Michael J. Kelly




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