Michigan Supreme Court; Docket No. 86746; Published
Opinion by Justice Griffin; 3-3 (with Levin, Cavanaugh, and Boyle Dissenting)
Official Michigan Reporter Citation: 437 Mich 406; Link to Opinion 
STATUTORY INDEXING:
General / Miscellaneous [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this Opinion by an equally divided court, the Supreme Court affirmed the Court of Appeals’ decision which held that an action against a dram shop defendant arising from an automobile accident cannot be continued once the allegedly intoxicated person has been dismissed from the lawsuit on the basis that the plaintiff could not meet the no-fault tort liability threshold of "serious impairment of body function, or permanent serious disfigurement," in MCLA 500.3135(1).
Plaintiffs were injured in a motor vehicle accident where the driver was allegedly intoxicated. A dram shop action under the provisions of MCLA 43622 was brought seeking damages against the restaurant where the defendant driver was served alcoholic beverages. The circuit court granted motions for summary disposition dismissing the claims against the allegedly intoxicated person on the basis that the injuries suffered by plaintiff did not meet the threshold requirements of tort liability for non-economic loss under the No-Fault Act. Thereafter, the action against the dram shop was dismissed on the basis that the allegedly intoxicated person had not been “retained” in the lawsuit as required by the Dram Shop Act. On appeal, the Court of Appeals upheld the dismissal of the action against the dram shop.
The opinion by Justice Griffin, joined by Justices Riley and Brickley, held that the Dram Shop Act must be applied as written and that it must be strictly construed. Thus far, the Supreme Court has recognized only one exception to the "name and retain" requirements of the Dram Shop Act in a case where the alleged intoxicated person was unable to be identified by the plaintiff. Salas v Clements, 339 Mich 103 (1976). In other subsequent cases, the court has strictly construed the Dram Shop Act and declined to allow such actions to continue where the allegedly intoxicated person is not named and retained.
Justice Levin, joined in his opinion by Justices Cavanagh and Boyle, would reverse the Court of Appeals and hold that the name and retain provision of the Dram Shop Act does not bar continued maintenance of such an action because the failure to retain the intoxicated person in the action was a circumstance entirely beyond the control of the plaintiff, just as it was in the Salas, supra, case. Thus, when the allegedly intoxicated person is dismissed from the action through no fault of plaintiff, and the dangers of collusion and fraud are not present, the name and retain provision should not be an obstacle to recovery under the Dram Shop Act.
Since the Supreme Court was equally divided in its opinion, the decision of the Court of Appeals was affirmed.
Justice Mallett did not participate in this decision.
