Conklin v. Shiawassee County Board of Road Commissioners

Danhof, C.J. We agree with Judge Swallow’s disposition of the claims against plaintiff and its ruling that defendant’s right to contribution against Beckman was governed by former MCL [317] 600.2925; MSA 27A.2925, and that pursuant thereto the release given by plaintiff to Beckman did not defeat defendant’s right to seek contribution against Beckman.1 We also agree that the trial court erred by refusing to permit defendant to implead Beckman. Therefore, we order the case remanded for trial between defendant and Beck-man on the issue of whether defendant and Beck-man are joint tortfeasors. However, we cannot agree with Judge Swallow’s conclusion that the Supreme Court’s decision in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), permits an action for contribution with recovery to be based on the proportionate fault of each tortfeasor. The Supreme Court recently rejected a similar claim as it applied to the successor provisions of the contribution statute referred to above. MCL 600.2925a et seq.; MSA 27A.2925(1) et seq. Mayhew v Berrien County Rd Comm, 414 Mich 399; 236 NW2d 366 (1982). This Court has previously held that former MCL 600.2925; MSA 27A.2925 did not permit contribution to be determined in proportion to the relative fault of each tortfeasor. Sexton v American Aggregates, 60 Mich App 524, 537; 231 NW2d 449 (1975). Those decisions control our disposition of this case. The case is remanded for trial between defendant and Beckman on the issue of whether they are joint tortfeasors. If so, defendant shall be entitled to recover contribution from Beckman on a pro-rata basis if it is established that defendant has paid plaintiff more than its pro-rata share. Defendant’s recovery shall not be based on the proportionate fault of each tortfeasor. Affirmed in part and reversed in part. Remanded for further proceedings in accordance with [318] this opinion. No costs, neither party having prevailed in full. Beasley, J., concurred. Footnotes [1] See Judge Swallow’s opinion for statement of facts.