Summary
noting that, while MCL 436.1801 does not specify what the notice must contain, when read in context, "it is patent that the written notice must, at a minimum, provide notice to the defendant of the plaintiff’s intent to pursue an action under the dramshop act against the notified defendant"
Summary of this case from Sanders v. Tumbleweed Saloon, Inc.Opinion
Docket Nos. 315891 315901 316511.
03-26-2015
AUTO–OWNERS INSURANCE COMPANY v. SEILS. Seils v. Pink.
Willingham & Coté, P.C., East Lansing (by Kimberlee A. Hillock, John A. Yeager, and Frederick M. Baker), for Auto–Owners Insurance Company. Peter J. Parks for Chad Seils. Cummings, McClorey, Davis & Acho, P.L.C., Southfield (by Douglas J. Curlew), for Olympia Entertainment, Inc., in Docket No. 315891. Cummings, McClorey, Davis & Acho, P.L.C., Lindsey J. Kaczmarek (by T. Joseph Seward and Lindsey J. Kaczmarek), for Olympia Entertainment, Inc., in Docket No. 316511. David Franks, P.C. (by David J. Franks, Southfield), for Fraternal Order of Police Associates, Grosse Pointe Lodge 102 in Docket No. 315891. Secrest Wardle, Troy, (by Drew W. Broaddus and Thomas J. Azoni) for Fraternal Order of Police Associates, Grosse Pointe Lodge 102 in Docket No. 315901.
Willingham & Coté, P.C., East Lansing (by Kimberlee A. Hillock, John A. Yeager, and Frederick M. Baker), for Auto–Owners Insurance Company.
Peter J. Parks for Chad Seils.
Cummings, McClorey, Davis & Acho, P.L.C., Southfield (by Douglas J. Curlew), for Olympia Entertainment, Inc., in Docket No. 315891.
Cummings, McClorey, Davis & Acho, P.L.C., Lindsey J. Kaczmarek (by T. Joseph Seward and Lindsey J. Kaczmarek), for Olympia Entertainment, Inc., in Docket No. 316511.
David Franks, P.C. (by David J. Franks, Southfield), for Fraternal Order of Police Associates, Grosse Pointe Lodge 102 in Docket No. 315891.
Secrest Wardle, Troy, (by Drew W. Broaddus and Thomas J. Azoni) for Fraternal Order of Police Associates, Grosse Pointe Lodge 102 in Docket No. 315901.
Opinion
PER CURIAM.
These cases are consolidated for purposes of appeal. In Docket No. 315891, Auto–Owners Insurance Company appeals by right the trial court's declaratory ruling that the commercial general-liability policy (CGL) it issued to defendant Fraternal Order of Police Associates, Grosse Pointe Lodge 102 (FOPA) provided both dramshop and contractual-liability coverage for an incident in which an allegedly intoxicated person (AIP) murdered and severely injured several people. In Docket No. 315901, this Court granted the FOPA's application for leave to appeal the trial court's denial of its motion for summary disposition of the underlying dramshop action. Similarly, in Docket No. 316511, defendant Olympia Entertainment, Inc., appeals by leave granted the trial court's denial of its motion for summary disposition with respect to the same dramshop action. For the reasons discussed in this opinion, we conclude that the trial court did not err in its ruling in Docket No. 315891 but that in Docket No. 315901 and Docket No. 316511 it should have granted summary disposition to those defendants regarding the dramshop action because the plaintiff in that case, Chad Seils, cannot establish proximate cause. MCL 436.1801(2) and (3).
I. SUMMARY OF PERTINENT FACTS AND PROCEEDINGS
A. DOCKET NO. 315891
According to the testimony of Robert Estabrook, its treasurer and one of its incorporators, the FOPA is a nonprofit corporation organized for the purpose of supporting the police and various charities such as Special Olympics and other community charities. The FOPA also directly supports local police by doing things like buying GPS units for detectives' cars and bulletproof vests for new officers. Its articles of incorporation as a domestic nonprofit corporation state that in addition to “inculcat[ing] loyalty and allegiance” to the Constitution and the nation, the FOPA's purpose is to “join together fraternally ... to promote and foster the impartial enforcement of law and order; to assist in all reasonable and ethical ways our parent lodge, Fraternal Order of Police, Grosse Pointe Lodge No. 102, in their endeavor to support and assist their members and family....”
To raise money for its stated purposes, the FOPA would each year obtain a temporary license from the Liquor Control Commission to staff a beer tent at various community special events and, in particular, staff a beer tent at an annual three-day event known as the Detroit Hoedown (the Hoedown). It is undisputed that this event had been the FOPA's main fundraiser for 20 years preceding the events of May 2010. CBS Radio and Live Nation Entertainment promoted the Hoedown, and concessions were run by a succession of event managers, ending in 2010 with Olympia. For the 2010 Hoedown, Olympia and the FOPA entered into a concession agreement. Twelve other civic groups also signed concession agreements as “sub-licensees” to staff beer tents at the Hoedown under the auspices of the FOPA's special liquor license. Estabrook testified that Olympia recruited, trained, and supervised the other civic groups and that the FOPA was responsible for only one beer tent. The FOPA earned $8,010.19 from the 2010 Hoedown, representing an 8% commission on gross sales from the beer tent it staffed; gross beer sales at the entire event were $875,351.70. The other civic groups likewise received an 8% commission on gross sales from the beer tent the civic group staffed.
The concession agreement required the FOPA to obtain and certify to Olympia that it had obtained “(i) comprehensive general liability insurance ...; (ii) required worker's compensation coverage; and (iii) host liquor liability insurance of not less than $500,000 for each occurrence.” Also, these insurance policies were to include Olympia, CBS Radio, Live Nation, the Hoedown, and the city of Detroit as additional named insured parties. The FOPA did not obtain liquor-liability insurance.
The concession agreement also contained an indemnification clause providing that “[i]respective of the amount of insurance provided, [the FOPA] shall be liable for and shall indemnify, defend and hold harmless [Olympia] ... against and with respect to any claim, liability, obligation, loss, damage, assessment, judgment, cost and expense ... arising out of or as result of or related to” the FOPA's performance of the agreement.
The issues presented in this appeal concern the application of two exclusions in the CGL policy that Auto–Owners issued to the FOPA. The “Tailored Protection Policy” identifies the insured on its face page as “FOP LODGE # 102” and as a “Club” that is “Not For Profit.” The policy both excluded and provided coverage for liquor liability by providing the following in § I(A)(2)(c) under “Exclusions”:
This Insurance does not apply to:
* * *
c. Liquor Liability
“Bodily injury” or “property damage” for which any insured may be held liable by reason of:
(1) Causing or contributing to the intoxication of any person;
(2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or
(3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages.
This exclusion applies only if you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages. [Emphasis added.]
The policy also both excluded and provided coverage for contractual liability by providing in § I(A)(2)(b) under “Exclusions” that the insurance also did not apply to the following:
b. Contractual Liability
“Bodily injury” or “property damage” for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages:
(1) Assumed in a contract or agreement that is an “insured contract”, provided the “bodily injury” or “property damage” occurs subsequent to the execution of the contract or agreement. However, if the insurance under this policy does not apply to the liability of the insured, it also does not apply to such liability assumed by the insured under an “insured contract”.
The meaning of “insured contract” pertinent to this case is found in § V(10) of the policy setting forth various definitions. The parties agree that it means:
That part of any other contract or agreement pertaining to your business ... under which you assume the tort liability of another party to pay for “bodily injury” or “property damage” to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. [Emphasis added.]
At an April 1, 2013 hearing on the parties' motions for summary disposition, the trial court ruled with respect to § I(A)(2)(c) of the policy that the FOPA was not “in the business of ... selling, serving or furnishing alcoholic beverages.” Therefore, the liquor-liability exclusion of the CGL policy did not apply. The trial court first noted that “business” was undefined and opined that if it's defined as purposeful activity, then the exclusion might apply.
But if we look at other definitions in the business, where we talk about on -- ongoing commercial activity to provide a livelihood to a person, in this case an organization, then it wouldn't apply.
The court also found pertinent a distinction found in some cases of “a single activity or a single incident versus a continuous activity,” which favored the FOPA. The court then ruled that the FOPA was not in the business of selling, serving or furnishing alcoholic beverages.
The trial court rejected Auto–Owners' contention that if the FOPA is not in the business of selling alcohol, and the contract between the FOPA and Olympia concerned selling alcohol, then the concession agreement could not be an insured contract because it did not pertain to the FOPA's business. The trial court ruled that the policy definition of “insured contract”—i.e., “pertaining to your business”—was broader than the language “in the business” as used in the liquor-liability exclusion. On this basis, the trial court ruled that the concession agreement pertained to the FOPA's fundraising for its business of civic and charitable activities. Therefore, the contractual-liability exclusion of Auto–Owners' CGL policy did not apply.
For these reasons, the trial court entered an order on April 17, 2013, denying Auto–Owners' motion for summary disposition and granting summary disposition to the FOPA. This order required Auto–Owners to defend and indemnify the FOPA in the underlying dramshop action. On the basis of its ruling on the contractual-liability exclusion, the trial court also ordered that Auto–Owners defend and indemnify Olympia because the concession agreement between the FOPA and Olympia regarding the staffing of beer tents at the three-day Hoedown was an “ insured contract.”
B. DOCKET NOS. 315901 AND 316511
Plaintiff Chad Seils (Seils) is the ex-husband of decedent Carrie Marie Seils and the father of their children, decedent Skyler Seils and Heavyn Seils. On May 15, 2010, Carrie and Skyler were killed at their home in Clinton Township by a man whom Carrie had been dating, defendant Todd Michael Pink (Pink). Pink also shot Carrie's roommate, James Pagano, and seriously injured Heavyn. Following a jury trial in April 2011, Pink was convicted of two counts of first-degree premeditated murder, two counts of felony murder, two counts of assault with intent to murder, four counts of possession of a firearm during the commission of a felony, one count of first-degree home invasion, one count of assaulting or resisting a police officer, and one count of being a felon in possession of a firearm. This Court affirmed Pink's convictions and sentences but remanded for the correction of the judgment of sentence.
At the time, Skyler was three, and Heavyn was five years old.
People v. Pink, unpublished opinion per curiam of the Court of Appeals, issued August 28, 2012 (Docket No. 304909), 2012 WL 3705337.
On August 31, 2011, Seils, as personal representative of the estates of Carrie and Skyler and as next friend of Heavyn, sued the FOPA, Olympia, Pink, and Pink's father, Richard Pink. In relevant part, the first amended complaint alleged that on the evening of Friday, May 14, 2010, and throughout the day on Saturday, May 15, 2010, Pink and Carrie “were engaged in a joint alcohol drinking binge” and that by mid-afternoon, Pink was visibly intoxicated. In the afternoon, Pagano, Pink, and Carrie decided to attend the Hoedown at Hart Plaza. Pagano drove, and Carrie's children went along with the three adults. Seils alleged that Pink purchased and consumed “several beers” from the beer vendors shortly after arriving at the festival, that Pink's behavior became increasingly disruptive and aggressive from his increasing intoxication, and that “he precipitated several near violent confrontations with festival attendees.” Pagano and Carrie decided they should leave the festival to “avoid a brawl from erupting” and insisted that Pink “accompany them before he got himself arrested.” During the drive home, Pink and Carrie engaged in an argument about leaving the festival. Upon arriving at the residence in Clinton Township, Pink drove off in his car and went to the mobile home where his father lived and retrieved a loaded handgun. Upon returning to the Clinton Township residence, Pink kicked in the door, shot Pagano in the head, and then fatally shot Carrie. Pink aimed the gun at Heavyn, but the gun jammed and did not discharge. Pink then chased the children into the kitchen, grabbed a large knife and fork, and stabbed the children multiple times.
The register of actions indicates that the trial court dismissed Richard Pink on June 28, 2013.
In relevant part, the amended complaint alleged that the FOPA was granted a special license by the Liquor Control Commission to serve intoxicating beverages at the festival, that the FOPA sold alcoholic beverages to Pink, who the FOPA knew or should have known was visibly intoxicated in violation of MCL 436.22, and that the furnishing of alcoholic beverages “ caused and/or contributed to the horrific violent crimes” Pink committed while he was severely intoxicated.
MCL 436.22 was the predecessor of the current applicable statute, MCL 436.1801, which has been in effect since April 14, 1998. MCL 436.1801 is commonly referred to as the dramshop act.
In Docket No. 315901, the FOPA appeals by leave granted the trial court's separate April 17, 2013 order denying its motion for summary disposition of Seils's dramshop action on the basis that the actions of Pink in committing first-degree premeditated murder and assault with intent to murder were not reasonably foreseeable such that Seils could not establish the necessary element of proximate causation. The FOPA argued that under the undisputed facts, Pink's actions were deliberate and premeditated and therefore not a foreseeable consequence of serving alcohol to a visibly intoxicated adult and that Pink's specific intent severed any causal chain with respect to any improper serving of alcohol. Olympia filed a concurrence in this aspect of the FOPA's motion below. The trial court ultimately denied the motion, relying on Weiss v. Hodge (After Remand), 223 Mich.App. 620, 567 N.W.2d 468 (1997) (holding that the dramshop act permits imposition of liability for intentional torts), and concluded that the issue of proximate cause was a question of fact.
In Docket No. 316511, Olympia appeals by leave granted the trial court's May 14, 2013 order denying its motion for summary disposition with respect to Seils's dramshop action. The parties argued this motion the same day as the FOPA's motion. In addition to ruling that the issue of proximate cause presented a question of fact for trial, the trial court rejected Olympia's arguments that it could not be held liable under the dramshop act because it was not the liquor licensee and because Seils had failed to provide it with written notice as required by MCL 436.1801(4).
II. DOCKET NO. 315891
A. STANDARD OF REVIEW
This Court reviews de novo a trial court's decision on a motion for summary disposition. DeFrain v. State Farm Mut. Auto. Ins. Co., 491 Mich. 359, 366, 817 N.W.2d 504 (2012). Summary disposition is proper if the evidence, affidavits, pleadings, and admissions viewed in a light most favorable to the other party demonstrate that there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Hastings Mut. Ins. Co. v. Safety King, Inc., 286 Mich.App. 287, 291, 778 N.W.2d 275 (2009); MCR 2.116(C)(10). A trial court's decision regarding declaratory relief is reviewed for an abuse of discretion. Pioneer State Mut. Ins. Co. v. Dells, 301 Mich.App. 368, 376, 836 N.W.2d 257 (2013).
We also review de novo the interpretation of a contract and the legal effect of one of its clauses. Rory v. Continental Ins. Co., 473 Mich. 457, 461, 464, 703 N.W.2d 23 (2005). We construe insurance contracts in the same manner as other contracts, assigning the words in the contract their “ordinary and plain meaning if such would be apparent to a reader of the instrument.” DeFrain, 491 Mich. at 366–367, 817 N.W.2d 504 (quotation marks and citation omitted). A dictionary may be consulted to ascertain the plain and ordinary meaning of words or phrases used in the contract. Citizens Ins. Co. v. Pro–Seal Serv. Group, Inc., 477 Mich. 75, 84, 730 N.W.2d 682 (2007). A “court must look at the contract as a whole and give meaning to all terms.” Auto–Owners Ins. Co. v. Churchman, 440 Mich. 560, 566, 489 N.W.2d 431 (1992). After ascertaining the meaning of a contract's terms, “a court must construe and apply unambiguous contract provisions as written.” Rory, 473 Mich. at 461, 703 N.W.2d 23. A contract is ambiguous when, after considering the entire contract, its words may reasonably be understood in different ways. Farm Bureau Mut. Ins. Co. of Mich. v. Nikkel, 460 Mich. 558, 566, 596 N.W.2d 915 (1999). Thus, when “a fair reading of the entire contract of insurance leads one to understand that there is coverage under particular circumstances and another fair reading of it leads one to understand there is no coverage under the same circumstances the contract is ambiguous....” Raska v. Farm Bureau Mut. Ins. Co. of Mich., 412 Mich. 355, 362, 314 N.W.2d 440 (1982). An ambiguous provision in an insurance contract is construed against the insurer and in favor of coverage. Id.; Heniser v. Frankenmuth Mut. Ins. Co., 449 Mich. 155, 160, 534 N.W.2d 502 (1995).
A two-step analysis is used when interpreting an insurance policy: first, does the general insurance policy provide coverage for the occurrence, and second, if coverage exists, does an exclusion negate the coverage? Hunt v. Drielick, 496 Mich. 366, 373, 852 N.W.2d 562 (2014). “It is the insured's burden to establish that his claim falls within the terms of the policy.” Heniser, 449 Mich. at 172, 534 N.W.2d 502. In this case, the parties do not seriously dispute that if the exclusions at issue do not apply, Auto–Owners' claims come within the general terms of the CGL policy that Auto–Owners issued to the FOPA and also that the general terms of the policy cover the contractual liability of the FOPA to Olympia under the concession agreement. The insurance company has the burden to prove that one of the policy's exclusions applies. Id. at 161 n. 6, 534 N.W.2d 502; Dells, 301 Mich.App. at 378, 836 N.W.2d 257. “Exclusionary clauses in insurance policies are strictly construed in favor of the insured.” Churchman, 440 Mich. at 567, 489 N.W.2d 431. But clear and specific exclusions will be enforced as written so that the insurance company is not held liable for a risk it did not assume. Id.; Group Ins. Co. of Mich. v. Czopek, 440 Mich. 590, 597, 489 N.W.2d 444 (1992).
B. ANALYSIS
Auto–Owners argues that the trial court erred by ruling that the insurance policy's liquor-liability exclusion did not apply on the facts of this case because the FOPA was “in the business of ... selling, serving, or furnishing alcoholic beverages.” Furthermore, Auto–Owners contends that if the FOPA was not in the business of selling alcoholic beverages, for purposes of avoiding the liquor-liability exclusion, then the concession agreement cannot pertain to the FOPA's business because it was totally about the sale of alcohol and, therefore, coverage for Olympia is excluded. We conclude that because the policy in this case did not exclude all coverage for liquor liability and contractual liability and because under the facts and circumstances of this case the exceptions to the exclusions arguably apply, the trial court did not err by strictly construing the exclusions at issue in favor of coverage. Churchman, 440 Mich. at 567, 489 N.W.2d 431. Moreover, in light of foreign caselaw interpreting liquor-liability exclusions analogous to that at issue, a fair reading of the policy as a whole could lead to opposite conclusions regarding coverage; therefore, the policy “should be construed against its drafter and in favor of coverage.” Raska, 412 Mich. at 362, 314 N.W.2d 440.
Cases from other jurisdictions are not binding precedent, but we may consider them to the extent this Court finds their legal reasoning persuasive. Hiner v. Mojica, 271 Mich.App. 604, 612, 722 N.W.2d 914 (2006).
The Auto–Owners policy does not define the key word “business” or the critical phrases “in the business of” and “pertaining to your business.” Consequently, when determining the plain and ordinary meaning of these words and phrases it is appropriate to consult a dictionary. Safety King, 286 Mich.App. at 294, 778 N.W.2d 275. Further, contractual terms must be construed in context, Vushaj v. Farm Bureau Gen. Ins. Co. of Mich., 284 Mich.App. 513, 516, 773 N.W.2d 758 (2009), and read in light of the contract as a whole, Churchman, 440 Mich. at 566, 489 N.W.2d 431.
In Random House Webster's College Dictionary (1992), “business” is defined as
1. an occupation, profession, or trade. 2. the purchase and sale of goods in an attempt to make a profit. 3. a person, partnership, or corporation engaged in commerce, manufacturing, or a service. 4. volume of trade; patronage or custom. 5. a store, office, factory, etc., where commerce is carried on. 6. that with which a person is principally and seriously concerned: Words are a writer's business.
The American Heritage Dictionary, Second College Edition (1985), similarly defines the word “business” as
1. a. The occupation, work, or trade in which a person is engaged: in the wholesale food business. b. A specific occupation or pursuit: really knew her business. 2. Commercial, industrial, or professional dealings: new systems now being used in business. 3. A commercial enterprise or establishment: bought his uncle's business.
And Black's Law Dictionary (10th ed.) defines “business” as
1. A commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain.... 2. Commercial enterprises <business and academia often have congruent aims>. 3. Commercial transactions <the company has never done business in Louisiana>.
While these dictionary definitions support Auto–Owners' argument that “business” could mean any “occupation, profession, or trade,” nothing in the wording of the exception to the liquor-liability exclusion or the rest of the policy supports its argument that the exception is intended to apply only to furnishing alcoholic beverages in a social-host setting. Also, contrary to Auto–Owners' argument that the focus of the exception is on the activity of the insured at the time of the occurrence, the wording of the exception, “if you are in the business of ... selling, serving or furnishing alcoholic beverages,” places emphasis on the defining aspect of the insured. Auto–Owners could have, but did not, place the focus of the liquor-liability exclusion on the nature of the activity giving rise to the claim, as did the policies at issue in some of the out-of-state cases the parties cite, such as McGriff v. U.S. Fire Ins. Co., 436 N.W.2d 859, 861–862 (S.D., 1989), and Fraternal Order of Eagles v. Gen. Accident Ins. Co. of America, 58 Wash.App. 243, 246, 792 P.2d 178 (1990), both involving the Fraternal Order of Eagles. In each of these cases, the liquor-liability exclusion applied when the insured “organization engaged in the business of ... selling or serving alcohol beverages....” Fraternal Order of Eagles, 58 Wash.App. at 246, 792 P.2d 178 (emphasis added); see also McGriff, 436 N.W.2d at 861. Thus, the exclusion focused on “the specific conduct for which liability is alleged, not on the general nature of the organization.” Fraternal Order of Eagles, 58 Wash.App. at 250, 792 P.2d 178. In each case, the court held that the exclusion applied when the Eagles organization operated a bar on an ongoing basis for a profit, which provided benefits to its members and supported its operations. Id. at 248–249, 792 P.2d 178; McGriff, 436 N.W.2d at 862–863.
Cf. Cormier v. Travelers Ins. Co., 618 So.2d 1185, 1187 (La.App., 1993) (opining on an exception to a liquor-liability exclusion identically worded to that in the present case and stating that “[t]he obvious purpose of the phrase ‘in the business of’ is to describe the nature of the activity engaged in and has nothing to do with the specific purpose for which the activity is pursued or the nature of the person or entity engaged in the activity”).
But even in cases in which the liquor-liability exclusion applied when an organization was engaged in the business of selling or serving alcoholic beverages, courts have read the word “business” as limiting its application. One court noted that if the insurance company had “clearly intended to exclude coverage for any activity involving the sale or serving of liquor, clear language to that effect could have been employed, and any reference to ‘business' would have been unnecessary.” Schenectady Co. v. Travelers Ins. Co., 48 A.D.2d 299, 302, 368 N.Y.S.2d 894 (1975). Hence, the word “business” limited the application of the exclusion. Id. The court determined that the exclusion would apply to regular activity for pecuniary gain, i.e., an ongoing venture of selling or serving alcoholic, but that it would not apply when the sale of alcohol occurs infrequently and the risk of dramshop liability would accordingly be limited. Id. at 301–302, 368 N.Y.S.2d 894. This reading of the exclusion is consistent with dictionary definitions and the wording of the exception to the liquor-liability exclusion at issue in this case.
Other courts interpreting the same language as that at issue in this case have similarly found pertinent whether the nonprofit group engaged in alcohol sales on a continuous, ongoing basis. So when a group regularly operates a bar selling alcohol to members and the public, courts have held that the exception to a liquor-liability exclusion did not apply because the insured was “in the business of ... selling, serving or furnishing alcoholic beverages.” In Auto Owners (Mut.) Ins. Co. v. Sugar Creek Mem. Post 3976, 123 S.W.3d 183, 189–190 (Mo.App., 2003), citing dictionary definitions and quoting Sprangers v. Greatway Ins. Co., 182 Wis.2d 521, 540, 514 N.W.2d 1 (1994), the court opined that the relevant inquiry was the nature of the insured's activities and that “a court must determine whether the insured ‘consistently engages in an activity which creates a level of risk which the insurer has declared unacceptable.’ ” The Missouri court concluded that the VFW post that operated a bar open to the public “exposed its insurer to the same risks inherent in other drinking establishments operated by for-profit entities.” Id. at 189. Similar cases finding a liquor-liability exclusion, with an exception worded exactly like that in the present case, applied on the basis of regular alcohol sales include Nichols v. Westfield Ins., Co., 235 Ga.App. 239, 241–242, 509 S.E.2d 149 (1998) (holding that the exclusion applied when a veterans' group operated a bar that regularly sold alcohol to the public, which was a primary source of the group's income), and U.S. Fidelity & Guaranty Co. v. Country Club of Johnston Co., Inc., 119 N.C.App. 365, 372, 458 S.E.2d 734 (1995) (holding that the country club was “in the business of ... selling, serving or furnishing alcoholic beverages” when it did so in “an ongoing operation rather than an occasional or infrequent event”). In general, these cases focused on the nature of the risk created by ongoing alcohol sales rather than the corporate nonprofit character of the organization. See Nichols, 235 Ga.App. at 241, 509 S.E.2d 149 (stating that the focus is on “the nature of risks resulting from the insured's activities, not from its fraternalpurposes ”); Johnston Co. Country Club, 119 N.C.App. at 372, 458 S.E.2d 734 (stating that “it is irrelevant whether the insured is a nonprofit organization” when the sale of alcoholic beverages is “a permanent, ongoing operation”).
A case from another jurisdiction with facts most similar to the facts of the instant case, and that construes the same policy language, is Mut. Serv. Cas. Ins. Co. v. Wilson Twp., 603 N.W.2d 151 (Minn.App., 1999). In that case, the township and its fire department annually held a one-day fundraiser at which beer was sold under a temporary license. Id. at 152. A patron at the event became obviously intoxicated and later was in an automobile accident. At issue was whether the township's general-liability policy, with a liquor-liability exclusion identically worded to that in the instant case, provided coverage for the dramshop action filed by the injured party. Id. at 152–153. On the basis of dictionary definitions, the court found the phrase “in the business of” to be “commonly understood to refer to a commercial enterprise or activity.” Id. at 153–154. The court held that the exclusion did not apply to the township's commercial general-liability policy because “the insured was a nonprofit organization that did not sell alcoholic beverages as part of a permanent and ongoing commercial venture....” Id. at 155.
Because the insurance policy in this case was sold to a nonprofit group whose primary purpose and activities were charitable and civic but which also engaged in limited annual fundraising through alcohol sales permitted under a temporary license, we conclude that the trial court did not err by ruling that the FOPA was not “in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages.” Consequently, the trial court did not abuse its discretion by ruling that the exception to the liquor-liability exclusion applied and that the policy provided coverage for Seils's dramshop action. Our conclusion is buttressed by the principle that insurance policy exclusions must be strictly construed against the insurer and in favor of coverage. Hunt, 496 Mich. at 373, 852 N.W.2d 562; Czopek, 440 Mich. at 597, 489 N.W.2d 444. Finally, even if a fair reading of the policy as a whole and applied to the facts and circumstances of this case could lead to opposite and reasonable conclusions regarding coverage, such a tie goes against the insurer and in favor of the insured. Raska, 412 Mich. at 362, 314 N.W.2d 440.
We also conclude that the trial court properly rejected Auto–Owners' argument that the term “business” must be construed consistently throughout the contract. Rather, the word “business” must be construed in context and read in light of the contract as a whole. See Churchman, 440 Mich. at 566, 489 N.W.2d 431; Vushaj, 284 Mich.App. at 515–516, 773 N.W.2d 758. A clearly different context surrounds the term “business” in the contractual-liability exclusion—the definition of “insured contract”—than in the exception to the liquor-liability exclusion. An “insured contract,” by policy definition, is one “pertaining to your [the FOPA's] business.” The word “pertain” broadly means “[t]o have reference; relate[.]” Random House Webster's College Dictionary (1992).
Thus, the trial court correctly ruled that the FOPA was not “in the business of” selling alcoholic beverages as stated in the exception to the liquor-liability exclusion. But at the same time, the concession agreement “pertained” or related to the FOPA's business because it related to the FOPA's fundraising activities for its “business” of civic and charitable activities. So, in this context, the word “business” can fairly be read as “occupation, profession, or trade,” Random House Webster's College Dictionary (1992), or “specific occupation or pursuit,” The American Heritage Dictionary, Second College Edition (1985). Fundraising was necessary for the FOPA's “business” or “pursuit” of charitable and civic activities, and the concession agreement clearly related to or pertained to the FOPA's “business” or “pursuit” of charitable and civic activities. Thus, the trial court correctly ruled that the exception to the contractual-liability exclusion applied because the concession agreement “pertain[ed] to [the FOPA's] business.”
Moreover, as with the liquor-liability exclusion, the contractual-liability exclusion must be strictly construed against the insurer and in favor of coverage. Churchman, 440 Mich. at 567, 489 N.W.2d 431; Czopek, 440 Mich. at 597, 489 N.W.2d 444. We therefore affirm the trial court's declaratory ruling regarding insurance coverage: both the liquor-liability exclusion and the contractual-liability exclusion do not apply on the facts of this case.
III. DOCKET NOS. 315901 AND 316511: PROXIMATE CAUSE
A. STANDARD OF REVIEW
This Court reviews de novo a trial court's decision on a motion for summary disposition. West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003). Under MCR 2.116(C)(10), the moving party must specifically identify the issues for which no factual dispute exists and must support this claim with evidence such as affidavits, depositions, admissions, or other documents. MCR 2.116(G)(4); Coblentz v. City of Novi, 475 Mich. 558, 569, 719 N.W.2d 73 (2006). If the moving party meets its initial burden, the opposing party then has the burden of showing with evidentiary materials the substance of which would be admissible that a genuine issue of disputed material fact exists. MCR 2.116(G)(4) and (6). “The adverse party may not rest upon mere allegations or denials of a pleading, but must, by affidavits or other appropriate means, set forth specific facts to show that there is a genuine issue for trial.” Patterson v. Kleiman, 447 Mich. 429, 432, 526 N.W.2d 879 (1994).
The trial court in deciding the motion must view the substantively admissible evidence submitted up to the time of the motion in a light most favorable to the party opposing the motion. Maiden v. Rozwood, 461 Mich. 109, 120–121, 597 N.W.2d 817 (1999). The trial court must consider the pleadings, affidavits, depositions, admissions, and any other documentary evidence submitted in a light most favorable to the nonmoving party to decide whether a genuine issue of material fact exists. Id. at 120, 597 N.W.2d 817; MCR 2.116(G)(5). Summary disposition may be granted if there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. West, 469 Mich. at 183, 665 N.W.2d 468. A genuine issue of material fact exists if the record, viewed in a light most favorable to the nonmoving party, leaves open a matter on which reasonable minds could differ. Allison v. AEW Capital Mgt., LLP, 481 Mich. 419, 425, 751 N.W.2d 8 (2008).
B. ANALYSIS
For Seils to establish his dramshop action he must show that the FOPA violated MCL 436.1801(2) by selling, furnishing, or giving alcohol to Pink while he was visibly intoxicated and that this statutory violation was “a proximate cause of [Seils's] damage, injury, or death,” MCL 436.1801(3). Because Seils points to no evidence from which the FOPA could have reasonably foreseen Pink's intentional criminal acts and because Pink's decision to commit premeditated, deliberate murder (and other assaults) was an intervening or superseding cause of Seils's damages, the trial court erred by not granting summary disposition to the FOPA and Olympia on the basis that no reasonable jury could find that the FOPA's alleged statutory violation was a proximate cause of the injury that Seils alleged. See Nichols v. Dobler, 253 Mich.App. 530, 532, 655 N.W.2d 787 (2002) (“Generally, proximate cause is a factual issue to be decided by the trier of fact. However, if reasonable minds could not differ regarding the proximate cause of the plaintiff's injury, the court should decide the issue as a matter of law.”).
MCL 436.1801(3) “imposes liability on any licensee that, by the unlawful sale or furnishing of alcoholic liquor to a minor or visibly intoxicated person, has ‘caused or contributed’ to the intoxication that is a proximate cause of damage, injury, or death.” Hashem v. Les Stanford Oldsmobile, Inc., 266 Mich.App. 61, 74, 697 N.W.2d 558 (2005). Although a dramshop action may be premised on an AIP's assaultive criminal conduct, there still must be “sufficient evidence that furnishing the alcohol to the AIP is a proximate cause of the violent behavior.” Weiss, 223 Mich.App. at 628–631, 567 N.W.2d 468.
In Weiss, this Court addressed the issue of whether a liquor licensee may be held liable in tort for an AIP's intentional physical attack on another patron, which occurred in the parking lot of the bar where the AIP had been served alcohol until 2:00 a.m. The jury found that the defendant's bartender furnished alcoholic liquor to the AIP while he was visibly intoxicated and that the furnishing of liquor to the AIP was a proximate cause of the plaintiff's injuries. On appeal, the defendant bar owner argued that while the statute contemplated liability for negligent torts, it did not create liability for intentional torts. Id. at 623–625, 567 N.W.2d 468. This Court analyzed the predecessor of MCL 436.1801, MCL 436.22, and noted that the statute required the sale of alcohol to be a proximate cause of the resulting injury, but did “not limit liability only to negligently inflicted injuries.” Id. at 625–627, 567 N.W.2d 468. The Weiss Court further discussed prior cases that supported this interpretation of former MCL 436.22(4). Id. at 628–633, 567 N.W.2d 468. The Court rejected the defendant's argument, holding that there was “clear precedent for predicating dramshop liability upon assaultive conduct of an AIP where there is sufficient evidence that furnishing the alcohol to the AIP is a proximate cause of the violent behavior.” Id. at 630, 567 N.W.2d 468.
Proximate cause is “ ‘that which in a natural and continuous sequence, unbroken by any new, independent cause, produces the injury, without which such injury would not have occurred....’ ” McMillian v. Vliet, 422 Mich. 570, 576, 374 N.W.2d 679 (1985) (citation omitted). Proof of proximate cause requires establishing two elements: (1) cause in fact and (2) legal cause or proximate cause. Skinner v. Square D Co., 445 Mich. 153, 162–163, 516 N.W.2d 475 (1994). “Cause in fact requires that the harmful result would not have come about but for the defendant's ... conduct.” Haliw v. Sterling Hts., 464 Mich. 297, 310, 627 N.W.2d 581 (2001). “A plaintiff must adequately establish cause in fact in order for legal cause or ‘proximate cause’ to become a relevant issue.” Skinner, 445 Mich. at 163, 516 N.W.2d 475. Whether proximate cause or legal cause is established normally requires examining the foreseeability of the consequences and whether the defendant should be held legally responsible for those consequences. Haliw, 464 Mich. at 310, 627 N.W.2d 581; Skinner, 445 Mich. at 163, 516 N.W.2d 475; Nichols, 253 Mich.App. at 532, 655 N.W.2d 787.
As noted in the McMillian definition of “proximate cause,” the chain of causation between the defendant's conduct and the plaintiff's injuries may be broken by an intervening or a superseding cause. An “intervening cause” is “ ‘one which actively operates in producing harm to another after the actor's negligent act or omission has been committed.’ ” McMillian, 422 Mich. at 576, 374 N.W.2d 679 (citation omitted). “An intervening cause breaks the chain of causation and constitutes a superseding cause which relieves the original actor of liability, unless it is found that the intervening act was ‘reasonably foreseeable.’ ” Id. Thus, the issue of proximate causation requires focusing on “whether the result of conduct that created a risk of harm and any intervening causes were foreseeable.” Jones v. Detroit Med. Ctr., 490 Mich. 960, 960, 806 N.W.2d 304 (2011).
The FOPA argues, citing Graves v. Warner Bros., 253 Mich.App. 486, 493, 656 N.W.2d 195 (2002), that Pink's premeditated actions of killing and injuring the victims were by their nature unforeseeable. Graves concerned the infamous “Jenny Jones” case, in which Jonathan Schmitz was invited to appear on a talk show and the victim, Scott Amedure, confessed his crush on Schmitz; three days after the taping of the show, Schmitz murdered Amedure. Amedure's estate then brought a civil action against the producers of the talk show. This Court held that the “defendants owed no legally cognizable duty to protect plaintiffs' decedent from the homicidal acts of a third party.” Id. at 488, 656 N.W.2d 195. The Court analyzed whether a duty of care existed under the standards discussed in MacDonald v. PKT, Inc., 464 Mich. 322, 628 N.W.2d 33 (2001), which addressed a merchant's duty to protect business invitees from the criminal acts of third parties. This Court held that invitors have “a duty to respond reasonably to situations occurring on their premises that pose a risk of imminent and foreseeable harm to identifiable invitees,” but “no duty to otherwise anticipate and prevent the criminal acts of third parties.” Graves, 253 Mich.App. at 495, 656 N.W.2d 195. In concluding that the show's producers did not owe Amedure a duty of care, the Graves Court determined that there had been no evidence putting the defendants on notice that Schmitz posed a risk of violence to others. Id. at 499, 656 N.W.2d 195.
Graves is relevant to the instant case because both the question of duty and proximate cause “ ‘depend in part on foreseeability.’ ” Babula v. Robertson, 212 Mich.App. 45, 53, 536 N.W.2d 834 (1995), quoting Moning v. Alfono, 400 Mich. 425, 439, 254 N.W.2d 759 (1977). “In fact, the question of proximate cause has been characterized as ‘a policy question often indistinguishable from the duty question.’ ” Babula, 212 Mich.App. at 54, 536 N.W.2d 834, quoting Moning, 400 Mich. at 438, 254 N.W.2d 759.
Babula, in which the defendant husband, Brian Robertson, molested the child of the defendant wife's sister while the defendant wife, Janice Robertson, was babysitting the child, is also instructive. Babula, 212 Mich.App. at 46–47, 536 N.W.2d 834. Brian was convicted of second-degree criminal sexual conduct. Later, the plaintiff brought a civil suit against Brian and added a count of negligence against Janice. Id. at 47, 536 N.W.2d 834. The trial court granted Janice's motion for summary disposition on the bases that “Janice owed no duty to the child and that alleged negligence attributable to Janice was not the proximate cause of the child's injury.” Id. at 48, 536 N.W.2d 834. This Court determined that the injuries Brian inflicted “were wholly unforeseeable.” Id. at 51, 536 N.W.2d 834. Relevant to the instant case was this Court's comment that “[t]he mere fact that Brian was allegedly intoxicated when Janice went to sleep was not sufficient to put her on notice that Brian might injure the child.” Id. at 53, 536 N.W.2d 834. So, while the issue of proximate cause is ordinarily a question for the trier of fact, the Court determined “that reasonable minds could not differ with regard to whether alleged negligence attributable to Janice was a proximate cause of the child's injury.” Id. at 54, 536 N.W.2d 834. The Court further held “that Brian's act of molesting the child was an unforeseeable intervening cause of the child's injury” and affirmed the trial court's grant of summary disposition to Janice. Id.
On the other hand, Michigan has “long recognized that criminal acts by third parties can be foreseeable.” Dawe v. Dr. Reuven Bar–Levav & Assoc., P.C. (On Remand), 289 Mich.App. 380, 394, 808 N.W.2d 240 (2010). The Dawe case was a malpractice action arising out of injuries the plaintiff received in a murderous rampage perpetrated by a former patient (Joseph Brooks) at the defendants' psychiatric office where the plaintiff was being treated. Among the theories the plaintiff asserted was that the defendants had violated a “mental-health professional's common-law duty to warn or protect third parties from dangerous patients.” Id. at 387, 808 N.W.2d 240. An issue on appeal was proximate cause and whether Brooks's criminal actions were reasonably foreseeable. The Court concluded that because the plaintiff presented evidence from which a reasonable jury could find that the “defendants knew or should have known that Brooks would form improper emotional attachments to persons in his group therapy and that he might seek out those persons long after the termination of his participation in the group,” the issue of proximate cause was properly left for the jury to determine. Id. at 394–395, 808 N.W.2d 240 (quotation marks omitted).
Seils points to no evidence that would have put the FOPA, Olympia, or anyone else at the Hoedown on notice that Pink would later premeditate and deliberately commit the horrific crimes at issue in this case. Seils instead speaks only of generalities, that it is well known that drinking alcohol can lead to violent behavior. In particular, Seils cites dicta from Terpening v. Gillimino, Inc., unpublished opinion per curiam of the Court of Appeals, issued January 12, 2001 (Docket No. 221275), pp. 2–3: “It is foreseeable that furnishing alcohol to an already drunk individual will prompt that individual to display raucous and even violent behavior causing injury to himself and others.” While an unpublished opinion of this Court is not precedentially binding under the principle of stare decisis, MCR 7.215(C)(1), it is ironic that the Terpening Court determined that the plaintiff in that case had not established proximate cause when “[i]t is not foreseeable that selling a minor a beer would result in plaintiff, a third party, being beaten up at his home later that evening.” Id. at 2. At any rate, the Terpening Court in its dicta was referring to Weiss, a dramshop case in which a drunken brawl occurred outside a bar after closing. While an intoxication-fueled assault occurring at or near the dramshop, as in Weiss, or an auto accident caused by a drunken driver might be reasonably foreseeable results of “selling, giving, or furnishing of alcoholic liquor to [a] minor or visibly intoxicated person,” MCL 436.1801 (3), no evidence exists in this case that would have put the FOPA and Olympia on notice that violating the statute would lead Pink to deliberately, and with premeditation, commit the crimes at issue here. See, e.g., Rogalski v. Tavernier, 208 Mich.App. 302, 306–307, 527 N.W.2d 73 (1995) (holding in the context of social-host liability that reasonable minds could not disagree that the criminal acts of the minors were not foreseeable consequences of serving alcohol to underage drinkers). Consequently, we conclude the alleged statutory violation in this case cannot be established as a proximate cause of Seils's damages. MCL 436.1801(3); Graves, 253 Mich.App. at 499–500, 656 N.W.2d 195; Babula, 212 Mich.App. at 53–54, 536 N.W.2d 834.
“Obiter dicta are not binding precedent. Instead, they are statements that are unnecessary to determine the case at hand and, thus, ‘lack the force of an adjudication.’ ” People v. Peltola, 489 Mich. 174, 190 n. 32, 803 N.W.2d 140 (2011) (citation omitted).
Our conclusion that Seils has failed to present evidence to establish proximate cause is supported by caselaw from other states that the FOPA and Olympia cite regarding whether a dramshop violation could be a proximate cause of the subsequent violent criminal act of an intoxicated person. See Fast Eddie's v. Hall, 688 N.E.2d 1270, 1274–1275 (Ind.App., 1997) (holding that the dramshop violation was not the proximate cause of a drunken bar patron's sexual assault and murder by another drunken bar patron because the series of events leading to the crimes were not reasonably foreseeable and the AIP's intentional criminal acts were an intervening cause), Merchants Nat'l Bank v. Simrell's Sports Bar & Grill, Inc., 741 N.E.2d 383, 389 (Ind.App., 2000) (holding that proximate cause was not established when one bar patron shot and killed another bar patron after leaving the bar, which was the “intervening criminal act that broke the causal chain”), Boggs v. Bottomless Pit Cooking Team, 25 S.W.3d 818, 825 (Tex.App., 2000) (holding that the dramshop violation was not a proximate cause of death when after a minor traffic accident the allegedly intoxicated passenger in one car stabbed and killed the driver of other car; the AIP's criminal actions were not foreseeable), Reilly v. Tiergarten Inc., 430 Pa.Super. 10, 15, 633 A.2d 208 (1993) (holding that the actions of a teen improperly served who attacked his father and whom police shot were not foreseeable or the natural and probable result of the dramshop violation), and Skipper v. United States, 1 F.3d 349, 353 (C.A.5, 1993) (holding under Texas law that first-degree murder committed by an AIP was an unforeseeable, superseding cause extinguishing dramshop liability).
IV. OTHER ISSUES IN DOCKET NO. 316511
Although Olympia's remaining issues could be considered moot given our resolution of the proximate cause issue, we briefly discuss them as an alternative basis for resolving Olympia's appeal. We conclude that both of Olympia's other arguments have merit and would alternatively warrant granting summary disposition to it on Seils's dramshop claim.
An issue is moot when a judgment, if entered, cannot have any practical legal effect on the existing controversy. People v. Richmond, 486 Mich. 29, 34–35, 782 N.W.2d 187 (2010), clarified on rehearing with respect to other issues 486 Mich. 1041, 783 N.W.2d 703 (2010).
A. DRAMSHOP VICARIOUS LIABILITY
Olympia argues that the dramshop act is a remedial statute, requiring that it be strictly construed. The act imposes duties on a “retail licensee” who is the “person” subject to liability under the act. MCL 436.1801(2) and (3); Guitar v. Bieniek, 402 Mich. 152, 166, 262 N.W.2d 9 (1978). Olympia further argues that the Legislature did not intend “to expand the class of persons who may be vicariously liable” beyond “the narrow and restrictively drawn civil liability provisions” of the act. Guitar, 402 Mich. at 166–167, 262 N.W.2d 9. Further, because there is no express provision for vicarious liability under the statute, it imposes liability only on the liquor licensee. We agree. This issue presents a question of statutory interpretation, which is reviewed de novo. Niles Twp. v. Berrien Co. Bd. of Comm'rs, 261 Mich.App. 308, 312, 683 N.W.2d 148 (2004).
In rejecting Olympia's argument on this issue, the trial court relied on Kerry v. Turnage, 154 Mich.App. 275, 397 N.W.2d 543 (1986). Kerry is distinguishable and not binding precedent. MCR 7.215(J)(1). Moreover, Kerry was overruled sub silentio by McGuire v. Sanders, 474 Mich. 1098, 711 N.W.2d 77 (2006), rev'g 268 Mich.App. 719, 708 N.W.2d 469 (2005). In McGuire, 474 Mich. at 1098, 711 N.W.2d 77, our Supreme Court reversed this Court's holding in McGuire, 268 Mich.App. at 729, 708 N.W.2d 469, that one licensee (Hamilton Placement) could be found liable under the dramshop act for exerting control over the selling licensee (Leggs Lounge) “through shared managers or employees.” Moreover, even it were good law, Kerry was decided on the basis that the licensee in that case, a group of athletic boosters, was an alter ego of the school district. In this case, the FOPA and Olympia are separate and distinct legal entities.
The dramshop act does not permit imposition of liability on a third party under a common-law theory of vicarious liability that the third party is the principal and the liquor licensee the agent. Under the dramshop act, the only vicarious liability that exists is for liability flowing upward to the “retail licensee” from its “clerk, agent, or servant” who actually sells, furnishes, or gives “alcoholic liquor to a person who is visibly intoxicated.” MCL 436.1801(2). Nothing may be read into a clear statute that is not within the manifest intent of the Legislature as discerned from the language of the statute itself. See People v. Breidenbach, 489 Mich. 1, 10, 798 N.W.2d 738 (2011).
Moreover, statutes in derogation of the common law are narrowly construed. Rusinek v. Schultz, Snyder & Steele Lumber Co., 411 Mich. 502, 507–508, 309 N.W.2d 163 (1981). “The general rule at common law was that a tavern owner was not liable for furnishing alcoholic beverages to a customer who became intoxicated and who, as a result of his own intoxication, either injured himself or an innocent third person.” Jackson v. PKM Corp., 430 Mich. 262, 266, 422 N.W.2d 657 (1988). The Jackson Court opined that “ ‘the Legislature intended the dramshop act to be a complete and self-contained solution to a problem not adequately addressed at common law and the exclusive remedy for any action arising under “dramshop related facts.” ’ ” Id. at 274–275, 422 N.W.2d 657, quoting Millross v. Plum Hollow Golf Club, 429 Mich. 178, 185–186, 413 N.W.2d 17 (1987). Further, the dramshop act provides that it is “the exclusive remedy for money damages against a licensee arising out of the selling, giving, or furnishing of alcoholic liquor to a minor or intoxicated person.” MCL 436.1801(10). In sum, the dramshop act is in derogation of the common law, provides the exclusive remedy against a “retail licensee” regarding selling, furnishing, or giving alcoholic beverages to a minor or visibly intoxicated person, and may not be expanded beyond its plain terms by common-law legal theories to reach nonlicensees.
Consequently, we conclude that because Olympia was not the liquor licensee in this case, this argument provides an alternative basis for reversing the trial court and remanding for entry of an order granting summary disposition to Olympia regarding Seils's dramshop claim.
B. STATUTORY NOTICE
As a second alternative basis for reversing the trial court, Olympia argues that Seils failed to give Olympia timely written notice of its intent to seek damages under the dramshop act as required by MCL 436.1801(4). We agree. This issue also presents a question of statutory interpretation, which is reviewed de novo. Niles Twp., 261 Mich.App. at 312, 683 N.W.2d 148.
MCL 436.1801(4) provides:
An action under this section shall be instituted within 2 years after the injury or death. A plaintiff seeking damages under this section shall give written notice to all defendants within 120 days after entering an attorney-client relationship for the purpose of pursuing a claim under this section. Failure to give written notice within the time specified shall be grounds for dismissal of a claim as to any defendants that did not receive that notice unless sufficient information for determining that a retail licensee might be liable under this section was not known and could not reasonably have been known within the 120 days. [Emphasis added.]
The pertinent facts underlying this argument are as follows. On April 11, 2011, Seils entered a contingent-fee agreement with attorney Peter J. Parks to pursue claims for damages against responsible parties concerning the events occurring on or about May 14, 2010. On May 25, 2011, Parks sent Freedom of Information Act requests to the Liquor Control Commission and the city of Detroit requesting information related to the alcoholic beverage concession at the 2010 Hoedown. Parks at some point obtained a copy of the concession agreement between Olympia and the FOPA that stated in its preamble that Olympia had been engaged by CBS Radio and Live Nation to manage food and beverage sales at the 2010 Hoedown at Hart Plaza and that Olympia desired to engage the FOPA to conduct the purchase and sale of alcoholic beverages.
On June 17, 2011, Parks sent a letter to Robert Estabrook of the FOPA, which stated that he intended to pursue a dramshop claim against the FOPA. The letter stated that it was Seils's position that Pink “was clearly visibly intoxicated prior to being furnished intoxicants (beer) by vendors operating under the temporary liquor license issued to the [FOPA] contrary to law.” The letter asserted claims of liability under MCL 436.1801 and stated that the letter was intended to afford the FOPA formal notice under the act of Seils's claims.
On August 9, 2011, Parks sent a letter to Robert Stefanski of Olympia that contained a “courtesy copy” of the letter Parks sent to the FOPA. Parks's letter to Stefanski stated that Parks had not received a reply from the FOPA or its insurance carrier; the letter did not assert a claim under MCL 436.1801 against Olympia. Also, on August 9, 2011, Parks sent to the Clinton Township Police Department and the Roseville Police Department letters identical in content to that sent to Olympia. The trial court ruled that the August 9, 2011 letter to Stefanski, which contained a “courtesy copy” of the notice sent to the FOPA, was sufficient notice to Olympia of Seils's dramshop claim against Olympia.
We conclude that the August 9, 2011 letter Parks sent to Stefanski was by its plain terms merely a “courtesy copy” notice of Seils's intent to pursue a dramshop claim against the FOPA. It cannot, by its plain terms, be read as a notice of a dramshop claim against Olympia. The statute clearly and unambiguously requires written notice to “all defendants,” and “any defendants” not timely noticed may move for dismissal. MCL 436.1801(4). Because of this clear language, Seils's agency argument is without merit.
While the statute does not specify what the notice must contain, read in context with the first sentence regarding when “[a]n action” must be brought, it is patent that the written notice must, at a minimum, provide notice to the defendant of the plaintiff's intent to pursue “[a]n action” under the dramshop act against the notified defendant. Parks's August 9, 2011 letter did not do so with respect to Olympia. A plaintiff's “[f]ailure to give written notice within the time specified shall be grounds for dismissal of a claim as to any defendants that did not receive [the] notice” required by MCL 436.1801(4). To the extent the trial court relied on a finding that Olympia did not show that it had suffered any prejudice, we must conclude that the trial court also erred. See Chambers v. Midland Country Club, 215 Mich.App. 573, 578, 546 N.W.2d 706 (1996); Lautzenheiser v. Jolly Bar & Grille, Inc., 206 Mich.App. 67, 70, 520 N.W.2d 348 (1994).
We therefore conclude that Seils's failure to give Olympia the timely written notice required by MCL 436.1801(4) provides another alternative basis for reversing the trial court's denial of Olympia's motion for summary disposition, and we remand for entry of an order granting summary disposition to Olympia regarding Seils's dramshop claim.
V. CONCLUSION
For the reasons discussed in this opinion, we affirm the trial court in Docket No. 315891, but in Docket No. 315901 and Docket No. 316511 we reverse the trial court's denial of summary disposition to the defendants on Seils's dramshop complaint. We remand to the trial court for entry of orders in Docket Nos. 315901 and 316511 granting summary disposition to the defendants in those cases and for any further proceedings consistent with this opinion. We do not retain jurisdiction. Defendants, as the prevailing parties in these cases, may tax costs under MCR 7.219.
BOONSTRA, P.J., and MARKEY and KIRSTEN FRANK KELLY, JJ., concurred.