Chambers v. Midland Country Club

Full title: CHAMBERS v MIDLAND COUNTRY CLUB

Court: Michigan Court of Appeals

Date published: Feb 27, 1996

215 Mich. App. 573 (Mich. Ct. App. 1996)

546 N.W.2d 706

Opinion

Docket No. 168155.

Submitted November 8, 1995, at Grand Rapids.

Decided February 27, 1996, at 9:05 A.M. Leave to appeal sought.

Skinner, Wildeboer Ogden (by John L. Wildeboer), for the plaintiff.

Barsky Associates, P.C. (by Seth H. Barsky and Andrew S. Fowler), for the defendant.

Before: O'CONNELL, P.J., and BANDSTRA and J.M. BATZER,^_ JJ.

_ Circuit judge, sitting on the Court of Appeals by assignment.

BANDSTRA, J.

This matter arises out of an automobile accident. Scott Dexter, who was allegedly intoxicated and had recently left a wedding held at The Midland Country Club (Midland), started a chain reaction car accident in which plaintiff's car was hit and plaintiff was injured. Plaintiff brought a dramshop action against Midland, but Midland was granted summary disposition pursuant to MCR 2.116(C)(7) on the basis that plaintiff had failed to provide Midland timely notice as required by the dramshop act. Plaintiff appeals as of right, and we affirm.

The accident occurred on December 1, 1990. The accident report prepared by the investigating police officer indicated that Dexter appeared to have been drinking and admitted doing so. The accident report also indicated that Dexter stated that he had just come "from a wedding at the Country club and that he only drank two or three beers[;] he had not drank [sic] since leaving the Wedding." Although this report was apparently available to plaintiff soon after the accident, plaintiff did not notify Midland of her intent to pursue a dramshop claim until April 30, 1992, about sixteen months after the accident and more than nine months after she retained an attorney on July 15, 1991. The police report does not specify which country club was referenced, but plaintiff apparently understood that the police report referred to Midland and does not argue this as a reason for her late notice to Midland.

The dramshop act, MCL 436.22(5); MSA 18.993(5), states in pertinent part:

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 such 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.

Plaintiff first argues that her notice to Midland was timely under this statute. She contends that evidence sufficient to require notice to Midland was not available until she took Dexter's deposition in March of 1992, just before notice was provided to Midland. We disagree. The police report, which was available to plaintiff shortly after the accident, was sufficient to indicate that Midland "might be liable" under the clear language of the statute. The relevant inquiry under the statute is plaintiff's knowledge within 120 days of retaining counsel. Although plaintiff points to evidence that indicated that Midland might not have served alcohol to Dexter (i.e., Dexter's answers to interrogatories and a Midland employee's deposition), that evidence was not discovered within that 120-day period. Even if all of this evidence had been discovered by plaintiff earlier, during the 120-day period, it would have only raised a factual issue and thus Midland might still have been liable. In other words, even if plaintiff had been aware of evidence contrary to the police report during the 120-day period, she would have been required to give Midland notice under the statute.

Further, the statute does not require that a plaintiff possess admissible evidence of a defendant's liability.

Whether the facts available to plaintiffs during the 120 days were enough to ensure a solid, fully verifiable dramshop act claim is irrelevant because the notice provision only requires notice where a dramshop owner might be liable under the act. [ Lautzenheiser v Jolly Bar Grille, Inc, 206 Mich. App. 67, 70; 520 N.W.2d 348 (1994) (emphasis in original).]

Plaintiff's argument that the statute requires admissible evidence is, in other words, directly contradicted by the clear language of the statute.

Plaintiff also argues that Midland did not meet its burden of showing that the attorney-client relationship she entered into on July 15, 1991, was for the purpose of pursuing a dramshop action. Plaintiff resisted discovery regarding her relationship with her attorney under the doctrine of attorney-client privilege, and Midland was only allowed to learn, under court order, the date that plaintiff retained counsel. On appeal, plaintiff acknowledges that, as she reads the statute, "a Defendant's burden . . . to prove the purpose of the attorney-client [relationship] is impossible to meet without court-enforced violation of the attorney-client privilege."

We do not think the statute requires this kind of abrogation of the attorney-client privilege. Plaintiff cites no precedent (and we are aware of none) indicating that information regarding the date upon which an attorney-client relationship is entered is protected by the privilege. A defendant may thus establish when a plaintiff has entered into an attorney-client relationship following an accident involving an allegedly intoxicated driver. Upon that proof, we will presume that the attorney-client relationship was "for the purpose of pursuing a claim under this section" without requiring that a defendant must abrogate plaintiff's attorney-client privilege in order to prove that this is the case. See Lautzenheiser, supra at 70. There is no dispute here that notice was provided to Midland later than 120 days after plaintiff retained counsel regarding the accident, and plaintiff's argument is without merit.

Finally, plaintiff argues that the 120-day notice provision is in violation of constitutional equal protection and due process guarantees, unless we require that Midland show some prejudice resulting from late notice. In Brown v JoJo-Ab, Inc, 191 Mich. App. 208, 211-212; 477 N.W.2d 121 (1991), the majority held that the dramshop act does not require a defendant to show prejudice in order for a claim to be dismissed for lack of timely notice. The majority decided this question in the face of a dissent that relied upon the same constitutional arguments and precedents that plaintiff cites in the instant case. We consider the Brown majority opinion to have considered and rejected plaintiff's argument regarding the need for a showing of prejudice under due process analysis. Under Administrative Order No. 1994-4, we are bound by the Brown majority holding that prejudice is not required.

Further, we conclude that Brown was correctly decided. Plaintiff places primary reliance for her argument upon Carver v McKernan, 390 Mich. 96; 211 N.W.2d 24 (1973), but this precedent is factually distinguishable. Most notably, the notice provision before us begins to run only when a plaintiff retains an attorney, and there is an exception to the notice requirement when a plaintiff does not and could not reasonably have had sufficient information to know that a defendant might be liable. We do not think that Carver requires that we read a prejudice requirement into the statute at issue here.

We affirm.