The only dispute, they submitted, was whether Burlington and Evanston acted in bad faith. They contended that such questions could be litigated in an action on a writ of garnishment as stated by this Court in Rutter v King, 57 Mich.App. 152; 226 N.W.2d 79 (1974). They further argued that they had a right to pursue the action in state court
The value of the bad faith claim is controlled by the amount of the underlying personal injury judgment, and it is considered "sufficiently liquidated" for the judgment creditor to proceed directly against the insurer by way of garnishment.Rutter v. King, 57 Mich. App. 152, 189, 226 N.W.2d 79 (1974). It appears, after Rutter, that Michigan now allows the injured person, as judgment creditor, to bring a garnishment proceeding against the insurer.
In construing a similar rule, in a factually analogous case, a Michigan appellate court stated, "[a] contingent claim is one where liability hinges upon some future event, which may or may not occur; it is dependent upon some condition as yet unperformed." Rutter v. King, 57 Mich. App. 152, 226 N.W.2d 79, 88 (1974). Whatever rights Eller (and derivatively Pippin) has against National Union have vested; all of the events that fix National Union's liability have occurred.
The court reasoned that it was a fair and reasonable inference that the insured contemplated possible injury to unidentified third parties when they entered into the contract and that the insurance was, therefore, for the benefit of injured third parties. Shingleton represents the minority position in direct action cases, see Rutter v. King, 57 Mich. App. 152, 158 and 158 n. 6, 226 N.W.2d 79, 83 and 83 n. 6 (1974), a position which no Michigan court has yet adopted. Indeed, the courts, in applying the Third-Party Beneficiary Statute in other areas have applied the statute narrowly.
Jurisdictions which favor simple negligence and standards just short of fraud are collected at 40 ALR2d 168 and 34 ALR3d 533. See City of Wakefield, supra, Bentley v Farmers' Ins Exchange, 289 F.2d 59 (CA 6, 1961), Rutter v King, 57 Mich. App. 152; 226 N.W.2d 79 (1974), Commercial Union v Medical Protective Co, supra, Jones v Nat'l Emblem Ins Co, 436 F. Supp. 1119 (ED Mich, 1977), McCoy v Zurich Ins Co, 509 F. Supp. 1106, 1108 (ED Mich, 1981), aff'd 703 F.2d 564 (CA 6, 1982), and Jackson v St Paul-Mercury Indemnity Co, 339 F.2d 40 (CA 6, 1964). Although the right to recover on a bad-faith claim is generally conditioned upon proving "bad faith" as it is defined in this opinion, we agree with the Court of Appeals that the "bad faith" definition, "conscious doing of a wrong because of dishonest purpose or moral obliquity," as used in Medley v Canady, 126 Mich. App. 739, 748; 337 N.W.2d 909 (1983), is correct when limited to bad-faith cases involving § 6 of the Uniform Trade Practices Act, MCL 500.2006(4); MSA 24.12006(4).
We note that such assignments are permissible. Rutter v. King, 57 Mich. App. 152, 162; 226 N.W.2d 79 (1974). In his dissent, Justice Levin proposed
Where a garnishee defendant denies liability, the proper course is for the trial court to try the issue of the garnishee defendant's liability "in the same manner as other civil actions." MCR 3.101(M)(1); see also Rutter v King, 57 Mich. App. 152, 170-171; 226 N.W.2d 79 (1974). Here, the debt, which arose from a contract between Shaya Construction and garnishee defendant, was capable of being fixed, and its validity did not depend on any future action to be taken by the parties to the contract. [ Waatti, supra at 588.]
Where a garnishee defendant denies liability, the proper course is for the trial court to try the issue of the garnishee defendant's liability "in the same manner as other civil actions." MCR 3.101(M)(1); see also Rutter v. King, 57 Mich. App. 152, 170-171; 226 N.W.2d 79 (1974). Here, the debt, which arose from a contract between Shaya Construction and garnishee defendant, was capable of being fixed, and its validity did not depend on any future action to be taken by the parties to the contract.
We conclude that they do not. This Court, in Rutter v King, 57 Mich. App. 152, 157-158; 226 N.W.2d 79 (1974), noted that a party may commence separate actions in separate forums where the two actions seek different remedies: Where plaintiff has alternate remedies, which are not inconsistent, the mere commencing of an action in a separate forum or resorting to one remedy is not a bar to commencing a different form of action.
In Michigan unliquidated tort claims are not proper subjects of garnishment. Rutter v King, 57 Mich. App. 152, 169; 226 N.W.2d 79 (1974). As this Court has previously stated: