author: Mackenzie, J.

text:
    WELLS v FIRESTONE TIRE & RUBBER COMPANY
    Docket No. 44027.
    Submitted February 6, 1980, at Grand Rapids.
    Decided June 3, 1980.
    Firestone Tire & Rubber Company, hereinafter defendant, is an Ohio corporation. The defendant has various retail stores throughout the United States, some of which are divisions of Firestone while some are wholly-owned subsidiary corporations. James Wells, hereinafter plaintiff, worked at a wholly-owned subsidiary corporation of defendant, Muskegon Firestone Auto Supply and Service Stores (hereinafter Muskegon Firestone), in Muskegon, Michigan. While acting in the course of employment changing a tube and tire on a truck rim manufactured by the defendant, the rim blew apart, injuring plaintiff seriously. The defendant carried the worker’s compensation coverage for all of its local branches including Muskegon Firestone. The plaintiff receives worker’s compensation benefits. Subsequently, plaintiff filed the instant third-party product liability action against the defendant. The defendant moved for summary judgment on the basis that plaintiffs exclusive remedy was under the worker’s compensation act. The Muskegon Circuit Court, Charles A. Larnard, J., denied summary judgment, finding that the plaintiff was not an employee of defendant, but of the separate corporation, Muskegon Firestone. The defendant appeals by leave granted. Held:

    1. The "economic reality” test is the proper test to determine employment status in a tort action where respondeat superior liability is not at issue and the affirmative defense of immunity under the worker’s compensation statute is asserted.
    2. The "economic reality” test includes consideration of the following factors: (a) control; (b) payment of wages; (c) hiring and firing; and (d) responsibility for the maintenance and discipline.
    3. The defendant, Firestone, was plaintiffs employer within the meaning of the Worker’s Disability Compensation Act of 1969.
    4. The exclusive remedy provision of the worker’s compensation statute bars an employee from bringing a tort action against his employer’s parent corporation where the latter is also the employee’s employer under the economic reality test and the injury arose in the course of the employment

      Reference for Points in Headnotes
    [1-3] 81 Am Jur 2d, Workmen’s Compensation § 169.

      Reversed, and case dismissed.
    1. Workers’ Compensation — Immunity — Economic Reality Test.
    The "economic reality” test is the proper test to determine employment status in a tort action where respondeat superior liability is not at issue and the affirmative defense of immunity under the worker’s compensation statute is asserted (MCL 418.131; MSA 17.237[131]).
    2. Workers’ Compensation — Immunity — Economic Reality Test.
    The "economic reality” test for determination of a worker’s compensation claimant’s employment status includes consideration of the following factors: (a) control; (b) payment of wages; (c) hiring and firing; and (d) responsibility for the maintenance and discipline.
    3. Workers’ Compensation — Economic Reality Test — Torts — Exclusive Remedy.
    The exclusive remedy provision of the worker’s compensation statute bars an employee from bringing a tort action against his employer’s parent corporation where the latter is also the employee’s employer under the economic reality test and the injury arose in the course of the employment.

      McCroskey, Libner, VanLeuven, Feldman, Kortering, Cochrane & Brock, for plaintiff.

      Smith, Haughey, Rice & Roegge (by David O. Haughey and William J. Braaksma), for defendant.
    Before: Danhof, C.J., and R. B. Burns and Mackenzie, JJ.
   Mackenzie, J.

The defendant, Firestone Tire & Rubber Company (hereinafter "Firestone”), is an Ohio corporation with its principal headquarters in Akron, Ohio. Firestone has various retail stores around the country, some of which are run as divisions of Firestone while some are wholly-owned or majority-owned subsidiary corporations. In Muskegon, Michigan, Firestone has two outlets; one is operated as a division of Firestone, and the second is Muskegon Firestone Auto Supply and Service Stores, located at 925 Terrace Street, Muskegon, Michigan, hereinafter termed "Muskegon Firestone”. Muskegon Firestone was a wholly-owned subsidiary corporation at the time plaintiff’s cause of action arose.

Plaintiff James Wells worked at Muskegon Firestone and on October 21, 1971, while acting in the course of his employment changing a tube and tire on a truck rim manufactured by Firestone, the rim blew apart, injuring him seriously. Muskegon Firestone was originally a dealership but was set up as a Michigan corporation around 1930. Defendant Firestone purchased most of its assets at that time, allowing the manager to retain a minority stock interest. Defendant Firestone has owned 100% of the stock in Muskegon Firestone since around 1960. At the time of plaintiff’s accident, all of the subsidiary’s directors were employees of defendant. In early 1977, the corporation, Muskegon Firestone, was liquidated and is now run as a retail division of defendant.

Firestone carried the worker’s compensation coverage for all of the local branches including Muskegon Firestone. Plaintiff filed for compensation citing Firestone as his employer and commenced receiving benefits from Firestone’s insurance carrier, Liberty Mutual Insurance Company, which continue to be paid at this time.

Plaintiff, subsequent to receiving benefits from Firestone, commenced the instant third-party product liability suit against Firestone. Defendant Firestone moved for summary judgment on the basis that plaintiff was barred from bringing the action against Firestone by the exclusive remedy provision of the Michigan Worker’s Disability Compensation Act of 1969, MCL 418.131; MSA 17.237(131).

The trial court found that plaintiff was not an employee of defendant Firestone but of the separate corporate entity Muskegon Firestone. Summary judgment was denied and leave to appeal to this Court was granted on June 18, 1979.

Initially, we must determine whether the question of defendant’s status is an issue of law for the court or an issue of fact for the jury. In this case, the parties stipulated that the issues raised by defendant’s motion for summary judgment be decided by the trial court after the parties submitted affidavits and testimony was taken at the hearing held April 3, 1977. Therefore, we are bound by the affidavits, testimony at the hearing, and facts stipulated to below. Renfroe v Higgins Rack Coating & Mfg Co, Inc, 17 Mich App 259, 262; 169 NW2d 326 (1969), Nichol v Billot, 406 Mich 284, 301; 279 NW2d 761 (1979). In such a case, "all issues of fact as well as the usual process of drawing permissible inferences from testified facts were thereby eliminated, and all that was necessary was that the court apply the relevant legal principles”. Nichol, supra, 301.

Next, we must decide whether defendant was plaintiff’s employer at the time of the injury within the scope of the Worker’s Disability Compensation Act of 1969. If so, recovery of worker’s compensation benefits is plaintiff’s exclusive remedy, barring the products liability action. See MCL 418.131; MSA 17.237(131).

In Nichol, supra, the Michigan Supreme Court held that the "economic reality” test is the proper test to determine employment status in a tort action where respondeat superior liability is not at issue and the affirmative defense of immunity under the statute is asserted.

The relevant factors in the "economic reality” test were stated by the Court in Schulte v American Box Board Co, 358 Mich 21, 33; 99 NW2d 367 (1959), as follows:

"This is not a matter of terminology, oral or written, but of the realities of the work performed. Control is a factor, as is payment of wages, hiring and firing, and the responsibility for the maintenance and discipline, but the test of economic reality views these elements as a whole assigning primacy to no single one. See also, Pazan v Unemployment Compensation Commission, 343 Mich 587, dissent 592.”

See also Goodchild v Erickson, 375 Mich 289; 134 NW2d 191 (1965), Solakis v Roberts, 395 Mich 13; 233 NW2d 1 (1975), Askew v Macomber, 398 Mich 212; 247 NW2d 288 (1976).

The evidence indicates that while Muskegon Firestone was a separate corporate entity at the time plaintiff’s cause of action arose, its operation was the same as the other retail divisions. The local store branch managers belonged to a program whereby they participated in the store’s profits or losses; they ordered inventory from defendant on consignment and purchased some items outside the company for resale. The other retail store and Muskegon Firestone were both listed in the local telephone directory as divisions of Firestone. All dollar accounting was handled by the central accounting office of defendant. Local store managers did not issue company checks; they deposited all money in bank accounts in defendant’s name. The local store managers received monthly profit §nd loss statements regarding their individual stores.

Defendant calculated the expenses of each store in order to determine its annual operating profit or loss. Expenses charged to the stores included a percentage for worker’s compensation insurance rates and other expenses attributable to payroll, rent, maintenance, etc.

The evidence further indicated that the employees of Muskegon Firestone were under the supervision of defendant and subject to the rules and regulations thereof. The common practice, however, was for the local managers to do the hiring and firing. Certain of defendant’s employees had the ability to hire and fire the local managers and could, if they chose, hire and fire other local employees. The local store manager acted within the framework of defendant’s regulations. Employees of retail stores did not all belong to the same union as the employees of defendant. In fact, some retail personnel were unionized while others were not. In some cases, retail stores in an entire metropolitan area were organized in the same union regardless of whether they were separate corporations.

Defendant’s district supervisor, who testified that at the time of plaintiffs injury the employees of Muskegon Firestone were under his supervision and control, denied that retail store employees received different treatment depending on whether the store was a division or a separate corporation. In fact, all the retail employees were entitled to participate on the same basis in defendant’s hospitalization and retirement benefit programs and other fringe benefits.

Muskegon Firestone filed a separate corporate income tax return and issued its own W-2 forms to plaintiff and its other employees. However, all of these forms were processed at defendant’s central tax department. Employees of Muskegon Firestone received paychecks from defendant through its central accounting office. Records of employment relating to plaintiff and other retail store employees were kept and administered by the personnel department of defendant Firestone.

In balancing all of these factors for the purpose of applying the economic reality test, we find that defendant Firestone was plaintiffs employer within the meaning of the Worker’s Disability Compensation Act of 1969. Therefore, the trial judge erred in refusing to grant defendant’s motion for summary judgment on the ground that plaintiffs exclusive remedy is under the Worker’s Disability Compensation Act.

Reversed. Case dismissed. Costs to defendant-appellant.


source: Caselaw Access Project

author: J. H. Gillis, P.J. M. J. Kelly, J.

license: Public Domain

text:
    O’TOOLE v FORTINO
    Docket No. 44422.
    Submitted February 13, 1980, at Lansing.
    Decided June 3, 1980.
    Martin O’Toole, for himself and as administrator of the estate of Genevieve O’Toole, deceased, brought an action for damages for medical malpractice against Silvio P. Fortino, M.D., William P. Drescher, M.D., Daniel E. Williams, M.D., and Harry J. Schmidt, M.D. Genevieve O’Toole suffered from breast cancer, and defendants Fortino, Williams and Schmidt treated her at different times prior to her death. Defendant Drescher was assistant medical examiner at the time Mrs. O’Toole died. He determined that the cause of death was pneumonia, and that the cancer was a contributing factor. The Ingham Circuit Court, Jack W. Warren, J., granted summary judgment to defendant Drescher on the basis of governmental immunity, and to the other defendants on the basis that the plaintiff had failed to state a cause of action for which relief could be granted. Plaintiff appeals. Held:

    1. Plaintiff’s complaint complied with the notice requirement for pleadings by reasonably informing the defendants of the nature of the claim they were called upon to defend.
    2. The complaint also sufficiently alleged the duties owed by the defendants, the breach of those duties, the causal relationship between the breach and the injuries complained of, and the elements of damages.
    3. The acts of the medical examiner were discretionary and are therefore protected by governmental immunity.
    Reversed as to defendants Fortino, Williams and Schmidt. Affirmed as to defendant Drescher.
    M. J. Kelly, J., dissented. He would find that plaintiff has failed to plead any specifics regarding the accepted method of treatment of breast cancer patients, failed to specify what the defendants negligently did or did not do during the course of treatment, failed to demonstrate the causal relationship between the decedent’s death and the defendants’ actions, and failed to illustrate how any of the defendants’ conduct was contrary to generally accepted standards of care in each area of practice represented by the various defendants. He would affirm the grant of summary judgments as to all of the defendants.

      References for Points in Headnotes
    [1] 61 Am Jur 2d, Pleading § 23.
    [2] 61 Am Jur 2d, Pleading §§ 229-231, 233.
    [3] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 186.
    [4, 6] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 186.
    [5] 63 Am Jur 2d, Public Officers and Employees §§ 273, 289.

      Opinion of the Court
    1. Pleading — Notice — Claim Upon Which Relief Can Be Granted — Court Rules.
    A pleading must give notice of the nature of the claim sufficient to permit the preparation of a meaningful response and must state a claim upon which relief can be granted (GCR 1963, 111.1, 117.2[1]).
    2. Judgment — Summary Judgment — Failure to State Claim.
    A trial court’s grant of a summary judgment for failure to state a claim upon which relief can be granted is tested by examination of the pleadings alone; the factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged, and, unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion for summary judgment should be denied.
    3. Negligence — Medical Malpractice — Pleading — Necessary Allegations.
    Every fact necessary to constitute a cause of action must be alleged with reasonable certainty and definiteness in a medical malpractice action; it is essential for a plaintiff to allege the duty of the physician to the person injured, the breach of the duty complained of, the causal relationship between the breach and the injuries complained of and the resulting damage.
    4. Negligence — Medical Malpractice — Breach of Duty.
    The element of breach of duty in a medical malpractice action is the failure of the defendant to conform to the applicable standard of conduct; the allegation of a failure to act when one is under a duty to do so is a sufficient allegation of a breach of duty.

      5. Torts — Governmental Immunity — Discretionary Acts — Ministerial Acts — Statutes.
    Liability of a public official for tortious acts committed in the scope of his employment is determined by deciding whether the acts of the official are discretionary or ministerial; discretionary acts, those involving a latitude of choice, are normally protected under governmental immunity, while ministerial acts, those where the official has little decision-making power during the course of performance, are not so protected (MCL 691.1407; MSA 3.996[107]).
    Dissent by M. J. Kelly, J.
    6. Pleading — Medical Malpractice — Negligence — Breach op Duty — Summary Judgment.

      A plaintiffs complaint for alleged medical malpractice was insufñcient where it failed to make speciñc allegations as to the existence or manner of breach of the defendants’ duties; mere conclusions, without factual allegations to support them, cannot withstand a motion for summary judgment.

      George Platsis, for plaintiff.

      Foster, Swift, Collins & Coey, P.C. (by Webb A. Smith and John W. Cotner), for defendant Fortino.

      Farhat, Bums & Story, P.C. (by Richard C.. Kraus), for defendant Williams.

      Fraser, Trebilcock, Davis & Foster, P.C. (by Eugene F. Townsend, Jr., and David E. S. Martin), for defendant Schmidt.

      Dice, Sweeney, Sullivan & Feikens, P.C. (by John L. Christensen), for defendant Drescher.
    Before: J. H. Gillis, P.J., and Allen and M. J. Kelly, JJ.
   J. H. Gillis, P.J.

This is a medical malpractice action. Plaintiff appeals from summary judgments granted in favor of the defendants on the ground that plaintiff failed to state a claim upon which relief could be granted. GCR 1963, 117.2(1).

In August, 1974, Genevieve O’Toole, wife of Martin O’Toole, discovered a lump in her right breast. On September 6, 1974, Mrs. O’Toole consulted defendant Dr. Fortino for examination, evaluation and treatment of the lump. During the next year she saw Dr. Fortino three additional times. After the last visit, on August 11, 1975, Dr. Fortino referred Mrs. O’Toole to defendant Dr. Schmidt for a surgical biopsy.

The biopsy was performed by Dr. Schmidt on August 15, 1975. Pathological examination of the lump revealed it to be cancerous. A radical mastectomy of her right breast was performed by Dr. Schmidt on August 21, 1975.

The next day, at the request of Dr. Schmidt, defendant Dr. Williams, an oncologist, undertook the treatment of Mrs. O’Toole. Over the next 15 months, Dr. Williams prescribed chemotherapy and radiation therapy for Mrs. O’Toole. On November 29, 1976, Mrs. O’Toole consulted Dr. Williams concerning a lump on her right shoulder. On December 13, 1976, the lump was removed by Dr. Williams and found to be cancerous. A single chemotherapy treatment followed on December 17, 1976. On December 22, 1976, Genevieve O’Toole died.

On December 22, 1976, defendant Dr. Drescher was the assistant medical examiner for Ingham County. On that date, Dr. Drescher, based on Mrs. O’Toole’s medical history and body condition, determined that an autopsy was not required. He further determined that the cause of her death was pneumonia and that "metastatic carcinoma of breast” was an "other significant condition” contributing to the death.

Plaintiff filed his original complaint on May 17, 1977. Plaintiff thereafter filed four amended complaints. Each of these complaints was found by the lower court to be deficient for their failure to comply with minimum pleading requirements. On March 14, 1979, the lower court granted summary judgments to the defendants pursuant to GCR 1963, 117.2(1). The judgment in favor of Dr. Drescher was granted on the basis of governmental immunity. The judgments in favor of the remaining defendants were granted on the basis that plaintiff had failed to comply with the pleading requirements of a medical malpractice action. Plaintiff appeals as of right from the entry of those judgments. GCR 1963, 806.1.

We address first the question of the propriety of the grants of summary judgment in favor of defendants, Drs. Fortino, Williams and Schmidt.

GCR 1963, 111.1 provides in part:

"A pleading which sets forth a claim for relief, whether a complaint, counterclaim, cross-claim or third-party claim, shall contain
"(1) a statement of the facts without repetition upon which the pleader relies in stating his cause of action with such specific averments as are necessary reasonably to inform the adverse party of the nature of the cause he is called upon to defend.”

The general requirement of stating the "facts” on which the pleader relies in stating his "cause of action” relates to separate requirements of a pleading. The primary requirement is that the pleading must give notice of the nature of the claim sufficient to permit the preparation of a meaningful response. This requirement is addressed to the technical sufficiency of the pleading as a matter of form.

The second requirement of a pleading is that it must state a set of facts that is sufficient to meet the substantive requirements for relief. That is, the pleading must state a "claim upon which relief can be granted”. GCR 1963, 117.2(1). See, 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 194-198.

Our examination of plaintiff’s fourth amended complaint discloses that it is sufficient to comply with the notice requirement of GCR 1963, 111.1. It reasonably informs the adverse parties of the nature of the claim they are called upon to defend. See Hanselman v Carstens, 60 Mich 187; 27 NW 18 (1886).

We next must consider whether the second requirement of a pleading was met. Did the fourth amended complaint state a claim as to these defendants upon which relief can be granted?

The standard governing this Court’s review of a grant of summary judgment due to the failure to state a claim upon which relief can be granted, GCR 1963, 117.2(1), is well settled. The motion is to be tested by the pleadings alone. Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974), lv den 391 Mich 816 (1974). The motion tests the legal basis of the complaint, not whether it can be factually supported. Borman’s, Inc v Lake State Development Co, 60 Mich App 175; 230 NW2d 363 (1975). The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under the subrule should be denied, Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426; 202 NW2d 577 (1972), Partrich v Muscat, 84 Mich App 724, 729-730; 270 NW2d 506 (1978).

Medical malpractice must be pled more specifically than other types of negligence. Simonelli v Cassidy, 336 Mich 635, 644; 59 NW2d 28 (1953). See the comment on Simonelli in 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 197. General allegations of negligence are insufficient. In a medical malpractice action, every fact necessary to constitute a cause of action must be alleged with reasonable certainty and definiteness. Thus, it is essential to allege the duty of the physician to the person injured, the breach of the duty complained of, the causal relation between the breach of the duty and the injuries complained of and the resulting damage. Simonelli, at 644, quoting 70 CJS, Physicians & Surgeons, §61, pp 986-987. Where the breach of duty relied on is negligence in the diagnosis and treatment of the patient, it is insufficient for a plaintiff to simply describe what a physician did or failed to do and then allege that the action or omission was negligent. The plaintiff must allege the proper or accepted method of diagnosis and treatment. Simonelli, supra, 643.

Plaintiff’s fourth amended complaint (hereinafter referred to as complaint) must be measured against these standards to determine if it was sufficient to state a claim upon which relief can be granted.

Paragraphs 9, 10 and 11 of plaintiff’s complaint state:

"9. That defendants at all times herein mentioned held themselves out as medical doctors having the required knowledge of the state of the then existing art and skill to perform the duties set forth herein.
"10. They represented that they possessed and exercised their own, prevailing and recognized standards of learning, skill, care and diligence of average medical doctors similarly situated, and acceptable professional practices in Lansing and communities similar to Lansing.
"11. In addition, defendants Schmidt, Williams and Drescher represented that they possessed and exercised their own, prevailing and recognized standard of care within their respective specialities as surgeon, oncologist and medical examiner as reasonably available under the circumstances and as applied in light of the facilities available in Lansing and communities similar to Lansing, the standard of care of a reasonable specialist practicing medicine in light of present day scientific knowledge and under the laws of this state.”

Paragraphs 80, 81 and 82 state:

"80. That in evaluating said lump and any underlying condition prior to August 11, 1974, defendant Fortino owed the following duties to Genevieve and plaintiff:
"a. To evaluate the likelihood said lump was cancerous and the urgency of resolving any doubts as to the cause of said lump by conducting a physical examination of both breasts and axillary areas of Genevieve O’Toole, ascertaining her medical and family history relative to cancer and related predisposing conditions.
"b. To chart the size and location of the lump on each and every such visit aforementioned and on a monthly basis.
"c. To conduct said examinations every mid-month after her menstrual periods and after having determined the size and location of any lumps and breast structures and irregularities immediately before several of her menstrual periods.
"d. To keep abreast of available medical literature, books and correspondence immediately available to him regarding the evaluation, care and treatment of and the resolution of doubts or conflicts as to the existence, size and importance of breast lumps in a 47 year old woman such as Genevieve, and women similarly situated.
"e. To consult with another physician with more experience than he possessed regarding the evaluation of a woman who complained of a breast lump in September 1974, and thereafter on each subsequent visit aforementioned and to therefore resolve doubts or conflicts between her opinion and his judgment as to the existence and diagnosis of said lump and obtain such consultation report in writing.
"f. To order, arrange for and conduct mammography and/or zerography studies of the left and right breasts and to therefore resolve any said doubts and conflicts as. to the diagnosis of said lump.
"g. To order, arrange for and conduct thermography studies of the left and right breasts and therefore resolve any said doubts and conflicts as to the diagnosis of said lump.
"h. To order, arrange for and conduct surgical biopsies and microscopic evaluation of said lump by a pathologist, and therefore resolve any said doubts and conflicts as to the diagnosis of said lump.
"i. To inform plaintiff of the availability of these procedures to resolve any said doubts and conflicts as to the diagnosis of said lump and receive written consent from Genevieve to forego these diagnostic tests.
"81. That on August 11, 1974, and thereafter, Defendant Fortino owed the following duties to the plaintiff and Genevieve:
"a. To continue overall care, treatment and supervision of Genevieve’s treatments by other doctors and to assure coordination, cooperation and unity of purpose in therapies selected and the avoidance of detrimental and conflicting procedures.
"b. To select a surgeon, internist or both who would exercise the standards of care, evaluation and treatment consistent with duties set forth below for defendants Schmidt and Williams.
"c. To communicate an accurate, complete and thorough pertinent history and physical examination of Genevieve to defendants Schmidt, Williams and the radiologist who treated Genevieve, particularly that she first complained of a lump in her right breast on September 6, 1974, that she gave birth to two children relatively late in life and had a grandmother who died of breast carcinoma.
"d. To explain the medically significant alternatives to radical breast surgery as was performed by defendant Schmidt, coupled with subsequent radiation and drug therapies set forth herein, and receive written consent from Genevieve for the procedures performed upon her.
"e. To obtain the written consultation, advice and recommendations of Dr. Williams and the radiologist before surgery was begun by defendant Schmidt to operate for said breast lump on August 21, 1975.
"82. That on August 11, 1974, and at all times herein mentioned thereafter, defendants Fortino, Schmidt and Williams owed the following duties to Genevieve and plaintiff:
"a. To provide plaintiff with current, truthful, complete and accurate information about all her conditions, diseases, diagnoses and explain medically significant alternatives for therapy and non-therapy than was actually given in this case in terms that were reasonably clear and meaningful.
"b. To obtain from Genevieve her written informed consent as to the course of treatment actually afforded to her in this case.
"c. To consult with and advise each other and said radiologist in writing before surgical treatment was begun.
"d. To conduct periodic physical examinations of her left breast and her neck and shoulders for metastatic cancer and to chart their existence, size and location.
"e. To conduct tests and monitor physical changes that could indicate the effectiveness of surgery, chemotherapeutic agents and radiation therapy so as to achieve maximum impact, including but not limited to:
"1. Periodic monitoring and charting of actual tumor size wherever found.
"2. Periodic CEA testing.
"f. To establish, maintain and preserve the greatest possible capacity of Genevieve to withstand chemotherapy and radiation therapy so as to permit the largest possible and continuous dosages thereof and without such interruptions in therapy as occurred in November-December, 1975, and November-December, 1976, due to the presence of surgical complications, including but not limited to:
"1. Performance of a less extensive surgery than was actually performed in August 1975 by defendant Schmidt, such as a simple mastectomy with removal of only the central and grossly involved lymph nodes. .
"2. Treatment of the pneumonia which afflicted Genevieve in November and December 1976.
"g. To place Genevieve in hospital in November and December 1976 to ascertain the cause and character of her pneumonia and whether the same was related or unrelated to her cancer and treatable by performing at least one or more of the following tests:
"1. Vertical and horizontal chest X-rays.
"2. Aspiration of contents of her left chest cavity for microbiology and cytology tests.
"3. Antibiotic therapy.
"4. Chemotherapy.
"5. Radiation therapy.
"h. To record both positive and pertinent or medically significant negative events, occurrences, observations of and findings on Genevieve before undertaking, withholding, or both, surgical, radiological and chemotherapies.
"i. To plan, coordinate and implement a program that would minimize the injuries Genevieve suffered as a result of surgery, chemotherapy and radiation treatments.
"j. To refrain from communicating with each other,, until such time as one or more of their respective, relevant prior duties as set forth herein were performed.
"k. To keep abreast of available medical literature, books and correspondence immediately available to them regarding the treatment of a woman such as Genevieve who complained of a lump for one year prior to the surgery, which lump measured 2.5 cm, one (1) inch, in diameter and who had an axillary lymph node which measured 1.8 cm, 3/4 inch, in diameter, days before surgical biopsy and radical mastectomy were performed.
"1. To consult with a fourth physician familiar with the examination, evaluation, care and treatment of pneumonia.
"m. To continue every possible life sustaining treatment until such time as all reasonable men would agree that metastatic cancer had progressed to a point that (1) it would be beyond further medical control and (2) the immediate cause of death or one of the related causes of death would be said metastatic cancer.
"n. To communicate all relevant knowledge about Genevieve’s medical history and physical condition to defendant Drescher so to assist him in completing an accurate, truthful and complete death certificate relative to the cause of death.”

The duty which these defendants owed to Genevieve O’Toole was the obligation to conform to a certain standard of conduct. Prosser, Torts (4th ed), § 30, p 143. The inference which may fairly be drawn from paragraphs 9 to 11 is that the defendants were obligated to act in accord with the prevailing and recognized standards of learning, skill, care and diligence of average medical doctors similarly situated. These paragraphs sufficiently alleged the general duty of these defendants.

Paragraphs 80 to 82 state the specific duties assertedly owed by the defendants. The fair inference to be drawn from these allegations is that these duties are congruent to the proper or accepted method of treatment. The conclusion to be drawn is that the plaintiff, in the above-quoted paragraphs, sufficiently alleged the duty element of his cause of action.

The breach of duty element in a malpractice action is defined as the failure of the defendant to conform to the applicable standard of conduct. Prosser, Torts (4th ed), § 30, p 143. Paragraph 84 of the complaint states:

"84. That each of the defendants herein wantonly, intentionally, knowingly, negligently and/or recklessly failed to carry out their respective duties as herein before set forth, and for any breach thereof, committed professional malpractice.”

This paragraph alleges the various omissions on the part of the defendants as violations of the aforementioned duties. The allegation of a failure to act when one is under a duty to do so is a sufficient allegation of breach of duty in a medical malpractice action. Fortner v Koch, 277 Mich 429; 269 NW 222 (1936). The allegations here are sufficient to establish the breach element of plaintiffs claim.

The third element which plaintiff was required to allege was the "causal relation between the breach of duty and the injuries complained of’. Simonelli, supra, 644. Defendants argue that paragraph 85 of the complaint fails to sufficiently aver causation. We agree. That paragraph states:

"85. That each one of the defendants by performing each one of their respective duties set forth herein, would have avoided and/or ameliorated some or all of the damages as set forth below.”

Defendants, however, overlook paragraph 88 which states in part:

"88. As a direct and proximate result, the aforementioned acts and omissions of the defendants Fortino, Williams and Schmidt caused Genevieve’s premature death and unnecessary pain and suffering and, along with defendant Drescher, caused Genevieve, plaintiff and their children to suffer the following losses and damages, past, present, future and permanent.”

The paragraph then lists several elements of damage. The allegations contained in paragraph 88 satisfy the causation element.

Lastly, paragraph 88 contains sufficient allegations of damage to satisfy that element of plaintiffs cause of action. The parties do not argue to the contrary.

To summarize, taking the factual allegations, along with any reasonable inference, as true, Gartside v Young Men’s Christian Ass’n, 87 Mich App 335, 337-338; 274 NW2d 58 (1978), we are unable to conclude that plaintiffs cause of action is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover with respect to these defendants. Crowther, supra. We hold that the complaint properly alleges a legal cause of action for medical malpractice under the standards set forth in Simonelli v Cassidy, supra. Accordingly, the summary judgments in favor of these defendants were improvidently granted. Those judgments are reversed.

The disposition of this issue renders unnecessary a discussion of the remaining issues on appeal which relate to defendants, Drs. Fortino, Williams and Schmidt. The case is remanded to the lower court for a trial on the merits with respect to these defendants.

Plaintiffs claim against defendant Dr. Drescher relates to Dr. Drescher’s determination as to the cause of Genevieve O’Toole’s death. Plaintiff basically claims that Dr. Drescher, in his capacity as an assistant medical examiner for Ingham County, negligently failed to conduct an autopsy of Mrs. O’Toole’s body and negligently failed to determine the assertedly proper cause of her death. Plaintiff claimed that as a result of such negligence his, plaintiffs, ability to establish which of several conditions caused his wife’s death was seriously impaired.

The lower court granted Dr. Drescher summary judgment on plaintiffs third amended complaint pursuant to GCR 1963, 117.2(1) on the ground that Dr. Drescher’s acts fell within the protection of the governmental immunity statute. MCL 691.1407; MSA 3.996(107).

The liability of a public official for tortious acts committed in the scope of his employment is determined by deciding whether the acts of the official are "discretionary” or "ministerial”. Antkiewicz v Motorists Mutual Ins Co, 91 Mich App 389, 397; 283 NW2d 749 (1979). Discretionary acts are normally protected under governmental immunity; ministerial acts are not. Prosser, Torts (4th ed), § 132, pp 989-990.

The difference between discretionary and ministerial acts is one of degree. Discretionary acts are those involving a latitude of choice. Ministerial acts are those where the public official has little decision-making power during the course of performance. A review of the statute that authorizes a medical examiner to order an autopsy and to declare cause of death indicates that significant discretion is given to the examiner in the performance of his functions. MCL 52.205; MSA 5.953(5). The medical examiner’s actions in the present case were discretionary. Those actions, therefore, are covered by the protective cloak of governmental immunity. Plaintiff failed to plead facts in avoidance of immunity. See Butler v Wayne County Sheriff’s Dep’t, 75 Mich App 202, 203; 255 NW2d 7 (1977). The lower court did not err in granting summary judgment in favor of defendant Dr. Drescher.

Affirmed in part; reversed in part. The case is remanded to the trial court for further proceedings consistent with this opinion. No costs.

Allen, J., concurred.

M. J. Kelly, J.

(dissenting). I would affirm the trial court’s grant of summary judgments in favor of all defendants. Plaintiff’s fourth amended complaint is so contradictory and nonspecific with regard to the elements of duty, breach and causation as to render it useless for purposes of informing defendants of the charges against them. See GCR 1963, 111.1. He has set his shot pattern so wide as to miss the target entirely. He has failed to plead any specifics with regard to an accepted method of treatment of breast cancer patients as required by Simonelli v Cassidy, 336 Mich 635; 59 NW2d 28 (1953), and Haase v DePree, 3 Mich App 337, 341; 142 NW2d 486 (1966).

Paragraphs 80 and 81 of the complaint, each consisting of several subparagraphs, delineate duties allegedly owed to the deceased by defendant Fortino, but there is a notable absence of specific allegations as to the existence or manner of breach of these duties. The majority of the preceding paragraphs consist of factual statements regarding the history, diagnosis and treatment of the patient without any indication that the acts or omissions were negligent.

Furthermore, the complaint is devoid of specific averments pertaining to defendants Williams or Schmidt. Paragraph 82 sets forth over one dozen duties allegedly owed to the deceased and plaintiff by all three physicians even though each is involved in a distinct field of medical practice and each was responsible, therefore, for separate and distinct aspects of the patient’s care. There is absolutely no indication of what the surgeon or oncologist, in their individual capacities, negligently did or failed to do during the course of treatment of the patient.

This same paragraph (82) is replete with inconsistencies which effectively nullify the existence of claimed duties. According to subparagraph (i), all three physicians were obligated to "plan, coordinate and implement a program that would minimize the injuries Genevieve suffered as a result of surgery, chemotherapy and radiation treatments”. This clearly suggests that at least Dr. Schmidt, the surgeon, and Dr. Williams, the oncologist, were obligated to mutually and simultaneously fashion an effective treatment program; yet, according to subparagraph (j) these same doctors were duty bound to refrain from communicating with each other until their respective duties were performed. As mentioned above, these "respective duties” were not set forth respectively.

Paragraphs 85 and 88 of the complaint, quoted in the majority opinion, purport to demonstrate the causal relationship between defendants’ conduct and the decedent’s pain, suffering and death by nothing more than an unsupported accusation. How, for example, was the failure of any or all named defendants to examine the patient’s left breast causally related to her death by pneumonia? Mere conclusions, without factual allegations to support them, cannot withstand a motion for summary judgment. Valentine v Michigan Bell Telephone Co, 388 Mich 19, 30; 199 NW2d 182 (1972), Sottile v DeNike, 20 Mich App 468, 472; 174 NW2d 148 (1969).

In addition to the above-mentioned defects, plaintiffs complaint failed to illustrate the manner in which any single defendant’s conduct was contrary to or at variance with the generally recognized and accepted standard of care applicable to each special area of practice represented. See Haase v DePree, supra. I disagree with the majority’s conclusion that, by listing certain jointly owed duties and a breach of "any” of them, plaintiffs satisfied this pleading requirement.

Due to plaintiffs failure to comply with GCR 1963, 111.1 and 117.2(1), summary judgments were properly granted and should not be disturbed by this Court.


author: Danhof, C.J.

text:
    PEOPLE v CLAYTON
    Docket No. 44552.
    Submitted April 7, 1980, at Detroit.
    Decided June 3, 1980.
    Frank Clayton was convicted of second-degree murder in Recorder’s Court of Detroit, George W. Crockett, III, J. The defendant appeals alleging various errors in the instructions to the jury, none of which were objected to at trial. Held:

    1. A second-degree murder conviction can be sustained if there is proof of the defendant’s intent to cause the very harm which results or some harm of the same general nature or an act done in wanton or willful disregard of the plain and strong likelihood that some harm will result.
    2. The proposed Michigan Criminal Jury Instruction concerning character evidence simply informs the jury that if the character evidence the defendant chooses to produce together with all the other evidence leaves the jury with a reasonable doubt, the defendant should be acquitted.
    3. Evidence of good character may by itself create a reasonable doubt of guilt and justify a verdict of not guilty.
    4. Whether or not a victim of a killing was, in fact, armed is a relevant consideration for the jury in applying the subjective standard regarding self-defense.
    5. A defendant’s conviction will not be reversed for alleged errors in the jury instructions that were not objected to at trial unless manifest injustice would result.
    Affirmed.
    1. Criminal Law — Murder — Second-Degree Murder.
    A second-degree murder conviction can be sustained if there is proof of the defendant’s intent to cause the very harm which results or some harm of the same general nature, or an act done in wanton or willful disregard of the plain and strong likelihood that some harm will result.
    References for Points in Headnotes
    [1] 40 Am Jur 2d, Homicide § 10.
    [2, 3] 30 Am Jur 2d, Evidence § 1127.
    [4] 40 Am Jur 2d, Homicide § 140.
    [5] 75 Am Jur 2d, Trial §§ 906, 907.

      2. Criminal Law — Jury Instructions — Character Evidence.
    The proposed Michigan Criminal Jury Instruction concerning character evidence simply informs the jury that if the character evidence the defendant chooses to produce, together with all the other evidence, leaves the jury with a reasonable doubt, the defendant should be acquitted (CJI 5:2:08).
    3. Evidence — Good Character — Criminal Law.
    Evidence of good character may by itself create a reasonable doubt of guilt and justify a verdict of not guilty.
    4. Homicide — Defenses — Self-Defense.
    Whether or not a victim of a killing was, in fact, armed is a relevant consideration for the jury in applying the subjective standard regarding self-defense.
    5. Criminal Law — Conviction — Jury Instructions — Error.
    A defendant’s conviction will not be reversed for alleged errors in the jury instructions that were not objected to at trial unless manifest injustice would result.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy K Cronin, Assistant Prosecuting Attorney, for the people.

      Carl Ziemba, for defendant on appeal.
    Before: Danhof, C.J., and Cynar and Mackenzie, JJ.
   Danhof, C.J.

Following a jury trial, defendant was convicted of second-degree murder, MCL 750.317; MSA 28.549, on January 25, 1979. He was sentenced to 15 to 25 years imprisonment. He appeals as of right. On February 21, 1980, this Court denied the people’s motion to affirm.

On appeal, defendant claims that the instructions to the jury contained various errors, none of which were objected to at trial. Thus, reversal is not warranted unless manifest injustice resulted. People v Dixon, 84 Mich App 675, 685; 270 NW2d 488 (1978).

Defendant first argues that the trial court erroneously directed the jury to apply the "objective standard” when considering his claim of self-defense. The court instructed as follows:

"In deciding whether at the time the Defendant feared for his life or safety, you should consider all of the surrounding circumstances; the condition of the parties, including their relative strength, whether the other party was armed with a dangerous weapon or had other means to injure the Defendant; the nature of the threat or attack of the other party, previous acts of brutality or threats of the other party of which the Defendant was aware.” (Emphasis added.)

This instruction was taken from proposed CJI 7:9:01. In the proposed instruction, the challenged statement appears in brackets as a factor to be given to the jury in appropriate cases. This factor is appropriate where the facts as they appear to defendant coincide with the actual, "objective” facts as described by other testimony. That is, cases in which the deceased was visibly armed with a dangerous weapon. On the other hand, in cases like the present, where a defendant testifies that it appeared to him the deceased was armed but other witnesses testified that they saw no weapon, the instruction may create a tension between defendant’s subjective view and other, supposedly objective, evidence. However, we do not view this as error because the eyidence of other witnesses is relevant to the honesty of defendant’s subjective belief. The testimony of defendant cannot control this issue. Juries, being unequipped with extrasensory perception, or any other metapsychical powers to determine a subjective state of mind, must consider all relevant facts surrounding the occurrence.

We hold that the instructions on self-defense, read as a whole, were proper. Defendant’s citations, cases involving explicit instructions requiring improper application of an objective standard, can be distinguished from the present case where the jury was merely instructed to consider a factor which has more relevance in cases where the deceased was visibly armed with a dangerous weapon. The jury was correctly instructed to apply the subjective standard when deciding whether defendant feared for his life or safety.

Defendant next argues that the instructions defining malice and distinguishing first and second-degree murder were erroneous. Defendant reasons that an intent to kill is an indispensable element of first-degree murder and that first and second-degree murder are the same crime except that first-degree murder has the additional element of premeditation and deliberation. As a result, he concludes that second-degree murder is a specific intent crime because it is first-degree murder less premeditation. Thus, he contends that the trial court erred when he instructed that the jury could convict defendant of second-degree murder upon proof that he consciously created a high risk of death.

Defendant’s argument is without merit. This issue was addressed at length in People v Hill, 94 Mich App 77; 288 NW2d 408 (1979). We agree with Hill that while conviction for first-degree murder requires proof that defendant had the specific intent to kill, a second-degree murder conviction can be sustained if there is proof of defendant’s intent to cause the very harm which results or some harm of the same general nature, or an act done in wanton or willful disregard of the plain and strong likelihood that some harm will result. The present instructions were correct.

We also reject defendant’s related argument that the instruction gave the jury the erroneous impression that mere indifference to a high risk of death will support a first-degree murder conviction. The trial court carefully distinguished between first and second-degree murder, making it clear that an intent to kill was required for a conviction of first-degree murder.

Defendant next argues that the trial court gave an incomplete, misleading, and confusing instruction on character evidence. In particular, he challenges the following portion of the charge which was taken verbatim from proposed CJI 5:2:08:

"If, after judging all of the evidence of guilt you have no reasonable doubt of the defendant’s guilt, you should find him guilty. However, if the evidence of good character along with all of the evidence in the case creates a reasonable doubt of the defendant’s guilt, you must find him not guilty.”

Defendant claims that this instruction shifted the burden of proof to defendant to raise a reasonable doubt in order to win acquittal. We disagree.

The instruction simply informs the jury that if the character evidence defendant chose to produce, together with all the other evidence, leaves the jury with a reasonable doubt, defendant should be acquitted. It did not tell the jury that defendant had the burden of raising a reasonable doubt. The use of the verb "creates” in the instruction may, in some minds, imply a shift in the burden of proof. We feel this is an unreasonable interpretation because it can fairly be said that a defendant presents evidence in an effort to "create” a reasonable doubt.

We also disagree with defendant’s claim that this instruction implied that evidence of good character alone was not enough to acquit defendant. Moments before the challenged instruction, the judge stated: "Evidence of good character may by itself create a reasonable doubt of guilt and justify a verdict of not guilty.” Further, the Michigan Supreme Court specifically approved of this aspect of the instruction in People v Schultz, 316 Mich 106, 123; 25 NW2d 128 (1946).

Finally, defendant challenges the instructions relating to the character of defendant.

Defendant’s argument is without merit. The instructions were taken from the proposed CJI and were requested by defendant’s trial attorney who indicated his satisfaction with the charge. The instructions were complete, accurate, and not. misleading.

In conclusion, we hold that the trial court did not err in instructing the jury, let alone commit error amounting to manifest injustice.

Affirmed.

       Under the objective standard a jury deciding whether defendant feared for his life or safety would consider the circumstances as they actually existed. In Michigan, the "subjective” standard is to be applied: the circumstances as they appeared to the defendant. See, People v Mitchell, 402 Mich 506, 513; 265 NW2d 163 (1978).


author: V. J. Brennan, J.

text:
    GRETTENBERGER PHARMACY, INC v BLUE CROSS-BLUE SHIELD OF MICHIGAN
    Docket No. 45798.
    Submitted February 7, 1980, at Lansing.
    Decided June 3, 1980.
    Leave to appeal applied for.
    Grettenberger Pharmacy, Inc., hereinafter plaintiff, brought a class action on behalf of itself and all similarly situated pharmacies against Blue Cross-Blue Shield of Michigan, hereinafter defendant. Plaintiff claimed that it and other pharmacies received improperly reduced dispensing fees under defendant’s prescription program for service performed between January 1, 1975, and April 29', 1975. The Ingham Circuit Court, Ray C. Hotchkiss, J., certified the class and subsequently granted summary judgment to plaintiff. Defendant appeals. Held:

    1. A party is an adequate representative of the class in a class action where that party has a common interest with class members and there exists no conflict of interest.
    2. An action must meet the following requirements to proceed on a representative basis as a class action: (a) there must be an identifiable class; (b) the number of persons in the class must be so large that it would be impractical to bring them before the court; and (c) the person seeking to represent the class must be a member.
    3. A trial court must' consider the following practical problems in determining whether a class action should proceed on a representative basis: (a) the identification of potential class members actually entitled to some recovery; and (b) computation of exactly how much money, if any, each and every potential class member is entitled to receive.

      References for Points in Headnotes

       59 Am Jur 2d, Parties §§ 58, 69 et seq.

       59 Am Jur 2d, Parties § 54 e£ seq.

       59 Am Jur 2d, Parties § 65.

       47 Am Jur 2d, Judgments § 1053. 56 Am Jur 2d, Motions, Rules, and Orders § 42.

       20 Am Jur 2d, Courts §§ 154, 171.

       61 Am Jur 2d, Pleading §§ 229, 232.

       1 Am Jur 2d, Accord and Satisfaction §§ 1, 4.

       1 Am Jur 2d, Accord and Satisfaction § 27.

       73 Am Jur 2d, Summary Judgment § 27.

      4. An order or other form of decision, absent a final judgment, is subject to revision before entry of final judgment.
    5. The circuit court has jurisdiction of a class action if the aggregate of class members’ claims equals or exceeds $10,000, even though no individual class member has a claim in the amount of $10,000.
    6. A motion for summary judgment based upon GCR 1963, 117.2[2] tests the legal sufficiency of the defense as pleaded, and is tested solely by the pleadings. All well-pled allegations must be accepted as true as well as all conclusions that can reasonably be drawn from the factual allegations.
    7. An accord and satisfaction is the substitution of performance agreed upon by the parties to satisfy a disputed claim and an essential requisite of accord and satisfaction is a "meeting of the minds”.
    8. Accord and satisfaction is not a question of fact where the evidence is insufficient to submit to the jury or undisputed and not open to opposing inferences.
    9. The mere existence of issues of fact is no bar to entry of summary judgment, if, upon resolving all such issues in favor of defendant, the plaintiff would still be entitled to judgment as a matter of law.
    Affirmed.
    1. Parties — Class Actions — Representative.
    A party is an adequate representative of the class in a class action where that party has a common interest with class members and there exists no conflict of interest.
    2. Actions — Class Actions — Representative Basis — Requirements.
    An action must meet the following requirements to proceed on a representative basis as a class action: (a) there must be an identifiable class; (b) the number of persons in the class must be so large that it would be impractical to bring them before the court; and (c) the person seeking to represent the class must be a member.
    3. Courts — Class Actions — Considerations.
    A trial court must consider the following practical problems in determining whether a class action should proceed on a representative basis: (a) the identification of potential class members actually entitled to some recovery; and (b) computation of exactly how much money, if any, each and every potential class member is entitled to receive.
    4. Judgments — Orders — Final Judgments.
    An order or other form of decision, absent a final judgment, is subject to revision before entry of final judgment.
    5. Courts — Circuit Courts — Class Actions — Jurisdiction.
    The circuit court has jurisdiction of a class action if the aggregate of class members’ claims equals or exceeds $10,000, even though no individual class member has a claim in the amount of $10,000.
    6. Judgments — Summary Judgments — Motions — Court Rules.
    A motion for summary judgment based upon the failure of a party to state a valid defense to the claim asserted against him tests the legal sufficiency of the defense as pleaded, and is tested solely by the pleadings; all well-pled allegations must be accepted as true as well as all conclusions that can reasonably be drawn from the factual allegations (GCR 1963, 117.2[2]).
    7. Accord and Satisfaction — Elements.
    An accord and satisfaction is the substitution of performance agreed upon by the parties to satisfy a disputed claim, and an essential requisite of accord and satisfaction is a "meeting of the minds”.
    8. Accord and Satisfaction — Question of Fact.
    The question of whether or not a particular set of facts amounts to an accord and satisfaction is not a question of fact where the evidence is insufficient to submit to the jury or undisputed and not open to opposing inferences.
    9. Judgments — Summary Judgments — Issues of Fact.
    The mere existence of issues of fact is not a bar to entry of summary judgment if, upon resolving all such issues in favor of defendant, the plaintiff would still be entitled to judgment as a matter of law.

      MacLean, Seaman, Laing & Guilford (by Charles R. MacLean and Dwight B. Ebaugh), for plaintiff.

      Butzel, Fruhauf, Keidan, Simon, Myers & Graham (by Henry H. Sills), for defendant.

      Before: Cynar, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   V. J. Brennan, J.

This is a class action suit brought by plaintiff Grettenberger Pharmacy on behalf of itself and all similarly situated pharmacies against Blue Cross-Blue Shield of Michigan. Plaintiff claims that it and other pharmacies received improperly reduced dispensing fees under defendant’s prescription program for services performed between January 1, 1975, and April 29, 1975.

A chronology of the litigation surrounding this case is necessary to understand the issues now before us. On February 7, 1973, Grettenberger filed a complaint, alleging that Blue Cross-Blue Shield had modified the existing contract in order to reduce the dispensing fee without amending defendant’s manual as required by the parties’ Service Benefit Prescription Program Participation Agreement. Blue Cross-Blue Shield answered and asserted inter alia that the court was without jurisdiction or power to act in the absence of the other parties to Blue Cross-Blue Shield’s service contract. Grettenberger Pharmacy subsequently filed a motion for partial summary judgment which was granted by the circuit court judge who found that Blue Cross-Blue Shield did not amend the contract as required, and therefore the dispensing fee reduction was illegal. This Court affirmed the circuit court’s granting of partial summary judgment in an unpublished per curiam opinion. Grettenberger Pharmacy, Inc v Blue Cross-Blue Shield of Michigan (Docket No. 24163, April 8, 1976).

Grettenberger Pharmacy then filed an amended complaint and certification of class action, GCR 1963, 208. Blue Cross-Blue Shield answered and asserted inter alia that plaintiffs unique position, the class members’ failure to state claims of greater than $10,000 and the defenses of accord and satisfaction and accounts stated precluded Grettenberger Pharmacy from relief, and moved for accelerated judgment.

On September 8, 1977, Ingham County Circuit Judge Ray C. Hotchkiss granted plaintiffs motion for certification of class action and approved the class action notice and response and claim form which was sent to approximately 1,920 potential class members. Of these, 660 opted into the suit by returning the required form.

On March 7, 1979, plaintiff filed a motion for summary judgment, GCR 1963, 117.2(2) and (3), in order to (a) determine the party plaintiffs as those of the class list submitted to the court; (b) extend the court’s previous partial summary judgment to each plaintiff; (c) fix damages; and (d) determine the claims of the individual plaintiffs. Defendant’s answer in opposition to plaintiff’s motion alleged (a) that plaintiffs unique position and the fact that it was no longer a pharmacy, nor by statute ever could be, precluded it from being a member of the class; (b) improper aggregation; (c) defenses of account stated and accord and satisfaction; and (d) that the fact that many class members returned deficient claim forms precluded the court from granting plaintiff’s motion. On June 8, 1979, plaintiffs motion for summary judgment was granted by Judge Hotchkiss. Defendant now appeals as of right. GCR 1963, 806.1.

Blue Cross-Blue Shield raises three issues on appeal. Appellant first contends that the trial court erred in allowing plaintiff pharmacy’s action to proceed as a class action under GCR 1963, 208.1(3). Specifically, Blue Cross-Blue Shield claims that plaintiff pharmacy was not an adequate representative of the class since plaintiff’s owners sold the business after the complaint was filed but before the trial court’s certification of the class action. Since plaintiff was not engaged in business and was precluded by MCL 338.481; MSA 14.771 from any future pharmaceutical business, Blue Cross-Blue Shield argues that plaintiff was an inadequate representative of the class. Hernandez v Gray, 530 F2d 858 (CA 10, 1976), Free World Foreign Cars v Alfa Romeo, 55 FRD 26 (SD NY, 1972).

In his order, the trial judge correctly stated:

"Plaintiff sold certain assets of the corporation on March 1, 1977, and is not presently engaged in the day-to-day operation of a pharmacy. Plaintiff has retained those assets which would be affected by the outcome of this lawsuit. The claim involved in this case covers the limited period of time from January 1, 1975, through April 29, 1975. There is no question that plaintiff is a member of the class. The claim here involved does not cover a continuing period of time, and it is largely irrelevant whether plaintiff is presently, or will, in the future, be engaged in the daily operation of a pharmacy. Plaintiff has pursued this action with both diligence and competence. The Court believes plaintiff to be an adequate representative of the class.”

We find Blue Cross-Blue Shield’s reliance on both Hernandez, and Free World Foreign Cars v Alfa Romeo, supra, misplaced. In Hernandez, former city employees filed a class action civil rights suit against the city, alleging racial discrimination. The district court dismissed the action. The 10th Circuit Court of Appeals affirmed by rejecting plaintiffs’ argument that they were representatives of the class of present city employees since there had not been an initial determination that plaintiffs were in fact proper representatives of the class and plaintiffs voluntarily left the city employment for reasons unrelated to the complained-of discriminatory practices. In the instant case the trial court had made an initial determination that the plaintiff was a proper representative of the class, and more importantly, unlike Hernandez, plaintiff’s claims were for a fixed period during which plaintiff and all other potential class members were participants in defendant’s drug prescription program.

In Free World Foreign Cars, the district court found that plaintiff’s interest as a former franchisee of defendant was not co-extensive and consistent with those of the present franchisees who apparently depended upon the defendant’s economic viability, since whether the defendant could economically survive against the threat of heavy and burdensome expenses involved in defending a class action was of no concern to the plaintiff, a former franchisee. It was, however, a matter of concern to the present franchise dealers that the defendant remain in business in order to supply automobiles and parts.

While it is true in the instant case that plaintiff was no longer an operating pharmacy, plaintiff did have a common interest with class members (refund of improperly reduced dispensing fees) and there did not exist any conflict of interest. Furthermore, while the presently participating pharmacies would be concerned with the defendant’s financial well-being, we do not believe that the amount of damages involved, approximately $220,-000 plus interest plus costs, would cause defendant’s financial downfall and the termination of dispensing fee arrangements with class members.

Blue Cross-Blue Shield next argues that the trial court’s certification of the class action was inconsistent with the convenient administration of justice standard enunciated in Grigg v Michigan National Bank, 405 Mich 148; 274 NW2d 752 (1979). Appellant asserts that since the determination of the facts concerning eligible claims could be exorbitantly expensive and time-consuming in the instant case, the judge’s ruling was in fact contrary to Grigg.

GCR 1963, 208.1(3) sets forth seven separate requirements which must be satisfied in order for an action to proceed on a representative basis. The relevant requirements in the instant case include: (a) there must be an identifiable class; (b) the number of persons in the class must be so large that it would be impractical to bring them before the court; and (c) the person seeking to represent the class must be a member.

(a) There must be an identifiable class. — If the membership of the group is so amorphous that it cannot be definitely ascertained, there is no "class” and the case cannot proceed on a representative basis. Grigg, 168. In the instant case, Grettenberger Pharmacy was able to obtain Blue Cross-Blue Shield’s micro-film record showing the names and addresses of all potential class members. Plaintiff pharmacy then prepared a list of potential class members and filed it with the trial court. These facts are sufficiently analogous to those in Grigg in which the Supreme Court found the group sufficiently identifiable.

(b) The number of persons must be so large that it would be impractical to bring them before the court. — Of the approximately 1,920 participating pharmacies in the instant case, 660 opted in. While there exists no requisite minimum number to satisfy the court rule, we believe that the number in the instant case fits within the letter and spirit of this requirement. Also, because of the nature of the case, there is no requirement that each member personally appear before the court.

(c) A person seeking to represent the class must be a member of that class. — As indicated, Grettenberger Pharmacy meets this requirement. Although no longer operating as a pharmacy, plaintiff corporation was not dissolved and no interest in the lawsuit was transferred. Fixtures, general inventory items, prescription files and prescription drug items, lease interest and covenant not to compete were involved in the transfer but all other assets not specifically enumerated and all debts, obligations or liabilities were retained.

What remains for consideration under the Grigg rationale is whether the trial court took into account the practical problems that would arise if the case were allowed to proceed on a representative basis. The Grigg Court considered two major practical problems: (a) the identification of potential class members actually entitled to some recovery, and (b) computation of exactly how much money, if any, each and every potential class member was entitled to receive.

In the instant case, plaintiff obtained defendant’s micro-film records showing the names and addresses of all potential class members entitled to a refund of defendant’s improper dispensing fee reduction. In addition, based upon the Claim Form Method of Determination stipulated to by the parties and ordered by the court the trial judge was able to ascertain a complete and accurate identification of those plaintiffs entitled to share in the distribution of the wrongfully withheld dispensing fees, subject to the condition that the class members who opted in cure defects in their respective claim forms within 30 days from the signing of the order granting summary judgment. The trial court’s computation of the determination and distribution of improperly withheld dispensing fees was based upon the arithmetic formula set forth in Bond v Ann Arbor School Dist, 383 Mich 693; 178 NW2d 484 (1970). In accord with Grigg, the trial court did consider the practical problems of the instant case and solved them.

Blue Cross-Blue Shield next argues that the trial court improperly considered its earlier order certifying the class action and dismissing various defense motions when it granted plaintiff’s motion for summary judgment. It is clear that absent a final judgment, an order or other form of decision is subject to revision before entry of final judgment. Patterson v Hopkins, 23 Mich 540, 542 (1871). Cleveland v Detroit, 322 Mich 172; 33 NW2d 747 (1948). While the trial judge could have revised his earlier order at any time prior to granting summary judgment, the record indicates that he reconsidered Blue Cross-Blue Shield’s arguments and determined that his earlier ruling would serve as a basis for summary judgment. Absent authority indicating that it is reversible error for a trial court to choose not to revise a previous order when considering the merits of a motion for summary judgment, appellant’s claim is without merit.

Finally, it appears that Blue Cross-Blue Shield is also contending that the circuit court lacked jurisdiction to. hear this matter because no single class member has a claim in the amount of $10,000. This question is now decided in Michigan. Paley v Coca Cola Co, 389 Mich 583; 209 NW2d 232 (1973). Blue Cross-Blue Shield urges us to follow the Paley dissent noting that since Paley was decided by an equally divided court it does not establish precedent required to be followed under stare decisis. Kangas v New York Life Ins Co, 223 Mich 238, 243; 193 NW 867 (1923). Notwithstanding this argument we note that in light of the Supreme Court’s most recent opinion involving a class action, the aggregation question now appears to be settled in Michigan. In Grigg v Michigan National Bank, supra, no potential plaintiff had a claim of more than a few dollars and plaintiffs had no basis for circuit court jurisdiction other than class status. After a lengthy review of class certification issues, the Court remanded to the circuit court without questioning that court’s jurisdiction of the subject matter.

Appellant frames its second issue as whether the trial court erred in granting plaintiff pharmacy’s motion for summary judgment under GCR 1963, 117.2(2) and (3). In the instant case plaintiff’s motion for summary judgment sought and plaintiff was granted an extension of the trial court’s previous partial summary judgment to the class list as well as an assessment of individual damages. Appellant contends, however, that its affirmative defense of accord and satisfaction was sufficient to defeat plaintiff’s motion.

A motion for summary judgment based upon GCR 1963, 117.2(2) tests the legal sufficiency of the defense as pleaded, and is tested solely by the pleadings. Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974). As this Court recently stated in Michigan National Bank of Detroit v Dunbar, 91 Mich App 385, 387; 283 NW2d 747 (1979):

"[T]he proper test for such a motion would be whether defendants’ defenses are so clearly untenable as a matter of law that no factual development could possibly deny plaintiff’s right to recovery.”

In addition, all well-pled allegations must be accepted as true, Minor-Dietiker v Mary Jane Stores, 2 Mich App 585; 141 NW2d 342 (1966), as well as all conclusions that can reasonably be drawn from the factual allegations. Bashara, The Elusive Summary Judgment Rule: Sifting Through the Maze, 1976 Det Col L Rev 397, 409 (1976).

In the instant case, Judge Hotchkiss concluded that:

"Defendant offers a myriad of defenses to Plaintiffs’ Motion for Summary Judgment. However, the defenses of accounts stated, accord and satisfaction, improper class action, inadequate representative of the class, aggregation, and failure to support the motion with affidavit, are either entirely misplaced or were already specifically rejected in earlier proceedings before this Court.”

The trial court’s previous order granting plaintiffs partial summary judgment addressed the issue of accord and satisfaction as follows:

"Defendant further contends that the claims of the class members are barred by the doctrine of accord and satisfaction. The court finds the doctrine inapplicable in the present case. The reduction of the dispensing fee was the result of unilateral action on the part of defendant. The reduction was not the result of negotiation and was not done with the consent of the potential class members. There was no meeting of the minds or any settlement of a disputed claim. The doctrine of accord and satisfaction does not apply to the facts of this case and does not act as a bar to the claims of the potential class members. See Gitre v Kessler Products Co, Inc, 387 Mich 619 (1972); Green v Millman Brothers, Inc, 7 Mich App 450 (1967).”

An accord and satisfaction is the substitution of performance agreed upon by the parties to satisfy a disputed claim. An essential requisite of accord and satisfaction is a "meeting of the minds”. Serrone Contracting v Avon Twp, 77 Mich App 82; 257 NW2d 667 (1977), citing Gitre, supra.

The record supports the trial judge’s finding that the reduction of the dispensing fee was a unilateral act on the part of Blue Cross-Blue Shield without negotiation or consent of any class members. In fact, Blue Cross-Blue Shield admitted as much in its pleadings. Accordingly, any question as to a "meeting of the minds” or proposed settlement of a disputed claim was precluded as a matter of law. We find, therefore, that no factual development regarding the defense of accord and satisfaction could deny plaintiff pharmacy’s right to recovery because the defense asserted was inapplicable.

Blue Cross-Blue Shield further challenges the trial judge’s granting of summary judgment under GCR 1963, 117.2(3), no genuine issue of material fact, since whether a particular set of facts amounts to accord and satisfaction is generally a question for the trier of fact. Fritz v Marantette, 404 Mich 329; 273 NW2d 425 (1978). However, where the evidence is insufficient to submit to the jury, or undisputed and not open to opposing inferences, accord and satisfaction is not a question of fact. Fritz, supra, 333, citing Urben v Public Bank, 365 Mich 279, 286; 112 NW2d 444 (1961).

Here the record clearly showed and Blue Cross-Blue Shield does not dispute that the improper reduction in dispensing fees was a unilateral act by appellant without negotiation or consent by class members. The trial court was not faced with nor did it improperly determine intent and state of mind. Blue Cross-Blue Shield relies on its assertion that there were issues of fact and thus summary judgment under GCR 1963, 117.2(3) was improper. We disagree. The test is not whether appellant has presented facts sufficient to show a jury submissible case in response to the motion, but rather whether there are genuine issues of material fact. Smith v Woronoff, 75 Mich App 24; 254 NW2d 637 (1977). Northern Plumbing & Heating Inc v Henderson Brothers, Inc, 83 Mich App 84, 90; 268 NW2d 296 (1978). The mere existence of issues of fact is no bar to entry of summary judgment if, upon resolving all such issues in favor of defendant, the plaintiff would still be entitled to judgment as a matter of law. Whittenberg v Carnegie, 328 Mich 125; 42 NW2d 900 (1950).

We find without merit appellant’s final issue challenging the trial judge’s method of computing and creating a damages fund and distributing claims in this class action. The trial court determined and we agree that Bond v Ann Arbor School Dist, 383 Mich 693; 178 NW2d 484 (1970), sets forth the appropriate procedure to be followed in this case. While Blue Cross-Blue Shield relies on Grigg, supra, and Northview Construction Co v St Clair Shores, 399 Mich 184, 211-212; 249 NW2d 290 (1976), both those cases are distinguishable on their facts. Grigg was fraught with practical complexities and burdens which are not evidenced in the instant case while the procedures outlined in Northview were specifically tailored to cope with a 15-20 year delay in litigation.

Accordingly, the trial court’s careful analysis of this issue in its order dated June 8, 1979, in light of the procedural guidelines outlined in Bond, and Metro Homes, Inc v City of Warren, 19 Mich App 664; 173 NW2d 230 (1969), is adopted:

"Defendant’s allegation that the procedures proposed by plaintiffs for determination and distribution of the refund are impermissible and perhaps unconstitutional based upon Northview Construction Co v St Clair Shores, 399 Mich 184 (1976, on rehearing) is likewise without merit. The proposed procedures were specifically adopted in Metro Homes, Inc v City of Warren, 19 Mich App 664 (1969) and Bond v Ann Arbor School District, 383 Mich 693 (1970), and actually Northview tacitly endorsed the procedures therein * * *.
"This Court specifically adopts for determination and distribution of the improperly withheld dispensing fees the procedure articulated by the Court in Bond v Ann Arbor School District, supra. Consistent with Bond, this Court enters judgment against defendant in the sum of $446,334.60 (4,463,346 X $.10), plus interest from the date of collection of the same, April 29, 1975. There shall be subtracted from this amount the itemized, Court approved, fees of plaintiffs’ attorneys, the costs of notification and distribution to the plaintiff class, and other non-taxable costs. Each party plaintiff on the 'Class List’ shall then be paid the percentage amount of their claim which the ratio of the judgment remainder bears to the total judgment. Any funds then outstanding from the total judgment shall be returned to defendant.
"Defendant contends that only those claims specifically reported by those participating party plaintiffs should comprise the refund fund, and moreover that plaintiffs are not entitled to attorneys’ fees. However, the cases cited by defendant are either inapplicable or not binding upon this Court. In fact, in Bond v Ann Arbor School District, supra, 704, the Michigan Supreme Court stated:
"One of the reasons for requiring a refund of the fees in this case is to provide a fund from which can be paid a reasonable attorney fee to the attorneys for plaintiffs.”

Affirmed.

Costs to be paid by defendant.

       Under this program, if one of Blue Cross-Blue Shield’s subscribers has a prescription filled at a participating pharmacy, the subscriber pays to the participating pharmacy a nominal "co-pay” amount. The participating pharmacy then presents a claim to Blue Cross-Blue Shield for reimbursement. A portion of this reimbursement is termed a "dispensing fee” and is determined solely by Blue Cross-Blue Shield.

       GCR 1963, 117.2(2) and (3) provides:
      "The motion for summary judgment shall state that the moving party is entitled to judgment in his favor because of any 1 of the following grounds:
      "(2) the opposing party has failed to state a valid defense to the claim asserted against him,
      "(3) that except as to the amount of damages there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law.”

       Appellant also attacked the granting of the motion for summary judgment on grounds which we have already discussed as without merit: that plaintiff was not a proper class representative and that the trial court lacked jurisdiction to decide the case. Furthermore, appellant’s claim that plaintiff pharmacy did not comply with the affidavit requirement of GCR 1963, 117.3 is not supported by the record. Plaintiff pharmacy filed two affidavits in support of its motion and relied in part upon approximately 660 affidavits of claim regarding liability.

         The procedure set forth in Bond is as follows: First, judgment is entered against defendant for the full amount of the unlawfully collected money and interest from the date of collection and taxable costs. Second, taxable and nontaxable costs are deducted and paid from the total judgment. Third, each individual class claimant is paid a ratio of his actual claims, that ratio being the same as the ratio which the remainder of the judgment (after deduction of taxable and nontaxable costs) bears to the total judgment. Forth, any remaining funds are returned to the defendant.


author: D. C. Riley, P.J.

text:
    PEOPLE v TILLIARD
    Docket No. 46040.
    Submitted December 19, 1979, at Detroit.
    Decide June 3, 1980.
    Donald C. Tilliard was convicted, on his plea of guilty, of breaking and entering an unoccupied dwelling house with intent to commit a larceny therein, Huron Circuit Court, M. Richard Knoblock, J. Defendant appeals, alleging that there was an insufficient factual basis to support his guilty plea and that he should have been credited with time served in jail between conviction and sentencing. He was jailed for that time because of a detainer issued for possible parole violations stemming from the breaking and entering. Held:

    1. Upon questioning by the trial court the defendant repeatedly acknowledged his larcenous intent at the time of the breaking and entering. There was a sufficient factual basis for the plea.
    2. In a case such as this, where the defendant’s post-conviction incarceration is for a different but related charge for. which there has not yet been a conviction, credit should be allowed if the defendant can show a rational nexus between the confinement and the offense for which he is being sentenced. Because the substantive offense and the parole violations are inextricably related, the defendant should be credited with the time served between conviction and sentencing.
    Affirmed, and sentence modified.
    1. Criminal Law — Plea of Guilty — Factual Basis for Plea.
    A defendant’s plea of guilty may be accepted if the judge concludes, from the defendant’s recitation of the facts, that the defendant could be convicted of the offense to which he is pleading and that the defendant is knowingly and voluntarily entering his plea.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 486, 494.1.

       21 Am Jur 2d, Criminal Law § 486.

       21 Am Jur 2d, Criminal Law § 545.5.
    Right to credit for time spent in custody prior to trial or sentence. 77 ALR3d 182.

      2. Criminal Law — Plea of Guilty — Factual Basis for Plea.
    A factual basis exists for a plea of guilty where an inculpatory inference can be drawn from the defendant’s statements even if an exculpatory inference can also be drawn from the statements.
    3. Criminal Law — Sentencing — Credit for Time Served — Related Offenses — Statutes.
    The statute which allows a defendant in certain circumstances to be given credit for time served in jail prior to sentencing should be construed liberally but with regard for the statute’s limited remedial intent; where the time spent in jail is for a different but related charge for which there has not yet been a conviction the credit should be allowed if the defendant can show a rational nexus between the confinement and the offense for which he faces sentencing (MCL 769.11b; MSA 28.1083[2]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Peter B. Capling, Prosecuting Attorney (by Leonard J. Malinowski, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Karl E. Krause, for defendant on appeal.
    Before: D. C. Riley, P.J. and R. B. Burns and D. E. Holbrook, Jr., JJ.
   D. C. Riley, P.J.

Defendant was convicted, on his plea of guilty, of breaking and entering an unoccupied dwelling house with the intent to commit the crime of larceny therein, contrary to MCL 750.110; MSA 28.305. He was sentenced to 6 to 10 years with credit for 48 days already served and now appeals as of right.

Defendant first contends that there was an insufficient factual basis, under GCR 1963, 785.7(3), to support his breaking and entering plea. Specifically, he challenges the proof of his intent to commit larceny, an element that must exist at the time of the breaking and entering. See People v Kochan, 55 Mich App 326, 329; 222 NW2d 317 (1974).

A judge may accept a plea if, after careful examination, he concludes, from the defendant’s recitation of the facts, that he could be convicted and that the defendant is knowingly and voluntarily entering his plea. People v Haack, 396 Mich 367, 378; 240 NW2d 704 (1976). A factual basis exists if an inculpatory inference can be drawn from the defendant’s statements even if an exculpatory inference can be drawn as well. Guilty Plea Cases, 395 Mich 96, 130; 235 NW2d 132 (1975).

In the present case, defendant initially denied his larcenous intent and then moments later admitted it. The judge properly pointed out this inconsistency to defendant and questioned him further about it. We believe that defendant’s repeated acknowledgement of the requisite intent was sufficient to provide a valid factual basis for his plea.

Defendant was incarcerated for 48 days between the time of the crime and the date of arraignment. He was also in jail for 112 days between arraignment and sentencing. Defendant alleges that it was error for the trial judge to credit defendant for the former time served and not for the latter.

MCL 769.11b; MSA 28.1083(2) allows credit for presentence incarceration under certain circumstances:

"Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.”

This statute should be construed liberally, People v Stange, 91 Mich App 596, 600; 283 NW2d 806 (1979), but with proper regard for its limited remedial intent. People v Risher, 78 Mich App 431, 433; 260 NW2d 121 (1977). There has been extensive disagreement about the statute’s coverage, particularly the construction of the phrase "for the offense of which he is convicted”. In some cases, the courts have passively credited defendants with presentence time served for both related or unrelated offenses. See People v Donkers, 70 Mich App 692, 695; 247 NW2d 330 (1976), People v Lewis, 42 Mich App 121; 201 NW2d 341 (1972), People v Haines, 24 Mich App 240; 180 NW2d 107 (1970). In other cases, such credit has been disallowed. See People v Patterson, 392 Mich 83; 219 NW2d 31 (1974), Risher, supra, People v Finn, 74 Mich App 580; 254 NW2d 585 (1977).

In cases like the instant one where the defendant seeks presentence credit for time served for a different but related offense, we believe that a middle approach should govern. It is inappropriate to apply this analysis to post-conviction time served on a related offense as this is time a defendant is already obligated to serve. See Patterson, supra, 88-90. However, the approach may be utilized where a defendant seeks credit for time served on a related charge for which there has not yet been a conviction. See Brinson v Genesee Circuit Judge, 403 Mich 676, 687; 272 NW2d 513 (1978).

To receive this credit, the imprisonment must "bear an intimate and substantial relationship to the crime for which such person is subsequently convicted”. People v Groeneveld, 54 Mich App 424, 427-428; 221 NW2d 254 (1974). A defendant must prove a rational nexus between his prior confinement and the offense for which he now faces sentencing. People v Face, 88 Mich App 435, 439; 276 NW2d 916 (1979).

In the case sub judice, this interrelationship is readily apparent. Defendant received a personal recognizance bond for the present breaking and entering charge but was "unable to furnish bond” within the meaning of the statute because of a Michigan Department of Corrections detainer. This detainer, issued for possible parole violations stemming from the 112 days between arraignment and sentencing.

Since the substantive offense and the parole violations are inextricably related, we believe that defendant should be credited for the preparoleviolation-conviction imprisonment. See Face, supra. We therefore amend defendant’s sentence to credit him with the 112 days served prior to sentencing. GCR 1963, 820.1(7). See People v Heath, 80 Mich App 185, 189; 263 NW2d 58 (1977), People v Lyles, 76 Mich App 688, 691; 257 NW2d 220 (1977).

Affirmed as modified.

       In cases where there are unrelated offenses, such as armed robbery and false pretenses, it is inappropriate in sentencing to award credit on one charge for time served either prior to or following conviction on the other unrelated charge. Cf., People v Donkers, 70 Mich App 692; 247 NW2d 330 (1976), People v Lewis, 42 Mich App 121; 201 NW2d 341 (1972). We believe that ineligibility for credit in such instances is a proper construction of the credit statute’s language and intent. See People v Patterson, 392 Mich 83; 219 NW2d 31 (1974), People v Risher, 78 Mich App 431; 260 NW2d 121 (1977), People v Finn, 74 Mich App 580; 254 NW2d 585 (1977).