author: Banhof, C.J. N. J. Kaufman, J.,

text:
    RECTOR v MICHIGAN SECURITY SYSTEMS, INC
    Docket No. 78-581.
    Submitted December 13, 1978, at Detroit.
    Decided May 22, 1979.
    In lieu of leave to appeal, reversed and remanded for new trial, 407 Mich 864.
    Emily Rector brought a products liability action against Michigan Security Systems, Inc., for damages for personal injuries suffered by the plaintiff and arising out of the defendant’s sale to the plaintiff of a burglar alarm system which failed to function properly. Multi-Elmac Company, the manufacturer of the alarm system in question, was added as a third-party defendant. Judgment of no cause of action, Oakland Circuit Court, Francis X. O’Brien, J. The plaintiff appeals. Held:

    The plaintiff produced some evidence of some defect in the sending unit of the system, the specific nature of which is unclear. However, there was no evidence introduced that would allow one to infer that any of the possible defects was attributable to the defendant. The case should not have gone to the jury because the plaintiff did not sustain her burden of introducing evidence from which the jury could reasonably infer that any defect in the sender existed at the time it left the defendant’s control.
    Affirmed.
    N. J. Kaufman, J., dissented. Sufficient evidence was presented so that it would not have been unreasonable for a jury to infer that the transmitter failure was probably due to a defect attributable to the defendant. The case was properly submitted to the jury. However, he would have no difficulty in affirming the verdict of no cause of action, had the jury been properly instructed. The trial court submitted special questions to the jury, one of which called for a specific identification of the problem with the transmitter. The plaintiff objected to this question arguing that a specific demonstrable defect did not have- to be shown. The answers to the special questions do not appear in the record making it impossible to determine the basis for the jury’s verdict. The jury may have concluded that plaintiff had no cause of action due to the question which erroneously called for specific identification of the problem with the transmitter.

      References for Points in Headnotes
    [1, 4, 5] 63 Am Jur 2d, Products Liability §§ 129, 134, 135.
    Products liability: strict liability in tort. 13 ALR3d 1057.
    Products liability: proof under strict tort liability doctrine, that defect was present when product left hands of defendant. 54 ALR3d 1079.
    [2, 6-8] 63 Am Jur 2d, Products Liability § 22.

       76 Am Jur 2d, Trial §§ 1182, 1183.

      Judge Kaufman would reverse the judgment and remand for a new trial.
    Opinion of the Court
    1. Products Liability — Sale of Defective Product — Evidence — Burden of Proof — Cause of Injury.
    A plaintiff seeking to hold a defendant liable for personal injuries or damages caused by the sale of a defective product has the burden of producing evidence of a defect in the product which caused the injury or damage, whether the action sounds in warranty or negligence.
    2. Products Liability — Evidence — Circumstantial Evidence — Demonstrable Defect.
    The conclusion, in a products liability case, that a product was defective may be drawn from circumstantial evidence without a specific showing of a demonstrable defect.
    3. Evidence — Sufficiency of Evidence — Jury — Appeal and Error — Light Most Favorable to Plaintiff — Trier of Fact.
    The Court of Appeals, when ruling on the issue of whether or not a plaintiff has presented sufficient evidence to submit a case to the jury, must view the evidence presented in a light most favorable to the plaintiff; if there is any competent evidence sufficient to support a verdict for plaintiff, the Court of Appeals may not interfere with the province of the trier of fact.
    4. Products Liability — Evidence — Sufficiency of Evidence —
    Jury — Defect Attributable to Manufacturer — Burden of Proof.
    A products liability action against the manufacturer of a burglar alarm system should not have been submitted to the jury where the plaintiff did not sustain her burden of introducing evidence from which the jury could infer that any of the possible defects was attributable to the defendant or could reasonably infer that any defect in the product existed at the time it left the defendant’s control.

      Dissent by Kaufman, J.
    5. Products Liability — Defect — Causal Connection to Injury — Burden of Proof.

      A plaintiff must prove a defect in a product attributable to a manufacturer and a causal connection between the defect and the injury or damage complained of in order to recover damages from the manufacturer in a products liability action.

    6. Products Liability — Evidence — Direct Evidence — Circumstantial Evidence — Defects.

      A plaintiff in a products liability action may rely on direct or circumstantial evidence in proving the existence of a defect attributable to the manufacturer or seller of the product.

    7. Products Liability — Possible Causes of Product’s Failure — Burden of Proof — Defect Attributable to Manufacturer or Seller.

      A plaintiff in a products liability case is not required to eliminate all possible causes of a product’s failure consistent with the view that there was no manufacturing defect and is not necessarily required to prove a particular malfunction; the plaintiff sustains his burden when he establishes by direct or circumstantial evidence a reasonable probability that the defect, whatever it may be, is attributable to a defendant manufacturer or seller.

    8. Products Liability — Evidence — Jury — Defect — Reasona-
    ble Inferences — Trier of Fact.

      A plaintiff in a products liability case who has presented evidence, direct or circumstantial, from which it is reasonable to infer that an accident was probably caused by a defect attributable to the manufacturer has made out a case for the jury, and the question whether the inference suggested by the plaintiff’s theory is the correct one, or whether it was sufficiently rebutted, is for the jury.

      Lopatin, Miller, Bindes, Freedman & Bluestone (by Michael Gagleard), for plaintiff.

      Dice, Sweeney, Sullivan & Feikens, P.C., for defendant.

      Plunkett, Cooney, Rutt, Watters, Stanczyk &

      Pedersen (by Joseph Walker and Christine D. 01-dani), for third-party defendant.
    Before: Danhof, C.J., and D. C. Riley and N. J. Kaufman, JJ.
   Banhof, C.J.

Plaintiff Emily Rector appeals from a jury verdict of no cause of action in a products liability suit arising out of defendant’s sale to plaintiff of a burglar alarm system. We find it unnecessary to address the issue she raises because we conclude that she presented insufficient evidence to support a reasonable inference that the product contained a defect attributable to defendant. The case should therefore not have been submitted to the jury for decision.

Plaintiff’s proofs at trial were as follows. Plaintiff was a widow living alone in a neighborhood of Detroit which had recently been the scene of several burglaries and muggings. Since her job often caused her to return home later in the evenings, she became apprehensive about her safety. In February, 1971, plaintiff purchased a burglar alarm system for her home from defendant Michigan Security Systems, Inc. Having explained her concerns to Clem Campbell, defendant’s sales representative, and relying upon his recommendation, she also purchased a remote control panic sender device. This consisted of a small, hand-held unit with a push button which, when pressed within a limited range of plaintiff’s home, would transmit a radio signal activating a receiver in her attic. The receiver would then trigger a very loud siren and a flashing light on her roof.

Defendant installed the system in plaintiff’s home in March, 1971. Both plaintiff and defendant tested the system, including the sender device, and found it in satisfactory working order. However, the alarm did go off, apparently without cause, on at least one occasion two or three months after its installation. One of defendant’s installers checked the system the next day, but found nothing amiss. The installer surmised to plaintiff at the time that another object emitting stray radio frequency signals (e.g., a garage door opener, ham radio or a police car radio) might have triggered the alarm, but he otherwise deemed the system to be functioning properly.

Plaintiff experienced no further problems until November 18, 1971. She pulled into her driveway at 9:45 p.m., took the sender in hand, and then, upon opening her car door, sensed someone’s presence. Plaintiff immediately pressed the button on the sender, but the alarm system failed to function. As she continued to futilely press the button, she was dragged from her car and thrown to the ground. Her two assailants escaped with her purse. Plaintiff also sustained a seriously fractured ankle, requiring surgery, and has since suffered numerous complications. One of plaintiff’s neighbors verified that the alarm system had been turned on that day.

Joseph Matcher, a technician employed by Multi-Elmac Company, the manufacturer of plaintiff’s sender and third-party defendant in this case, testified that he had put his initials on a repair invoice indicating that plaintiff’s sender had been repaired on December 2, 1971. Clem Campbell, defendant’s sales representative, stated that both plaintiff’s sender and receiver had been replaced after November 18, 1971, and that he did not know what happened to the replaced sender. He also testified that he had tested the sender in plaintiff’s home after November 18, that it did not function at that time, and that Multi-Elmac had subsequently reported that the sender was "out of frequency”.

Phil Latona, the installer of plaintiffs system, testified that he had never tested the sender in plaintiffs car. He also admitted that he was not very familiar with the internal mechanism of the sender. Although he could tell whether it was functioning or not, he could not fully test it after installation to determine whether potential or latent defects existed. Plaintiff rested her case.

While plaintiff has the burden of proof to establish a defect attributable to defendant, we will also take into account the testimony offered by third-party defendant Multi-Elmac which, in certain respects, plaintiff relied on to establish her prima facie case. Joseph Matcher, Multi-Elmac’s repair technician, was recalled to testify regarding the repairs he had performed on plaintiffs sender. Based on the notations he had made in his repair invoice, he stated that he had found no workmanship defect. He had done a slight tuning adjustment to bring the sender closer to the standard frequency specification. But again according to the invoice, he testified that the sender was probably within frequency specifications because he would normally have noted any need for major adjustment. Matcher then stated that he had marked a column on the invoice entitled "component failure”, and that the notation might have referred to a defective battery in the sender. Matcher also testified that he had replaced the push button on the unit, but did not know whether the replacement was for esthetic reasons (e.gworn or dirty appearance) or because it was defective.

Finally, Peter Wallen, an electronics engineer from Multi-Elmac, testified extensively as to various factors affecting the functional capacity of the sender and receiver. He stated that atmospheric changes, other objects emitting radio signals, the metal of a car dashboard, the tinted glass of a car windshield and abusive treatment of the sender could all result in or contribute to desensitizing the receiver or interfering with the transmitting capacity of the sender. In his opinion, the sender must have been functioning correctly when it left the manufacturer or it would not have worked properly for eight months thereafter.

Plaintiff submitted her case to the jury on the theories of defendant’s negligence and of defendant’s breach of an implied warranty of reasonable fitness for the purpose intended. Under either theory, plaintiff must initially prove a defect attributable to the defendant. Piercefield v Remington Arms Co, Inc, 375 Mich 85, 98-99; 133 NW2d 129 (1965), Snider v Bob Thibodeau Ford, Inc, 42 Mich App 708, 713; 202 NW2d 727 (1972), Caldwell v Fox, 394 Mich 401, 410; 231 NW2d 46 (1975).

Although the proofs suggest a number of possible causes for malfunction of the sender, plaintiff never sought to pinpoint the specific nature of the alleged defect. This is, however, not necessarily fatal to her case if one could reasonably infer from circumstantial evidence that a defect did exist. See Kujawski v Cohen, 56 Mich App 533; 224 NW2d 908 (1974), Bronson v J L Hudson Co, 376 Mich 98; 135 NW2d 388 (1965), Piper v Tensor Corp, 71 Mich App 658; 248 NW2d 659 (1976), Garmo v General Motors Corp, 45 Mich App 703; 207 NW2d 146 (1973).

We also preliminarily note that we must view the evidence in the light most favorable to the plaintiff. If there is any competent evidence sufficient to support a verdict for plaintiff, we may not interfere with the province of the trier of fact. See Kujawski, supra, at 535-538. The comparative probability or plausibility of competing theories is not for this Court or a trial court to decide. Holloway v General Motors Corp (On Rehearing), 403 Mich 614; 271 NW2d 777 (1978), rev’g 399 Mich 617; 250 NW2d 736 (1977).

Plaintiff sufficiently established that the sender malfunctioned on the date of her injury, and that it was still nonfunctional when defendant’s employees later checked the alarm system at her home. Proofs were also adduced that thereafter her alarm system only operated properly by remote control when the sender was replaced, that both the battery and the push button of plaintiff’s sender were replaced, and that the sender required adjustment to frequency specifications after the initial date of malfunction. Although the nature of the specific defect is not clear, one may reasonably infer that either one cause alone, or a combination of causes, rendered the plaintiff’s sender defective on November 18, 1971.

However, one cannot reasonably infer that any of the aforementioned possible defects is attributable to defendant. Plaintiff stated that the alarm system, including the sender, worked properly from the date of installation until the date of her injury, a period of some eight months. The one possible exception was a false alarm about two or three months after installation. But the only explanation offered was that a stray radio signal had activated the receiver. Plaintiff made no showing that the receiver was defective then or on November 18, 1971. If anything, the false alarm seems to attest to the sensitivity of the receiver. In addition, this incident cannot be linked to the operation or malfunction of the sender and is thus not probative of any existing defect in that unit. Compare, Snider, supra, Piper, supra, and Garmo, supra, in which a history of repairs to or of difficulties with the alleged defective part aided in establishing a link between defendant and the defect.

If the sender functioned appropriately for eight months without evidence of defect, one must then be able to reasonably infer that the defect or defects revealed by the later malfunction were latent in the product at the time the defendant sold it to plaintiff. See Holloway, supra. The mere fact of malfunction does not give rise to any necessary inference as to when the defect arose.

Third-party defendant’s repair technician testified that the sender’s battery and push button were replaced, and that he adjusted the unit to meet frequency specifications. Batteries are not components which one would expect to function indefinitely. They are subject to wear, must be replaced periodically, and are not evidence of a latent defect attributable to defendant. As for the push button, it was unclear whether the part was replaced because it was actually defective or merely worn in appearance. While one might reasonably infer that it was broken at the time of repair, there is no showing as to why, how or when the push button might have been damaged. The connection between a possibly defective push button in December, 1971, the cause of which defect in any case remains unknown, and the existence of a defect in March, 1971, attributable to defendant is tenuous in the extreme. See Kup kowski v Avis Ford, Inc, 395 Mich 155; 235 NW2d 324 (1975), aff'g 51 Mich App 668; 215 NW2d 767 (1974).

Neither will the tuning of the sender to meet frequency specifications support a finding of a defect attributable to defendant. The repair technician testified that he most probably only made a slight tuning adjustment to meet more closely the standard sender frequency specifications and that the sender was probably within the appropriate frequency range because he would have noted any necessity for major adjustment on the repair invoice. It is of course possible to infer that the sender was sufficiently "out of frequency” to malfunction on the date of plaintiffs injury or that the variance from standard frequency contributed to the failure of the alarm system. But again, any further inference as to the existence of such a defect in March, 1971, is purely speculative and not supported by proofs at trial. See Meli v General Motors Corp, 37 Mich App 514; 195 NW2d 85 (1972).

Regarding other reasons offered by Multi-Elmac’s expert witness for malfunction of the sender, including atmospheric variations and other types of interference with transmission of the signal, they were simply conjectural and not shown to be linked to the particular malfunction of plaintiffs sender. We conclude from the above analysis that plaintiff did not sustain her burden of introducing evidence from which the jury could reasonably infer that any defect in the sender existed at the time it left defendant’s control.

Affirmed. Costs to defendant.

D. C. Riley, J., concurred.

N. J. Kaufman, J.,

(dissenting). I agree with the majority’s recitation of the facts; however, in light of the recent Michigan case law on products liability, I must dissent. While there is some confusion in Michigan as to the proper designation of products liability claims, there is no doubt that we recognize the existence of an implied warranty of fitness for a particular purpose. MCL 440.2315; MSA 19.2315; Holloway v General Motors Corp (On Rehearing), 403 Mich 614; 271 NW2d 777 (1978) (hereinafter Holloway II), Holloway v General Motors Corp, 399 Mich 617; 250 NW2d 736 (1977) (hereinafter Holloway I), and see MCL 440:2314; MSA 19.2314 and Piercefield v Remington Arms Co, Inc, 375 Mich 85; 133 NW2d 129 (1965).

To recover under the theory, plaintiff must prove a defect attributable to the manufacturer and a causal connection between that defect and the injury or damage of which she complains. Holloway I, supra, 624-625, Kupkowski v Avis Ford, Inc, 395 Mich 155, 160-161; 235 NW2d 324 (1975), Caldwell v Fox, 394 Mich 401, 410; 231 NW2d 46 (1975), Piercefield, supra, 98-99. This doctrine was extended to sellers of defective goods in Bronson v J L Hudson Co, 376 Mich 98; 135 NW2d 388 (1965).

In proving the existence of a defect attributable to the manufacturer or seller, a plaintiff may rely on direct or circumstantial evidence. Holloway II, supra, 618, 619, and see Schedlbauer v Chris-Craft Corp, 381 Mich 217; 160 NW2d 889 (1968), Bronson, supra. However, a plaintiff is not required to eliminate all possible causes of the product failure consistent with the view that there was no manufacturing defect. And a plaintiff is not necessarily required to prove a particular malfunction. She sustains her burden when she establishes by direct or circumstantial evidence a reasonable probability that the defect, whatever it may be, is attributable to the defendant manufacturer or seller. Holloway, II, supra, 618, 621, 626-629, Snider v Bob Thibodeau Ford, Inc, 42 Mich App 708, 713-716; 202 NW2d 727 (1972).

The majority indicates that the case should not have been submitted to the jury because plaintiff presented insufficient evidence to support an inference that the product contained a defect attributable to the defendant. However, as explained in Holloway II, supra, 622:

"On a motion for directed verdict, the question is whether it is reasonable to infer from the evidence, direct or circumstantial, that the accident was probably caused by a defect attributable to the manufacturer. Questions of comparative probability are to be resolved by the trier of fact. As stated in Schoepper v Hancock Chemical Co, 113 Mich 582, 586, 589; 71 NW 1081 (1897), and since reaffirmed in Schedlbauer v Chris-Craft Corp, 381 Mich 217, 230-231; 160 NW2d 889 (1968):
" 'It is true that where an injury occurs that cannot be accounted for and where the occasion of it rests wholly in conjecture, the case may fail for want of proof. * * * But such cases are rare, and that rule should never be so extended as to result in a failure of justice, or in denying an injured person a right of action where there is room for balancing the probabilities, and for drawing reasonable inferences better supported upon one side than upon the other. * * * [T]he question of whether the inference suggested by the plaintiff’s theory is the correct one, or whether it was sufficiently rebutted, was for the jury.’ (Emphasis supplied.)” (Footnotes omitted.)

As also stated in Smith v E R Squibb & Sons, Inc, 405 Mich 79, 89; 273 NW2d 476 (1979):

"The distinction between the elements of negligence and breach of implied warranty is that in the former plaintiff must prove that the defect was caused by the manufacturer’s negligence, whereas under the warranty theory, plaintiff need only establish that the defect was attributable to the manufacturer, regardless of the amount of care utilized by the manufacturer.”

In the instant case, the facts show that plaintiff was concerned for her safety and bought a burglar alarm system for her home from defendant. Pursuant to the recommendation of defendant’s sales representative, she also purchased a remote control panic sender device. When the events which she feared might happen occurred on the evening of November 18, 1971, the alarm system failed to function even though plaintiff claims she "was pressing this thing [transmitter button] for dear life”.

Testimony at trial from defendant’s salesman and the third-party defendant’s expert disclosed that several things could have happened to the transmitter to cause it to fail. It may have been out of frequency, the button may have jammed, or it may have been interfered with by a stray radio signal or blocked by some barrier. In any event, we do know that one of defendant’s service employees made at least one call to plaintiffs residence because of a false alarm subsequent to the installation of the system, but prior to November 18, 1971. We also know that the transmitter was tested twice at plaintiff’s home a few days after the attack, and while plaintiff was in the hospital, but it did not work, that replacement batteries did not correct the problem at either test, that the device was repaired on December 2, 1971, and the push button was replaced, that the repair invoice indicated a frequency adjustment and a component failure, that the transmitter was not returned to plaintiff and defendant does not know where it is, and that defendant replaced plaintiff’s transmitter and receiver with a different brand.

In view of these facts, I cannot say it would be unreasonable for a jury to infer that the transmitter failure was probably due to a defect attributable to the defendant. Questions of comparative probability are to be resolved by the trier of fact, Holloway II, supra, 622. Therefore, the case was properly submitted to the jury.

This was a hard fought case with numerous objections. The trial judge did an admirable job in trying to keep the case clear in the minds of the jurors. And, if the instructions to the jury were correct, I would have no difficulty affirming the verdict. However, the instruction on one crucial aspect of the case was not correct. While the judge properly instructed the jury on most matters, he also submitted special questions to the jury, one of which asked:

"2. Was the Multi-Elmac transmitter defective at the time if [sic] left the hands of:
(a) the manufacturer, Multi-Elmac?
(b) the seller, Michigan Security Systems?
(c) If the answer to (a) or (b) above is yes, what was the defect?” (Emphasis added.)

Plaintiff objected to question 2(c) because "It’s our position, Your Honor, that in our case we don’t have to show a specific demonstrable defect”. Plaintiff’s objection was noted but overruled. Despite the special questions, the jury returned a general verdict of no cause of action and its answers to the special questions do not appear in the record. Accordingly, it is not possible to determine the basis of the jury’s verdict. The jury may have concluded that plaintiff had no cause of action due to question 2(c).

Question 2(c) called for a specific identification of the problem with the transmitter. This was error. The question likely left the jury with the incorrect notion that plaintiff was required to pinpoint the defect or lose her case. But, as previously stated, plaintiff was not required to prove a particular malfunction. She sustained her burden of showing a defect attributable to the defendant if she established by direct or circumstantial evidence a reasonable probability that the defect, whatever it might be, was attributable to the defendant. Holloway II, supra, 618, 621, 626-629, Snider, supra, 713-716.

The evidence suggested a number of conceivable loci for the alleged defect in the transmitter: the push button, the batteries, a tendency to wander from frequency specifications, or excessive susceptibility to interference. Plaintiff never sought to pinpoint the nature of the defect in design or assembly, but that was not her task. Rather, plaintiff relied on the pre-attack false alarm, the November 18, 1971, malfunction itself, and the post-malfunction repairs and replacements to support a reasonable inference that the transmitter was somehow defective.

It is certainly true that plaintiff’s case amounts to a collection of discrete suggestions that the transmitter was faulty in one or more respects. But, taken together, plaintiff’s evidence allows the inference that some defect was present when the transmitter left defendant’s hands. Whether that inference is the most probable inference was a question to be given to the trier of fact under proper instructions. Special question 2(c) was not a proper instruction. Therefore, I would reverse the verdict and remand the case for a new trial.

       Matcher testified that, at the time he made the repairs on plaintiffs sender, he was unaware of the circumstances under which it had failed to function. Neither did he know that a lawsuit would later be filed on the basis of alleged defects in the sender.

       Plaintiff argued below that the push button might possibly have been broken when she, in her panic, pressed it hard and repeatedly in an attempt to activate the alarm system. Plaintiff further contended that this theory would support a conclusion of lack of reasonable fitness of the product for the purpose intended. While we concede the theoretical possibility of plaintiffs contention, we nevertheless emphasize that one must speculate on the basis of an inference to even reach a conclusion as to the cause of any damage to the push button.

       I will not get into a lengthy discussion regarding the difference, real or imagined, in Michigan between strict liability in tort and breach of implied warranty of fitness for a particular purpose. For representative discussions on this question, see Johnson v Chrysler Corp, 74 Mich App 532, 535-536; 254 NW2d 569 (1977), and Dooms v Stewart Bolling & Co, 68 Mich App 5, 10-16; 241 NW2d 738 (1976). See also Prosser, Law of Torts, pp 650-658, 671-672 (4th ed 1971); Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn L Rev 791, 800-805 (1966); Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L J, 1099, 1133-1134 (1960); 2 Frumer and Friedman, Products Liability, ch 3 (1978). I leave that issue to the Michigan Supreme Court and limit my dissent to the theory of implied warranty for a particular purpose.

       The focus of the instant case is on the first part of the implied warranty theory: proof that there is a product defect attributable to the defendant.

       The procedure used here was agreed to by the parties and is not an issue on appeal. For these reasons, I decline comment on the propriety of the procedure. See generally, GCR 1963, 514; 6 Callaghan’s Michigan Pleading & Practice (2d ed) § 39.01, p 313.

       There are, of course, numerous other possibilities. The jury may have disbelieved plaintiff when she said she pushed the button. Or the jury may have found no causal connection between the product malfunction and plaintiff’s injuries. Either of these determinations could have been legitimate. However, the record in this case does not permit me to conclude that the jury did not base its decision on the misleading question.


source: Caselaw Access Project

author: R. M. Maher, J.

license: Public Domain

text:
    SHINABARGER v CITIZENS MUTUAL INSURANCE COMPANY
    Docket No. 78-843.
    Submitted February 7, 1979, at Lansing.
    Decided May 22, 1979.
    Leave To appeal applied for.
    Gary Shinabarger was fatally wounded when a shotgun accidentally discharged as he was handing the shotgun to a friend seated in an automobile. Shinabarger was attempting to enter the automobile at the time. The automobile was owned by a friend and was insured by Citizens Mutual Insurance Company. Shinabarger owned an automobile which was insured by Detroit Automobile Inter-Insurance Exchange. Mary Shinabarger, the widow, and the minor children of the deceased by their next friend Charles Hiemstra, brought an action against the two insurers for payment of personal protection and survivor’s benefits as authorized by the no-fault insurance statute. The Kent Circuit Court, George V. Boucher, J., found that the no-fault statute imposed liability on Citizens, as the insurer of the automobile in which the accident occurred, and granted DAI-IE’s motion for summary judgment. Citizens appeals. Held:

    1. Under the statute, the injured person should recover benefits first from his own insurer and insurers of members of his immediate household and only secondarily from insurers of other persons involved in the accident. Therefore, the plaintiffs must recover benefits, if they recover at all, from DAIIE, rather than Citizens.
    2. The trial court also erred in granting summary judgment for the plaintiffs on the issue of liability. The court found that plaintiffs were entitled to recover benefits as a matter of law. However, in order that an insured may qualify for payment of benefits, there must be a causal connection between the injury and the use of the vehicle, and in this case the record does not establish such a causal connection.
    Reversed, and remanded for a new trial.
    References for Points in Headnotes
    [1] Am Jur New Topic Service, No-Fault Insurance § 8.

       7 Am Jur 2d, Automobile Insurance § 82.
    Automobile liability insurance: what are accidents or injuries “arising out of ownership, maintenance, or use” of insured vehicle. 89 ALR2d 150.

       7 Am Jur 2d, Automobile Insurance § 90.

      1. Automobiles — Insurance — Statutes — Personal Protection Benefits.
    The section of the no-fault automobile insurance statute which provides for payment of personal protection benefits is intended to require that an injured person look first to his own insurer and insurers of members of his immediate household, and only secondarily to insurers of other persons involved in the accident (MCL 500.3114; MSA 24.13114).
    3. Automobiles — Insurance — Use of Motor Vehicle — Causal Connection.
    An injured person must establish a causal connection between the use of a motor vehicle and the injury in order to qualify for insurance coverage for an injury "arising out of the use of a motor vehicle as a motor vehicle”; where use of the vehicle is one of the causes of the injury a sufficient causal connection is established even though another independent cause exists.
    3. Automobiles — Insurance — Use of Motor Vehicle — Site of Injury.
    The fact that a vehicle is the site of an injury will not suffice to bring the injury within the coverage of an insurance policy which provides coverage for injury "arising out of the use of a motor vehicle as a motor vehicle” where the injury is entirely the result of an independent cause in no way related to the use of the vehicle.
    4. Automobiles — Insurance — Loading Vehicle — Causal Connection.
    Loading of a motor vehicle is use of the motor vehicle for the purposes of a no-fault automobile insurance policy; however, where a person is injured a causal connection between the loading process and the injury must be shown in order to qualify the injured person for payment of benefits under the policy.

      Reamon, Williams, Klukowski, Craft, Wood & Drew, P.C., for plaintiffs.

      Hillman, Baxter & Hammond (by Stephen D. Turner and Michael D. Wade), for defendant Citizens Mutual Insurance Company.

      Allaben, Massie, Vander Weyden & Timmer, for defendant Detroit Automobile Inter-Insurance Exchange.
    Before: Bashara, P.J., and V. J. Brennan and R. M. Maher, JJ.
   R. M. Maher, J.

Defendant Citizens Mutual Insurance Company brings this appeal from the trial court’s denial of its motion for judgment n.o.v. or, in the alternative, for a new trial, on grounds that the trial court erred in finding Citizens liable to plaintiffs as a matter of law and in finding defendant Detroit Automobile Inter-Insurance Exchange not liable as a matter of law. Plaintiffs sought personal protection insurance and survivor’s benefits, under policies of no-fault automobile insurance issued by defendants, for the injury to and subsequent death of Gary Shinabarger, husband to Mary Shinabarger and father of the minor plaintiffs.

On October 19, 1975, Gary Shinabarger and several friends, including Donald Alexander, were engaged in "shining” deer, using Alexander’s automobile. Shinabarger, who was driving, spotted a deer, stopped the car, and got out to shoot at the animal, apparently without success. He then sought to reenter the automobile, handing the shotgun to the person sitting in the right front seat. At some point, either during the process of handing in the gun or immediately thereafter, the shotgun accidentally discharged, fatally wounding Shinabarger in the head.

Gary Shinabarger owned an automobile which was insured by defendant BAIIE. Defendant Citizens insured the automobile in which the accident took place. Plaintiffs brought this action to recover survivor’s benefits as authorized by the no-fault insurance act, joining both insurance companies as defendants. Both defendants moved for summary judgment on grounds that the priority provisions of the no-fault act imposed liability, if any, on the other insurer. The trial court denied Citizens’ motion and granted DAIIE’s motion, holding that § 3114 of the no-fault act, MCL 500.3114; MSA 24.13114, imposed liability on the insurer of the automobile which was the site of the accident, rather than upon the insurer of the injured person. In this, we find that the court erred.

MCL 500.3114; MSA 24.13114 provides in pertinent part:

"(1) Except as provided in subsections (2) and (3), a personal protection insurance policy applies to accidental bodily injury to the person named in the policy, his spouse, and a relative of either domiciled in the same household. When personal protection insurance benefits are payable to or for the benefit of an injured person under his own policy and would also be payable under the policy of his spouse, relative, or relative’s spouse, the injured person’s insurer shall pay all of the benefits and shall not be entitled to recoupment from the other insurer.
"(4) Except as provided in subsections (1) to (3), a person suffering accidental bodily injury while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
"(a) The insurer of the owner or registrant of the vehicle occupied.
"(b) The insurer of the operator of the vehicle occupied.” (Emphasis added.)

The trial court apparently read subsection (1) of § 3114 as establishing priorities only where multiple policies exist within the same household, see Porter v Michigan Mutual Liability Co, 80 Mich App 145; 263 NW2d 318 (1977), Danhof, C.J., dissenting. We read subsection (1) as requiring an injured person to seek benefits first from his own insurer, then from the insurer of his spouse or of another relative domiciled in the same household. We read subsection (4) as establishing priorities as among insurers of owners and operators of vehicles involved in an accident, where no other policy may be found which covers an injured person; that is, subsection (4) applies only as a last resort, where neither the injured person, nor his spouse, nor a relative of either domiciled in the same household has purchased a no-fault automobile insurance policy. We think a careful reading of the statute clearly reveals an intent to require an injured person to look first to his own insurer and insurers of members of his immediate household, and only secondarily to insurers of other persons involved in an accident. Our reading of § 3114 is supported by the decisions in several other recent cases dealing with coverage of injuries to nonoccupants of motor vehicles, see Porter v Michigan Mutual Liability Co, supra, Piersante v American Fidelity Fire Ins Co, 88 Mich App 607; 278 NW2d 691 (1979), Esquivel v American Fidelity Fire Ins Co, 90 Mich App 56; — NW2d — (1979).

In the case at bar, plaintiffs must recover benefits, if they recover at all, from DAIIE rather than Citizens.

The more difficult question presented by this appeal is whether the trial court erred in granting summary judgment for plaintiffs on the issue of liability. We conclude that it did, for the reasons set forth below.

The scope of coverage of no-fault insurance is set forth in MCL 500.3105; MSA 24.13105, which provides in subsection (1):

"Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.”

As for injuries relating to parked vehicles, MCL 500.3106; MSA 24.13106 sets up certain additional criteria:

"Accidental bodily injury does not arise out of the ownership, operation, maintenance or use of a parked vehicle as a motor vehicle unless any of the following occur:
"(a) The vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred.
"(b) The injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process.
"(c) The injury was sustained by a person while occupying, entering into or alighting from the vehicle.”

The trial court in the case now before us held that plaintiffs were entitled to recover benefits as a matter of law, and granted summary judgment for plaintiffs against defendant Citizens Mutual Insurance Company. We are of the opinion that the trial court erred in finding liability as a matter of law on this record. Accordingly, we reverse and remand for a trial on the merits.

We infer from comments made by the trial court during argument on plaintiffs’ motion for summary judgment that the court reasoned that because plaintiffs’ decedent was entering into or occupying a motor vehicle at the time of the injury, the injury was per se an injury arising out of the use of a motor vehicle as a motor vehicle, without regard to the existence of any causal connection between use of the vehicle and the injury. However, cases construing the phrase "arising out of the * * * use of a motor vehicle as a motor vehicle” uniformly require that the injured person establish a causal connection between the use of the motor vehicle and the injury. See Anno: Automobile liability insurance: what are accidents or injuries "arising out of ownership, maintenance, or use” of insured vehicle, 89 ALR2d 150. Where use of the vehicle is one of the causes of the injury, a sufficient causal connection is established even though there exists an independent cause, see State Farm Mutual Automobile Ins Co v Partridge, 10 Cal 3d 94; 109 Cal Rptr 811; 514 P2d 123 (1973), Cagle v Playland Amusement, Inc, 202 So 2d 396 (La App, 1967).

The relationship between use of the vehicle and the injury need not approach proximate cause.

"[T]he term 'arising out of does not mean proximate cause in the strict legal sense, nor require a finding that the injury was directly and proximately caused by the use of the vehicle, nor that the insured vehicle was exerting any physical force upon the instrumentality which was the immediate cause of the injury. That almost any causal connection or relationship will do, see Travelers Ins Co v Aetna Cas & Sur Co, 491 SW2d 363 [Tenn 1973]: 'Case law indicates that the injury need not be the proximate result of "use” in the strict sense, but it cannot be extended to something distinctly remote. [Cit.] Each case turns on its precise individual facts. The question to be answered is whether the injury "originated from”, "had its origin in”, "grew out of’, or "flowed from” the use of the vehicle.’ ”

Southeastern Fidelity Ins Co v Stevens, 142 Ga App 562, 563-564; 236 SE2d 550, 551 (1977). See also Baudin v Traders & General Ins Co, 201 So 2d 379 (La App, 1967), Reliance Ins Co v Walker, 33 NC App 15; 234 SE2d 206 (1977).

Where the injury is entirely the result of an independent cause in no way related to the use of the vehicle, however, the fact that the vehicle is the site of the injury will not suffice to bring it within the policy coverage, see Nationwide Mutual Ins Co v Knight, 34 NC App 96; 237 SE2d 341 (1977), Feltner v Hartford Accident & Indemnity Co, 336 So 2d 142 (Fla App, 1976), American Liberty Ins Co v Soules, 288 Ala 163; 258 So 2d 872 (1972), Azar v Employers Casualty Co, 178 Colo 58; 495 P2d 554 (1972), Brenner v Aetna Ins Co, 8 Ariz App 272; 445 P2d 474 (1968), Richland Knox Mutual Ins Co v Kallen, 376 F2d 360 (CA 6, 1967). See also Kraus v Allstate Ins Co, 379 F2d 443 (CA 3, 1967).

Section 3106, which establishes criteria for accidents involving parked vehicles, does not abrogate the need for a causal connection between the automobile and the injury. As the wording of the section makes clear, it establishes only minimum criteria for accidents involving parked vehicles. Under § 3106, no injury involving a parked vehicle may be compensated for unless one of the criteria therein is met; however, fulfillment of the requirements of § 3106 does not automatically result in liability, Even after the threshold of § 3106 is prossqd, it must still be established that the injury arose opt of the ownership, operation, maintenance or use of the motor vehicle.

Although the parties in the case at bar agreed that the m°tor vehicle was the site of the injury suffered by Shinabarger, there was no stipulation that the use of the vehicle was a cause of the accident. Indeed, there is nothing in the record before us to indicate what caused the shotgun to discharge, Because the record does not establish a causal connection between use of the vehicle and the injury, the trial court erred in finding liability as a matter of law.

Plaintiffs argue on appeal that the injury to Gary Shinabarger occurred during the loading process, that loading is use of a motor vehicle as a motor vehicle, and that plaintiffs are therefore entitled to benefits. We agree that loading is use of a motor vehicle, especially so where there exists a separate loading clause in the policy description of coverage. See Colorado Farm Bureau Mutual Ins Co v West American Ins Co, 35 Colo App 380; 540 P2d 1112 (1975), Travelers Ins Co v Aetna Casualty & Surety Co, 491 SW2d 363 (Tenn, 1973), Dairyland Ins Co v Concrete Products Co, 203 NW2d 558 (Iowa, 1973), St Paul Mercury Ins Co v Huitt, 336 F2d 37 (CA 6, 1964), Allstate Ins Co v Valdez, 190 F Supp 893 (ED Mich, 1961). The requirement of a causal connection between the loading process and the injury, however, remains. See Allstate Ins Co v Truck Ins Exchange, 63 Wisc 2d 148; 216 NW2d 205 (1974), Cosmopolitan Mutual Ins Co v Baltimore & Ohio R Co, 18 App Div 2d 460; 240 NYS2d 88 (1963). In cases involving accidental discharge of a firearm, the courts have, in general, been more liberal in finding a causal connection between use of the automobile and the injury where the accident occurred during the loading process than when the accident occurred in or near the vehicle, but not during loading. Compare United States Fidelity & Guaranty Co v Western Fire Ins Co, 450 SW2d 491 (Ky App, 1970), and National Farmers Union Property & Casualty Co v Gibbons, 338 F Supp 430 (D ND, 1972), with Unigard Mutual Ins Co v State Farm Mutual Automobile Ins Co, 466 F2d 865 (CA 10, 1972), and Laviana v Shelby Mutual Ins Co, 224 F Supp 563 (D Vt, 1963). But see Watson v Watson, 326 So 2d 48 (Fla App, 1976), and Reliance Ins Co v Walker, supra.

In the case at bar, the record does not clearly reveal whether the accident occurred during the loading process and, if it did, whether there was a causal connection between the loading process and the injury. We therefore conclude that the trial court’s grant of summary judgment may not be upheld on the basis of the loading provision of § 3106.

We reverse the judgment and remand for trial on the issue of liability. Because defendant DAIIE has not had the opportunity to present evidence on the issue of damages, the verdict of the jury is likewise set aside and a new trial on the question of damages is ordered. No costs, neither party having prevailed in full.

       The issue of damages was tried to a jury, which returned a verdict in the amount of $5,500. Although plaintiffs filed a cross-appeal in this matter, they failed to file a brief in support of their cross-appeal. Although they seek to challenge the amount of the jury verdict in their brief in answer to defendant’s appeal, we do not consider the question. Plaintiffs have abandoned their cross-appeal by their failure to file a brief in support thereof as required by GCR 1963, 815.

       At oral argument, attorneys for both defendants agreed that DAIIE was the insurer from whom benefits would be due if liability were established.

       The grounds upon which the trial court based its decision are not clear, the court’s opinion on this matter not having been filed with the record on appeal.

       We do not mean to imply that, where the undisputed facts establish liability as a matter of law, summary judgment may not be granted. The difficulty in this case is that the facts necessary to a finding of liability were not undisputed. Similarly, if the proofs adduced at trial establish liability as a matter of law, a directed verdict may be appropriate.


author: R. B. Burns, P.J. Allen, J.

text:
    PEOPLE v WILSON
    Docket No. 78-1435.
    Submitted March 6, 1979, at Grand Rapids.
    Decided May 22, 1979.
    Leave to appeal applied for.
    James W. Wilson was convicted of first-degree murder. The defense was alibi. The prosecution, having filed a notice of rebuttal on the day of trial, sought to call in rebuttal to the alibi defense a witness listed on defendant’s notice of alibi defense, but not called by defendant at trial and not listed on the notice of rebuttal. Defendant objected. The Van Burén Circuit Court, Meyer Warshawsky, J., found that defendant would not be surprised by that witness’s testimony, overruled the objection and permitted the witness to testify. The testimony of the witness directly contradicted defendant’s alibi. Defendant appeals. Held:

    1. Testimony which directly contradicts defendant’s alibi is rebuttal testimony, and as such, the prosecution is required to give defendant the statutorily required notice of rebuttal.
    2. The prosecution is not excused from giving the statutorily required notice of rebuttal by reason of the fact that the witness called in rebuttal was listed on defendant’s notice of alibi.
    3. The statute requiring the prosecution to give notice of rebuttal contemplates service of written notice in advance of trial, so that defendant can formulate trial strategy and will not be surprised.
    4. Failure by the prosecution timely to give the statutorily required notice of rebuttal and the failure to list the rebuttal witness on the notice requires exclusion of the testimony of the rebuttal witness.
    Reversed and remanded for new trial.
    Allen, J., dissented. He would hold that the trial court has the discretion to admit rebuttal testimony, even in the absence of a timely notice of rebuttal being filed by the prosecution, where the witness called by the prosecution was listed on defendant’s notice of alibi defense, and defendant was not surprised by such testimony. He would affirm the conviction.

      References for Points in Headnotes
    [1-5] 21 Am Jur 2d, Criminal Law §§ 136,137.
    29 Am Jur 2d, Evidence §§ 157, 250, 269, 440.
    Validity and construction of statute requiring defendant in criminal case to disclose matter as to alibi defense. 45 ALR3d 958.

      Opinion op the Court
    1. Witnesses — Criminal Law — Alibi — Rebuttal Witnesses — Impeachment — Notice to Dependant — Statutes.
    Testimony which directly contradicts a defendant’s alibi is rebuttal testimony, notwithstanding the fact that such testimony also impeaches the testimony of a defendant’s alibi witness; the prosecution is required to list the witness giving such testimony on its notice of rebuttal (MCL 768.20[2]; MSA 28.1043[2]).
    2. Witnesses — Criminal Law — Alibi — Rebuttal Witnesses — Notice to Dependant.
    The prosecution is not excused from giving notice to a defendant of witnesses it proposes to call in rebuttal of defendant’s alibi by reason of the fact that the witness called in rebuttal was listed on the defendant’s notice of alibi.
    3. Witnesses — Criminal Law — Alibi — Rebuttal Witnesses — Notice to Dependant — Evidence — Exclusion of Evidence — Statutes.
    The sanction for failure of the prosecution to list the name of a rebuttal witness to an alibi on the notice of rebuttal is mandatory exclusion of the testimony of the rebuttal witness (MCL 768.21[2]; MSA 28.1044[2]).
    4. Witnesses — Criminal Law — Alibi — Rebuttal Witnesses — Notice at Trial — Statutes.
    The statute requiring the prosecution to list the names of witnesses it proposes to call to rebut defendant’s alibi on its notice of rebuttal contemplates service of a written notice in advance of trial so that defendant can formulate trial strategy and will not be surprised (MCL 768.20[2]; MSA 28.1043[2]).
    Dissent by Allen, J.
    5. Witnesses — Criminal Law — Alibi — Rebuttal Witnesses — Notice to Dependant — Surprise — Discretion — Statutes.

      A trial court has discretion to permit the testimony of a witness rebutting a defendant’s alibi, notwithstanding the prosecution’s failure to list the witness’s name on its notice of rebuttal to hit alibi, where the witness called by the prosecution was listed oil

      defendant’s notice of alibi defense and defendant would not be surprised by such testimony (MCL 768.20[2]; MSA 28.1043[2]X

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Ward S. Hamlin, Jr., Prosecuting Attorney (by Mark I. Leach, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Bleich, Peterson & Jancha, for defendant.
    Before: R. B. Burns, P.J., and Allen, and Mackenzie, JJ.
   R. B. Burns, P.J.

Defendant was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548, and appeals. We reverse.

The defense in this case was alibi. The victim, Joseph Swetay, was killed during the course of an apparent robbery between 2 and 3 a.m. on May 2, 1971. Defendant testified that on that night he helped Judy Evans and Raymond Pritchett paint their newly rented home. Judy Evans corroborated defendant’s story. Raymond Pritchett, called over defense objection by the prosecution, testified that the house had already been painted by the date of the murder, that he had done most of the painting himself, and that defendant helped only intermittently, never more than 30 minutes at a time and never in an all-night session.

Defendant had filed a notice of alibi prior to trial, listing Judy Evans and Raymond Pritchett as witnesses. MCL 768.20(1); MSA 28.1043(1). Defendant’s objection to Raymond Pritchett’s testimony was premised upon the prosecution’s failure to list Pritchett on a notice of rebuttal. MCL 768.20(2); MSA 28.1043(2), MCL 768.21(2); MSA 28.1044(2). The trial court overruled the objection, finding that no one would be surprised by the testimony of the witness.

Plaintiff argues that it need not have listed Pritchett on a notice of rebuttal, because Pritchett’s testimony was used to impeach Judy Evans’ testimony, not to rebut the alibi. See People v Gillman, 66 Mich App 419; 239 NW2d 396 (1976). However, unlike the situation in Gillman, Pritchett’s testimony both impeached the alibi witness and rebutted the alibi. Pritchett’s testimony directly contradicted defendant’s alibi that he was painting a house at the time of the murder. Thus, plaintiff was required to list Pritchett as a witness in a notice of rebuttal. MCL 768.20(2); MSA 28.1043(2).

Plaintiff also argues that its failure to provide notice is excusable because the witness was listed in defendant’s notice of alibi and there was no surprise as to the existence of the witness or as to what he would testify. People v Terry Alexander, 82 Mich App 621; 267 NW2d 466 (1978), holds squarely to the contrary, and is not distinguishable from the instant case. The statute protects defendant not only from the types of surprise listed above, but also from the surprise of having the prosecution call an unlisted witness:

"The purpose of alibi and rebuttal of alibi notice is to prevent surprise at trial. * * * This purpose can be attained only if both sides give the statutorily required notice. While a defendant arguably should know how a witness whom he has listed on a notice of alibi will testify, a defendant should also be entitled to know whether the prosecution will rely on that witness in rebuttal. ” 82 Mich App at 627.

The sanction for failure to state the name of a rebuttal witness on the notice of rebuttal, exclusion of the testimony of that witness, is mandatory. MCL 768.21(2); MSA 28.1044(2), People v Terry Alexander, supra.

Nor can the prosecution’s failure to serve notice of rebuttal be excused on the theory that the trial court, by overruling defendant’s objection to Pritchett’s testimony, permitted notice "at such other time as the court may direct”. MCL 768.20(2); MSA 28.1043(2). The statute clearly contemplates service of a written notice, which implies such notice should be served in advance of trial. Unless service is made before trial, a defendant cannot rely upon the notice, or lack thereof, in formulating trial strategy, and will be surprised.

Reversed and remanded for a new trial.

Mackenzie, J., concurred.

Allen, J.

(dissenting). While I agree that the prosecutor’s failure to give the notice required by statute is not excused under the exception set forth in People v Gillman, 66 Mich App 419, 428; 239 NW2d 396 (1976), I disagree that reversal is required by People v Terry Alexander, 82 Mich App 621; 267 NW2d 466 (1978). In two significant respects the instant case differs from Alexander. First, in the instant case the trial court made a specific finding that Pritchett’s testimony would not surprise the defendant. No such finding was made in Alexander. Second, Alexander did not discuss that part of the statute reading "at such other time as the court may direct”. MCL 768.20(2); MSA 28.1043(2) provides:

"Within 10 days after the receipt of the defendant’s notice but not later than 5 days before the trial of the case, or at such other time as the court may direct, the prosecuting attorney shall file and serve upon the defendant a notice of rebuttal which shall contain, as particularly as is known to the prosecuting attorney, the names of the witnesses whom the prosecuting attorney proposes to call in rebuttal to controvert the defendant’s defense at the trial of the case.” (Emphasis added.)

In a sense, what took place here was that the notice of rebuttal was served on defendant "at such other time as the court may direct”, that time being when the court overruled defendant’s objection to Pritchett’s testimony.

The rationale behind the notice of alibi statute is to prevent surprise at trial. As was stated in Wardius v Oregon, 412 US 470, 473; 93 S Ct 2208, 2211; 37 L Ed 2d 82, 87 (1973):

"[T]he ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduce the possibility of . surprise at trial.”

To reverse where, as here, there is no prejudice nor surprise is to stretch the statute beyond its legitimate purpose of affording the defendant a fair trial. If Alexander stands for the proposition that, under the statute as amended, the trial court has lost all its former discretion to permit or exclude testimony of rebuttal to an alibi defense if the requisite notice of rebuttal is not timely given, then I disagree with Alexander.

Under prior law the trial court had such discretion. People v Merritt, 396 Mich 67, 83; 238 NW2d 31 (1976). Under the statute, as amended, the prosecutor must file notice of the people’s rebuttal witnesses "not later than 5 days before trial of the case, or at such other time as the court may direct”. In my opinion the underscored language grants the trial court some discretion in allowing the filing of notice even less than five days before trial. The majority opinion shuts out all discretion and totally ignores the language underscored. I disagree.

       After defense counsel objected to Pritchett testifying, the court heard arguments by counsel out of the presence of the jury and then found: "I want to look at this total case. In this total case, no one but no one, was surprised or will be surprised by the proposed witness”. During the arguments it was revealed that Pritchett had testified as early as May, 1976, before a grand jury.


author: N. J. Kaufman, J.

text:
    SCHWARTZ v PIPER AIRCRAFT CORPORATION
    Docket No. 78-1452.
    Submitted April 16, 1979, at Detroit.
    Decided May 22, 1979.
    Leave To appeal applied for.
    In 1974 an Oakland County jury returned a verdict against defendant, Piper Aircraft Corporation, and in favor of plaintiffs, Gregory J. Schwartz and Judith M. Schwartz. After various appellate proceedings had been concluded defendant paid the principal sum plus simple interest of six percent. The Oakland Circuit Court, Alice L. Gilbert, J., ordered defendant to pay interest compounded annually from the date of filing of the complaint. Defendant appeals. Held:

    The statute providing for interest on judgment allows only simple interest.
    Reversed. An order shall enter showing the judgment against the defendant paid in full.
    Judgment — Statutes — Interest on Judgments.
    The statute providing for interest on judgments at the rate of six percent per annum from the date of filing of the complaint does not allow a trial court to compound the interest from the date of filing; the statute provides for only simple interest from the date of filing (MCL 600.6013; MSA 27A.6013).
    References for Points in Headnote
    45 Am Jur 2d, Interest and Usury §§ 11, 59, 60, 73, 74, 96-98. Date of verdict or date of entry of judgment thereon as beginning of interest period on judgment. 1 ALR2d 479.

      Valenti & Winiemko, P.C., for plaintiffs.

      Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C., for defendant.
    Before: Danhof, C.J., and J. H. Gillis and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

On July 26, 1974, an Oakland County jury returned verdicts in favor of the plaintiffs as a result of an airplane accident which occurred on March 29, 1969. After the conclusion of various appellate proceedings, defendant paid the principal sum due plus simple interest of six percent per year. Thereafter, on January 18, 1978, Judge Gilbert entered an order granting plaintiffs’ motion to compel payment of judgment interest compounded annually from the date of the filing of the complaint. Defendant appeals from that order by right.

Our question of first impression is whether MCL 600.6013; MSA 27A.6013, which provides for interest at the rate of six percent per annum on a judgment from the date of the filing of the complaint, allows a trial court to compound the interest from the date that suit was filed. We conclude that it does not.

As the parties point out, this case does not deal with interest as a part of damages. We are only concerned with the statutory interest referred to in MCL 600.6013, which states:

"Interest shall be allowed on any money judgment recovered in a civil action, such interest to be calculated from the date of filing the complaint at the rate of 6% per year unless the judgment is rendered on a written instrument having a higher rate of interest in which case interest shall be computed at the rate specified in the instrument if such rate was legal at the time the instrument was executed. In no case shall the rate exceed 7% per year after the date judgment is entered. In the discretion of the judge, if a bona fide written offer of settlement in a civil action based on tort is made by the party against whom the judgment is substantially identical or substantially more favorable to the prevailing party than the judgment, then no interest shall be allowed beyond the date the written offer of settlement is made.”

The purpose of the statute is to compensate the prevailing party for delay in the payment of money damages. Waldrop v Rodery, 34 Mich App 1; 190 NW2d 691 (1971). But since the statute under consideration is in derogation of common law, which did not generally, allow interest on judgments, it must be strictly construed. See Motyka v Detroit, G H & M R Co, 260 Mich 396; 244 NW 897 (1932).

While Michigan appellate courts have not addressed the precise issue under consideration, thosé courts which have dealt with similar problems have uniformly rejected compound interest except where specifically authorized by statute or in cases where compounding of interest was granted as a penalty for some misconduct on the part of a defendant. See Anno: Right to interest on overdue instalments of interest, in absence of provision therefor 27 ALR 81, and see generally 14 Michigan Law & Practice, Interest, § 12, p 453.

Recently, in Lewis v Stran-Steel Corp, 58 Ill App 3d 280; 373 NE2d 714 (1978), the Illinois Court of Appeals held that Section 3 of the Illinois Interest Act, which provides that "Judgments recovered before any court or magistrate shall draw interest at the rate of 5% [6%] per annum from the date of the same until satisfied”, did not allow for recovery of compound interest on a judgment.

And in State Highway Dep’t v Owens, 120 Ga App 647; 171 SE2d 770 (1969), the Georgia Court of Appeals concluded that the statutory language "All judgments in this State shall bear lawful interest upon the principal amount recovered” did not permit interest on interest.

Finally, in Indiana Telephone Corp v Indiana Bell Telephone Co, 360 NE2d 610 (Ind App, 1977), the Indiana Court of Appeals cited early precedent and contract law and held that interest may not be compounded by computing interest upon an amount awarded as damages in the form of interest for delayed payment of a debt.

In the present case, the trial court concluded and plaintiffs argue that the words "at the rate of 6% per year mean six percent per annum, compounded on a per annum basis. We disagree. MCL 600.6013 provides for interest solely on the judgment amount. And since interest which accrues on the judgment is not part of the judgment, the statute does not permit interest on accrued interest. The statute provides only for simple interest at the rate of six percent per year. See Lewis, supra.

Plaintiffs also claim that it was the intent of the Legislature to fully compensate the judgment creditor for lost use of the judgment funds through interest, and that this intent is best effectuated by interpreting the statute to allow for compounded interest. Plaintiffs’ argument is not persuasive. The concept of fully compensating the judgment creditor is not subject to any particular method of computing interest. See Lewis, supra.

We realize that low judgment interest in times of high inflation encourages judgment debtors to postpone payment of their debts as long as possible. But compounding six percent interest on an annual basis would not solve that problem. In any event, adjustment of the statutory interest figure is a legislative function, not a court function.

The trial court’s order granting six percent interest compounded yearly is reversed. An order shall enter showing the judgment against the defendant paid in full. Costs to defendant.

       Defendant’s application for leave to appeal the 1974 verdicts to the Michigan Supreme Court, which verdicts were affirmed by this Court on July 22, 1976, Docket Nos. 22245, 22246, (unreported), was denied on December 1, 1976, 398 Mich 804. The case file was received from this Court by the circuit court on December 7, 1976. A Partial Satisfaction of Judgment, which included the principal sum plus six percent per year simple interest, was dated January 4, 1977, and filed with the circuit court on January 7,1977.

       The distinction between interest on a judgment and interest as an element of damages has been often noted by this Court and the Michigan Supreme Court. The former is computed and added to the general verdict by the Court. Motyka v Detroit, G H & M R Co, 260 Mich 396; 244 NW 897 (1932), Swift v Dodson, 6 Mich App 480; 149 NW2d 476 (1967). The latter is awarded by the jury as an element of damages. Vannoy v City of Warren, 26 Mich App 283; 182 NW2d 65 (1970). Pre-judgment interest from the date of the complaint is purely statutory and is computed and added to the general verdict. It is not an element of damages.

       Ill Rev Stat 1967 ch. 74, par. 3 provides in full:
      "Judgments recovered before any court or magistrate shall draw interest at the rate of 5% [6%] per annum from the date of the same until satisfied. When judgment is entered upon any award, report or verdict, interest shall be computed at the rate aforesaid, from the time when made or rendered to the time of rendering judgment upon the same, and made a part of the judgment. Provided, however, that the judgment debtor may by tender of payment of judgment, costs and interest accrued to date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of appeal, writ of error, or other steps to reverse, vacate or modify the judgment.”


author: T. M. Burns, J. N. J. Kaufman, P.J.

text:
    NIKPRELEVIC v DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE
    Docket No. 78-1941.
    Submitted March 7, 1979, at Detroit.
    Decided May 22, 1979.
    Leave to appeal applied for.
    Djelusa Nikprelevic, the widow of Nika Nikprelevic, brought an action on behalf of herself, her minor children and all other dependents entitled to survivor’s loss for death benefits under the no-fault insurance act, against the Detroit Automobile Inter-Insurance Exchange. Mr. Nikprelevic died when he was overcome by exhaust fumes while attempting to install a rear window defogger in his automobile. No policy of no-fault automobile insurance could be found covering Mr. Nikprelevic or his car. Plaintiff filed a claim with the assigned claims facility and the loss was assigned to defendant for processing. Defendant voluntarily paid benefits, making certain deductions which it thought were allowable under the no-fault insurance act. Defendant stopped payments altogether when plaintiff filed her suit to challenge the validity of the deductions. Wayne Circuit Court, Horace W. Gilmore, J., held that plaintiff was not entitled to claim under the assigned claims plan and granted summary judgment for defendant. Plaintiff appeals. Held:

    Mr. Nikprelevic and his automobile were uninsured and, therefore, he would have been disqualified from receiving no-fault benefits. Plaintiff and her minor children, however, as dependents of a deceased uninsured motorist are entitled to no-fault benefits and are not disqualified by virtue of the fact that the deceased would have been disqualified had he survived. Plaintiff and her minor children have sustained a loss in their own right. The benefits are distinct from, not derivative of, any loss which Mr. Nikprelevic would have been able to claim in his own right had he survived.

      References for Points in Headnotes

       7 Am Jur 2d, Automobile Insurance §§ 135-138.
    New Topic Service, No-Fault Insurance § 31.

       New Topic Service, No-Fault Insurance §§ 1,14, 26. 34.

       New Topic Service, No-Fault Insurance §§ 5, 25-34.

       New Topic Service, No-Fault Insurance §§ 1, 2, 5.

       New Topic Service, No-Fault Insurance §§ 5, 31.

       New Topic Service, No-Fault Insurance §§ 3, 20.

       New Topic Service, No-Fault Insurance §§ 2-4, 20.

       New Topic Service, No-Fault Insurance §§ 5, 16 et seq.

       New Topic Service, No-Fault Insurance § 31.

      Reversed and remanded.
    N. J. Kaufman, P.J., dissents. He would hold that a surviving dependent’s right to recover benefits is dependent upon, and derivative of, the deceased’s right to receive loss benefits had he not died; therefore, survivor’s claims are barred where the deceased person failed to obtain insurance as required by the no-fault act.
    Opinion of the Court
    1. Insurance — Automobiles — No-Fault Insurance — Surviving Dependents — Right of Recovery — Statutes.
    The dependents of deceased uninsured motorists are entitled to no-fault benefits and are not disqualified by virtue of the fact that the deceased would have been disqualified had he or she survived (MCL 500.3101 et seq.; MSA 24.13101 et seq.X

    2. Insurance — Automobiles — No-Fault Insurance — Insurance Policies — Security — Benefits — Statutes.
    Owners or registrants of motor vehicles are required to obtain security under the no-fault insurance act, generally a policy of insurance, which will guarantee payment of certain benefits in the event of an accident involving a motor vehicle (MCL 500.3101; MSA 24.13101).
    3. Insurance — Automobiles — No-Fault Insurance — Insurers — Payment of Benefits — Statutes.
    The no-fault insurance act requires insurers to pay benefits for accidental bodily injury or death arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle without regard to fault (MCL 500.3105; MSA 24.13105).
    4. Insurance — Insurers — Conducting Business — Privilege — Duty to Provide Benefits — Nonpayment of Premiums.
    The privilege of conducting the business of insurance in Michigan contains a corresponding duty to provide benefits for some who would otherwise be required to do without, including the payment of benefits in some cases for losses where no premium has been received.

      5. Insurance — Automobiles — No-Fault Insurance — Surviving Dependents — Payment of Benefits — Date of Loss — Statutes.
    Personal injury protection benefits in the form of survivor’s loss under the no-fault insurance act are payable to compensate for the loss dependents of a deceased automobile owner or driver have sustained in their own right; the benefits are distinct from, not derivative of, any loss which the injured owner or driver would have been able to claim in his own right had he survived, and the loss accrues, not at the time of the owner’s or driver’s injury, but as of the time the survivor’s loss is incurred (MCL 500.3110[4]; MSA 24.13110[4]).
    6. Insurance — Automobiles — No-Fault Insurance — Payment of Benefits — Owner or Registrant — Uninsured Vehicle.
    A person is not entitled to benefits under the no-fault insurance act if the person claiming benefits was the owner or registrant of the vehicle involved in the incident creating the loss and that vehicle was uninsured.
    7. Insurance — Automobiles — No-Fault Insurance — Personal Security Obligations — Personal Disqualifications.
    The obligation to obtain and maintain security imposed by the no-fault insurance act is personal; the disqualifications which prevent the payment of benefits under the act are also personal (MCL 500.3101, 500.3113; MSA 24.13101, 24.13113).
    8. Insurance — Automobiles — No-Fault Insurance — Injury — Payment of Benefits — Disqualifications — Statutes.
    The purpose Of the no-fault insurance act is to permit individuals who suffer loss arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle to recover a certain level of benefits because of an injury; to this general scheme entitling individuals to certain benefits, the Legislature created certain narrow disqualifications dealing with an individual who is injured in a car he has stolen, one who fails to insure himself and out-of-state cars involved in accidents in this state under certain circumstances (MCL 500.3113; MSA 24.13113).
    Dissent by Kaufman, P.J.
    9. Insurance — Automobiles — No-Fault Insurance — Surviving Dependents — Right of Recovery.

      Payment of personal protection insurance beneñts to the surviving dependents of an insured person who has died as a result of

      injuries sustained in a motor vehicle accident is a substitute for the payment of beneñts directly to the injured party and, therefore, a surviving dependent’s right to recover such beneñts is dependent upon and derivative of the deceased’s right to receive loss beneñts had he not died.

      Gursten, Wigod & Koltonow, P.C., for plaintiff.

      Eggenberger, Eggenberger, McKinney & Weber, for defendant.
    Before: N. J. Kaufman, P.J., and T. M. Burns and R. M. Maher, JJ.
   T. M. Burns, J.

The plaintiffs in this case are the widow and minor children of Nika Nikprelevic. Mr. Nikprelevic died when he was overcome by exhaust fumes while attempting to install a rear window defogger in his automobile on January 29, 1977. No policy of no-fault automobile insurance could be found covering Mr. Nikprelevic or his car after his death.

Since no policy covering the casualty could be found, Mrs. Nikprelevic filed a claim with the assigned claims facility, MCL 500.3174; MSA 24.13174. The loss was assigned to defendant for processing. Defendant voluntarily paid benefits, making certain deductions which it thought allowable under the act. When plaintiffs filed this suit to challenge the validity of the deductions being made, defendant stopped payments altogether. The main question in the suit then became whether plaintiffs are entitled to claim under the assigned claims plan at all. The circuit court held they were not and granted summary judgment for defendant.

The issue presented by these facts, whether the dependents of a deceased individual who would have been disqualified from receiving no-fault benefits if he had survived by § 3113(b) are also disqualified by that provision, has been before this Court before. Belcher v Aetna Casualty & Surety Co, 83 Mich App 207; 268 NW2d 349 (1978). The issue is presently before the Supreme Court. Belcher v Aetna, supra, lv gtd 405 Mich 826 (1979), Hamilton v Aetna Casualty & Surety Co (Docket No. 77-2190. Decided August 23, 1978 [unreported]), lv gtd 405 Mich 827 (1979), Shaffer v Riverside Ins Co (Docket No. 77-4334. Decided June 22, 1978 [unreported]), lv gtd 405 Mich 827 (1979). The majority in these cases have found survivor’s benefits to be derivative of the deceased person’s claim and barred by the failure of that person to obtain insurance as required by the act. In my view, that result is contrary to the intent of the Legislature as expressed in the plain language of the statute. Belcher v Aetna, supra (T. M. Burns, J., dissenting).

For purposes of analyzing a problem of dependents of uninsured decedents, the provisions of the no-fault act can be divided into several categories: those sections telling insurers and individuals what they must do to comply with the act; sections dealing with who is entitled to what type of benefit and the amount of that benefit; sections dealing with disqualification from benefits under the act; and, finally, sections dealing with the procedure to claim benefits due under the act. Examination of the act as a whole leads to the conclusion that dependents of deceased uninsured motorists are entitled to benefits and are not disqualified by virtue of the fact that the deceased would have been disqualified had he or she survived.

Turning first to the "duties” part of the no-fault act we find that the "owner or registrant” of a motor vehicle is required to obtain security, generally a policy of insurance, which will guarantee payment of certain benefits, here personal injury protection benefits, in the event of an accident involving a motor vehicle. MCL 500.3101; MSA 24.13101. Insurers are required to pay benefits for accidental bodily injury or death arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle without regard to fault. MCL 500.3105; MSA 24.13105, Because the Legislature realized that some individuals would not comply with the act, a scheme was created which requires insurers to pay benefits in some cases for losses where no premium has been received. Those given the privilege of conducting the business of insurance in this state were given the corresponding duty to provide benefits for some who would otherwise be required to do without.

These provisions do not cause much problem in this case. The problem arises under the entitlement and disqualification provisions.

The plaintiffs here are claiming personal injury protection benefits in the form of survivor’s loss under § 3108. The benefits payable under this section are to compensate for the "loss” dependents have sustained in their own right. The loss accrues, not at the time of the injury, but as the survivor’s loss is incurred. MCL 500.3110(4); MSA 24.13110(4). It is distinct from, not derivative of, any loss which the injured person would have been able to claim in his own right had he survived. There can be no real question but that the plain-r tiffs have incurred a survivor’s loss.

There is also no real question concerning whether the proper procedural steps were followed to claim compensation for that loss. Plaintiffs filed a claim with the assigned claims facility, the facility assigned the case to defendant and defendant began making payments. What then of defendant’s obligation to continue those payments? Resolution depends on whether the plaintiffs are "a person entitled to claim” within the meaning of § 3172. Since it has already been shown that they have suffered a loss covered by the act, it follows that they are "entitled to claim” unless disqualified.

The crux of this case is the scope of the disqualification of § 3113(b). That section provides:

"A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed:
"(b) The person was the owner or registrant of a motor vehicle involved in the accident with respect to which the security required by subsections (3) and (4) of Section 3101 was not in effect.” MCL 500.3113; MSA 24.13113.

The language is clear and should not be judicially expanded through the guise of interpretation. Big Bear Markets of Michigan, Inc v Liquor Control Comm, 345 Mich 569; 77 NW2d 135 (1956).

A person is not entitled to benefits if the person claiming benefits was the owner or registrant of the vehicle involved in the incident creating the loss and that vehicle was uninsured. Defendant has never claimed that Mrs. Nikprelevic was the owner or registrant of the vehicle which caused her husband’s demise. Nor has it claimed that the one- and three-year-old children were owners or registrants of the car.

The obligation to obtain and maintain security imposed by § 3101 is personal. It is logical, therefore, that the disqualifications of § 3113 are also personal. Belcher v Aetna, supra, at 217-218 (dissenting opinion). The personal nature of the disqualification is further supported by § 3177 which allows the insurer to recover the amounts paid from the uninsured individual or his estate if it is required "to pay personal protection insurance benefits for accidental bodily injury * * * to the spouse or relative resident in the household of the owner or registrant of an uninsured motor vehicle”.

The whole basis of the no-fault act is that individuals who suffer loss arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle will recover a certain level of benefits because of that injury. To this general scheme entitling individuals to certain benefits, the Legislature created certain narrow disqualifications dealing with an individual who is injured in a car he has stolen, one who fails to insure himself and out-of-state cars involved in accidents in this state under certain circumstances. MCL 500.3113; MSA 24.13113. Each of these narrow disqualifications has a readily discernible basis in public policy. There is no similar policy which can justify disqualification of these plaintiffs, the innocent widow and minor children.

Plaintiffs have not been shown to fall in the class of individuals disqualified from receiving benefits under the act and the trial court, therefore, erred in granting summary judgment to defendant.

Reversed and remanded for further proceedings consistent with this opinion. No costs, construction of a statute involved.

R. M. Maher, J., concurred.

N. J. Kaufman, P.J.

(dissenting). For the reasons expressed in Belcher v Aetna Casualty & Surety Co, 83 Mich App 207; 268 NW2d 349 (1978), lv gtd 405 Mich 826 (1979), I agree with the trial court’s determination and would affirm.

       MCL 500.3113(b); MSA 24.13113(b).

       MCL 500.3101 et seq.; MSA 24.13101 et seq.

       MCL 500.3108; MSA 24.13108.

       Under MCL 500.3110; MSA 24.13110, the wife and minor children are conclusively presumed to be dependents of the deceased person,

       MCL 500.3172; MSA 24.13172.

       MCL 500.3177; MSA 24.13177.


author: D. C. Riley, J.

text:
    KENGEL v PALCO
    Docket No. 78-1992.
    Submitted April 5, 1979, at Detroit.
    Decided May 22, 1979.
    Nine-year-old Sandra Kengel was burned by hot melted sugar as she was baking cookies with the daughter of John and Marilyn Palco in the Palcos’ home. Sandra, by her next friend Joyce Kengel, and Frank and Joyce Kengel, for themselves, brought an action for damages against the Palcos. The defendants pled, as an affirmative defense, that the individual claims of Frank and Joyce Kengel were barred by the statute of limitations and moved for accelerated judgment. At trial, the Macomb Circuit Court, Frank E. Jeannette, J., granted the defendants’ motion for accelerated judgment on the individual claims. Plaintiffs appeal, alleging that the affirmative defense had been waived by defendants’ failure to notice the matter for hearing after filing the original pleadings and because the defense was not discussed at the pretrial conference nor was it mentioned in the pretrial summary. Held:

    1. Defendants’ failure to notice their motion for accelerated judgment for hearing did not result in barring the statute of limitations defense on equitable grounds.
    2. The applicable court rule requires that any waiver of issues raised in the pleadings must expressly appear as such in the pretrial summary. The affirmative defense remained valid at the time of trial.
    Affirmed.
    1. Trial — Pleading — Notice of Hearing — Court Rules.
    Failure of a defendant who has pled the affirmative defense of the operation of the statute of limitations to notice the matter for hearing prior to trial does not bar the defendant from pursuing the issue at trial because the court rule which provides for notice of hearing on the issue is discretionary in nature, containing no mandatory requirement that a party proceed by notice of hearing on the issue (GCR 1963,116.3).
    References for Points in Headnotes

       75 Am Jur 2d, Trial § 6.

       61 Am Jur 2d, Pleading §§ 364, 365.

      2. Trial — Pleading — Pretrial Conference — Court Rules.
    An issue validly raised in the pleadings may be raised at trial unless the issue has been expressly waived at the pretrial conference (GCR 1963, 301.3).

      Sheikh & Grech (by Thomas C. Taylor), for plaintiffs.

      Hibbs, Lewis & Golden, P.C. (by Terry S. Welch and George R. Lewis), for defendant.
    Before: Beasley, P.J., and Allen and D. C. Riley, JJ.
   D. C. Riley, J.

Plaintiffs Frank and Joyce Kengel appeal a May 5, 1978, order granting defendants’ accelerated judgment dismissing their individual derivative claims by operation of the statute of limitations.

Suit originated as the result of money expended (and for future expenses) for the medical care and treatment of plaintiffs’ 9-year-old daughter, who sustained third-degree burns to her leg caused by hot melted sugar which was spilled as she and defendants’ daughter, apparently unsupervised, were baking sugar cookies in defendants’ kitchen. The incident in question occurred on January 14, 1971.

Pursuant to plaintiffs’ complaint filed February 20, 1975, defendants responded by answer which, under a section entitled "special and affirmative defenses” stated:

"That the claims asserted by Frank Kengel and Joyce Kengel, individually, are bared [sic] by the statute of limitations and defendants moved for accelerated judgment.”

Said motion was not noticed for hearing.

Thereafter, counsel for both sides submitted pretrial statements which made no mention of ,the statute of limitations issue. A pretrial conference was held at which plaintiffs’ attorney did not appear. Defendants’ motion was never discussed at conference; furthermore, the trial court’s summary made no mention of defendants’ affirmative defense. On March 29, 1978, before trial, but after the jury was selected and empaneled, defendants moved for accelerated judgment as to the plaintiff parents’ derivative claim. In response, plaintiffs’ counsel did not argue that the claim was not barred by the statute of limitations, but rather maintained that the defense was waived by virtue of its omission from the trial court’s pretrial summary report. The lower court granted defendants’ motion, and plaintiffs appeal.

At the outset we note that plaintiffs concede in brief that their derivative cause of action is barred by the limitations statute pursuant to the doctrine enunciated in Walter v Flint, 40 Mich App 613; 199 NW2d 264 (1972). The sole thrust of their appeal concerns defendants’ purported waiver through the pretrial process of their affirmative defense upon which accelerated judgment was granted, and to this we direct our attention.

There is no dispute that defendants did properly raise the statute of limitations in their first responsive pleading. Plaintiffs allege, however, that defendants failed to notice the matter for hearing prior to the time of trial, and thus should be barred from pursuing the issue under the equitable doctrine of laches. We find no merit in this contention, inasmuch as the notice of hearing provision in GCR 1963, 116.3 is entirely discretionary in nature, and contains no mandatory requirement that either party so proceed.

In addition, GCR 1963, 301.3 reads as follows:

"Pretrial summary. The judge shall prepare, file, and cause to be served upon the attorneys of record, at least 10 days in advance of trial a summary of the results of the pretrial conference specifically covering each of the items herein stated. The summary of results controls the subsequent course of the action unless modified at or before trial to prevent manifest injustice. The court may provide by rule a pretrial calendar on which actions may be placed for consideration and may also by rule amplify or modify the pretrial procedure as herein provided in the furtherance of justice but not in conflict with these rules. No party shall be deprived of the right to present competent proof at the trial in support of any issues raised in the pleadings unless such issues have been expressly waived at the pretrial conference and such waiver is recorded in the said summary of results.” (Emphasis supplied.)

Plaintiffs place principal reliance on the Supreme Court’s opinion in Kolton v Nassar, 352 Mich 337, 340-341; 89 NW2d 598 (1958), wherein it was stated:

"Plaintiff contends that the pretrial statement simplified and narrowed the issues, excluding defenses not therein mentioned and particularly the defense asserted in defendants’ answer relating to plaintiff’s failure to furnish the sworn statement before suit. This defense plaintiff says the defendants, in effect, abandoned before trial by never bringing their motion predicated on that ground on for hearing and by not raising it at the pretrial conference. The defendants insist that the pretrial statement may not be given that effect so long as it does not expressly limit or eliminate the mentioned defense set up in their previously filed answer.
"We agree with plaintiffs contention. One of the purposes of pretrial conference, expressed in the rule, is to simplify, narrow and limit the issues. The rule provides that the pretrial statement shall control the subsequent course of the action or proceedings.
"If the purposes of pretrial conference, including the limiting of issues, are to be accomplished, the pretrial statement must be given the effect specified in the rule, namely, to control the subsequent course of the action. It follows that issues not stated therein must be considered eliminated even though raised in the pleadings; and the issues as thereby limited must be taken as the only issues for trial unless the statement is modified at or before trial to prevent manifest injustice, as provided in the rule. No such modification occurred in this case.”

However, at the time of the decision in Kolton, the controlling Court Rule No 35, § 4, stated that:

"In any action or proceeding the court may in its discretion direct the attorneys for the parties to appear before the court for a conference to consider the simplification of the issues, the necessity or desirability of amendments, the possibility of obtaining admissions of fact and admissions as to documents, the limitation of the number of expert witnesses, the advisability of references permitted by Rule 46, § 5, and such other matters as may aid in the disposition of the action or proceeding. The court shall file, and cause to be served upon the attorneys who appeared at the conference, a statement or summary of the results of the conference, which statement shall control the subsequent course of the action or proceedings unless modified at or before the trial to prevent manifest injustice. Any holding of the court to which proper objection is made may be reviewed on final appeal.” Court Rule No 35, § 4 (1945).

The Kolton opinion was issued on April 15, 1958. Two days later, an amended version of Rule 35, § 4 was adopted, which read in pertinent part:

"The summary of results controls the subsequent course of the action unless modified at or before trial to prevent manifest injustice. No party shall be deprived of the right to present competent proof at the trial in support of any issues raised in the pleadings unless such issues have been expressly waived at the pretrial conference and such waiver is recorded in the said summary of results.” (Emphasis supplied.)

This amended version served as the basis for the present GCR 1963, 301.3. Thus, any reliance placed on the Kolton decision is misplaced in view of the change in the language of the applicable court rule. At present, GCR 1963, 301.3 is explicit in requiring that any waiver of issues raised in the pleadings must expressly appear as such in the pretrial summary. Such an approach was followed by the Court in Butler v Raupp, 65 Mich App 20, 23-24; 236 NW2d 748 (1975):

"Defendants Scollin further argue that the negligent entrustment claim was not in issue at trial because there was no mention of it in the pretrial summary. It is true that the pretrial summary controls the course of the trial unless modified. But, as GCR 1963, 301.3 states:
" 'No party shall be deprived of the right to present competent proof at the trial in support of any issues raised in the pleadings unless such issues have been expressly waived at the pretrial conference’. (Emphasis added.)
"There being no indication that the plaintiff expressly waived adjudication of the negligent entrustment issue at pretrial conference, there is nothing to preclude him from raising such issue at trial.”

The holding in Butler is equally applicable to the case at bar. The absence of an express waiver of the statute of limitations issue from the pretrial summary resulted in the continued validity of defendants’ affirmative defense. Plaintiffs’ allegation that GCR 1963, 301.1(2) mandates that defendants raise their defense at the pretrial conference is poorly founded, inasmuch as the record discloses their own attorney waived appearance at that time. Moreover, plaintiffs’ claim of unfair surprise is also untenable. Although counsel was substituted prior to trial, mere reference to the pleadings, containing the properly raised defense, would constitute sufficient notice of defendants’ claim.

Affirmed. Costs to defendants._

       Therein this Court held that a parents’ claim for damages for medical expenses resulting from injuries to a child is a separate and independent cause of action, and therefore is not entitled to an extension of the statute of limitations given a child during its infancy. See MCL 600.5851; MSA 27A.5851.

       ".1 Scope of Conference. In every contested civil action the court shall direct the attorneys for the parties to appear before it for a conference to
      "(2) hear and determine all pending defenses filed under Rule 116 and motions which should be disposed of before trial; and determine whether a jury trial shall be had pursuant to demand, if any, theretofore made;” GCR 1963, 301.1(2).