_______________________________ 

Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

FILED JULY 23, 2008 

DAVID ROMAIN and JOANN ROMAIN,

 Plaintiffs-Appellees, 

v No. 135546 

FRANKENMUTH MUTUAL INSURANCE COMPANY 

and IAQ MANAGEMENT, INC., 

 Defendants, 

and 

INSURANCE SERVICES CONSTRUCTION CORPORATION, 

 Defendant-Appellant. 

BEFORE THE ENTIRE BENCH 

MEMORANDUM OPINION. 

The Wayne Circuit Court summarily dismissed IAQ Management, Inc. 

(IAQ) from this action because IAQ did not owe plaintiffs a duty under the 

contract involved or under general negligence principles. Thereafter, defendant, 

Insurance Services Construction Corporation, filed a notice under MCR 2.112(K) 

naming IAQ as a non-party at fault. Because IAQ did not owe plaintiffs a duty, 

IAQ’s conduct could not have been “a proximate cause of damage sustained by a 
 

party.”1

 Therefore, the circuit court properly granted plaintiffs’ motion to strike 

the notice of IAQ as a non-party at fault2

 because a non-party at fault must be a 

proximate cause of the injured party’s damage. Since the circuit court reached the 

correct result, we deny defendant’s application for leave to appeal the Court of 

Appeals order denying defendant’s interlocutory application for leave to appeal. 

However, we write briefly to eliminate a conflict between two published 

Court of Appeals opinions. Specifically, we overrule the statement in Kopp v 

Zigich3 that “a plain reading of the comparative fault statutes does not require 

proof of a duty before fault can be apportioned and liability allocated.” That is an 

incorrect statement of Michigan law. In Jones v Enertel, Inc,

4

 the Court of 

Appeals held that “a duty must first be proved before the issue of fault or 

proximate cause can be considered.” Under the “first out” rule of MCR 

7.215(J)(1), the Kopp panel should have followed Jones or declared a conflict 

under MCR 7.215(J)(2). Because the Kopp panel did not declare a conflict, Jones 

is the controlling precedent and proof of a duty is required “before fault can be 

1

 MCL 600.6304(8). 

2

 MCR 2.112(K). 

3

 268 Mich App 258, 260; 707 NW2d 601 (2005). 

4

 254 Mich App 432, 437; 656 NW2d 870 (2002). 

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apportioned and liability allocated” under the comparative fault statutes, MCL 

600.29575

 and MCL 600.6304.6 

In addition to being the controlling precedent under the court rules, Jones 

correctly stated Michigan negligence law; Kopp did not. As noted by this Court in 

Riddle v McLouth Steel Products Corp:

 7 

“In a common law negligence action, before a plaintiff’s fault 

can be compared with that of the defendant, it obviously must first 

be determined that the defendant was negligent. It is fundamental 

tort law that before a defendant can be found to have been negligent, 

it must first be determined that the defendant owed a legal duty to 

the plaintiff.” 

The same calculus applies to negligent actors under the comparative fault statutes. 

A common law negligence claim requires proof of (1) duty; (2) breach of that 

5

 MCL 600.2957(1) provides: 

In an action based on tort or another legal theory seeking 

damages for personal injury, property damage, or wrongful death, 

the liability of each person shall be allocated under this section by 

the trier of fact and, subject to [MCL 600.6304], in direct proportion 

to the person’s percentage of fault. In assessing percentages of fault 

under this subsection, the trier of fact shall consider the fault of each 

person, regardless of whether the person is, or could have been, 

named as a party to the action. 

6

 MCL 600.6304(1) requires the fact finder to make findings indicating the 

total amount of damages and each person’s total percentage of fault. MCL 

600.6304(8) defines “fault” to include “an act, an omission, conduct, including 

intentional conduct, a breach of warranty, or a breach of a legal duty, or any 

conduct that could give rise to the imposition of strict liability, that is a proximate 

cause of damage sustained by a party.” (Emphasis added.) 

7

 440 Mich 85, 99; 485 NW2d 676 (1992), quoting Ward v K mart Corp, 

136 Ill 2d 132, 145; 554 NE2d 223 (1990). 

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duty; (3) causation, both cause in fact and proximate causation; and (4) damages.8 

Therefore, under Michigan law, a legal duty is a threshold requirement before 

there can be any consideration of whether a person was negligent by breaching 

that duty and causing injury to another. Thus, when the Legislature refers to the 

common law term “proximate cause” in the comparative fault statutes, it is clear 

that for claims based on negligence “‘it must first be determined that the [person] 

owed a legal duty to the plaintiff.’”9

 Additionally, MCL 600.6304(8) includes in 

the definition of fault “a breach of a legal duty . . . that is a proximate cause of 

damage sustained by a party.” Before there can be “a breach of a legal duty,” 

there must be a legal duty. Without owing a duty to the injured party, the 

“negligent” actor could not have proximately caused the injury and could not be at 

“fault” for purposes of the comparative fault statutes. 

Clifford W. Taylor 

Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

8 Schultz v Consumers Power Co, 443 Mich 445, 449; 506 NW2d 175 

(1993). 

9 Riddle, supra at 99 (citation omitted). 

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