If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

ATAIN INSURANCE COMPANY,

Plaintiff/Counterdefendant

- Appellant,

and

NATIONAL SURETY CORPORATION,

Intervening Plaintiff/Third

- Party

Plaintiff

, UNPUBLISHED May 26, 2022

v No. 355928

Oakland Circuit Court

WARREN HOSPITALITY SUITES INC

. , doing business as HAWTHORNE SUITES, LC No. 2020

- 178861

- CB

Defendant/Counterplaintiff/Third

Party Defendant

- Appellee

,

and

JOHN FAY AND JANICE FAY,

Defendants/Third

- Party Defendants.

Before: G LEICHER

, C .J., and K.F. K ELLY and P ATEL , JJ.

P ER C URIAM

.

Establishing that a trial court has abused its discretion is a high burden. Because we conclude that the trial court did not abuse its discretion by granting a stay of proceedings pending

the outcome of the collateral federal tort litigation, we affirm.- 2

- I. FACTUAL AND PROC EDURAL BACKGROUND

John and Janice Fay were seriously injured due to carbon monoxide poisoning while staying at a hotel owned and operated by Warren Hospitality Suites

, Inc . They filed a tort suit against Warren Hospitality in the Unit ed States District Court for the Eastern District of Michigan

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That tort suit i s still pending. Atain I nsurance Company insures Warren Hospitality and is providing a defense in the tort suit under a reservation of rights. Atain filed this declaratory action seeking an adjudication that it d oes not have a duty to defen d or indemnify in th e federal action

due to an exclusio n in the policy

.

T he c ommercial l iability policy issued by Atain to Warren Hospitality contains a “ Total

Pollution Exclusion with H ostile Fire Exception” that excludes coverage for injuries or damages caused by or arising out of “ the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘p ollutants ’ ” except for injuries or damages caused by “hea t, smoke, or fumes from a hostile fire.” The policy defines “hostile fire” and “pollutants” as :

As used in this exclusion, a hostile fire means one which becomes uncontrollable

or breaks out from where it was intended to be.

* * *

Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste. Waste includes material to be recycled, reconditioned or reclaimed. Pollutants also includes carbon dioxide and any other s ubstance that contributes to climate change.

The Fays ’ tort complaint alleges that the carbon monoxide was caused by “ an uncontrollable fire ” 2 in the hotel’s HVAC system. Atain maintain s that carbon monoxide is a “pollutant” and coverage i s excluded under its policy , but acknowledge s that the pollutant

exclusion would not apply if the Fays’ injuries arose out of “heat, smoke, or fumes from a hostile

fire.” Hence, it is undisputed that the four corners of the tort complaint obligate Attain to provide a defense to Warren Hospitality, even if it is under a reservation of rights.

Warr en Hospitality moved to stay the declaratory action pending the outcome of the underlying tort action because the central issue of fact in both actions i s the cause of the carbon monoxide discharge

. The Fays concurred that a stay was warranted. Atain argued that whether carbon monoxide was a “pollutant” and whether there was evidence of a “hostile fire” had no impact on the liability in the underlying tort action. T he trial court disagreed with Atain and stayed

1 Fay v Akram Namou d/b/a Namou Hotel Group

, United States District Court for the Eastern District of Michigan, Case No. 2:19

- cv

- 10902

.

2 The Fays’ complaint refers to the fire as an “uncontrollable fire,” while the policy references a “hostile fire.” However, the parties have, throughout the proceedings, used the terms interchangeably. For clarity, this opinion will refer to the alleged f ire as a “hostile fire.”- 3

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the declaratory action “[t] o prevent any inequity in this matter and in the interest of judicial economy[.]” Atain filed a motion for reconsideration, which was denied.

Unsatisfied with the stay of the declaratory action

, Atain filed a motion to intervene in the

federal case to allow it to participat e in discovery , participate at trial, and submit a special verdict

form or special interrogatories to the jury

. First, the court considered the timeliness o f the motion.

Because Atain chose to file a declaratory action in the state court when it was fully aware that common issues of fact would be litigated in two different forums with possibly different outcomes

, and it did not seek to intervene in the federa l action until “its legal strategy took an unexpected turn,” the federal court determined the se fact ors weighed against a finding of timeliness. The

federal court also held that Atain could not intervene as a matter of right because it did not have a

direc t interest in the subject matter of the tort action . The federal court concluded that the interests of judicial economy were not served by intervention because a llowing Atain to conduct discovery in the federal case would bloat the process and cause needle ss delay. The c ourt also reasoned that the jury could make the relevant findings of fact without Atain’s participation.

After the federal court denied Atain’s motion to intervene in the federal case, Atain filed

this interlocutory appeal challenging the trial court’s order staying the declaratory action.

II. ANALYSIS

Atain argues the trial court abused its discretion when it granted a stay of proceedings pending the conclusion of the tort case. We disagree

.

“A trial court has the inherent authority to control its own docket.” Baynesan v Wayne State

Univ , 316 Mich App 643, 651; 894 NW2d 102, 106 (2016), citing to Maldonado v Ford Motor

Co , 476 Mich 372, 376; 719 NW2d 809 (2006) (“[T]rial courts possess the inherent authority ... to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”)

. “An exercise of the court's ‘inherent power’ may be disturbed only upon a finding that there has been

a clear abuse of discretion.” Brenner v Kolk , 226 Mich App 149, 160; 573 NW2d 65 (1997). An abuse of discretion occurs when a court chooses an outcome outside the range of principled

outcomes. Maldonado , 476 Mich at 388.

Two trial courts have independently concluded that the tort action and the declaratory

a ction have common issues of fact re garding the cause of the alleged carbon monoxide discharge.

The trial court properly exercised its discretion by staying the proceedings in the declaratory action “[t]o prevent any inequity in this matter and in the inter est of judicial economy[.]” Because of the overlap of the factual issues, th e outcome of the tort action could impact the declaratory action

. For example, if Warren Hospitality prevails in the tort action , then the declaratory action would

become moot. It is therefore within the range of principled outcomes for the trial court to wait for

the cause of the carbon monoxide poisoning to be litigated in the underlying tort action

. 3 This

3 The dissent maintains that “ the Fays have no legal duty, for purposes of proving the elements of their negligence claims, to prove the carbon monoxide poisoning was caused by a fire, uncontrolled, hostile, or otherwise. ” We resp ectfully disagree. This argument disregards the- 4

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approach clearly serves judicial economy

. The trial court likewise did n ot abuse its discretion

b ecause Atain would not suffer any prejudice by the stay. Atain’s legal interests remain intact and,

if not rendered moot by the litigation of the factual issues , can be litigated in full later.

III. CONCLUSION

We affirm the tria l court’s order staying the proceedings and w e do not retain jurisdiction.

/s/ Elizabeth L. Gleicher

/s/ Sima G. Patel

allegations in t he underlying tort complaint that the carbon monoxide poisoning was caused by

“ an uncontrollable fire ” in the HVAC s ystem and that the Fays have the burden of proving proximate causation as an element of their negligence claim

. See Loweke v Ann Arbor Ceiling &
Partition Co, LLC , 489 Mich 157, 162 ; 809 NW2d 553 (2011). “To establish proximate cause, the plaintiff must prove the existence of both cause in fact and legal cause.” Weymers v Kh era , 454 Mich 639, 647 ; 563 NW2d 647 (1997). Establishing cause in fact requires the plaintiff to “present substantial evidence from which a jury may conclude that more likely than not, but for the defendant's conduct, the plaintiff's injuries would not h ave occurred.” Id. at 647

- 648 (quotation marks and citation omitted). “To establish legal cause, the plaintiff must show that it was foreseeable that the defendant's conduct may create a risk of harm to the victim, and

. . . [that] the

result of that condu ct and intervening causes were foreseeable.” Id . at 648 (quotation marks and citation omitted; alteration in original). Th e Fays must establish the source of the carbon monoxide that they were exposed to (which they allege was an uncontrollable fire) i n or der to satisfy the

causation element of their negligence claim.