Broadway Coney Island, Inc. v. Commercial Union Insurance Companies
Broadway Coney Island, Inc. v. Commercial Union Insurance Companies
Opinion of the Court
Defendants Security First Associated Agency, Inc., and George Burgess (the agents) appeal as of right from the orders effectively denying them costs and attorney fees as sanctions against plaintiffs and defendants Commercial Union Insurance Companies and Northern Assurance Company of America (the insurance companies).
FACTS
In February 1988, plaintiff Sherry Jackson and her business partner, Darlene Meehling, purchased the Broadway Coney Island restaurant from George and Carmen Panos. Jackson and Meehling paid $25,000 cash for the business and signed a $25,000 promissory
In May 1989, a fire destroyed the contents of the restaurant, and plaintiffs claimed losses of $123,792.50, which included $98,235 in property damage. The insurance companies rejected plaintiffs’ claims on several grounds, including arson and lack of insurable interest. The defense of lack of insurable interest was based upon the insurance companies’ belief that Jackson, who was not an insured party, owned the business assets. Plaintiffs sued the insurance companies, seeking coverage for the fire loss. In the same complaint, plaintiffs sued the agents, alleging that the agents’ breach of the duty to inform the insurance companies of Broadway’s ownership of the business assets resulted in the insurance companies raising the defense of lack of insurable interest. From the outset, the agents took the position that the only reason they were named in the lawsuit was because the insurance companies had raised the frivolous defense of lack of insurable interest.
The case was mediated in September 1991, resulting in the following evaluation: (1) no cause of action in favor of defendants George and Carmen Panos, with an award of $21,000 in their favor against plaintiffs; (2) no cause of action in favor of insurance
The agents accepted the mediation evaluation. Plaintiffs accepted the $21,000 award in favor of the Panoses, but rejected the remaining evaluations. The insurance companies and the Panoses rejected the mediation evaluation.
In May 1993, plaintiffs and the insurance companies stipulated the withdrawal of the lack of insurable interest defense and dismissal of plaintiffs’ claims against the insurance agents. The agents objected to the stipulation and order for dismissal on the. ground that it violated MCR 2.504(A), apparently because it was not agreed to by all the parties. Plaintiffs and the insurance companies reached a settlement in this case, which was placed on the record. Counsel for the agents was not present at the hearing, but his opposition to any order of dismissal was noted. Under the settlement, the insurance companies would pay plaintiffs $90,000, plaintiffs would pay the Panoses $27,500, and all claims would be dismissed.
At the hearing on the insurance companies’ motion to dismiss, the agents complained that dismissal would be unfair to them because they had been forced to defend against plaintiffs’ claims for three years because of a frivolous affirmative defense raised by the insurance companies. The agents requested denial of the motion so they would have the opportunity to recoup some of the costs of litigation and sought consideration of their motion for summary disposition. The agents’ motion for summary disposition was scheduled to be heard two days later, on October 27, 1993. The trial court granted the motion for entry of dismissal with prejudice and without costs to any party.
Agents Security First Associated Agency and George Burgess argue that they are entitled to costs and attorney fees as mediation sanctions under MCR 2.403(0) because plaintiffs, who rejected mediation, did not improve their position in the ultimate settlement.
Mediation sanctions are governed by MCR 2.403(0), which provides in relevant part:
(1) If a party has rejected an evaluation and the action proceeds to trial, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the mediation evaluation.
(2) For the purpose of this rule, “verdict” includes
* * *
(c) a judgment entered as a result of a ruling on a motion filed after mediation. [Emphasis added.]
Under MCR 2.403(O)(6)(b), actual costs include reasonable attorney fees for services necessitated by the rejection of the mediation evaluation.
The order of dismissal with prejudice falls within the definition of “verdict” under MCR 2.403(O)(2)(c). The order had the same effect as a judgment of no cause of action in favor of the insurance agents and, therefore, is to be treated as one. To find otherwise would be contrary to the purpose behind MCR 2.403, which is to encourage settlement and deter protracted litigation by placing the burden of litigation costs upon the party that required that the case proceed toward trial by rejecting the mediator’s evaluation. Michigan Basic Property Ins Ass’n v Hackert Furniture Distributing Co, Inc, 194 Mich App 230, 234; 486 NW2d 68 (1992). Plaintiffs cannot be allowed
MCR 2.403(L)(3) provides in relevant part:
In mediations involving multiple parties the following rules apply:
(a) Each party has the option of accepting all of the awards covering the claims by or against that party or of accepting some and rejecting others. However, as to any particular opposing party, the party must either accept or reject the evaluation in its entirety.
MCR 2.403(0) provides in relevant part:
(3) For the purpose of subrule (0)(1), a verdict must be adjusted by adding to it assessable costs and interest on the amount of the verdict from the filing of the complaint to the date of the mediation evaluation. After this adjustment, the verdict is considered more favorable to a defendant if it is more than 10 percent below the evaluation, and is considered more favorable to the plaintiff if it is more than 10 percent above the evaluation. If the evaluation was zero, a verdict finding that a defendant is not liable to the plaintiff shall be deemed more favorable to the defendant.
(4) In cases involving multiple parties, the following rules apply:
(a) Except as provided in subrule (0)(4)(b), in determining whether the verdict is more favorable to a party than the mediation evaluation, the court shall consider only the amount of the evaluation and verdict as to the particular pair of parties, rather than the aggregate evaluation or verdict as to all parties. However, costs may not be imposed on a plaintiff who obtains an aggregate verdict more favorable to the plaintiff than the aggregate evaluation. [Emphasis added.]
For an aggregate verdict to be considered more favorable to the plaintiff under MCR 2.403(O)(4), the aggregate verdict must exceed the aggregate mediation evaluation by more than ten percent as required by MCR 2.403(O)(3). Frank v William A Kibbe &
n
The agents also assert that the trial court erred in refusing to award them costs and fees to be paid by the insurance companies as a penalty for raising a frivolous defense. Attorney fees may generally be awarded as taxable costs only where specifically authorized by statute or court rule. Attorney General v Piller (After Remand), 204 Mich App 228, 232; 514 NW2d 210 (1994). MCR 2.114(F) provides that “a party pleading a frivolous claim or defense is subject to costs as provided by MCR 2.625(A)(2).” MCR 2.625(A)(2) states that “if the court finds on motion of a party that an action or defense was frivolous, costs shall be awarded as provided by MCL 600.2591; MSA 27A.2591.” MCL 600.2591; MSA 27A.2591 provides in relevant part:
(1) Upon motion of any party, if a court finds that a civil action . . . was frivolous, the court that conducts the civil action shall award to the prevailing party the costs and fees incurred by that party in connection with the civil action by*117 assessing the costs and fees against the nonprevailing party and their attorney.
(3) As used in this section:
(a) “Frivolous” means that at least 1 of the following conditions is met:
(i) The party’s primary purpose in initiating the action or asserting the defense was to harass, embarrass, or injure the prevailing party.
(ii) The party had no reason to believe that the facts underlying that party’s legal position were in fact true.
(iii) The party’s legal position was devoid of arguable legal merit.
The agents have cited no authority indicating that a frivolous defense raised by one defendant may entitle a codefendant to sanctions under MCR 2.114(F). Nonetheless, the record does not support the insurance agents’ argument that the insurance companies’ defense of lack of insurable interest was frivolous. An issue of fact existed regarding whether Broadway was the owner of the business assets before the fire or whether Jackson executed a backdated bill of sale after the fire occurred. The bill of sale purporting to transfer the restaurant assets from Jackson and Meehling to Broadway appears suspicious in that it is signed only by Jackson, who notarized her own signature. Although Meehling and Jackson passed a corporate resolution agreeing to transfer the property, they never executed property documents for the sale. Given the suspicious nature of the fire,
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.
Defendants George Panos and Carmen Panos are not involved in this appeal.
Arson investigators determined that the fire had been set with gasoline. When firemen arrived at the scene, they found the building locked and secured, with the windows intact.
Concurring in Part
(concurring in part and dissenting in part). I concur in part I of the majority opinion.
I would, however, remand for further consideration of the agents’ request for sanctions against the insurance companies for raising a frivolous defense. While I agree with the majority that an argument can be made that the defense was not frivolous,
There is also support for the agents’ postion that the defense was, in fact, frivolous.
Reference
- Full Case Name
- Broadway Coney Island, Inc v. Commercial Union Insurance Companies (Amended Opinion)
- Cited By
- 9 cases
- Status
- Published