“It Wasn’t Me”: Michigan’s Notice of Nonparty at Fault Rule
I was at work and oblivious to the serious developments at home. Unbeknownst to me, my wife was on trial, and there was compelling evidence against her. My three-year-old son had found his favorite toy in the garbage. Someone was going to pay, and she was the only one there to take responsibility. My wife needed a defense, and the fact that the toy had been ruined in a basement flood wasn’t going to cut it. She did what anyone else might do, she told my son, “Daddy must have put it there.”
Yes, my wife shifted the blame to me, another potential perpetrator who was not around at the time to be either prosecuted or defended. However, I would soon be an additional defendant on trial. I was the “nonparty at fault.”
My wife’s actions embody the principle behind MCR 2.112(K), Michigan’s Notice of Nonparty at Fault rule. This has been called the empty chair defense, where the defendant asserts that an absent third party is to blame.
Background of MCR 2.112(K) and the Michigan Tort Reform of 1995
Michigan law traditionally followed the doctrine of joint and several liability, which allowed plaintiffs to recover the full amount of their claimed damages from any defendant, even one who was only partially at fault. In 1995, however, Michigan’s tort reform statutes, MCL 600.2975 and MCL 600.6304 abolished joint and several liability and introduced comparative fault. These statutes required fault to be allocated among all those responsible, with each tortfeasor liable only for their own share of the fault. In response, the Michigan Supreme Court adopted MCR 2.112(K), requiring a defendant to notify the plaintiff of the fault of a nonparty as a prerequisite for the jury to consider that nonparty’s role in causing the harm.
MCR 2.112(K)
MCR 2.112(K) requires a defendant to provide notice of the identity of at-fault nonparties within 91 days of the defendant’s first responsive pleading, unless the “facts on which the notice is based were not and could not with reasonable diligence have been known.” The contents of the notice must include “the nonparty’s name and last known address, or the best identification of the nonparty that is possible, together with a brief statement of the basis for believing the nonparty is at fault.” Following the notice, a plaintiff may elect to file an amended complaint adding a claim against the nonparty.
The rule primarily impacts the jury verdict form, which includes fill-in-the-blank percentages of fault which are applied to the Plaintiff’s damages. At least one unpublished opinion held that, even without the notice, a jury is always free to conclude that a defendant did not proximately cause the claimed damages, because others were responsible.[1]
Importantly, while MCR 2.112(K) allows a jury to allocate percentages of fault to others, that allocation has no bearing on the nonparty’s legal liability, so long as they remain a nonparty.
Who can be designated as a nonparty at fault?
The rule allows the allocation of fault to any at-fault individuals or entities even those that cannot ultimately be held liable, provided they had a legal duty. For example, in the class action involving the Flint water crisis, a defendant identified 38 nonparties at fault, including numerous government entities and officials. The United States District Court noted that under MCR 2.112(K), the availability of immunity, such as governmental immunity, did not prevent a jury from allocating fault to them, so long as they had a duty to prevent the harm.[2] For the same reasons, if a nonparty previously settled or had the claim against them dismissed, they could still be named as a nonparty at fault, even though they would face no further liability.
Developments of the rule
While there are many court opinions discussing the parameters of MCR 2.112(K), some procedural aspects of the rule remain unresolved.
Procedure to Strike
Although some courts have struck improper notices of nonparty at fault based on identifying improper nonparties, it is unclear what is the proper procedural mechanism for striking such a notice.
Some challenges to notices of nonparty at fault come through motions or requests to strike the notice. But the Michigan Court Rules permit a “motion to strike” only in limited circumstances, such as, when a pleading contains redundant, immaterial, impertinent, scandalous, or indecent matter, or is procedurally deficient.[3]
A motion to strike a notice of a nonparty aims to substantively eliminate a defense. Logically, an argument to strike such a notice should be governed by the court rules for dispositive motions with strict adherence to specific procedural and substantive requirements.[4] Michigan courts should address whether a motion to strike a notice of nonparty at fault on substantive grounds should adhere to the dispositive motion requirements within the Court rules.
Can a former party become a “nonparty?”
A second gray area under the court rule concerns whether a former party must be identified as a “nonparty.” This issue often arises when there are two defendants in a case, both initially parties. At some point, one defendant is dismissed, either due to settlement or through a dispositive motion. Following that dismissal, does the former party become a “nonparty” requiring a new notice under MCR 2.112(K)? Or are they still considered a party for purposes of the verdict form, with no further action required?
These questions are common in legal malpractice cases, where numerous parties, attorneys, and complex factors may be involved in the underlying representation. Courts have explained the rule is designed to protect the parties from undue surprise and unfair tactics. The notice requirements prevent a party from changing the entire focus of the litigation by introducing the alleged fault of a nonparty at a late stage in the litigation.[5] Where a plaintiff has already indicated through the filing of a complaint that a particular party is at fault, a notice filed after that defendant has settled would not serve any constructive purpose. Michigan courts should address whether defendants must give notice under such circumstances.
As I drive to the toy store to satisfy my son’s judgment against me, I have a new-found awareness of MCR 2.112(K) both in litigation and at home.
[1] Bramble v Hormel Foods Corp, 2000 WL 33538512, unpublished opinion of the Court of Appeals, issued January 28, 2000 (Docket No. 216526).
[2] In re Flint Water Cases, No. 16-10444, 2024 WL 166104, at *2 (ED Mich, January 16, 2024) citing Goodwin ex rel. Goodwin v. Nw. Michigan Fair Ass’n, 325 Mich. App. 129, 149, 923 N.W.2d 894 (2018).
[3] MCR 2.115.
[4] MCR 2.116.
[5] Doe v Doe, 2009 WL 2974767 unpublished opinion of the Court of Appeals, issued September 17, 2009 (Docket No. 285655), citing Longhofer, Michigan Court Rules Practice (5th ed), § 2112.13, p. 312.