2018 WL 3853875

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
Superior Court of Delaware.
PROGRESSIVE CASUALTY INSURANCE COMPANY, Plaintiff,
v.
BOWMAN TRAILER LEASING, LLC; GREAT AMERICAN INSURANCE COMPANY; US TRAILER HOLDINGS, LLC, d/b/a CO QUEST CAPITAL GROUP, LLC; STAPLES, INC.; ACE AMERICAN INSURANCE COMPANY; CLINTON PEAVY; NAZIR PEAVY; a minor, by his guardian ad litem MYLESA WALTON; MYLESA WALTON; TEENA PEAVY; MICHAEL PEAVY; ESTATE OF CLINTON PEAVY; JAMES DONNELL LIGHTY; W.B. MASON CO., INC.; A DUIE PYLE, INC.; TRISTATE TRUCKING, LLC; AND CHARLES BOLTON, JR., Defendants.
C.A. NO.: N17C-12-333 AML
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Submitted: June 7, 2018
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Decided: August 13, 2018
Upon Defendant Nazir Peavy’s Motion to Dismiss or Stay: Stayed
Attorneys and Law Firms
Thomas P. Leff, Esquire, of CASARINO, CHRISTMAN & SHALK, Wilmington, Delaware, and Robert D. Moseley, Jr., Esquire, of SMITH MOORE LEATHERWOOD, LLP, Greenville, South Carolina, Attorneys for Plaintiff.
Jason D. Warren, Esquire of McCANN & WALL, LLC, Wilmington, Delaware, and Justin L. Klein, Esquire, of HOBBIE, CORRIGAN & BERTUCIO, P.C., Eatontown, New Jersey, Attorneys for Defendant Nazir Peavy.

MEMORANDUM OPINION
LeGrow, J.
*1 Defendant Nazir Peavy (“Peavy”) filed this motion to dismiss or stay Progressive Casualty Insurance Company’s (“Progressive”) declaratory judgment action. Progressive’s claim seeks a declaration that it is not obligated to defend or indemnify Tristate Trucking (“Tristate”) or Charles Bolton, two alleged tortfeasors in an underlying personal injury action pending in New Jersey. Peavy moved to dismiss or stay this action on forum non conveniens grounds, arguing New Jersey was the more appropriate forum for Progressive’s claim under the Cryo-Maid factors. This case requires this Court to determine whether a first-filed personal injury action is a prior pending action for forum non conveniens purposes when an insurance coverage dispute later is filed and resolution of at least some of the claims in both actions will turn on the same disputed set of facts. In view of the overlapping factual issues between the two actions, the risk of inconsistent judgments, and the fact Delaware law is not implicated in this case, I conclude the New Jersey action is a prior pending action, and the Cryo-Maid factors weigh in favor of granting Peavy’s motion. My reasoning follows.

FACTUAL AND PROCEDURAL BACKGROUND
The following facts are drawn from the complaint and the parties’ briefs. On August 19, 2016, Charles Bolton was operating a Great Dane Trailer (“trailer”) attached to a 2010 Freightliner Tractor (“tractor”). While driving in New Castle County, Delaware, Bolton was involved in a motor vehicle accident with a vehicle occupied by Clinton Peavy, Nazir Peavy, and Teena Peavy. Nazir Peavy, a six-year-old passenger in the Peavy vehicle, suffered severe burns as a result of the accident. At the time of the accident, Bolton was operating the tractor on behalf of Tristate, a company insured by Progressive and principally owned and operated by James Donnell Lighty.

According to Progressive’s complaint, several additional parties had an insurance or ownership/leasing interest in the trailer or its freight. US Trailer owned the trailer, but had leased it to Bowman Trailer, which subleased the trailer to Staples. Great American Insurance Company (“Great American”) allegedly insured both US Trailer and Bowman Trailer, while ACE American Insurance Company (“ACE American”) insured Staples. At the time of the accident, the trailer was carrying freight allegedly owned by W.B. Mason, Inc. How the tractor became linked to the trailer and came to be carrying the freight remain disputed factual issues. Additionally, it is unclear whether A Duie Pyle, as the transportation broker for Tristate, properly vetted Tristate’s insurance coverage, as the Peavys allege it was required to do.

On October 22, 2016, Nazir Peavy, through his guardian ad litem Mylesa Walton, filed a negligence action in the New Jersey Superior Court of Monmouth County against multiple parties involved in the August 2016 accident. Peavy’s law suit was consolidated with two other negligence actions in the New Jersey Superior Court, Monmouth County, arising from the August 2016 accident (the “New Jersey action”).

*2 At the time of the accident, Progressive’s policy for Tristate did not list the tractor or trailer on its auto schedule. On December 27, 2017, Progressive brought this Delaware action seeking declaratory judgment that (1) Progressive has no duty to defend or indemnify Tristate or Bolton, and (2) Progressive’s insurance policy with Tristate does not apply to the New Jersey action. On April 20, 2018, Nazir Peavy moved to dismiss or stay the Delaware action on forum non conveniens grounds, arguing both the declaratory judgment action and the negligence action should be tried in New Jersey. In November 2017, an unrelated party filed a separate personal injury action against Bolton and several other defendants regarding the August accident.1 That, however, has no bearing on the outcome of Peavy’s motion.

THE PARTIES’ CONTENTIONS
In support of his motion, Peavy argues the factors applied in Delaware to forum non conveniens motions weigh in favor of dismissing, or at a minimum staying, the Delaware action. Peavy first argues litigating this action in Delaware would impose a substantial hardship for him associated with the additional costs of hiring Delaware counsel and traveling approximately one hundred miles to Delaware for court proceedings. Second, Peavy argues the Delaware action largely involves issues of contract and therefore neither New Jersey nor Delaware presents access of proof issues. Third, Peavy contends that, although the accident occurred in Delaware, no question of Delaware law is presented because there is no indication any of the insurance policies were issued in Delaware. Finally, Peavy maintains that the New Jersey action constitutes a prior pending action with factual issues that overlap substantially with the Delaware action, and consolidating the actions in New Jersey would avoid duplicative discovery and streamline the litigation.

Progressive, on the other hand, first argues the New Jersey action does not constitute a prior pending action, and Peavy therefore must demonstrate overwhelming hardship in order to dismiss the Delaware action on forum non conveniens grounds. Progressive asserts the New Jersey action does not constitute a prior pending action because it involves different claims, and therefore rulings by one court would not conflict with rulings by the other. Progressive also contends Delaware law may apply to the case because several of the parties are incorporated in Delaware.

Third, Progressive argues the issues of access of proof and compulsory process for witnesses do not weigh in Peavy’s favor because the declaratory judgment claim largely involves issues of law, not fact. Fourth, Progressive asserts practical considerations weigh in favor of adjudicating its claim in Delaware because the accident occurred in Delaware, and New Jersey may not have general jurisdiction over the parties essential to the declaratory judgment action. Finally, Progressive argues Peavy is not an indispensable party in this action and therefore lacks standing to move to dismiss or stay.

ANALYSIS
Until recently, Delaware courts applied different forum non conveniens tests depending on whether there was an action pending in another jurisdiction and, if so, whether the Delaware action was first-filed. Under the Delaware Supreme Court’s decision in General Foods Corp. v. Cryo-Maid, Inc.,2 when the Delaware action was first-filed, the court would consider: (i) the relative ease of access to proof; (ii) the availability of compulsory process for witnesses; (iii) the possibility of viewing the premises, if appropriate; (iv) all other practical problems that would make the trial of the case easy, expeditious and inexpensive; and (v) “whether or not the controversy is dependent upon the application of Delaware law which the courts of this State more properly should decide than those of another jurisdiction.”3 On the other hand, in McWane Cast Iron Pipe Corp. v. McDowell-Wellman Engineering Co.,4 the Delaware Supreme Court held that when the first- filed action arose in another jurisdiction, Delaware courts could exercise their discretion “freely in favor of the stay when there is a prior action pending elsewhere, in a court capable of doing prompt and complete justice, involving the same parties and the same issues ….”5

*3 More recent decisions, however, combine the Cryo-Maid and McWane tests and apply different presumptions depending on a case’s procedural posture. Now, Delaware courts apply the Cryo-Maid factors to all forum non conveniens motions, irrespective of whether there is another pending action and which action was filed first. The issue of a prior pending action remains relevant, however, to the level of proof required for the movant to prevail.

If the dispute is a first-filed Delaware case, with no pending litigation in another jurisdiction, then the moving defendant “must establish overwhelming hardship for Delaware courts to grant dismissal.”6 If the Delaware action is a second-filed case with another first-filed case pending in another jurisdiction, however, “Delaware courts have greater discretion in determining whether a stay or dismissal is proper.”7 Here, I conclude the New Jersey Action is a prior pending action and the Cryo-Maid factors weigh in favor of this Court exercising its discretion to stay this matter.

A. The New Jersey action constitutes a prior pending action under McWane.
Although the existence of a prior pending action often is listed as the last Cryo-Maid factor, I have considered this factor first because it informs the standard by which this Court weighs the remaining factors. In my view, the New Jersey action constitutes a prior pending action in another jurisdiction.

Under McWane, an action is a “prior pending” action when 1) the two actions involve similar claims and similar parties, and 2) the first action is in a court capable of doing prompt and complete justice.8 Here, there is no dispute that the New Jersey action was filed more than a year before this action or that the New Jersey court is capable of doing prompt and complete justice. Progressive, however, resists Peavy’s contention that the claims in both cases are similar. Progressive argues its declaratory judgment action regarding its policy with Tristate involves different issues of fact and law than the New Jersey negligence action. Accordingly, Progressive argues McWane’s comity concerns of inconsistent rulings do not apply. I disagree and find the cases closely are related and arise out of the same common nucleus of operative facts.

As this Court recognized previously, “all claims arising from a common nucleus of operative facts should be brought in the same court at the same time whenever possible.”9 Here, both cases arose from the same accident and, importantly for purposes of this case, the determinative factual issues in both actions appear to overlap.

First, the parties in this action and the New Jersey action substantially are similar. Of the sixteen listed defendants in the Delaware action, only Progressive, Great American, and ACE American are not named in the New Jersey action. It appears the New Jersey court would have jurisdiction over all the parties in the Delaware action, as all the corporate defendants regularly conduct business in New Jersey and the individual defendants either live in New Jersey or are defending the negligence action there without contesting jurisdiction. In any event, the relatively remote possibility that the New Jersey Court may lack personal jurisdiction over a necessary defendant weighs in favor of staying, rather than dismissing, this action.

*4 Second, although it is not typically the case in insurance coverage disputes, in this particular case the coverage question appears likely to turn on many of the same facts that are at issue in the negligence case. That is, the main factual question—unresolved at this date—is not the question of fault for the accident, but rather how the trailer came to be attached to the tractor and whether and how A Duie Pyle verified that the tractor and Bolton were insured. Those issues appear relevant, if not potentially determinative, to both this coverage dispute and some of the liability claims in the negligence action. Discovery regarding these issues is underway in New Jersey, and a fact finder’s conclusions of these disputes likely will be necessary to resolve the coverage action and some of the negligence claims. For that reason, this case is different than many in which there is both an insurance coverage or indemnification question and an underlying liability action. Although it cannot be said that all such cases have similar facts or risk inconsistent judgments, the unique circumstances of this case compel that conclusion.

Finally, neither party argues the New Jersey Court is incapable of delivering prompt and complete justice to Progressive’s claim. Accordingly, the New Jersey action constitutes a prior pending action, and Peavy need not demonstrate overwhelming hardship to obtain a stay.

B. The remaining Cryo-Maid factors favor staying this action so the parties may pursue their coverage dispute in New Jersey.
All the remaining Cryo-Maid factors are either neutral or weigh in Peavy’s favor. First, Progressive’s coverage dispute does not involve substantive access to proof issues. It appears discovery documents and witnesses will be equally accessible in both jurisdictions. Second, both parties agree that neither court will need compulsory process to subpoena witnesses in this case. Third, no review of the crash site is necessary to determine Progressive’s coverage dispute.

Fourth, this case does not involve issues of Delaware law. Although the site of the accident was in Delaware, the insurance policy is governed by the laws of other states. Additionally, Peavy, Walton, and Michael Peavy are New Jersey residents. Progressive argues it is possible that Delaware law could apply because several of the named defendants are incorporated in or have their principal place of business in Delaware. This argument is unconvincing; Progressive’s insurance policy was issued in another state and Progressive failed to cite any Delaware law that would apply to the coverage dispute.

As these Cryo-Maid factors do not support either party’s position, the determinative factor in this case is the Court’s consideration of the “practical problems” that would make the case easy, expeditious, and inexpensive to try. Although there will be some hardship to Peavy in hiring Delaware counsel, which will increase costs and lower the net amount he may receive of any recovery ultimately awarded, those costs are not so substantial that they factor strongly in the analysis.10 Much more significant, however, is the substantial risk of inconsistent judgments if these cases continue to proceed in different forums. As previously explained, there are significant overlapping factual issues between the two cases relating to how the tractor and trailer became connected and how A Duie Pyle verified insurance. Consolidating the actions in one court eliminates that considerable risk.

Progressive, however, continues to resist that conclusion, pointing out that a separate personal injury complaint was filed in Delaware relating to this accident. That complaint was filed by a bystander who allegedly suffered injuries while rendering assistance immediately after the crash.11 Progressive argues this complaint’s filing in Delaware “further supports Progressive’s position that Delaware is the proper venue for the declaratory judgment action” and the personal injury actions arising from the accident.12 The existence of a later-filed action in this State, however, has no apparent relevance under the Cryo-Maid factors. More importantly, the existence of these two personal injury actions in Delaware does not alter the analysis regarding the risk of inconsistent judgments.

C. Peavy has standing to file his motion to dismiss or stay.
*5 As an alternative basis to deny Peavy’s motion, Progressive argued Peavy is not an indispensable party to this action and therefore lacks standing to move to dismiss. In support of its argument, Progressive cites Auto Mutual Indemnity v. Dupont13 and Monsanto Co. v. Aetna Casualty & Surety Co.14 Neither case, however, supports Progressive’s standing argument. In Dupont, the District Court dismissed the plaintiff’s claim because the joinder of dispensable defendants from Delaware did not establish diversity jurisdiction in Delaware when the indispensable parties included a New York plaintiff and a Virginia defendant.15 Similarly, in Monsanto, the Superior Court denied joinder of multiple plaintiffs because joinder of all potential plaintiffs in a mass tort action was not feasible.16 Neither Dupont nor Monsanto, therefore, stand for the rather remarkable argument that a party already named as a defendant lacks standing to move to dismiss under Rule 12(b).

It is an elementary tenet of law that parties to an action may present a defense against a claim for relief. Superior Court Civil Rule 8(b) provides, in relevant part, “[a] party shall state in short and plain terms the party’s defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies.”17 Because Progressive named Peavy as a defendant in its declaratory judgment action, Peavy is permitted to move to dismiss or stay.18

CONCLUSION
For the foregoing reasons, Progressive’s declaratory judgment action is STAYED.

IT IS SO ORDERED.

All Citations
Not Reported in Atl. Rptr., 2018 WL 3853875

Footnotes

1
See DeShields v. Bolton, et. al, C.A. No. N18C-001-CEB (Del. Super.).

2
198 A.2d 681 (Del. 1964).

3
Id. at 684. The Cryo-Maid Court applied these factors to an action first-filed in Delaware with a second-filed action pending in Illinois. Id. at 682.

4
263 A.2d 281, 283 (Del. 1970).

5
Id. at 283.

6
Aranda v. Philip Morris USA Inc., 2018 WL 1415215, *3 (Del. Mar. 22, 2018) (quoting Gramercy Emerging Markets Fund v. Allied Irish Banks, PLC, 173 A3d 1033, 1038 (Del. 2017)).

7
Id. In Gramercy, the Delaware Supreme Court addressed a different forum non conveniens variation: a Delaware action filed after a first-filed action was dismissed for forum non conveniens in another jurisdiction.

8
McWane, 263 A.2d at 283.

9
Transamerica Corp. v. Reliance Ins. Co. of Illinois, 1995 WL 1312656, *5 (Del. Super. Aug. 30, 1995) (citing Schnell v. Porta Systems Corp., 1994 WL 148276 (April 12, 1994)).

10
Peavy represented that his New Jersey attorneys represent him on a contingency basis, but they have been forced to retain Delaware counsel at an hourly rate to defend this case, and those costs will be subtracted from any recovery Peavy receives. If both actions proceed in New Jersey, however, Peavy’s contingency counsel will represent him for all purposes.

11
See D.I. 82, Ex. A.

12
D.I. 82.

13
21 F.Supp. 606 (D. Del. 1937).

14
565 A.2d 268 (Del. Super. 1989).

15
Dupont, 21 F.Supp. at 608.

16
Monsanto, 565 A.2d at 271-72 (holding that Monsanto adequately represented the interests of the plaintiffs against Aetna and therefore joinder was not necessary to preserve their interests).

17
Super. Ct. Civ. R. 8(b).

18
Moreover, the injured parties likely have the most at stake in this coverage action. A ruling that Progressive has no coverage obligations would eliminate the most obvious source of recovery available to the injured parties, since Bolton, Lighty, and Tristate are either judgment proof or have filed for bankruptcy.

Pasho v. David Lee McCowan & United States Cargo Express
Court of Appeals of Michigan
July 24, 2018, Decided
No. 338231

Reporter
2018 Mich. App. LEXIS 2885 *; 2018 WL 3551614
MANUSHAQE PASHO, also known as MANUSHAQ PASHO, a Disabled Person, by ASIE PASHO, also known as ASHIE PASHO, and by SEBAHAT PASHO, as Guardians, Plaintiffs-Appellants, v DAVID LEE MCCOWAN and U.S. CARGO EXPRESS, LLC, Defendants-Appellees.
Notice: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.
Prior History: [*1] Monroe Circuit Court. LC No. 16-138616-NI.

PER CURIAM.
In this negligence action arising out of a fatal traffic accident, plaintiffs Asie Pasho and Sebahat Pasho, acting as guardians for their disabled daughter, Manushaqe Pasho (Pasho), appeal as of right the trial court’s order granting defendants David Lee McCowan and U.S. Cargo Express, LLC (U.S. Cargo) summary disposition under MCR 2.116(C)(10). We affirm.
This case arises out of a fatal traffic accident on March 5, 2014, at the intersection of a “trunk line” highway, US-24 (Telegraph Road), and Sigler Road in Ash Township. The accident involved a loaded tractor-trailer driven by McCowan, and an SUV driven by the then-teenaged Pasho. The road conditions on the date of the accident were normal, with dry road surfaces and no weather conditions that would have called for slowed travel.
According to an investigating officer, the intersection is a two-way stop, with stops signs posted for both directions of travel on Sigler Road. In other words, drivers on Sigler Road were required to stop at the intersection and yield the right of way to motorists on Telegraph Road, the latter of whom had no traffic controls [*2] at that intersection.
On the date in question, McCowan was hauling property for U.S. Cargo. He was driving northbound on Telegraph Road, traveling in the far right lane of that four-lane highway at speeds which, at all pertinent times for purposes of this case, did not exceed 54 miles per hour. The posted speed limit was 55 miles per hour. As McCowan proceeded toward the intersection, he “caught a glimpse” of Pasho’s vehicle, which was headed eastbound on Sigler Road toward the stop sign at the intersection. But there was “shrubbery or something . . . that blocked the view,” so McCowan was unable to see whether Pasho actually stopped.1 Knowing that he had the right of way, McCowan assumed that Pasho would stop at the stop sign and wait until it was safe for her to enter the intersection before doing so. Accordingly, he continued driving north without slowing. An eyewitness recounted that Pasho did stop—initially—but then she proceeded out into the intersection, driving directly into McCowan’s path. Either before or at impact, McCowan braked and veered to the right (he was fearful of hitting oncoming traffic if he veered to the left), but he was unable to stop in time. Indeed, plaintiffs’ [*3] own proposed expert, Jonathan R. Crane, acknowledged that after braking, veering, and impacting Pasho’s SUV, it took the semi-truck a full four seconds to come to a complete stop. Tragically, Pasho’s teenaged passenger, Chelsea Klocek, died as a result of the injuries she sustained in the accident, and it is undisputed here that Pasho also suffered severe injuries.
Plaintiffs subsequently brought this action against defendants, alleging negligence on McCowan’s part and asserting vicarious liability against U.S. Cargo. Following discovery, defendants moved for summary disposition under MCR 2.116(C)(10), arguing that there was no genuine issue of material fact that Pasho had suddenly darted out into the intersection, unlawfully impeding McCowan’s right of way, and that until she did so, McCowan owed her no duty. Defendants further argued that plaintiffs had failed to present any evidence to create a genuine issue of material fact whether McCowan breached his duty of care, failing to present any evidence that McCowan’s actions of slamming on his brakes and veering to the right were unreasonable under the emergent circumstances. After considering the matter, the trial court granted defendants summary disposition, [*4] relying principally on Arnold v Krug, 279 Mich 702; 273 NW 322 (1937). On appeal, plaintiffs argue that the trial court erred by so ruling. We disagree.
We review de novo a trial court’s decision regarding a motion for summary disposition. Heaton v Benton Constr Co, 286 Mich App 528, 531; 780 NW2d 618 (2009).
A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim. Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial. A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ. [Zaher v Miotke, 300 Mich App 132, 139-140; 832 NW2d 266 (2013) (quotations marks and citations omitted).]
“Only the substantively admissible evidence actually proffered may be considered.” 1300 LaFayette East Coop, Inc v Savoy, 284 Mich App 522, 525; 773 NW2d 57 (2009) (quotation marks and citation omitted). “Circumstantial evidence can be sufficient to establish a genuine issue of material fact, but mere conjecture or speculation is insufficient.” McNeill-Marks v Midmichigan Med Ctr-Gratiot, 316 Mich App 1, 16; 891 NW2d 528 (2016). “This Court [*5] is liberal in finding genuine issues of material fact.” Jimkoski v Shupe, 282 Mich App 1, 5; 763 NW2d 1 (2008).
“It is usually held that in order to state a negligence claim on which relief may be granted, plaintiffs must prove (1) that defendant owed them a duty of care, (2) that defendant breached that duty, (3) that plaintiffs were injured, and (4) that defendant’s breach caused plaintiffs’ injuries.” Henry v Dow Chem Co, 473 Mich 63, 71-72; 701 NW2d 684 (2005). That fourth element, proximate causation, actually incorporates two distinct legal concepts: (1) factual (or “but for”) causation (i.e., “that the harmful result would not have come about but for the defendant’s negligent conduct”), and (2) “legal” causation (i.e., an analysis that “normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences”). Haliw v City of Sterling Hts, 464 Mich 297, 310; 627 NW2d 581 (2001).
“The threshold issue of the duty of care in negligence actions must be decided by the trial court as a matter of law. In other words, the court determines the circumstances that must exist in order for a defendant’s duty to arise.” Riddle v McLouth Steel Prod Corp, 440 Mich 85, 95; 485 NW2d 676 (1992).
Duty may be established specifically by mandate of statute, or it may arise generally by operation of law under application of the basic rule of the common law, which imposes on every [*6] person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others. [Id. (quotation marks and citation omitted).]
“Once a defendant’s legal duty is established, the reasonableness of the defendant’s conduct under that standard is generally a question for the jury.” Id. at 96. In other words, ordinarily “[t]he jury must decide whether the defendant breached the legal duty owed to the plaintiff, that the defendant’s breach was the proximate cause of the plaintiff’s injuries, and thus, that the defendant is negligent.” Id. “What constitutes reasonable care under the circumstances must be determined from the facts of the case.” Id. at 97. However, “[i]f reasonable minds could not differ regarding the proximate cause of a plaintiff’s injury, courts should decide the issue as a matter of law.” Black v Shafer, 499 Mich 950, 951 (2016), citing Mich Dep’t of Transp v Christensen, 229 Mich App 417, 424; 581 NW2d 807 (1998).
In this case, the trial court relied on Arnold, a case with remarkably similar facts. In Arnold, 17-year-old Alice Arnold was riding as a passenger in a car driven by Leslie Doerr. Arnold, 279 Mich at 705. The two were traveling on a dirt road that intersected M-81, which is a paved trunk line highway. Id. at 704-705. Because of a nearby [*7] embankment, the intersection of the dirt road and M-81 had poor visibility in certain directions, making it “so travelers approaching from the south and the west cannot see each other until within 30 or 35 feet of the center of the intersection.” Id. at 704. The defendant truck driver “was familiar with the intersection.” Id. at 705. As he approached it, he drove on the right side of the road, “with his truck under control,” at 45 miles per hour. Id. at 705, 708. He did not slow down as he approached the intersection. Id. at 705. As the vehicles neared one another, Doerr did not stop or survey traffic, instead proceeding out into the intersection at 15 miles per hour. Id. The truck driver was unable to “see the Doerr car until it darted out upon the pavement,” at which point the truck driver “applied his brakes when 20 to 25 feet from the Doerr car, and swung to the left to avoid it, but struck the car on the left side between the wheels.” Id. Arnold subsequently died from her injuries, and her estate sued. Id. Our Supreme Court held that, “as a matter of fact and law, [the truck driver] was not guilty of actionable negligence.” Id. at 709. In pertinent part, the Court reasoned as follows:
Defendant, being on a trunk line highway, had the [*8] right of way.
* * *
The right of way accorded to a driver upon a trunk line highway is something more than the privilege of going through the intersection in advance of a car which reaches it at the same time. Drivers approaching the trunk line are required to stop before entering the intersection whether any one is at or near the crossing or in sight on the trunk highway. It is an improved road—usually hard surfaced. Its purpose is to afford rapid transit. The driver is entitled to assume that those approaching it will obey the law and stop. He is not obliged to have his car under such control at each intersecting road that he may stop at once and avoid collision with persons who may illegally come into his path.
On the other hand, he must keep such lookout ahead and to the sides and down intersecting highways as a reasonably prudent person would do in order to discover possible danger and must act carefully upon the existing conditions.
A driver cannot be convicted of negligence on a general charge that he did not exercise the care a prudent person would have used under the circumstances. It is necessary to charge and prove the specific act he did or did not do. [The truck driver] was [*9] driving on the right side of the road at a very reasonable rate of speed and with his truck under control. The only claim of fault which could be made against him . . . is that he failed to reduce his speed as he neared the intersection. But to what rate should he have reduced the speed? It is evident that, to have avoided the collision, he would have had to so slacken his speed that he could have stopped well within 30 feet. To impose such a duty on drivers upon trunk line highways would seriously impair their purpose, be foreign to the general conception of careful drivers of their rights and duties upon them, in large measure destroy the preferential right of way, and offer inducement to drivers approaching on intersection roads to violate their legal duties. It is not the rule as a matter of law.
Nor as a matter of fact was such duty to slacken speed imposed on [the truck driver]. He was obliged to anticipate such possible danger in the intersection and do such acts to avoid it as a reasonably prudent person would have anticipated and done, if such person had the knowledge of the situation which [the truck driver] possessed, and had the right to assume that one about to enter the [*10] trunk highway at the intersection would perform his legal duty to stop and look for traffic.
It is hardly reasonable to say that a prudent person, driving on a through highway and familiar with the conditions, would have anticipated such progressively remote possibilities as that—
(1) A car might come from the south on the rough and infrequently traveled road, where travel is necessarily slow and the duty to stop at the through highway thereby emphasized;
(2) Its driver would not look for approaching cars on the through highway;
(3) He would fail to observe a very common rule of law, and of even less than ordinary care, by neglecting to stop before entering the intersection; and
(4) To cap the climax of a total want of common prudence—he would make a short turn to the left into a part of the intersection where he had no right to be.
Reduced to its essentials, [the truck driver] was driving at a reasonable rate of speed and without duty or reason to anticipate the possibility of such extraordinary conditions as Doerr brought about, the danger did not appear until it was too late for [the truck driver] to avoid an accident, and the proximate cause of the collision was the negligence of Doerr [*11] and not the conduct of [the truck driver]. [Id. at 707-709.2]
In a later decision, McGuire v Rabaut, 354 Mich 230, 236; 92 NW2d 299 (1958), our Supreme Court reiterated that a driver proceeding on a trunk line highway has no “duty of care with respect to the subordinate driver” on the intersecting road until “that point when . . . continuing observations . . . reveal, or should reveal to the reasonably prudent [person], an impending danger. It is at this time that [a] duty of care with respect to the subordinate driver arises, and . . . post-observation negligence, or lack thereof, is measured by . . . actions after this point.”
As an initial consideration, as recently emphasized in Ray v Swager, 501 Mich 52, 97-98; 903 NW2d 366 (2017) (WILDER, J., dissenting), the phrase “‘legal cause’ is a misnomer insomuch as it has nothing at all to do with causation; instead, it involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences.” (Quotation marks and citation omitted.) See also id. at 88 n 5, citing 1 Restatement Torts 3d: Liability for Physical & Emotional Harm, Special Note on Proximate Cause, ch 6, pp 492-493 (noting that the use of the word “cause” “contributes to the misleading impression that limitations on liability [*12] somehow are about factual cause”). As a frequently cited treatise on the subject puts it, “[s]cope of liability, formerly termed proximate cause, is not about causation at all but about the significance of the defendant’s conduct or the appropriate scope of liability in light of moral and policy judgments about the very particular facts of the case.” 1 Dobbs, Hayden & Bublick, Torts, § 185, p 622.3
As the interplay between the majority and dissent in Ray suggests, legal causation is a decidedly complex concept, which “encompasses a number of distinct problems including the limits of liability for foreseeable consequences.” Moning v Alfono, 400 Mich 425, 439; 254 NW2d 759 (1977). The converse problem—”[t]he problem of liability for unforeseeable consequences”—is also part of the legal causation calculus. Id. at 440 n 13 (quotation marks and citation omitted; emphasis added). At root, “[a] proper legal causation inquiry considers whether an actor should be held legally responsible for his or her conduct,” Ray, 501 Mich at 65 (emphasis added), “seek[ing] to determine the appropriate scope of a negligent defendant’s liability,” id. at 65 n 24. Part of that inquiry—i.e., who should be held liable—consists of examining the “policy judgments” that underlie this state’s common-law negligence jurisprudence, [*13] as enunciated in caselaw such as Arnold. See Dobbs, § 185, p 622; see also Moning, 400 Mich at 436 (“The law of negligence was created by common law judges and, therefore, it is unavoidably the Court’s responsibility to continue to develop or limit the development of that body of law absent legislative directive.”).
In light of the policy considerations discussed in Arnold, it was appropriate for the trial court to conclude, as a matter of law, that McCowan’s actions did not fall within the proper scope of liability. In one sense, it was reasonably foreseeable that McCowan’s act of driving down Telegraph Road at a lawful rate of speed might result in injuries to someone at some point. As has been recognized in the context of negligence actions in the realm of premises liability, “[b]ecause criminal activity is irrational and unpredictable, it is . . . invariably foreseeable everywhere.” MacDonald v PKT, Inc, 464 Mich 322, 335; 628 NW2d 33 (2001) (emphasis added). The same is true of reckless driving, particularly when teenage drivers are involved. It is certainly “foreseeable”—in an abstract sense—that some motorists will drive in a dangerous or reckless manner.
Such abstract foreseeability does not, however, justify holding motorists on trunk line highways “effectively [*14] vicariously liable for the criminal acts of third parties.” See id. Although it is reasonably foreseeable that some driver at some intersection with a high-speed, trunk line highway will, at some point, suddenly drive into the path of an oncoming semi-truck that has the right of way, at any given intersection that outcome is not reasonably foreseeable. As Arnold recognized, it is simply not reasonable to expect drivers on trunk line highways to constantly anticipate such behavior from other motorists. See Arnold, 279 Mich at 707-709. And from a policy standpoint, doing so would fundamentally undermine the purpose of the trunk line system (i.e., rapid transit), would “be foreign to the general conception of careful drivers of their rights and duties upon” roadways, would “in large measure destroy the preferential right of way,” and would “offer inducement to drivers approaching on intersection roads to violate their legal duties.” Id. at 707-708.
In this case, there is no genuine factual dispute regarding the essential facts. Pasho suddenly impeded McCowan’s lawful right of way. Her conduct in doing so was unlawful, and as evidenced by her own severe injuries and her passenger’s death, it was so unexpected as to be inherently [*15] unforeseeable. Under the doctrine of legal causation, this state’s common-law negligence jurisprudence, as announced in Arnold, will not attribute liability for Pasho’s injuries to McCowan, who was simply traveling on a trunk line highway lawfully and in control of his vehicle. See id. at 707-709. Summary disposition was appropriately granted.
Affirmed.
/s/ Thomas C. Cameron
/s/ Kathleen Jansen
/s/ Peter D. O’Connell