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Court refuses to dismiss case, despite alleged defects in service, where defendants had actual notice of claim.

Kelley Bula sued the father and son, who were owner and driver, respectively, of the car that caused Ms. Bula's injuries in a motor vehicle collision.  There was a confusion of names, apparently caused by the fact that every male in the Fifield family is named "James Wayne Fifield."  James, Jr. was served and signed the Return of Service, however that turned out to be the father.  The son denied being served, but did not deny having actual notice of the claim.  The trial court dismissed both defendants, holding that the son was never served and that the father should be released because his "vicarious liability" was extinguished by failure to serve the driver. 

The Court of Appeals reversed as to both defendants.  It noted that owner liability is not a "vicarious" theory of liability, meaning that the driver need not be maintained in an action to pursue a claim against the owner.  The owner liability statute creates a standing, independent legal duty.  Further, since the Defendants did not prove a "complete failure of service of process," the court rule governing defective service applied in these circumstances.  Under that rule, the claim against the son could not be dismissed if the son received actual notice of the claim:  the claim against him was returned to the lower court for investigation of whether he was timely informed of the pending proceedings.  That should create some credibility question for the trial judge to consider.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
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