TOV Injury and Safety Blog

Woman dismissed from graduate counseling program can sue claiming civil rights violation

Julea Ward pursued a a graduate-level counseling degree from Eastern Michigan University.  Throughout the three-year program she maintained an outstanding grade point average, although she consistently raised concerns over the conflict between her individual religious beliefs and the counseling program's "values-affirming" approach to issues involving homosexuality and extra-marital sexual relationships.  During her final year she was assigned to counsel a gay patient and sought re-assignment of the patient to a counselor who did not share her religious objections.  

Insurer that lost declaratory judgment action over insurance coverage cannot pursue indemnification in subsequent action

A worker was injured on a construction site controlled by the Olver C. Deluca Company.  Deluca demanded that Secura, an insurer for a sub-contractor, defend the worker's injury claim, but it refused.  Deluca then defended the claim on its own and sought reimbursement from Secura.  The Court in that case ruled that Secura owed a duty of defense and required it to re-pay Deluca.  Secura then filed suit against Farm Bureau, Deluca's insurer, seeking reimbursement or indemnification. 

Dispute between two insurers over duty to pay PIP benefits is resolved.

Jerald Sours was injured in a car accident.  He was occupying an uninsured vehicle owned and operated by Nakeysha Vond.  While Ms. Vond was "uninsured" (and therefore could not collect any PIP benefits for her own injuries), her father--with whom she lived--owned a vehicle that was insured with Westfield Insurance Company.  Westfield denied liability for Sours' PIP expenses (wages, services and medical) and Titan Insurance Co. was forced to pay them under the Assigned Claims Plan.  Titan then sued Westfield for reimbursement, arguing that Westfield was the insurer "first in line" to pay PIP benefits to a passenger injured in a car operated by Vond under the statutory language of the no fault act.

Trial judge errs in dismissing malpractice claim after doctor's insurer's bankruptcy claim

The Estate of Samuel Alexander sued Trillium Hospital and Dr. Ramana Chennubholta, arguing that a misdiagnosis in the Emergency Room resulted in Alexander's death from pancreatitis.  Not long before trial, the doctor's insurer was declared insolvent and filed bankruptcy.  The trial court responded to the automatic bankruptcy stay by treating the case as "administratively closed"  and did not re-set the case for trial when the bankruptcy was closed.

Claim arising from trip over pallet in Big Lots Store is dismissed

Lois LaFontaine turned an aisle while shopping at the Oakland County Big Lot store and her shin struck a pallet protruding into the aisle.  She fell and allegedly suffered injury.  The Court dismissed her injury claim, finding that the pallet was an "open and obvious" hazard which the store owed no duty to remedy.  The Court also held that the case arose from a "condition" on the premises, and therefore a claim for negligence against the store employees for leaving the pallet in a "camouflaged" location was untenable.

Slip and fall case entering Younkers Department Store is dismissed

Usha Shah fell just inside the door as she entered a Younkers, just after a significant rainstorm.  The staff of the store had set out four yellow cones just inside the doorway in an attempt to warn entering patrons.  It rejected Shah's injury claim on the basis that the tracked-in water from the rainstorm was "open and obvious," as was the hazardous condition of the marble tile in the doorway.  She sued and the court dismissed her claim on the same basis.

Federal Government seeks to expand immunity for negligent medical care of active duty family members

In a sad example of "what have you done for me lately?" attorneys representing the federal government are taking aggressive steps to broaden the immunity the federal government claims for medical negligence.  Several decades ago, a decision of the U.S. Supreme Court held that although active duty service members are entitled to government-provided medical care, they cannot sue for negligence.  Whether or not that was a good idea or sound public policy, the decision has never been applied to the family members of active duty servicemen.  Now, in an effort to "contain costs," government attorneys are arguing that the decision should also apply to cases where a serviceperson's dependant was damaged by poor care.  The Military Times reported this month that attorneys in Florida are raising the immunity issue in a case involving the death of a service couple's baby and in a case involving the failure to diagnose a  serviceman's wife's subsequently fatal cerebral hemorrhage.

Frankly, it is beyond us why the "sovereign" or "governmental immunity" English Kings granted themselves in court should continue to apply in a democracy in any situation.

Revision to DSM 5 will likely include depression resulting from grief

The New York Times reported last week that the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association will likely include a sub-classification of depression resulting from the loss of a loved one.  The DSM 5, the first revision since 1994, will be controversial in this regard as practicing Psychiatrists disagree about whether normal grieving ("bereavement") should be classified as depression.

The current DSM did not include bereavement as a form of depression.  Under the current criteria, a patient must display five of the nine symptoms of depression for more than two weeks in order to be diagnosed with that condition.  The symptoms include, for example, sleeping problems, feelings of worthlessness, inability to concentrate.  Research suggests that 8 to 10 million people lose a loved one each year and that between one-third and one-half would qualify as "depressed" under these criteria for more than one month.

Other controversies arising out of the new DSM include a re-classification of autism that would significantly reduce the number of persons diagnosed, and the promulgation of a new classification "attenuated psychosis syndrome" which some treaters believe is a thinly-veiled attempt by Big Pharma to sell more drugs.

Michigan Supreme Court reverses Court of Appeals' holding that contract immunity does not apply to protect defendant from its own negligence.

In June, the Court of Appeals ruled that a contractor was not immune from negligence simply because it signed a contract with the City of Royal Oak that imposed certain safety requirements.  The two concurring Court of Appeals judges determined that the injured party, Frederick Price, had pleaded a duty owed by the contractor to him that was "separate and distinct" from the contractual duties it assumed to the City. 

Case examines duty of care of 17-year old bicyclist and motorist who struck her

Hali M. Steele was riding adjacent to another girl in the right lane of 14 Mile Road in Calhoun County.  The other girl was nearer the fog line as Ronald Gilis and Penny Gillis approached at 55 miles per hour in their minivan.  The minivan slowed to about 40 miles per hour when Hali reported "panicked" and swerved into the left lane in front of the Gillises.  Steele filed suit against Gillis for negligence, and a trial resulted in a verdict in favor of the minivan driver.  Steele's attorneys appealed, raising several arguments.

Weather conditions "favorable" for the development of black ice do not constitute an adequate foundation for explaining fall

Terry Eakins fell on the premises of Copeland Auto Repair after getting out of his AT & T van.  Eakins was on the property to install phone service.  He explained that his foot slipped on something, but that he never identified the cause of his fall.  He argued that since the landowner admitted that conditions were "favorable" for the development of black ice, the jury could infer, without further evidence, that black ice was, indeed, the cause of his fall.  The court said that will be the day. 

Court of Appeals holds that lower court erred by enforcing its limitation on when an insurer may bring a motion for summary disposition

The Washtenaw Circuit Court, as do most Circuit Courts, issues a Pre-trial Scheduling Order that controls the time within which the parties to litigation must take certain steps.  A no fault head injury care provider, Healing Place, Ltd., sued State Farm to force it to pay for Personal Injury Protection benefits provided to State Farm's insured, Gene Raymond.  State Farm sought summary disposition, arguing that the plaintiff was not adequately licensed to bill for the services it provided to Raymond. 

Newspaper derides claim that "tort reform" resulted in savings to consumers

The editors of the Henderson Daily News in Texas published an article this month repudiating claims that adopting aggressive "tort reforms" had resulted in benefits to consumers.  The Editors pointed out that limiting victims of medical malpractice to $250,000.00, as Texas did in 2003, was touted as a means of lowering the cost of medical care and health insurance.  It was also suggested that it would make Texas a more hospitable location for doctors.  The outcome after almost nine years? Well, not so good.  Texas did not obtain a competitive advantage over other states by reason of tort reform. 

US Supreme Court unanimously rules that attaching GPS tracker to car without a warrant is a violation of the Fourth Amendment

The Fourth Amendment to the US Constitution prohibits the government from engaging in "unreasonable searches and seizures."  Last week, the nine Justices of the Court issued a rare unanimous opinion agreeing that a breach of the Fourth Amendment's prohibition had occurred.  The Justices did not agree on the basis of the ruling, however.  The more conservative Justices concluded that a legal error had occurred only because attaching the GPS tracker required the police to invade personal property.  One judge indicated that while a broader right may exist, attaching the tracker to personal property was sufficient to constitute a breach.  The majority took a broader view and held that tracking a private individual for a month and collecting voluminous data without a warrant should be the foundation for the holding of a breach.

Non-lawyer Personal Representative's fiduciary duty does not extend to accurately explaining the law to Interested Person

Step-siblings Julie Ann Schaffer and James Patrick Moore became embroiled in a dispute over their father's Estate.  In short, the father had mortgaged a home where Moore lived, and then deeded a survivorship interest in the home to Moore.  When Dad died, Schaffer, a non-lawyer, was made the Personal Representative of the Estate.  She (incorrectly) told Moore that he was obligated to pay the mortgage on the home, even though he had not signed the mortgage or promissory note.  When he fell into arrears and lost the home, he sued Schaffer for not accurately explaining his rights to the property and the Estate's duty to pay the mortgage debt. 

Court reverses another summary disposition wrongly based on "contract immunity."

Richard Burns lost his home in a fire caused by a defective wood stove.  He and his insurer, USAA, sued JCS Fireplace and a contractor, arguing that the negligent installation of the wood stove made the contractor, JCS (and their insurers) liable for the resulting fire damage.  The trial court dismissed the negligence case, citing the Republican Supreme Court's much-criticized "contract immunity" holding. 

Contractor working on Dow Chemical property cannot sue over ice near building

William Osantowski was returning to the Dow building from an errand to his car when he slipped and fell on ice, suffering injury.  He claimed he did not see the ice until his fourth trip between the parked car and his employment location and argued that Dow was negligent in clearing snow and ice from its lot.  Dow argued that it owed no duty to remediate the hazard because the ice was "open and obvious" and had been  easily located by one if its employees when he exited the building after Osantowski's injury.

Bar not legally responsible for returning lost car keys to drunken patron

Devon Allison was at the Mo-Doggie's Bar and Grill in Genessee County with friends.  They were served to the point of visible intoxication and asked to leave.   Allison left her keys at the bar, where they were found by an employee.  She returned some time later, obtained her keys from the bartender and was then killed in a fatal car crash.  Her family sued the bar, arguing that it was negligent in returning car keys to a person known to be visibly intoxicated.

The Court dismissed the family's case.  It held that a statute which precludes a visibly intoxicated person from suing the bar that served him or her to intoxication also precludes this lawsuit.  Even though returning the keys may have been negligent, the court deemed the negligence so inherent to the illegal sale of alcohol--and the legislature's limitation on liabilty for an illegal sale--that the family's action was not allowed.

Court "harmonizes" policy coverages and exclusions by eliminating coverage despite lack of evidence.

Lawrence and Laura Williams suffered water and mold damage in their basement when a storm knocked their power out.  They argued that the damage--some $38,000.00 worth--should be covered under their homeowners' insurance policy with Home-Owners Insurance Company (a subsidiary of Auto Owners).  Their policy covers related damage if it results from a storm-related power outage, so they thought they were set.  The insurer pointed to another exclusion, however, that limited coverage to $5,000.00 if the damage was caused by a non-operating sump pump.  The insurer argued that this provision "trumped" the coverage provision and the Court of Appeals agreed. 

The Williams also objected that there was no direct proof to support the insurer's claim that the damage was caused by the sump pump stopping.  The Court essentially held that no such direct proof was required.

Mortgage holder who forecloses after fire cannot also grab insurance proceeds

In a rare win for consumers in Michigan's courts, the Court of Appeals followed old precedent and ruled that Wells Fargo Bank, N.A. could not grab the $38,000.00 in insurance money owed by State Farm on a fire policy.  Wells Fargo had already foreclosed on the property and sold it for $64,000.00.  In doing so, under existing Michigan law, Wells Fargo extinguished its right to keep the insurance proceeds payable after the fire.  We'll see how long this decision holds up, once Wells Fargo appeals to the current insurance-beholden Republican majority on Michigan's Supreme Court.  They have shown no reluctance to overturn longstanding precedent where it will benefit their campaign benefactors.

Prisoner assaulted by State psychiatrist cannot hold the state responsible

In Langton v. State of Michigan, decided December 30, 2011, the Court of Appeals reversed the Court of Claims and ruled that Langton could not hold the State responsible for assault and battery committed by its psychiatrist on Langton while incarcerated.  Although it is well-documented medical malpractice for a psychiatrist to initiate a sexual or romantic relationship with a patient, and although the psychiatrist's letters revealed a clearly inappropriate "romantic" interest, and although the psychiatrist was convicted of criminal sexual conduct, the Court held that the psychiatrist's employer was not responsible for the wrongful conduct.

Although the State has immunity for many acts of its employees, it does not enjoy immunity for negligently providing "medical care or treatment."  The Court rejected the State's claim that the psychiatrist's misconduct did not occur in the context of providing medical care, yet it held that the State was not responsible for this misconduct.  The reasoning of the opinion is not entirely clear, but it seemed to be based on the concept that the State could only be responsible for the psychiatrist's malpractice if it negligently failed to respond to knowledge of the employee's intentional acts of misconduct.

City not responsible for injuries caused by limb that fell from diseased tree

Clinton Bearss sued the City of Clawson after he was struck on the head by a falling tree branch.  He was standing on a City sidewalk when he was struck, and he argued that the City should not be immune from its alleged negligence in failing to remove the tree before it caused injury.  He argued that the City's "sovereign immunity" did not apply in this situation, because (under the statutory highway exception to immunity) the diseased tree in the City-controlled highway right-of-way rendered the highway and sidewalk "not reasonably safe for public travel."  The Court rejected his claim and granted summary disposition, noting that the Engler Majority of the Supreme Court had repudiated earlier decisions of Michigan's Supreme Court and returned to "a broad reading" of immunity with narrowly limited exceptions.

Another injury claim against government dismissed on a technicality

Khadija Glaspie left the Crazy Horse Saloon at 8140 Michigan Avenue in Detroit on July 10, 2009, and fractured her ankle in a pothole on St. Lawrence Street.  17 days later, she filed a formal notice of injury with the City, including 3 color photographs depicting the pothole, a view of St. Lawrence Street (not identified by sign in the picture, however) and the Michigan Avenue facade of the Saloon.  The notice, unfortunately, indicated that the injury occurred "in front of Crazy Horse Saloon at 8140 Michigan Avenue..."  The City sought to dismiss the claim, arguing that the notice Glaspie filed did not accurately describe "the exact location" of the injury.

After initial settlement, Auto Club preserves claim of misrepresentation to defend subsequent PIP claim

In 2007, Kenneth Brafman sought PIP benefits from his auto insurer, the Auto Club Insurance Association, related to transportation services.  The Auto Club defended the claim, in part, by filing a counter-claim alleging that Brafman committed fraud or misrepresentation in seeking PIP benefits.  In 2009 the parties settled the suit by payment of $20,000.00 to Brafman.  As part of the settlement, the Auto Club dismissed its counterclaim "without prejudice."  Later in 2009, Brafman filed a claim for overdue PIP benefits incurred after the settlement.  The Auto Club filed a counter-claim once again, but included in it claims related to alleged misrepresentations occurring before the prior settlement.  The Brafmans argued that the "old" counterclaim allegations should be dismissed as part of a contract for settlement.

Ambulance case must go to a jury

Lashon Hagler sued the City of Pontiac and Aron Dean Lewis after striking Lewis' ambulance in an intersection where Hagler enjoyed the right of way.  Lewis admitted failing to yield the right of way, but argued that he entered the intersection with lights and siren and gave Hagler enough time to avoid striking the ambulance.  Hagler disagreed, and claimed that he didn't get enough warning of Lewis' attempt to dispute the right of way.  He also claimed that the siren on the vehicle was not operating.

Lawyers for the City's insurer argued that right of way wasn't an issue because the ambulance driver was "driving in accordance with the standard of care" because he was using lights and siren as necessary.  The City insurer's lawyers also made the frivolous argument that Lewis could not be responsible for negligent operation of the ambulance because he did not "cause" Hagler to strike him.

Court holds that parents cannot sue owners of home for death of drunken minor who committed suicide

The Court of Appeals upheld the dismissal of Rita Costigian v. Kevin Plets and Cindy Plets.  The Plaintiff, Rita, was the mother of Jonathon Costigian and the Personal Representative of his Estate.  She sued the defendants after Jonathan hung himself in the Plets' basement.  Jonathan and the Plets' son had previously consumed alcohol at the Plets' home, apparently, and when the Plets left the house on an evening in May of 2008, a minor drinking party ensued.  When the Plets got home, they kicked some kids out, called parents to let them know what happened, and left the drunken kids to "sleep it off."  In the morning, they discovered Jonathan a suicide in the basement.  His parents sued, arguing that they were negligent in allowing the party to occur and in failing to anticipate Jonathon's suicide.

Trial court reversed; claim against government tractor driver is dismissed

Angela Barrett was badly hurt when she fell of a Camp Dearborn hayride.  Allegedly the trailer on which she was riding was being driven at 30 to 40 miles per hour, lurching and executing figure-eights when Barrett fell.  She argued that the tractor driver was responsible for her injuries.

Injury victims "0 for 3" on the day: Summary judgment granted to insurers in all cases, including dob bite.

Brian Stacey, a minor, suffered serious scarring when he was bit by a neighbor's pit bull.  He sued the Colonial Acres Associates, LLC, and Newbury Management Co., the operators of the trailer park where he lived, alleging that they bore some of the responsibility for his injury.  Through his parents, Stacey argued that the Defendants had violated their own rules by allowing the pit bull to live in the trailer park for years, despite the prohibition of several breeds of dogs known to have a propensity for biting or violent behavior.

Michigan Court reinstates case involving allegations of fraud and misuse of corporate identity

The Woodridge Hills Association sued Dougals Walter Williams and his corporation, alleging that Williams defrauded them and then hid from creditors behind a new corporate entity.   The Plaintiffs argued that Williams, a licensed builder, performed shoddy work in replacing their condominium roof, and then avoided financial responsibility by creating a new corporate entity.  The Plaintiffs argued that Williams transferred the assets of his corporate alter ego, Redford Roofing, into a new solely-owned corporation, D.W. Williams, LLC, and then put Redford into bankruptcy to avoid creditors.  The trial court dismissed the Plaintiff's attempts to "pierce the corporate veil" and to hold the second company liable as a "successor in liability."  The Court of Appeals reversed, holding that the Plaintiff had created a question of fact to be resolved at trial and not on summary disposition.

U.S. Supreme Court rules that claims against telemarketers can be pursued in state or federal court system

It was a surprise to no one this week when the U.S. Supreme Court ruled unanimously that Congress meant what it said when it passed the Telephone Consumer Protection Act, allowing abused citizens to file suit against the makers of nuisance telephone calls.   The Defendant in Mims v. Arrow Financial Services had argued that the legislation did not allow suit to be brought in a federal court.  The Court's opinion held that there was "nothing in the text, structure, purpose or legislative history" of the act to warrant the Defendant's argument.

Progressive loses another battle over priority in obligation to pay PIP benefits

Doug Alt was badly hurt in a single vehicle collision.  Alt was a farmer who lived with his parents. He was driving a car titled in his name but insured with Citizens by his parents.  Alt's only insured vehicle was a pickup truck he used on the farm. Citizens initially paid his PIP benefits but then sought reimbursement by Progressive.  Progressive apparently initially indicated an obligation to pay but then refused and filed suit for a declaratory judgment that it was not responsible for PIP benefits.

Landlord's statutory duties to maintain property aren't applicable to injury cases?

Monica Martin fell and injured herself at her apartment after tripping over defective floor tiling at the top of a flight of stairs.   Under state law, apartment owners are required to "keep [rental] premises in reasonable repair" and to comply with health and safety laws.   Martin cited the violation of this and related laws by The Fourmidable Group, Inc., as a foundation for her lawsuit against the lessor for negligence.  No one contested the defective condition of the tile. Nevertheless, the Court summarily dismissed her claim and she appealed. 

Case of man suing without lawyer is dismissed for failure to provide discovery

Edward Pragasam sued Ciena Health Care Management and others. The Appellate Court did not explain the nature of his suit in the opinion upholding its dismissal.  The trial court had dismissed his claim because he did not comply with the Defendants' multiple discovery demands.  The court noted that a litigant pursuing a claim without a lawyer is entitled to some leniency and held to less stringent standards.  Nevertheless,  and even though he displayed no wrongful intent, the plaintiff's claim was dismissed because his choices regarding appearing for deposition and providing discovery (or not) were "conscious and intentional...not accidental or involuntary."

Company that allowed debris to accumulate on floor owed no duty to invitee attending business meeting

John Preston sued Loving Care FLowers, Inc., after he sustained a rotator cuff injury to his shoulder.  Preston attended a business meeting at Delta Flowers and was accompanied to a back office.  When he re-traced his steps to leave 45 minutes later, employees had allowed floral debris to accumulate on the floor and Preston slipped and fell.  The Court held that the florist and its employees owed no duty to Preston or other visitors invited to negotiate the path to the backroom.

Insurers battle over PIP benefits for woman "employee" providing attendant care

Nancy Clement was hurt when the car she was driving was struck by another motorist.   Clement was driving Nancy Denman to an appointment in Denman's automobile.  Clement was a caregiver for Denman, hired by Denman's daughter.  Clement sought PIP benefits, but had to sue the Auto Club and Cincinnati Insurance Company after the two companies fought over which owed first priority to pay Clement's PIP benefits (medical and up to three years of wages and services). 

The two companies fought over the definition of "employment" as used in the no fault act and under Michigan law.  If Clement was "employed" by Denman, under the no fault act Denman's insurer, the Auto Club, would assume from Cincinnati (Clement's personal no fault insurer) the duty to pay PIP.   Section 500.3114 does not define "employment" for no fault purposes, so the court looked to the "economic reality test" which controls in other situations. 

The Court held that Denman's daughter controlled Clement's daily routine, not Denman; it suggested that Denman's daughter--not Denman-- had hired Clement and was the only person who could fire or discipline her.  While Clement was paid ten dollars per hour,  Denman's family made no "employee" deduction of taxes or benefits.  Finally, while Clement's activities were "integral to Denman's well-being," Denman was not "in the business of being well," and therefore, Clement did not meet Michigan's definition of "employment."

While some of this decision makes sense, the opinion is faulty in part because it is based on the flawed suggestion that Denman's daughter was not acting as Denman's agent in supervising Clement's hiring, discipline, firing and "employment."  Simply because the family did not properly pay employment taxes on Clement's wages should not have controlled the outcome where the family did, in fact, hire Clement, control her daily activity, and retain the right to discipline or fire her.

Court enforces six-month "private" statute of limitations in contract

Kimberly Hardy sought to pursue a lawsuit against her employer, St. John Health, after her job was terminated.  The Court of Appeals rejected her lawsuit because she "agreed" to a six-month statute of limitations on claims against her employer in her employment application.  This is the Dickensian world we live in:  Hardy was "free" to bargain away her civil rights in return for being "considered" for a job.  A six-month limitation period is neither "procedurally nor substantively unconscionable," according to insurance lawyer-judges, and therefore does not violate public policy.

Landowners lose suit against neighbor alleging trespass by waterflow

The Droncheffs sued the Kerrs in Livingston County Circuit Court, alleging that every time it rains, the Kerrs' holding pond overflows and floods the Droncheffs' property.  One of their claims was that the flooding constituted a trespass-nuisance, however, the Court held that this theory of action applied only to claims against the government and had been "eliminated" by the Engler Majority Supreme Court in an earlier decision. With regard to a trespass by diverting water flow, the Court held that the Droncheffs hadn't met their burden of proof.

Court of Appeals re-examines fraud verdict against sellers' realtors

This week the Court of Appeals granted re-hearing and issued a second opinion with regard to Frank Alfieri and Tonya Alfieri's fraud claim against Marc Bertorelli, Meryl Greene and Weber Seiler Realtors, Inc.  The opinion addresses the bases for the jury's verdict in favor of the Alfieris and rejects the various appellate issues raised by the Defendants.

Court enforces shorter statute of limitations contained in insurance company's Uninsured Motorist Coverage

Ira Mopkins sued her own insurer, National Indemnity Company, after it refused to honor its obligations under the Uninsured Motorist Coverage she bought with her auto no fault policy.  The insurer claimed that she should have brought suit earlier, even though she had sued within the State of Michigan's contract statute of limitations.  Her attorneys argued that the company should not be able to enforce a shorter statute of limiations and that, in any event, it should be "estopped" from enforcing the shorter limit in her case because the company never responded to their letter requesting a copy of the subject policy.  The trial judge rejected Mopkins' attorneys' arguments and ruled that the company could deny her claim based on its own shorter statute of limitations in the policy.

Consumers are 0 for 2 in uninsured/underinsured motorist claims this week: policy language from amended policy is enforced based on "mailbox rule."

Michael Hegyl sued the Auto Club to collect Underinsured Motorist Coverage that he had purchased with his No Fault Coverage.  Hegyl was badly hurt when a driver who had fallen asleep at the wheel rear-ended his Jeep.  He settled his claim against the at-fault for the at-fault's liability limits of $20,000.00 and then attempted to recover the remainder of his damages from the Auto Club.  The Auto Club rejected his claim, relying on language in its UM/UIM policy that waived the coverage if an insured settled the underlying injury claim without the insurer's written consent.

Court holds doctor committed no malpractice on date of unwarranted surgery

Insurance defense attorneys were gloating in this week's January, 2012, Lawyer's Weekly over the dismissal of a medical malpractice claim alleging inappropriate eye surgery.  The woman patient sued her eye doctor alleging that he never should have performed the cataract surgery that damaged her eye.  The Defendants argued that the doctor's alleged error occurred weeks before surgery, when he recommended and scheduled the surgery, and that since suit was not filed within two years of the date surgery was first recommended, the claim was not timely.  The woman's attorneys argued that performing the unnecessary surgery was a negligent act in any event, and therefore suit based on the inappropropriate surgery could be brought within two years of the surgical date.

Establishment attacks on middle class continue in Washington D.C.

In two unrelated developments this week, America's middle class took additional punches from the Republican majority in Congress and on the Supreme Court.  One involved the abusive practices of credit card companies, while the other involved steps to emasculate the Whistleblower Protection Act by the Chamber of Commerce.

Justice Antonin Scalia wrote the opinion for a Supreme Court majority that upheld a "credit relief" company's ability to avoid a class action lawsuit.  Three Oakland, California consumers sought the latter status in order to make economically viable their effort to seek justice arising out of CompuCredit Corporation of Atlanta's despicable small-print charges.  In essence, the company offered consumers a $300.00 credit card, but then, in the fine print, charged them annual service fees totalling $257.00 ($29.00 initial fee; $6.50 monthly fee and $150.00 annual fee--plus any interest charges the consumers actually incurred--presumably at a typically usurious rate of 19-30 percent).  The Court held that Congress' recent Credit Repair Organizations Act--even though it was clearly intended to end similar practices--did not authorize the abused consumers to file a legal action if there was a mandatory arbitration provision also buried in the transgressor's fine print.

In the other situation, the National Journal reported on a Chamber of Commerce campaign that has successfully moved legislation through the Republican-controlled House of Representatives.  The proposed law would require whistleblowers to report their observations internally, rather than directly to legal authorities.  Critics of the bill have adroitly identified the obvious motivation and impact of the bill:  employees with inside information of illegal activity will be squelched before their revelations can reach law enforcement.  Potential whistleblowers will be intimidated, placed at risk and potentially "bought off" if necessary, before fraud and misbehavior see the light of day.  At a minimum, the companies will gain time to "cover their tracks" before the legal authorities are alerted to illegal behavior.

The Chamber of Commerce is, in our humble opinion, the single most despicable influence in American public life.  While it once represented Main Street America and may have played a beneficial role in domestic public policy, in twenty-first century America, it is simply the most powerful tool of the "one-percenters" who dominate public policy with excessive profits and are squeezing the middle class out of existence with their overwhelming financial power.

Company's attempt to "coach" and intimidate witnesses backfires

Raymond Tackett and Thomas McGregor successfully appealed the dismissal of their wrongful discharge and whistleblower claims against Group Five Management Company.   Group Five was apparently being sued because of an electrical fire that was allegedly caused by negligence.  Tackett and McGregor were summoned to a "deposition preparation" meeting, where they were told the suit could put the company out of business and eliminate their jobs.  They were then told that they "did not need to know or remember anything."  When they indicated that they would be truthful and would not lie under oath, they were both subsequently fired.The two men filed a Whistleblower retaliation claim, however, the Wayne County Circuit Judge dismissed their claims, based on a faulty interpretation of the Whistleblower Protection Act (WPA).  The Defendant argued that the WPA did not apply to the two mens' cases because they were fired before anyone had noticed their depositions, because they were acting out of personal vindictiveness and not in response to a WPA-protected activity; and because there was no direct evidence that they were fired in retaliation for their failure to cooperate with attempts to "coach" or sanitize their testimony.

On appeal, the three judge panel unanimously over-turned the lower court decision and sent the cases back to be decided by the jury.  While the high court held that the timing of Defendant's termination decision was not "direct" evidence of retaliation; when combined with the other factual circumstances documented by the two Plaintiffs, there was ample circumstantial evidence to send the case to trial.  The Court noted that there was a conflict in testimony regarding the reasons offered for the Plaintiffs' discharge and corroborating evidence circumstantially supporting an illegal motive.  Surprisingly, it did not express outrage at the Defendant's alleged attempt to undermine the litigation process through "coaching" and intimidation.

Risperdal maker faces additional exposure (in hundreds of millions of dollars) for illegal marketing

In 2010, a Court in Louisiana awarded the State 257.7 million dollars against Johnson & Johnson, for its illegal marketing of the drug. In 2011, a South Carolina judge ordered the company to pay $327 million dollars because of its illegal marketing efforts in that state.  Two weeks ago, the company agreed to a one billion dollar civil settlement with the federal government over the latter's claim that Risperdal was marketed illegally.  This week a trial started in Texas over that state's claim that Johnson & Johnson owed more than one billion dollars in false marketing damages.    Risperdal is an antipsychotic drug that was never approved by the FDA for treatment of children or the elderly.  Despite that limited approval, courts and experts have determined that the manufacturer lied about the drug's efficacy and encouraged physicians to prescribe it for unsafe and unproven purposes.  Cases are also pending in seven additional states.  Cases in two states are on appeal, including a 330 million dollar judgment in Louisiana. There are also approximately 500 individual injury claims pending against the company.

Risperdal was once the company's best selling dru, generating sales in excess of 24 billion dollars from 2003 to 2007 when it lost patent protection. Profit margins were apparently pretty good, as the South Carolina judge concluded that Johnson & Johnson's profit on the drug was 97 percent of total sales.  Other competing manufacturers have paida total of2.66 billion dollars to resolve similar government marketing claims.

The Texas allegations against the manufacturer include claims that it paid $340,000.00 to Texas state mental health employees to promote the drug.  They also include claims that sales representatives were making marketing calls on doctors who only treat children--despite the company's claim that it did not market the drug for use with children or the elderly.  The Complaint filed in Texas includes specific facts that seem unlikely to be false, for example the allegation that the company's sales representatives called on one child psychiatrist a total of 96 times.

Michigan citizens won't be recovering any of their hundreds of thousands of mis-used tax dollars from the companies who defrauded our taxpayers:  Michigan Republicans passed the only law in the nation that grants immunity to drug manufacturers if their product was approved by the FDA.  They can safely lie, cheat, steal or bribe in our jurisdiction, apparently.

Supreme Court summarily dismisses death case against Royal Oak

The family of Thomas LaMeau sued the City of Royal Oak after LaMeau struck a utility pole guidewire embedded in the sidwalk, severing his spinal cord at the C-3 (neck) level.  LaMeau had been at a party where he became intoxicated.  He was riding home, on the sidewalk, on a motorized bicycle, in the dark.  Unknown to him, one of Detroit Edison's utility guidewires posed a fatal hazard.  The family argued that the City was negligent in failing to maintain a safe sidewalk and that two City employees were grossly negligent because they ignored multiple warnings from experienced individuals, and two prior incidents, and insisted on paving the sidewalk without requiring Edison to remove the guidewire.  Both the trial judge and the Court of Appeals agreed with the family that these issues should be resolved by the jury.  The Republican majority of the Michigan Supreme Court summarily disagreed, however, reversed the lower courts, and ordered the claims against the City and its employees dismissed.  It did not issue an opinion, however, and explained its actions in one-sentence of a single paragraph order that made reference to the reasons offered by a lower court judge.

Supreme Court summarily decides malpractice claim; deems trial judge's errors "not inconsistent with substantial justice," excludes emergency standards.

The family of Daniel Jilek sued Carlin C. Stockson, M.D., and several other healthcare providers after Stockson allegedly provided negligent care to Daniel Jilek in an Urgent Care facility.  The family argued that Stockson misdiagnosed Daniel's chest pain, resulting in his death.  They argued that Stockson, a Family Practice specialist, was practicing emergency medicine in treating Jilek, and that Stockson failed to follow his employer's standards for treating patients complaining of new onset chest pain.

Insurance interests were 3 for 3 and injury victims 0 for 3 in today's Michigan appeals courts, including upholding USAA family injury limitation

Cynthia Ruzak and her husband have maintained auto insurance with USAA since Jay served in the military in 1966.  USAA likes to market its coverage to military families, claiming special expertise and interest in their needs. Originally, the Ruzak's policy apparently did not contain any provision limiting liability if one family member negligently injured another.  According to USAA, however, around 1999, the policy was amended to exclude any liability coverage for injured family members.  Such an exclusion is illegal in Wisconsin where the couple lived in 2002, but legal where they subsequently lived in Indiana.  The exclusion is enforceable in Michigan as a $20,000.00 limitation on damages, rather than the full $300,000.00 in liability coverage that the couple had purchased and maintained.  In 2004, when Jay lost control of his truck and hit a tree, severely injuring Cynthia, USAA argued that it owed only $20,000.00 in coverage to Cynthia.

Michigan Supreme Court Justice continues to throw mud.

Former AAA lawyer and current Michigan Supreme Court Justice Robert Young continues to engage in verbal sparring with his colleagues.  It wasn't too long ago that Young and then-Justice Elizabeth Weaver aired their dirty laundry in public.  When Weaver retired, Justice Young's truculence did not.  This week, he suggested that his colleagues were elevating their own prejudices above the law when they suggested that Progressive Michigan Insurance Company was in substantial compliance with the law.  Under Michigan law, an insurer that wishes to exclude liability coverage for a particular driver must make clear to the policy holder that the vehicle owner will remain "liable" if the excluded driver causes an accident while driving.  Progressive, whose marketing campaign has over-extended its legal department in most phases of Michigan practice, used the word "responsible" rather than the word "liable" in its notice to insureds.  One Court of Appeals judge and several Supreme Court Justices suggested that the Progressive notice was either substantially in compliance with the law or a question of judicial discretion. 

Pompous Justice Young quoted his own obscure Oklahoma City University Law Review musings to castigate these other judges for their "shocking departure from the rule of law."  He suggested that "all Michigan citizens should be extraordinarily troubled by any judge who advances the notion that the rule of law must be enforced unless a judge finds an outcome in a particular case to be one of which he personally disapproves."  He concluded: "The rule of law requires a judge to be subservient to the law itself, not the law to be subservient tot he personal views of a judge."

Two Democratic nominees to the Court and Republican nominee Justice Markman both pointed out that when Progressive substituted "responsible" for "liable" in its insurance policy notice, it was fully in compliance with the Legislature's intent as well as the statutory language, and that the judges' disagreement with Justice Young did not warrant the ad hominem attack that Young perpetrated on his fellow judges.

Sadly, with strong cash backing from insurers and the Chamber of Commerce, we continue to elect judges who are thoroughly divorced from the very characteristics that most people associate with the judiciary:  that is, logic, common sense and a sense of justice.  Add to that a lack of humility, and our judiciary is in an ugly state.

State Farm's objection to paying PIP benefits when tailgate dysfunctions is rejected by Court of Appeals

Charles Lefevers attempted to dump contaminated soil at the landfill, however, his tailgate malfunctioned.  He walked from the actuator to the tailgate and attempted to dislodge it by hand.  In the process, the gate released, he lost his footing and fell 14 feet into a concrete-lined landfill pit.  He sought medical benefits from State Farm, which refused to pay. 

Lefevers argued that he should be entitled to PIP medical expenses under one of three theories which would make him eligible for benefits:  1) he argued that he was in contact with permanently mounted equipment; 2) he argued that the vehicle was parked in an location that was not reasonably safe, as it was too close to the landfill pit; and 3) he argued that his injury was caused by contact with the contaminated dirt being unloaded.  The Court of Appeals held that the latter two bases for awarding PIP medical benefits did not apply, but that the first inclusion did.  Since he was in contact with the dump trailer tailgate and it was permanetly mounted equipment--and in operation at the time of the fall, Lefevers was eligible for PIP benefits.