TOV Injury and Safety Blog

AutoOwners avoids paying its insureds for injuries excluded in umbrella policy

April Leikert was badly hurt when her husband struck the rear-end of a Ford Expedition with their Harley-Davidson.  April was a passenger and was violently thrown from the bike.  The couple had purchased a liability policy on the bike through Progressive and an umbrella liability policy on Howard through AutoOwners.  Progressive paid over its $250,000.00 in coverage to April, but AutoOwners claimed that its umbrella policy did not apply to injuries to April.  It filed a Declaratory Judgment action against the Howards, arguing that it owed no coverage for April's damages.

University of Michigan investigation demonstrates filthy surgical instruments are common hazard

It does little good for your surgeon to "scrub up" carefully, if the tools of his profession harbor bacteria.  In part because of a design flaw in many surgical instruments, it turns out that bacteria and debris are frequently carried from patient to patient in inflow/outflow cannulas, arthroscopic shavers, endoscopes and other instruments. Recent investigations have documented literally hundreds of infections, some fatal, transported within these instruments because the medical professionals using them had not followed manufacturers' instructions on cleaning.  In other cases, however, investigators have determined that the manufacturers' instructions are simply not adequate to remove surgical debris (and germs). 

Records from Narconon used to prove woman did not sue within six months of "suspecting" malpractice

Michelle Craig sued her doctor, Lars Andersen, D.O., arguing that Andersen was negligent in recognizing that she had become addicted to pain-killing medications.  Andersen asked the court to dismiss the case; his insurance attorneys argued that Craig had waited too long to sue.  In support of Andersen's motion, the attorneys submitted records from Narcanon where Craig had discussed issues suggesting that she suspected that her problems were caused by addiction.   

Woman who dismissed pro bono lawyer and settled claim cannot sue him for malpractice

Perhaps as further documentation of the axiom that "no good turn goes unpunished," Kurt Koehler agreed to give free advice to Fengmei Li after she was allegedly wronged by her former employer.  Koehler apparently gave the woman his appraisal of the settlement value of the claim, as she was insistent on settling it, and he apparently underestimated what the employer was ultimately unwilling to pay.  In any event, Li decided to "go it alone," fired Koehler, gave the employer a higher demand and settled the claim.  She then sued Koehler, arguing that he caused her to settle the case for a number that was not the true value of the case.  The Circuit Court dismissed and the dismissal was upheld by the Court of Appeals.  The Court held that Li could not prove that Koehler had caused her injury--particularly since she fired him and settled the claim on her own.

Plaintiff cannot file new claim of fraud based on perjury in previous case

Michael Zattlin sued the Alden State Bank and its attorneys, arguing that together they had conspired to defraud him in a debt and mortgage action.   Zattlin claimed that the Defendants had filed affidavits in support of their Motion for Summary Disposition which they knew to be false. He alleged that all parties who assisted in preparing the affidavits knew that the affiants did not have first-hand knowledge of the allegations contained in the affidavits.

The appellate court ruled that while Zattlin had raised questions of perjury, the perjury was a fraud intrinsic to the prior lawsuit and therefore it could not serve as the basis of a subsequent claim.  Only extrinsic fraud ("fraud outside the facts of the case that prevents a party from an adversarial proceeding") can serve as the basis for a separate cause of action.  The remedy for intrinsic fraud must be found within the rules governing due process in the initial cause of action.

Government employees aren't responsible for sexual assault committed by a third person

Julie Srda, Next Friend of a child, sued employees of the Michigan School for the Deaf, alleging that the child was sexually assaulted by another student through the gross negligence of the School employees.  The Court of Appeals issued an opinion holding that the employees would not be responsible, regardless of the facts of the employees' negligence, because "the" cause of the incident would be the criminal action of the assaulting person--regardless of his mental capacity or legal responsibility, and regardless of the fiduciary duty owed the child by the school employees.

Sheriff's Deputy forced to early retirement by injuries cannot sue homeowner who failed to clear ice and snow

Dominick Spadafore, an Oakland County Sheriff's Deputy, was called to Wayne Dale Bailey's home because Bailey's son had run away.  Bailey's son ran away after being told to shovel snow.  After meeting with the parents, Spadafore was leaving the home when he slipped on ice on the porch and suffered injuries that lead to his retirement.  The Court of Appeals sympathized with Spadafore's situation, but noted that under prior rulings of the "Engler Majority" the ice and snow that Baileys had not addressed were an "open and obvious hazard." Since the hazard was "open and obvious" the homeowners owed no duty by the  homeowner to make the hazard safe--even though the Deputy was invited to the premises and obligated to respond.

Pioneer State compelled to pay mold loss after mismanaging claims procedure

Barbara Pearson's cottage in Iosco County was damaged when a pipe broke and the furnace malfunctioned.  She alleged that the insurer re-started the furnace without adequately addressing the leaked water, resulting in a pervasive mold problem.  The insurer was not satisfied with the Proof of Loss Pearson filed and demanded supplemental proofs.  When those were provided it demanded a supplemental, signed proof of loss.  When that was filed, Pioneer's counsel refused to authorize a settlement of the claim because the [amended] Proof of Loss was not "timely" filed (within 60 days).  Pearson sued, and ultimately the Court of Appeals upheld her claim, although the judges' reasoning differed.  Two judges deemed the insurer at fault in failing to adequately document to Pearson the deficiencies in her original Proof of Loss and supporting data. The third judge concluded that regardless of Pioneer's conduct, the insured had "substantially complied" with the policy terms, rendering her claim enforceable.

Insurer must honor its obligations to innocent co-insured despite fraud by another insured in claiming fire-damaged contents

Roxanne Hicks was denied any insurance proceeds after her home burned because her husband had mis-stated some of the contents damaged in the dwelling. The Supreme Court recently ruled that Hicks, an innocent victim of the fire and the husband's fraud, was not prohibited from collecting for her losses.  Her sympathetic story is explained in a prior decision at 490 Mich 888.  On remand to the Court of Appeals, the insurer, the Auto Club, argued that an exclusion in its policy allowed it to refuse to compensate even an innocent co-insured after fraud by a claimant.

AutoOwners forced to pay PIP benefits after suicide attempt; failure to acknowledge role in HomeOwners policy is ignored

Bronson Methodist Hospital incurred $53,000.00 in medical expenses to treat April LaFountain after a single-vehicle accident.  LaFountain ingested a large quantity of anti-depressants in a suicide attempt on an isolated dirt road.  She then decided to move her vehicle to a different location, fell asleep and crashed the car.  AutoOwners argued it owed no PIP benefits because LaFountain's injuries (several fractures) were "intentionally incurred."  The appellate judges ruled that AutoOwners did not adequately document its objections to the lower court's rulings and refused to overturn the judgment. 

AutoOwners also argued that LaFountain was actually insured by HomeOwners Insurance Company, a wholly-owned subsidiary of AutoOwners, and for that reason the judgment should not stand.  The judges pointed out that AutoOwners did not raise this issue after its initial Answer. Given its failure to ask the Court to rule on the issue or devise appropriate instructions; given that an AutoOwners adjuster originally managed the PIP claim; and given that the claim was managed with correspondence on letterhead confirming the mutual ownership of the two companies, the court ruled that jurors were not unreasonable in concluding that LaFontaine was insured by AutoOwners.

City park limitation on solicitation is likely to be struck down as over-broad

The Sixth Circuit overturned a District Court in a ruling on a preliminary injunction, and ruled that a City of Fairborn ordinance was unlikely to stand given its overbreadth.  The City allowed a park to be used for a Lions Club function, and as part of the use permit, it allowed the users to prohibit any soliciting outside a rented booth.  Two residents objected on the ground that the permit prevented them from exercising freeedom of religion in proselytizing the crowd that gathered for the event.  The Court held that the individuals who objected were likely to prevail in their claim that the restricition on free speech in a public park was probably too broad, not adequately tailored to the needs it was addressing, and unlikely to withstand constitutional objection.

Insured eligible under two Underinsured Motorist Coverages; sues and Farm Bureau must pay.

Kimberly Beddingfield was a passenger in a car insured by Farm Bureau when a collision caused by an underinsured driver caused her very severe jaw and cervical injuries.  As an occupant of the Farm Bureau-insured vehicle, she was entitled to Underinsured Motorist Coverage (UIM) equal to $500,000.00.  Under her own State Farm policy, she was entitled to $100,000.00 of UIM coverage.  Nevertheless, both companies declined to pay and Beddingfield was forced to sue.

Speaker who fell off the back of crowded stage cannot sue Hotel

Norma Chesser was one of several speakers at an event held at the Radisson Plaza Hotel at Kalamazoo Center.  After concluding her talk, she left the podium to return to her seat and "disappeared" off the back of the stage, injuring her shoulder.  She sued the Hotel, alleging that the stage arrangement, positioning speakers in close proximity to a fall hazard without any railing, was unreasonable.  Her attorneys presented the court with industry standards that had been violated by the arrangement and with admissions by hotel employees recognizing the continuing unsafe condition.

Court reinstates medical malpractice claim dismissed after reference to missing x-rays

Sander Kalaj sued Dr. Syed Mahmood Ali Khan and Basha Diagnostics after Khan failed to diagnose Kalaj's C-5 neck fracture.  In preparing to sue, Kalaj employed another diagnostic radiologist to review the pertinent records and x-rays, and the reviewer confirmed in an Affidavit of Merit that Dr. Khan had breached the standard of care.  After suit was begun, however, it was determined that the x-rays reviewed by the Plaintiff's expert were not the x-rays Khan had referred to in making the botched diagnosis.  It turned out that Plaintiff's treating physician had signed out those x-rays during treatment and they could no longer be located.  Instead, the x-rays reviewed by plaintiffs were films taken by a chiropractor eight days after the alleged error.

Drop a letter in the address; your notice is defective

Kirstin F. Kelly and conservative Republican judges struck another blow for the insurance industry this week when they overturned a Circuit Court judge's decision and dismissed an injury claim brought by Patrick Thurman.  Thurman had fallen after tripping on a cracked sidewalk.  He gave the statutorily-required notice of injury to the City of Pontiac, however, he simply identified the location as 35 Huron, Pontiac, Michigan.  There is a 35 E. Huron and a 35 W. Huron.  The trial judge deemed the notice more than sufficient, particularly after comparing photographs of the two sites.  The higher court reversed him and permanently dismissed Thurman's case, not because the sidewalk was "reasonably safe" but rather because he hadn't timely given notice of the "exact location" where he fell:  it was too much to ask the City to check both sides of the street at E. and W. Huron.  Our system of "justice" has evolved into a display of semantic and logical nonsense.

Claims arising out of medication-overdose in Grand Traverse County Jail are dismissed

The family of Christopher Robin Morden sued the County Jail, the nurse and doctor paid to provide coverage in the jail, the jail's retained psychiatrist and her employer, Northern Lakes Community Mental Health, after Morden died while incarcerated.  After his arrest, authorities noted suicidal warnings and placed Morden on suicide alert.  Morden was already taking psychotropic medications, and these were maintained. 

Morden's condition did not stabilize and over the following two months he was examined by the nurse, the jail doctor and the psychiatrist periodically, with the psychiatrist apparently seeing him about every two weeks.  His medications were increased and new medications were prescribed.   His condition varied from "druggy" to relatively normal.  The psychiatrist believed that his mental condition had improved, but that Morden was suffering side effects. On March 26, the jail physician noted that Morden may be "overmedicated" but also noted that the psychiatrist had changed the medication regime three days earlier, so he took no further action.  Five days later, Morden died of a sudden cardiac event.

Insurer's duty to defend is evaluated, along with ruling on coverage and exclusions

Emir Ibrahimovic sued his former attorney, David Zimmerman, and the Medmarc Casualty Insurance Company, alleging that Zimmerman committed malpractice and that MedMarc, Zimmerman's insurer, should provide coverage.  Zimmerman had assisted Ibrahimovic in an earlier matter and according to the Plaintiff, he committed malpractice in enticing Ibrahimovic to hire another attorney, with whom Zimmerman shared office space, to represent him in a car accident claim.  The insurer denied coverage, relying on an exclusion that applied to partner liability or joint ventures. 

State Farm gets temporary reprieve on paying attorneys fees on PIP claim

Charles Carignan lost a leg in a car-motorcycle collision.  His doctor initially ordered 24-hour attendant care for the man while he adapted to his new condition and a Occupational Therapis recommended housing modifications.  State Farm thought it new better and declined to pay the attendant care or the entire home changes.  Carignan sued and the jury found in his favor, awarding about $11,000.00 in PIP benefits.  The jury expressly concluded that some of the payments were "overdue" (meaning that they weren't paid within 30 days of reasonable proof.  The trial court then awarded over $100,000.00 in attorney's fees after confirming that the attorney's work justified that amount.

Jury will have to decide implied consent issue where kids use RV during party

Sandra Williams' daughter hosted a party at Williams' property on the lake.  There were allowed access to the boats and other "toys" and used the RV to haul gas from the garage to the boats.  One of the kids eventually ran over another kid with the RV, causing injuries that resulted in partial amputation of a leg.  Williams defended the claim by arguing that she never consented to the operation of the RV by the drunken boy.  She did acknowledge that she had granted her children access to "the  boats and toys;" that the keys were in the RV; and that she had consented to her son the use of the RV to tote gas.  There was a dispute between the son and the kid who caused the injury over whether the son had allowed access to the RV by party-goers.

Court of Appeals dismisses schoolgirl's injury claim, overlooks defense attorney's misconduct

Amanda Berry fell off the stage at Dearborn Heights Montessori school during Family Night activities and suffered severe injuries.  Her parents filed suit against the school, arguing that the stage should have been closed for the event because, lacking any railing, it was a hazardous condition for young children playing.  At trial, the defense attorney was prohibited by the judge from arguing that the mother was inattentive and at fault for allowing the injury to occur.  Nevertheless, he made several references to the fact that the mother "wasn't paying attention to" Amanda when she fell, ostensibly to prove that she didn't know how Amanda fell.  The jury gave a verdict to the School and the family appealed.

"Activist" judges restrict No Fault Act causation when pedestrian hurt by snowmobiler blinded by car

The consumer-friendly aspect of Michigan's No Fault Act was its provision of medical coverage and three years of wage loss (and minimal domestic services) to all persons who suffered injury as a result of the "use, ownership or maintenance" of a motor vehicle.  When the Act was adopted in the 1970s, interpreting jurists emphasized that it represented a policy choice to provide broad, minimal compensation for all injury victims without requiring proof of fault or retention of an attorney. Judicial opinions applying the Act pointed out that the statutory language did not require the normal proof of legal or "proximate" causation:  the injured person simply needed to prove that there was a causal nexus between use of motor vehicle and the alleged injury. Use of a vehicle must be "a significant contributing factor."

Court allows fraud claim against adoption agency to go forward

Seven couples sued the "Waiting Angels Adoption Services, Inc.," arguing that they were defrauded by the agency and individuals Simone Boraggina and Joseph Beauvais.  The Defendants sought summary disposition of the claims and in response the couples identified four specific acts as evidence that the agency was a "Racketeer Influenced and Corrupt Organization."  The trial court held that the evidence put forward by the couples was not adequate to pursue a RICO claim against the Defendants, however, the Sixth Circuit reversed and reinstated the claim.  Among the misrepresentations documented by the couples were claims by the Defendants that the agency was a non-profit, and claims that specific children were currently awaiting adoption.

Lawn company has no coverage for error in applying pesticide

Looking Good Lawns sued its insurer, Secura, after it mistakenly applied a non-selective herbicide to several lawns under its care.  It argued that a herbicide endorsement in the policy required the insuer to cover the expenses incurred in repairing the customers' lawns, however, Secura argued that the herbicide endorsement did not "trump" two exclusions in the policy.  The Court agreed with the insurer that  exclusions that denied coverage for the insured's own work and for damages caused on the property where work was being performed both would control over the herbicide endorsement, eliminating any coverage.

Church loses dispute with insurer over errors made by insurance agent

The Evangelical Presbyterian Church sued American Fidelity Assurance Company  (AFA) after AFA refused to cover medical expenses through the Church's health insurance.  The Church self-insured basic health expense coverage and then purchased "stop-loss" coverage through an insurer to pick up the balance of health-related expenses.  In the year at issue, however, the agent working as a go-between filed an inaccuarate summary of which employees presented greater expense risk. The "stop loss" insurer required full disclosure of all employees who had incurred significant expenses in the past year or who had particular potentially expensive diagnoses, and two such employees were omitted.

Auto Owners avoids PIP obligations when injury victim's attorney doesn't advise and prepare

Keith Phillips was riding his motorcycle when he was struck by a car insured with AutoOwners.  Since AutoOwners' insured vehicle was the only car involved in the collision, AutoOwners was obligated to pay all of Phillips Personal Injury Protection benefits (i.e.,  three years of wage loss and home services and unlimited medical).  Phillips incurred substantial medical mileage and prescription expenses which AutoOwners had not paid:  he filed a lawsuit to compel payment.  When the insurer's attorneys deposed him, however, he had not calculated the amount of mileage owed or the prescription total; he presented no proof to confirm that the insurer had been billed for the various expenses.  His attorneys did not mark his receipts and records as exhibits and did not present them to the trial court when AutoOwners sought summary disposition.  As a result, the court granted AutoOwners' requested dismissal and the bills will remain unpaid.

Ordinance limiting soliciting to hours between 9 am and 6 pm is partially struck down

An environmental grass roots organization sued the City of Englewood, Ohio, arguing that its ordinance limiting and regulating door-to-door soliciting was too broad and violated First Amendment rights.  The District Court had struck down parts of the ordinance but upheld the curfew and the requirement that solicitors obtain and carry  a  "do not contact" list maintained by City administrators.  The Sixth Circuit upheld minor parts of the ordinance and upheld the Ohio Citizens Action group's standing to challenge it, but struck the more offensive provisions, including the curfew.  It found that the City's data did not support administrators' claim that the curfew was a crime or property value protection device.

Developer allowed to claim "taking" of property by reason of zoning rejection of PUD

AM Rodriguez Associates sued the City of Douglas in Allegan County, after the City's planning commission and council rejected a Planned Unity Development of the developer's 16 acres.  The Court of Appeals ruled that several of the developer's theories were barred by the fact that the Circuit Court had previously rejected its administrative appeals, however, the Court concluded that those prior appeals did not preclude an eminent domain or "taking" claim.

Conservator cannot sue school system for harboring student who repeatedly assaulted female classmates

Carole Pahssen sued the Breckenridge Community Schools, the Merrill Community School District and several individuals on behalf of Jane Doe after Doe was sexually assaulted by a boy who was repeating the ninth grade after a long suspension.  The Conservator acting for Doe, an eight-grader, claimed in a Title IX action that the Defendants were deliberately indifferent to the risks presented by the boy's sexual misconduct and to his sexual harrassment of Doe and that they failed to respond appropriately. 

The family presented evidence of repeated disciplinary problems involving the boy over several years, including multiple arrests for sexual assault as well as other inappropriate behavior.  This activity culminated in the fall of 2007 when, after a lewd encounter at the girl's basketball bgame (the third incident that fall involving Doe), the girl's father warned administrators that the boy "was a volcano waiting to erupt."   The boy was monitored for 30 days by Breckenridge Schools, uneventfully, before raping Jane the following month on school property.  The Conservator argued that the two school systems (Breckenridge and Merrill--the school he attended during a prior school year) had shown deliberate indifference to Jane's civil rights and had conspired to deny her equal protection. 

Court holds title insurer did not violate contract, despite two-year delay in clearing title

Michigan Properties, LLC sued two title insurance companies, arguing that they had breached their obligations to provide clear title to property the Plaintiff had purchased.  The Court held that the title insurers had not promised to clear the subject title at the time of the closing and had ultimately fulfilled their duty to clear the title, even though it took them two years to accomplish the task. 

Teacher acquitted of CSC involving student cannot sue prosecutor

Nicole Howell was charged criminally for allegedly having sexual relations with a high school student.  She was acquitted and subsequently sued the Prosecutor under 42 USC 1983, arguing that he had denied her civil rights by pursuing the unjustified claim.  While admitting that the prosecutor enjoyed immunity for prosecutorial decisions, she argued that he was not immune from the decisions he made in investigating the student's claim.  In particular, she argued that the prosecutor had agreed not to pursue a claim if she passed a polygraph, but then reneged on the promise.  The Court held that the prosecutor was immune from liability for his decision-making under the doctrine of prosecutorial discretion.

Court holds lower court must conduct trial on the merits to assess fault by three motorists

The family of Edilee Kail Roberts sued three separate drivers after Edilee was killed in a car-motorcycle collision.  Roberts was north bound on her bike on M-37 near Newaygo when a truck driven by Travis Adams crossed the centerline and killed her.  Adams argued that he was forced to cross into the northbound lane when the van in front of him stopped abruptly in the southbound lane.  The van driver argued she did not slow or stop abruptly and the driver of the truck in front of her argued that he did not stop abruptly after missing a driveway he had intended to enter. 

Motorcyclist who suffers injury in second collision can sue for PIP benefits if first collision caused seizure that caused second collision

Ian McPherson was in a motor vehicle collision while occupying a car driven by his brother and insured by Progressive Michigan.  He suffered a seizure the following day, which his two physicians attributed to a mixture of genetic and traumatic causes. A year later, he was operating his uninsured motorcycle when he suffered a second seizure; in the succeeding crash, he suffered catastrophic injuries that rendered him a ventilator-dependant quadriplegiac.

Court upholds dismissal of woman's claim of illegal conversion/seizure of car and cash

Michigan First Credit Union sued Barbara Smith after she publicly claimed that the Credit Union had illegally seized her car annd $40,000.00 from her Credit Union account.  The Credit Union sued for defamation after Smith publicly protested in front of the Credit Union's office, and Smith counter-sued for conversion, arguing that the credit union illegally repossessed her car and seized the cash in her account.  A succession of judges and courts were forced to rule on the complicated and highly-emotionally charged series of transactions, and Smith's claims of unfair treatment within the court system.  Ultimately her counter-claim was dismissed on procedural grounds, at least in part because she was acting without benefit of counsel.

Contractor cannot sue over bidding issues for denial of civil rights under Elliott-Larson Civil Rights Act.

The Michigan Court of Appeals held this month that Brenda Geiling could not maintain a gender discrimination claim against Dow Corning and Hemlock Semiconductor because she was not an "employee" and the defendants were not "places of public accommodation."  Geiling claimed that she was barred by the Defendants from submitting bids to the Defendants, despite a successful performance history, because she had filed a gender discrimination claim.   The Court held that her claim was not authorized by law because she wasn't an "employee" under Article 2 and the Defendants wre not "places of public accommodation" under Article 3.  Therefore no law against illegal gender discrimination applied to the bidding activities and rules of the Defendants.

Higher court reverses dismissal of 34-year old woman's negligence case arising out of double-mastectomy where pathology report found no cancer

Stacey Van Buren identified a suspicious lump on her breast and visited the doctor for evaluation.  Her surgeon, Carlotta Maresca, M.D.,  performed a needle aspiration, sent the specimen for analysis in the Covenant Health System, and recommended an immediate double mastectomy.   Although the pathology report indicated no cancer was present, that message never made its way to Maresca, and she removed both of the 34-year old woman's breasts nine days later.  When Van Buren learned that the double-mastectomy had occurred in the absence of any cancer, she sued Maresca and everyone else in the chain of custody of the path report for negligence.  She argued that it was not medical malpractice, but rather a lack of "ordinary care" to allow such invasive surgery to occur in the presence of a benign pathology report.

Nurse who supervised and taught Hospital nurses was "actively engaged" in nursing and qualified to testify for malpractice victim

The family of Patricia Gay sued the Battle Creek Health System after Patricia died in the hospital.  They argued that Ms. Gay died as a result of negligent nursing care.  She fell from the commode when she reached to answer a ringing telephone and died two days later.  She was subject to a medical order that required that she receive constant nursing supervision whenever she was not in bed, and the family argued that it was negligence for the nurse who accompanied her to the commode to leave her there unattended.

Insurer must properly calculate PIP wage loss to seek reimbursement of Social Security Disabilty

Auto-Owners paid three years of Personal Injury Protection (PIP) wage loss to Mary Lou Fox after she was hurt in a car accident.  She also collected a limited amount of Long Term Disability (LTD) from her employer and was awarded Social Security Disability (SSD) retroactively (after the fact).  The PIP insurer was entitled to credit both forms of disability payments against its wage loss payment, and during the three year period it did take a credit for LTD paid.  The LTD insurer also claimed a credit for any SSD awarded.  When the Social Security Administration retroactively awarded  Ms. Fox SSD of $27,000.00, both insurers claimed the right to set-off that entire amount against wage loss already paid.  Auto Owners sued Fox to secure a judgment for overpayment of benefits and the judge allowed it a judgment for the full amount of SSD paid,  without calculating the amount of SSD that Fox was required to re-pay the LTD insurer.  The Court of Appeals overturned this award and sent the case back to the lower court for re-calculation.  It noted that while Fox was required to re-pay the "duplication" or "over-payment" of benefits, Auto Owners was also obligated to assure that she received the full amount of wage loss due under the law.  To calculate the overpayment correctly, Auto Owners and the court were obligated to take into account the amount of the SSD payment which Fox was required to re-pay the LTD insurer, since ultimately, she did not "receive" that payment.

Domicile of "young adult in transition" is subject matter of PIP dispute; court stresses flexible approach.

Andrew Lucio was forced to sue two no fault insurers, AAA and the Great Lakes Casualty Insurance Company, when each claimed that the other owed PIP benefits to Lucio after a motor vehicle collision.  Lucio's parents were divorced and he was shuffled between their homes through high school.  By his final year of high school, he turned 18 and chose to return to Saginaw to attend school.  To do so, he moved in with an unrelated woman who lived near the high school he wanted to attend.  Both she and Lucio's mother allowed Lucio to use their cars and disclosed him as a driver to their respective insurers.

Constructive trust is imposed on property to prevent unjust enrichment due to fraud

Richard Darling sued Tanesha Pryor and John W. Barcume, alleging that Pryor had transferred title to a home in an effort to defraud him.  Darling and Pryor had renovated a home in St. Clair Shores with the intent of sharing the resulting profit at the time of sale.  In the interim, however, Pryor sold her interest to Barcume, who made plans to rent the property.  Darling sued, asking the court to impose a constructive trust on the property so that he could recapture his investment.  The Court agreed with Darling that such a trust was appropriate and explained the equities involved in situations such as this one.  While Barcume did not participate in the fraud, he was aware of some degree of involvement by Darling in the property and therefore he could not claim to be an innocent victim of Pryor's actions.