TOV Injury and Safety Blog

Court upholds jury verdict enforcing contract in favor of cement contractor

Garry Harmon Cement Contractor sued Highland Dairy and others to recover the final $250,000.00 owed on services provided in building a large dairy barn in Sebawaing.  The jury ruled in Harmon's favor and the dairy farm owners appealed.  They made numerous arguments objecting to the procedures and rulings of the court, none of which were upheld by the the Appellate Court.

The Court noted that while Plaintiff's counsel was allowed to "lead" a witness through an extensive exhibit, the questions were preliminary in nature and an appropriate way to efficiently address a complicated topic.  It also noted that the Defendant suffered no prejudice by the admission of the evidence in this truncated fashion.

The Court similarly dismissed technical objections to the court's ruling that admissions made by the dairy corporation's agent were admissible.  As is typical in the case of a jury verdict, the Court also upheld the trial judge's decision that the verdict was not "against the great weight of the evidence."

Sixth Circuit recognizes class action status of women whose Whirlpool washers developed mold

Gina Glazer and Trina Allison filed a class action lawsuit against Whirlpool Corporation after their front-loading washers developed mold in the detergent dispenser.  The trial court certified their complaint as a class action and Whirlpool appealed.  The Sixth Circuit Court of Appeals upheld the trial judge's certification after reviewing the necessary elements and the discretionary standard.

Looks like everyone is hunting for bear.

Timothy and Noah Baxter hired Dennis Geurink and Outdoor Adventures to take them on a bear-hunting trip to Russia.  They were disappointed by their "outdoor adventure" and sued for $22,000.00 in damages.  The Defendants made an offer of $1,000.00 to settle the claim, which the Baxters rejected.  Later the Baxters offered to settle for $10,000.00 and the Defendants rejected.  After a bench trial (before the judge without a jury) the Defendants achieved a judgment that they owed nothing and sought sanctions of $46,000.00 in costs and fees. 

Federal Court rejects claim that expert testimony is too speculative

V & M Star Steel sued Centimark Corporation, claiming that it suffered more than three million dollars in property damage when roofing contractors negligently left bundled steel on V & M's roof during repairs.  The Plaintiff argued that when roofers encountered  a rain storm, they left supplies in a haphazard and unsafe condition, and bundled steel slid down the roof, destroying structures on the ground below.

Court holds insured cannot sue agent for failing to provide adequate coverage

Continental Rental, Inc. sued Moulthorp-Clift, Inc., Continental's insurance agent, arguing that Moulthorp breached their insurance contract and was professionally negligent in failing to provide employment practices liability insurance (EPLI) coverage for Continental.  Continental was sued by an employee alleging violation of his civil rights.  The owner of Continental argued that he had an express agreement with the owner of Moulthorp to provide all coverages that the Continental business reasonably required.  The agent denied any such conversation. The trial court dismissed Continental's lawsuit on summary disposition and Continental appealed.

Court reconsiders; again grants immunity to Hotel for obviously unsafe speakers' podium

Norma Chesser sued the Radisson Plaza Hotel in Kalamazoo months after she fell off the stage immediately after giving a short speech.  Chesser was returning to her seat and was forced to walk between other speakers' chairs and the edge of the stage.  She did not realize that one of the speakers had apparently pushed a chair back, narrowing the walkable edge of the stage, and she stepped into oblivion, suffering injuries.  Earlier this spring the Court of Appeals reversed the trial judge and dismissed her injury claim. The Court held that the Radisson was immune from injury claims because the danger presented by the stage was "open and obvious."

The panel of the Court then granted reconsideration and it appeared that this absurd public policy decision would be reversed.  Today, the Court issued its new opinion and the only thing changed was the rationale by which the "open and obvious" decision was justified.  Where the earlier opinion had suggested that Chasser should have interrupted the program rather than attempting to make her way back to her seat, this opinion focuses on the broader, less absurd--and less human--aspect of the case.

The Court recognized that Ms. Chasser raised "important and reasonable concerns" but that they are "essentially policy issues" foreclosed by the "Enger Majority" of the Michigan Supreme Court and therefore must be directed to the state legislature.  It doesn't matter that industry standards were violated in the stage design or that the Hotel employees admitted negligence.  It doesn't matter that no reasonable person in Chasser's position would have interrupted the program to force the Hotel to re-arrange the stage.  Since the danger was "open and obvious," the users bear all of the risks and the creator of the danger owes no duty to make repairs.

Verdict for women raped in prison will go primarily to lawsuit lender due to 88% return

The Detroit Free Press reported on a travesty of justice this week.  Eight women sued the State of Michigan and won a 5 million dollar verdict arising out of having endured prison rapes.  The State appealed.  While the case was on appeal, the women borrowed $635,000.00 from MONEY FOR LAWSUITS, a company that makes loans at outrageous rates to individuals who are likely to achieve verdicts or settlements from a wrongdoer.  Eventually, the State agreed to compromise the judgment and agreed to pay the women $3.5 million dollars.  This week, a judge ruled that the company is owed $3.1 million dollars of the settlement.  The contract Money For Loans prepared calls for 4.25% interest compounded monthly, according to the Free Press, resulting in an 88% return.  Even competitors in the lawsuit funding industry objected to the terms of the contract demanded by Money For Lawsuits.  Mark Bello of Lawsuit Financial claims his company will never demand more than fifty percent of an injury victim's recovery.

One former Feiger attorney explained that in two recent cases where he had achieved substantial verdicts, his clients owed "four or five times" what they had been loaned because of unethical--but perhaps legal--interest demands. To date, our firm has been successful in persuading our clients to avoid these "litigation funding" firms.  Unfortunately, many injury victims face extensive medical billings (often in the hundreds of thousands of dollars) and are unable to work:  they are ripe for abuse at the hands of someone with money and the ability to "invest" it for a few months or years.

Prejudgment interest is owed when money judgment issues, even if judgment was delayed by plaintiff

The owner of Primetime Landscaping sued Damico Development for snow plowing and salting it performed during the prior winter.  Ultimately, after a bench trial, the court awarded Primetime more than $33,000.00 owed under the contract.  The judge refused to award pre-judgment interest, however, finding that Primetime had been the first party to breach a term of the contract and that trial of the matter was delayed by a dispute between Primetime's owner and his attorneys.

On appeal, the Court of Appeals unanimously held that pre-judgment interest is a statutory right, owed by reason of the plaintiff's loss of use of money owed.  Since the Defendant enjoyed the use of money owed to another by reason of the judgment, the interest was payable regardless of the cause of any delays in achieving finality. 

The Court also held that for pre-judgment interest on a contract to be denied by the "first breach" rule, the breach must be substantial.

Homeowner improperly foreclosed upon loses "third strike."

Like many others, Donald Bond admitted he was in default on his mortgage. Nevertheless, when U.S. Bank commenced foreclosure on his property, it did not even have a legal interest in Bond's mortgage.  It acquired an interest on October 13 of 2008, but had sued for foreclosure in District Court in September of 2008.  Bond fought the Bank's eviction action, claiming that the bank lacked the legal right to pursue foreclosure, however, the trial judge mistakenly ruled that the mortgagee's interest in the property was not a proper defense to an eviction action. 

Bond did not appeal that result, but instead brought a separate action to enforce his legal rights.  Unfortunately, the court in the later action ruled that under existing law the decision in the eviction action determined Bond's rights and he could not "re-litigate" the issue.  Even though the prior decision was mistaken, his rights were foreclosed by his failure to appeal that ruling.

Michigan Court addresses choice of venue for claims related to Romanian business venture

A Michigan corporation, BRP Acquisitions Group, Inc., sued several individuals, all Michigan residents, arguing that they "deliberately thwarted" an effort to create a business presence involving auto parts supply in Romania.  The trial judge dismissed the claim, holding that it could only be brought in Romania.  The Court of Appeals reversed, emphasizing the fact that all parties were state residents and the respect that must be accorded to the injured party's choice of venue.  It noted that under well-established law, where the court must make a discretionary decision about the proper venue for an injury or property damage claim, the court must address several particular factors, including both convenience of the parties and the victim's choice of venue.  Applying these factors, the Court held, BRP's claim was properly maintained in Michigan under the existing circumstances.

Court holds damages proofs were adequate and not "speculative."

Citizens Bank sued Scott Withers and Withers Steel Service Center, alleging that Withers' father had fraudulently transferred to Withers property in which Citizens was owed a security interest.  Citizens obtained a default judgment and a hearing was held to assess damages.  Withers argued that the judgment resulting from this hearing was mistaken in its damage computation because it lacked precision and was based on speculation about future profits. The Court of Appeals upheld the judgment, noting that the court "calculated ...damages as precisely and reasonably as possible."

Federal Court allows injured workers to sue employer, insurer and "independent" [IME] doctors for fraud

A group of Cassens Transport Company employees who had been injured on the job sued Dr. Saul Margules, Cassens, and Cassens' self-insured claims manager, Crawford & Company, alleging that the three conspired to deny benefits to injured workers.  The suit alleged that Crawford consistently retained unqualified and biased physicians to render fraudulent reports disputing the workers' injuries or medical condition.

Gas station buyer may amend complaint to allege violation of duty of fair dealing

The Court of Appeals overturned a dismissal and reinstated Hassen Harp's claim against Equilon Enterprises, LLC, d/b/a Shell Oil Products, US.  Harp had agreed to purchase the station he leased from Shell, pursuant to the Shell standard contract under which he was obligated to buy gas from Shell for ten years.  Harp alleged, however, that immediately after he executed the purchase documents, Shell changed its pricing and gas distribution policies and took other "unsavory" actions which severely denegrated the value of the station. 

Couple allowed to sue insurance agent for value of expensive ring

Barbara and Steven Lemberg sought replacement value insurance coverage for an engagement ring with an appraised value of .....get this....$107,000.00. They consulted with their insurance agent, Kenneth Korotkin, who procured the insurance.  When the ring was lost, however, the coverage through Chubb Insurance was limited to $36,776.00.  The couple sued their agent for procuring inadequate coverage.  A four-day trial was held in Oakland County, after which the jury awarded the Lembergs the difference in value between the actual replacement value and the replacement value insured throught Korotkin.  Korotkin's insurers appealed the verdict, alleging that Korotkin owed no duty to the Lembergs. 

Shoplifter can't sue over broken collar bone; Kohl's not subject to statutory limit on use of force

Sarah Stolicker admitted that she had shoplifted in the Oakland County Kohl's Department Store.  Nevertheless, she brought an injury claim against the store and security agent Darryl Duncan after Duncan allegedly tacked her in the parking lot and fractured her collar bone.  She cited that Michigan statute that limits private retail securiity employees to "reasonable force" in effecting arrests.  Stolicker argued that by exceeding reasonable force in tackling her, Duncan and his employer could be held responsible for their share of her medical expenses on a comparative fault basis. 

The Court majority disagreed.  It held that since she was engaged in wrongful conduct, she forfeited any right to pursue an injury claim.  It also refused to apply the statute cited by Stolicker; the two judges implicitly decided that this statute applies only to "suspected" shoplifters but did not limit the force used to detain admitted shoplifters.  The dissenting judge pointed out that the majority decision did not follow existing Supreme Court holdings, the language of the "reasonable force" statute or the statute adopting comparative fault.

Court holds that injured man may pursue malpractice claim on behalf of himself and bankruptcy trustee

David Pulice sued three doctors and Botsford General Hospital for malpractice before his bankruptcy Chapter 7 proceeding was completed.  He disclosed the injury claim to the bankruptcy trustee who didn't object to it being treated as an exempted asset.  Exempted assets are limited to about $20,000.00, however, and Pulice listed the value as "unknown." 

When he filed suit, the insurance attorneys for the doctors pesuaded the trial judge to dismiss the claim, holding that only the bankruptcy trustee had "standing" to sue on the injury claim.  The Court of Appeals rejected this suggestion, noting that Pulice still "owned" the exempted amount of the claim.  The insurance attorneys also argued that Pulice should not be able to pursue the full value of his claim, and that since his share was  less than the $25,000.00 jurisdictional limit of the Circuit Court, it should be dismissed.  Once again the court disagree, however, holding that Pulice could pursue the claim for its full value, although the Trustee would "own" anything above the exempted value of approximately $20,000.00.  Finally, the court rejected the defendants' rather absurd suggsetion that Pulice should be judicially estopped from pursuing the claim because he had disclosed to the Trustee that the case might be of limited value.

Injury at amusement park results in money verdict--but for the amusement park and against victim.

Marilyn Lukas attended the Carnival at the Taylor Summer Fest with her husband and kids.  As they were walking down the midway near the "Beer Bust," a softball struck her in the face, broke her nose, lacerated her cheek and took some of the pleasure out of the family's outing.  Lukas sued the operator of the Beer Bust game and the operator of the carnival, alleging poor design and management of the ball-throwing game.  To make a long story short, the Carnival operator argued that Lukas couldn't prove that the Beer Bust was the source of the ball that struck her, and the jury concluded that the operator wasn't responsible for Lukas' injury. 

The Carnival operator then sued the Beer Bust operator to recover its defense costs of $117,000.00.  The lower court entered a judgment for that amount, based on the Beer Bust operator's indemnity contract with the Carnival (agreeing to hold the Carnival harmless for any claims arising out of the Beer Bust's activities).    The Court of Appeals reversed, holding that given the jury's verdict in the case brought by Lukas, the indemnity contract language was ambiguous in attempting to shift the defense expenses to the Carnival.  We guess there was "due process" here, but it is hard to see this result as a common sense example of a "system of justice."   Do you think this is what most people think they are buying when taxpayers fund the operation of a court system?  Certainly insurance companies are getting their money's worth.

Painter loses common work area injury claim

James Shawl suffered injury to his back when a large electrical box  with protruding screws fell and struck him while he was working as a subcontractor painting the entrance to the Saginaw County Event Center.  The General Contractor on the project was Spence Brothers construction company.  Shawl sued Spence Brothers, arguing that it negligently fulfilled its duty to protect employees working in the common area from construction hazards.

The Court of Appeals upheld the dismissal of Shawl's claim.  It ruled that the electrical box did not pose a substantial risk of severe harm and that a significant number of workers were not endangered by the box.  Therefore, the risk it posed did not create a "common work area" duty on the part of Spence Brothers to protect the employees of subcontractors.

Nursing Center cannot sue negligent pharmaceutical provider after prescription error results in loss of valuable Medicaid program certification.

Woodward Nursing Center, Inc. sued Medical Arts, Inc. after it lost an important Medicaid certification.  Woodward argued that it lost the certification--and a significant source of profit--because Medical Arts negligently failed to fulfill a contract to provide pharmaceuticals on a timely basis.  Woodward claimed that it timely re-ordered the pharmaceuticals, but that Medical Arts lost the order for twelve days and then fabricated an excuse to blame Woodward for the order's "illegibility."  The Defendants argued that the claim sounded in medical malpractice and was not preceded by a Notice of Intent or accompanied by an Affidavit of Merit.  On this basis the trial court dismissed Woodward's claim. The Court of Appeals upheld the dismissal on the latter basis and also because the contract element of the action was not accompanied by a copy of the parties' contract.

The Plaintiff then sought to file a new action with proper procedural elements.  The Court of Appeals upheld the dismissal of the new action because the prior action had been dismissed "with prejudice" (making the dismissal a final order precluding further actions).  So, a pharmacy clerk loses an order for twelve days and causes havoc in a nursing home, but the pharmacy isn't held accountable because of technical defects in the Complaint brought against it--without an opportunity to correct the procedural flaws associated with calling the error "malpractice."  This is modern justice in Michigan.

Court of Appeals amends damage award in bench verdict in software dispute and rejects the award of sanctions

Philip Allor developed a software package called FOPS and sold it to DeClark, Inc.  He was paid a monthly license fee of $985.00, with a balloon payment due at the end of the license period.  DeClark, Inc., allowed the owners' son to use FOPS in operating his business called Superior Press and Automation, Inc. 

Being unaware of the licensing agreement and monthly payment, younger DeClark sought help in operating the FOPS software from Mr. Allor.  Not surprisingly, Allor inquired how Superior Press acquired his software and why it wasn't paying a license fee.  After being told that the two companies were one entity, he filed suit on a claim of "unjust enrichment" to recover the proper fee when he learned that the companies were not the same entity.  

At trial, the judge awarded him the same monthly license fee that he had charged DeClark for the months that Superior used FOPS.  At the same time, the judge denied Superior's request for Case Evaluation sanctions, even though Allors had turned down a much larger recommendation.  Both sides appealed.

Doctor cannot sue for implied defamation

General Motors sent a notice to its employees indicating that it would no longer honor disability slips from a list of ten physicians, including Athar Siddiqui, an Internal Medicine Specialist.  Although the Notice stated that it was not accusing the doctors of incompetence and that employees could still treat with the doctors, the tenor of the notice clearly implied that the doctors were guilty of some form of incompetence or dishonesty.  Siddiqui demanded a retraction and when he didn't get it, he sued.  He argued that GM was guilty of implied defamation and intentional interference with a business relationship.

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.

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.

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. 

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.

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.

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. 

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. 

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.

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.

Court bumbles hearsay rule in tossing employee's garnishment action against insurer.

Leesa Kamen obtained a $500,000.00 default judgment against her employer, Spectrum HR, LLC.  She attempted to collect it by filing a garnishment action against Lexington Insurance Company, the insurer who provided Spectrum coverage against employment and discharge claims.  Lexington defended by arguing that since Spectrum never sought coverage for the claim, it was not obligated to honor the garnishment.  In an incredible evidentiary blunder, two judges of the Court of Appeals ruled that the hearsay rule did not apply to statements of an unknown individual who was quoted in the insurance agent's file.

Theater patron cannot sue after fall in area where employee is mopping

Laurie Anger sued a Macomb County movie theater, America Multi-Cinema, Inc., after she fell on a newly-mopped tile floor.  She approached the refreshment counter where a young man was already mopping the floor with cones set about.  While she moved to the "butter station," the young man with the mop moved in behind her.  When she retreated to the cash register on the newly mopped floor, she fell.  The Court of Appeals did not describe her injuries.  It did, however, conclude that the newly mopped floor was an "open and obvious" danger because jurors could not reasonably conclude that a reasonable person would not have noticed, on casual inspection, the employee's mopping actions.  While the Court may be right, it certainly seems that a question of fact was raised with regard to whether a reasonable person would have immediately recognized that the young man mopping had just mopped the path that the patron had traversed seconds before---and whether that was reasonable condu by the theater employee.

Republicans pass workers comp bill that will deny benefits to many injured workers.

Today the Michigan Legislature sent to the Governor a "wish list" bill sought by Michigan insurance companies.  The bill reduces workers compensation paid to injured workers. Among other provisions, the bill proposed making injured employees pay for a second opinion if they don't completely trust the employer's comp doctor.  Republicans have parrotted the insurers' claim that workers comp benefits  (80% of net pay at the highest) are "too generous" and discourage workers from seeking potential alternative employment.  In response the legislation deducts what the employee theoretically could earn despite his or her injury.  Democrats claim that these phantom, theoretical earnings are not actually available to the injured employees, particularly in the current economy.  In the case of some low-paid workers, this theoretical "credit" will extinguish their entitlement to any wage loss--even though they cannot sue their employer or co-workers for negligence under comp laws.

Consumer protection laws backfire; builder's sloppy filing excludes legal action but not "frivolous"

Jeffrey Harrell Builder, Inc. sued Christopher Wolff and others to enforce a construction lien.  He had been kicked off the new construction job by the Wolffs and subsequently filed a lien under the name "Harrell Building Company."  The construction contract was in the name of "Jeff G. Harrell Builder, Inc."  While the latter is a licensed contractor, the former was not, making the lien invalid. 

Title insurer owes no duty to defend claims of reciprocal negative easement

Kevin T. Blaser and others sued to impose restrictions on property owned by Dale M. DeVries and Pernella Fowler. They argued that a seventh lot subdivided by the third-party defendants had mistakenly omitted the sought-after restrictions applicable to six contiguous lots and that the restrictions should be imposed. The defendants sought coverage and a defense from their title insurer, First American Title.  The title company sought summary disposition, relying on exclusions in the policy language for title risks that did not appear in the chain of title in public records.  The trial court had held that the exclusion language in the policy did not apply, however the Court of Appeals reversed.  It held that the language "clearly applied" to the pending claims and therefore the insurer owed no duty to defend the case.

No new trial after judge erroneously excluded evidence of prior judgment

George Faysal sued Century 21 and Harold Nimchonok, his realtor, alleging that the Defendants negligently prepared a buy-sell for Faysal's jewelry business, resulting in Faysal's inability to enforce the terms of the sale.  Faysal's attorneys attempted to admit documents from Faysal's previous lawsuit against the buyer to confirm that he suffered damages as a result of Nimchonok's breach of fiduciary duty.  The trial judge refused to admit the documents and the jury's verdict was for the defendant.

Claim against builder must be pursued as contract action, not negligence action

Robert and Elizabeth Mattice sued Salisbury and May Construction, builders who had remodeled the home they bought.  The Mattices alleged that the builders neglected to install a vent cover over a hole they cut in the soffit, resulting in extensive bird and mite damage inside the walls and roof.  The builder argued that the Mattices were required to sue within one year under the warranty terms in their contract, while the Mattices claimed that they could not have discovered the defective work within that time period.

Underage press operator cannot sue owner of unguarded press

Joshua Sparks sued Century Tool & Die and several other defendants after severely injuring both hands operating an unguarded press.  The Court of Appeals ruled that the lower court erred in deciding the factual issue of who owned the press, but still upheld the dismissal of the claim against Century.  It ruled that the owner of a press owes no duty to assure that it is properly guarded once it is provided to other parties to operate.  Of course, the underaged employee cannot recover damages from his employer, either, because he is limited to workers' compensation benefits.  And, most likely, since he retains some residual earning capacity and worked for a low wage, he will get nothing in the way of wage loss if the Republicans are successful with "worker's compensation reform."

Woman loses claim arising out of fall from ladder

Deborah Adamczyk suffered a severe head injury when she fell from a ladder provided by K-Mart to employees of Adamczyk's employer, Footstar Corporation.  Adamczyk sued K-Mart, alleging that the ladder was defective because the rubber footings under three of its legs were missing.  She relied on a previous employee's testimony to confirm that the ladder had been in a defective condition for several years and that K-Mart was aware of the hazard it represented.

Court dismisses action against owner-general contractor where scaffold collapsed

todd Kelly sued Albert Kohler in Leelanau County Circuit Court after he suffered catastrophic injuries in a scaffolding collapse.  Kelly argued that the scaffolding was defective and that Kohler, the owner acting as his own general contractor, was liable for this safety defect in a common work area. The Court rejected this claim, however, finding that since only two persons would be utilizing the scaffolding, it did not present a wide enough risk to invoke common work area liability.

Court upholds hold harmless agreement executed by volunteer employee

Patricia Brown was injured in a fall at the Northwoods Animal Shelter.  She attempted to sue, however, the shelter's insurer sought dismissal of her claim, relying on the hold harmless agreement she was required to sign before beginning work as a volunteer.  Brown's attorneys argued that the hold harmless agreement or "release" was not valid because such an agreement requires consideration and she did not receive any.  The Court dismissed this argument and held that allowing Brown to work with the animals was adequate consideration for her waiver of rights.

Fraud claim against Williams Chevrolet is reinstated

Fred Williams sued the Traverse City dealership after his used car died on the 80 mile drive home from the dealership.  He claimed that the car had numerous mechanical problems that could not have been overlooked if the dealership had conducted the basic safety inspection that it claimed to have performed.  The dealership pointed to the "as is, no warranty" language in the sales agreement and prevented Plaintiff Williams (apparently no relation) from relying on the oral representations that he argued the salesman had made.  Based on the "as is" language, the Court dismissed all counts of Plaintiff Williams' complaint and Williams appealed.  On appeal, the Court of Appeals unanimously reinstated two of the Plaintiff's claims.  It held that the language of the sales agreement was not inconsistent with a fraud or Michigan Consumer Protection Act claim.  It noted that the claim of a lie about inspection was not inconsistent with the "as is" clause, and that a jury could reasonably find from the facts alleged that the dealership fraudulently informed Williams that the vehicle had been  found to have no deficiencies or mechanical problems on inspection."

Court of Appeals sends worker's fall claim back to Oakland County for trial

George Frommert fell twenty feet from a defective scaffold after stepping from a bucket truck to the scaffold to gather construction debris. The scaffold had been moved to its current location by a sub-contractor, Teera Construction Company, and left in an unstable condition without warnings.  Frommert sued Teera for common law negligence.  The trial court and two judges of the Court of Appeals agreed that Teera was entitled to summary disposition, relying on a mistaken interpretation of the Fultz "contractual immunity" holding by the Engler Majority of Michigan's Supreme Court.  Frommert appealed to the Michigan Supreme Court.

Jury verdict for interference with business relationship is upheld

CH Holding Company sued Bruce Miller and CH Brand Parking Associates, arguing that Miller had breached a fiduciary duty to CH by the manner in which it negotiated potential sales of a Casino parking ramp.  In essence, the plaintiff, an investment group, claimed that Miller's company interfered with several prospective sales of the ramp, to the detriment of investors, by inserting language that would have benefitted Miller's parking operations company.

House Republicans vote to reduce workers compensation in Michigan

This week the Republicans in the State House passed a new law that would reduce the benefits paid to injured employees.  Among the changes:  a requirement that the employee pay out of pocket to seek a second opinion or to see his own doctor; and a rule that all injured employees whose disability is not total must be assumed to have residual earning capacity for which the employer's insurer is given credit. 

As a result, a minimum wage worker who lost an arm or a leg, for example, would not receive normal comp (maxed out at 2/3 of net pay):  he or she would be assumed capable of working another minimum wage job (convenience store clerk) and denied any wage loss--whether he can find such a job or not. 

Republicans are dismantling the safety net entirely for low wage workers; the Chamber of Commerce, who pushed this bill, should be ashamed.  Some Republicans think the bill goes too far and could alienate voters; they have called into question whether it should be confirmed by the State Senate and the Governor.  The Democrats, in the minority, have no effective say in the issue.

Anonymous company bids to set consumer product safety policy in secret court proceedings?

Is this how policy is made and justice meted out in the United States today?  The Consumer Product Safety Commission establishes a website where consumers can find data on product complaints.  A company files a federal lawsuit, under seal, seeking to overturn the CPSC's authority to maintain the website, and gets permission to keep the proceedings secret?  For the moment, yes.  And this is not China; not Iran; not North Korea.  It is our country and our court.  Our forefathers would roll over in their graves.  Let's hope the presiding judge injects some sanity into this action and makes the public court system public when it decides national policy on consumer protection.

Mini-mart owner has no insurance coverage for shooting man vandalizing his parking lot

Elias Chammas kicked a patron out of his convenience store after identifying him on security tape as having accompanied another man who stole a case of beer.  The would-be patron complained to his brother, who returned to confront Chammas and created a verbal altercation.  After he was kicked out, he began slinging around packing crates, and Chammas fired two shots with a handgun.  Both struck the brother, who then sued Chammas in a civil action.  Chammas sought coverage through his commercial liability carrier, Auto-Owners subsidiary Home-Owners Insurance Company.  The Court dismissed Chammas' claim because his intentional act of shooting--even if he didn't think he'd hit the vandal--was not an "occurrence" or an "accident" under the liability coverage.

Court limits discharged attorney to fees equal to original contingent fee agreement

The Giles Law Firm represented Ruby & Associates in an accounting malpractice claim after Ruby's accountant failed to recognize fraud by an employee who embezzled more than a million dollars, rendering Ruby insolvent.  The case became complicated when Giles was dissatisfied with the expert it had retained and refused to pay him.  Ultimately the attorney-client relationship broke down and Ruby stopped communicating with Giles.  A third attorney took over the several pieces of related litigation and compromised them.  Giles attempted to persuade Ruby not to compromise, arguing that the settlement under discussion would not adequately compensate Giles for the work and expense he incurred.