TOV Injury and Safety Blog

Neighbor's negligent parental supervision claim is dismissed.

Michell Rollinson sued her neighbor, Janice Beresowskyj, after the defendant's 17-year old son struck her in the head with a baseball bat, causing multiple skull fractures and a loss of hearing.  Rollinson argued that Beresowskyj breached her duty to control and supervise her minor son's assualtive behavior.  The case arose out of a neighborhood altercation that involved a broken window and a loose dog.  The Court held that the defendant mother owed no duty to intervene and interrupt her son's assault of Rollinson, and on that basis the judge granted the defendant summary disposition.

City's negligence claim against engineers is dismissed

The City of Huntington Woods sued Orchard, Hiltz & McCliment, an engineering firm, after it alleged the engineers had performed poorly in the reconstruction of Coolidge Highway between 10 and 11 Mile Roads.  A jury agreed with the City and the Trial Judge refused to reduce or set aside the verdict.  On appeal, however, the Court of Appeals overturned the verdict and sent the case back for entry of judgment in the engineers' favor.  The Court held that the testimony was not particularized sufficiently to support the jury's verdict.

Civil case against decedent's estate is upheld after Supreme Court questioned lower court's refusal to dismiss

Paul Marsack sued the Estate of Laura Gabriel for negligence.  Gabriel's attorneys argued that a change in the law prevented the filing of any claim against a decedent's estate, period.  The Court of Appeals rejected this interpretation of the law, but the Supreme Court granted an appeal and ordered the Court of Appeals to re-examine the claim.  The Supreme Court suggested that the lower court did not understand the claim argued by the Estate.

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."

Supreme Court majority rules that minority tolling statute does not apply to no fault benefits owed to quadriplegiac girl

In Joseph v. Auto Club Insurance, the Republican majority of the Michigan Supreme Court confirmed its prior ruling that the long-standing Michigan law allowing legal actions by infants--and all minors under age 18--one year after reaching the age of majority in which to take legal action, does not apply to no fault benefits.  By the terms of the statute, the statute of limitations does not run on a child until one year after reaching the "age of majority."  Actions are "tolled" until that date.   

While the Republican majority agreed that the statute clearly applies to No Fault PIP benefits, along with all other actions, it gutted the meaning of the statute by holding that no benefits may be recovered. It held that while "an action may be brought" the child (or a parent or guardian on behalf of a child) may not recover benefits that were due more than one year before the action is filed.  In typical fashion for the insurance-oriented (and supported) majority, the "plain meaning" of the statute is given lip service and then ignored if it would operate to the disadvantage of the insurance industry.

The case arose out of Doreen Joseph's entitlement to medical and support services after she was brain-injured and paralyzed from the neck down in a motorvehicle accident.  The Supreme Court majority ruled that even if she was under-paid in prior years, she can recover only those benefits which are less than one year old.

Consumer cannot sue banks for fraud: pleadings lack sufficient particularity

Robert S. Zuk  attempted to sue US Bank Home Mortgage and others, alleging fraud.  Unfortunately for Zuk, fraud claims must be pleaded with great particularity, and in the  context of the recent banking/mortgage boondoggle, even the banks don't know what actions they took, what liens they held, who owns title to properties and who has enforcement rights.  Since many of the transactions were based on fudged records and included the conglomeration of thousands of debts into separate securities transactions, the banks have achieved fraud protection by their very mis-management.  Zuk's case was dismissed by Michigan's Court of Appeals because he couldn't meet the high threshold of fraud pleading.

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. 

Republicans propose legislation that would grant immunity to ER and delivery doctors

This week, Republican legislators in Michigan proposed a special interest "tort reform" bill that would excuse doctors for negligence in the ER or in delivering babies.  Five bills have been proposed and they include provisions that would require the sitting judge to dismiss any case that evidenced the exercise of professional judgment--whether "good" or "bad."  The case would be dismissed, apparently, if the doctor had to think about what to do, even if his or her subsequent judgment was faulty and caused injury. 

Reportedly the bills also grant doctors immunity for their actions or decisions in the ER or delivery suite, even if the actions or decisions are negligent [unreasonable].  Given the influence of insurance and health care special interests on Republican legislators, it is likely some form of these bills will pass, despite the fact that no "malpractice crisis" exists to warrant denial of compensation to innocent malpractice victims.  Apparenly only drunk doctors will be held responsible for their mistakes in Michigan.

Court overturns lower court order that would effect indefinite stay of proceedings

This week the Court of Appeals overturned a lower court's failure to lift a stay in Savitri Bhama's malpractice case against her lawyer.  The parties had originally agreed to a stay of proceedings in 2003, while the Plaintiff appealed her employment grievance against the State of Michigan.  In December of 2010 when they asked the court to lift the stay so that the case could be resolved, the Court refused.  The Court of Appeals held that it was an abuse of discretion for the tiral judge to continue the case indefinitely and that the stay should have been lifted.

Court holds that statute of limitations ran while case was on appeal

A Traverse City couple sued the sellers from whom they bought their home after learning that the sellers experienced an undisclosed insect infestation.  They dropped fraud and contract claims at the suggestion of their lawyers and achieved a verdict for innocent misrepresentation.  This appears from the outside to have been a reasonable trial tactic at the time. The sellers appealed, however, and the Court of Appeals ruled that terms of The Seller's Disclosure Act invalidated their innocent misrepresentation claim.  Therefore, the verdict was overturned, the plaintiffs claims were dismissed, and the couple sued their attorneys for malpractice.

"Black ice, although not actually visible upon casual inspection, was an open and obvious danger."

The Court of Appeals majority reversed the trial judge and dismissed elderly plaintiff Patricia Dombrowski's injury claim against the Laurel Chapel where her granddaughter was getting married.  Dombrowski claimed that she fell on a patch of ice created by an "unnatural accumulation" of ice at the bottom of an awning. She claimed that the ice was not visible to the naked eye and that she did not see it before she fell.  The Republicans on the Michigan Supreme Court have reinterpreted the "open and obvious" doctrine to immunize property owners from any duty to correct hazards that are "visible on casual inspection."  In the past, owners owed no duty to warn of obvious dangers, but might still owe a duty to correct unreasonable hazards.  Under the new doctrine, however, if the court concludes that a danger is "obvious" on casual inspection, the property owner owes absolutely no duty to correct the hazard--unless it presents the equivalent of a "thirty foot deep unguarded pit."

Court overturns decision defaulting woman who did not fulfill discovery obligations

Bridget Tolliver sued the Stonebrook III Divident Housing Association, arguing that it contructively evicted her by failing to respond to leaks and black mold.  She then became embroiled in controversy with her lawyer.  He sought to withdraw from the case after she filed a grievance against him.  Tolliver did not file answers to the Defendants' discovery requests, and blamed the failure on her lawyer and on the fact that she was suffering pregnancy complications that debilitated her. 

Appellate court overturns judge's decision to grant a new trial where back injury exacerbated

Ted Olney sued Darbin M. Fogg and Tracy Lynn Fogg after Darbin rear-ended him in a low speed accident.  Olney claimed that the collision exacerbated his existing back and neck troubles, thereby constituting a "serious impairment of bodily function" necessary to hold the Foggs liable fo damages resulting from Darbin's negligence.  He provided evidence that he underwent surgery after the Fogg collision.  After a jury trial, a verdict was returned holding that Olney "suffered no injury" in the Fogg collision.  The judge discussed the verdict with jurors and concluded that they did not understand the instructions they had received.  Under Michigan law based on the "thin-skull"  or "egg-shell" plaintiff rule, an at-fault actor is responsible for all the damages resulting from his or her negligence, even if the damages are enhanced by an existing weakness or susceptibility in the victim.  Concluding that the jury did not understand this rule, the judge ordered a new trial, and Foggs' insurer appealed.

Disappointed divorcee's malpractice claim dismissed

Robert Ponte sued his attorney, after his divorce was final, arguing that the  attorneys did not effectively represent him in the divorce.   The trial court dismissed his claim and on appeal, the higher court agreed with the Circuit  Court that the attorneys had "exerted [their] best efforts wholeheartedly to advance [plaintiff's] legitimate interests with fidelity and diligence."   It held that the client's after-the-fact disagreement with tactics utilized by the attorney did not support a claim of malpractice, since the tactical choices were legitimate exercises of attorney judgment. 

Woman can't sue for fall over desk mat in dentist's hallway; limited vision is admissible

Verlena Sexton-Walker fell in the hallway of the Great Expressions Dental Center office.  The hallway was well lit and Sexton-Walker watched a dental assistant step on, and then over, a plastic desk mat that had been left in the hallway.  Unfortunatelly when Sexton-Walker attempted to walk over it, she stumbled and fell suffering injury.  She brought a claim against the dentists' insurer.  We can presume that the dentists' expressions weren't so great when they were told of the claim, since their insurer declined it.

Homeowner cannot sue court-appointed receiver for negligence

Mark and Randa Mangano became embroiled in a dispute with their attorney.  Apparently they had financial trouble, generally, and the attorney sued them for fees.  The Manganos had moved from their home in Canton Township to Tennessee, when a judgment for the attorney was entered against them.  The Court appointed a receiver to take custody of the Canton residence and the current tenants moved out.  The Manganos filed for bankruptcy and the Tennessee-area bankruptcy referee assumed control of the home.  In the meantime, the home had suffered frozen pipes and water damage.

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 that where joint custody exists, child is domiciled in both homes for purpose of no fault coverage

Josalyn Lawrence suffered fatal injuries in a car accident.  Her mother's car was insured with Farm Bureau and her father's car was insured with the Grange Insurance Company. The parents were divorced and the court had awarded them joint legal custody of Josalyn.  She stayed with her mother most week days but maintained a bedroom and possessions at her father's home and spent most every other weekend with him. 

Farm Bureau paid Josalyn's PIP benefits (medical and a small burial expense) and the Grange refused to reimburse one-half of these expenses.  The Grange argued that Josalyn's sole domicile was with her mother and that its policy dictated that the insurer for her "principal domicile" was solely responsible for PIP benefits.  The trial court and the Court of Appeals rejected this argument, holding that Josalyn was domiciled with both parents for purposes of the no fault act.  The Court of Appeals also noted that Grange's attempt to define a "principal" domicile excusing it from shared PIP responsibility was illegal and not controlling. 

It would be interesting to evaluate whether the courts would also give the family the benefit of any uninsured or underinsured motorist coverage that they may have purchased; or, whether the insurers will be allowed to enforce a "primary domicile" provision to refuse to pay these coverages where the benefit of a shared domicile would inure to the premium-paying family.

Court addresses negligent physician credentialling claim; holds hospital not responsible for continuing to credential doctor with 17 prior lawsuits

Jesuben Englelhardt sued the St. John Health System after Dr. Rajesh C. Bhagat negligently performed surgery on Ehgelhardt's hand.  Bhagat struck a nerve causing permanent problems with Englehardt's hand.  Bhagat settled the claim by paying his insurance limits, apparently, and Englehardt continued the action against St. John.  He argued that St. John should have acted in response to Bhagat's 17 prior lawsuits to investigate Bhagat's competence. 

Engelhardt presented a credentialling expert who testified that if the Hospital had reviewed Bhagat's history, it would either have denied him surgical privileges or insisted that he be mentored.  The expert also affirmed that this process would have prevented Engelhardt's injuries, particularly since three of the prior claims involved surgeries similar to Engelhardt's.

Successful lawsuit unravels in litigation over litigation-funding loan

The ugliest aspect of modern litigation was on display as the Court of Appeals considered the allegations made by Nancy Shanks against her attorneys, Morgan & Meyers, PLC.  Shanks was rear-ended in an auto accident and claimed that she suffered a head injury, back and neck pain and exacerbation of pre-existing depression.  After hiring the defendants to pursue her legal claim, within seven months she obtained loans from Cambridge Management Group, LLC, in a total amount of $125,000.00, bearing 4.99% interest PER MONTH, compounded monthly.  (She had managed to spend her first $100,000.00 loan between July and December.)

Ultimately, the attorneys achieved a default judgment against the auto negligence defendants who failed to answer the negligence complaint, and in October of 2008, the claim was settled, while on appeal, for $625,000.00.  By normal standards, this represented an unusually good recovery for a claimant with potentially very defensible injuries.  Nevertheless, an argument ensued over the debt owed to CMG, which claimed liens totalling $325,819.00 for loaning Shanks $125,000.00 for an average of about 10 months.  The lien claim was settled, however, Shanks then sued her attorneys arguing that they had breached a fiduciary duty to her by facilitating her loans with the litigation-funding company.

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.

Malpractice claimant who sues state hospital must comply with immunity and malpractie notice requirements.

William Ramsay died in his hospital room at the University of Michigan Hospital in 2005.  His wife, as the Personal Representative of his Estate, filed a notice of intent under the medical malpractice procedural rules, and then filed suit a few weeks less than five years after his death.  The P.R. did not file a state Court of Claims notice of injury within six months of the death, as would be required under governmentatl immunity rules.

The University of Michigan is a state institution, so claims against it must be pursued in the State Court of Claims.    While a Personal Representative proceeding under medical malpractice rules must normally be appointed within two years of the date of death--and then has a "normal" two-year limitation period in which to file a notice of intent and suit after the post-notice six-month "waiting period," the Court held that this procedure does not govern when suit is against a state entity.  Instead, the victim (or his family) must comply with both sets of procedural rules, meaning that an initial notice must be filed within six months of the date of injury, and then a more detailed notice must be filed to initiate the waiting period.

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.

Court overturns enforcement of settlement "agreement" after stipulated dismissal

James, Steven and Donald Freybler sued James Bettis and the Legends Ranch in Newaygo County over various neighbor problems including wrongful tree-cutting and terms of use of a road.  Ultimately, the parties reached a "near" agreement with their attorneys exchanging e-mails over disputed additional terms.  Somehow, this "near" agreement, which included payment of cash by the defendants, resulted in the entry of a stipulation to dismiss without clear delineation of the full terms of the agreement.

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.

Woman injured in "sideswipe" loses appeal of jury verdict that she wasn't injured

Josephine Leleniewski was a passenger in an ambulance that was "sideswiped" by another car.  She sued Amerisure Company and the at-fault driver for various damages owed by the respective defendants.  At trial, the jury concluded that her neck and back pain were not suffered in the "sideswipe" collision and did not award her any damages.  She appealed, arguing that her case was unduly prejudiced by the improper admission of evidence.

Court holds that potential heir who signed fee agreement with lawyer may sue for negligence

Carolyn Schmidt claims that she hired Denise M. LaFave Smith to "divest" her father's assets so that he would be eligible for Medicaid.  Divestment is tricky, however, because if it is performed without market value compensation solely to make a person Medicaid-eligible, the agency can deny eligibility and impose a penalty period during which long-term care benefits are suspended. 

Schmidt alleged that she hired Smith before making a Medicaid application and after transferring her father's remaining assets into a bank account in the name of her husband and herself. The Medicaid application was denied and Schmidt sued Smith claiming damages including subsequent attorney fees and long-term care expenses paid out of the new account.  Smith denied that she reviewed the application.  She defended the malpractice claim by arguing that her "real" client was Schmidt''s father who suffered from Alzheimer's Disease and that Schmidt suffered no damages, since she was only a "potential heir" of the father's estate.

Supreme Court's conservative majority dismisses dental malpractice claim

Rodney Hanna sued his dentist, whom he claimed improperly capped two teeth.  Hanna claimed that among other problems, the dentist, Dario Merlos, DDS, had failed to perform root canals under the crowns he placed.  Hanna sent a detailed letter to Merlos, informing him of the claims of malpractice and then retained an attorney to sue.  The attorney filed a Complaint in Circuit Court which alluded to the attached Affidavit of Merit, but no one could locate the attachment.

The dentist's insurer sought summary disposition, arguing that Hanna's letter wasn't an adequate Notice of Intent to Sue and that the case must be dismissed because the Affidavit of Merit was not properly filed with Hanna's Complaint.  The trial court dismissed the claim, however, the Court of Appeals reversed.  It held that Hanna's letter of specific complaints was adequate to meet the Notice of Intent requirements.  It also held that since Hanna's attorney promptly filed a copy of his Affidavit of Merit when its absence in the court file was brought to his attention, "the interests of justice" did not justify permanent dismissal of his claim. 

This week the four insurance-oriented Justices on the Michigan Supreme Court summarily overturned the Court of Appeals' decision. It held that since there was no proof that the original Affidavit of Merit had been filed with the Complaint, the action must be dismissed (and cannot be filed again later).  It did not address "the interests of justice" as those interests don't particularly interest or influence the current Supreme Court majority.

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."

Court overturns trial judge's dismissal of injury claim

Leonteen Montgomery filed an injury claim against Keith Cohens and Montgomery's own insurer.  Montgomery was hurt in a traffic accident and sued both the at-fault and the company, State Farm, who sold him uninsured and underinsured motorist coverage.  State Farm complained that Montgomery did not respond adequately to its discovery requests and the Court dismissed Montgomery's case with prejudice (meaning it could not be re-filed).  Montgomery appealed and the Court of Appeals reversesed the trial judge.  It held that the drastic sanction of dismissal with prejudice must be supported by a reasoned analysis demonstrating an intentional failure to comply with discovery rules.  Since the record was devoid of any such analysis, the case must be returned to the trial court for a hearing.

Judge Saad describes his understanding of landlord's duty: never a recovery for an injured tenant

In a case where none of the three judges could agree on how to apply Michigan Supreme Court-created law, the Court of Appeals recently held that a tenant could not sue his landlord for failing to correct a condition that created icy apartment steps.  Thomas Magyar sued his landlords, Michael and Diane Barnes in Saginaw Circuit Court after he fell on the steps and suffered injury.  He claimed that the landlords had failed and refused to install eaves troughs to divert roof run-off that froze on the steps creating a hazard.

Conservative Supreme Court majority reverses lower court, dismisses death claim against Hurley ER because of defect in Notice

Carl Johnson was admitted to the Hurley Medical Center Emergency Room on November 22, 1997, with a diagnosis of atypical chest pain and to "rule out unstable angina and myocardial infarction."  He was discharged the following day with instructions to follow up with his family doctor and to maintain a low salt, low cholesterol and low sugar diet.  He suffered a massive heart attack that was fatal on November 26, three days later.  His family sued Hurley and its Emergency Room phyisicans.

Pre-suit, the family served Hurley with a Notice of Intent to Sue alleging that Johnson's discharge plan should have included beta blockers, aspirin to thin his blood and a recommendation to maintain a sedentary activity level until he was evaluated further.  The family described these measures as essential to meet the standard of care applicable to Johnson's emergency care and then alleged that "if the Hurley doctors had met the standard of care Mr. Johnson would not have died on November 26."

Judges, not named as Defendants in wrongful discharge claim, are allowed to sue defense attorney

In a very political and hotly disputed ruling, this month the Court of Appeals ruled, in a split decision, that two 48th District Court judges could sue the attorney who represented the Court.  A court clerk, Michelle Horton, had sued the Court for wrongful discharge and the firm of Garan, Lucow, Miller was retained to represent the Court. 

The judges were merely witnesses in the actual proceeding, but as the supervisors of Horton who terminated her employment, they were intimately involved in the proceedings and more than somewhat interested in the outcome.  They did not retain their own counsel, and if they had, their attorney would not have enjoyed standing in the discharge claim, since the judges were not named as parties.

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.

Court dismisses malpractice claim because dead woman's expert was "speculating" about potential to survive

Melissa Walker underwent bariatric surgery in 2000.  In 2008, her doctor, Brenda Zook, M.D., determined that Walker was malnourished after a prolonged period of diarrhea.  Zook sent Walker to a bariatric surgeon to assess whether her gastric bypass needed to be reversed.   The surgeon concluded that Walker's problem was a lack of protein in her diet, rather than the need to reverse the bypass.  Zook hospitalized Walker for sevreal days, but then released her, telling her to return to the Emergency Room "if she got worse."  She made two return trips to the E.R., seeking to be admitted, however, she wasn't admitted and died of septic shock on the morning of the second E.R. visit.  Here family sued Dr. Zook claiming, in essence, that Zook should have insisted on a reversal of the bariatric surgery.

Court does not allow State Farm insured to provide late answer to Requests for Admissions: case dismissed

Kerstin Cole sued her auto insurer, State Farm, after it denied her PIP benefits. State Farm served her with Requests for Admission, which require answers, under the Court Rules, within 28 days.  If Requests are not answered, they are deemed admitted by the Court.  Cole's attorney claimed he could not contact Cole when answers were due and failed to ask the Court for an extension of time.  Ultimately, more than seven months passed before the attorney asked the Court for permission to file late answers.  Although the Court of Appeals noted that seven months remained in the discovery period, and that justice would be better served if Cole were allowed to respond to the Requests, it denied her request to file late answers.  The panel agreed with the trial court that the passage of time suggested that Cole's failure to respond was not merely "inadvertent" and therefore, since it smacked of intentionality, irremediable.  Cole's claim for PIP benefits was permanently dismissed. 

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. 

Fall victim cannot sue City of Flint because his notice does not provide precise location

John Halford was injured when the sidewalk collapsed under him.  He sent a notice to the City within six weeks, documenting his injury and identifying the location as "a sidewalk along White Street near the intersection of Martin Luther King Boulevard..." The trial judge and the Court of Appeals held that this description of the area where the sidewalk collapsed was--by Supreme Court interpretation--inadequate to provide the City reasonable identification of the defect.  We wonder just how many areas of sidewalk in that block had collapsed that month. 

Victims of car accident cannot sue owner of car stolen from driveway

The family of Angela Readus sued Michelle Rogers claiming negligence.  The facts were not in dispute.  Rogers started her car in the morning and then returned to the house to gather her kids to go to school.  The car was stolen while it was warming up in her gated (but not locked) back yard.  The perpetrator then caused a motor vehicle collision which killed Ms. Readus.  Her family argued that Rogers bore some responsibility for the collision because Rogers had left her car running unattended in a neighborhood where there was a history of car thefts.  The Court rejected this theory and dismissed the wrongful death claim against Rogers.

Probate Court can award compensatory damages against government actors guilty of contempt, despite immunity statute

At his family's request, the Kent County Probate Courtt ordered the Sheriff's Department to detain Stephen Bradley and place him in protective custody.  The Department failed to act and nine days later Bradly committed suicide.  The family attempted to sue the Department for negligence but their claim was dismissed because the actors involved enjoyed "immunity."  The attorneys then sought compensatory damages through the Probate Court, based on the court's statutory authority to compensate persons injured by the violation of a court order.  The Court of Appeals concluded that the family had articulated a valid statutory claim that was not blocked by Michigan's immunity statute.

Business man who sues in the name of non-existent company is charged with paying case evaluation sanctions, personally

Peter Stanaj filed a suit against the Salisbury Investment Group in the name of "the Stanaj investment Group" alleging breach of contract.  He rejected a proposed case evaluation settlement, however, and then lost his case.  The defendants belatedly pointed out that the Stanaj Investment Group was not a legally-registered entity and sought case evaluations against Stanaj personally.  Although the court suggested that the defendants should have raised the issue earlier, it upheld a $15,000.00 award of sanctions against Stanaj personally.

Court again rejects malpractice insurer's argument that bankruptcy precludes victim's negligence claim

For the second time in less than a month, the Court of Appeals has rejected a malpractice insurer's argument that declaring bankruptcy destroys a victim's right to pursue a malpractice claim.  In this case Joseph Szyszlo awoke from orthopaedic surgery completely blind.  He argued that the anesthesiologist and nurse anesthetist were guilty of malpractice that caused his blindness.  Not surprisingly, the blind and badly injured man found himself declaring bankruptcy during the two year period when he was allowed to sue the St. Joseph Mercy Hospital and Trinity Health-Michigan doctors (including Bloomfield Anesthesia). 

Occupants of stolen vehicle cannot sue officer after high-speed chase and bump

The families of a catastrophically injured young man and another man killed in the collision sued the City of Taylor and officer Phillip Alton Biggs, arguing that Biggs was negligent in pursuing and bumping a stolen car driven by another young man.  The City argued that since the vehicle must have known that the vehicle was stolen, and since they had allegedly been drinking, smoking marijuana, and contemplating shoplifting, their families could not argue that the officer was partially at fault in causing their death by bumping their vehicle at high speed.  They were lumped in with the driver as "wrongdoers" whose wrongful actions gave rise to the necessity of the police chase:  therefore, despite evidence that one of more of the young men tried to persuade the driver to stop the car or let them out, they were precluded from any legal action even if the officer was negligent.

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.

Higher court overturns dismissal of law firm's complaint for fees

The Miller, Canfield law firm failed to file a "joint trial binder" in accordance with the trial court's pre-trial scheduling order.  The trial judge then dismissed its claim against Kerry Steel, Inc.  On appeal, the Court of Appeals overturned the dismissal, finding that the drastic response to violation of the court order was excessive, particularly given the court's failure to document any prejudice resulting to the Defendant.  While this is probably the right result, plaintiffs who lack influence and  "friends in high places" routinely suffer the dismissal of their claims as a result of non-compliance with court orders:  and most must produce an "excuse" that is more substantial than Miller, Canfield's rationalization that it was so busy attempting to settle the claim that it didn't have time to comply with the court's order.

Court denies medical provider's attempt to intervene in No Fault PIP action

Carolyn Nicholson is the mother and guardian of her daughter, Jeanne, who suffered a severe and incapacitating head injury in a motor vehicle collision.  She was forced to sue Citizens Insurance Company to secure PIP Medical benefits for her daughter.  After the case had been pending for some time, the parties agreed on a settlement that included the payment of fees and costs to Nicholson's attorneys.  At that stage, Willowbrook Rehabilitation Services sought to join the case to secure full payment for its services and to deny Nicholson's attorneys fees based on Willowbrook services.