TOV Injury and Safety Blog

Employee can sue governmental supervisor who infringes First Amendment freedom

Lindsey Whitney sued her boss, Chris Crider, the Mayor of the City of Milan, alleging a denial of her civil rights.  The Sixth Circuit Court of Appeals addressed her case on appeal this week. Whitney alleged that when the Mayor fired the City Recorder, Keri Williams, Whitney was told by the mayor that she must avoid any contact with Williams or any public comments on the firing.  Whitney alleged that the Mayor, knowing that Williams and Whitney were close friends, was illegally using the risk of employment termination to force Whitney to avoid having contact with Williams.

Federal court dismisses employees' claim of fiduciary fraud against union, employer and ERISA plan administrator

Dominic Cataldo was the lead plaintiff in a case filed against the United States Steel Corporation, the United Steelworkers Union, their pension fund, and the USX Corporation. The plaintiff workers claimed that the defendants mis-led them about how pension benefits would be calculated and the effect of early retirement.  The plaintiffs were employees of the Lorain, Ohio, Works, which were sold by US Steel ,passed through several hands, and then re-purchased years later. 

In essence, the sale at one point resulted in a reduction of workers' pension rights by limiting their "best five years" income, upon which pensions were calculated, to the years prior to 1999.  The Lorain workers sought--and believed they were promised --treatment similar to other USS retirees, but this promise or expectation was never fulfilled.  They also argued that some employees had retired with an expectation of equal treatment, and that the Union and the other defendants had failed to provide them with accurate information and advice.

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.

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.

Two small victories for employees in a hostile environment

This week, employees won two relatively small battles in the current "culture war" between employers who will take money anywhere they can snitch it and employees who can be powerless to defend their interests.  On the same day that big shot chef Mario Batali paid $5.5 million dollars to settle a claim by employees of his eight restaurants that he was stealing their tip money on a systematic basis, Wal-Mart approved a $13.5 million dollar settlement in a suit claiming that it was over-charging employees for 401(k) fees.  K-Mart's "fiduciary" Merrill Lynch (now a part of Bank of America) was the Plan Trustee, if you can imagine, and will pay 10 million dollars of the latter settlement. 

It isn't enough that employers no longer substantially contribute to employees' retirement:  now, we have to fight to assure that they don't steal the money that the employees contribute.  In a footnote, apparently Wal-Mart still uses Bank of America to administer the plan.  And by the way, legislators in Florida have introduced a bill to reduce the minimum wage for tipped employees to less than three bucks per hour. 

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.

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

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

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

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

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

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

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

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.

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.

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.

No insurance coverage for sexual assaults commited by Sheriff's Deputy

Livingston County Sheriff's Deputy Randy Boos was sued by several women who had either alleged, or proven, that they were sexually assualted by him after being taken into custody.  The County's insurer, the Michigan Municipal Risk Management Authority, argued that it's broad "criminal acts" exclusion allowed it to refuse to provide indemnfication for Boos' victims.  It argued that Boos' actions were outside his authority and duties as a Deputy, criminal in nature, and therefore not covered by the insurance policy covering County Deputies.

Republican majority overturns unanimous 1996 decision on employer liability

In 1996, the Michigan Supreme Court unanimously decided that in certain circumstances, the employer should be responsible for an employee's violation of a citizen's civil rights--even if the employee was acting ultra vires or outside his employment duties, when the wrong was committed.  That case was Champion v. Nation Wide Security and involved the rape of an employee by her supervisor.  The issue came up again this year after Tara Hamed was arrested for non-payment of child support.  Her Wayne County jailor transferred her to an unsurveilled area of the jail and then "violently raped" her.

Supreme Court overturns woman's right to pursue employers of independent contractor

Linda Sue Wolford suffered very severe injuries in a motor vehicle collision caused by Phillip Pikarski, an installer for Thumb Home Read Video, LLC, a DISH network contractor.  She sued THRV, arguing that under the law governing agency relationships, THRV was responsible for Pikarski's negligence. (Apparently, Pikarski did not carry adequate insurance coverage.)

Department of Corrections can fire employee with record of unlawful behavior

Mark Enszer sued the Civil Service Commission after it upheld his firing from the Department of Corrections.  Enszer had been accused of stealing merchandise from a Cabela's store.  While he was initially charged with a felony, Enszer ultimately plead no contest to a misdemeanor.  Citing the overall record of Mr. Enszer's conduct and the surveillance video of his activity, the Court held that there was substantial evidence to uphold his termination.  While a lesser form of discipline might have been acceptable, the discharge was a reasonable response and "just cause" had been established.

Judge improperly dismisses injury case for lack of scientific evidence

Robert Avery worked as a laborer and welder for Grand Trunk Western Railroad for 28 years before he died as a result of a brain tumor.  Under the Federal Employer's Liability Act (FELA) governing railroad employees, Avery could hold the employer responsible for injuries suffered at work, even if proof of the  "proximate cause" of the injury and damage did not rise to the normal legal threshold.  Avery's widow argued that he suffered the brain tumor and died as a result of various chemical exposures he suffered at work.  The Railroad denied any basis for proving causation, refused to provide discovery to the widow and ultimately persuaded the trial judge to dismiss the widow's claim.

Court of Appeals holds that Circuit Court has jurisdiction to decide "exclusive remedy"

William H. Schmitt was badly hurt when a driver for Jaguar/Land Rover of Lakeside caused a collision  with another vehicle:  Schmitt was a passenger in the dealership's vehicle.  Schmitt delivered cars for Jaguar/Land Rover as an "independent contractor"/porter, however, after he was hurt, Jaguar/Land Rover argued Schmitt could not sue it or the driver because Schmitt was an "employee" and subject to the exclusive remedy of workers compensation. 

The Court of Appeals noted that while Republican judicial activists on the Supreme Court had recently criticized a 1984 ruling that acknowledged the Circuit Court's jurisdiction to decide "employee" status, the Justices had not actually over-turned the thiry-year-old decision in a majority opinion.  Therefore, the opinion remained good law and the Circuit Court has the authority to hear the facts and decide whether the dealership should enjoy the protections of an "employer" when it attempted to structure the relationship as one of principal-agent/independent contractor.

Sears may have to pay for its "independent" installer's negligence

Marcy, Patricia and Christopher Hill sued Sears, Roebuck and others alleging negligence.  They had purchased a new home and bought a new, electric dryer from Sears.  They did not realize, however, that the previous owners of the home had removed a GAS dryer and failed to disconnect or "cap" the gas line.  The Sears installer brought in the electric dryer, did not address the uncapped gas line and in fact located the new dryer in a manner that obscured the uncapped line.

Court attempts to eliminate confusion over "contract immunity"

In a rare step back from judicial activism, the Republican majority of Michigan's Supreme Court retreated from the suggestion that signing a contract confers immunity on the signers from any duty to act with reasonable care toward third parties.  Lower court judges and defense attorneys had interpreted the language of the Court's 2004 Fultz v. Union-Commerce decision as doing exactly that:  granting immunity to the parties to a contract if they caused harm to a third-party.  This week, in Loweke v. Ann Arbor Ceiling, six of the seven Justices joined an opinion that rejected such a broad interpretation of Fultz.  While the Loweke holding still suggests some ambiguity, it thoroughly repudiates the suggestion that simply signing a contract with someone relieves the signer's duty to exercise reasonable care for other persons.  Some of the Justices continue to suggest, however, that the duties created within the contract won't form the basis for a suit by an injured stranger to the contract--even if the duties are performed negligently.  The victim must identify a duty of care existing outside the terms of the contract.

Injured employee cannot sue general contractor who pays comp benefits for uninsured subcontractor-employer

 Manual  Martinez-Alvarado was injured while roofing a project run by J.D. Pollard, Inc., as the General Contractor.  Pollard had hired a series of sub-contractor roofers who did not carry workers compensation coverage;  as a result, as the "principal" of an uninsured injured worker, it was obligated to substitute in for the employer to pay Martinez-Alvarado's workers compensation benefits.  In the workers compensation claims process, the worker and Pollard stipulated that Pollard had become Martinez-Alvarado's statutory "employer."

Court re-affirms principle that litigant cannot compel production of third-party patients' identity

Persons pursuing medical malpractice claims have, on several occasions, attempted to compel hospitals to identify patient-roommates in an attempt to corroborate observations or statements related to the litigant's claim.  These inquiries have uniformly been rejected by Michigan courts, which have held that the names and contact information of third-party patients are protected from discovery by the physician-patient privilege.  When a hospital being sued for malpractice attempted to secure the victim's family members' medical records, the same principle was cited to deny discovery.  This week, the Court of Appeals applied the privilege in yet another context.

Satellite TV installer may be "agent" of DISH provider

Linda Sue Wolford was badly hurt in a car accident, when a dish TV installer's service truck crossed the centerline at high speed and struck her vehicle.  The installer, Phillip Pikarski, had just completed one installation, and was dropping the paperwork off at the TV-service retailer's headquarters between installations when the accident occurred.  Wolford's attorneys sued Pikarski and the retailer, however, the Circuit Court judge dismissed her claims against the retailer, Thumb Home Real Video, LLC.

Doctors acting for their own benefit aren't guilty of tortious interference

Grand Valley Health Corporation sued James E. Bakeman, M.D. and Donald R. Bohay, M.D., alleging that they tortiously interfered with the Corporation's business relationship with the doctors' medical practices by inducing changes in the member physicians' referral patterns.  The Court held that only a "third-party" can be guilty of tortious interference.  Since the two doctors were members of the practice that they were inducing to change, they could not commit the alleged offense.

Court of Appeals overturns lower court rulings involving ambulance wreck

James Schmeling, an EMT, was badly hurt when his co-worker drove an ambulance into the path of a Waste Management truck that had the right of way.  Schmeling sued Waste Management and its driver, claiming that the driver was exceeding the speed limit and contributed to the collision.   The lower court held that since Schmeling's "exclusive remedy" against his employer and co-worker was worker's compensation, Waste Management could not assign "fault" to these third-parties to reduce any verdict against it.  The Court of Appeals overturned this decision, holding that regardless of whether Schmeling had a "remedy" against the co-worker and employer, their fault would still reduce his potential recovery.

City can require medical reports to direct supervisor where employee misses thre consecutive days

The City of Columbus, Ohio, instituted a policy under which any employee who missed three consecutive work days was required to provide a physician's  report to the employee's direct supervisor.  The employees argued that providing the required medical information to the supervisor, rather than to the personnel office, constituted an unwarranted invasion of privacy and a violation of federal law.  The trial court agreed, and granted an injunction limiting the information the employees were required to provide to the direct supervisor.  On appeal, the judges of the Sixth Circuit--all Republican appointees (Suhrheinrich, McKeague and Griffin)-- overturned the lower court's decision.  They held that it was not an invasion of privacy or a violation of federal law to require the disclosures ordered by the City.

Freight driver is an "employee," not an independent contractor on day of collision

Jason Judy was driving a First Flight Freight Services truck at Detroit Metropolitan Airport in 2006, when he cause injuries to David Baum.  Judy was insured by Progressive Michigan for no fault coverage, while the truck he was driving was insured by Citizens.  The two carriers disagreed over which of them had primary responsibility to provide coverage for Baum's injuries.  The trial court had ruled that Progressive had primary responsibility, but the Court of Appeals overturned the lower court judge's decision.

Doctor can sue partners, but only for violation of civil rights

Marc Cullen, M.D., sued his partners after they attempted to force him to enter data on a computer billing and record system.  He claimed that making these entries caused him to suffer severe headaches.  Cullen and his partners had a binding arbitration agreement, however, so his claims were dismissed with the exception of his civil rights claim.  That claim was viable because the arbitration agreement did not make reference to civil rights remedies.

Court rules that Owens Corning employees were too slow in suing pension fiduciaries

This week the Sixth Circuit Court of Appeals upheld a lower court's ruling that the fiduciaries who managed the Owens Corning pension and profit-sharing plans were entitled to a dismissal of the employees' claims.  The employees brought suit in 2006, arguing that the various fiduciary defendants had not met their special duty to the employees in the management of the pension investments.  Most employees' vested benefits (in some cases their own contributions) were wiped out when the value of company stock in their individual plans dropped in 1999 from $35 dollars per share to less than a dollar per share. 

Animal Control Director may be able to prove wrong-doing by county commissioner acting outside his scope of authority

Patricia Lentz sued Isabella County Commissioner Tim Dolehanty, arguing that he abused his authority and wrongfully interfered with her employment as Animal Control Director through the manipulation of her job performance evaluation.  Lentz was terminated after a poor evaluation conducted under Lentz's direction.  She claimed that Lentz, who was on the board of an advocacy group entitled Humane Animal Treatment Society, disagreed with her procedures on euthanasia and engineered her termination to secure control over the County's Animal Control policies for HATS.  She alleged that Doilehanty's actions violated a statute confining the Commissioner's legal duties to lawfully held meetings and constituted a conflict of interest.  The Court of Appeals held that Lentz had established sufficient facts and law to create a genuine issue of fact regarding whether Dolehanty's "dual role" violated the statute prohibiting a Commissioner from acting for the County if he possessed a direct or indirect interest in any business transaction with the County.

Court sets aside jury verdict in sex harassment claim

Laneeka Barksdale sued Bert's Marketplace and the owner's son, Jai-lee Dearing, alleging that she was sexually harassed by the son while working for the owner.  Barksdale alleged that the son touched her inappropriately, commented on her legs inappropriately, and "propositioned her as though she were a prostitute."  At trial, however, the judge arbitrarily placed short and strict limits on Barksdale's attorney's examination of witnesses.  Her claim was "no caused" by the jury.The Court noted that the limits imposed by the trial court were not only unreasonable and arbitrary, they were also unjustified, in that the attorney had conducted her share of the trial expeditiously to that point.   Therefore the trial court's time limitations had denied Barksdale her "day in court" and the jury verdict against her was set aside.

Insurer avoids paying for damage caused by insured's employee

BFC Management owns an adult establishment named Cheetah's.  It was induced by Jani-King of Michigan to change janitorial services, allegedly in part because Jani-King claimed that it stood behind and insured all employees.  The Jani-King sales department assigned the contract to a local franchisee who couldn't do the work because of his regular full-time job.  The franchisee then hired a friend of a relative to clean the club. 

Woman's harassment claim is dismissed because she did not disclose it in bankruptcy

Judge McKeague authored an opinion for the Sixth Circuit, dismissing Betsy White's sexual harassment claim against Windham Vacation Ownership, Inc. and Fairfield Resorts.  He and a District Judge sitting by assignment ruled that White should be judicially estopped from suing for harassment because her claim was inconsistent with her bankruptcy pleadings.  McKeague reasoned that since the original bankruptcy  petition had not disclosed the existence of the harassment claim [as required under bankruptcy rules] it would be inconsistent for her now to claim harassment against her former employer. 

In a stinging dissent, Judge Clay pointed out that White's serious claim of improper sexual contact at work should remain viable and operate for the benefit of bankruptcy creditors and the bankruptcy estate.  He saw no viable basis in the law of equity for White's omission on the original bankruptcy petition to benefit the parties allegedly guilty of sexual harassment.

State Agency denied 11th Amendment immunity

The Sixth Circuit ruled this week that the Hamilton County Department of Job and Family Services was not entitled to 11th Amendment immunity from civil rights claims.  The Court applied the four factors deemed applicable to determining whether the Agency is an "arm" of the state for 11th Amendment purposes.  It emphasized in particular the cardinal test of payment responsibility:  It concluded that the State was not obligated to pay any judgment entered against the County Department, even though it was likely to reimburse the Agency as a cost of administering its Medicaid program.  Therefore, the 11th Amendment did not confer immunity.  The case is Lowe v. Hamilton County Dep't of Job & Family Services.

"Common work area" premises liability claim by injured worker is analyzed on appeal

George Madley sued Centex Real Estate Corporation after he was hurt on the jobsite.   He argued that Centex was negligent in controlling a common work area for the safety of sub-contractors' employees.    Centex had subbed out construction at a Macomb County residential housing development where Madley was hurt after being dispatched to finish "shoe and hardware" installation [installation of trim, door knobs, etc.].  Arriving at the dark, unlit and unfinished home he had been directed to trim out, Madley fell eight feet into the basement of the home after failing to recognize that another sub-contractor had removed the basement stairs to perform foundation work.

Court applies "economic reality" test to identify injured driver's employer

Imad Beydoun was hurt in a car accident while operating a semi-tractor trailer unit owned by Eddie Trucking and leased to Reserve Transportation.  According to his logbook, Beydoun was driving for Roadlink National, Reserve's successor in interest at the time of the accident.   Under Michigan no fault law, an individual's personal no fault coverage is usually required to pay his PIP benefits (medical expenses and three years of wages or domestic services).  An exception exists, however, when the injury victim is operating a vehicle owned by his employer:  in that case the employer's insurer is first-in-line to pay PIP benefits. 

Employer can search employee's electronic messages

The Supreme Court rule this week, in Quon v. City of Ontario, that a California police officer's constitutional rights were not violated when the City intercepted and reviewed his sexually explicit messages to his wife.  Or his mistress.  The Court did say that the case does not establish a broad rule justifying intrusion.  "Prudence counsels caution...[in evaluating] privacy expectations enjoyed by employees when using employer-provided communications devices."  In this case, the messages were intercepted as City officials attempted to determine whether their limits on texting were too low.

Court again evaluates survivability of employee's claim that injury was intentionally caused by employer

Normally, an employee cannot sue his employer for negligently-caused, on-the-job injuries.  At the turn of the century, most states created workers compensation schemes that provided injured workers with compromised benefits (usually medical and partial wages) in return for the elimination of employer liability.  In Michigan, the sole exception to the employer's immunity from negligent conduct arises out of a statutory exception holding employers liable for injuries that they cause intentionally.  In previous cases, the Michigan appellate courts have narrowly interpreted this exception to exclude even cases where, statistically evaluated, employee injury was almost certain to result.  One line of cases has emerged to define when an employee can sue for "intentional" injuries, and the Court of Appeals addressed the issue in the recent case of Sandra Johnson and Hiram Jones v. Detroit Edison Company.

Injured worker can sue subsidiary corporation that owned truck operated by fellow employee

An injured employee normally cannot sue his employer for an on-the-job injury.  Because the employee is eligible for workers compensation, Michigan law allows him to sue the employer for additional compensation only when the injury is suffered as a result of an employer's "intent to cause injury."  Defendant Trans-Porte, Inc., attempted to take this "exclusive remedy" defense one step further and apply it to a wholly-owned subsidiary of the employer, U.S. Foodservice, Inc.

Employer's expression of opinion is no basis for claim alleging "tortious interference"

David Kocenda sued the City of Troy and a number of individuals for "tortious interference with a business or contractual relationship."  His attorneys apparently confused the latter two claims, but the Court of Appeals still addressed the underlying issue, after his claim was dismissed by the lower court.  Kocenda argued that he lost a job in Florida because he was defamed by City officials when they were contacted as references.  The Court of Appeals held that his case was properly dismissed because the statements attributed to Troy officials were matters of opinion and not actionable, either under this theory or as defamation.  Further, the Court held that Kocenda had not documented that the City's opinions were the basis for losing the Florida job offer, nor had he documented his claims of malice.

State Employment Retirement System not accountable for error

When Steven Richardson's wife died, the State Employment Retirement System sent him a letter confirming the benefits he would receive as her survivor.  It was in error, as she had opted for a different payment plan.  Richardson attempted to hold the System to the full payment it promised, however the Court of Appeals held that it need only pay benefits according to the option selected by Richardson's wife.  There was no equitable or legal basis to prevent the system from correcting its clerical error, and Richardson could not document any prejudice that he had suffered as a result of the error.

Company owner can be liable for his personal torts in the operation of corporation

The Michigan Supreme Court recently held that Steven Kropf could be sued individually for his alleged conversion of funds in the operation of Appletree Marketing, LLC.  Appletree was Kropf's corporation, and it collected money in the nature of a tax under the state's Agricultural Commodities Marketing Act.  It was alleged that Kropf illegally converted these funds to pay corporate bills of the now-defunct entity.  In an opinion by Justice Young, the Supreme Court held that Kropf could be sued personally for his "personal torts" in the operation of Appletree.

Recent cases address liability of legislators for disparaging comments

In recent weeks, the Court of Appeals handed down two decisions bearing on the right of governmental actors to make stupid or ignorant comments which slander or defame other persons.  In one case, Shupa, et al v. Moceri, Wiecek, Kamp and the City of Warren, local attorneys sued several City Council members, arguing that comments in a public meeting were disparaging to the attorneys and defamatory.  The Court first noted that there is an absolute privilege for remarks made during legislative activities, but that this privilege "does not afford [a public official] an invitation to undertake an unrestricted slanderous campaign against whomever he pleases, concerning whatever he pleases." 

Court deems jury must decide question of agency and liability

Stephen Krywy suffered devastating injuries when he was rear-ended by a Detroit Newspaper Agency [Detroit News] delivery contractor's substitute driver.  The trial judge dismissed Krywy's claim against the News, finding that the substitute driver, like the owner of the delivery route, was not an agent of the newspaper, but rather was an independent contractor.  The Court of Appeals noted that this case was almost identical to a case which the Supreme Court had decided 40 years ago--and that in the prior unanimous decision the Court had held that a jury must decide whether the driver "fell within the scope of an agency relationship" with the News.

After reviewing the facts pertinent to the News' control over the newspaper delivery route, the Court of Appeals concluded that--just as forty years ago--there were enough facts to create a jury question over whether the News was responsible for the delivery driver.  The case was returned to the lower court where a jury will have to weigh the indices of employment and assess whether the delivery contractor and its "sub-agent" were really employees of the News or whether they were truly independent contractors with a property interest in their route and sufficient freedom and flexibility to be something other than "employees."

Sixth Circuit rules fired government worker has right to federal hearing

Patrick Devlin was employed by the State when he filed two civil actions attempting to enforce rules of the Gaming Commission.  He was terminated from his job as a result of the filings, and filed a 42 USC 1983 civil rights action, seeking reinstatement and back pay.  Devlin claimed that firing him constituted illegal punishment for exercising his civil rights.  At the State's urging, however, the Ann Arbor federal judge dismissed Devlin's claim, applying the so-called Younger rule:  the Younger case and several that came after it (including one involving Geoffrery Feiger, seeking to avoid state disciplinary action) establish a doctrine that a federal court will not intervene to aid a defendant against whom the state is pursuing a criminal or public policy enforcement action. The Sixth Circuit noted that the public policy underlying the Younger rule has no application where Devlin was the plaintiff in the underlying state court action.  As a result, federal analysis of Devlin's constitutional and civil rights should not defer to the pending state action.

Insurer's denial of ERISA long-term disability benefits is upheld by Sixth Circuit

Maribea Balmert sued the Reliance Standard Life Insurance Company to resinstate her disability insurance.  An accountant-tax analyst for Big Lots, Balmert also suffered from rheumatoid arthritis.  In 2004, she stopped working because of symptoms she believed were related to the arthritis, including pain and numbness in her hands which she attributed to keyboarding demands and stress.  Her doctor found little evidence of synovitis in her hands and referred her for neurological and psychological evaluation, while recommending a temporary medical leave.  He believed that other potential etiologies needed to be investigated.

Injured worker can sue employer for Workers Compensation benefits if employer did not purchase coverage

Keith Rainer fell on a sidewalk leading into his employer's Multi Trade Center building. He sued his employer, the owner of the building, for damages.  The employer had not purchased workers compensation insurance.  The trial court dismissed Rainer's claim entirely, however, the Court of Appeals reversed and sent the case back to the lower court with limited rights of recovery.

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Claimant's sexual harassment charge dismissed because he deleted e-mails from computer

Paul Gillett resigned from his workplace, alleging sexual harassment, and hired an attorney.  The employer immediately sent a demand to Gillett's attorney, claiming the right to examine Gillett's personal e-mails on his laptop computer.  The attorney agreed to maintain the computer, but when it was examined the IT forensic specialist determined that massive amounts of data had been deliberately removed.  Gillett claimed that he had made only routine adjustments to the computer and argued that under a newly-adopted court rule, he could not be sanctioned for failing to preserve the electronically-stored data.

Corporate officer did not violate fiduciary duty when he started his own competing company after resignation

Brian Mann spent thirty years in a specialized concrete business.  The last ten of those years, he served as the Vice President of Quality Manufacturing, Inc.  When he became disenchanted with the President's failure to sell him a share of the business, Mann ultimately resigned, created a new competing business, and began recruiting customers.  Several of his previous co-workers joined him in the new business.  His former employer sued him, arguing that he had breached his fiduciary duty to the company by engaging in a competing business.