TOV Injury and Safety Blog

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.

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.

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. 

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 holds couple waited too long to sue for malpractice

Robert and Lisa Anderson sued their attorneys, David & Wierenga, in Kent County Circuit Court, alleging that the attorneys had not adequately performed their due diligence in preparing for the Andersons' purchase of a car dealership.  Almost three years after closing on the dealership, the Andersons sued the attorneys and the attorneys claimed that the two-year statute of limitations had run.  The Andersons' new attorneys produced e-mail exchanges with the attorneys that would suggest a continuing relationship with the attorneys, however, the Court held that the correspondence related to new matters and therefore did not extend the statute of limitations.  In particular, the court held that efforts by the attorneys to cure or address the problems arising out of the purchase--or even the attorneys' mistake in earlier representation--did not extend the statute of limitations.

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.

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.

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. 

Litigant's failure to pay process server results in running of statute of limitations for malpractice

Richard Livingston sued his lawyer, Michael Villar, P.C., in January of 2010, just days short of two years after Villar's representation of him had ended.  Livingston put the Complaint and Summons into the hands of a process server, but failed to pay the process server.  The statute of limitations would have been tolled beyond the two-year anniversary with the Complaint in the hands of the process server if service had been effected, however, since he was not paid, the process server never served the Defendant with the Complaint.  As a result, the summons expired after 90 days, and the "tolling" period associated with service of process ended without service--resulting in the final running of the statute of limitations.

Divorcee's malpractice claim against two attorney firms will go to trial

Jannette E. Yergeau filed for separate maintenance against her husband.  He counter-sued for divorce.  The largest asset in the marital estate was their home in Yergeau's "family compound" on Lake Michigan, and Jannette wanted to keep it.  According to her account, her original attorney agreed to a joint appraisal with her husband's attorneys, and the appraisal contained numerous errors and was more than $500,000.00 too high.  She told the attorneys to seek a second appraisal and when they delayed, she fired them.  She then insisted that the second attorney firm seek a new appraisal, but by the time the case went to trial, the new attorneys hadn't taken any steps to procure one.  As a result, she claimed, she was forced to reach a property settlement based on the erroneously inflated value of the marital home.

Probate Court has exclusive jurisdiction over claim against Trust and trustees; Circuit Court action is frivolous

Franklin Z. Adell created a Trust to manage his 24 million dollar estate and the corporations he owned, including the Adell Broadcasting Corporation.  He died in 2006.  His son, Kevin, was named to multiple positions of authority within Adell's Estate and according to his sisters, he mismanaged the Estate and Trust.  They sued in Probate Court to secure an alternative fiduciary and for an accounting.  After a 17 month investigation, the Court concluded that the sisters' claims were viable and replaced Kevin.  He immediately brought a suit in Circuit Court, in the name of two of Adell's corporations, against the Trust and individuals including his sisters.  The trial court summarily dismissed the Circuit Court action, concluding that it "related to the administration of" the estate and trust and therefore exclusiver jurisdiction over the matter resided in the Probate Court.  The trial judge also held that the Circuit Court action was "frivolous" and awarded sanctions against Kevin.  On appeal, the Court of Appeals approved of the lower court's rulings, including the sanctions, even though the lower court had not held an evidentiary hearing to determine the proper amount of the sanctions.

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

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

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

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

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

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

Court examines questions related to podiatrist's standard of care

Alice Collins achieved a modest ($117,000) verdict against Harvey M. Lefkowitz, DPM, Anthony Giordano, DPM, and Michigan Foot and Ankle.  She proved to the jury's satisfaction that Giordano breached the standard of care when he cut through her second metatarsal while operating to improve a bunion on the first metatarsal, and then failed to inform her of his error for several months (she learned from a third party).  The podiatrists appealed, arguing that the Court erred in admitting Collins' expert testimony.

Court of Appeals reverses summary dismissal based on letters attached by Plaintiff to complaint

Deborah Kind sued her lawyers for malpractice.  She was acting "in pro per," that is, without a lawyer to assist her.  She alleged inadequate advice from the lawyers and attached some of their correspondence to her complaint.  The trial judge deemed the correspondence to be inconsistent with Kind's allegations and dismissed her claim without a trial.  The Court of Appeals ruled that the letters were not pleadings and could not be considered "admissions" by Kind that precluded her from litigating her allegations.  One judge noted that in her opinion, the attached letters were not even inconsistent with Kind's pleadings.

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.

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.

Couple can sue investment advisers

Nestor and Maria Kleer sued their investment advisers, James F. Peters, Jr. and Paul J. Simon, alleging a breach of fiduciary duty.  They did not allege that Simon was "still crazy after all these years."  The trial court dismissed the Kleers' lawsuit, but the Court of Appeals reinstated it.  The higher court pointed out that the parties executed a contract which defined their investment strategies.  After a number of years of aggressive growth, the advisers recommended a change in strategy to less aggressive investing to minimize potential losses.  The Kleers agreed and an amendment was executed stressing a "no loss" strategy. 

Walgreen loses dispute with multiple insurers over liability coverage

Walgreen was sued after a subcontractor's employee suffered a head injury when he fell from a service platform in the roof of the store in Livingston County.  Walgreen had designed the service access, and it was alleged that it was negligent in failing to provide any form of handrail. Walgreen in turn sued its own insurer and the insurer of several contractors, claiming entitlement to indemnity.  The Court of Appeals upheld the denial of insurance with respect to Cincinnati Insurance Company, Harleysville and several others, on the basis of various exclusions in the subject policies.  The Court noted that under the common law a litigant cannot seek indemnification for damages caused by the litigant's own fault.  With respect to St. Paul Insurance Company, the Court interpreted the policy language providing coverage to all injuries "resulting from" the activities of the insured as a limitation on causation but not on "fault."  Therefore, St. Paul could owe indemnity for an injury arising out of its insured's activities, even if the insured did not "cause" the injury through its own negligence.  Nevertheless, there was no coverage in this case because the policy included an exclusion for injuries resulting from "professional services."  Even though Walgreen was not a professional architect, the theory underlying its liability exposure was grounded on negligent design of the subject building.  Since Walgreen performed that work, it fell under the professional services exclusion, regardless of Walgreen's status as a professional.

Attorney who files lawsuit cannot claim that he no longer represented client

James Easton sued his former attorney, Neil Miller, after Miller allegedly allowed the "one year back" statute of limitations to run on Easton's claim for no fault wage loss benefits.  Miller had secured benefits for Easton through March of 2006, but did not file suit within one year after that date to obtain benefits due after that date. When Easton hired a different attorney and advised Miller that he must turn the file over to the new lawyer, Miller filed a new PIP wage loss suit representing that he was counsel for Easton.  At the same time, he argued that he stopped representing Easton the month befor filing the second suit, and that the two-year limitation on suing him had expired.  The Court held that since he filed suit for Easton as Easton's attorney, he was estopped from arguing that the statute of limitations for suing him should run from a date prior to his second lawsuit being filed.

Discovery rule is analyzed in malpractice case

Timothy and Stephanie Horne sued their attorney, Ira Saperstein, after he refused to file a malpractice claim on their behalf.  Saperstein had signed a fee agreement with them in 2002, investigated the case for 14 months, and then executed a last-minute Notice of Intent to extend the medical malpractice statute of limitations.  Several months later, he advised them of his withdrawl from representing them, with only weeks remaining in the extended limitation period.   Several years later, they consulted with an attorney who suggested they sue Saperstein for his management of the malpractice claim.  The case was filed in 2008 and the defendants immediately sought summary disposition, arguing that the statute of limitations had expired.

Debt collection firm can be sued for "studied ambiguity" in suggesting default has occurred

The Sixth Circuit noted that even the truth can be misleading, citing the notorious example of entering "Captain sober today" in a ship's log, where the officer has no history of inebriation.  Taking that principle into account, the Court upheld Valentine Grden's right to sue the Leikin Ingber & Winters, PC, debt collection firm for violating the Fair Debt Collections Practices Act. The Court noted that the motion for entry of default judgment mailed to Grden by the debt collectors could be viewed as an indication that Grden had already defaulted in making payments and that it was too late for him to remedy  the situation. 

Grden incurred a little under $3,000.00 in medical expenses through Oakwood Healthcare to treat an infection.  He had paid the balance down to approximately $500 dollars when Leikin, et al., sued him. He called for an updated balance and was told it was more than $1,000.00. Grden sued alleging that Leikin's false statements about default and the current balance constituted a violation of the FDCPA. The trial court dismissed his claim.

Farmer's ex-wife loses case against the farm's accountant

Judith Zwerk sued Walter Don Zehnder in Saginaw Circuit Court after Zehnder removed her name from the farm's corporate books, eliminating her ownership of stock.  After a number of complicated rulings, the jury ruled that Zehnder had committed a form of silent fraud by not disclosing his "succession plan" maneuvering to Zwerk, but that Zwerk had suffered no damages as a result:  it appears that the jury determined that Zwerk's damages had been fully compensated by adjustments to the marital estate in her divorce.

Zwerk appealed but the jury's decision was upheld.  The Court held that the lower court did not err in allowing Zehnder to testify that he thought Zwerk knew about his actions and approved.  It also held that the trial judge did not err in admitting the pleadings from the divorce action.

Court dismisses claim against teacher and principal over management of sexual assault

Karen Thomas sued her daughter's special ed teacher and an administrator, claiming they were guilty of gross negligence in how they managed an incident where the  teacher entered her classroom to find the daughter and two boys engaged in sexual misbehavior. The 11-year olds were inconsistent in how they described the events, and the teacher did not immediately see any evidence of an assualt having occurred.  She sought a witness before intervening and initially the school planned to treat the incident as one in which all of the children violated school rules. 

Court rejects summary disposition based on "attorney judgment" rule

Shelly Bush retained Steven Goren and his firm to evaluate her potential medical malpractice and product liability claim. Goren eventually informed her that he could not find medical professional support for the claim and advised her of the malpractice statute of limitations in the process of closing her file.  She then attempted to recruit other attorneys to pursue the claim, but could not engage another lawyer because the malpractice statute of limitations was only months away. Bush later settled her product liability claim against the manufacturer without an attorney and eventually sued Goren, alleging that his failure to advise her of the longer product liability statute of limitations caused her to settle the product liability claim for an insufficient amount.

Release executed by litigants does not protect an attorney from malpractice claim

The Laethem Equipment Company and others sued the law firm Currie Kendall, PLC, in Saginaw, after a "complicated family dispute" was resolved by a settlement and mutual release.  The plaintiffs in the instant case claim that Currie Kendall was  guilty of professional negligence in their handling of the dispute.  Currie Kendall sought dismissal of the claim, arguing that the mutual release signed by the parties to the original dispute should have operated to protect the attorneys from a malpractice claim.  The Court  emphasized the cautionary axiom that one must not confuse "what is being released" [all claims arising out of the transaction] with "who is being released" [the signatories to the Release].  Finding no basis to interpret the document as releasing the attorneys--or including them in a definitive class of persons intended to be released --the Court refused to interpret it as having that effect.

Attorney sued for failing to file adequate pleadings to set aside default

Broad Street Securities, Inc. sued Walter Baumgardner and his firm, Burkhart, Wexler & Hirshberg, alleging that  they responded inadequately to a lawsuit against the securities firm.  The securities firm was defaulted in the previous lawsuit for failing to answer on a timely basis.  In order to set aside a default, the defendant must prove that it has a meritorious defense argument and also that it has a reasonably good excuse for not answering on time.  The securities firm argued that the attorneys did not adequately address both issues and therefore the default was not set aside.  On appeal, the Court of Appeals agreed with this position.

Woman's suit alleging attorney's failure to confirm oral settlement promises is dismissed

Katherine Heys sued her attorneys, Butzel Long, P.C., after they allegely failed to achieve her goals in contesting her deceased grandfather's estate plans.    She alleged that undue influence had been exercised over her grandfather.  In  private negotiations with her father, Heys claimed that she had been promised one  million dollars, plus one-half of her father's inheritance, plus inclusion in the family foundation.  She alleged that she had instructed her attorneys to assure that these terms would be included in any proposed settlement and that they were negligent in failing to document anything beyond a $250,000.00 inheritance.  After her attorney signed the final [$250,000.00] settlement on her behalf at a court-ordered settlement conference, she filed a malpractice suit.

Where client loses "ineffective assistance of counsel" claim, he cannot sue for malpractice

In a recent decision arising out of a misdemeanor criminal conviction, the convicted client and his guardian sued the defense attorney for malpractice, claiming  that the attorney's trial strategies were defective, that he should have presented an alibi defense, and that he improperly influenced the defendant not to call witnesses.  The Court dismissed his and his guardian/relative's malpractice claims on several grounds. 

Independent insurance agent owed no duty to inform insured of gap in coverage

Stanley Nokielski was catastrophically hurt when John Colton struck him in a Midland parking lot with Colton's automobile.  Nokielksi sued and it was determined that there was a $400,000.00 gap between Colton's auto coverage of $100,000.00 and his umbrella policy which provided one million dollars of coverage, but required underlying coverage of $500,000.00 before it "kicked in."  

Insurer avoids responsibility for E and O claim because of late notice

Daniel Johns sued his title company's Errors and Omissions insurance carrier, Evanston Insurance Company, after the title company conducted a closing that allegedly relied upon a forged deed.  Johns' took an assignment of the title company's coverage rights,  allowing him to attempt to pursue the company's insurance coverage.

Immediately after the suspect closing, the attorney for Johns--a purported buyer of the subject property--had written to Johns' title insurance agency, alerting the company to Johns' third-party interest in the property.  The involved parties attempted to negotiate a settlement unsuccessfully, and Johns ultimately took the assignment from the title company and sued the E and O carrier for coverage.

Injured motorcyclist cannot sue attorney for failing to pursue "double-recovery."

Scott Hasen was hurt what a motorist struck him on his motorcycle.  Under Michigan law, the motorist's auto insurance was obligated to pay his No Fault Personal Injury Protection (PIP) medical benefits.  Hasen had also paid for Blue Cross-Blue Shield health coverage, which was also obligated to pay his medical expenses.  Hasen allowed that coverage to lapse, however, based on his attorney's suggestion that he could not "double-dip" and recover for the same health expenses from both carriers.  Hasen later sued the attorney for malpractice, arguing that he could have obtained payment from both insurers for $180,000.00 in PIP medical expenses if the attorney had advised him to maintain his Blue Cross coverage.

Verdict against lawyer who gave poor advice is upheld

Joel Williamson sued his workers compensation lawyer, arguing that the lawyer's advice prevented him from receiving a fair award.  Williamson had a comp claim pending when he was forced to decide whether to join an additional claim arising out of his coronary artery disease (CAD).  His first attorney told him that he needed to join the heart disability claim in his existing claim or it would be barred in the future.  The defendant advised him that it was safe to pursue the heart claim later.  Eventually, it was determined that pursuing his first claim to conclusion without joining the CAD claim barred him from pursuing that claim in a subsequent workers comp action.  Williamson sued the lawyer who steered him wrong.

Lab is immune from liability for falsely reporting plaintiff positive for HIV and Hepatitis B

The Detroit Biomedical Laboratories confused the blood sample of Amira Abouhassan with someone else's sample, and reported that she was positive for HIV and Hepatitis B.  After surviving the scare of her life and establishing that she was in fact negative for these conditions, Amira sued the Lab for defamation, tortious interference with a business relationship and negligence.  Not surprisingly, Judge Henry Saad and another Judge rejected her claim and found the lab immune from suit.  We say "not surprisingly" because Judge Saad never saw an insurance defense that he didn't like.

Case by bankruptcy trustee against corporation's accountants is dismissed

In the case entitled In re:  NM Holdings Company, LLC, the bankruptcy trustee of Venture Holdings Company sued Deloitte & Touche, LLP, alleging that the accountants' annual audits had negligently mis-stated the firm's asset position as a result of self-dealing by the sole shareholder.  This week the Sixth Circuit upheld the dismissal of the suit.  In essence, the Court held that the sole shareholder--who was the officer making improper financial decisions for the entity--was fully aware of his illegal actions and did not rely upon the audits:  therefore the accountants' negligence did not "cause" the deteriorated financial condition (although it may have contributed to the losses suffered by the firm's creditors...).

Court addresses statute of limitations for claim against appraisal service

Capital Bankcorp Limited sued the Landheer Appraisal Service in Ottawa Circuit Court in 2008, alleging that Landheer made significant errors in its evaluation of a 20-unit motel.   Capital Bankcorp was investigating a loan to support the development of the property into separate units to be sold with separate mortgages.  On the basis of an $800,000 appraisal, the bank loaned the developers $600,000 in 2002. 

Progressive loses ill-considered fight over payment of PIP benefits to tow-truck driver

Dr. C.J. Mazure had to sue Progressive and State Farm to recover for the treatment he provided to a tow truck driver who accidentally dropped a towed vehicle on himself.  The driver had moved under a partially lifted vehicle to disengage the transmission when it lurched and crushed him.  Progressive insured the truck but claimed an exclusion from coverage:  State Farm was assigned the claim by the State Assigned Claims plan, but refused to pay (despite the fact that in a priority dispute such as was argued by State Farm, the insurer is obligated to pay benefits and litigate priority with the other insurer).

Defective Notice of Intent filed by victim precludes a suit against her lawyer

Roxie Phillips filed her own mandatory Notice of Intent to file a medical malpractice lawsuit.  After filing the NOI, she hired Karen McDonald Lopez to pursue a claim against the involved doctor, George Dass, M.D.  Lopez apparently drafted a complaint against Dass, and filed it, but did not serve it on Dass within the time limits allowed.  After the lawsuit was dismissed and the dismissal was upheld by the Court of Appeals, Phillips attempted to sue her attorney, McDonald Lopez. 

Woman may sue divorce lawyer for "glaring" failure to provide minimal legal representation

Vallory Bunday appealed the dismissal of her malpractice claim against Freeman Haehnel.  Bunday alleges that Haehnel was selected to represent her by her husband of 31 years, that he charged her $500.00 and gave her only minimal advice, and that as a result, she stumbled into a property settlement that was grossly inadequate and unjust.  Among other claims, she argued that the $1.7 million dollar inheritance received by her ex- had been commingled during the marriage and should have been included in the marital estate.  Haehnel argued that Bunday's claims against him had already been litigated and rejected when a successor attorney attempted to gain relief from the divorce judgment by alleging mutual mistake or fraud by the ex-husband and lost.

Court upholds modest verdict for fiduciary fraud

Bert Elgersma sued Re/Max of Grand Rapids and its agent, John Postma, alleging fraud in the sale of his house.  The jury found a breach of fiduciary duty, but awarded Elgersma only $25,000.00, even though Elgersma claimed a loss of several hundred thousand dollars in the sale of his house.  Ultimately, both the trial court and the Court of Appeals upheld the jury's determination after Eglersma sought relief by additur.

Court issues detailed ruling examining "right of privacy" and corporate bullying

Scott Dalley sued Dykema Gossett, Lincoln National LIfe Insurance and other defendants arguing that Lincoln's attorneys and agents had abused legal process and invaded his privacy through the mis-use of a Temporary Restraining Order [TRO].  Dykema represented Lincoln in a dispute with a third-party agent who sold Lincoln insurance.  It obtained a TRO prohibiting the third-party from deleting Lincoln information from its computers and authorizing Lincoln to copy the relevant data.  Dalley performed some information technology work for the third-party, and other clients, from his apartment. 

Court rules "No dual domicile" for emancipated kid

Farmers Insurance Exchange and the Auto Club fought over which should provide No Fault PIP benefits to Edward Carter and his Conservator, Angela Henderson, after Carter suffered catastrophic motor vehicle accident injuries. He was a pedestrian when he was struck by a car.  He had no car or car insurance of his own, but family members with whom he sometimes stayed did have auto insurance.  The trial court heard the various facts about where Carter was living, and concluded that he was maintaining a "dual domicile" with two different family members.  The Court of Appeals rejected this outcome and sent the case back to the lower court to determine which of the places where he sometimes stayed was his "only one domicile that is the place where there is a true fixed permanent and principal establishment to which the person has the intention to return."

Employee with Parkinson's fails to stop working before termination; disability benefits denied

Roger Heikkinen became concerned in January, 2003, that his employer would terminate him.  He was reprimanded that month for missing a deadline and reluctantly informed his employers that he suffered from Parkinson's disease.  He immediately sought advice from a law  firm, and the attorneys suggested that he apply for disability immediately.  Heikkinen did not want to give up his full salary (or his job) any earlier than necessary, however, so he continued to work while the attorneys negotiated a termination agreement with his employer.

Attorney must pay child's injury settlement after releasing funds to parent without restrictive endorsement

In the matter of The Estate of Calvin Graves, the Court of Appeals recently ruled that a child's attorney must pay the child's Estate the money that the attorney mistakenly turned over to the child's father.  The father was the child's Conservator, however, after an injury settlement was achieved, the attorney issued the child's check to the father without making it payable to him as Conservator for Calvin.  As a result, he was able to (and did) cash the check and spend it.  When he could not fulfill his duty to pay the money over to the Estate, the Probate Court required the attorney to come up with the money.  On appeal, the Court of Appeals rejected the attorney's claims arguing lack of subject matter jurisdiction and that he could not be sued by the Court for "malpractice."  The higher court pointed out that his client was the boy's Estate, and it was entitled to hold him responsible for his failure to act with due care.

No homeowner coverage for defective workmanship or mold

Hometowne Building Company built a house for a customer in South Lyons and then experienced problems with water seepage and mold.  After several unsuccessful attempts at remediation, the owner sued Hometowne and ultimately, one of its insurers, the North American Specialty Insurance Company (NASIC) settled the claim with the owners.  NASIC then sued Amerisure Mutual to force it to contribute to the settlement.  Amerisure argued that two exclusions in its policy let it off the hook, and the Court of Appeals agreed. 

The Court concluded that the "defective workmanship" exclusion precluded coverage for any damage to the structure caused by mistakes made by Hometowne.  This would leave limited liability for Amerisure to cover injury or damage to contents caused by defective workmanship, however, the policy also contained a "fungi or bacteria" exclusion which eliminated any contents coverage for damage caused by mold, fungi or mildew or their ramifications.

Buyer who opts for dual-agency contract with seller's broker cannot complain about the agent's failure to protect him

The VanHellemonts agreed to buy a $1.6 million dollar estate from the McManamons in Oakland County.  They used as their agent the McManamon's broker, and signed a dual-agency disclosure agreement.  The deal slowly fell apart and the VanHellemonts were sued for damages or specific performance.  They sued their realtor for malpractice, arguing that the agent should have written the buy-sell to protect them more fully:  in particular, they alleged the document should have called for the loss of their $35,000 earnest money deposit, rather than a $500,000 penalty, in the event that they did not close on the purchase.  The Court concluded that the VanHellemonts gave up their fiduciary duty claim against the realtor when they agreed to the dual-agency relationship.

Title Agency must defend claim of gross negligence

When BCV Colonnade attempted to sell the K-Mart it owned in Jackson, it relied upon United Realty Companies, LLC and the Morris Home Title Agency to close the transaction. It required the buyer to maintain a $100,000.00 cash deposit with Chicago Title Insurance Company and Morris Home until the closing date, and was twice assured by Morris that the deposit was secure.  The buyer failed to perform, and when BCV sought the escrow from Morris, it was informed that the buyer had also failed to place the cash deposit with Morris. 

Sixth Circuit requests Supreme Court's guidance on issue of "property interest" in loved one's brain

Karen Waeschle sued the Medical Examiner of Oakland County, Ljubisa Dragovic, after he incinerated Waeschle's mother's brain following an autopsy.  The 88 year old mother had fallen in a nursing home prior to her death and her body was sent to Dragovic for a post mortem.  The Sixth Circuit Court of Appeals held that the medical examiner was personally entitled to "qualified immunity" for incinerating the brain, since he did not deny Waeschle a well-established due process right, but also directed the lower court to seek input from the Michigan Supreme Court with regard to whether the County might be institutionally liable for denial of a protected Michigan right.

Is failure to report child abuse governed by medical malpractice laws?

In Lee v. Detroit Medical Center and Children's Hospital, a panel of the Court of Appeals was presented with the thorny question of whether an abused child's representative must comply with medical malpractice rules in order to hold a medical professional responsible for the breach of the professional's statutory duty to report suspected child abuse.  Two judges concluded that since the statute creates a duty in both professionals and non-professionals, it does not create a "professional" duty and the malpractice rules are irrelevant to the statutory claim.  The third judge would have defined the duty based on the professional occupation of the person alleged to have committed the statutory breach.  The case is likely to end up before the Michigan Supreme Court before we have a final answer.