TOV Injury and Safety Blog

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.

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.

Medical malpractice wrongful death claim dismissed because tolling period is not applied

The Estate of Jerald Czarnecki sued Allegan General Hospital after Czarnecki died immediately after admission witha complaint of "shortness of breath."  Czarnecki died on April 20 of 2008, and a Personal Representative of his Estate was appointed that August.  Unfortunately, the PR and her attorneys did not serve a Notice of Intent to Sue  (NOI) on the Defendants until August 13 of 2010.  They were compelled by statute to wait six months from the date of the NOI to file suit.  When they did sue, six months later, the claim was dismissed with prejudice. 

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.

Railroad worker's shoulder injury claim is reinstated

Dwight Vickers sued the Grand Trunk Western Railroad, his employer for 30 years, under the Federal Employer's LIability Act (FELA), to recover for bilateral shoulder problems.  The  FELA is railroad workers' federally-established form of workers compensation.  The Railroad persuaded a Genessee County Circuit Court judge to dismiss Vickers' claim, arguing that he was too late in filing suit and had not proved that his work caused his shoulder trouble.  Vickers appealed, arguing that he had presented a genuine question of fact with regard to whether his manual labor work for the railroad damaged his shoulders over time. 

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.

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.

Wrongfully convicted man's suit is not late, but can't sue prosecutor

Wendell Crawford  overturned his criminal conviction larceny over $50.00 in 2009, after documenting that the decades-old conviction was obtained without due process.  He then sued the man who had been the Lapeer County Prosecutor under 42 USC 1983, alleging malicious prosecution and violation of his civil rights.  The trial judge ruled that his suit was not timely, but the Court of Appeals reversed that holding, pointing out that the three-year statute of limitations does not begin to run until a criminal conviction is overturned. It upheld the dismissal of the case, however, on the grounds that a prosecutor--as a state official--enjoys complete immunity for actions taken to prosecute a state law violation. 

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.

Estate of Edgar Brown can file a new malpractice action against Dr. Peter Barrett

This week the Court of Appeals upheld the lower court's ruling that Brown's Estate can file a new death claim against the doctor whom the family claims was responsible for Brown's death.  This culminated the third trip to the Court of Appeals following Brown's 2001 death.  The family argues that Barrett should not have sent Brown home from the Hospital after Brown fell from the roof of his home and suffered multiple injuries.  The family argued that his death resulted from pneumonia caused by the combination of his injuries and the insertion of a chest tube to inflate his lungs, and that his discharge was premature and unsafe.  He died in an ambulance on his way back to the hospital one day after discharge.

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

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

Trial judge errs in dismissing malpractice claim after doctor's insurer's bankruptcy claim

The Estate of Samuel Alexander sued Trillium Hospital and Dr. Ramana Chennubholta, arguing that a misdiagnosis in the Emergency Room resulted in Alexander's death from pancreatitis.  Not long before trial, the doctor's insurer was declared insolvent and filed bankruptcy.  The trial court responded to the automatic bankruptcy stay by treating the case as "administratively closed"  and did not re-set the case for trial when the bankruptcy was closed.

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. 

Another injury claim against government dismissed on a technicality

Khadija Glaspie left the Crazy Horse Saloon at 8140 Michigan Avenue in Detroit on July 10, 2009, and fractured her ankle in a pothole on St. Lawrence Street.  17 days later, she filed a formal notice of injury with the City, including 3 color photographs depicting the pothole, a view of St. Lawrence Street (not identified by sign in the picture, however) and the Michigan Avenue facade of the Saloon.  The notice, unfortunately, indicated that the injury occurred "in front of Crazy Horse Saloon at 8140 Michigan Avenue..."  The City sought to dismiss the claim, arguing that the notice Glaspie filed did not accurately describe "the exact location" of the injury.

Progressive loses another battle over priority in obligation to pay PIP benefits

Doug Alt was badly hurt in a single vehicle collision.  Alt was a farmer who lived with his parents. He was driving a car titled in his name but insured with Citizens by his parents.  Alt's only insured vehicle was a pickup truck he used on the farm. Citizens initially paid his PIP benefits but then sought reimbursement by Progressive.  Progressive apparently initially indicated an obligation to pay but then refused and filed suit for a declaratory judgment that it was not responsible for PIP benefits.

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 holds doctor committed no malpractice on date of unwarranted surgery

Insurance defense attorneys were gloating in this week's January, 2012, Lawyer's Weekly over the dismissal of a medical malpractice claim alleging inappropriate eye surgery.  The woman patient sued her eye doctor alleging that he never should have performed the cataract surgery that damaged her eye.  The Defendants argued that the doctor's alleged error occurred weeks before surgery, when he recommended and scheduled the surgery, and that since suit was not filed within two years of the date surgery was first recommended, the claim was not timely.  The woman's attorneys argued that performing the unnecessary surgery was a negligent act in any event, and therefore suit based on the inappropropriate surgery could be brought within two years of the surgical date.

Progressive sells illegal policy and then avoids PIP responsibility because written notice was not received

In a bizarre decision signed by Henry Saad and Peter O'Connell, the Court of Appeals upheld the dismissal of a PIP claim brought by Amerisure Insurance Company against Progressive Michigan Insurance Company.  Progressive sold an auto policy that did not comply with Michigan law because it did not contain Personal Injury Protection benefits.  Under Michigan law, it remained liable for those benefits provided by statute.  Amerisure paid the PIP benefits owing to the injury victim and then sought reimbursement from Progressive. Progressive's adjuster denied any obligation, citing the policy's [illegal] exclusion of PIP coverage.  The policy also did not contain the standard Michigan language requiring that an insurer receive written notice of PIP claims within one year.

Week delay precludes homeowner from any recovery for home destroyed by fire

Dominique Nelson sued American Fellowhip Mutual Insurance, her homeowners insurer, after her home was destroyed by fire in February of 2007.  She notified her insurer of the fire five days after it occurred. She negotiated with the carrier for a number of months before it denied her claim in its entirety on October 4.  The insurer claimed that Nelson had misrepresented the contents of the home destroyed in the fire, thus wiping out her coverage entirely.  Nelson was slow in making her way to court and didn't file a lawsuit until October 6 of the following year. The Court dismissed her claim as untimely.

Woman injured in sidewalk fall did not give adequate notice of hazard

Lyn Bykonen injured her ankle when she fell while attempting to protect her son from a school bus backing up.  On her behalf, someone (not identified in the opinion) promptly sent a written complaint to the Village of Akron complaining about the hazardous condition of the sidewalk "from Beach to Lynn Street, between the church and Weihl's house on School Street."  The sidewalk in this area was characterized as a "hazard" in the written complaint, but the nature of the hazard was not identified.  Bykonen filed a lawsuit and relied upon the written complaint as her notice of injury.  It had been served on the Village within the proper time period.

Court holds notice of injury is defective; dismissed motorcyclist's injury claim

Republican Judges Christopher Murray and William Whitbeck enjoyed a satisfying week, dismissing two serious injury cases this week.  In the Marcoux case, they held that a van parked so that it blocked "only" half of a residential travel lane did not pose an "unreasonable" risk of harm.  In Agee v. Department of Transportation, they dismissed a motorcyclist's claim against the road authority.  In a notice of injury sent 15 days after the accident, Agee claimed he lost control of his bike on "the Service Drive for Southbound Southfield Freeway at Ford Road."  He claimed the cause of the accident was "defective pavement."

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

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

Malpractice claim dismissed because attorneys misinterpret Court's ruling

When the Legislature re-wrote the book on malpractice, it required a 180-day waiting period--starting on the date a Notice of Intent is filed--before victims could sue.  It did not address, however, how this date would interact with the victim's duty to file suit within 180 days of "discovering" a claim that is more than two years old.  It also did not address what would happen if the Notice was technically defective and required amendment.  Those questions were later addressed to the Michigan Supreme Court, and as the composition of the Court changed, sometimes the answers changed as well.

Homeowner insurance claim denial is upheld by Court

State Farm denied Basim Aljazi's claim arising out of cracks on the first floor of his home.  It had previously paid for damage to the foundation and second floor caused by a burst pipe, but its inspector claimed that the first floor cracks must have pre-existed the water damage.  Aljazi disputed this claim, however, he was late in responding to State Farm's Motion for Summary Disposition and the trial court dismissed his claim.  The Court of Appeals could not decipher a proper foundation for the claims contained in his late response, so it upheld the lower court's dismissal.

Jury verdict for interference with business relationship is upheld

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

Claim against University of Michigan and negligent employee-driver is dismissed for notice violation

Alex Lemerand sued Kevin Sheldon Hartman and the U of M, alleging that Hartman's negligent operation of a University vehicle caused injury to Lemerand.  Hartman was cited in the collision after he rear-ended Lemerand's vehicle at a stop light.  Although Lemerand's counsel provided written notice of the event and Lemerand's intent to pursue a claim within 60 days, no formal written notice of the potential claim was filed pursuant to MCL 600.6401 (the governmental immunity act and Court of Claims Act).  On that basis, the University sought summary disposition of Lemerand's claim.

Wrongful death claim dismissed with prejudice where successor P.R. files late

Randall Cepeda died in Saginaw St. Mary's Hospital six days after a gall bladder surgery.  His family filed a wrongful death malpractice claim against three doctors and Mid-Michigan Surgical Specialists.  The P.R., Randall's widow, did not file the lawsuit within two years of her appointment as Personal Representative, however, as her attorneys believed that the six-month discovery tolling period would applly to the claim.  When legal wrangling in the higher courts resulted in a decision that wrongful death claimants could not take advantage of the six-month "tolling period" for malpractice injury suits, Cepeda's attorneys attempted to dismiss their claim voluntarily, so that they might re-file it promptly after the appointment of a new Personal Representative (who would have two years in which to act). 

Supreme Court denies family right to amend malpractice complaint

Edgar Brown fell from a roof and fractured several ribs.  He went to the Emergency Room, where his fractures were diagnosed and a chest tube was inserted to re-inflate a collapsed lung.  He was then sent home.  The next day, he went into cardiac arrest and died on the ambulance run to the hospital.  His family filed suit against the E.R. doctor, Peter Barrett, alleging that Barrett's management of Brown's care was negligent.

Kid's case against the City is dismissed because parents gave notice late

13-year old Paige Walsh Brown suffered serious injuries when her bicycle struck an upturned section of concrete sidewalk in New Baltimore, Michigan.  Her parents hired a lawyer and gave notice of the injury to the adjacent homeowner.  The homeowner's insurer directed them to the City, and eight months after the incident, the parents registered a claim with it.  The City refused to pay for Brown's injuries or medical, arguing that the family did not give it notice within 180 days as required by the pertinent governmental immunity statute.

Court reverses lower court's refusal to recognize insurer's limitation claim

The Court of Appeals rejected a Motion for Summary Disposition appeal filed by the defendant's insurer in Marsack v. Salens.  The underlying claim by the insurer was that the injured plaintiff delayed too long in suing Ms. Salens, who served as the Personal Representative of the Estate of Laura Gabriel, the "at fault."  This week the Supreme Court over-turned the lower court's decision in a summary half-page ruling and sent the case back for reconsideration.  The high court's brief holding suggested that the Court of Appeals had misunderstood the argument raised by Salens' insurer, related to the time period in which an Estate may be sued.  The insurer had argued that a statute tolling the time within which an estate may file suit does not apply to extend the time within which an estate must be sued.

Farm Bureau avoids homeowner obligation through fine print and delay

Gary Johnson insured his home with Farm Bureau.  He probably doesn't any longer.  He bought Farm Bureau "Country Estate" coverage which provided structure coverage for the out-buildings on his non-farm home. When a structure on the "estate" burned, Johnson made a claim for the fire loss of the building and its contents.  The building was worth more than the insured value of $50,000.00, so that amount was paid without dispute.  The outbuilding contained extensive materials Johnson had purchased and stored with an eye toward building a fence around the "estate."  Farm Bureau argued that its policy did not cover personal property stored in any outbuilding under "Country Estate" language, and that Johnson would have needed to purchase a farm policy to secure coverage for these materials and other personal property stored in the outbuilding.  The parties exchanged several letters arguing about the language of the policy, and Johnson did not sue Farm Bureau within 12 months of the insurer's initial denial of the personal property claim.  The court held that under the policy language, the statute of limitations had run and Johnson could not pursue any claim for insurance coverage of the fencing materials.

Court upholds ruling that Road Commission had adequate notice of highway defect

The Oakland County Road Commission appealed a local judge's holding that Joseph Paletta's injury lawsuit could go forward; it argued that Paletta had not satisfied his duty to prove that the Road Commission had notice of the alleged road defect. It also argued that since the defect was loose gravel on the highway, it did not involve the "road bed" and therefore the Road Commission owed no duty to cure the defect.

Hospitalized patient did not sue quickly enough after "suspecting" malpractice

Mary Dennis was hospitalized for unrelated reasons when physicians at Henry Ford Hospital told Mary and her daughter that they had discovered colon cancer and that it had been present for at least five years.  Dennis filed a Notice of Intent to Sue six months and seven days later, claiming that the Henry Ford physicians who treated her in 2006 were guilty of malpractice for failing to inform her of the presence of the tumor.  The Court held that Mary's claim must be dismissed with prejudice because she didn't file the Noticeof Intent to Sue within six months of "discovering the existence of her claim." 

The Court of Appeals judges noted that the Engler Majority of Michigan Supreme Court Justices has previously ruled that the six-month discovery rule standard "does not require that the plaintiff know that the injury, in the form of the advancement of the disease process, was in fact or even likely caused by the defendant doctors' alleged admissions:"  rather the time to sue begins to run as soon as the victim "should have known of a possible cause of action."  The judges held that no time is allowed the victim to investigate and confirm a "possible" claim and the time available is not "tolled" while the patient is hospitalized--absent proof of actual mental incapacity.

Action by trust beneficiaries against drafter of will and trust is dismissed

The Court of Appeals dismissed a claim by Wayne and Sharon Shultz against Robert D. Sarow after it concluded that the beneficiaries of Wayne's father, Walter Shultz's, Trust were too slow in filing suit.  The Court held that the statute of limitations ran two years after Mr. Sarow finished work on the trust, and that his work for the successor trustee of the trust did not extend the statute of limitations.  Thus, the claims of the beneficiaries to the trust expired most likely before they even knew of the alleged errors in drafting their father's estate planning documents.  Unsurprisingly, Judge Henry Saad served on the Court of Appeals' panel:  he's never met an insurance defense he didn't champion.

Insured who files late proof of loss cannot recover on homeowner policy, despite substantial compliance

Teresa Essa sued her homeowners' insurer, Pioneer State Mutual Insurance, after her home suffered severe water damage.  While she provided Pioneer State with virtually all of the information that would have been included in the insurer's "proof of loss" form, she was late filing the form itself (it is due within 60 days).  She argued that the insurer had waived strict compliance and that, in any event, she had "substantially complied" with the requirement, making it unjust to completely deny her any recovery.  In a decision that undoubtedly pleased Judge Henry Saad, he and two companions ruled that the insurer owed no duty to pay under the policy and could enforce the strict 60-day deadline.

Court rules on the issue of tolling in a class action

Several individuals who claimed false arrest by Motor City Casino employees sued the Casino after they were excluded from a class action brought ten years earlier.  The Casino sought to dismiss their susequent individual claims as "stale." The plaintiffs argued that their potential actions were "tolled," meaning that the statutory limitation period stopped running, during the period that a class action was pending.  The Court of Appeals agreed, but held that tolling ended when the class was decertified, excluding the plaintiffs, rather than when the potential class action was finally disposed of.

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.

City of Auburn Hills not liable for defective road

The Court of Appeals upheld the dismissal of Sally Palaian's injury claim against the City of Auburn Hills.  Palaian claimed that  an asphalt "cut-out" created to effect repairs undertaken by the City had caused her to crash her bicycle.  She did not provide the City with a separate notice of her injury within the 120-day notice period, however, and the Court held that the police report created by a City police officer on the day of the injury was not adequate to meet the statutory ntoice requirement.

Disabled man's claim against MDOT dismissed because of late notice

TheCourt of Appeals this week affirmed the lower court's dismissal of an injury claim filed by Sherif Kodsy against the Michigan Department of Transportation.  Kodsy was badly hurt in a car wreck that occurred at the corner of Woodward and Eight Mile and  claimed that the collision was caused by a poorly designed bridge, malfunctioning traffic lights and inadequate view for motorists. 

Insurer cannot use delay in opening Defendant's estate to support statute of limitations dismissal

Paul Marsack was injured in a collision allegedly caused by Laura Gabriel.  Just as he filed suit against her, however, Gabriel died from unrelated causes.  No one in Gabriel's Estate needed to open a Probate Estate for Gabriel, so Marsack's attorneys were forced to re-style their Complaint as one against Gabriel's Estate, and open the Estate, themselves.  They could not enlist the cooperation of the Defendant's family or the public administrator until the local Probate Court ordered the public administrator to serve as the Personal Representative of the Defendant's Estate.  When she did act in that capacity, she immediately used the delay encountered in opening the Defense Estate to argue that the case should be dismissed for violating the applicable statute of limitations.  The Trial Court in Sanilac County rejected her argument and she appealed.  The Court of Appeals issued a brief opinion this week, refusing to allow the Defendant to raise a delay occasioned by her own passive resistance to justify a statute of limitations defense.

New Republican Supreme Court majority enforces notice period despite lack of prejudice

In Jakupovic v. City of Hamtramck, the injured plaintiff mistakenly identified the area of sidewalk where she was hurt by the adjacent street address in the notice she filed 10 days after she fell.  She then further clarified the circumstances by discussing her fall with the City's insurance investigator, who confirmed that the City had twice been notified of the sidewalk defect in the year prior to Jakupovic's fall.  When negotiations  were rebuffed by the City, Jakupovic filed suit within 120 days--the time during which she was required to give detailed notice of her injuries. 

New Republican Supreme Court majority enforces notice period despite lack of prejudice

In Jakupovic v. City of Hamtramck, the injured plaintiff mistakenly identified the area of sidewalk where she was hurt by the neighboring street address in the notice she filed 10 days after she fell.  She then further clarified the circumstances by discussing the circumstances with the City's investigator, who confirmed that the City had twice been notified of the sidewalk defect in the year prior to Jakupovic's fall.  When negotiations  were rebuffed by the City, Jakupovic filed suit within 120 days--the time during which she was required to give detailed notice of her injuries. 

Mobile home sale is governed by longer statute of limitations, not UCC's one year

In a case of first impression, the Court of Appeals held that the specific three-year statute of limitations in the Mobile Home Commission Act applies to claims of product defects, rather thant he Uniform Commercial Code's one-year limitation on the sale of "goods."  On that basis, Robert and Amanda Johnson were allowed to pursue their claim for rescission and damages against QFD, Inc., d/b/a Landstar Homes.

Claim against insurance agent for failing to adequately insure billing is rejected

Whipperwill & Sweetwater sued their insurance agent and Auto Owners Insurance Co., arguing that Iott Agency, the agent, had breached its contract with the plaintiff by failing to adequate insure plaintiff's building and contents.   Although it could not point to a particular contract promise, the plaintiff argued that the agent was contractually bound to secure adequate insurance coverage on the building and contents, and that it breached this implied contract.  Whipperwill's office had burned to the ground causing two or three times the insured coverage for damage to structure, contents and loss of business.

Woman struck by bus after Red Wing Stanley Cup win cannot sue

Stephanie Schiepke was struck by a Suburban Mobility Authority for Regional Transportation (SMART) bus as she stepped off the curb on Gratiot Avenue.  SMART was notified and representatives came to the scene to investigate that night.  Schiepke did not immediately hire an attorney, and she did not file a formal Notice of Claim until five months later. 

Mold claim barred by passage of time prior to suit

Bridget Brooks attempted to sue her landlord, Willow Tree Village, to recover for health problems caused by the failure to repair leaks in her roof.  Unfortunately, she waited more than three years after the problem developed  before filing suit.  She argued alternatively that she did not become aware of the problem, or did not connect her health issues to the presence of mold, until a time period less than three years prior to filing, however, the court found that this claim was inconsistent with her testimony and inconsistent with the  [Engler majority's] Supreme Court rejection of "discovery tolling" of the statute of limitations.

Pipefitter suffering from asbestos-related cancer cannot sue

Earl Falk was a pipefitter for many years and suffered many years of exposure to asbestos-containing products.    He first became aware of the cancer risk at a union meeting that occurred in the  1980s.   He acquired a lung disease in 1993, but was not diagnosed with asbestosis.  In 1999, he was diagnosed with lung cancer, and in 2006 he was again diagnosed with an unrelated lung cancer.  This time he filed a law suit against various manufacturers of  asbestosis-related products.  The Court of Appeals upheld the  dismissal of his case because the judges determined that his statute of limitations ran in 1999, barring his claims. 

State Farm can't invalidate policy because comatose insured didn't report accident

William DeFrain was struck by a hit-and-run driver and was comatose through the 30-day period during which his State Farm auto policy required him to report any  accident involving a hit-and-run driver.  He died a few months later from complications resulting from the accident.  When his mother attempted to claim the Uninsured Motorist Coverage he had purchased from State Farm, it  refused to pay, citing the contract provision that required him to give them notice of the accident within 30 days.

Woman's product liability claim is too late, where she was unaware of damage during statute of limitations period

The statute of limitations for a product liability claim is three years.  Robin Smith alleged that a pain pump manufactured by the Stryker Corporation was defective and marketed improperly (without FDA approval) for use in joints.  She used the pump in 2003 but did not sue until 2009.  She claimed that her suit was filed within three years of discovering her injury in 2007, when she experienced total destruction of the joint. 

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.