TOV Injury and Safety Blog

Court reverses summary dismissal of road liability claim against Washtenaw County

Karen Utley sued the Road Commission after suffering severe injuries when her motorcyle hit a pothole  on Zeeb Road in Lodi Township.  One of her riding companions estimated that the potholed was six inches deep and 2-3 feet in diameter.  Others described it to police as "large" or "significant."  The Road Commission prevailed on the trial judge to dismiss Utley's claim on summary disposition by arguing that the pothole had been repaired three days prior to Utley's crash, but that a sudden rain fall had washed out the repair.  The Road Commission persuaded the local judge that it had taken appropriate steps to keep the road in reasonable repair.

The Court of Appeals reversed, holding that given the evidence about the extent of the pothole, it was a question of fact for jurors to determine whether the Road Commission's efforts at amelioration were adequate.  It held that "the mere presence of so large a pothole less than three full days after the road was spot-scraped supports a reasonable inference that the pothole was not repaired."  It also cited the Plaintiff's engineer expert, a gentleman with 30 years road maintenance experience with MDOT, who claimed that the pothole was "a high level severity pothole that's not been attended to."  Surprisingly, even Judge Christopher M. Murray, who virtually never sides with injury victims, agreed with the appellate court holding.

Assault and battery verdict is upheld.

Clarence Russell and Tony Thompson sued Shane and Shawn Novencido for assault and battery.  They recovered an award totaling $150,000.00 from Shane, including $50,000.00 in exemplary or "punitive" damages.  The Defendant appealed.

The action arose out of a fight that occurred at Fenders Bar and Grill in 2006.  Thompson owns Fenders and asked the two brothers to leave when they engaged in a series of verbal exchanges with other customers.  As he followed the brothers out the door, he and Russell were sucker-punched in the face, suffering cuts and bruises. Thompson also suffered a fractured orbital wall. The brothers pleaded guilty to assault and battery but contested the subsequent civil verdict against them.

The Defendant argued that the judge's findings of fact in this bench trial were incorrect and did not support his conclusions.  The Court of Appeals found two minor errors in the factual findings but concluded that over-all, the findings represented a reasonable evaluation of conflicting testimony and were adequate to support the judgment.  Lastly, the Defendants argued that their conduct was not "malicious, reckless or wanton" and therefore exemplary damages were unwarranted:  The Court of Appeals agreed with the Trial Court that administering a beating to an elderly gentleman is sufficiently reprehensible conduct to justify an award of punitive damages.

Woman cannot sue after fall in apartment complex parking lot

Carla Counterman sued her landowner, arguing that its failure to adequately maintain the apartment complex parking lot caused her fall on ice.  Her attorneys argued that the apartment complex owners violated a statutory duty to maintain the lot in a condition "fit for the use intended by the parties." The Court agreed with a prior panel of the Court of Appeals which held that "a landlord could have a duty with regard to ice and snow, but...it would be triggered only under much more exigent circumstancews than those obtaining in this case."

The Court upheld the dismissal of the Counterman case.  It held that since the family members who came to "rescue" Carla were able to park in the lot and transit between their cars and the apartment, the lot was "resaonably fit for its intended purpose."

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

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

Insurance company owes nothing to renter after fire: court holds he did not "substantially comply" with proof of loss

Jevon Johnson's apartment was gutted by fire in April of 2010.  He had renter's insurance with MemberSelect Insurance Company.  The insurer's contract required that Johnson file a proof of loss within sixty days; it also demanded that he appear for a sworn statement with "copies of police and fire reports, any photographs of the apartment, anhy lease agreements, various financial records, telephone records, any original documents relating to the purchase of destroyed personal property, a detailed contents estimate and all records supporting additional living expenses."

With profits down, Pfizer announces it will re-focus on research.

For years, apologists for the pharmaceutical industry have attempted to justify outrageous industry profits by arguing that they were necessary to support industry research that ultimately benefits consumers with new medications.  Last week's announcement by Pfizer that it now would re-focus on research in response to dwindling profits demonstrates how ill-founded the prior claim was.

Since Pfizer lost its monopoly on Lipitor last fall [parenthetically the best-selling drug in history], its profits have already dropped by 19% and company executives are announcing a radical shift.  Instead of buying up small competitors, Pfizer now plans to divest its animal health and infant nutrition subsidiaries, and instead focus its research efforts on only "the most promising" areas of pharmaceutical research.  One executive was quoted to the effect that "...we were spending huge amounts of money...we weren't producing the drugs we needed..." 

The Company also announced that it would spend less on research and development at the same time that it improved its focus on developing market-worthy new medicines.  Critics called this a risky and counter-intuitive strategy. In any event, it is yet another acknowledgement that enormous profits were not being directed to effective research in human medicine.

Academic research by University of Texas, University of Illinois and Nowrthwestern University demonstrates malpractice "reforms" did not increase doctor supply

A recent study by three highly-respected Universities demonstrated that the wholesale "reforms" [anti-victim limitations on medical negligence recoveries] adopted in the State of Texas had NO impact on the supply of doctors in the state.  The study concluded that the supply of physicians operating in the state was relatively "inelastic" and not influenced by steps taken to protect doctors from negligence claims.

The authors concluded that their research was consistent with prior multi-state studies showing that there is no relationship between "tort reform" and physician supply.  Even though special interest-Republican "reforms...dramatically changed the malpractice environment..." in Texas, they did not have any impact on the number of doctors in practice--even in poorer rural areas or high-risk specialties.  

The authors also found that the "reforms" did not influence health care costs in the state.  On the contrary, studies in Texas have shown that the major influence on health care costs in Texas is "fee for service" medicine and physician-ownership of ancillary services they can charge to provide.  Lastly, the authors noted that  insurance companies have fought "tooth and nail" to eliminate public access to reliable claims data which the National Association of Insurance Commissioners has attempted to create:  without this data, the authors indicated it would have been  impossible to ascertain the true impact of "reforms" such as those undertaken in Texas.

The authors explicitly pointed out that there was no factual support for "reformers' " claims that the lack of a cap on malpractice awards deterred doctors from practicing in Texas or that adopting a cap had increased the number of practicing doctors.  Supply was not stunted before reform and did not measurably improve after--even in so-called "high risk" specialties.  Neither did it influence health care costs by eliminating or limiting the practice of "defensive medicine."  The article is entitled "Does Tort Reform Affect Physician Supply?  Evidence From Texas."  It can be downloaded at http://ssrn.com/abstract=2047433.

Looks like everyone is hunting for bear.

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

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

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

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

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

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

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

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

Defamation and malicious prosecution claims are dismissed; conversion reinstated

Joseph S. Ajlouny and Ali Bajrami became involved in a despicable incident involving sex with a 14-year old girl. Eventually, Ajlouny filed a civil action against Bajrami, accusing him of defamation, malicous prosecution, intentional infliction of emotional distress and conversion of items of personal property.  All but the conversion claim were dismissed by the trial court, and the dismissal was upheld on appeal. The court concluded that Ajlouny had not adequately supported his claims with admissible evidence.

Drunken man arrested on his own lawn cannot sue police

Jiya Gupta was arrested on his front lawn in Ingham County because a neighbor had reported an unidentified drunk walking through the neighborhood.  Responding officers found Gupta on the sidewalk and attempted to interview him.  Instead of cooperating, he ran accross the street to his yard. The officers tackled him, handcuffed him, refused to release him to his wife's custody, and charged him with disturbing the peace.  The local prosecutor dismissed that charge and instead issued a warrant for "obstructing or opposing law enforcement officers." 

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

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

City is not immune from liability for defective curb cut

Antonio Moraccini was thrown from his motorized tricycle when it struck an irregular concrete curb cut between the sidewalk and a city street.  The City claimed it should be immune from Moraccini's injury suit because it argued that the so-called Engler Majority on Michigan's Supreme Court had issued an opinion that excluded curbs and other structures from a municipality's statutory obligation to maintain reasonably safe roads and sidewalks. 

The trial court rejected the Defendant's argument for summary disposition and the City appealed.  The Appellate Court held that the curb cut was either an "extension of the sidewalk" or an "installation" within the highway, and therefore the City was not entitled to immunity.

Court overturns decision defaulting woman who did not fulfill discovery obligations

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

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

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

Disappointed divorcee's malpractice claim dismissed

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

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

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

Pioneer State Mutual leaves daughter-in-law holding the bag

Tammy Sue Long borrowed the in-laws' car for the day.  She was involved in a bad car accident, causing injury to Janice and Brian Kammers.  No problem because her parents had purchased $300,000.00 in liability coverage on the vehicle, right?  Wrong.  Pioneer's fine print limits its liability coverage to $20,000.00 if the vehicle is operated by anyone other than the "named insureds" and family members living with them.   Citing this provision of the policy, the Court of Appeals ruled this week that Tammy Sue Long was entitled to only $20,000.00 in liability protection.  The Court noted that under prior rulings of the Republican State Supreme Court Majority, while it is illegal for an insurer to deny coverage to a non-owner, it may limit coverage to the 1974 state minimum--$20,000.00 per injury--and this is not a violation of public policy.  Regardless of the premium paid by the insureds or the fact that they permitted the use of the vehicle by the driver. 

The Court did not address an additional question:  since the Longs remained responsible for the full amount of damages caused by a permitted operator, why didn't the higher coverage limits they purchased apply to the Kammers' injuries?  Maybe the answer is just "because the insurance company says so."  That seems to be the rule of law in Michigan.

New test may detect chronic traumatic encephalopathy before symptoms appear

The New York Times reported this week on a new medical study involving boxers and chronic traumatic encephalopathy (CTE).  CTE has gained prominence as professional football players' autopsies continue to demonstrate evidence of brain injury that was previously considered a product only of blows to the head suffered by professional boxers.   Indeed, the disease was formerly known as dementia pugilistica.  Today, as one after another NFL player is prematurely struck down by memory problems, depression, and intellectual dysfunction, the disease is gaining notoriety among a completely different population.  The suicide of 62-year old Ray Easterling, former Atlanta Falcon, after years of premature dementia, is only the most recent example.  The disease has gained additional notoriety as returning Mideast war veterans have experienced a high rate of post traumatic stress syndrome, CTE and suicide.

Court holds that intersection of alley and public highway is part of the highway for liability issues

Kurt Teramo suffered serious injuries when his moped struck a pothole at the "T" intersection of Clover Court and Broadway Alley in the City of Grand Rapids.  Although public entities remain responsible for maintaining "reasonably safe roads," the Republican majority of Michigan's Supreme Court has limited this duty--through successive decisions--to the road surface itself.  The more insurance-oriented Justices have concluded that the statutory duty does not include a duty to design safe roads, to maintain signs or traffic control devices, or to maintain curbs, rights-of-way or bridge structures.  It also interpreted the statute in such a manner that it does not apply to public alleys.

Homeowner cannot sue court-appointed receiver for negligence

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

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. 

Insurer sues to "double-dip" Catastrophic claim fund; loses

Old Republic Insurance Company is registered to sell no fault insurance in Michigan.  It is, therefore, obligated to contribute to the catastrophic claims fund (MCCA) and entitled to reimbursement for PIP payments in excess of $300,000.00.  It insured a truck owned by Pepsi Cola under a self-insurance agreement that included, in essence, a $500,000.00 "deductible."  The truck was involved in a collision with a motorcyclist, causing the biker more than a half-million dollars in medical expense.  Even though it had spent nothing, because of Pepsi's deductible, the insurer sued the MCCA for "reimbursement" of the medical expense "incurred" by the cyclist. 

The Court held that this claim was nonsense and that if the insurer were actually paid by the MCCA, it would owe that money back to the MCCA by reason of a third-party's (Pepsi's) payment.  The Court held that it would not compel the MCCA to pay a bill under circumstances where the payee was obligated to immediately tender reimbursement.

Federal Court rejects claim that expert testimony is too speculative

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

USAA penalized for unreasonable delay in paying no fault PIP medical benefits

USAA, the company that advertises its "special relationship" with military families and claims to provide them with enhanced service, was penalized again this week for unreasonably delaying payment of no fault personal injury protection (PIP) benefits.  The insured, Rana Reyes, who suffered from depression, became distressed in 2008 when her boyfriend changed his Facebook status to "single."  She accompanied the love interest to the bar, where she became intoxicated and highly emotional.  As they were driving home from the bar, she became angry when her companion would not reciprocate her expressions of love and announced she was leaving the car. She opened the door and fell out at 35-40 miles per hour.  Her head was struck by the rear passenger wheel, causing a severe head injury.

Thompson again named one of Michigan's "Top 100 Trial Lawyers"

This year, The National Trial Lawyers organization again invited our partner, George Thompson, into membership in the "Top 100" honorary organization.  Membership is by invitation only and is "extended to those individuals who exemplify superior qualifications, trial results, and leadership" in their respective states.  If you hang around long enough in a profession, you have the opportunity to fool enough people to be invited into these kinds of organizations.

Veteran's autopsy fuels concerns over brain injury in returning Mid-East vets

The autopsy of a 27 year-old ex-Marine, formerly an honor student, has lent urgency to the discussion of Post-traumatic stress disorder (PTSD) in returning veterans.  The New York Times preported on April 26 that after the unnamed veteran's post-divorce suicide, an autopsy discovered evidence of chronic traumatic encephalopathy (CTE), the same form of brain injury observed in boxers and football players after repeated concussions.

The former A-student had returned from two tours in Iraq suffering from memory problems, irritability and social withdrawal.  He began drinking heavily, was diagnosed with PTSD, caused a drunken car crash, and his wife commenced divorce proceedings.  At his parents request, police investigated his apartment and found that he had hung himself.  The discovery of CTE, objective damage to his brain, strongly suggested that there may be a physical component to returning veterans' PTSD in addition to the pschological component.  Although there has been only one peer-reviewed medical publication of CTE findings in a returning vet's autopsy, the NYT reported that investigators associated with three separate scientific study groups have found additional examples that are headed toward publication. 

These findings, if borne out, would help to explain the signifcant increase in post-deployment suicides among Mid-East veterans, and also help physicians to better understand the traumatic origin and foundation of PTSD.  Unfortunately, CTE cannot be detected by any means other than autopsy, severely limiting the usefulness of these findings in treatment.

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.

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

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

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

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

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

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

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

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

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

Court allows rare claim against teachers to go to trial in wrongful death case

Maria Anderson, sued two teachers at the Swartz Creek Middle School after her sixth-grade son drowned during a physical education class.  Because of governmental immunity, she could not sue the school system, and can only sue the teachers if they were guilty of "gross negligence" that was "the" cause of her son's death.

Anderson provided evidence that a sixth and a seventh grade class were combined in the pool, more than fifty kids, when one of the teachers decided to take his class to the pool because the gym was occupied.  His class received only five minutes of instruction and inadequate testing before they were released for "free swim."  That instructor then left the pool to enter attendane in the computer--a task he was not time-limited to perform.

Successful lawsuit unravels in litigation over litigation-funding loan

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

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

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

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

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

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

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

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

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

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. 

Merck pleads guilty to misbranding Vioxx

This week Merck & Co. pleaded guilty to mis-branding Vioxx in order to settle criminal charges that it sold Vioxx for unapproved uses and made false statements about its cardiovascular safety.  Merck had previously paid $4.85 billion dollars to some 50,000 patients who suffered strokes or heart attacks and blamed them on Vioxx.  Merck will also pay more than 300 million dollars in criminal fines.

Unfortunately, none of these reparations will benefit Michigan residents:  As part of "tort reform," Republican legislators adopted the nation's only statute granting complete immunity to any product that had been approved for sale by the FDA.  Even where, as here, the FDA approval is procured by fraud or the manufacturer evades the limitations on sale of the product, the immunity stands.  Recently the Republican majority of Michigan's Supreme Court upheld this immunity even with regard to expenses wrongfully incurred by the State as a result of a drugmaker's misdeeds.

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

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

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

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

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

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

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

Court 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 overturns enforcement of settlement "agreement" after stipulated dismissal

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

Homeowner improperly foreclosed upon loses "third strike."

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

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

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

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

Geico loses battle over insurance priorities

Tamkia Gordon disclosed to Geico that she was planning a move to Mississippi, that she traveled between Michigan and Mississipi frequently, and that she planned to move the registration of her vehicle to Mississippi and "garage" her car there.  On that basis, Geico provided Tamika Gordon with No Fault coverage on her vehicle through a Mississippi policy with an accompanying Michigan no fault certificate.  Gordon incurred two small claims in Michigan involving the car, which Geico paid.  When the policy was renewed, however, in 2007, Geico did not include the Michigan Certification and three days later Gordon was involved in a motor vehicle collision. Geico refused to pay her medical and sought the Court's permission to invalidate her coverage entirerly, claiming that she obtained it under false pretenses.

Chrysler Insurance Company No Fault policy is voided and reformed by court due to illegal attempt to shift PIP obligations

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.

Michigan Supreme Court overturns Court of Appeals; dismisses motorcyclist's claim against Road Commission

Joseph Paletta sued the Oakland County Road Commission.  He lost control of his bike on loose gravel and suffered serious injuries.  He presented testimony from a man living near the area where he was injured, attesting to the fact that the witness had complained on a number of occasions that the Road Commission scattered loose gravel in the road when it turned in and out of a gravel storage area.  The witness claimed that the Road Commission failed to take any action in response to his complaints and continued to create a nuisance on the asphalt roadway. 

Supreme Court's conservative majority dismisses dental malpractice claim

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

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

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