Michigan Supreme Court Remands to Appellate Commission Directing Assessment of Post-Injury Retirement and Effect on Wage Loss

In a case I brought to the Michigan Supreme Court on application from a Court of Appeals denial and Michigan Compensation Appellate Commission decision, the Court agrees with my argument the Commission did not address whether the claimant’s wage loss was attributable to her work-related injury, or rather due to her acceptance of a retirement / severance package.

MCL 418.301(4) of the Workers Disability Compensation Act requires in order for an individual to be entitled to wage loss benefits, the disability occasioned by the work-related injury must be the true cause of the wage loss, not some other reason wholly (or even partially) unrelated to the work.

This stems from the underlying principles behind workers compensation “wage loss” benefits.  Employers are only responsible to the extent the employee is unable to earn wages due to the injury and not for other reasons beyond the employer’s control.  Thus, downturns in the economy, a worker’s choice to do something else for less pay, or to move to a geographical location with less opportunities, seasonal employment situations, etc., all are situations over which employers do not have control.  Therefore, employers are not responsible for the wage loss benefits for such circumstances.

This remand by the Michigan Supreme Court confirms that in those cases where the facts support the legal argument, it must be considered whether the employer is truly responsible for all, or even a portion of the claimed “wage loss”.

Read the Supreme Court’s order here:  Williamson v. GM

If anyone has questions regarding this decision, or the wage loss principle in general, please contact Carson J. Tucker, JD, MSEL at (734) 218-3605.

Michigan Supreme Court Denies Leave in Two of Three Cases Pending to Address Legal Causation Under No-Fault Act for Motorcycle Accidents

Last week I filed an amicus curiae (friend of the court) brief in the State Farm v. MMRMA case pending on application to the Michigan Supreme Court.  As I mentioned in my last post, there were two other cases, both pending on applications to the Court, which asked the Court to deal with the same issue that is presented in this particular case.  Yesterday, the Court denied the applications in those cases.  See the orders here: DMC Case and Smutski v. Auto-Owners, et al.

There has been no disposition of the application in the case for which I submitted an amicus brief.  Thus, it remains the only one still pending.

I previously wrote about these cases in the following posts:

Amicus Curiae Brief Filed in State Farm v. MMRMA

State Farm Seeks Contribution from County Sheriff for Motorcyclist’s Injuries Suffered in Motor Vehicle Accident While Fleeing from Police

Braverman ex rel Smutski v. Auto-Owners, et al.

DMC v. Progressive, et al.

As I mentioned in my previous posts, the Court of Appeals in the Auto Owners case actually remanded for a determination of the factual circumstances involving the motorcycle accident.  There was a question of fact whether the tractor trailer had identifying lights on while it was in the roadway just before the motorcyclist crashed trying to avoid impact with the truck.  In the DMC v. Progressive case the Court of Appeals actually ruled there was no causation.  The “evidence” of involvement of another vehicle was based only on the motorcyclist’s testimony that an unidentified vehicle was about to cross his path and he wrecked his bike while trying to avoid the collision.

It is difficult, if not impossible, to interpret the Court’s actions from its non-action on these two applications.

We shall see what the Court does with the application in the State Farm case.  Although, interestingly, that case has the added wrinkle of involving a governmental entity as the insurance carrier.  Hence, my participation as amicus curiae author in support of the carrier’s application on behalf of Oakland, Wayne and Macomb counties.

I have been at the forefront of the motorcycle accident cases due to my authorship of amicus curiae briefs in the DeYoung / Spectrum case, which I wrote about here:

Supreme Court to Address Taking of Motorcycle in Insurance Coverage Dispute

Supreme Court Undertakes Joyriding and Unauthorized Taking of Motor Vehicles and Motorcycles

up until the present time involving these most recent significant pronouncements on the level of causation and priority among insurers under MCL 500.3114(5) of Michigan’s No-Fault Act.

For more information about this and other similar cases contact Carson J. Tucker, Chair of the Appeals and Legal Research Group at Lacey & Jones, LLP, a Birmingham law firm serving clients since 1912.  Mr. Tucker can be reached at (248) 283-0763.

For more information about Lacey & Jones, click on the following practice area company pages on Linked In.

Lacey & Jones, LLP’s Appeals and Legal Research Group

Lacey & Jones, LLP’s Insurance Coverage and Recovery Group

Lacey & Jones, LLP’s Civil Litigation Group


No “Prejudice Requirement” or Other Judicial Constructs Can Nullify Strict Compliance with Statutory Notice Provisions to Perfect Claims Against the Government

On November 7, 2013, in Vega v. Gillette, et al., the Court of Appeals ruled a plaintiff who failed to file a notice of an intent to sue the state under MCL 600.6431(3) was barred from suing the government under the motor vehicle exception, MCL 691.1404 of the Governmental Tort Liability Act (GTLA).  The plaintiff was injured when a vehicle driven by a state employee rear-ended the plaintiff’s vehicle in snowy conditions.

Plaintiff’s accident occurred on February 12, 2008.  Suit was not filed until February 2, 2010, almost two years later and well outside the six-month statutory notice provision in MCL 600.6431(3).

It was undisputed plaintiff failed to provide a “notice of intent” to file a claim with the clerk of the court of claims as required by MCL 600.6431(3).  However, plaintiff argued the law at the time of the accident was unclear concerning whether the government had to suffer “actual prejudice” as a result of the failure of a plaintiff to file an notice of intent to file a claim under MCL 600.6431(3).

On August 20, 2012, the Michigan Supreme Court issued back-to-back opinions in Atkins v. SMART, 492 Mich. 707 (2012) and McCahan v. Brennan, 492 Mich. 730 (2012), the former of which I briefed and argued in the Supreme Court on behalf of SMART.  See my previous post about these cases here:  Michigan Supreme Court Decisions in Atkins v. SMART and McCahan v. Brennan.  Those cases collectively applied the rule of law that in actions against governmental entities failure to strictly comply with statutory notice provisions will bar the ability of a plaintiff to file suit against the government.  See Rowland v. Washtenaw County Rd Comm’n, 477 Mich 197 (2007).  The Court dispensed with the notion that the rule of law from Rowland, suprawhich applied to the notice provision in the highway exception to governmental immunity, MCL 691.1404(1) and MCL 691.1402(1), respectively, did not similarly apply to all other notice provisions in the statutory exceptions to governmental immunity.  In Atkins the Court addressed the 60-day notice provision applicable to actions against transportation authorities, MCL 124.419.  In McCahan, the Court addressed the six-month notice that was at issue in this case, which is required to file suit against the state and its subordinate entities, MCL 600.6431(3).

Here, while ruling that the rule enunciated in McCahan did not pronounce a new rule of law and therefore applied retroactively to bar the plaintiff’s suit, the Court of Appeals reaffirms that the concepts of “actual prejudice”, estoppel, waiver, and substantial compliance, inter alia, that have been relied on to except the failure to comply with notice provisions has been disavowed and should not form the basis to forgive a party’s failure to comply with these statutory prerequisites.

Despite the pronouncement of this clear rule from Rowland, supra, and as reconfirmed in Atkinssupra and McCahansupra, some Court of Appeals panels have continued to formulate judicial theories that seek to allow a plaintiff to avoid the strict statutory prerequisites to filing suit against the government.  See, e.g., my post about one such case here:  “Substantial Compliance” Sufficient to Satisfy Notice Provision in Suit Against the Government.  And, despite the Supreme Court’s seemingly clear articulation that all such notice provisions are to be strictly applied and adhered to.  See my post explaining the fate of other such cases here:  Supreme Court Addresses Last Pending 60-Day Notice Case Peremptorily Reversing Court of Appeals.

As I have noted in these posts, and elsewhere, Lack of Notice to Sue Government Is a Jurisdictional Bar to Lawsuits, my position with respect to statutory notice provisions is that they constitute an inherent affirmation of the jurisdictional principle of governmental immunity adhered to in Michigan.  Governmental immunity is an inherent attribute of government.  It is the state that created the courts, and so, the state and its subordinate governmental entities are not subject to the judicial branch absent an express waiver of the preexisting immunity inherent in the government’s activities.

Only the Legislature, as the representative of the People, can delineate when the government may be hailed into a court of law to answer for alleged injuries arising out of governmental activities.  Absent strict compliance with notice provisions and all terms and conditions of these statutory exceptions to immunity, a court of law simply does not have subject matter jurisdiction to entertain the plaintiff’s suit.  I have argued this principle in the Supreme Court on several occasions.  Although the Court has yet to address the primary jurisdictional contention, its opinions in cases like RowlandAtkins, and McCahan intimate the government’s suit immunity is indeed jurisdictional.  Hence, the Court’s willingness to allow suits to be barred regardless of any apparent failure to comply with statutory preconditions, no matter how small or insignificant they may seem to be.  I first presented this argument in an amicus curious brief in the case of Pollard v. SMART, (see my post about it here:  Amicus Curiae Brief in Pollard v. SMART Argues Government’s Suit Immunity is Jurisdictional and Failure to Comply with Statutory Notice Provisions Deprives Courts of Law with Subject-Matter Jurisdiction to Entertain Merits of the Suit and the argument became a central part of my later presentation to the Court on behalf of SMART in the Atkins case.

Many other states more clearly pronounce the jurisdictional principle in addressing failure of notice on the part of plaintiffs seeking to file suit against the government.

Feel free to call Carson J. Tucker, Chair of the Appeals and Legal Research Group at Lacey & Jones, LLP at (248) 283-0763 if you have any questions about any of these cases.

Throughout its storied history, Lacey & Jones has distinguished itself from other law firms by maintaining a robust Appeals and Legal Research Group.  Effective appellate representation demands different skills than those required by litigation attorneys.  Our appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, our seasoned appellate team is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.   We are experienced at navigating through the Michigan Court of Appeals and Supreme Court to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.  During the last three decades alone, the Appeals and Legal Research Group at Lacey & Jones has been responsible for over 150 published decisions in the Michigan Court of Appeals and Supreme Court, including seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.  Because of its specialized knowledge and focus on appellate law and its recognized expertise, the Appeals and Legal Research Group at Lacey & Jones has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to the Michigan Attorney General and other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.   Below are some of the recent significant cases in which Lacey & Jones, LLP’s Appeals and Legal Research Group has participated.

  • State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
  • Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae to be filed for MTA, et al., by Carson J. Tucker
  • Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
  • Huddleston v. Trinity Health, et al., ___ Mich ___ (201_), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
  • Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
  • Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
  • Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
  • Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
  • McMurtrie v Eaton Corp, 490 Mich 976 (2011)
  • Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
  • Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
  • Stokes v Chrysler, 481 Mich 266 (2008)
  • Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
  • Rakestraw v Gen Dynamics, 469 Mich 220 (2003)
  • Sington v Chrysler Corp., (2002)

Other appeal cases Carson Tucker has handled include

  • Hamed v. Wayne County, et al., 490 Mich. 1 (2011), reversing Court of Appeals published opinion after being briefed and argued by Carson J. Tucker on behalf of Wayne County
  • Odom v. Wayne County, et al., 482 Mich. 459 (2008), reversing Court of Appeals after being briefed and argued by Carson J. Tucker on behalf of Wayne County and Wayne County Sheriff and Deputies
  • Michigan Department of Transportation v Employers Mutual Casualty Co, et al., 481

    Mich. 862 (2008), reversing Court of Appeals after being briefed and argued on application by Carson J. Tucker for Trucking Company and Insurer

  • Nuculovic v. Hill and SMART, 287 Mich. App. 58 (2010), briefed by Carson J. Tucker for SMART
  • Molnar v. Amy Allen, Oakland County Care House, et al, 359 Fed. Appx. 623 (6th Cir. 2009), affirming district court’s judgment in favor of client represented by Carson J. Tucker
  • Molnar v. Amy Allen, Oakland County Care House, et al., Case No. 09-1536 (2009), successful defense of application to United States Supreme Court by Carson J. Tucker
  • Wetherill v. McHugh, et al., Case No. 10-638 (2011), co-draft response on behalf of South Dakota National Guard to petition for appeal to United States Supreme Court, cert denied by Supreme Court.

Supreme Court to Consider Scope of Highway Defect Exception

In Yono v. MDOT, Supreme Court Case No. 146603, a case in which I submitted an amicus curiae brief for Macomb County Department of Roads, Oakland County Road Commission and Wayne County in support of the state’s application for leave to appeal, the Supreme Court granted oral argument on the application and invited additional briefing.  Read my previous posts about this case here, where I originally addressed the Court of Appeals opinion and predicted it would be subject to further review:

Court of Appeals Rules Parallel Parking Area Part of Highway Under Highway Exception to Governmental Immunity

Here is my amicus brief supporting the state’s application to the Supreme Court:

99370.sc amicus brief

I will be submitting a supplemental amicus brief per the Court’s grant order.