Can State Legislature’s “Impair” the Obligations and Rights of Insurance Contracts to Force Insurers to Cover Losses to Commercial Enterprises Under Commercial Insurance Policies Due to COVID19?

Post on Contract Clause and State Legislation to Force Insurers to Cover Losses Under Commercial Insurance Policies due to COVID19 Pandemic

Michigan Supreme Court Suspends All Filing Deadlines for Case Initiation and Responsive Pleadings to Day After Period of Emergency Lockdown Ordered by Governor Whitmer

By  Administrative Order 2020-03  the Michigan Supreme Court has ordered that all filing deadlines for all case initiation and for filing of responsive pleadings in proceedings already initiated are suspended during the period of emergency enunciated in Governor Whitmer’s Executive Order 2020-21 (COVID-19) (March 24 at 12:01 a.m. through April 13, 2020 at 11:59 p.m.).

The “days” during this period which would otherwise constitute the regular business day that a case filing is due under the court rules are being treated like a weekend day or holiday as under MCR 1.108(1), which allows the extension of filing deadlines to the next business day during which the court is open after the weekend or holiday day. The duration of the emergency is essentially being treated like a single consecutive non-business day or holiday for purposes of calculating the time period filing requirements under the Court Rules and particularly the aforementioned MCR 1.108(1).

The Court’s order only applies to case initiation and responsive pleadings to such cases; not to the filing of a brief, for example, that is already due for a case that has already been initiated.

Lex Fori PLLC and Carson J. Tucker Successfully Pursue Attorney Fees on Appeal After Judgment for Widow of Veteran

I’ve already posted about this recent victory, but wanted to highlight one for the more detailed aspects of this case that arose from our aggressive stance in litigation and on appeals and our creativity in exploring all remedies for our clients at all times.

Michigan, as in most states, the courts follow the “American rule” when it comes to recovery of attorney’s fees in litigation. This means that generally both parties pay their own attorney fees. The exception in Michigan and some other jurisdictions is where attorney fees are allowed by statute, court rule, or agreement by and between the parties (think of an arbitration or dispute resolution clause or just a regular contract requiring one or another party to pick up the attorney’s fees in the event of dispute or breach, etc.).

Generally, even if there is a rule or statute, a party must move for attorney fees before the final judgment. In this particular case, exercising a will to win and be creative, we utilized a court rule that allows a defending party in a child custody / domestic relations matter to recover attorney fees and successfully convinced the Court of Appeals to remand to the trial court to hold a hearing on our client’s request even though the request was made in a post-judgment motion.

Interestingly enough, this exercise was undertaken when we were retained about a week before the motions for reconsideration were due in the trial court to try and reverse the entire direction of the proceedings, which had theretofore all been against our client.

The most satisfying part of this particular case is that we did it for the widow of a United States Army veteran who had committed suicide while on active duty. Anyone who follows me knows about 30 to 40 percent of my practice is representing military veterans (usually pro bono and low bono). As a veteran myself Navy 1989 – 2003, and a former JAG officer with the United States Army (2003 – 2016), I am keenly aware of the challenges and issues faced by our nation’s warriors and their families! I fight these legal battles like they fight for us on the front line! No mercy.

Read the opinion here: Martin v Cleveland-Martin

Employee’s Violation of Company Policy Regarding Computer Use to Access Flight Information for Airline Passenger Not “Disqualifying Willful / Wanton Misconduct” Sufficient to Deny Unemployment Benefits

In a published opinion issued on July 15, 2014, the Michigan Court of Appeals ruled that a security guard’s access of a computer to provide an airline passenger information about a flight’s departure did not meet the legal standard for “misconduct” sufficient to deny unemployment benefits after termination from employment.

The employee was a privately contracted security guard working at the Detroit Metropolitan Airport.  Her employer’s policy prohibited use of computers to access information about flights for passengers.  The employee knew of this policy.  She was approached by a passenger who asked for information about departure of a specific flight.  The employee accessed the computer and provided the information to the passenger.  She was terminated as a result of violating her employer’s policy regarding computer usage.

The employee filed a claim for unemployment benefits.  Her employer claimed that under MCL 421.29(1)(b), she was disqualified from receiving benefits because she had been “discharged for misconduct connected with the individual’s work” within the meaning of that provision.  The Administrative Law Judge (ALJ) agreed and ruled that the employee’s conduct met the statutory standard.  The Michigan Compensation Appellate Commission affirmed the ALJ’s decision.

On appeal to the Circuit Court, the decision denying  benefits was reversed.

The Circuit Court reasoned that the meaning of “misconduct” under MCL 421.29(1)(b) had been interpreted by the Michigan Supreme Court to require a showing of conduct exhibiting a willful and wanton disregard of an employer’s interests.  The Circuit Court also noted the Supreme Court had defined what did not constitute misconduct, conduct which included “ordinary negligence” and “good faith errors in judgment or discretion”.  The Circuit Court reasoned that the employee was attempting to help a passenger, and, by extension was doing something productive and beneficial for her employer.  Thus, the Circuit Court reasoned, even though the employee violated her employer’s computer usage policy, it was a good faith mistake rather than willful or wanton misconduct contrary to her employer’s interest.

On appeal, the employer argued that the Circuit Court had made a factual determination, to wit, that the conclusion that the employee’s behavior did not constitute “misconduct” was either a factual conclusion that the ALJ’s decision was not “supported by the record evidence”, a phrase invoking the standard of review of administrative agency findings of fact, or, in the least, a mixed question of law and fact.  Therefore, according to the employer, the Circuit Court’s review was limited to a determination that the ALJ’s decision was “not supported by competent, material, and substantial evidence” on the record.  Mich. Const. 1963, art. 6, sec. 28.

The employee countered that the Circuit Court accepted the factual findings of the ALJ, but nonetheless made a ruling that the ALJ’s decision, and the Commission’s affirmance, was “contrary to law”, invoking the standard allowing the reviewing appellate court to determine a “question of law”.

The Court of Appeals affirmed the Circuit Court’s decision.  The panel held that the facts on the administrative law record were undisputed and the reviewing court was therefore authorized to determine whether the decisions below were contrary to or authorized by law.  In doing so, the Circuit Court properly looked to the statutory definition of “disqualifying misconduct”, and to the jurisprudence interpreting and applying that decision.

The Court of Appeals reasoned that the employee’s decision, while a violation of the employer’s policy, constituted a “good-faith error in judgment” and not “disqualifying misconduct” sufficient to deny benefits.

The Court also noted that even if the facts were disputed, the reviewing court had authority to accept the facts on the record and determine whether the administrative agency’s conclusion was legally valid.  In such cases, once the reviewing court makes the determination that the agency’s decision was “legally valid”, it may then determine whether the agency’s findings of facts were supported by the record.

This published opinion offers a fairly thorough, yet succinct, discussion of the standards of review for a court reviewing an administrative agency decision.  On a purely factual level, perhaps it would have behooved the employer to present additional evidence at the administrative level that its enforcement of the computer usage policy related in fact to airline security, and thus, was a determinant factor for satisfactory performance of its own contract with the airport authorities to provide security and refrain from allowing its employees to actually violate airline and airport security measures.

If such evidence was available and had been produced, it would have been more difficult for the Circuit Court to conclude that the employee was not acting against the interests of her employer.

The decision is attached here: Hodge v. U.S. Security Associates, Inc.COA.Published.opn

Effective appellate representation demands different skills than those required by litigation attorneys.  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 errors for appeal, and developing a strategy to raise those issues that will be addressed by appellate courts, appellate attorneys are 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 also experienced at navigating through all appellate courts to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.

Below are some of the recent significant cases prosecuted by the Appeals and Legal Research Group.

• Omian v. Chrysler, LLC, Michigan Court of Appeals Docket No. 310743, remanded by Supreme Court as on leave granted, Supreme Court No. 146908, oral argument presented July 16, 2014 by Carson J. Tucker for Chrsyler, LLC
• Moore v. Nolff’s Construction and Travelers Ins., Michigan Court of Appeals Docket No. 313478 and 313440 (consolidated), application and cross-application granted and oral argument in Court of Appeals presented July 2014 by Carson J. Tucker for Nolff’s Construction and Travelers Insurance
• Arbuckle v. GM, Michigan Court of Appeals Docket No. 310611, oral argument in Court of Appeals presented May 2014 by Carson J. Tucker for GM
• Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
• Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
• Omian v. Chrysler Group, LLC, 495 Mich. 859 (2013), application filed by Carson J. Tucker, Supreme Court remand to Court of Appeals on leave granted, oral argument to be held in July 2014
• Ghanam v. John Does, 303 Mich. App. 522 (2013), application to appeal filed in Supreme Court by Carson J. Tucker
• 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 filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, 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., 495 Mich. 976 (2014), 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)

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