Appellate Law Information and More
In a case I briefed and argued on July 10, the Michigan Court of Appeals in a 2-1 opinion has reversed the trial court’s decision denying Macomb County’s motion for summary disposition, and has remanded to the trial court for a full dismissal of the lawsuit as against the Macomb County Defendants.
Judges O’Brien and Riordan were the majority, while Judge Meter was the lone dissent.
Additional analysis of this important governmental immunity decision will follow.
I previously wrote a short post about this case, but since I authored an amicus curiae brief for Michigan Townships Association, and the counties of Oakland, Wayne and Macomb, I have engaged in a bit more analysis.
The Supreme Court released its long awaited opinion in Hannay v. MDOT and Hunter v. Sisco, on December 19.
The underlying facts in both cases arose from motor vehicle accidents in which government owned vehicles were involved. In Hannay, the plaintiff was injured when she was involved in an accident with a snowplow owned and operated by the Michigan Department of Transportation. In Hunter the plaintiff was injured when his vehicle was struck by a dump truck owned and operated by the City of Flint.
Both plaintiffs sued, claiming they suffered bodily injury and economic damages and were entitled to tort damages in excess of the minimum benefits available to all individuals injured by the operation, use or maintenance of a motor vehicle under Michigan’s No-Fault Automobile Insurance Law (the No-Fault Act), Compiled Laws, MCL 500.3101 et seq. However, for those injured by ownership or operation of a government-owned vehicle, the additional layer of the Governmental Tort Liability Act (the GTLA) (Compiled Laws, MCL 691.1401 et seq.) limits a person’s causes of action and recovery of damages to the more narrowly construed confines of the “motor vehicle” exception to governmental immunity. See MCL 691.1405. Under this latter provision, a person injured by the negligent operation of a government-owned motor vehicle may only recover “bodily injury” and “property” damages.
The main issue in these cases addressed an apparent conflict in the law from the two separate opinions issued by the Court of Appeals. In Hunter v. Sisco, the Court of Appeals ruled that a person may not recover noneconomic tort damages that are available to claimants under the No-Fault Act when filing a claim against the government under the motor vehicle exception. Since that exception only allowed recovery for “bodily injury” and “property” damage, and since the courts have construed the provision narrowly, recoverable damages were limited to those associated only with the physical injury to the person, i.e., medical expense damages. Thus, “pain and suffering” and “emotional distress” damages that are ordinarily recoverable in a tort action under the No-Fault Act were not available under the GTLA in actions against the government under the motor vehicle exception to immunity.
In Hannay v. MDOT, the Court of Appeals ruled that a person could claim excess tort damages (in that case excess economic benefits damages like wage loss and lost earning potential). The Court of Appeals affirmed the trial court’s award for lost wages and for lost future potential earnings damages because the plaintiff had claimed that she was prevented from completing her education to become a dental hygienist.
Since both cases were published, and both rulings came to opposite conclusions about the extent and scope of recovery of damages under the motor vehicle exception of the GTLA, there was a conflict in the law.
Applications to appeal to the Supreme Court were filed in both cases. The Supreme Court initially denied the application in the Hunter case. It granted the State’s application in the Hannay case, and then subsequently granted a motion for reconsideration in the Hunter case after it became evident that resolution of both cases was necessary to address the fundamental underlying issues.
The Supreme Court’s opinion, joined by all of the Justices, with Justice Cavanagh concurring in the result only, is surprising in many respects. Although the Supreme Court has for the better part of 40 years narrowly construed the exceptions to governmental immunity to include only those damages clearly identified as available to claimants under the GTLA in actions against the government, this principle of interpretation does not control the Court’s disposition of the result in this case. Rather, the Court reasons that since the common-law definition of the term “bodily injury” prior to the 1964 passage of the comprehensive GTLA included pain and suffering and noneconomic damages for the claimant, and since the common law had not been explicitly overruled by the Legislature in its passage of the GTLA, the term continued to mean that such damages are recoverable to claimants.
Thus, the “tort damages” available to individual claimants under the No-Fault Act are also available to claimants who can prove such injuries and damages in actions against the government.
The Court comes to this conclusion despite very recent enunciations concerning the prioritization of the Legislature’s primary authority to define the law even in the face of prior judicial interpretations of the law, i.e., common law made by the decisions of the Supreme Court. Further, the Court has also clearly indicated for decades that the GTLA requires even greater deference to the Legislature because it alone is the expression of the People’s will to be haled into court and answer for claims against the government. Indeed, the Court has repeatedly stated that private and government actors are treated differently when addressing claims against them.
The Court’s opinion also does not address how the government can ever be held to the same standards and duties of an ordinary civilian under the auspices of the No-Fault Act. The No-Fault Act provides that all Michigan citizens are responsible to provide primary no-fault benefits without regard to fault. The GTLA requires a showing of fault, i.e., negligence, against the government in order for a claimant to be able to invoke the jurisdiction of the courts and to be entitled to damages. Even though the No-Fault Act does provide for “tort damages” when a claimant can prove they suffered a “threshold injury”, i.e., an injury that causes serious impairment of a body function, this does not explain how and why the government must be subject to the same system applicable to other citizens in Michigan. Another principle that the Supreme Court has adhered to since the beginning of statehood in Michigan, at least until now, is that the immunity of the government is jurisdictional. Thus, litigation and liability can only be pursued via those means expressly defined by the Legislature as allowing suits against the government. Otherwise, there is no consent, implicit or otherwise, to subject to the government, i.e., the People, to other liability and “no-fault” schemes under Michigan law.
Although this issue was not directly implicated in these cases, the failure to address it and answer the question in explaining that the government can indeed be held liable in the same parameters of liability and fault as ordinary citizens under the No-Fault Act blemishes an otherwise fairly visible and consistent image in the tapestry of jurisprudence created by the Court when addressing governmental liability in Michigan.
It is unfortunate that this opinion contains this evident erosion of the Court’s prior jurisprudence interpreting the GTLA. It does not solidly adhere to the Court’s previously consistent themes in addressing governmental immunity cases post-1964 passage of the GTLA. Because the term “bodily injury” exists in other exceptions to governmental immunity, this opinion will provide an opportunity for those seeking to expand the narrowly construed exceptions to the government’s liability. It will also lead to additional and more strenuous litigation efforts against the government. And, it will result in larger payouts by the government for damages claims under the GTLA, whether through settlements or judgments.
On that latter note, the one bright spot in the opinion is that the Court reverses the Court of Appeals affirmation in Hannay of the trial court’s allowance of speculative “future earnings potential” damages. As mentioned, the Plaintiff claimed entitlement to future earnings as a dental hygienist, even though she never finished her educational certification for that particular job. The trial court held that but for the motor vehicle accident, the plaintiff would have been accepted into a “dental-hygienist” program, would have graduated from that program, and would have been employed at least 60% of the time at the rate of $28 per hour. The Court reasoned the damages award was far too speculative. The plaintiff did not prove by a “preponderance of the evidence” that she would have earned such wages if not for the accident. “The number of conditions that had to be satisfied before Hannay could have been employed as a dental hygienist indicated that this case involved more than the inherent uncertainty of work-loss claims in general, rendering the award impermissibly contingent and speculative.” Syllabus, and Slip. Op. at p. 38.
I continue to diligently monitor this and all other cases touching on the government’s liability and exposure under the exceptions to the GTLA. It is unfortunate that this particular case appears to be a setback in the otherwise strong opinions issued by the Court in the past decade when addressing actions against the government.
My earlier posts about these cases can be found at the following links:
Supreme Court Amicus Curiae Brief Filed in Support of State’s Appeal in Motor Vehicle Exception Case
I have been directly involved in at least four cases as the government’s appellate attorney (Odom v. Wayne County, Hamed v. Wayne County, Atkins v. SMART Bus, and the Court of Appeals opinions in Gentry v. Wayne County and Truett v. Wayne County), and tangentially involved writing as amicus curiae in many others, which have demonstrated and continued the trend the government and its individual actors should be protected to a great degree to allow the smooth and uninterrupted operation of government affairs in day-to-day life. I continue to believe that unnecessary litigation and large damages claims are inconsistent with this. The Michigan Supreme Court’s decisions, which I secured in Odom, Hamed, and Atkins, as well as the Court of Appeals opinions in Gentry and Truett, were instrumental in advancing this overarching theme that should be the focus of those defending actions against the government.
If anyone has questions about any of these opinions, please call the Law Offices of Carson J. Tucker.
Effective appellate representation demands different skills than those required by litigation attorneys. Mr. Tucker is 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, Mr. Tucker is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.
Mr. Tucker’s research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provides his clients with efficient and immediate assistance with complex and high-exposure cases.
Mr. Tucker is 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.
During the past decade, Mr. Tucker has been responsible for several seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.
Because of his specialized knowledge and focus on appellate law and his recognized expertise, Mr. Tucker has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.
Mr. Tucker presented direct representation to the defendants and prosecuted the entire appeal, including all appellate briefings and oral arguments before the Court of Appeals and Supreme Court in the following cases, among others:
Mr. Tucker has also served as special appellate counsel for governmental entities and organizations in writing amicus curiae briefs in the Supreme Court and Court of Appeals in the following cases, among others:
Mr. Tucker can be reached at +17342183605.
In a much awaited opinion, the Michigan Supreme Court has held that a claimant may recover “nonecconomic damages” such as “pain and suffering” and “emotional distress” damages and excess “economic damages” in actions against the government under the “motor vehicle” exception to governmental immunity.
Two lower appellate court cases came to opposite conclusions about whether the term “bodily injury” in the motor vehicle exception, Compiled Laws (MCL) 691.1405, including such excess economic and traditional, tort “noneconomic” damages.
Before this opinion, the Governmental Liability Act (GTLA) had been construed narrowly to the strictest confines of the definition of terminology used in that act. However, the Court here rules that because the common law jurisprudential definition of the term “bodily injury” had traditionally included these types of damage claims, and because the Legislature never explicitly reined in that definition, even after passage of the 1964 GTLA, the statutory term as used in the “motor vehicle” exception, and, likely in other sections of the GTLA will make such damages available to the claimant in actions against the government.
Read the opinion here: Hannay-Hunter Opinion Supreme Court
I submitted an amicus curiae brief in the Michigan Supreme Court calendar session on this case for Michigan Townships Association and the counties of Macomb, Oakland and Wayne. (99705-sc-amicus-curiae-br).
I also participated in a panel discussion about this case at the State Bar Negligence Law Section meeting in September.
Read more extensively about this case, including the lower appellate court opinions in my previous post, here:
If anyone has questions about this case and its impact, please let me know.
The Court of Appeals (in a 2-1 majority opinion) issued a significant case yesterday, albeit unpublished, holding that an employee driving a company vehicle to a job site location in another part of the state was not “in the course and scope of his employment” when injured in a traffic accident while en route to the job site.
The Court of Appeals opinion is here: Little, et al. v. Kappen Tree Service, et al. COA (1).
The Court of Appeals cites the general rule that ordinarily injuries received while employees are traveling to and from work are not compensable by the employer’s workers’ compensation insurance coverage because such injuries do not “arise out of and in the course of” employment within the meaning of the Michigan Workers Disability Compensation Act (WDCA), MCL 418.101, et seq. MCL 418.301 requires for an injury to be compensable it must both “arise out of” and occur “in the course of employment”.
The Court of Appeals reasons that the employee faced no special risks other than those faced by the ordinary commuter to and from work.
Judge Hoekstra dissents. He reasons that the employee was performing a “dual purpose” and therefore an exception to the “going to and coming from” exclusion applied. The “dual purpose” was the employee bringing another employee to the job site so that employee could drive another vehicle home the day of the accident. Judge Hoekstra would have found that the employee was “in the course and scope of his employment” and therefore covered by workers compensation, rather than no-fault automobile liability insurance.
This is an important case given the many disputes between no-fault automobile liability insurers and employers and their workers’ compensation insurers when an accident occurs in a vehicle while the employee is traveling to or from work, or driving his or her vehicle during the work day.
If anyone has questions regarding this decision, please contact Carson J. Tucker, JD, MSEL at (734) 218-3605.
One of the most important ways insurance companies and businesses can manage their assets and control their liability is to think creatively about insurance and insuring agreements in managing their day-to-day business operations. Disputes, claims, and yes, lawsuits often arise in the ordinary course of thriving and vibrant businesses. This is a natural consequence of a successful business managing risk in the process of seeking to maximize profits.
As insurance coverage counsel, I regularly advise businesses and insurance companies as to their defense and indemnity obligations under commercial general liability, errors and omissions, and workers compensation insurance policies, among others.
I have assisted insurance companies and businesses by guiding them through various aspects of coverage, including initial assessment of coverage positions, preparation and drafting of coverage opinions, including preparing related correspondence to the insurers or insureds, and other parties involved, e.g., coverage denials, reservation of rights, etc., and pursuing, where appropriate, declaratory judgment and/or indemnity and subrogation actions with respect to coverage issues.
In this capacity, I have had several significant successes in both state and federal courts in securing judgments for businesses and insurance companies or in forcing agreeable settlements with insureds and other insurance companies. Some of the cases and issues I have worked on include the following:
Feel free to call or contact me if your business would like to explore options regarding insurance coverage and recovery.
It is the eve of trial. The trial court judge, bent on forcing you into an unsavory settlement with opposing counsel, has granted opposing counsel’s motion in limine to exclude your proposed evidence from the jury’s consideration. This is a key part of your client’s case and without it your client may be facing 100 percent of the responsibility for the damages alleged as a result of the significant allegations in the underlying lawsuit. Sound familiar?
Is there a way to even the playing field, or, even better, to have the trial court’s errant legal rulings on the motion corrected? Or, do you simply capitulate?
There is still hope. And it can be done, even during the trial.
Carson J. Tucker specializes in prosecuting high-stakes, last-minute emergency appeals seeking interlocutory review of suspect legal rulings. After all, if the trial court is wrong, or even if the Court of Appeals agrees to take a closer look, this can significantly alter the posture of the parties to the lawsuit.
I am experienced and adept 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 ruled upon as soon as possible.
In most cases, these actions have stopped the trial from immediately proceeding. In many of the cases handled by Mr. Tucker, these actions have even resulted in the creation of precedent from the Michigan Court of Appeals and Michigan Supreme Court that changes the entire make-up of the pending lawsuit. In the least, this type of action can properly re-orient the parties positions and attitudes with respect to settlement demands.
With adept and efficient appellate counsel ready to assist at a moment’s notice, your case can be quickly analyzed by objective review of the facts of the case, the strengths and weaknesses of the legal issues being addressed, and the potential for success at the appellate level. It’s never too late to act until your case is submitted!
I have real stories and experiences to share from lawsuits in which our clients and the other law firms we have assisted have been able to save thousands of dollars in litigation costs and, more importantly, in damages awards or forced verdicts because I have been able to step in and make new law, or at least bring the parties together to discuss realistic settlement options.
Please do not hesitate to contact me if you are contemplating an appeal, any appeal.
Last Friday, September 19, 2014, I participated in a panel discussion at the Negligence Law Section breakout at the state bar conference in Grand Rapids to discuss the Michigan Supreme Court’s upcoming (October 8) hearing of oral arguments in the calendar cases of Hunter v. Sisco, et al, and Hannay v. MDOT, the latter in which I submitted an amicus curiae brief for Michigan Townships Association, and the counties of Macomb, Oakland and Wayne (99705.sc.amicus.curiae.br).
Here is the two-paged handout distributed at the session. (Hunter-Hannay Venn Diagram Final.9.17.2014.1226 and Hunter Hannay page 2).
Based on the outcome of that event, there is still much debate about the result in Hunter (no noneconomic damages can be awarded against the government under the motor vehicle exception to governmental immunity, MCL 691.1405, even though such damages are ordinarily available against “civilian” defendants under Michigan’s Automobile Insurance “No-Fault” Act, MCL 500.3135).
Of course, Hannay came to the opposite conclusion, only with respect to “excess” economic (wage loss) and future earning potential, which is why the cases have been consolidated.
Some issues raised at the discussion concern how to quantify or identify “bodily injury” damages.
I believe this would be medical expenses related to the physical injury, only. However, such “damages”, and liability therefor, are ordinarily borne by the first-party, no-fault carrier, not the third-party tortfeasor under MCL 500.3135.
Thus, how can any liability be imposed against the government when you mesh the outcome of applying the GTLA and the No-Fault Act to motor vehicle accidents in which the government’s negligent operation of a motor vehicle causes injury. See the Venn Diagram I created (the overlap, if any, is the real sticking point and where the case law and/or the legislation will have to be reconciled, eventually).
One suggestion I have made is that perhaps the first-party, no-fault carrier can bring a subrogation action against the government if the PIP carrier can prove negligence and injury, just as a PIP carrier might seek subrogation under MCL 500.3109 from another carrier that is otherwise liable according to the law. In my work on worker’s compensation cases, we see this a lot. The no-fault carrier will seek to implicate the worker’s compensation carrier claiming the injuries incurred in an auto accident arose out of and in the course of employment, and thus, are the primary responsibility of the worker’s compensation carrier. Under the statute, the no-fault carrier steps into the shoes of the plaintiff seeking recovery of the benefits, and thus, the no-fault carrier would have to prove negligence and liability on the part of the government under the motor vehicle exception. I think it could be argued MCL 500.3109 would work the same way vis-à-vis the government. Although, this is just a theory. Hunter / Hannay are not likely to address this latent issue.
Another issue that arose was the indication that even before the 1965 GTLA accidents caused by government owned/operated motor vehicles allowed for recovery of damages that were similar, if not identical in nature to noneconomic damages, i.e., pain and suffering, mental anguish, etc.
Why is the term “bodily injury” in the GTLA now restricted only to physical injury? My answer would be the strict construction of statutes waiving the government’s immunity forbid court’s from expanding the meaning of terms. Although, the counter to that is that the legislature adopted the term in the motor-vehicle exception with the “common law” definition allowing for such expanded damages in the first place. This would be a good argument if not for the fact that we are discussing governmental immunity from liability and suit. The assumption is only the legislature can waive the government’s immunity, and therefore, if the liability is to be “expanded” it has to come in express language. The courts can restrict or limit the meaning of the terms in the GTLA exceptions, but they cannot expand the meaning. This is well-established in Michigan case law.
Another theory I raised in my amicus brief for MTA / Oakland, Wayne, and Macomb counties was whether the government can ever be liable for first-party PIP benefits under the no-fault act when the motor vehicle exception requires a demonstration of “fault” on the part of the government.
This is also not an issue that will be addressed by Hunter / Hannay, but given the jurisdictional nature of government immunity, and the fact the government is immune from liability unless within the explicit legislative exceptions of the GTLA, it is a question that will have to be answered eventually (even thought the government has presumed it is subject to the No-Fault Act for the more than 40 years of the latter’s existence, and of course, continues to participate in the system as both a No-Fault “PIP” carrier (either self-insured, or through an auto insurance carrier (or both))), and as a presumptive third-party tortfeasor.
The question was also raised why, if Hannay came out as a published opinion before Hunter, which it did, why Hunter did not follow Hannay under the “first out” rule. Although, that matters little if the Supreme Court has consolidated the cases to address the issues.
Finally, as I noted in my presentation, Hunter actually retained the “threshold injury / serious impairment” analysis even though it rules there are no noneconomic damages available under the No-Fault Act.
What does this mean? Why would the threshold injury analysis even matter if the government is only responsible for “bodily injury”? Does this mean that the government is only responsible for serious impairment or threshold “bodily injury” and nothing below, or less than that?
I doubt this is what the COA panel in Hunter meant, but it was a curious statement that they made at the end of the opinion. Perhaps they were trying to reconcile their opinion with the Hardy v. Oakland County case in which the Supreme Court held that a plaintiff suing under the motor vehicle exception, MCL 691.1405, still had to prove threshold injuries under MCL 500.3135 of the No-Fault Act.
It will be interesting to see oral argument in the case on October 8.
Carson J. Tucker has participated in and argued some of the most significant governmental immunity cases in Michigan during the past decade.
Mr. Tucker presented direct representation to the governmental defendants and prosecuted the entire appeal, including all appellate briefings and oral arguments before the Court of Appeals and Supreme Court in the following cases:
In addition, Mr. Tucker has provided direct support to governmental entities in filing “friend of the court”, i.e., amicus curiae briefs in support of the governmental defendants in the following cases:
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.
The Court of Appeals has released two cases that appear to undermine the meaning of the “statutory” “gross negligence” exception, MCL 691.1407(2) under Michigan’s Governmental Tort Liability Act (GTLA). The GTLA, MCL 691.1401 et seq., provides immunity for law enforcement officers and other individual governmental employees engaged in the discharge of a governmental function and while performing duties authorized by their position. The only exceptions to an individual governmental employee’s immunity are the statutory “gross negligence” exception and the “bad faith / intentional tort” exception, the latter of which was articulated by the Michigan Supreme Court in the seminal case of Odom v. Deputy Christine Kelly and Wayne County, 482 Mich. 459 (2008), a case I successfully briefed and argued in the Supreme Court on behalf of Wayne County.
MCL 691.1407(2) provides that a governmental agency’s employee is “immune from tort liability” caused by the employee “while in the course of employment” if all of the following are true: (1) the employee is acting, or reasonably believes he or she is acting, within the scope of his or her authority; (2) the governmental agency is engaged in the exercise or discharge of a governmental function; and (3) the employee’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage. MCL 691.1407(2).
The phrase “gross negligence” in the GTLA is a “statutory standard”, and thus is defined and applied by reference to the statute and the case law interpreting it. See Costa v. Community Emergency Medical Services, Inc., 475 Mich. 403, 411-412 (2006), see also Odom, supra at 470. Thus, common-law definitions and applications of “gross negligence” are not binding.
For example, an important product of limiting the standard by statute is exemplified in the Supreme Court’s decision in Robinson v. City of Detroit, 462 Mich. 439 (2000), which ruled, inter alia, that the statute required the employee’s conduct to be “the proximate cause” of the harm. Id. at 445-446. This means liability against the governmental employee, in that case law enforcement officers, can be imposed under the gross negligence exception only where the employee’s conduct is “the one, most immediate, efficient, and direct cause…of injur[y]….” Id. This is a crucial principle as in many cases the actions and reactions of governmental employees (especially, as in these cases, first responders and law enforcement officers) often occurs as the result of someone else’s negligent or criminal actions. Since the statute requires to prove “gross negligence” against the employee, it must be shown the employee’s conduct was the proximate cause, i.e., the most immediate, efficient, or direct cause of the injuries complained of, liability can often be avoided by demonstrating the negligence of another, or even a break in the direct causal chain between the officer’s alleged “gross negligence” and the harm complained of.
The statute further defines “gross negligence” as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(7)(a) .
Importantly, although this is a substantive legal issue that has not been definitively resolved, the burden of pleading a cause of action in avoidance of governmental immunity rests on the claimant. Compare Mack v. City of Detroit 467 Mich. 186 (2002), with Odom v. Wayne County, 482 Mich. 459 (2008). The principle established in Mack is based on the jurisdictional principle of governmental immunity adhered to in Michigan. Therefore, “immunity” is an inherent characteristic of government and cannot be waived without explicit consent of the Legislature. Thus, merely pleading facts in avoidance of immunity, without more, is insufficient to invoke the subject-matter jurisdiction of the courts over the cause of action.
Basically, allegations in a complaint should be supported by undisputed facts in order to lift the veil of immunity protecting the government. However, this is not how the courts have interpreted and applied the principle of governmental immunity. In Odom, supra, the Court made a distinction between actions brought against governmental entities, and actions brought against individual governmental employees. In the latter case, for some unexplained reason, the Court noted that plaintiff’s did not bear the burden of pleading and proving an action in avoidance of immunity. The ruling was not dispositive in the case, and thus, the case itself does not serve as precedent for the principle stated.
In these two recent cases, however, this application led the courts to find “questions of fact” based on alleged disputed evidence, and the allegations in the plaintiffs’ complaint alone, which were not necessarily supported by demonstrations of undisputed fact.
The facts of these two cases are remarkable. In Estate of Young v. Pierce, the defendant, an emergency “first responder” employed by Montcalm County was responding to an emergency dispatch when he ran through a stop sign and crossed into an intersection. His vehicle struck another vehicle killing the two occupants. The Court of Appeals notes it was undisputed that the defendant ran through the stop sign, and that traffic on the cross road had the right of way. According to witnesses, the defendant was traveling at a high rate of speed (estimated at 80 mph) approximately 30 seconds before he arrived at the intersection; he had not activated his emergency lights or sirens, and he did not stop or slow down at the intersection. The defendant claimed he did slow down and look before entering the intersection. He also testified that he had activated his siren.
The trial court denied summary disposition on governmental immunity grounds per MCR 2.116(C)(7). The Court of Appeals affirmed. The Court noted there were “disputed factual” questions that could not be resolved without referring those questions to the scrutiny of a trial by jury. Principally, the Court of Appeals panel noted the question of whether the defendant’s conduct rose to the statutory standard of “gross negligence” sufficient to withstand the governmental immunity defense was a question of fact to be resolved by the jury.
In Howard v. Pena, the defendant, a state trooper got lost while driving to a scheduled event for which he was assigned to provide law enforcement assistance. He made a u-turn on a one-way street and crashed head-on into the plaintiff’s vehicle. The plaintiff suffered serious injuries. Testimony and other evidence presented demonstrated that there were signs indicating that the street was one-way. The state trooper testified he was aware of the traffic regulations, but did not know that he was turning the wrong way onto a one-way road.
On reconsideration of an earlier dismissal order, the trial court ruled that because defendant had admitted to ignoring certain traffic control devices in violation of the law there was a question of fact as to whether his conduct rose to the level of gross negligence.
The Court of Appeals affirmed. The Court applied the pleading rule that all allegations favored plaintiff, and thus, a question of fact remained as to whether the defendant’s conduct was “grossly negligent”.
These two cases highlight separate extant problems in the application by lower appellate courts of the statutory “gross negligence” standard. In Estate of Young, supra, the Court allowed unsupported factual allegations to substitute for the type of supported factual allegations that should be required to prove in avoidance of immunity. The Court of Appeals has stated, and the Supreme Court has agreed on more than one occasion, that governmental immunity means more than immunity from liability; it is supposed to provide immunity from litigation, i.e., the costs and expenditure of time and resources the government must commit to defend lawsuits based only on the unsupported allegations in a complaint. If immunity from litigation can be avoided simply by factual allegations and unsupported claims then the purpose of immunity is irrelevant. While the factual dispute in this case is whether and to what extent the defendant heeded the stop sign and provided proper warning, there was no question that he was responding to an emergency. And, despite how the lower appellate courts have applied “gross negligence”, it is a standard that requires nearly culpable conduct, recklessness, and a demonstration of lack of care or compassion about the consequences of one’s conduct. It is a standard that should be difficult to prove.
In Howard, the issue is a bit more subtle. The lower court, and apparently, the Court of Appeals, latched on to the fact that the state trooper knew and disregarded the basic rules of traffic regulation. But the panel does not demonstrate that there were factual disputes about the defendant’s state of mind. Thus, although the trooper was not responding to an emergency and may have had more time to heed the conditions of traffic and his whereabouts, it seems the panel substitutes a disregard for the traffic regulations, for the statutory standard which requires a showing of a mental state rising to the level of reckless disregard and lack of concern about whether injury results in engagement of the conduct at issue. The analysis in the latter case may have been sound if there was direct evidence that the trooper was intentionally turning the wrong way to get to the location he was supposed to be at on time. In other words, if there was proof that the trooper knew he was turning the wrong way, and did so anyway because it was a short cut to the venue. That seems to be the type of proof required by the statute as a reckless disregard and a willful ignorance of the potential consequences.
These two cases present difficult factual circumstances. However, the rulings of law appear to allow unwarranted expansion of the “gross negligence” exception. It will be interesting to see whether further appellate review will occur.
Carson J. Tucker has participated in and argued some of the most significant governmental immunity cases in Michigan during the past decade.
Mr. Tucker presented direct representation to the governmental defendants and prosecuted the entire appeal, including all appellate briefings and oral arguments before the Court of Appeals and Supreme Court in the following cases:
In addition, Mr. Tucker has provided direct support to governmental entities in filing “friend of the court”, i.e., amicus curiae briefs in support of the governmental defendants in the following cases:
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.
In Jones v. Home Owners Ins. Co.COA, a 2-1 unpublished opinion, the Michigan Court of Appeals held that a claimant suffering disabling injury in an auto accident was entitled to no-fault wage-loss benefits under Michigan’s No-Fault Act, characterizing her as “temporarily unemployed” under MCL 500.3107a.
MCL 500.3107 of the No-Fault Act provides for first-party insurer “work-loss benefits” for up to three years after a claimant suffers injury in an automobile accident. MCL 500.3107(1)(b) defines “work loss” as “consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he or she had not been injured.” A party claiming work-loss benefits under this provision must show actual wage loss; a mere loss of earning capacity is not sufficient. MCL 500.3107(1)(b); Davis v. State Farm Mutual Auto Ins. Co., 159 Mich. App. 734 (1987).
MCL 500.3107a takes this measured definition of work loss and applies it to the “temporarily unemployed”. Thus, an insured may be found to be “temporarily unemployed” where he or she is, or would have been, but for the accident, actively seeking employment and there is evidence showing the unemployed status would not have been permanent.
A claimant seeking benefits under this provision must provide “independent corroboration” of both intent and actions taken to secure employment during the period of “temporary unemployment”. Bare assertions of such intent are insufficient to invoke the right to these specific no-fault benefits.
In the instant case, the claimant was unemployed when she was injured in an automobile accident. She sought first-party “wage-loss benefits” from her no-fault insurance carrier. The insurer denied benefits on the basis that she was unemployed at the time of the accident and her circumstances did not meet the definition of “temporarily unemployed” within the meaning of MCL 500.3107(b)(1) and MCL 500.3107a. The insurer conceded the plaintiff had been actively seeking work at the time of her injury, and during the period thereafter. However, the insurer argued there was no evidence of any actual job offer and thus the evidence failed to establish she was only “temporarily unemployed” before the accident.
The question was presented to a jury. The jury found that the plaintiff satisfied the requirement of “temporary unemployment” under the No-Fault Act and ordered benefits to be paid by the insurer.
The Court of Appeals affirmed, holding that plaintiff presented sufficient evidence of her job search efforts, and there was a reasonable likelihood that she would have been hired for a particular job opportunity she was contacted about days before the disabling accident.
Judge Saad dissents. His opinion points out the problem with this provision of the No-Fault Act, which appears to allow wage-loss benefits to be awarded based only on speculation that a particular job opportunity would have come to fruition.
Judge Saad concludes that because the plaintiff could not prove a causal connection between the accident and an actual loss of income, benefits should not have been awarded. Under MCL 500.3107(1)(b) a claimant seeking work-loss benefits must suffer wage loss or loss of income they would have earned but for the accident. Judge Saad contends that this “measured definition” of “work loss benefits” then must be read in conjunction with the “special category” of accident victims: the “temporarily unemployed”. That provision allows wage loss benefits to be awarded where a person is “temporarily unemployed at the time of the accident or during the period of disability….” MCL 500.3107a.
Reading the two provisions together, Judge Saad contends a person’s search for employment before and after an accident does not establish the prerequisite causal connection between the accident and the wage loss. Because plaintiff’s evidence that she was a candidate for a potential job was not demonstrable proof that she would have actually secured such employment, she could not demonstrate she was temporarily unemployed, or as Judge Saad puts it “she provided no ‘evidence showing [her] unemployed status would not have been permanent if the injury had not occurred.'” Slip Op. at 3.
This is an important decision, but it does little to aid the apparent gap in the statutory language that appears to allow wage-loss benefits to be awarded to someone who is in fact, like Plaintiff, unemployed (whether temporarily or not) at the time of the accident. The statute provides no guidance on the necessity of showing a status other than unemployed before the accident, and whether that status was close in time to the accident, or, as in some cases, years prior. In other words, the statute appears to allow an award of wage-loss benefits based merely upon the fact of a prior job, and a claimant’s assertions that they were seeking employment at the time of the accident.
Although the majority appears to follow the law in this case, and the facts appear to fulfill existing judicial interpretation of the meaning of “temporarily unemployed” under MCL 500.3107a, there are cases in which this provision can be abused precisely for the reasons set forth in Judge Saad’s dissent.
How can an insurer counter evidence proffered to demonstrate that a claimant ‘s “unemployed status would not have been permanent”?
Perhaps more searching inquiry should be made regarding the diligence and scope of the job search effort, the individual’s post-injury wage-earning capacity, and job availability in general. What if the economic downturn makes it impossible for even the most qualified individual to obtain a job paying wages similar to those upon which the award is based, i.e., the last preceding job? In such circumstances, how “temporary” is “temporary unemployment” if not for the entire three-year period that no-fault benefits are available under the No-Fault Act?
Perhaps vocational and rehabilitation expert evidence should be used to establish these factors, as with worker’s compensation claimant’s burden to prove an entitlement to total, as opposed to partial, or no, wage-loss benefits, i.e., the “disability and wage loss” provisions of MCL 418.301 of the Workers Disability Compensation Act.
I suspect the decision will be appealed to the Supreme Court for further evaluation.
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.
The Michigan Supreme Court has declined to review an appeal of the Court of Appeals opinion in Lorenzo Tienda v. Integon National Insurance, which held that a migrant farm worker who maintained no permanent residency in any state resided in Michigan for purposes of the No-Fault Automobile Insurance Act’s provisions addressing priority among automobile insurers for payment of personal insurance protection (PIP) benefits.
The Supreme Court heard oral argument on whether to grant the application or take other steps to address the Court of Appeals opinion. It issued the following denial order on May 16, 2014: Lorenzo Tienda v. Integon Supreme Court Order.
Justice McCormack concurred, but urged the Legislature to take up the issue of the definition and application of residency under the No-Fault Act, stating:
Although I agree with the Court of Appeals that the insured was not an out-of-state resident at the time of the accident, I believe that the Legislature might wish to review the language of MCL 500.3163 because the statute would seem to place liability on Michigan’s Assigned Claims Facility even when an out-of-state insurance company has collected monthly premiums for an out-of-state insurance policy.
The Court of Appeals ruled:
“The answer to the question of which insurer, Integon or Titan, is responsible for personal protection insurance (PIP) benefits arising out of a Michigan automobile accident depends on where the insured…resided at the time of the accident. Because of its peculiar facts, this case raises a question of first impression because Lorenzo, an itinerant agricultural worker, did not have a “permanent” residence in any state, but lived, worked, and resided in three different states where he picked fruit on a seasonal basis. At the time of the accident, Lorenzo lived and worked in Michigan, had all his possessions with him in Michigan, and had no other residence or place he looked to or could be regarded as his home. Accordingly, for purposes of the no-fault act, Lorenzo was a resident of Michigan, and neither his out-of-state policy with Integon nor Integon’s choice to also do business in Michigan makes Integon liable for plaintiffs’ no-fault benefits. Instead, and contrary to the trial court’s ruling, Titan is the insurer responsible for the payment of plaintiffs’ PIP benefits as the carrier assigned by the Assigned Claims Facility.”
Read my prior post explaining the facts of this case and the Court of Appeals ruling here:
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. Mr. Tucker regularly participates in cases before the Supreme Court and Court of Appeals on issues touching many subject-matter areas of civil litigation, including insurance coverage disputes such as that at issue in the instant case.
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
Amicus Curious 