Lex Fori PLLC and Carson J Tucker File Pro Bono Supreme Court Application for Disabled Veteran

In March 2020, Attorney Carson J. Tucker of Lex Fori PLLC filed another pro bono Supreme Court application in Michigan seeking to ensure that federally protected veterans’ disability benefits are used for the purpose that Congress intended, i.e., to support and provide for disabled veterans whose service to the United States resulted in their injuries. Congress has passed laws pursuant to its enumerated Military Powers in the Constitution providing veterans with benefits since the beginning of the republic. The federal statutes also affirmatively shield certain veterans’ benefits from any state court process and jurisdictionally prohibit any legal process from being used to take these benefits.

APPLICATION FOR LEAVE TO APPEAL

Part of Mr. Tucker’s practice is focused on providing pro bono and low bono legal representation to servicemembers and veterans throughout the country and abroad. It makes up about 30 to 40 percent of his law practice at any given time. As an appellate law expert admitted to the United States Supreme Court and other state courts and federal courts, Mr. Tucker also provides amicus curiae (friend of the court) briefs to various entities and organizations to protect their interests in cases addressing legal issues of significant importance to those organizations.

Lawyer’s Weekly Chronicles Appellate Court Victory by Law Offices of Carson J. Tucker

The lawyer’s weekly recently published an article on the Menard v Imig case in which I successfully represented the Macomb County governmental defendants in the Court of Appeals, briefing and arguing this case addressing governmental immunity and the highway defect exception under the Governmental Tort Liability Act.

Macomb County Road Department Not Liable

 

UPDATE – Howell v. Howell – Supreme Court Rules State Courts Have No Authority to Divest Military Veterans of Retirement and Disability Benefits

As a follow up on our bulletin yesterday we provide the following summary of the Supreme Court unanimous (8-0-1) opinion in Howell v. Howell, agreeing with the “friend of the court” brief written by Carson J. Tucker for Veterans of Foreign Wars and Operation Firing for Effect.

On May 15, 2017, the United States Supreme Court released its opinion in the case of Howell v. Howell, Supreme Court Case No. 15-1031. In a unanimous 8-0 decision (Gorsuch, J., not participating), the Court held that state courts were pre-empted by federal law from divesting military veterans of their non-disposable retirement and disability pay to make up for losses to former spouses due to the military veteran’s waiver of his or her disposable retirement pay. This decision, the Court ruled, was dictated by pre-existing federal law as enunciated in 1981 by the Court in McCarty v. McCarty, 453 U.S. 210 (1981), the Uniformed Services Former Spouses Protection Act (USFSPA), 10 U.S.C. § 1401, et seq., and Mansell v. Mansell, 490 U.S. 581 (1989).

This decision is significant in several respects. First, the Court held that state courts had no authority to order a veteran to indemnify or reimburse a former spouse for the loss of his or her portion of the veteran’s disposable retirement pay when the veteran exercises his or her right to waive that pay to receive service-related disability. This, the Court held applied whether the veteran waived his retirement pay before, during, or, as in this case, long after the divorce. In support of this holding, the Court reasoned that Mansell v. Mansell, the USFSPA and pre-existing federal law completely pre-empted the states from treating waived military retirement pay as divisible community property.

Second, relying on 38 U.S.C. § 5301, the Court addressed the former spouse’s argument that she had a “vested interest” in the property of the veteran such that the state court had authority to force the veteran to part with his military benefits to make up for the amount she lost as a result of his post-divorce waiver. The Court specifically stated: “State courts cannot ‘vest’ that which (under governing federal law – again citing 38 U.S.C. § 5301) they lack authority to give.”

Third, the Court rejected any state court orders trying to get around the restrictions of the USFSPA and Mansell by characterizing the payments to the former spouse as indemnification or reimbursements. To all those multitude of state courts that have been violating the law for the last 30 years the Court said simply: “Regardless of their form, such…orders displace the federal rule and stand as an obstacle to the accomplishment and execution of the purposes and objectives of Congress.” The Court concluded: “All such orders are thus pre-empted.”

Finally, the Court reiterated, as OFFE and VFW had urged in their amicus curiae brief, that the “basic reason” of federal law for why Congress intended to exempt military retirement pay from state community and equitable property laws applies to disability pay. The Court also made sure in its opinion to state, unequivocally and without reservation that McCarty’s rule of pre-emption was still good law, pre-existed the USFPA and was controlling on the question of a state court’s authority and jurisdiction over military retirement and disability benefits that were designated by Congress as purposed for the specific individual. Military benefits are a “personal entitlement” and through federal legislation Congress “intended that military retired pay ‘actually reach the beneficiary.’”.

In conclusion, the Court noted that the state court’s order rested entirely on the purported need to restore the former spouse’s lost portion as a result of the waiver. Such an order was void and unauthorized because it was prohibited by federal case law and federal statutes, particularly 38 U.S.C. § 5301 and 10 U.S.C. § 1408. The Court again emphasized that a former spouse has no vested interest to receive indemnity, offset, compensation or reimbursement from funds of the veteran.

Concurring in the totality of the opinion, Justice Thomas noted that there was no need to even discuss the purpose and intent of Congress because states were simply pre-empted by federal law from diverting the veteran’s funds.

Suffice it to say that the Supreme Court’s unanimous opinion clearly rebukes those many, many states that have issued decisions in direct contravention of this rule of federal pre-emption. Our amicus curiae brief detailed the history of federal military benefits and explained the fundamental underlying reasons Congress’ authority in this area trumps all state court orders to the contrary. Indeed, the Court expressly says that State courts have no authority to vest these benefits in the former spouse whether or not they are received by the veteran before, during or long after divorce proceedings. Importantly, the Court relies on 38 U.S.C. § 5301 in several parts of its opinion concerning this pre-emption and lack of authority and jurisdiction of the trial court over these funds.

Therefore, this pre-emption is absolute and as Justice Thomas’ concurrence clarifies, there is no need to discuss the intent or purpose of federal statutes providing veterans benefits, because the authority to do so springs from the plain language of federal legislation providing veterans the exclusive right to these funds, and the long line of Supreme Court decisions holding same. That authority further springs, as we demonstrated in our amicus curiae brief from the enumerated Military Powers of the Congress entrenched in the Constitution and buttressed by the unwavering operation of the Supremacy Clause, making all federal laws enacted by Congress pursuant to its enumerated powers the Supreme Law of the Land which no state legislature, judge or administrative agency can contravene.

What must not be forgotten is despite this long fought and unanimous victory, and the decision’s unequivocal reversal to all those state courts that have, without authority, divested veterans of these benefits, the state of the law prior to this decision (since at least 1989) left thousands of veterans without the federal benefits to which they have been entitled. This has resulted in the unjust and, in many cases, irreversible consequences of leaving our most vulnerable veterans who are physically and psychologically unable to continue working and living a normal life with little or no funds to survive on. It is difficult, if not impossible, to fathom the hardships this preexisting, and indeed, as confirmed by the Court’s opinion, illegitimate state of affairs brought upon our veterans during a most trying three decades of high-tempo military operations.

Carson J. Tucker operates an international legal consulting practice in Europe and the United States. Part of his practice involves writing specialized legal briefs for non-profit organizations, governmental entities, international non-governmental organizations, and collaborative groups with interests in the outcome of cases addressing issues of global and national importance.

Former Employee’s Alleged Criminal Activities Relevant to Determine “Wage Earning Capacity” for Purposes of Assessing Entitlement to Workers Compensation Benefits

In a case I brought to the Michigan Supreme Court, which remanded in Omian v Chrysler, 495 Mich. 859 (2013), to the Court of Appeals for consideration of my appeal, the Michigan Court of Appeals has now reversed the decision I originally appealed.  In Omian v. Chrysler.COA.Published, the Court of Appeals agreed that evidence of a former employee’s ability to engage in a financially lucrative criminal enterprise generally allows consideration of that employee’s ability to “continue to earn wages” despite his or her claim that a work-related injury entitles him to wage-loss benefits.  I argued that an ability to earn wages, any wages, even those gained through nefarious criminal activities, should be admissible to demonstrate that the claimant is not entitled to be paid wage-loss benefits based on a claimed disabling injury – an injury he or she claims is preventing him from earning wages in other legal and gainful employment.

Although the Court did not agree with all of my arguments, it reversed the case on the main principal espoused and directs the administrative tribunal to consider the evidence.

 

Employee’s Reporting of Potential Future Violation of Law, Regulation or Rule Sufficient to Trigger “Protected Activity” Element in Whistleblower’s Protection Act Claim

In Pace v. Jessica Edel-Harrelson, et al, issued on February 24, 2015, the Michigan Court of Appeals addressed a Whistleblowers Protection Act claim.

There are two remarkable points to the case.  The first is that the COA panel (Shapiro, Gleicher and Roynayne-Krause) holds that reporting a suspected future violation of a regulation, law or rule is sufficient to trigger the protected activity element of the WPA. 

The second aspect that is interesting is the court addresses the causation analysis under the WPA and, particularly, rejects the defendant employer’s claim that any reporting of a violation by the plaintiff was merely temporally related to the incidents which the defendant-employer claims justified the plaintiff’s termination.

 In the end, the Court of Appeals here returns the WPA claim to the trial court because questions of fact remained over whether there was ever any planned future violation of a rule (misappropriation of the employer’s funds by another employee), and whether plaintiff actually engaged in the conduct for which she was allegedly terminated (threatening and intimidating a co-employee), and whether the plaintiff could prove causation.

 

Insurance Coverage Not Available to Employer Mistakenly Listed as Insured on State-Required Workers Compensation Forms

The Michigan Court of Appeals ruled on Tuesday, February 17, 2015, that insurance coverage was not available to an employer (Delphi) merely because the insurers had errantly listed the employer on forms required to be filed with the state to notify it of the existence of workers’ compensation insurance.

Delphi had multiple subsidiaries, some of which had been and were insured by policies issued by the insurers for workers compensation claims coverage.  However, Delphi itself was self-insured, and did not therefore require or purchase workers compensation insurance from an insurance carrier.  The insurance companies had mistakenly listed Delphi, generally, rather than the insured subsidiaries, on the forms required by the state of Michigan to list and certify the existence of workers compensation insurance coverage for employers.

When Delphi entered bankruptcy reorganization in 2005, because it was self insured, insurance coverage for underlying workers compensation claims filed by employees were assumed by the state’s “self insured security fund” under Michigan law. MCL 418.537(1).  However, the state objected in the bankruptcy proceedings, and claimed that the insurers’ listing of “Delphi”, rather than the insured subsidiaries on the state-required notice forms bound the insurers to cover the claims, rather than the state of Michigan’s self-insured security fund.

When Delphi’s obligations were eventually discharged in bankruptcy, the insurers filed an adversary proceeding in the bankruptcy court (essentially the equivalent of a declaratory judgment action) asking the court to rule on the underlying issues regarding errant listing of the employer, Delphi, on the Michigan state workers compensation insurance notice forms.  While this was pending the director of Michigan’s Workers Compensation Agency scheduled a “Rule 5” hearing to determine whether the insurers were liable for the Delphi claims under the policies that had been issued to the subsidiary companies.

The bankruptcy court stayed the Rule 5 proceeding.  It determined it had jurisdiction to consider the underlying issue.  However, the Second Circuit Court of Appeals ruled that while the bankruptcy court had jurisdiction to consider the scope of coverage in the underlying insurance policies, it did not have jurisdiction to consider whether the insurers were nonetheless liable for filing the inaccurate forms in Michigan.

The insurers then filed a declaratory judgment action in the Michigan Court of Claims seeking determination of its coverage obligations under the policies for the Delphi claims.  The insurers argued that the policies controlled the obligation of coverage and not the errant listing of the wrong employer on the state-required forms.  The Court of Claims agreed and the state appealed.

The Court of Appeals affirmed, holding that the inaccurate designation of Delphi on the state-required notice forms did not trump the contractual language in the insurance policies themselves, which underwrote and insured only the subsidiary company’s workers compensation obligations.  Liability for the workers’ compensation claims filed and/or to be filed by Delphi were not covered by the insurers’ policies, which had insured only the subsidiary companies.

This is an interesting and somewhat procedurally complex case, which addresses significant liabilities that, according to the holding, will be borne by the state of Michigan, rather than by the insurers.

However, the holding and the rationale is rather unremarkable.  The underlying insurance contracts control the coverage obligations vis-à-vis the listed insureds, not another party that was not underwritten for such coverage.

Read the case here:  Ace American, et al. v. Workers Compensation Agency Director, et al.

 

 

Court of Appeals Issues Ruling On Independent Contractor Case

The Michigan Court of Appeals issued its opinion in a case I briefed (92675_Moore_Appellant’s_Brief_313440.12.26.2013.1838)  and argued in the Court of Appeals last summer, ruling consistent with the Supreme Court’s recent disposition of workers compensation insurance coverage for subcontractors holding themselves out to be employers, while claiming to be employees.

The facts involved a workers compensation claimant who was hired to do a four-hour roofing job by the putative “employer”.  The claimant ran an independent roofing business, had other workers doing roofing work at another location, purchased workers compensation insurance, and otherwise held himself out to be a roofer doing roofing work.  He injured his foot while performing the four-hour job and sought workers compensation benefits from the company that had hired him to do that job.  Several iterations of a decision were rendered by the workers compensation board and the appellate commission.  The Court of Appeals granted my application for leave to appeal, and then, plaintiff’s cross-application on a wage-loss calculation issue (a very interesting issue in its own right but which is likely rendered moot by this finding that the claimant was not in fact an employee).

The coverage case involved several underlying insurance companies potentially covering the claim depending on the employment status of the claimant.  What is remarkable, among other interesting procedural twists and turns, is that two Judges on the panel I argued the case before were on opposite sides of the underlying issue in a Court of Appeals conflict panel opinion issued after the Court of Appeals convened a special conflict panel to address whether the language of MCL 418.161(1)(n) (pre-2011 amendments) was conjunctive or disjunctive, requiring satisfaction of all or only one of the “elements” listed to remove or, divest, a claimant of “employee” status under the Workers Disability Compensation Act.

That conflict panel decision by the Court of Appeals actually ruled against the arguments I forwarded in my brief, but as I predicted in the brief, and at oral argument, the Supreme Court was considering the conflict panel’s decision and was likely to overrule it, which they did, as I explained in this post:  Supreme Court Overrules Court of Appeals Decision Defining Employees for Purposes of Workers Compensation Entitlement

Thus, at oral argument, I made a full frontal assault on the conflict panel’s decision reading the statutory language as conjunctive (much to the satisfaction of Judge Borrello, who the Supreme Court ultimately sided with), and, as well, in my arguments section of the brief.

The Court also used my argument to counter the Appellate Commission’s unique (if not strained) reading of the meaning of the introductory phrase of the statute “in relation to this service” (my emphasis).  In its decision, the appellate commission reasoned that the phrase contained in MCL 418.161(1)(n) referred not to roofing in general, but roofing on behalf of the putative employer.  The Commission had stated that plaintiff did not maintain a separate business of roofing for this employer, nor was he hired by this employer in his capacity as a roofing contractor with a crew of workers. Rather, the Commission had stated plaintiff was hired by the putative employer as an individual worker.

As I argued in my brief, this reasoning was flawed because the statutory phrase “in relation to this service” refers to roofing in general. And, the Court of Appeals cites to the case I referred to, Reed v. Yackell, 473 Mich 520, 537 (2005), in which the Supreme Court had used the precise example factually relevant in this case, to wit, a roofer doing roofing work!  In other words, the Court of Appeals went on to reason, the phrase “in relation to this service” refers to the type of services performed, not the identity of the party receiving the services.

It was one of the more active panels that I have been before and they were extremely engaged in the issue and the outcome.  Read the decision here:  Moore Opinion

If you have any questions about this case and its impact on general liability and workers’ compensation insurance coverage determinations please call Carson J. Tucker, (734) 218-3605.

The “Common Law” As Defined by the “Department of Justice”

This is old news to some. But, I had some thoughts on this as I ran across it looking for a contact in the Department of Justice while I was in the process of writing a brief in the United States Supreme Court.

Apparently, the Department of Justice (at least in the Principality of Delaware) has a rather unique definition of the “common law”.  I believe there are other DOJ websites that use this phrase.

Follow the link to see for yourself: http://www.justice.gov/ust/r03/wilmington/staff.htm

Apparently, this “quote” came from a philosopher in the early 1900’s.  And, the DOJ has apparently adopted it as their own view.

Based on my understanding of the Constitutional Republic in which we live, and the principles of federalism, constitutional law, the rule of law, and state sovereignty, the “will of mankind” is the precise force of tyranny against which our forefathers so valiantly fought for our independence.  If the “will of mankind” issuing from the “life of the people” is defined as the “common law”, and we the People are bound by the common law, then does not it follow we are at the mercy of this “will of mankind”?

Does this mean that the “will of mankind” expressed in the streets, more loudly by one group than another, or with more vitriol and fear-instilling fervor, is the “common law” because it “issue[s] from the life of the people”?

Is the “will of mankind” sufficient to overcome hundreds of years of case law that established the structures of the “rule of law” as being ensconced within and protected by the Constitution in the Bill of Rights?

Whose “will” is the “will of mankind”?

Is it the “will” of the southern slaveholders that once attempted to control the will of others?

Is it the “will” of the northern industry barons grounding men to meat as they engaged in their enterprises at the turn of the 2oth Century?

Is the “will of mankind” the masses in the street shouting “What do we want?  Dead Cops.” after every unfortunate, but justified, “use of force” incident is cleared by a “grand jury” (the latter of which, by the way some would say is the Fourth Branch of Government)?

And, what is this “life of the people” from which such “will of mankind” issues?

How is this defined?

What measure of surety do we have to indicate that the “common law”, which we are all held responsible to know and follow, has changed, or been modified, if not by the highest courts of the respective states, or the United States, the only true arbiters of what the law is, and what the law should be until the Legislature amends, modifies or repeals the “common law”?

And, finally, does the “will of mankind” supersede the properly enacted laws of the legislature, and the rules enunciated by the courts, all of which do in fact issue from the Life of the People by virtue of the People’s vesting in the Congress, and the respective legislatures and courts the “constitutional imperative”; the right, and the sole right to make the law, and to say what the law is, respectively.

Our servants, the various government institutions, should be careful that their “mottos” are not taken for their views, and that the perception will not be that they implement their policies based on these ill-conceived cliches.

Happy New Year!

 

 

Michigan High Court to Address Scope of “Gross Negligence” Exception to Governmental Immunity

In an order issued on December 23, 2014, the Michigan Supreme Court has granted oral argument to consider the state’s application in this wrongful death case.  (Estate of Beals.Order).

The plaintiff is the estate of an individual who was a student at a state technical college that provided vocational and technical training to individuals with disabilities.  The decedent was a student at the college, who had been diagnosed with autism and learning disabilities.

Despite his disabilities, the decedent was an accomplished swimmer.  During an open swim time at the college’s pool, the decedent swam to the deep end of the pool, submerged, and never resurfaced, until he was brought to the surface by other students who noticed his plight.  The pool’s student lifeguard, who was described by witnesses as being distracted and inattentive around the time of the incident, was unable to resuscitate the decedent.  He was declared dead upon arrival at the hospital.  The cause of death was accidental drowning.

The estate sued the state of Michigan, the college, and the lifeguard who was on duty at the time of the accident.  The government moved for summary disposition, arguing that the lifeguard’s conduct did not arise to “gross negligence” within the meaning of Michigan Compiled Laws (MCL) 691.1407 the “gross negligence” exception to immunity, and even if his conduct did satisfy the statutory definition, it was not, as is required  by the Governmental Tort Liability Act, MCL 691.1407(2)(c) “the proximate cause” of the decedent’s accident and death.  The trial court denied the government’s summary motion to dismiss the case.

The Court of Appeals affirmed in a 2 to 1 unpublished opinion (Judges Meter and Shapiro in the majority; Judge O’Connell, dissenting).  Estate of Beals v. State of Michigan, et al.

The central issue in the case was whether the lifeguard’s conduct was “the proximate cause of the injury or damage.” MCL 691.1407(2)(c) (emphasis added). To apply the statute, the Courts have held it must be determined whether a reasonable person could find that the governmental defendant’s conduct or actions were “the one most immediate, efficient, and direct cause” of the injury alleged.  Robinson v. City of Detroit, 462 Mich. 439, 462 (2000).

The factual dispute centered on whether the lifeguard’s conduct or actions, or lack of action was, in the language of the jurisprudence interpreting MCL 691.1407(2)(c) “the one most immediate, efficient, and direct cause of” the decedent’s death.

The majority opinion reasons that reasonable minds could disagree on whether the lifeguard’s action or inaction was the proximate cause.  However, the dissenting judge, Judge O’Connell reasoned that since there was a chain of events that lead to the decedent’s death, most of which were caused by the decedent’s participating in the open swim, swimming to the deep end of the pool, and going under, it was impossible to conclude that the lifeguard’s conduct alone was “the most direct and immediate cause”.  Since a “chain of events” cannot serve as a substitute for the statutory standard, it could not be the source of tort liability against a governmental employee under the Governmental Tort Liability Act (the GTLA).

The Supreme Court’s order requests the parties to brief the issue simply as whether the lifeguard’s  “alleged failure to act was the proximate cause of the decedent’s death. MCL 691.1407(2)(c)” of the GTLA.

It should be noted that at least until now the Supreme Court has applied a narrow construction to the statutory exceptions to the government’s suit immunity.  That rule applies with equal force to the “statutory” gross negligence standard, which, unlike the common-law articulation, includes the requirements enunciated in the statutory definition found in MCL 691.1407(2)(c).  With the recent liberalization of the interpretive principles and the Court’s apparent willingness to look to common law rules that predated the passage of the GTLA, it will be interesting to see how the litigants and the Court address this significant case.

This case will also likely garner significant attention because related inferior appellate court cases have recently addressed the scope of the “gross negligence” exception to governmental immunity in actions against individual governmental actors.  Seethe following link, in which I discuss these cases:

Gross Negligence Exception to Immunity Under Attack in Cases Against “Emergency First Responders”

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:

• 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
• Atkins v. SMART, 492 Mich. 707 (August 20, 2012), application granted, and briefed and argued by Carson J. Tucker in the Supreme Court
• Gentry v. Wayne County Deputy Sheriff Daniel Carmona, unpublished opinion of hte Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580), briefed and argued by Carson J. Tucker in the Court of Appeals
• Hamed v. Wayne County, 490 Mich. 1 (July 29, 2011), briefed and argued by Carson J. Tucker in the Court of Appeals and Supreme Court
• Odom v. Wayne County, 482 Mich. 459 (December 30, 2008), application for leave to appeal granted, and briefed and argued by Carson J. Tucker in the Supreme Court

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:

• Hannay v MDOT, ___ Mich. ___ (December 19, 2014), 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 ___ (2014), 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
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker
• Hagerty v. Manistee County Road Commission, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker

Mr. Tucker can be reached at +17342183605.

 

Court Holds “Bodily Injury” Damages Include “Pain and Suffering” and “Non-economic Damages” In “Motor Vehicle” Accident Claims Against Government

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 to Address Scope of Damages Available in Actions Against Governmental Entities Under No-Fault Insurance and Governmental Immunity Law

Governmental Liability for Damages Under Motor Vehicle Exception to Immunity to be Addressed by Supreme Court

Michigan Supreme Court to Consider Both Non-economic and Economic Tort Damages Claims Against Government

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:

• 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
• Atkins v. SMART, 492 Mich. 707 (August 20, 2012), application granted, and briefed and argued by Carson J. Tucker in the Supreme Court
• Gentry v. Wayne County Deputy Sheriff Daniel Carmona, unpublished opinion of hte Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580), briefed and argued by Carson J. Tucker in the Court of Appeals
• Hamed v. Wayne County, 490 Mich. 1 (July 29, 2011), briefed and argued by Carson J. Tucker in the Court of Appeals and Supreme Court
• Odom v. Wayne County, 482 Mich. 459 (December 30, 2008), application for leave to appeal granted, and briefed and argued by Carson J. Tucker in the Supreme Court

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:

• Hannay v MDOT, ___ Mich. ___ (December 19, 2014), 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 ___ (2014), 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
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker
• Hagerty v. Manistee County Road Commission, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker

Mr. Tucker can be reached at +17342183605.