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.

 

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.

 

Surveillance Recordings Created by Private Entity “Public Records” Subject to FOIA Disclosure Where Law Enforcement Takes Possession of Such Records in Pending Investigation

In Amberg v. City of Dearborn, released on December 16, 2014, the Michigan Supreme Court has held that video surveillance created by a private entity but handed over to law enforcement officials for a pending misdemeanor investigation were public records subject to disclosure under Michigan’s Freedom of Information Act (FOIA).

The video surveillance was created by the security cameras at a private business.  The plaintiff was an attorney who submitted a FOIA request for the video surveillance to the City of Dearborn Police Department, which was in possession of the video in connection with a pending misdemeanor criminal citation against the attorney’s client.

The trial court and the Court of Appeals had held that the police department was not required to hand over the video surveillance on the basis that it was not a “public record”, having been created by a private entity.

A public record is defined by Michigan Compiled Laws (MCL) 15.232(e) as a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function from the time it is created.  The police department asserted the records were created by a private entity and were not therefore records in their possession in the performance of an official function from the time they were created.

As noted by the Court, while the mere possession of the records does not make them “public records” subject to FOIA disclosure, the fact that the recordings were created by a private entity was not dispositive in the decision whether to disclose the records upon a FOIA request.  The Court holds that what ultimately determines whether such information should be disclosed is whether the public entity from which the information is sought prepared, owned, used, or possessed them in the performance of an official function.  Since the criminal misdemeanor citation was pending and the police department had received the records as evidence for that pending matter, they were “public records” in the possession of the city and the police department in the performance of its official functions.

The Court also holds the plaintiff’s attorney was entitled to costs and attorneys fees for the violation, even though during the pendency of the proceedings disputing the FOIA denial, the surveillance video was ultimately turned over to the attorney.  The Court reasons that the mere fact that plaintiff’s substantive claim for a refusal to comply with FOIA was rendered moot by disclosure of the information after suit was commenced, he ultimately prevailed in the FOIA action, which under the statute entitles him to fees and costs.

 

Michigan Supreme Court Reverses Court of Appeals Decision Forcing Workers Compensation Agencies to Remain Open at Certain Locations

The Michigan Supreme Court has reversed the Court of Appeals decision that held the Director of the Michigan Administrative Hearing System and the Director of the Department of Licensing and Regulatory Affairs were required to maintain local offices for litigation of Workers’ Compensation Agency hearings.  Read the opinion here:

Younkin v. Zimmer

In September 2012, the Director of the MAHRS had announced new efforts to reorganize, including closing the Flint office that previously handled workers’ compensation claims and transferring those claims to an office in Dimondale, approximately 70 miles away.

The Plaintiff in the underlying case injured his back while at his job in Flint.  He filed a workers’ compensation claim.  Because of the reorganization, he was required to litigate his claim in Dimondale, rather than in the now-closed Flint office.

He filed a writ of mandamus in Circuit Court to compel the Directors to maintain the Genesee County (Flint) hearing site.  The circuit court issued the writ and the Directors appealed.  The Court of Appeals (M. J. KELLY, P.J., and FORT HOOD, J. (CAVANAGH, J., dissenting)), affirmed, holding that the trial court had not abused its discretion. 304 Mich App 719 (2014).

In a unanimous opinion released November 18, 2014, the Supreme Court reversed, holding the trial court abused its discretion by issuing a writ of mandamus compelling the Directors to hold workers compensation hearings in Flint.

MCL 418.851 provides that a workers’ compensation hearing must be held at the locality where the injury occurred. The Supreme Court reasoned Defendants, in their official capacities as administrators of the workers’ compensation hearing system, interpreted the term “locality” as meaning a district or a definite region. This interpretation was entitled to respectful consideration. Because it did not conflict with the Legislature’s intent, there were no cogent reasons to overrule it.

The Court continued, reasoning that in accordance with the Directors’ interpretation of the statute, they divided the state into 11 reasonably located hearing districts, and workers’ compensation claims were assigned from definite regions of the state to one of those hearing district offices depending on where the injury occurred.

Nothing in the Worker’s Disability Compensation Act, MCL 418.101 et seq., requires that there be a hearing site in every county. While the hearing should be held at a place convenient for parties and their witnesses, it was not unreasonable to conclude that the locality where the injury occurred in this case was Dimondale given the injury occurred in Genesee County and that county falls within the Dimondale district.

The Court concluded although having the hearing in the latter rather than in the former venue would doubtlessly be less convenient for plaintiff, this would not constitute an unreasonable inconvenience. Accordingly, plaintiff did not have a clear legal right to a hearing in Genesee county, and the Directors did not have a clear legal obligation to hold the hearing there.

I previously wrote about this case in an earlier blog here:

Court of Appeals Rules Workers Compensation Hearings Must Be Held in “Locality” Where Injury Occurred Forcing Directors of Administrative Hearing Systems to Reopen Closed Offices Throughout the State

Missing Pane of Glass from Public Bus Shelter Not a Defective or Dangerous Condition Sufficient to State Cause of Action Against Public Bus Authority Under “Public Building” Exception to Governmental Immunity

The Summary Disposition Standard Debate

This case highlights a current conflict among the Court of Appeals.  There is a current “debate” among Court of Appeals panels in recent opinions about the sufficiency of pleading a cause of action against the government when assessing the government’s motion for summary disposition under MCR 2.116(C)(7), which provides for “[e]ntry of judgment, dismissal of the action, or other relief because of…immunity granted by law”.  There is also debate about the extent to which sufficiently pled allegations, without more, can survive a summary disposition motion brought under this court rule pursuant to the Governmental Tort Liability Act (GTLA), and the respective exceptions to governmental immunity being pled by the plaintiff in a given case.

Is it sufficient for a plaintiff to merely plead allegations that, if true, but not proved, would be sufficient to survive a motion for summary disposition filed by the government under MCR 2.116(C)(7)?  Should the trial court decide the factual question before allowing the case to go forward against the government?  Or, should the question be left to a jury (which of course means the case goes to trial)?

Hubbert v. SMART

This is a rather unremarkable case in terms of the outcome, but the majority and dissenting opinions are worth noting for several points.  The plaintiff was injured when he fell through a missing pane of glass on a public bus stop.  Plaintiff filed suit against the public bus authority seeking damages and claiming negligence.

The plaintiff never pled allegations in avoidance of immunity, i.e., never pled that the facts established his case fit with one of the five statutory exceptions to governmental immunity.  In fact, the plaintiff never acknowledged that governmental immunity applied.

The governmental defendant (the public bus authority), included “immunity” in its affirmative defense, and simply conceded the “public building” exception to governmental immunity was the exception under which the plaintiff had to bring her cause of action.  Public bus stops are considered “public buildings” within the meaning of MCL 691.1406 of the Governmental Tort Liability Act (GTLA) (the “public building” exception).  Ali v. City of Detroit, 218 Mich. App. 581, 585 (1996).

The bus authority filed a motion for summary disposition under MCR 2.116(C)(7), (C)(8) and (C)(10), contending that the public building exception did not apply because the missing pane of glass did not constitute a “dangerous or defective condition” within the meaning of the public building exception.

Plaintiff argued there was a genuine issue of material fact concerning whether the missing pane of glass was a “dangerous or defective condition”, and that this was a sufficient question to allow the action to proceed to a jury for consideration.  The trial court agreed and denied the bus authority’s motion.  Pursuant to Michigan Court Rules (MCR) 7.203(A)(1) and MCR 7.202(6)(a)(v), denial of a governmental entity’s motion for summary disposition on immunity grounds under MCR 2.116(C)(7) is appealable by right.

The Court of Appeals, in a 2-1 opinion reversed ordering judgment for the bus authority.  The Court reasoned that, as a matter of law, the missing pane of glass was not a “dangerous or defective” condition within the meaning of the public building exception.

Applying the MCR 2.116(C)(7) Standard –  “Immunity Granted by Law”

Even though the bus authority sought summary disposition under the standards applicable to such motions under all three court rules MCR 2.116(C)(7) (“immunity granted by law”); (C)(8) (“failure to plead or state a claim”); and (C)(10) (“no genuine issue of material fact”), the Court of Appeals majority properly oriented the motion as one falling under (C)(7).

Thus, the Court reasoned, that summary disposition is appropriate under MCR 2.116(C)(7) when a claim is barred by “immunity granted by law”.  Slip Op. at 2-3.  (emphasis added), citing Seldon v. SMART, 297 Mich. App. 427, 432 (2012).  The Court pointed out that the trial court is to resolve the governmental immunity issue at the summary disposition stage as “an issue of law”, “[i]f there are no material facts in dispute or if reasonable minds could not differ regarding the legal effect of the facts.”  Id., citing Norris v. Lincoln Park Police Officers, 292 Mich. App. 574, 578 (2011).

This is not an insignificant detail.  The jurisdictional view of governmental immunity adhered to in Michigan requires that for a circuit court to even have subject-matter jurisdiction over a cause of action filed against the government, the case itself (the underlying facts of the case) must establish that the claim against the government can go forward under one of the legislative exceptions to immunity in the GTLA.  Greenfield Construction Co. v. State Highway Dep’t., 402 Mich. 172, 194 (1978) (stating that “it is well settled that the circuit court is without jurisdiction to entertain an action against the State of Michigan unless that jurisdiction shall have been acquired  by legislative consent).  See also Ross v. Consumers Power Co., 420 Mich. 567 (1984) and Manion v. State Highway Comm’r., 303 Mich. 1 (1942).  As the Supreme Court has recognized: “the state created the courts and so is not subject to them” or their jurisdiction absent explicit legislative consent.  County Road Ass’n of Michigan v. Governor, 287 Mich. App. 95, 118 (2010), citing Pohutski v. City of Allen Park, 465 Mich. 675, 681 (2002).

Such consent comes only in the form of the narrowly applied exceptions to that immunity in the GTLA.  In re Bradley’s Estate, 494 Mich. 367, 389 (2013) (to state a claim for “tort liability” against the government, the only avenue to impose such liability and access any available remedy is through and under the provisions of the GTLA).  Only when the claimant pleads that the facts fall within an exception and proves the facts exist is there evidence of a waiver of the inherent and preexisting immunity granted by law.  Mack v. City of Detroit, 467 Mich. 186, 200-202 (2002) (a plaintiff pleads in avoidance of immunity by stating a claim that fits within a statutory exception).  And, later, the Court in a case I successfully briefed and argued, made clear that, at least with respect to actions against governmental entities, the burden of proof to both plead and prove the case falls within an exception is on the claimant at the outset.  Odom v. Wayne County, 482 Mich. 459 (2008).

In this case, the Court of Appeals properly notes that the governmental immunity issue must be addressed at the summary disposition stage and as a “question of law”.  This properly orients the the preexisting and inherent characteristic of the government’s immunity.  As the Supreme Court has noted on more than one occasion, the government is immune from suit, not just liability, and if it has to expend its resources defending lawsuits all the way to the stage of the case reaching a jury, or a trial judge’s verdict, then immunity will be meaningless.  The government cannot be burdened with the expense of full-scale litigation in every case where a plaintiff merely recites allegations that, if true, would constitute a claim within an exception to immunity.

Conflict in Treatment of Governmental Immunity Motions Under MCR 2.116(C)(7)

Yet, the Court of Appeals is not consistent on this point.  In Kincaid v. Cardwell, 300 Mich. App. 513, 522 (2013), the Court of Appeals noted that where a fact question existed involving application of a bar to suit under MCR 2.116(C)(7), the question had to be submitted to a jury.

More recently, in Yono.v.MDOT.After.Remand.opn (Yono v. Michigan Dep’t of Transportation, Court of Appeals No. 308968 (released September 23, 2014)), the Court of Appeals, while recognizing the conflict of opinions in this area, conflated the (C)(7) standard with the “genuine issue of material fact” standard of (C)(10), as if there was no difference in application of these two court rules when assessing a motion for summary disposition.  This led to the result that a pled (but not necessarily proved) genuine issue of material fact (or a fact dispute) was sufficient to survive the summary disposition stage, even in a case against the government, which then leads to the case being submitted to the finder of fact.

This is error.  If this is the standard, then any well-pled allegation in a complaint setting for the parameters of an exception to immunity, and the factual allegations sufficient to fall within the exception will survive a motion for summary disposition on grounds of “immunity granted by law” under MCR 2.116(C)(7).

The Court of Appeals in this case got it right.  The trial court should decide the question “as a matter of law”.  In such cases, either party has an appeal by right to challenge the merits of the decision in the Court of Appeals, and the Court of Appeals has de novo reviewing authority over the case to check the trial court’s decision.

Otherwise, trial courts have the discretion to allow a case to proceed against the government, which is inconsistent with the jurisdictional view of governmental immunity and contrary to established case law, which preserves the government’s preexisting and inherent immunity from suit and liability in all but a small subset of narrowly applied circumstances.

Here is the Court of Appeals opinion:  hubbert v smart maj.OPN

And, the dissent:  hubbert v. smart .krause.dissent.OPN

Supreme Court to Address Interplay (If Any) Between the No-Fault Act and the Governmental Tort Liability Act

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:

• 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

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:

• Yono v. MDOT, ___ Mich. App. ___ (2014), after remand order, amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
• State Farm v. MMRMA, amicus curiae in Supreme Court for Oakland County, Wayne County, Macomb County, and Wayne County in support of MMRMA’s application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ (2014), application granted and consolidated with Hunter v. Sisco, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae in Michigan Supreme Court for Michigan Municipal League, et al., by Carson J. Tucker

Effective appellate representation demands different skills than those required by litigation attorneys.  Appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying errors for appeal, and developing a strategy to raise those issues that will be addressed by appellate courts, appellate attorneys are capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.

We are also experienced at navigating through all appellate courts to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.

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

• Omian v. Chrysler, LLC, Michigan Court of Appeals Docket No. 310743, remanded by Supreme Court as on leave granted, Supreme Court No. 146908, oral argument presented July 16, 2014 by Carson J. Tucker for Chrsyler, LLC
• Moore v. Nolff’s Construction and Travelers Ins., Michigan Court of Appeals Docket No. 313478 and 313440 (consolidated), application and cross-application granted and oral argument in Court of Appeals presented July 2014 by Carson J. Tucker for Nolff’s Construction and Travelers Insurance
• Arbuckle v. GM, Michigan Court of Appeals Docket No. 310611, oral argument in Court of Appeals presented May 2014 by Carson J. Tucker for GM
• Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
• Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
• Omian v. Chrysler Group, LLC, 495 Mich. 859 (2013), application filed by Carson J. Tucker, Supreme Court remand to Court of Appeals on leave granted, oral argument to be held in July 2014
• Ghanam v. John Does, 303 Mich. App. 522 (2013), application to appeal filed in Supreme Court by Carson J. Tucker
• State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
• Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
• Huddleston v. Trinity Health, et al., 495 Mich. 976 (2014), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
• Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
• Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
• McMurtrie v Eaton Corp, 490 Mich 976 (2011)
• Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
• Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
• Stokes v Chrysler, 481 Mich 266 (2008)
• Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
• Rakestraw v Gen Dynamics, 469 Mich 220 (2003)

“Gross Negligence” Exception to Governmental Immunity Under Attack in Cases Against First Responders / Law Enforcement Officers

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:

• 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

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:

• Yono v. MDOT, ___ Mich. App. ___ (2014), after remand order, amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
• State Farm v. MMRMA, amicus curiae in Supreme Court for Oakland County, Wayne County, Macomb County, and Wayne County in support of MMRMA’s application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ (2014), application granted and consolidated with Hunter v. Sisco, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae in Michigan Supreme Court for Michigan Municipal League, et al., by Carson J. Tucker

Effective appellate representation demands different skills than those required by litigation attorneys.  Appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying errors for appeal, and developing a strategy to raise those issues that will be addressed by appellate courts, appellate attorneys are capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.

We are also experienced at navigating through all appellate courts to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.

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

• Omian v. Chrysler, LLC, Michigan Court of Appeals Docket No. 310743, remanded by Supreme Court as on leave granted, Supreme Court No. 146908, oral argument presented July 16, 2014 by Carson J. Tucker for Chrsyler, LLC
• Moore v. Nolff’s Construction and Travelers Ins., Michigan Court of Appeals Docket No. 313478 and 313440 (consolidated), application and cross-application granted and oral argument in Court of Appeals presented July 2014 by Carson J. Tucker for Nolff’s Construction and Travelers Insurance
• Arbuckle v. GM, Michigan Court of Appeals Docket No. 310611, oral argument in Court of Appeals presented May 2014 by Carson J. Tucker for GM
• Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
• Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
• Omian v. Chrysler Group, LLC, 495 Mich. 859 (2013), application filed by Carson J. Tucker, Supreme Court remand to Court of Appeals on leave granted, oral argument to be held in July 2014
• Ghanam v. John Does, 303 Mich. App. 522 (2013), application to appeal filed in Supreme Court by Carson J. Tucker
• State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
• Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
• Huddleston v. Trinity Health, et al., 495 Mich. 976 (2014), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
• Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
• Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
• McMurtrie v Eaton Corp, 490 Mich 976 (2011)
• Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
• Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
• Stokes v Chrysler, 481 Mich 266 (2008)
• Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
• Rakestraw v Gen Dynamics, 469 Mich 220 (2003)

“No-Fault” Wage-Loss Benefits Required to Be Paid to Unemployed Claimant Suffering Disabling Injury at the Time of Auto Accident

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.

• Omian v. Chrysler, LLC, Michigan Court of Appeals Docket No. 310743, remanded by Supreme Court as on leave granted, Supreme Court No. 146908, oral argument presented July 16, 2014 by Carson J. Tucker for Chrsyler, LLC
• Moore v. Nolff’s Construction and Travelers Ins., Michigan Court of Appeals Docket No. 313478 and 313440 (consolidated), application and cross-application granted and oral argument in Court of Appeals presented July 2014 by Carson J. Tucker for Nolff’s Construction and Travelers Insurance
• Arbuckle v. GM, Michigan Court of Appeals Docket No. 310611, oral argument in Court of Appeals presented May 2014 by Carson J. Tucker for GM
• Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
• Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
• Omian v. Chrysler Group, LLC, 495 Mich. 859 (2013), application filed by Carson J. Tucker, Supreme Court remand to Court of Appeals on leave granted, oral argument to be held in July 2014
• Ghanam v. John Does, 303 Mich. App. 522 (2013), application to appeal filed in Supreme Court by Carson J. Tucker
• State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
• Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
• Huddleston v. Trinity Health, et al., 495 Mich. 976 (2014), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
• Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
• Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
• McMurtrie v Eaton Corp, 490 Mich 976 (2011)
• Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
• Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
• Stokes v Chrysler, 481 Mich 266 (2008)
• Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
• Rakestraw v Gen Dynamics, 469 Mich 220 (2003)

 

 

Supreme Court Leaves Plaintiff’s Medical Malpractice Claim Intact to Recover Damages for Loss of Kidney in “Dual Organ” Case

The Supreme Court has let stand a Court of Appeals decision, which held that a doctor’s alleged misdiagnosis and ultimate removal of a cancerous kidney gave rise to a cause of action for damages because of the potential for greater future harm due to the additional risk associated with having only one functional organ.

Lawrence Garcia, Esq. and myself submitted an amicus curiae brief on behalf of the Michigan Defense Trial Counsel in this case before the Supreme Court in which we urged the Court to allow the Court of Appeals decision to stand.

Here is the brief:

huddleston.sc.amicus.curiae.br

Previous posts about this case can be accessed here:

Amicus Curiae Brief Filed in Supreme Court in Medical Malpractice Case Alleging Misdiagnosis and Damages for Removal of Plaintiff’s Kidney

Supreme Court Grants to Consider Damages in Medical Malpractice Claim Alleging Loss of Kidney Constitutes Actionable Damages

Please let me know if you have any questions regarding this order.

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 governmental immunity.

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

• State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae to be filed for MTA, et al., by Carson J. Tucker
• Yono v. MDOT, ___ Mich ___ (2014), Court remands to Court of Appeals after oral argument on application granted, amicus curiae brief for Oakland, Macomb and Wayne Counties filed by Carson J. Tucker in support of the state’s application
• Huddleston v. Trinity Health, et al., ___ Mich ___ (2014), application denied after oral argument on application granted, amicus curiae brief filed by Carson J. Tucker and Lawrence Garcia, Esq., for MDTC
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
• Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
• Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
• McMurtrie v Eaton Corp, 490 Mich 976 (2011)
• Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
• Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
• Stokes v Chrysler, 481 Mich 266 (2008)
• Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
• Rakestraw v Gen Dynamics, 469 Mich 220 (2003)
• Sington v Chrysler Corp., (2002)

Other appeal cases Carson Tucker has handled include

• Hamed v. Wayne County, et al., 490 Mich. 1 (2011), reversing Court of Appeals published opinion after being briefed and argued by Carson J. Tucker on behalf of Wayne County
• Odom v. Wayne County, et al., 482 Mich. 459 (2008), reversing Court of Appeals after being briefed and argued by Carson J. Tucker on behalf of Wayne County and Wayne County Sheriff and Deputies
• Michigan Department of Transportation v Employers Mutual Casualty Co, et al., 481Mich. 862 (2008), reversing Court of Appeals after being briefed and argued on application by Carson J. Tucker for Trucking Company and Insurer
• Nuculovic v. Hill and SMART, 287 Mich. App. 58 (2010), briefed by Carson J. Tucker for SMART
• Molnar v. Amy Allen, Oakland County Care House, et al, 359 Fed. Appx. 623 (6th Cir. 2009), affirming district court’s judgment in favor of client represented by Carson J. Tucker
• Molnar v. Amy Allen, Oakland County Care House, et al., Case No. 09-1536 (2009), successful defense of application to United States Supreme Court by Carson J. Tucker
• Wetherill v. McHugh, et al., Case No. 10-638 (2011), co-draft response on behalf of South Dakota National Guard to petition for appeal to United States Supreme Court, cert denied by Supreme Court.

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

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

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

I previously wrote about these cases in the following posts:

Amicus Curiae Brief Filed in State Farm v. MMRMA

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

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

DMC v. Progressive, et al.

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

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

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

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

Supreme Court to Address Taking of Motorcycle in Insurance Coverage Dispute

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

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

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

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

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

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

Lacey & Jones, LLP’s Civil Litigation Group