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!

 

 

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.

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

Special Appellate Counsel for Emergency Appeals in State and Federal Court of Appeals and Supreme Court

It is the eve of trial.  The trial court judge, bent on forcing you into an unsavory settlement with opposing counsel, has granted opposing counsel’s motion in limine to exclude your proposed evidence from the jury’s consideration.  This is a key part of your client’s case and without it your client may be facing 100 percent of the responsibility for the damages alleged as a result of the significant allegations in the underlying lawsuit.  Sound familiar?

Is there a way to even the playing field, or, even better, to have the trial court’s errant legal rulings on the motion corrected?  Or, do you simply capitulate?

There is still hope.  And it can be done, even during the trial.

Carson J. Tucker specializes in prosecuting high-stakes, last-minute emergency appeals seeking interlocutory review of suspect legal rulings.  After all, if the trial court is wrong, or even if the Court of Appeals agrees to take a closer look, this can significantly alter the posture of the parties to the lawsuit.

I am experienced and adept at navigating through the Michigan Court of Appeals and Supreme Court to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and ruled upon as soon as possible.

In most cases, these actions have stopped the trial from immediately proceeding.  In many of the cases handled by Mr. Tucker, these actions have even resulted in the creation of precedent from the Michigan Court of Appeals and Michigan Supreme Court that changes the entire make-up of the pending lawsuit.  In the least, this type of action can properly re-orient the parties positions and attitudes with respect to settlement demands.

With adept and efficient appellate counsel ready to assist at a moment’s notice, your case can be quickly analyzed by objective review of the facts of the case, the strengths and weaknesses of the legal issues being addressed, and the potential for success at the appellate level.  It’s never too late to act until your case is submitted!

I have real stories and experiences to share from lawsuits in which our clients and the other law firms we have assisted have been able to save thousands of dollars in litigation costs and, more importantly, in damages awards or forced verdicts because I have been able to step in and make new law, or at least bring the parties together to discuss realistic settlement options.

Please do not hesitate to contact me if you are contemplating an appeal, any appeal.

“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)

 

 

Bank’s Failure to Raise “Abandonment” of Contract Constitutes Waiver in Breach of Contract Action

In Clapper, et al. v. Zochowski, et al, the Court of Appeals reversed the trial court’s ruling granting summary disposition in favor of a bank in a breach of contract action surrounding a loan purchase agreement.

The plaintiff sought to purchase a loan obligation held by the bank.

The bank was required to produce certain documents and parties at the closing in order to complete the contract.  The parties appeared for the closing, but the bank did not produce all documentation and the primary debtor did not appear as was required under the terms of the agreement.  Thus, the closing was never consummated.

The bank subsequently sold the loan obligations to another party.

Plaintiff filed suit against the bank alleging, among other things, breach of contract.  The bank argued that the agreement had been abandoned (although the bank raised this in reply to the plaintiff’s motion for summary disposition, not in its first responsive pleading as an affirmative defense).

The trial court entered judgment in favor of the bank, holding that the agreement did not place any burden on the bank to produce documents and certain parties.  The trial court also ruled that the agreement had been abandoned.

Here, the Court of Appeals reverses the case and remands for entry of summary disposition in favor of the plaintiff.  The Court of Appeals ruled the trial court could not address issues that were not raised before it.  More importantly, the Court of Appeals notes the bank failed to raise the issue of “abandonment” of the contract as an affirmative defense to the plaintiff’s complaint in its first responsive pleading.  This constituted a “waiver” of the defense for purposes of opposing plaintiff’s motion for summary disposition on the breach of contract claim.  Moreover, the Court of Appeals addresses and dismisses the issue of abandonment, recognizing it would be futile to allow the bank to amend its answer on remand.

Thus, the Court of Appeals orders entry of judgment in favor of plaintiff and remands only for consideration of the damages.

This case raises two important points:  first, and foremost, it is of utmost importance that all affirmative defenses available in a breach of contract action be raised by the defending party in its first responsive pleading.  The Court of Appeals correctly rules here that a failure to waive the defense constituted waiver.  It nonetheless rules that the argument of waiver would have been futile because the facts demonstrated that no abandonment of the agreement had occurred.

More importantly, perhaps, is the Court’s admonition of the trial court’s effort to address issues unrelated to the plaintiff’s claim that the bank breached its contract by failing to fulfill the requirement that certain documents and parties appear for the closing.

An interesting question raised by this case concerns whether the bank sought defense and indemnity coverage under any professional liability / errors and omissions insurance policies to cover the defense costs and potential indemnity of this claim.

Does the fact that the banking personnel failed to produce documentation and parties at the closing constitute acts that are covered by the bank’s professional liability insurance policies?

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)

 

 

Retail Storeowner’s to Face Challenge on Unsafe Aisle Claim in Premises Liability Suit

The Michigan Court of Appeals has issued a 2-1 published opinion and requested a conflict panel under Michigan Court Rule 7.215(J)(2) to address whether retail store owners owe a duty to keep aisles reasonably safe in a case in which the plaintiff tripped over a protruding end-cap platform.  In Quinto v. Woodward Detroit CVS, et al., the Court of Appeals, bound to follow its own precedent in Kennedy v. Great Atl. & Pacific Tea Co., 274 Mich. App. 710 (2007) per MCR 7.215(J)(1) (precedent established by a Court of Appeals opinion published on or after November 1, 1990 is binding on subsequent panels), nonetheless ruled that “consistent with Supreme Court case law” the merchandise-display aisles of a self-service retail store present particular circumstances such that the “open and obvious” doctrine does not eliminate the duty of the store owner to make those aisles reasonably safe for its customers-invitees.  However, the panel was unable to reverse the trial court’s grant of summary judgment for the store because of the precedential effect of its 2007 opinion in Kennedy.

The plaintiff alleged she tripped and fell on a protruding platform on the end cap display of one of the store’s aisles.  Testimony from the store indicated the platform was empty, not being used at the time, and could have easily been removed.  The plaintiff further testified she was looking up and at the merchandise in the aisles while shopping and therefore did not see the obstruction.

The majority reasoned that no Michigan Supreme Court case had held that the “open and obvious” doctrine would apply to the factual circumstances presented by the case.  The “open and obvious” doctrine is a defense in a premises liability suit that allows the business premises owner to avoid liability where the particular hazard alleged to have been the cause of the plaintiff’s injury was “open and obvious”, and therefore visible to one who takes reasonable care for their surroundings while a business invitee at the premises owner’s establishment.  The majority panel here uses the factual uniqueness of the case and the absence of Michigan Supreme Court precedent applying the “open and obvious” doctrine where “distractions” diverted the plaintiff’s attention away from the hazardous condition, even if “open and obvious”, to conclude it would reverse the trial court’s grant of summary judgment for the store, but for the binding precedent of the Kennedy case.

Kennedy relied on the Supreme Court’s decision in Lugo v. Ameritech, 464 Mich. 512, 519-520 (2001), and held the presence of distractions does not obviate the “open and obvious” doctrine, and therefore, a store owner did not have a duty beyond that of a reasonable store owner to maintain safe aisles.

The dissent, Judge Cavanaugh, would not request a conflict panel resolve the case.  He reasons that the majority would impose a heightened duty of care on self-service retail store owners after concluding that merchandise displays and advertisements cause customers to be so distracted that they cannot reasonably be expected to observe even an open and obvious condition that exists in an aisle while shopping, i.e., a condition that “an average person with ordinary intelligence would have discovered [ ] upon casual inspection.” Hoffner v Lanctoe, 492 Mich 450, 461; 821 NW2d 88 (2012).

It does appear the majority puts form over substance.  The duty a store owner has is to maintain the premises in a reasonably safe condition.  Pallets and other objects of retail merchandise actually blocking the aisles and/or in the aisles are usually open and obvious – like inventory being restocked.  It might be a different story if a single pallet, unoccupied by any merchandise, were left in the middle or at the end of an aisle.  In such a case, the ordinary distractions of a retail merchandise aisle (products and advertisements) might legitimately come into play in obviating even an open and obvious hazardous condition.  This latter principle is the one the majority refers to as being left open by Lugo.

However, it is a stretch to say that the platform in this particular case, which appears to be nothing more than an ordinary physical extension, whether appended or not, to the end of a retail merchant’s aisle display stand is something that would fall into the category of hazards or hazardous conditions blocking, obstructing or otherwise impeding the reasonable pathways through the store’s aisles.  Without this conclusion, one cannot begin to discuss the “open and obvious” defense at all.  It is not an unreasonably dangerous or hazardous condition as it does not implicate the duty to maintain the premises in a reasonably safe condition.

Secondly, even if the protruding shelf extended further than the bulk of the aisle display stand, the majority fails to differentiate it from any other visibly open and obvious hazardous condition, like blue liquid detergent on a white or grey surface, or squashed grapes laying on the floor in the produce section.  The “open and obvious” doctrine applies to the latter situation, as much as it should the former, as noted by Judge Cavanaugh.

Perhaps the question is whether the plaintiff in such a case ultimately testifies that he or she noticed the “condition” either before or after the injury.  If there is no indication the plaintiff noticed or reasonably should have noticed the condition, then the open and obvious defense does not even apply.

However, to forward this case as a vehicle to effect any significant change in the well-established law of premises liability, and, particularly, the open and obvious defense is, as the dissenting Judge points out, misguided.  The facts are far too generic.  If a conflict panel is ultimately convened, it will be interesting to see if the outcome is different.

For more than a century, 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 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 last three decades alone, the Appeals and Legal Research Group at Lacey & Jones has been responsible for over 150 published decisions, 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.

• Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief to be filed after remand for Michigan Municipal League, et al., by Carson J. Tucker
• 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
• 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 to Consider “Scope” of Government’s Liability Under Motor Vehicle Exception and No-Fault Insurance Act

Yesterday, I filed an amicus curiae brief on behalf of the Michigan Townships Association, Oakland County, Macomb County, and Wayne County to challenge the Court of Appeals’ decision in Hannay v. Michigan Department of Transportation.

There the Court of Appeals ruled that “bodily injury” damages available against the government for injuries arising from the negligent operation of a government-owned vehicle included excess economic loss benefits (wage loss) and potential future earnings damages.  The “motor vehicle exception” to the government’s suit immunity provides that the government may be liable for “bodily injury” and “property” damages, only.  MCL 691.1405.

Michigan’s No-Fault Act provides that those injured as a result of the negligent operation, maintenance, use or ownership of a motor vehicle are entitled to tort damages in the form of excess economic benefits, potential future earnings, noneconomic damages, among others.  These “types” of damages are sometimes called “third party benefits”.  On the other hand, “first party” benefits, such as medical expenses for bodily injury, certain economic benefits subject to a statutory cap, replacement services, and attendant care services are generally paid by the insurer of the injured party. 

The issue in this case is whether the government, whose liability is ostensibly restricted to “bodily injury” damages only, may also be held liable for these other types of damages that are available only under and through the provisions of the No-Fault Act.  This issue is of great significance to the economic well-being of the government.  It will also be an important case in light of other cases in the Court of Appeals which have held that noneconomic damages, such as pain and suffering, negligent infliction of emotional distress, etc., are not awardable as against the government, even though a claimant might be able to seek such damages from a third-party tortfeasor that is not a government actor under the No-Fault Act.  I have written previously about these cases, Hunter v. Sisco et al. and Ex rel Hodges v. City of Dearborn, as well as the one under consideration.  By the way, a motion for reconsideration is still pending in the Supreme Court in the Hunter case, which I suspect will be dealt with after the Court issues an opinion in this case.

Read the amicus brief here:  99705 sc amicus curiae br

The previous posts are here:

Supreme Court Grants to Consider Scope of Government’s Liability Under Motor Vehicle Exception to Immunity

Hunter v. Sisco

Court of Appeals Rules Plaintiff Not Entitled to Noneconomic Damages Against Government Under Motor Vehicle Exception

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

Other appeal cases Carson Tucker has handled include

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Other appeal cases Carson Tucker has handled include

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

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

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