Michigan Supreme Court Issues Clarifying Order Suspending Due Dates for Jurisdictional Appeals

Following up on its prior order and as I had indicated in my prior blog post (Michigan Supreme Court Suspends All Case Filing Deadlines), the Court has now issued a clarifying order “tolling” filing deadlines for jurisdictional appeals; the time for filing a Claim of Appeal and Application for Leave to Appeal in the Supreme Court are jurisdictional – the Court will not recognize the filing if it is not filed within the time limit due date as specified in the Michigan Court Rules. A “late appeal” may be filed in the Court of Appeals, but the appeal is no longer one of right, but rather may be heard at the discretion of the Court.

For Supreme Court applications – late applications are not accepted.

The new order, AO 2020-4, effectively tolls the period of filing during the period of the Governor’s declared state of emergency (including any extensions) and it gives filers the same number of days to file upon expiration of the period of emergency as they had to file when the period commenced on March 24. It seems this particular aspect of the order was designed to avoid a large filing influx on the day after expiration of the filing period, which makes sense as the Courts would be flooded with appeals and applications on a single day.

This is an effective solution. Michigan Supreme Court is really proactive and handling this crisis extremely well! Well done!

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

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

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

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

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

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

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

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

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

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

Read the opinion here: Martin v Cleveland-Martin

Law Offices of Carson J. Tucker and Lex Fori, PLLC File Michigan Appeals Briefs Under Administrative Order 2019-6

We have been preparing, formatting and filing our briefs in the Court of Appeals and Supreme Court under Administrative Order 2019-6, which allows us to use all the readability and formatting tools of Adobe to create fully interactive and e-friendly briefs. As a former Supreme Court law clerk and an insurance coverage counsel, Mr. Tucker understands the convenience of having a fully interactive document with all file contents and citations referenced and linked for quick review.

The ideal briefs and appendices (which we strive to create) will contain fully interactive table of contents and bookmarks, links to cases, links to the direct location (page and line) in the Appendix and/or accompanying attachments and indices and tables of contents that are fully interactive – meaning the reader can toggle back and forth to the references and have immediate confirmation and documentary support for our arguments and factual assertions, respectively. We can also use a larger, eye-friendly font, which is critical for those who must read brief after brief, day in and day out!

Here’s one we filed in the Court of Appeals last month (January 2020) in a constitutional and property law case in the Michigan Court of Appeals. Mitchell.Brief.on.Appeal.01.17.2020

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

 

 

Court of Appeals Issues Ruling On Independent Contractor Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How is this defined?

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

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

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

Happy New Year!

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

I have been directly involved in at least four cases as the government’s appellate attorney (Odom v. Wayne County, Hamed v. Wayne County, Atkins v. SMART Bus, and the Court of Appeals opinions in Gentry v. Wayne County and Truett v. Wayne County), and tangentially involved writing as amicus curiae in many others, which have demonstrated and continued the trend the government and its individual actors should be protected to a great degree to allow the smooth and uninterrupted operation of government affairs in day-to-day life.  I continue to believe that unnecessary litigation and large damages claims are inconsistent with this.  The Michigan Supreme Court’s decisions, which I secured in Odom, Hamed, and Atkins, as well as the Court of Appeals opinions in Gentry and Truett, were instrumental in advancing this overarching theme that should be the focus of those defending actions against the government.

If anyone has questions about any of these opinions, please call the Law Offices of Carson J. Tucker.

Effective appellate representation demands different skills than those required by litigation attorneys.  Mr. Tucker is adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, Mr. Tucker is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.

Mr. Tucker’s research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provides his clients with efficient and immediate assistance with complex and high-exposure cases.

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

During the past decade, Mr. Tucker has been responsible for several seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.

Because of his specialized knowledge and focus on appellate law and his recognized expertise, Mr. Tucker has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.

Mr. Tucker presented direct representation to the defendants and prosecuted the entire appeal, including all appellate briefings and oral arguments before the Court of Appeals and Supreme Court in the following cases, among others:

• Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
• Atkins v. SMART, 492 Mich. 707 (August 20, 2012), application granted, and briefed and argued by Carson J. Tucker in the Supreme Court
• Gentry v. Wayne County Deputy Sheriff Daniel Carmona, unpublished opinion of hte Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580), briefed and argued by Carson J. Tucker in the Court of Appeals
• Hamed v. Wayne County, 490 Mich. 1 (July 29, 2011), briefed and argued by Carson J. Tucker in the Court of Appeals and Supreme Court
• Odom v. Wayne County, 482 Mich. 459 (December 30, 2008), application for leave to appeal granted, and briefed and argued by Carson J. Tucker in the Supreme Court

Mr. Tucker has also served as special appellate counsel for governmental entities and organizations in writing amicus curiae briefs in the Supreme Court and Court of Appeals in the following cases, among others:

• Hannay v MDOT, ___ Mich. ___ (December 19, 2014), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
• Yono v. MDOT, ___ Mich ___ (2014), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker
• Hagerty v. Manistee County Road Commission, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker

Mr. Tucker can be reached at +17342183605.