Michigan Supreme Court Issues Emergency Procedures and Guidance and Instructions to State Courts Regarding COVID-19 Response – March 15, 2020

The Michigan Supreme Court issued guidance and directives yesterday (Sunday) March 15, 2020 providing wide latitude to state courts regarding scheduling, court activity, access and limitations on holding public hearings. The Court’s order also included some directives requiring electronic pleadings and video conferencing in certain circumstances.

The Court makes sure to subject its guidance to statutory and constitutional limitations.

In all, the order frees up the courts and court facilities to ensure public health and safety is prioritized (Paragraph 8), while continuing the administration of civil and criminal judicial proceedings. Any fees for remote proceedings shall be waived (Paragraph 2). Trial courts can also waive any locally, self-imposed adjourment rules / policies / administrative and procedural time requirements.

Expect some disruption and delays / adjournments. I’ve already had a trial court sua sponte postpone an April 7 proceeding to August 7.

Below is the enumerated list of the Court’s order.

  1. Trial courts may adjourn any civil matters and any criminal matters where the defendant is not in custody; where a criminal defendant is in custody, trial courts should expand the use of videoconferencing when the defendant consents;
  2. In civil cases, trial courts should maximize the use of technology to enable and/or require parties to participate remotely. Any fees currently charged to allow parties to participate remotely should be waived;
  3. Trial courts may reduce the number of cases set to be heard at any given time to limit the number of people gathered in entranceways, lobbies, corridors, or courtrooms;
  4. Trial courts should maximize the use of technology to facilitate electronic filing and service to reduce the need for in-person filing and service;
  5. Trial courts should, wherever possible, waive strict adherence to any adjournment rules or policies and administrative and procedural time requirements;
  6. Trial courts should coordinate with the local probation departments to allow for discretion in the monitoring of probationers’ ability to comply with conditions without the need for amended orders of probation;
  7. Trial courts should take any other reasonable measures to avoid exposing participants in court proceedings, court employees, and the general public to the COVID-19 virus;
  8. In addition to giving consideration to other obligations imposed by law, trial courts are urged to take into careful consideration public health factors arising out of the present state of emergency: a) in making pretrial release decisions, including in determining any conditions of release, b) in determining any conditions of probation;
  9. If a Chief Judge or the court’s funding unit decides to close the court building to the public, the Chief Judge shall provide SCAO with the court’s plan to continue to provide critical services, including handling emergency matters.

Read the full order here:

Michigan Supreme Court Administrative Order 2020-1 In Re Emergency Procedures in Court Facilities

Michigan Supreme Court Poised to Decide Whether Strict or Substantial Compliance is Sufficient Under Highway Exception to Governmental Immunity

Oral arguments on applications to the Michigan Supreme Court have been scheduled to determine whether the notice provisions of the Governmental Tort Liability Act’s (GTLA) “highway exception” to immunity are to be “strictly” or only “substantially” complied with.

The order springs from two Court of Appeals cases, Wigfall v Detroit, and West v Detroit. Both cases involve, among other questions, the sufficiency of notice provided to the City under the “highway exception”, MCL 691.1404(2).

The Supreme Court has scheduled oral argument on several questions, including:

(1) whether strict or substantial compliance is required with the notice provision contained within MCL 691.1404(2), compare Rowland v Washtenaw County Road Commission, 477 Mich 197 (2007), with Plunkett v Dep’t of Transportation, 286 Mich App 168 (2009);

(2) whether the plaintiff’s notice failed to comply with MCL 691.1404(2) under either a strict or substantial compliance standard;

(3) whether an individual described in MCR 2.105(G)(2) can delegate the legal authority to accept lawful process under MCL 691.1404(2), see 1 Mich Civ Jur Agency § 1 (2018); and

(4) whether the defendant should be estopped from asserting that the statutory notice requirement was not met.

Here is the Court’s complete orders from both cases: Wigfall v Detroit MOAA Order and West v Detroit MOAA Order

The outcome of this case will be significant in consideration of governmental liability under the GTLA.

Law Offices of Carson J. Tucker has developed a particular expertise in prosecuting and defending appeals in state and federal courts, including the United States Supreme Court. The firm’s principal Carson J. Tucker is also a frequent author of amicus curiae (friend of the court) briefs in the United States Supreme Court and state and federal courts on behalf of various governmental and non-governmental entities, not-for-profit corporations, and individuals.

A significant portion of his practice is also focused on appellate matters in which his efforts are directed at changing the law for a wide swath of interested parties and stakeholders. In addition to being licensed to practice in Michigan, Mr. Tucker is admitted to practice in the Eastern and Western District Federal Courts in Michigan, the United States Court of Appeals for the Sixth Circuit, and the United States Supreme Court.

Mr. Tucker has also presented for the International Municipal Lawyers Association (IMLA) on the latest legal issues in municipal liability law under the U.S. Constitution,  and related state and federal legislation, covering his familiarity and expertise on the many diverse questions that arise in this ever-changing and dynamic area of the law.

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 +17348879261.

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.

 

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.

The Common Law is the Will of Mankind Issuing from the Life of the People

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

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

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

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

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

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

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

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

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

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

How is this defined?

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

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

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

Happy New Year!

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Tucker can be reached at +17342183605.

 

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

I previously wrote a short post about this case, but since I authored an amicus curiae brief for Michigan Townships Association, and the counties of Oakland, Wayne and Macomb, I have engaged in a bit more analysis.

The Supreme Court released its long awaited opinion in Hannay v. MDOT and Hunter v. Sisco, on December 19.

The underlying facts in both cases arose from motor vehicle accidents in which government owned vehicles were involved.  In Hannay, the plaintiff was injured when she was involved in an accident with a snowplow owned and operated by the Michigan Department of Transportation.  In Hunter the plaintiff was injured when his vehicle was struck by a dump truck owned and operated by the City of Flint.

Both plaintiffs sued, claiming they suffered bodily injury and economic damages and were entitled to tort damages in excess of the minimum benefits available to all individuals injured by the operation, use or maintenance of a motor vehicle under Michigan’s No-Fault Automobile Insurance Law (the No-Fault Act), Compiled Laws, MCL 500.3101 et seq. However, for those injured by ownership or operation of a government-owned vehicle, the additional layer of the Governmental Tort Liability Act (the GTLA) (Compiled Laws, MCL 691.1401 et seq.) limits a person’s causes of action and recovery of damages to the more narrowly construed confines of the “motor vehicle” exception to governmental immunity.  See MCL 691.1405.  Under this latter provision, a person injured by the negligent operation of a government-owned motor vehicle may only recover “bodily injury” and “property” damages.

The main issue in these cases addressed an apparent conflict in the law from the two separate opinions issued by the Court of Appeals.  In Hunter v. Sisco, the Court of Appeals ruled that a person may not recover noneconomic tort damages that are available to claimants under the No-Fault Act when filing a claim against the government under the motor vehicle exception.  Since that exception only allowed recovery for “bodily injury” and “property” damage, and since the courts have construed the provision narrowly, recoverable damages were limited to those associated only with the physical injury to the person, i.e., medical expense damages.  Thus, “pain and suffering” and “emotional distress” damages that are ordinarily recoverable in a tort action under the No-Fault Act were not available under the GTLA in actions against the government under the motor vehicle exception to immunity.

In Hannay v. MDOT, the Court of Appeals ruled that a person could claim excess tort damages (in that case excess economic benefits damages like wage loss and lost earning potential).  The Court of Appeals affirmed the trial court’s award for lost wages and for lost future potential earnings damages because the plaintiff had claimed that she was prevented from completing her education to become a dental hygienist.

Since both cases were published, and both rulings came to opposite conclusions about the extent and scope of recovery of damages under the motor vehicle exception of the GTLA, there was a conflict in the law.

Applications to appeal to the Supreme Court were filed in both cases.  The Supreme Court initially denied the application in the Hunter case.  It granted the State’s application in the Hannay case, and then subsequently granted a motion for reconsideration in the Hunter case after it became evident that resolution of both cases was necessary to address the fundamental underlying issues.

The Supreme Court’s opinion, joined by all of the Justices, with Justice Cavanagh concurring in the result only, is surprising in many respects.  Although the Supreme Court has for the better part of 40 years narrowly construed the exceptions to governmental immunity to include only those damages clearly identified as available to claimants under the GTLA in actions against the government, this principle of interpretation does not control the Court’s disposition of the result in this case.  Rather, the Court reasons that since the common-law definition of the term “bodily injury” prior to the 1964 passage of the comprehensive GTLA included pain and suffering and noneconomic damages for the claimant, and since the common law had not been explicitly overruled by the Legislature in its passage of the GTLA, the term continued to mean that such damages are recoverable to claimants.

Thus, the “tort damages” available to individual claimants under the No-Fault Act are also available to claimants who can prove such injuries and damages in actions against the government.

The Court comes to this conclusion despite very recent enunciations concerning the prioritization of the Legislature’s primary authority to define the law even in the face of prior judicial interpretations of the law, i.e., common law made by the decisions of the Supreme Court.  Further, the Court has also clearly indicated for decades that the GTLA requires even greater deference to the Legislature because it alone is the expression of the People’s will to be haled into court and answer for claims against the government.  Indeed, the Court has repeatedly stated that private and government actors are treated differently when addressing claims against them.

The Court’s opinion also does not address how the government can ever be held to the same standards and duties of an ordinary civilian under the auspices of the No-Fault Act.  The No-Fault Act provides that all Michigan citizens are responsible to provide primary no-fault benefits without regard to fault.  The GTLA requires a showing of fault, i.e., negligence, against the government in order for a claimant to be able to invoke the jurisdiction of the courts and to be entitled to damages.  Even though the No-Fault Act does provide for “tort damages” when a claimant can prove they suffered a “threshold injury”, i.e., an injury that causes serious impairment of a body function, this does not explain how and why the government must be subject to the same system applicable to other citizens in Michigan.  Another principle that the Supreme Court has adhered to since the beginning of statehood in Michigan, at least until now, is that the immunity of the government is jurisdictional.  Thus, litigation and liability can only be pursued via those means expressly defined by the Legislature as allowing suits against the government.  Otherwise, there is no consent, implicit or otherwise, to subject to the government, i.e., the People, to other liability and “no-fault” schemes under Michigan law.

Although this issue was not directly implicated in these cases, the failure to address it and answer the question in explaining that the government can indeed be held liable in the same parameters of liability and fault as ordinary citizens under the No-Fault Act blemishes an otherwise fairly visible and consistent image in the tapestry of jurisprudence created by the Court when addressing governmental liability in Michigan.

It is unfortunate that this opinion contains this evident erosion of the Court’s prior jurisprudence interpreting the GTLA.  It does not solidly adhere to the Court’s previously consistent themes in addressing governmental immunity cases post-1964 passage of the GTLA.  Because the term “bodily injury” exists in other exceptions to governmental immunity, this opinion will provide an opportunity for those seeking to expand the narrowly construed exceptions to the government’s liability.  It will also lead to additional and more strenuous litigation efforts against the government.  And, it will result in larger payouts by the government for damages claims under the GTLA, whether through settlements or judgments.

On that latter note, the one bright spot in the opinion is that the Court reverses the Court of Appeals affirmation in Hannay of the trial court’s allowance of speculative “future earnings potential” damages.  As mentioned, the Plaintiff claimed entitlement to future earnings as a dental hygienist, even though she never finished her educational certification for that particular job.  The trial court held that but for the motor vehicle accident, the plaintiff would have been accepted into a “dental-hygienist” program, would have graduated from that program, and would have been employed at least 60% of the time at the rate of $28 per hour.  The Court reasoned the damages award was far too speculative.  The plaintiff did not prove by a “preponderance of the evidence” that she would have earned such wages if not for the accident.  “The number of conditions that had to be satisfied before Hannay could have been employed as a dental hygienist indicated that this case involved more than the inherent uncertainty of work-loss claims in general, rendering the award impermissibly contingent and speculative.”   Syllabus, and Slip. Op. at p. 38.

I continue to diligently monitor this and all other cases touching on the government’s liability and exposure under the exceptions to the GTLA.  It is unfortunate that this particular case appears to be a setback in the otherwise strong opinions issued by the Court in the past decade when addressing actions against the government.

My earlier posts about these cases can be found at the following links:

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

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

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

Supreme Court Amicus Curiae Brief Filed in Support of State’s Appeal in Motor Vehicle Exception Case

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

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

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

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

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

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

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

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

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

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

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

Mr. Tucker can be reached at +17342183605.

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

In a much awaited opinion, the Michigan Supreme Court has held that a claimant may recover “nonecconomic damages” such as “pain and suffering” and “emotional distress” damages and excess “economic damages” in actions against the government under the “motor vehicle” exception to governmental immunity.

Two lower appellate court cases came to opposite conclusions about whether the term “bodily injury” in the motor vehicle exception, Compiled Laws (MCL) 691.1405, including such excess economic and traditional, tort “noneconomic” damages.

Before this opinion, the Governmental Liability Act (GTLA) had been construed narrowly to the strictest confines of the definition of terminology used in that act.  However, the Court here rules that because the common law jurisprudential definition of the term “bodily injury” had traditionally included these types of damage claims, and because the Legislature never explicitly reined in that definition, even after passage of the 1964 GTLA, the statutory term as used in the “motor vehicle” exception, and, likely in other sections of the GTLA will make such damages available to the claimant in actions against the government.

Read the opinion here:  Hannay-Hunter Opinion Supreme Court

I submitted an amicus curiae brief in the Michigan Supreme Court calendar session on this case for Michigan Townships Association and the counties of Macomb, Oakland and Wayne.  (99705-sc-amicus-curiae-br).

I also participated in a panel discussion about this case at the State Bar Negligence Law Section meeting in September.

Read more extensively about this case, including the lower appellate court opinions in my previous post, here:

http://amicus-curious.com/2014/09/22/supreme-court-to-address-interplay-if-any-between-the-no-fault-act-and-the-governmental-tort-liability-act/

If anyone has questions about this case and its impact, please let me know.

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

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

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

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

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

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

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

 

Equitable Tolling of Medical Malpractice Claim Waiting Period on Supreme Court’s Mini-Oral Argument Calendar

The Michigan Supreme Court has ordered mini-oral argument to be held in two cases addressing a very significant issue dealing with whether trial courts can disregard the notice waiting period required before filing a complaint in a medical malpractice action, either by disregard of the defect or allowing amendment of the complaint under MCL 600.2301.

Here is the Court’s order, Furr v. McLeod Order, which the Court consolidated with another case addressing the same basic issue, Tyra v. Organ Procurement Agency of Michigan, et al., MOAA Order.

I previously wrote about these cases as they were making their way up through the Court of Appeals.  Those prior posts are below:

Equitable Amendment of Complaint Allowed in Med Mal Action

Court of Appeals Impanels Conflict Panel to Consider Whether Trial Courts Can Allow Defective Medical Malpractice Claims to Go Forward