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.

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

Last Friday, September 19, 2014, I participated in a panel discussion at the Negligence Law Section breakout at the state bar conference in Grand Rapids to discuss the Michigan Supreme Court’s upcoming (October 8) hearing of oral arguments in the calendar cases of Hunter v. Sisco, et al, and Hannay v. MDOT, the latter in which I submitted an amicus curiae brief for Michigan Townships Association, and the counties of Macomb, Oakland and Wayne (99705.sc.amicus.curiae.br).

Here is the two-paged handout distributed at the session. (Hunter-Hannay Venn Diagram Final.9.17.2014.1226 and Hunter Hannay page 2).

Based on the outcome of that event, there is still much debate about the result in Hunter (no noneconomic damages can be awarded against the government under the motor vehicle exception to governmental immunity, MCL 691.1405, even though such damages are ordinarily available against “civilian” defendants under Michigan’s Automobile Insurance “No-Fault” Act, MCL 500.3135).

Of course, Hannay came to the opposite conclusion, only with respect to “excess” economic (wage loss) and future earning potential, which is why the cases have been consolidated.

Some issues raised at the discussion concern how to quantify or identify “bodily injury” damages.

I believe this would be medical expenses related to the physical injury, only.  However, such “damages”, and liability therefor, are ordinarily borne by the first-party, no-fault carrier, not the third-party tortfeasor under MCL 500.3135.

Thus, how can any liability be imposed against the government when you mesh the outcome of applying the GTLA and the No-Fault Act to motor vehicle accidents in which the government’s negligent operation of a motor vehicle causes injury.  See the Venn Diagram I created (the overlap, if any, is the real sticking point and where the case law and/or the legislation will have to be reconciled, eventually).

One suggestion I have made is that perhaps the first-party, no-fault carrier can bring a subrogation action against the government if the PIP carrier can prove negligence and injury, just as a PIP carrier might seek subrogation under MCL 500.3109 from another carrier that is otherwise liable according to the law.  In my work on worker’s compensation cases, we see this a lot.  The no-fault carrier will seek to implicate the worker’s compensation carrier claiming the injuries incurred in an auto accident arose out of and in the course of employment, and thus, are the primary responsibility of the worker’s compensation carrier. Under the statute, the no-fault carrier steps into the shoes of the plaintiff seeking recovery of the benefits, and thus, the no-fault carrier would have to prove negligence and liability on the part of the government under the motor vehicle exception.  I think it could be argued MCL 500.3109 would work the same way vis-à-vis the government.  Although, this is just a theory.  Hunter / Hannay are not likely to address this latent issue.

Another issue that arose was the indication that even before the 1965 GTLA accidents caused by government owned/operated motor vehicles allowed for recovery of damages that were similar, if not identical in nature to noneconomic damages, i.e., pain and suffering, mental anguish, etc.

Why is the term “bodily injury” in the GTLA now restricted only to physical injury?  My answer would be the strict construction of statutes waiving the government’s immunity forbid court’s from expanding the meaning of terms.  Although, the counter to that is that the legislature adopted the term in the motor-vehicle exception with the “common law” definition allowing for such expanded damages in the first place.  This would be a good argument if not for the fact that we are discussing governmental immunity from liability and suit.  The assumption is only the legislature can waive the government’s immunity, and therefore, if the liability is to be “expanded” it has to come in express language.  The courts can restrict or limit the meaning of the terms in the GTLA exceptions, but they cannot expand the meaning.  This is well-established in Michigan case law.

Another theory I raised in my amicus brief for MTA / Oakland, Wayne, and Macomb counties was whether the government can ever be liable for first-party PIP benefits under the no-fault act when the motor vehicle exception requires a demonstration of “fault” on the part of the government.

This is also not an issue that will be addressed by Hunter / Hannay, but given the jurisdictional nature of government immunity, and the fact the government is immune from liability unless within the explicit legislative exceptions of the GTLA, it is a question that will have to be answered eventually (even thought the government has presumed it is subject to the No-Fault Act for the more than 40 years of the latter’s existence, and of course, continues to participate in the system as both a No-Fault “PIP” carrier (either self-insured, or through an auto insurance carrier (or both))), and as a presumptive third-party tortfeasor.

The question was also raised why, if Hannay came out as a published opinion before Hunter, which it did, why Hunter did not follow Hannay under the “first out” rule.  Although, that matters little if the Supreme Court has consolidated the cases to address the issues.

Finally, as I noted in my presentation, Hunter actually retained the “threshold injury / serious impairment” analysis even though it rules there are no noneconomic damages available under the No-Fault Act.

What does this mean?  Why would the threshold injury analysis even matter if the government is only responsible for “bodily injury”?  Does this mean that the government is only responsible for serious impairment or threshold “bodily injury” and nothing below, or less than that?

I doubt this is what the COA panel in Hunter meant, but it was a curious statement that they made at the end of the opinion.  Perhaps they were trying to reconcile their opinion with the Hardy v. Oakland County case in which the Supreme Court held that a plaintiff suing under the motor vehicle exception, MCL 691.1405, still had to prove threshold injuries under MCL 500.3135 of the No-Fault Act.

It will be interesting to see oral argument in the case on October 8.

Carson J. Tucker has participated in and argued some of the most significant governmental immunity cases in Michigan during the past decade.

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

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

In addition, Mr. Tucker has provided direct support to governmental entities in filing “friend of the court”, i.e., amicus curiae briefs in support of the governmental defendants in the following cases:

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

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

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

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

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

Supreme Court Poised to Address Damages Claims Against Government for Negligent Operation of Motor Vehicles

As I mentioned in a previous post, the Michigan Supreme Court issued a reconsideration and Grant Order, and a Consolidation Order, with respect to the Court of Appeals’ decisions in Hunter v. Sisco, et al. and Hannay v. MDOT cases and will consider them together as calendar cases in the fall.

This is turning out to be a significant case both for no-fault insurers, as well as for governmental entities.

The question to be addressed in each of these cases is whether a plaintiff can recover damages available under the No-Fault Automobile Insurance Act, MCL 500.3101 et seq. (non-economic tort damages (Hunter) and excess economic benefits damages (wage loss and future earning potential) (Hannay), when the motor vehicle exception to governmental immunity in the Governmental Tort Liability Act (GTLA), MCL 691.1405, limits damages available to a plaintiff injured by the negligent operation of a government-owned motor vehicle to “bodily injury” and “property” damages.  I do not believe the government has consented by express legislation to submit itself to the provisions of the No-Fault Act, notwithstanding the Court’s previous, but cursory, conclusion in Hardy v. Oakland County, 461 Mich. 561  (2000), that a claimant suing the government under the motor vehicle exception still had to prove a “threshold” injury under the no-fault act to recover damages.  Indeed, the “threshold” injury requirement only avails the plaintiff of those noneconomic benefits damages that the COA panel in Hunter said could not be awarded against the government.

The implicit reading from Hardy and some other prior cases (e.g., Trent v. SMART, 252 Mich. App. 247 (2002), is that since the government “owns” and “operates” motor vehicles, and is therefore considered a registrant of those motor vehicles, it too must participate in the no-fault automobile insurance system.

My strong belief is that if the government is going to subject itself to a system of liability that imposes damages without regard to fault (first party bodily injury damages), and excess economic benefits damages and noneconomic damages that can be awarded against an ordinary (non-governmental) tortfeasor where fault, i.e., negligence, is proved (damages in excess of “bodily injury” damages) that must come via an express statement of an exception to the government’s broad immunity, and through the GTLA.  In Estate of Bradley, 494 Mich. 367 (2013), a case from last term, the Court unequivocally stated if a claimant seeks to impose any “tort liability” against the government, that liability can only be sought to be imposed under the exceptions in the GTLA.

As it stands, I believe the case of Wesche v. Mecosta County Rd Comm’n, 480 Mich. 75 (2008) provides clear guidance, if not precedent, for the proposition that damages awardable against the government must be those, and only those, expressly allowed by the motor vehicle exception, i.e., “bodily injury” and “property” damages.  Indeed, there is a statement in Wesche, which I quote at pages 25 and 26 of the amicus curiae brief I filed in the Hannay case (99705-sc-amicus-curiae-br), in which the Court appears to have foreclosed the future assertion that the government would be liable for the noneconomic damages at issue in Hunter and excess economic benefits damages at issue in Hannay.

Of course, the conclusion should be the same if one asserts a right to statutory damages for “first-party no-fault benefits” against the government under the No-Fault Act, which are automatically payable where injury arises from the operation, maintenance, use or ownership of a motor vehicle without regard to fault, i.e., without regard to negligence.  How can the government be liable for such damages when it has only expressly consented to waive immunity for “bodily injury” damages caused by negligence as provided in the motor vehicle exception (and perhaps for “gross negligence” under the proper proofs as provided in MCL 691.1407) of the GTLA?

Granted, neither Hunter or Hannay address this issue, but the end consequence of the outcome will have to reconcile how the government can be said to be a participant in a liability scheme that imposes liability for bodily injury damages without regard to fault.  Perhaps this is an issue for another day.  I did mention the apparent conundrum in my amicus brief in Hannay.

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 Both “Noneconomic” and “Economic Benefits” Damages Cases Against Governmental Entities

As I had predicted in earlier posts (see below), and suggested in my amicus curiae brief to the Supreme Court in Hannay v. MDOT, Supreme Court Docket No. 146763, yesterday, the Michigan Supreme Court issued an order granting reconsideration of the application filed in Hunter v. Sisco, Supreme Court No. 147335, ordering the parties to address whether non-economic tort damages can be awarded against the government under the motor vehicle exception to governmental immunity(Hunter.Grant.Reconsideration.Order).

The Court simultaneously adjourned oral argument in Hannay to place both cases on the oral argument calendar together. (Hannay.Adjournment.Order).

The Governmental Tort Liability Act (GTLA) allows a claimant to recover for “bodily injury” and “property” damages, only, for injuries received as the result of the negligent operation of a government-owned motor vehicle. The No-Fault Act allows a motorist injured in an automobile accident to recover economic and non-economic damages under certain circumstances.  The Court of Appeals in Hannay ruled the government was required to pay these other types of damages.  The Court of Appeals in Hunter ruled the government was not liable to pay such damages under the No-Fault Act.

Lacey & Jones, LLP’s Appeals and Legal Research Group submitted an amicus curiae brief on behalf of the Michigan Townships Association, Macomb County, Oakland County and Wayne County in Hannay. Supreme Court Amicus Brief for MTA, Oakland, Wayne and Macomb

The outcome is likely to affect both No-Fault insurers as well as governmental entities in their future liability and risk apportionment.  There are substantial implications involving the costs to the government of continuing to bear the burden of damages claims and liability that it should not be held responsible for under the motor vehicle exception.  However, there are also implications to other No-Fault insurance carriers who participate in the apportionment of tort liability under the No-Fault Act.

My previous writings about this current issue are posted here:

Supreme Court to Consider Scope of Government’s Liability for Automobile Accident Damages Claims

Hunter v. Sisco – Court of Appeals Rules Government Not Liable for Noneconomic Damages Claims

Amicus Curiae Brief for MTA, Oakland, Wayne and Macomb Counties Weighing in On Scope of Government’s Liability Under No-Fault Act and Motor Vehicle Exception to Immunity

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.

 

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.

Supreme Court Denies Challenge to Court of Appeals Holding that Term “Bodily Injury” in Motor Vehicle Exception to Governmental Immunity is Limited to Medical Damages for Corporeal Injury to Body and Does Not Encompass Non-Economic Tort Damages

In an order issued yesterday, Hunter v. Sisco.sct.order.11.20.2013, the Michigan Supreme Court denied an appeal challenging the Court of Appeals published opinion, which held the term “bodily injury” in the statutory provision known as the motor vehicle exception to governmental immunity in the Governmental Tort Liability Act (GTLA), MCL 691.1405, does not encompass non-economic tort damages, such as pain and suffering, etc.

I previously wrote about this case in a blog post here:  Supreme Court Asked to Consider Extent of Damages Available for “Bodily Injury” Under the Motor Vehicle Exception to Governmental Immunity.

The Court of Appeals published opinion, Hunter v. Sisco et al, has already been cited by other cases for the proposition;, as I explained in a blog post here about another Supreme Court order denying an application to consider a similar ruling: Supreme Court Denies Application to Consider Whether Bodily Injury Encompasses Bystander Emotional Trauma / Pain and Suffering / Non-Economic Damages Under the 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.

Supreme Court to Consider Meaning of “Bodily Injury” Under Motor Vehicle Exception

I am writing an amicus curiae (friend of the court) brief on behalf of Wayne County and Michigan Townships Association, among others, in this public liability case in which the Supreme Court has granted the State of Michigan’s application for leave to appeal to address whether “bodily injury” liability available against the government under the “motor vehicle” exception to governmental immunity encompasses damages other than those directly related to those associated with corporeal physical injury to the plaintiff. The case will have a significant impact on the day-to-day operations of the government and the decision will have consequences upon the ability of governmental entities to fund public services.

See my previous post about this case here:

Supreme Court to Consider Scope of “Bodily Injury” Under Motor Vehicle Exception

Bus Passenger’s Cause of Action Dismissed Against Transportation Commission – Court of Appeals Affirms Trial Court’s Judgment for Transportation Commission

In Palmer v. Blue Water Area Transportation Commission, the Court of Appeals affirmed a trial court’s judgment of no cause of action against a governmental entity (here a transportation commission) in a suit by a bus passenger alleging negligence and gross negligence against the governmental entity and its employee, respectively.

Plaintiff fell while boarding the bus.  She attributed the fall to the driver’s actions, claiming the driver allowed the bus to lurch or move forward as she was boarding.  Plaintiff’s story was inconsistent.  In various contexts, she gave varying versions of what happened prior to her fall.  The bus driver testified the bus was in park and she had her foot on the brake while plaintiff boarded the bus and did not move the bus prior to plaintiff’s fall.

Since defendant was a governmental entity, the plaintiff claimed negligent operation of a motor vehicle, under the motor vehicle exception to governmental immunity (MCL 691.1405); gross negligence against the driver, claiming that such negligence was the proximate cause of her injuries (MCL 691.1407); and that she suffered a “threshold injury” (serious impairment of a bodily function) under MCL 500.3135 of the No-Fault Act.

Primarily finding plaintiff’s testimony to be inconsistent and therefore not credible, the trial court judge granted the governmental entity’s motion for judgment finding no cause of action existed.

The Court of Appeals affirms in this opinion.  The opinion is rather unremarkable as a whole, but it does contain a convenient synopsis of the standards applicable to bring a cause of action under the motor vehicle exception and the gross negligence exception to governmental immunity.  It also points out that to prove a threshold injury for (economic or non-economic) damages under the No-Fault Act, the plaintiff must first establish the proper standards of care and that such standards were breached by the governmental entity.

This is significant, because it establishes the fundamental principle that before a plaintiff can seek any ordinary tort damages arising out of the alleged operation of a motor vehicle under the No-Fault Act in an action against a governmental entity, he or she must first establish the existence of a valid statutory exception to immunity.

The correlation between the Governmental Tort Liability Act (the GTLA), and, specifically, the “motor vehicle” exception under MCL 691.1405, and the No-Fault Act, MCL 500.3100 et seq. provides some interesting issues, many of which are either making their way up through the appellate courts, or residing on applications or grants thereof in the Supreme Court of Michigan.

For example, the Supreme Court has granted to consider the extent of “economic damages” available to a plaintiff injured in an automobile accident with a government vehicle in the case of Hannay v. MDOT, Supreme Court Case No. 146763 (see the Court’s grant order here: hannay-v-mdot).  This is a significant case as the Court is set to consider the extent and scope of damages available in actions against the government within the meaning of MCL 691.1405, which allows only for “bodily injury and property damage” in actions for negligent operation of a motor vehicle.  I previously wrote a blog explaining the details of this case, which you can read here:  Supreme Court to Consider Scope of Damages Available for “Bodily Injury” Under the Motor Vehicle Exception to Governmental Immunity.  I am also writing an amicus curiae brief on behalf of several entities in this case.

In Hunter v. Sisco, ___ Mich. App. ___ (2013), which was cited by the Court of Appeals panel in this case, cross applications have been filed.  Underlying issues in that case include the extent of “noneconomic” damages available to plaintiffs claiming negligent operation of a motor vehicle under MCL 691.1405.  I wrote about that case in an earlier blog which you can read here:  Supreme Court Asked to Consider Whether “Non-Economic Damages” Are Available to Plaintiffs in Actions Against the Government Under the Motor Vehicle Exception to Governmental Immunity.  The disposition of Hannay could very well impact the outcome of this case.

It appears the answer to the latter question, to wit, whether non-economic damages are available under the motor vehicle exception, is considered by the Court of Appeals to be “No”.  Just yesterday, I wrote about a case in which the Court of Appeals, again citing Hunter, held non-economic, pain and suffering damages were not available to a plaintiff in a wrongful death action against the government filed, in part, under the motor vehicle exception.  The Supreme Court denied the plaintiff’s application for leave to appeal in that case.  See my post here:  Supreme Court Denies Application to Reconsider Court of Appeals Decision Affirming Non-Economic Damages Are Not Available Against the Government Under the Motor Vehicle Exception.

The issue remains extant because the Supreme Court has not directly addressed the “scope and extent” of the damages that are available to an individual plaintiff in actions against the government under the motor vehicle exception.  The closest case, which is cited in the Supreme Court’s grant order in the Hannay case, is Weschler v. Mecosta County Rd. Comm’n, 480 Mich. 75 (2008), which defined the term “bodily injury” under the GTLA’s motor vehicle exception as “physical or corporeal injury to the body”. Weschler however addressed “loss of consortium” damages claimed by the plaintiff’s spouse and held that such claims were not recoverable under the “motor vehicle exception”.  Id.  This did not answer the question of the extent and scope of damages available directly to the plaintiff claiming injury to his or her own person under the 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.

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.

Supreme Court Denies Application to Consider Whether Noneconomic Damages are Available Under No-Fault Act Against Governmental Entities

In Hodges.v.City of Dearborn et al, the Court of Appeals reversed a trial court’s decision to allow a suit to proceed against a governmental entity in a wrongful death, liability suit involving a collision between a police vehicle responding to a reported fire and the plaintiff’s decedent’s vehicle.  The Court of Appeals held the plaintiff’s estate could not proceed against the governmental entity and the individual police officer on several fronts.  Most remarkable at this point is the Court’s reference to the decision in Hunter v. Sisco, et al., which I wrote about in a previous blog post Hunter v. Sisco, et al. Application Filed in Supreme Court, for the proposition that noneconomic, emotional / pain and suffering damages are not available in actions against the government under the motor vehicle exception to governmental immunity.  MCL 691.1405.  As mentioned, the application to address that issue is currently pending in the Supreme Court in Hunter.  The Supreme Court also recently granted an application to address the “scope” of “bodily injury” damages available under the motor vehicle exception – to consider whether that term encompasses economic damages that are ordinarily available to plaintiff’s in motor vehicle accident cases.  Read my blog post about that case here:  Hannay v. MDOT – Supreme Court Grants to Consider Scope of Available Damages Under Motor Vehicle Exception to Governmental Immunity

The Supreme Court’s order denying leave is here:  Hodges v. City of Dearborn.SC.Order

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

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)