Insurers and Businesses Should Always Consider What Options are Available for Insurance Coverage and Recovery of Insurance Assets When Facing a Dispute, Claim or Lawsuit

One of the most important ways insurance companies and businesses can manage their assets and control their liability is to think creatively about insurance and insuring agreements in managing their day-to-day business operations.  Disputes, claims, and yes, lawsuits often arise in the ordinary course of thriving and vibrant businesses.  This is a natural consequence of a successful business managing risk in the process of seeking to maximize profits.

As insurance coverage counsel, I regularly advise businesses and insurance companies as to their defense and indemnity obligations under commercial general liability, errors and omissions, and workers compensation insurance policies, among others.

I have assisted insurance companies and businesses by guiding them through various aspects of coverage, including initial assessment of coverage positions, preparation and drafting of coverage opinions, including preparing related correspondence to the insurers or insureds, and other parties involved, e.g., coverage denials, reservation of rights, etc., and pursuing, where appropriate, declaratory judgment and/or indemnity and subrogation actions with respect to coverage issues.

In this capacity, I have had several significant successes in both state and federal courts in securing judgments for businesses and insurance companies or in forcing agreeable settlements with insureds and other insurance companies.  Some of the cases and issues I have worked on include the following:

 

• Providing coverage analysis and primary litigation support in filing a declaratory judgment action filed in federal court for a major national retail store as to potential coverage and indemnification from an insurer under an “additional insured” provision in a vendor / supplier contract between the store and the manufacturer. I served as primary insurance coverage counsel for the store relating to the underlying case, which was a personal injury / product liability lawsuit against the store involving paralysis of a 15-year old.  The plaintiff jumped into shallow water from a water trampoline manufactured by a company that sold a variety of recreation products in the retailer’s stores throughout the country.  The manufacturer and the retailer had a vendor-supplier agreement in which the manufacturer agreed to add the retailer as an additional insured to its general liability insurance policies, and provide indemnity to it for liability arising out of use of its products.  The insurer had agreed to defend the retailer in the lawsuit in Michigan.    Lawsuits were pending against the manufacturer across the country for injuries suffered due to use of another one of its products.  The manufacturer filed for bankruptcy protection in the 8^th Circuit in Nebraska, after which the insurer pulled out of the defense of the retailer in Michigan.  I prepared a coverage opinion, concluding the insurer was obligated to continue defending the retailer, and I filed a declaratory judgment action in federal court in Michigan despite the bankruptcy stay.  I fended off attempts by the insurer to enforce the bankruptcy stay against the retailer in Michigan, won motions filed for contempt of the stay, and ultimately succeeded in forcing a settlement of the claim on behalf of the retailer for the total amount of the policy limits to which the retailer would have been entitled for coverage of the underlying claims.  This resulted in a $0 payout by the retailer in settlement of the underlying lawsuit in Michigan.

 

• Filing suit against an insurance company in federal court for denial of coverage of an underlying lawsuit involving a shooting at a gas station. The case is Employers Mutual Casualty Company v. Al-Mashadi et al., 2009 WL 2711963.  While the underlying lawsuit was pending in circuit court, I filed the declaratory judgment action in federal court, drafted the summary judgment motion and brief, and argued there was no coverage for the underlying lawsuit and claim arising out of a shooting by an employee of one of his friends when the two were engaged in horseplay with a gun belonging to the gas station’s owner.  After arguing the motion, the district court granted the insurer summary judgment, ruling no coverage was owed by the insurance company in the underlying lawsuit.

 

• Providing emergency litigation and appeal response to a zoning dispute in which an international energy company sought to construct (and did construct) a meteorological testing antenna (MET) a “wind testing tower”, without a proper zoning variance from the insured township. The township’s Zoning Board of Appeals rejected the power company’s appeal for a variance and the power company sued the township.  I stepped in and filed several injunctive motions, including an emergency circuit court appeal to thwart the power company’s efforts to permit the tower to remain as constructed on the property.  The circuit court issued injunctive relief (including an order to tear down the fully constructed tower) and forced the power company to pick up the insurer’s legal fees.

 

• Preparing a coverage opinion and denial of coverage letter in a defective construction / defective product dispute under an occurrence based general liability policy (including products / completed operations hazards coverage). The insured, a cement company, filed suit against contractors and subcontractors, and a city, for failure to pay for delivery of cement.  The defendants filed a counter-suit under various theories and alleged the cement was defective, causing defects in and need for repair to the newly installed sidewalks.  In its ruling in the underlying suit, the trial court concluded the cement met specifications required by the contract and was therefore not defective.  A combination of factors led to the defective sidewalks, but not the delivery by the cement company of a defective product. The weight of authority provides that no “occurrence” arises from the provision of a non-defective product when the manufacturer of that product seeks coverage for damages alleged as the result of incorporation of its product into other work.  Since the insured provided a product that met the specifications required for the municipal sidewalk project there was no “occurrence” and therefore no coverage for the claims in the underlying lawsuit.

 

• Providing a “second look” coverage opinion where in-house coverage counsel concluded there was no coverage for business interruption losses as a result of a large stage collapse and resulting debris field on the floor of the Pontiac Silverdome during summer months when the Silverdome was rented out for various events. The insured supplied the staging, decking and truss grids for the event.  Contractors and subcontractors were employed to erect it.  I analyzed the applicable policy language and concluded coverage was owed on the precise risk involved.  The policy covered “property damage” which included the loss of use of property caused by an occurrence, even if that property had not itself been damaged.  Michigan courts have awarded consequential damages such as “delay damages”, “lost profits”, and “diminution in value and use”, in cases under commercial general liability policies with similar or identical language to the policies covering “occurrences” “because of” “property damage”.  As none of the “business risk” exclusions in the policy applied, and it appeared the stage collapse was not due to the fault of the subcontractors or contractors employed to erect the stage, coverage was arguably owed and the insurer had a duty to defend and potentially indemnify the owner of the Silverdome.

Feel free to call or contact me if your business would like to explore options regarding insurance coverage and recovery.

 

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

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

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

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

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

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

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

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

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

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

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

For more than a century, Lacey & Jones has distinguished itself from other law firms by maintaining a robust Appeals and Legal Research Group.  Effective appellate representation demands different skills than those required by litigation attorneys.  Our appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, our seasoned appellate team is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.

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

During the last three decades alone, the Appeals and Legal Research Group at Lacey & Jones has been responsible for over 150 published decisions, including seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.  Because of its specialized knowledge and focus on appellate law and its recognized expertise, the Appeals and Legal Research Group at Lacey & Jones has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to the Michigan Attorney General and other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.   Below are some of the recent significant cases in which Lacey & Jones, LLP’s Appeals and Legal Research Group has participated.

• Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief to be filed after remand for Michigan Municipal League, et al., by Carson J. Tucker
• Omian v. Chrysler Group, LLC, 495 Mich. 859 (2013), application filed by Carson J. Tucker, Supreme Court remand to Court of Appeals on leave granted
• Ghanam v. John Does, 303 Mich. App. 522 (2013), application to appeal filed in Supreme Court by Carson J. Tucker
• State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
• Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
• Huddleston v. Trinity Health, et al., 495 Mich. 976 (2014), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
• Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
• Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
• McMurtrie v Eaton Corp, 490 Mich 976 (2011)
• Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
• Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
• Stokes v Chrysler, 481 Mich 266 (2008)
• Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
• Rakestraw v Gen Dynamics, 469 Mich 220 (2003)

Supreme Court Remands for Court of Appeals to Reconsider “Parallel Parking” Highway Defect Case

Attached is an order issued today, April 1, 2014, in the case of Yono v. Dep’t of Transportation.146603, by the Supreme Court.

This is the case in which the Plaintiff alleged a highway defect under the exception to governmental immunity found in MCL 691.1402(1), for injuries incurred when she slipped and fell in an alleged defect on the surface of a parallel parking area adjacent to highway M-22 in Sutton’s Bay.

I wrote an amicus curiae brief for Wayne, Oakland and Macomb counties in support of the state’s Application for Leave to Appeal, and then a supplemental amicus brief after oral argument was granted on the application to urge the Court to grant, reverse the Court of Appeals decision, which was in favor of the plaintiff, or to grant other relief as necessary.

The Court remands the case to the Court of Appeals for it to consider (1) “what standard a court should apply in determining as a matter of law whether a portion of highway was “designed for vehicular travel,” as used in MCL 691.1402(1); and (2) whether the plaintiff has pled sufficient facts to create a genuine issue of material fact under this standard.”

Prior information about this case were written about in my previous posts.  To see the progression of this case as it made its way through the appellate courts, and the involvement we had in furthering the interests of our clients, see the following prior links:

Amicus Curiae Brief Filed for Wayne, Macomb and Oakland Counties in Highway Defect Case

Oral Argument Held to Consider “Parallel Parking” Highway Defect Claim

Supreme Court Grants to Consider “Parallel Parking Spot” Highway Defect Claim After Amicus Brief Filed by Carson J. Tucker for Wayne, Macomb and Oakland Counties

Supreme Court to Consider “Parallel Parking” Spot / Highway Defect Claim

Court of Appeals Allows Claim Against Government for Highway Defect in Parallel Parking Spot

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

Feel free to call Carson J. Tucker, Chair of the Appeals and Legal Research Group at Lacey & Jones, LLP at (248) 283-0763 if you have any questions about any of these cases.  Mr. Tucker regularly participates in cases before the Supreme Court and Court of Appeals on issues touching many subject-matter areas of civil litigation, including governmental immunity.

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

• State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae to be filed for MTA, et al., by Carson J. Tucker
• Yono v. MDOT, ___ Mich ___ (2014), Court remands to Court of Appeals after oral argument on application granted, amicus curiae brief for Oakland, Macomb and Wayne Counties filed by Carson J. Tucker in support of the state’s application
• Huddleston v. Trinity Health, et al., ___ Mich ___ (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 Highway Defect Exception

In Yono v. MDOT, Supreme Court Case No. 146603, a case in which I submitted an amicus curiae brief for Macomb County Department of Roads, Oakland County Road Commission and Wayne County in support of the state’s application for leave to appeal, the Supreme Court granted oral argument on the application and invited additional briefing.  Read my previous posts about this case here, where I originally addressed the Court of Appeals opinion and predicted it would be subject to further review:

Court of Appeals Rules Parallel Parking Area Part of Highway Under Highway Exception to Governmental Immunity

Here is my amicus brief supporting the state’s application to the Supreme Court:

99370.sc amicus brief

I will be submitting a supplemental amicus brief per the Court’s grant order.

 

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.

Notice of Intent to Sue Government Sent to Third Party Claims Administrator Insufficient to Invoke Exception to Governmental Immunity – Court of Appeals Publishes Decision Holds Notice to Third-Party Claims Administrator Insufficient to Give Government Notice of Claim of Defective Sidewalk

On August 1, 2013, the Court of Appeals released a decision for publication in the case of McLean v. City of Dearborn, clarifying the strict requirements that notice of a claim for defective sidewalks under the highway exception to governmental immunity must be served on the individuals authorized by the governmental immunity statute, not the third-party claims administrator.  Under MCL 691.1404 a plaintiff must provide the requisite specificity with their notice to a governmental entity to perfect a claim and to allow the courts to exercise subject matter jurisdiction over the underlying claim against the government.  Here, the Court rules the first notice plaintiff’s attorney sent to the governmental entity was insufficient in the degree of specificity required by the statute, failing to note the exact nature and location of the alleged defect.  The Court further rules, on the primary issue in the case, that a corrective notice letter sent to the governmental entity’s claims administrator was insufficient because it was not addressed and served upon the proper governmental entity or its agents for receipt of such notice.

The dissenting judge argued the court rules allow service upon a person authorized in writing or by law to receive such notice and there was at least a question of fact as to whether the particular claims administrator was so authorized.

The decision is published and garnered one dissent.  It is likely to be challenged in the Supreme Court.  However, recent trends in cases addressing notice provisions are leaning more towards the underlying notion that governmental immunity is jurisdictional in nature.  Therefore, any defect in the attempt to assert a claim against the government, be it technical or substantive, is deemed a failure of the party asserting the claim to prove the Legislature intended, in the particular case, to vest the judiciary with subject matter jurisdiction over claims against the government.  As the saying goes, the state, i.e., the sovereign created the courts and so is not subject to them or their jurisdiction without the expression of the people’s will to so submit.  Such expressions come from the Legislature in the few statutory exceptions available to pursue claims against the government in the Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq.  Absent strict compliance with these provisions, the courts simply cannot exercise jurisdiction over the merits  of the claim.

Although this jurisdictional theme has only been obliquely addressed, there is a clear line of precedent to support the theory and the common law of governmental immunity prevails still in Michigan absent express legislative waiver.  I argued Atkins v. SMART, 492 Mich. 708 (2012) before the high court in part on this theory.  While the Court reversed the lower court and ruled in our favor there, it did so on the notion that strict compliance is required with notice provisions waiving the government’s suit immunity.  It did not directly address the preclusive jurisdictional argument I presented; although courts may sua sponte challenge a lower tribunal’s exercise of subject matter jurisdiction over a particular case, even at the highest appellate level.

Michigan Supreme Court Holds Employee Injured In Parking Lot Not Owned or Leased by Employer Did Not Suffer Injury “arising out of” or “in the course of” Employment Sufficient to Prove Right to Workers Compensation Benefits

On June 21, 2013, the Michigan Supreme Court issued a peremptory (in lieu of) order under MCR 7.315(H)(1) reversing the decisions of the lower tribunals (the Michigan Court of Appeals) and remanded this case to the Michigan Compensation Appellate Commission for entry of judgment in favor of the employer and its insurer and against the employee ruling that the employee’s injuries did not “arise out of and in the course of” his employment.

The employee slipped and fell in a parking lot while going to his office.  The Court reverses holding that the injury did not arise out of or in the course of the employee’s performance.  MCL 418.301(3) provides an employee going to or from work while on the premises where work is to be performed is presumed to be in the course of his employment.  However, the Court points out that if the parking lot is not owned, leased or maintained by the employer it is not premises upon which work is to be performed and does not fall within the meaning of the “coming and going” provision or the case law interpreting it.

Read the Court’s order here: Mohney v. AIG et al.Order.06.21.2013

2-1 Court of Appeals Opinion Rules Landlord Not Liable to Tenant for Failure to Maintain Common Pathway to Access Trash Disposal

This is an interesting case if only for the colloquy between the majority opinion and Judge Shapiro’s dissent.

The facts are unremarkable. Plaintiff was a residential tenant living in an apartment owned by the defendant.  Several other tenants lived in separate apartments in the same structure.  A common area (driveway / pathway) was accessed by all the tenants to dispose of their trash in trash bins located outside the dwelling.

Plaintiff injured herself when falling upon ice and snow accumulation on the narrow, singular pathway that led to the trash bins.  She filed suit alleging common-law premises liability and a failure to maintain the premises on the part of the landlord under MCL 554.139 (the “fit for its intended use” provision under the Landlord-Tenant Act).

The circuit court granted the landlord’s motion for summary disposition, ruling that the condition was open and obvious under the common-law defense to a premises liability claim, and, further, that the landlord breached no duty under MCL 554.139.

In a 2-1 decision (Whitbeck and Saad in the majority; Shapiro in dissent), the Court of Appeals affirmed.  Affirming the trial court’s disposition of the common-law claim and addressing the statutory claim, the majority held that as long as the common area was reasonably fit for its intended use and purpose, there was no breach under MCL 554.139.  The majority also injected a concept from the common-law open and obvious doctrine, reasoning that in Michigan one can expect common areas open to the elements to be affected by accumulations of snow and ice and ideal conditions for access and use are not to be required.

Judge Shapiro raises some interesting points in his dissent.  First, he points out that the act of which MCL 554.139 is a part is to be “liberally construed” according to the Legislature’s own mandate: MCL554.139(3).  Next, Judge Shapiro argues that the Supreme Court’s decision in Allison v. AEW Capital Mgt. LLP, 481 Mich. 419 (2008), which the majority here viewed as dispositive to deny Plaintiff’s claim, actually contained the important caveat that where a review of the record and facts demonstrates that the common area was reasonably fit for its intended use and/or purpose, then an appellate court can make the determination, but the question is one of “fact” in the first instance, and therefore, should be left to the discretion of the fact-finders, i.e., the jury.  Moreover, Judge Shapiro points out that the question must be considered in light of the legislative mandate to liberally construe the provision, which is, in this case, a liberal or expansive reading of the landlord’s duty to keep the common areas fit for their intended use.  He concludes that it is presumptuous to believe that the Supreme Court would usurp the legislature’s mandates by injecting common law defenses concerning “open and obvious” and “premises liability” into the statutory duties found in the residential Landlord-Tenant Act.

In my judgment, Judge Shapiro has a point.  While the majority of the current Supreme Court is loathe to “liberally” or “strictly” construe any statutory provision, without more, the fact that the Legislature explicitly mandates such construction in my judgment requires precisely such a reading.

If the end result of that means that common law defenses to statutory duties are not available upon a reading of the duty-imposing provision, then this is the way the statute should be interpreted and applied.  As Judge Shapiro concludes: “[r]eaching this conclusion does not mean that [] plaintiff is entitled to a judgment against the defendant; only that under the law established by the Legislature she is entitled to her day in court and to have this factual questions determined by a fact-finder.”

The entire opinion can be read here:  Rousaki v. Souliotis

Court of Appeals Rejects Plaintiff’s Premises Liability Claim and Explains Difference Between “Speculation and Conjecture” and “Reasonable Inference” in Proving Negligence

In this otherwise unremarkable “slip and fall” case, the Court of Appeals neatly illustrates the insufficiency of speculation and conjecture about the cause of an alleged injury suffered by the plaintiff in the defendant’s store.

In Fedrick v. KMart Corp. et al.,  Unpublished Opinion of the Michigan Court of Appeals, released February 14, 2013 (COA Docket No. 307816), the plaintiff alleged she injured herself when she slipped and fell in the automotive supply aisle of the defendant’s retail store.  By way of allegation, she linked the cause of her fall to either (1) a new chemical used by the cleaning company to wax the floor in the aisle making it exceedingly slippery, and/or (2) an unknown substance spilled from one of the many automobile products on the shelves.  Plaintiff presented no linking evidence that either of these circumstances directly caused the alleged slippery condition, and therefore, her alleged fall.

The Court of Appeals correctly affirms the trial court’s dismissal of plaintiff’s case.  Citing to the bellwether decision Skinner v. Square D Co., 445 Mich. 153, 164-165 (1994), the Court of Appeals panel neatly summarizes the requirement that in order for a case to move forward to trial on the basis of allegations, there must be a causal linkage between the alleged catalyst for the incident and the actual happening of that incident, the latter of which serves as the basis for seeking damages.  At pages 2 and 3 of the opinion, the Court cites the language from Skinner, supra, and concludes that while the plaintiff presented “different plausible explanations” for why the floor may have been slippery, i.e., the use of a new cleaning product by U.S. Maintenance [the store’s floor cleaning contractor], or a spill from an automotive product, she presented no evidence to support the conclusion that either of these alleged incidents actually resulted in, i.e., caused, her fall.  There was no evidence presented regarding the chemicals used by the cleaning company and no evidence presented that a foreign substance was on the floor at the time of her alleged fall.

Quoting Skinner, supra, the Court notes:  “[A] conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference.  There may be 2 or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any 1 of them, they remain conjectures only….  The crucial factor is that “‘if [the] evidence lends equal support to inconsistent conclusions or is equally consistent with contradictory hypotheses, negligence is not established.”  Slip Op. at 2 (emphasis in original), citing Skinner, supra at 166-167.

Without evidence that the cleaning company actually did use a “new” chemical substance , or evidence (such as staining on plaintiff’s clothing, a report of a clean up at the location after plaintiff’s fall, etc.) that there was in fact a foreign substance on the floor at the time of plaintiff’s fall, which led to a condition of the floor making it any more slippery or hazardous than previously, plaintiff will fail to carry her burden to survive a summary motion brought pursuant to MCR 2.116(C)(10).  See also MCR 2.116(G)(5).