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This case has been up to the Supreme Court, which changed its mind on review, and then down again. The issue addressed in the first Court of Appeals opinion concerned the date the 180-day appeal period begins to run from denial of a FOIA request.
The circuit court ruled the date of receipt by the government agency triggered the period. The Court of Appeals reversed, holding that the date of the postmarked response denying the request was the trigger date. This rendered the plaintiff’s appeal timely. The Supreme Court initially granted the Michigan State Police’s application for leave to appeal, but then vacated that order in January of 2012.
This opinion by the Court of Appeals addresses a second appeal by the plaintiff concerning the important issue of calculating “reasonable attorney” fees that can be awarded for a governmental entity’s arbitrary and capricious denial of a FOIA request.
The Court here, in a published opinion, remands to the circuit court, commanding an analysis of that issue pursuant to the Supreme Court’s guidance in The Court here concludes the list of factors enunciated in Smith, and as found in Rule 1.5(a) of the Michigan Rules of Professional Conduct, applies as well to the question of attorney fees in FOIA cases. , 481 Mich. 519, 526-533 (2008).
The important take away from this case, , and others that address the statutory award of attorney fees is that the “reasonableness” calculation is left to the discretion of the trial court judge and can be “more” or “less” than that being requested by the attorneys submitting the bill to the court.
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In Unpublished Opinion of the Michigan Court of Appeals, released February 14, 2013 (COA Docket No. 307816), the plaintiff alleged she injured herself when she slipped and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 automotive products on the shelves. The 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 the plaintiff’s case. Citing to the bellwether decision 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. , 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 , , 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 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.
Quoting at 166-167. , , the Court notes: ”[A] conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. 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 ,
Without evidence that the cleaning company actually did use a “new” chemical substance , or evidence (such as staining on the plaintiff’s clothing, a report of a clean up at the location after the plaintiff’s fall, etc.) that there was in fact a foreign substance on the floor at the time of the 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).
Lacey & Jones, LLP recently secured a decision from the Michigan Compensation Appellate Commission, which significantly addresses a plaintiff’s burden of proof under step four of .
Second, the Commission concludes a claimant’s ability to work fluctuates with a person’s physical condition.
Third, the Commission notes: “[T]he next step further concentrate[s] the job list to those jobs that are: 1) suitable to the plaintiff’s qualifications and training; 2) within plaintiff’s work related restrictions; and additionally 3) available to plaintiff. This step routinely involves vocational surveys and plaintiff directed job searches. This step is glaringly missing from the analyses. To adequately address this step . For example, a vocational expert may perform a job market survey that only examines the job market during a specific week. Or, as in this case, plaintiff may exhibit varying degrees of tenacity when looking for work.
Under this analysis, it is unlikely that an individual will be receiving full benefits if he or she can work. It also requires more of vocational experts from both sides.
This case demonstrates the importance of having experienced coverage counsel analyze and apply all potential theories of coverage, including exclusions, at the defense stage of proceedings to determine coverage obligations in a declaratory judgment action.
The plaintiff in the underlying lawsuit was shot by the defendant insured during a hunting incident. The shooting was clearly an accident, as the hunter (stupidly, if not criminally) fired at a flash of white he thought was a deer he flushed out while walking around a field at dusk.
The insurer insured the defendant under a homeowner’s policy. The insurer filed a declaratory judgment action seeking to avoid coverage. It raised the “criminal acts” exclusion, while conceding an occurrence. The exclusionary language excluded coverage for “a criminal act or omission” or for “an act or omission, criminal in nature”. However, the insurer only plead that the insured had violated MCL 750.235(1), which made it a misdemeanor to maim or injure “another person by discharging a firearm pointed or aimed intentionally but without malice at another person….” This was the only basis relied on by the insurer to seek a declaration that coverage should be excluded by the policy’s criminal acts exclusion.
The trial court concluded that the elements of this specific intent statute were not satisfied because the defendant in the underlying suit testified he did not know he was shooting at a person. Therefore, the trial court ruled the insurer owed coverage to the defendant insured for defense and potential indemnity to the plaintiff in the underlying lawsuit.
On appeal, the Court of Appeals (Fitzgerald, Meter, and M.J. Kelly) affirmed. It points out, more than once, that the insurer failed to plead or assert for exclusion under the policy. The insurer’s singular reliance on whether or not MCL 750.235(1) had been violated and the trial court’s disposition of that issue, was all the Court of Appeals could assess on appeal.
This case demonstrates the importance of having coverage counsel assess concerning coverage obligations, including whether or not and to what extent any of the coverage provisions, i.e., occurrence, claim, etc., and any exclusion (or any other exclusions) might be satisfied, or apply, respectively.
It also demonstrates the importance of exploring whether other potential facts implicate the broader language of the criminal acts exclusion. Certainly, it appears that “an act or omission, criminal in nature”, which the exclusion included, casts a wider net than the simple “specific intent” statute that the insurer here attempted to prove had been violated. Criminal negligence, reckless endangerment, recklessness, and a host of other criminal acts come to mind when considering the exclusion’s precise language.
This recent Court of Appeals opinion seems to skirt the definition of “sidewalk” within the meaning of the highway exception to governmental immunity in MCL 691.1402, and the definition provided in MCL 691.1401(e). , Unpublished Decision of the Michigan Court of Appeals, released February 14, 2013 (COA Docket No. 307683).
The plaintiff was injured when his bike tire struck a hole in an asphalt-paved pathway that followed a parkway, but which was separated therefrom by a 30-foot wide grass median / neutral area. The Court of Appeals panel cites the rule, established by the cases of , 228 Mich. App. 357 (1998) and , 461 Mich. 457 (2000) that in order to be considered a “highway” within the meaning of the highway exception, the sidewalk “must be (1) a path designed for pedestrian use, (2) usually paved, (3) running alongside and adjacent to a public road, and (4) ” See Slip. Op. at 4 (emphasis added).
The Court of Appeals ruled that the plaintiff met his burden to plead in avoidance of immunity by the allegations. However, the rule is that retained sovereign immunity is broadly conferred and the statutory exceptions thereto are strictly or narrowly construed. The emphasized element above, that the sidewalk, to be considered within the exception sufficient to invoke the government’s duty, must be “within the right of way of [the] road” to which it is adjacent does not appear to be fulfilled in this case. Only by a broad, rather than narrow, construction of the exception could a pathway separated from the true right of way of a “highway” by a 30 foot grass margin be considered a “sidewalk” within the exception.
This panel’s decision is suspect in light of the interpretive requirements applicable to the exceptions to governmental immunity.
In a published opinion, Michigan Head & Spine Institute, P.C. v. State Farm Mutual Automobile Insurance Co., ___ Mich. App. ___ (2013) (Docket No. 307253), the Michigan Court of Appeals reversed the trial court’s decision, which would have allowed a medical service provider (Michigan Head and Spine) to recover against State Farm for services rendered to the plaintiff, who was injured in an auto accident, because the plaintiff had signed a release with State Farm in which she agreed not to seek recovery for future medical services provided.
The plaintiff was injured in an auto accident. She received personal insurance protection (PIP) benefits, including medical services, which were paid by State Farm. She settled with State Farm and executed a release, in which she discharged and/or disclaimed any future PIP benefits related to treatment received for her injuries. After she signed the release, the plaintiff treated with Michigan Head and Spine, which then sought recovery from State Farm.
The trial court denied a summary disposition motion by State Farm and allowed MH&S to proceed against it on theories of contract and recovery of no-fault PIP benefits. The Court of Appeals reversed, holding that the plaintiff’s release bound MH&S from seeking recovery on any theory.
This is a published opinion, which illustrates the importance for medical service providers to affirm the availability of insurance before treating a plaintiff. The ruling of the case applies both to no-fault insurers, and other insurers, such as workers’ compensation carriers, that might be liable for payment for medical services on the basis of an injury.
The Michigan Court of Appeals recently addressed the issue of economic damages under the Michigan Governmental Tort Liability Act (MGTLA). In Hannay v Department of Transportation, an opinion issued on January 17, 2013, the Court of Appeals affirmed a jury verdict awarding excess wage loss and services pursuant to the Michigan No-Fault Act against a governmental agency.
In Hannay Plaintiff sustained serious personal injuries in a motor vehicle accident when a snow plow operated by the Department of Transportation ran a stop sign and struck Plaintiff’s vehicle. Plaintiff filed suit against the governmental agency under the MGTLA. As this matter arose out of a motor vehicle accident, the No-Fault Act was also applicable. The No-Fault Act allows for economic damages consisting of wage loss and services incurred beyond three years from the date of the accident. After trial, the jury awarded Plaintiff non-economic damages for serious impairment of a body function, as well as economic damages for excess wage loss and services. Defendant appealed the economic damages portion of the verdict.
On appeal, Defendant argued that excess wage loss and services were not allowable as damages under the MGTLA, as the language of the statute only provides for damages for bodily injury and/or property damage. In support of this argument, Defendant cited the Michigan Supreme Court’s decision in Wesche v Mecosta Co. Rd. Comm., 480 Mich 75 (2008) wherein the plaintiff’s spouse was not entitled to receive damages for loss of consortium under the MGTLA. In a unanimous opinion the Hannay Court found Wesche to be inapplicable determining that a loss of consortium claim was a separate, independent cause of action. The spouse in Wesche had not sustained a bodily injury which formed the basis of her claim. Unlike the loss of consortium claim in Wesche, Plaintiff’s cause of action in Hannay was based upon her own personal injury and the excess wage loss and services were elements of damage associated with the cause of action. Therefore, the Court of Appeals held that excess wage loss and services were recoverable under the MGTLA as an element of damages for personal injury.
The Court of Appeals has made the distinction between a cause of action and elements of damages. The MGTLA provides for damages arising out of a cause of action for bodily injury. Economic damages are elements of bodily injury recoverable under the No-Fault Act. Damages for bodily injury as provided in the MGTLA encompass the economic damages allowable under the No-Fault Act for claims arising out of motor vehicle accidents.
Lacey & Jones is pleased to announce that one of the firm’s partners has been recently recognized. Dennis Zacharski has again been named in “Super Lawyers” in the 2012 Business Edition. Mr. Zacharski specializes in the defense of personal injury litigation and chairs the litigation department at Lacey & Jones.
On December 19, 2011, Governor Snyder signed the workers’ compensation reform bill. Technically, it is known as 2011 PA 266, which is enrolled house bill #5002. It went into effect on December 19, 2011. In general, it applies to injuries occurring on and after that date.
The types of changes made in the new legislation can be divided into two broad categories: substantive changes and procedural changes. In general, the substantive changes are codifications of favorable Supreme Court case law and “corrections” of other cases and prior legislative inconsistencies. The procedural changes are changes to streamline and modernize the statute.
The Michigan Supreme Court has recently released three important orders regarding partial disability benefits in Michigan. First, here is some background.
The partial disability provision of the Michigan’s workers’ compensation statute, as well as certain case law, require magistrates to calculate the appropriate partial weekly rate of compensation to those claimants who are deemed “partially disabled.” Whenever a partially disabled claimant is working post-injury at a lesser paying job, there is little controversy in calculating the appropriate partial rate. But when a partially disabled claimant is not working at all post-injury, the point becomes more controversial. The statute states that partial disability payments are to be calculated on the basis of what the claimant is “able to earn” post- injury, not what the claimant is actually earning. And, certain case law has made clear that “able to earn” is not limited to actual wages earned but rather, requires consideration of the claimant’s capacity to earn whether that capacity is being exercised or not.
You might recall that three years ago in Lofton v AutoZone, Inc, 482 Mich 1005 (2008), the Supreme Court reiterated that the partial rate calculation is required to be based on the claimant’s capacity to earn, regardless of whether that capacity is being exercised or not. Lofton tended to be ignored by many practitioners and magistrates as an aberration.
It is now clear that the Michigan Supreme Court does not consider Lofton to be an aberration.
In Umphrey v General Motors Corp, 489 Mich 978 (2011), the Supreme Court – with only one dissent – said that a Lofton partial disability evaluation is “required” and if “the plaintiff is only partially disabled then a calculation of wage loss benefits must be made… and the WCAC should in that event modify the plaintiff’s award accordingly.” (emphasis added).
Similarly, in Harder v Castle Bluff Apartments 489 Mich 951 (2011), the Court stated that Lofton“applies at all times to partially disabled workers.” (emphasis added). And, in Vrooman v Ford Motor Company 489 Mich 978 (2011), the Court – again over only one dissent – returned the case to the magistrate for a partial disability evaluation, citing Lofton and Harder.From these orders it is now quite clear that the Supreme Court meant what it said in Lofton, namely: the partial disability calculation is required when a claimant is determined to be only partially disabled.
When an individual receives workers’ disability compensation, no-fault benefits, and/or tort damages in addition to Medicare benefits, the workers’ disability compensation benefits, no-fault benefits, and/or tort recovery are by law considered to be primary benefits. Medicare benefits are secondary. In order to protect Medicare’s secondary payer status, parties to a settlement may be required to set aside sufficient funds for all future medical services related to the injury that would otherwise be reimbursable by Medicare. This procedure is called a Medicare Set-aside Arrangement (MSA).
Centers for Medicare & Medicaid Services (CMS) has taken the position that when there is a failure to consider and protect its interests in a settlement, Medicare may seek recovery from those obligated to make the payment or protect Medicare’s interest. This includes the defendant employer, insurance carrier, and third-party administrator. Medicare may also impose penalties on offenders.
Michael R. Sugar, Of Counsel to Lacey & Jones LLP, is experienced in the preparation and submission of the Medicare Set-aside Arrangements. Mr. Sugar is available to provide counsel during the settlement process and beyond. His services include preparation and submission of a timely and realistic proposal for review and approval by Medicare. He will follow the submission until approval by Medicare is obtained, the settlement is finalized, and the Set-aside Arrangement is funded. His will also determine whether any past conditional payments made by Medicare will need to be repaid.
For further information, please contact Mr. Sugar at (248) 283-0770 or email@example.com or Marianne Melton at (248) 283-0768 or firstname.lastname@example.org.