• Contracts (2)
• Criminal Law (7)
• Family Law (2)
• Insurance (3)
• Negligence & Intentional Tort (1)
• Product Liability (1)
• Termination of Parental Rights (2)

Contracts

 

This summary also appears under Product Liability

 

Issues: Applicability of the "economic loss doctrine" to the plaintiff's product liability claim; Neibarger v. Universal Coop. Inc.; Quest Diagnostics, Inc. v. MCI WorldCom, Inc.; MASB-SEG Prop./Cas. Pool, Inc. v. Metalux; Effect of the absence of "privity of contract"; Citizens Ins. Co. v. Osmose Wood Preserving, Inc.; Distinguishing Detroit Bd. of Educ. v. Celotex Corp.; Claims under the Uniform Commercial Code (UCC)(MCL 440.1101 et seq.); Whether the statute of limitations barred plaintiff's warranty claims; MCL 440.2102; MCL 440.2105(1); Farm Bureau Mut. Ins. Co. v. Combustion Research Corp.; Statute of limitations for breach of a contract for the sale of goods; MCL 440.2725(1) and (2); Applicability of the "discovery rule"; MCL 600.5833; Waldron v. Armstrong Rubber Co. (On Remand); H. Hirschfield Sons, Co. v. Colt Indus. Operating Corp.; Frommert v. Bobson Constr. Co.; "Fraudulent concealment"; MCL 600.5855; Doe v. Roman Catholic Archbishop of the Archdiocese of Detroit; Whether there was a genuine issue of material fact as to fraudulent concealment; Prentis Family Found., Inc. v. Barbara Ann Karmanos Cancer Inst.; Silence; Common-law indemnity; Botsford Continuing Care Corp. v. Intelistaf Healthcare, Inc.; Langley v. Harris Corp.; North Cmty. Healthcare, Inc. v. Telford; Restatement Torts, 2d, § 886B; Restatement Restitution and Unjust Enrichment, 3d, § 23; Whether the defendants met their initial burden in their summary disposition motion of specifically identifying issues on which there were no material facts in dispute

Court: Michigan Court of Appeals (Unpublished)

Case Name: Semco Energy, Inc. v. Eclipse, Inc.

e-Journal Number: 53390

Judge(s): Per Curiam – O’Connell, Donofrio, and Beckering

 

The court held that the trial court did not err in ruling that the economic loss doctrine barred the plaintiff's product liability claim, and in concluding that the statute of limitations barred plaintiff's claims under the UCC. Further, plaintiff's common-law indemnity claim failed as a matter of law because it was not "held liable" for the replacement cost of the valves at issue as a result of the defendants' alleged wrongdoing. Thus, the court affirmed the trial court's order granting the defendants summary disposition. Plaintiff distributes natural gas to customers for the operation of home appliances. Plaintiff estimated that it had 41,522 Rockford Eclipse Series 125 gas valves in service. Defendants-Eclipse were the sole designers and sellers of the valves from 1990 until 1993. In 1993, defendants-Mueller purchased the product line from Eclipse and sold the valves from 1993 until 1999. Plaintiff purchased valves from Eclipse before 1993 and from Mueller from 1993 until 1998. Plaintiff alleged counts for, inter alia - (1) breach of express warranty, (2) breach of implied warranty of merchantability, (3) breach of implied warranty of fitness, (4) defective product liability, and (5) express-contractual, implied-contractual, and common-law indemnity. As to plaintiff's product liability claim, the court concluded that plaintiff sought damages for purely economic loss. Further, the court noted that this case was "one in which all parties to the transaction were sophisticated commercial entities. The use of the gas valves to regulate natural gas - a highly flammable substance - necessarily involves a contemplation of the risks to other property should a valve fail. These facts support a finding that the risk was reasonably contemplated at the time of the contract." As to the UCC's statute of limitations, the court noted that there was no factual dispute that plaintiff last purchased the valves in 1998. Applying the four-year statute of limitations, plaintiff must have brought its claims under the UCC before 2002. However, plaintiff filed this suit in 2010. Thus, the statute of limitations barred plaintiff's claims. The court rejected plaintiff's argument that the discovery rule applied to its warranty claims and that when it discovered its warranty claims presented genuine issues of material fact. While in the past the court had held that the discovery rule in MCL 600.5833 tolls the statute of limitations for a breach of contract, more recently the court has "specified that when a plaintiff's claim is subject to the UCC, the discovery rule in MCL 600.5833 does not toll the statute of limitations. This is because MCL 600.5833 applies to warranties in service contracts - not to warranties that the UCC governs." The court also concluded that plaintiff failed to show there was a genuine issue of material fact as to fraudulent concealment, and even if the statute of limitations was tolled for two years, plaintiff's claim was still barred. As to plaintiff's common-law indemnity claim, the court concluded that its "past and prospective costs to replace the valves are not costs owed to a third party due to a legal liability owed to such third party."

 

This summary also appears under Insurance

 

Issues: Whether the plaintiff-contractor was entitled to compensation where no repairs were performed on the damaged house; Contract interpretation; Klapp v. United Ins. Group Agency, Inc.; Wilkie v. Auto-Owners Ins. Co.; Vushaj v. Farm Bureau Gen. Ins. Co.; Whether the defendant-insurer was obligated to pay the insurance proceeds to plaintiff because the insurer had notice of the alleged assignment; Whether the assignment was for all insurance proceeds that defendant-Williams was entitled to receive; Burkhardt v. Bailey; Right result reached for the wrong reason; Hess v. Cannon Twp.; "Lost profits"; Lawrence v. Will Darrah & Assocs., Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Sparkle Builders I, LTD v. Williams

e-Journal Number: 53414

Judge(s): Per Curiam – Wilder, Gleicher, and Boonstra

 

Holding that the plaintiff-contractor had no right under its contract with defendant-Williams (the insured) to any repair proceeds from the defendant-insurer where Williams chose to build a new home instead of repairing her prior home, the court affirmed the trial court's order granting the insurer summary disposition. A fire damaged Williams' home. She had a homeowners' policy with the insurer. Williams contracted with plaintiff to repair the damaged house and agreed to assign her insurance proceeds to plaintiff in connection with the repair work. However, after executing the contract with plaintiff, Williams decided to exercise the option in her policy to rebuild her house in another location, rather than to repair the existing structure. She refused to allow plaintiff to perform construction services under the contract. The insurer paid Williams for rebuilding in accordance with the policy. Plaintiff filed this action, alleging breach of contract, breach of custom and trade practice, and conversion. The action against Williams was administratively closed. In the briefs and hearings on the insurer's summary disposition motion, it became clear that the dispositive issue, assuming that Williams breached her contract with plaintiff, was whether the insurer owed plaintiff payment under the assignment provision of the contract, regardless of the fact that Williams elected to build a new home rather than repair her old one. The trial court granted the insurer summary disposition based on its finding that, because no repairs were performed on the damaged structure, plaintiff was not entitled to compensation. Plaintiff claimed that because the insurer had notice of the alleged assignment, it was obligated to pay the insurance proceeds to plaintiff. Plaintiff also contended that the assignment at issue was an assignment of all insurance proceeds that Williams was entitled to receive, regardless of their purpose. The court disagreed, concluding that "Williams did not assign any and all future insurance proceeds to plaintiff." The context was clear that "any assignment was for insurance proceeds that she was owed to cover the costs of repairing her fire-damaged home." The title of the contract was "Fire and/or Property Repair Agreement," and Williams was to pay plaintiff "for such repairs the amount of the adjusted claim." Further, and most importantly, the contract provided that "The Owner shall not be liable to the Contractor for any sum in excess of the adjusted claim paid by the Owner's insurance carrier for the Contractor's performance pursuant to the agreement . . . ." This provision made it clear that "the contemplated insurance proceeds in the agreement are the proceeds that were due for the repair" of Williams' home. But it was undisputed that pursuant to her homeowners' policy, she chose to build a new home instead of repairing her prior one. "As a result, Williams was never due any insurance proceeds for the repair of her home and had no right to such proceeds," and since plaintiff as the assignee stood in her place, it also had no right to any repair proceeds from the insurer.

 

Criminal Law

 

Issues: Whether the trial court committed "plain error" requiring reversal by failing to swear in the jury after jury selection; People v. Carines; People v. Vaughn; Johnson v. United States; MCL 768.14; MCL 768.15; MCR 6.412(F); MCR 6.412(A); MCR 2.511; MCR 2.511(H)(1); People v. Pribble; Whether the trial court's error affected defendant's substantial rights; Whether the trial court's failure to swear in the jury satisfied the third prong of the plain-error test; People v. Duncan; Arizona v. Fulminante; Whether failure to swear in a jury is "structural error"; People v. Watkins; Rivera v. Illinois; People v. Clemons; Harris v. State (MD); State v. Davis (VT); Double jeopardy; People v. Grace; Whether the trial court's failure to administer the oath to the jury seriously affected the fairness, integrity, and public reputation of the judicial proceedings; Whether the remaining issues were moot; People v. Billings; Whether the trial court abused its discretion when it ruled that the testimony of a witness was inadmissible under MRE 404(b) and MRE 403; People v. Sabin (After Remand); Testimony precluded under MRE 613(b); People v. Mumford

Court: Michigan Court of Appeals (Published)

Case Name: People v. Allan

e-Journal Number: 53661

Judge(s): Per Curiam – Whitbeck, Fitzgerald, and Beckering

 

The court held that the trial court plainly erred by failing to swear in the jury, which both court rule and statute require to protect the constitutional right to a trial by a fair and impartial jury. The court also concluded that the trial court's error was structural because the absence of a sworn jury rendered defendant's trial fundamentally unfair and an unreliable vehicle for determining guilt or innocence. Finally, defendant's trial by an unsworn jury seriously affected the fairness, integrity, and public reputation of the judicial proceedings because it rendered the jury's verdict invalid under Michigan law. Thus, the court held that defendant was entitled to relief under the plain-error framework. An unsworn jury convicted defendant of conspiracy to commit extortion. He argued that the trial court committed error that required reversal by failing to give the jury its oath after jury selection. The trial court did not administer the oath to the jury as provided for by statute and court rule. The trial court's obligation to do so was clearly established by law. Thus, the trial court's failure to swear in the jury was plain error. As to whether the error affected defendant's substantial rights, he argued that the trial court's failure to swear in the jury satisfied the third prong of the plain-error test without regard to its effect on the outcome of his trial because the error was structural. In both Pribble and Clemons, the court recognized that "the oath required at the beginning of a jury trial is both a solemn promise to fulfill the duty to act in accordance with the law at all stages of a trial and also a mechanism to insure that jurors decide the case honestly in accordance with the law and on the basis of the evidence presented." These decisions were not binding decisions of the court, but it concluded that they were correctly decided. "Administering the oath to the jury is not a mere formality." It is a "long-standing common law requirement." Because administration of the oath is necessary to insure the fundamental right to trial by an impartial jury, the court held that it necessarily follows that the failure to administer the oath "necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Failure to administer the oath to the jury is not an error "occur[ing] during the presentation of the case to the jury" that may "be quantitatively assessed in the context of other evidence presented . . . ." Rather, it is a defect that "affects the framework within which the trial proceeds." The court also held that jeopardy had not even attached in this case, which further supported its conclusion that the error was structural in nature. The court held that the trial court's failure to swear in the jury was structural error. Further, Michigan caselaw "suggests that a plain structural error satisfies the third Carines prong." Thus, the court held that the plain structural error in this case satisfied the third Carines prong without regard to the error's effect on the outcome of defendant's trial. Finally, the court held that the trial court's failure to administer the oath to the jury seriously affected the fairness, integrity, and public reputation of the judicial proceedings. Thus, defendant's claim of error satisfied the requirements of the plain-error test, and the court exercised its discretion to afford him relief. Reversed and remanded for a new trial.

 

Issues: Search and seizure; Whether the traffic stop of defendant's vehicle was legal; Whether the trial court properly denied his motion to suppress the evidence found during a warrantless car search; People v. Hyde; People v. Davis; People v. McKinley; People v. Haney; Whether defendant's arrest was legal; Ineffective assistance of counsel; People v. LeBlanc; People v. Rodriguez; People v. Toma; Strickland v. Washington; People v. Gist; People v. Borchard-Ruhland; The "inventory search" exception to the warrant requirement when the underlying search was valid and conducted in accordance with standard department procedures; People v. Houstina; People v. Champion; People v. Nunez; "Joint or exclusive possession"; People v. McKinney; People v. Cohen

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Bey

e-Journal Number: 53438

Judge(s): Per Curiam - O'Connell, Cavanagh, and Donofrio

 

The court concluded that the traffic stop of the car in which defendant was a passenger was legitimate, his counsel was effective, his arrest was justified where two police officers observed a bag of marijuana sitting atop of a purse in the vehicle that was within his reach, and the heroin was properly discovered on his person and seized. Thus, the court affirmed his convictions of delivery or manufacture of heroin in an amount less than 50 grams. Prior to the stop, police officers had observed the car stop at a residence where they believed a homicide suspect was located. Defendant, whose physical characteristics matched those of the suspect, walked to the residence door, and then returned to the car. The police followed the car and stopped it after the driver turned without using a turn signal. After the car stopped, the police smelled and saw marijuana in the car. They arrested defendant for possession of marijuana and took him to jail. Jail officials searched him pursuant to jail policy and found heroin concealed on his body. He later moved the trial court for the suppression of the heroin evidence on the ground that the initial stop was illegal. The trial court denied the motion on the basis of an officer's preliminary examination testimony that the stop arose from the driver's failure to signal before turning. Defendant argued on appeal that the trial court erred in denying his motion to suppress. The court disagreed. He also contended that defense counsel was ineffective for failure to move for suppression of the heroin on the basis that his arrest was illegal. The search that revealed the heroin was conducted without a warrant and constituted an "inventory search," an exception to the warrant requirement where the search was conducted by the police in accordance with standard jail procedures and defendant was arrested for possession of marijuana. A person of reasonable caution could believe that defendant was guilty of possession of marijuana and that the officers had probable cause to arrest him. The arrest underlying the inventory search was valid and the heroin properly discovered and seized. Since defendant was not entitled to the suppression of that evidence, he did not show that his defense counsel's representation fell below an objective standard of reasonableness.

 

Issues: Ineffective assistance of trial counsel; People v. Uphaus (On Remand); People v. Carbin; Strickland v. Washington; People v. Matuszak; People v. Horn; Sentencing; Scoring of OV 13; People v. Steele; People v. Babcock; People v. Endres; People v. Harmon; People v. Bemer; Assault with intent to commit murder (AWIM)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Coleman

e-Journal Number: 53450

Judge(s): Per Curiam - O'Connell, Cavanagh, and Donofrio

 

The court held that defendant received the effective assistance of counsel and that the trial court properly scored OV 13. His convictions arose from a shooting that occurred in front of M's residence. A group of about 25 to 30 people had gathered in the yard in front of the residence. Witnesses testified that they suddenly heard what sounded like firecrackers and realized that someone was firing bullets into the crowd. L, who was 12 at the time of trial, suffered a nonfatal gunshot wound to the head. W lived in a home separated from M's house by a vacant field and a chain link fence. W heard the gunshots and thought they might be coming from behind her house. She looked out her front door and saw two young men at the end of her driveway. One of the men "walked off real fast, looking back," while the other man, who W identified as defendant, "rode off on a bicycle." A police investigation revealed that the gunshots were fired from the vacant field. The police recovered eight .22 caliber shell casings along the fence line that separated W's yard from the field. Officers also found a .22 caliber rifle underneath W's vehicle parked in her driveway. A latent finger print on the rifle matched defendant's left little finger. The rifle also contained DNA evidence from at least three different people. Defendant's DNA was consistent with a sample taken from the rifle. Expert testimony showed that the probability of a person's DNA matching the sample on the rifle was 1 in 791 Caucasians, 1 in 419 Hispanics, and 1 in 381 African Americans. Defendant was not the main contributor of the DNA evidence on the rifle. The jury convicted him of three counts of AWIM, two counts of felony-firearm, and one count of carrying a firearm with unlawful intent to commit murder. He argued on appeal, inter alia, that his counsel was ineffective by asserting during closing argument that defendant lied to the police and was present at the scene of the shooting, and that these statements were tantamount to an admission of guilt. The court disagreed, and characterized counsel's statements as not conceding defendant's guilt, but instead consisting of alternative arguments from the evidence and reasonable trial strategy. The court also held that the trial court properly scored OV 13 at 25 points. Affirmed.

 

Issues: Sufficiency evidence to support the defendant's conviction of AWIM; People v. Hawkins; People v. Wolfe; People v. Railer; People v. Brown; People v. Dumas; Whether the verdict was against the great weight of the evidence; People v. Lacalamita; People v. Babcock; People v. Unger; People v. Lee; Claim of "irrelevant and highly prejudicial" evidence; People v. Gursky; MRE 402; MRE 401; Begin v. Michigan Bell Tel. Co.; Prosecutorial misconduct; "Plain error"; People v. Thomas; People v. Dobek; People v. Noble; Cumulative errors; People v. Ackerman; Whether defendant was denied his right to an impartial jury because the jury was allowed to view her in restraints; People v. Carines; People v. Payne; People v. Horn; Ineffective assistance of counsel for failure to object to (1) the repeated admission of alleged irrelevant evidence, (2) the prosecutor's misconduct, and (3) the jury having seen defendant in shackles; People v. Jordan; People v. Brown; People v. LeBlanc; People v. Odom; People v. Ericksen; People v. Bahoda; Sentencing; Scoring of OVs 5 and 12; People v. Waclawski; People v. Breidenbach; People v. Endres (On Remand); People v. Jackson; People v. Light; People v. Wakeford

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Day

e-Journal Number: 53542

Judge(s): Per Curiam – Stephens, Owens, and, Murray

 

The court held, inter alia, that there was sufficient evidence from which a rational trier of fact could determine beyond a reasonable doubt that defendant committed AWIM. The victim, P, was shot at six times in his driveway while trying to leave for work early one morning. Two bullets hit him in the chest and arm. He testified that he witnessed a dark-colored minivan slowly drive by after the shooting. Other witnesses also reported seeing a dark blue minivan in the driveway of a house next to P's home. The police determined that defendant drove a dark blue Honda Odyssey minivan and owned a .45 caliber handgun. However, they could not locate the handgun and defendant could not provide an explanation as to where it could be. When the police searched defendant's house they found targets used for shooting practice. She had visited the shooting range a week before the incident. Also, the police found a torn photograph of P's house and driveway in defendant's house. P testified that he was receiving blocked phone calls from someone prior to the incident. These phone calls were traced to a phone number for a prepaid cell phone for which defendant had phone cards. P's ex-wife also testified that she received a phone call from a female inquiring about P's address and work location. The police were able to determine that this phone call came from the same prepaid cell phone. The jury convicted defendant of AWIM and felony-firearm. P was shot at six times with a .45 caliber handgun, and a dark blue minivan was seen near the scene. Defendant argued that there was insufficient evidence to support her conviction. She owned a .45 caliber handgun and drove a blue minivan. Police found targets used for shooting practice at her house, and she had visited that shooting range a week before the incident. P testified that he received blocked phone calls from someone prior to the incident, which police discovered were from a prepaid cell phone for which defendant had phone cards. Lastly, an intent to kill can be inferred from the use of a dangerous weapon. Affirmed.

 

Issues: The "duress" and "missing witness" jury instructions; MCL 769.26; People v. McKinney; People v. Riddle; People v. Marion; People v. Crawford; People v. Lemons; People v. Ramsdell; People v. Dupree; Whether the prosecutor's failure to produce a victim at trial necessitated the missing witness instruction; MCL 767.40a(3); People v. Eccles; People v. Cook; People v. Bean

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Miller

e-Journal Number: 53444

Judge(s): Per Curiam - O'Connell, Cavanagh, and Donofrio

 

In this case where the defendant was convicted of armed robbery, the court held, inter alia, that he did not present sufficient evidence to warrant the duress instruction and the trial court was within its discretion in refusing to give the missing witness instruction because the failure to instruct the jury as defendant requested was not outcome determinative. Defendant's conviction arose from the robbery of H. Prior to the robbery, H had agreed to drive defendant, E, and T to their homes. During the drive, H and her daughter, P, were in the front seat of H's car, and defendant and the two other men were in the rear seat. As H was driving, T told her to stop the car, then produced a handgun and demanded her keys and money. E exited the car and disappeared, while defendant went around to the front passenger door, opened it, and grabbed H's purse. After struggling with her and P, defendant and T ran away with H's purse. She called the police, who brought a tracking dog. After the dog followed the trail as far as it could, the police officers heard a gunshot nearby and approached the sound. They found E lying on a porch. He indicated that T shot him because E was going to tell the police about the robbery. He was taken to the hospital. Other officers intercepted T on foot and recovered a .22 caliber gun near a trail of recent footprints. In the interim, P returned home and identified defendant by looking up his picture on MySpace. She told the police of her discovery. Officers went to a nearby home, where they arrested defendant. H and P identified E at the hospital and indentified T in a police lineup. Later, they identified defendant in police lineups. Defendant told a detective that E had told him to take the purse. P testified at trial that she thought T may have signaled defendant to go for the purse. The evidence to provide a basis for a duress instruction did not support giving the instruction where there was no evidence that T engaged in threatening verbal or physical conduct toward defendant, or that his conduct actually caused defendant to fear death or serious bodily harm at any time, or that he took the purse to avoid any threatened harm. Further, the prosecutor's failure to produce E at trial did not warrant the missing witness instruction. "A prosecutor who fails to produce an endorsed witness may show that the witness could not be produced despite the exercise of due diligence." The record showed that the prosecutor served E with a subpoena. Further, nothing in the record indicated that E could offer testimony about whether defendant was aware just prior to the robbery that T had a gun. Affirmed.

 

Issues: Sufficiency of the evidence to convict the defendant of armed robbery and assault with intent to rob while armed (AWIRA); People v. Hardiman; People v. Wolfe; People v. Jackson; People v. Norris; People v. Cotton; People v. Lemmon; People v. Vaughn; Whether defendant's sentences were proportionate; People v. Conley; People v. Broden; People v. Drohan; People v. Harris; Ineffective assistance of counsel; People v. LeBlanc; Strickland v. Washington; People v. Swain; People v. Carbin; People v. Avant; People v. Seals; People v. Dixon; People v. Hyland

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Washington

e-Journal Number: 53441

Judge(s): Per Curiam - Saad, K.F. Kelly, and M.J. Kelly

 

The court held, inter alia, that the evidence was sufficient to support the defendant's convictions based on the testimony of the victims and other witnesses. On 4/10/10, defendant gave T, a professional gambler, $400 worth of casino chips to gamble. T played two hands of blackjack, but "busted" both hands and lost defendant's $400. Several days later, defendant and her girlfriend, D, went to the home defendant shared with her girlfriend H. Defendant said "I'm a bounty hunter. I get what I want." Defendant and T exchanged words, and defendant threatened to kill T if she did not return the $400. They argued, but defendant and D left after a neighbor and her children came outside. Later, the same day, T went to a casino. After about 30 to 45 minutes, defendant arrived and tapped T on the shoulder and said, "You winning our money back?" The argued for a few minutes until a casino supervisor spoke with T. T was back home just before midnight, when she heard a lot of noise from her front porch area. Defendant was on her front steps. H was between the front and screed doors. Defendant said, "I came to get my mother f******* money." At this point HH ran up with a gun, which he pointed at T. She started punching T in the chest and kicking her in the head, face, and side. HH was holding the gun to T's head. HH then pointed the gun at H and snatched a chain off H's neck and took $50 out of H's pocket. HH again turned the gun on T saying, "I'm fixin' to kill her now" or "I'm fixin' to kill this b****." Defendant said "Naw, bro, don't kill her now. I'm going to give her one more chance to get my money." Then HH and defendant left. Over the next few days, defendant drove by T's house repeatedly. On 4/20/10, T was driving with H on I-94, they got off to go to a community college. T saw defendant and D driving the other way. Defendant turned around and followed them and then drove up next to them at a stop light. Defendant pointed a gun at T, she thought it looked the same as the gun used in the robbery. Defendant said, "B****, I'm going to get my money from you." T reported these incidents to the police, but she only knew defendant as "Amir." She agreed to a "sting" operation where she would get defendant to talk to her and have her meet T at a location. T told defendant that if she wanted the $400, she should come to a gas station at a certain address. When defendant arrived, T identified her and defendant was arrested. No gun, jewelry, or money was recovered. The jury acquitted defendant of the felonious assault charges and felony-firearm, but found her guilty of armed robbery and AWIRA. The trial court denied her motion for JNOV. Defendant also argued on appeal that the verdicts were inconsistent where the jury acquitted her of felonious assault and felony-firearm. However, inconsistent jury verdicts are permissible. The court held that the verdicts were not inconsistent. The two charges of which defendant was acquitted allegedly occurred at a different time and place, not at T's house and on a different date. The court was not convinced that the jury rendered inconsistent verdicts. Clearly, the jury concluded beyond a reasonable doubt that the earlier incident occurred as T and H testified, but reasonable doubt existed as to the later events. The court also held that the other issues defendant raised had no merit and affirmed her convictions and sentences.

 

Issues: Opinion testimony; People v. Bahoda; People v. Babcock; People v. Dupree; "Plain error"; People v. Carines; Lay opinion testimony; MRE 701; People v. Hanna; People v. Daniel; MRE 702; "Relevant evidence"; MRE 402; People v. Beckley; MRE 401 and 403; People v. Crawford; "Unfair prejudice"; People v. Blackston; People v. Mills; Ineffective assistance of counsel; People v. LeBlanc; People v. Hoag; Strickland v. Washington; People v. Armstrong; Prosecutorial misconduct; People v. Unger (On Remand); People v. Dobek; The defendant's right to silence; Miranda v. Arizona; Doyle v. Ohio; People v. McReavy; People v. Stanaway; Relevance of a person's motive; People v. Fisher; Denigrating the defense; People v. Kennebrew; People v. Matuszak; Alleged cumulative errors

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Wingfield

e-Journal Number: 53533

Judge(s): Per Curiam – Whitbeck and Fitzgerald; Concurring in the result only - Beckering

 

Holding that the defendant-Wingfield did not establish the trial court abused its discretion when admitting evidence, or that any plain errors in the admission of evidence or in prosecutorial misconduct affected his substantial rights, the court affirmed his CSC III conviction (involving a victim between 13 and 15 years old). The victim testified that at the time of the encounter, Wingfield was 18 years old, she was 15 years old, and Wingfield knew that she was 15 years old because Wingfield was friends with her brother. Wingfield was also friends with the victim's aunt, who was 14 years old. The victim testified that she and Wingfield spoke about having sex (the victim had not previously had sex). Wingfield suggested that they could go to a friend's apartment to have sex, which they did. Trooper M interviewed Wingfield. Wingfield wrote a statement that he did not remember being alone with the victim and that he had been at his friend's apartment with another friend. When M interviewed Wingfield a second time, Wingfield gave a second written statement, in which he admitted that he began having vaginal intercourse with the victim, but stopped because he felt uncomfortable. Wingfield argued that M's testimony that he believed Wingfield was exhibiting remorse when he signed his statement was improper opinion testimony. Wingfield offered evidence that he was not being truthful when he signed the second statement. When asked how he acted when signing his second statement, M testified that "Wingfield appeared very remorseful, because he first appeared scared and then relieved, and that 'when I look at somebody and they're not being genuine in their emotions and when they are, and [Wingfield] appeared to be genuine to me when he was leaving that day.'" The court noted that a "police officer's opinion testimony is admissible as a lay opinion if the officer bases his or her opinion on direct perceptions, rather than on a technical or scientific analysis." M based his opinion on his perceptions and observations of Wingfield and his personal experience. M's opinion that Wingfield exhibited remorse would help the jury determine whether to consider Wingfield's statement and what weight to give it. Thus, the court held that M's testimony was proper lay opinion testimony, and the trial court did not clearly err when admitting it. Wingfield also argued that M's testimony was more prejudicial than probative because it was not helpful to determine a fact in issue. The court disagreed. Wingfield's state of mind when he signed his statement was a fact in issue because the parties disputed whether he was being truthful when he gave M the written statement. The court held that M's testimony had probative value. Wingfield did not convince the court that the prejudicial effect of this testimony substantially outweighed the probative value.

 

Family Law

 

Issues: Child custody; "Collateral attack" on an adoption; The Michigan Adoption Code (MCL 710.21 et seq.); Whether the probate court that granted the adoption lacked subject matter jurisdiction; Young v. Punturo; Derderian v. Genesys Health Care Sys.; In re Amb; Joy v. Two-Bit Corp.; Jackson Bank & Trust v. Fredrick; MCL 600.1021(1)(b); In re Adams; Jurisdiction over adoptions provided in chapter X of the Probate Code; Whether subject matter jurisdiction may be collaterally attacked; Whether a court's exercise of jurisdiction may only be challenged on direct appeal; In re Hatcher; Applicability of Hansen v. McClellan (Unpub.)

Court: Michigan Court of Appeals (Published After Release)

Case Name: Usitalo v. Landon

e-Journal Number: 53662

Judge(s): Per Curiam - Cavanagh and Hoekstra; Concurrence - Shapiro

 

Concluding that because the probate court had subject matter jurisdiction over the adoption, defendant could not now collaterally attack the validity of the 2005 adoption order, the court affirmed the trial court's order granting plaintiff custody and parenting time. Defendant-Landon appealed the trial court's order granting plaintiff-Usitalo joint legal and physical custody of their adopted daughter and parenting time. Defendant is the biological mother of the child, who was born 11/28/03. The parties, who were in a long term, same-sex relationship, adopted the child in 2/05. On appeal, defendant did not challenge the propriety of the custody and parenting time award entered by the trial court. Rather, she argued that the Adoption Code only permits adoptions by a single person or a married couple, and that because Michigan does not recognize same-sex marriages, plaintiff's adoption of the child was void ab initio. Defendant acknowledged that a collateral attack on the validity of an adoption was not typically permissible, but argued that because state law does not permit same-sex adoptions, the probate court that granted the adoption lacked subject matter jurisdiction and a collateral attack was permissible. After the adoption, the parties lived together and jointly raised the child. In 2007, they separated, but continued to jointly parent the child. In 8/08, they entered into a written agreement as to custody and parenting time. However, the parties' relationship further deteriorated and in 11/09, they stopped cooperating as to the child's care and custody. In 1/10, plaintiff filed a complaint in a trial court against defendant seeking sole legal and physical custody of the child. She filed a motion for parenting time at the same time. Defendant filed an answer and motion to dismiss. The trial court transferred the case to another county's trial court because the adoption was granted in that county. Later, the probate court that granted the adoption held that it had subject matter jurisdiction over the adoption because the Adoption Code does not contain language that includes or excludes adoption by an unmarried couple, and denied defendant's motion to dismiss the custody proceeding and a motion for mandamus and transferred the case back to the trial court for custody proceedings. The court noted that a party may attack subject-matter jurisdiction at any time, and a proven lack of such jurisdiction renders a judgment void. However, a court's exercise of jurisdiction can only be challenged on direct appeal. The court concluded that defendant's argument "conflates" subject-matter jurisdiction with a court's exercise of its jurisdiction. Pursuant to Hatcher, even if the probate court erroneously granted the adoption, that was not sufficient to render the adoption void, and such a judgment is "valid and binding for all purposes and cannot be collaterally attacked." Affirmed.

 

Issues: Divorce; Child support and parenting time; Enforcement of a foreign judgment; Whether the trial court properly denied entry of the German judgment on the erroneous ground that plaintiff would not consent to the trial court's jurisdiction as to its "child related provisions"; Hare v. Starr Commonwealth Corp.; The Uniform Foreign-Country Money Judgments Recognition Act (MCL 691.1131 et seq.); MCL 691.1133(2)(c); Dart v. Dart; "Comity"; Electrolines, Inc. v. Prudential Assurance Co., Ltd.; The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) (MCL 722.1101 et seq.); MCL 722.1105(1); Atchison v. Atchison; Subject-matter jurisdiction over the appeal; MCR 7.203(A)(1); MCR 7.202(6)(a); MCR 7.202(6)(a)(i)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Zehender v. Zehender

e-Journal Number: 53539

Judge(s): Per Curiam – Cavanagh, Hoekstra, and Shapiro

 

Holding that the trial court improperly denied entry of the German judgment on the erroneous ground that plaintiff would not consent to the trial court's jurisdiction as to its "child related provisions," the court reversed and remanded the order denying entry of a German judgment resulting from a divorce proceeding which was sought by plaintiff for the purpose of enforcing its property provisions. Further, the court rejected defendant's claim that it lacked subject-matter jurisdiction over the appeal. Plaintiff is a German citizen, defendant has dual American and German citizenship, and their son also has dual citizenship. The parties were married in Germany. In 2002, they were divorced in Germany through a negotiated settlement which included their agreed terms. Then, defendant returned to Michigan, but the parties' child remained in Germany with plaintiff. It appeared that the divorce was amicable until plaintiff remarried in 2007. It also appeared that defendant was current on his financial obligations arising from the judgment until 2008 when allegedly a dispute arose about visitation and parenting time. In 2010, plaintiff sought entry of the German judgment for the purpose of enforcing its financial provisions against defendant. Defendant objected, arguing that the judgment did not reflect an accurate account of his financial obligation and that the trial court did not have jurisdiction to enforce the judgment. During hearings on the matter, the trial court noted that it would not recognize certain provisions of the judgment, namely the financial provisions, unless plaintiff submitted to its jurisdiction as to enforcement of "custody and parenting time." Plaintiff's counsel explained, however, that plaintiff was seeking only to determine, through a creditor's examination, whether defendant had property or funds with which to satisfy a judgment that he promised to pay but was not paying. However, consistent with its expressed inclination, the trial court entered an order denying entry of the foreign judgment "for the reason that Plaintiff will not consent to the jurisdiction of this Court as to the child related provisions of the parties' Judgment of Divorce." It was undisputed that both parties were represented by counsel in Germany, the process was fair, the terms of the divorce settlement were negotiated between the parties, those negotiations culminated in an agreement and a judgment. Thus, principles of comity mandate that this foreign judgment be given force and effect. Although the German judgment included some child support provisions, it did not include any provision related to child custody or parenting time. And child custody and parenting time were not issues properly before the trial court. Apparently, as argued by plaintiff, another German judgment exists which sets forth the parties' settlement terms pertaining to child custody and parenting time and that judgment was not before the trial court. The issue before the trial court was whether the judgment actually presented to it could be enforced. Further, under the UCCJEA, a foreign country is treated as a state of the U.S. for purposes of the statute's general and jurisdictional provisions. "Once an initial child-custody determination occurs, exclusive, continuing jurisdiction generally remains with the decreeing court." Thus, the court that has exclusive and continuing jurisdiction over child custody and parenting time disputes was the German court which presided over that matter. The court held that the trial court's refusal to enter the foreign judgment on the ground that plaintiff would "not consent to the jurisdiction of this Court as to the child related provisions of the parties' Judgment of Divorce" was erroneous.

 

Insurance

 

Issues: General liability business owner's policy coverage dispute; Claims against the defendant-insured for sending unsolicited advertising facsimiles; The Telephone Consumer Protection Act (TCPA)(47 USC § 227 et seq.); Duty to defend; Oakland Cnty. Bd. of Cnty. Rd. Comm'rs v. Michigan Prop. & Cas. Guar. Ass'n; Marlo Beauty Supply, Inc. v. Farmers Ins. Group of Cos.; Detroit Edison Co. v. Michigan Mut. Ins. Co.; Insurance policy interpretation; Citizens Ins. Co. v. Pro-Seal Serv. Group; Royal Prop. Group, LLC v. Prime Ins. Syndicate, Inc.; Defining terms not defined in the policy; McGrath v. Allstate Ins. Co.; "Legal terms of art"; Allison v. AEW Capital Mgmt.; Whether a contract is "ambiguous"; Dancey v. Travelers Prop. Cas. Co.; Group Ins. Co. v. Czopek; Twichel v. MIC Gen. Ins. Corp.; "Surplusage"; Michigan Twp. Participating Plan v. Pavolich; Duty to indemnify; American Bumper & Mfg. Co. v. Hartford Fire Ins. Co.; Whether the facsimile at issue constituted the "written publication of material that violates a person's right of privacy" under the policy; "Publication"; "Material"; "Person"; A corporation as a person; Dombrowski v. City of Omer; Construing ambiguities against the insurer; Wilkie v. Auto-Owners Ins. Co.; "Right of privacy"; § 227(b)(1)(C); Park Univ. Enters., Inc. v. American Cas. Co. of Reading (10th Cir.); Penzer v. Transportation Ins. Co. (FL); Terra Nova Ins. Co. v. Fray-Witzer (MA); Whether defendant-Beason's initial statement that defendant-Tax Connection did not send the facsimiles rendered the policy void; Mina v. General Indem. Co.; "Intentionally"; "Imputed knowledge"; "Recklessly"; Failure to properly investigate and verify facts; Spreen v. Smith; West v. Farm Bureau Mut. Ins. Co. of MI

Court: Michigan Court of Appeals (Unpublished)

Case Name: Auto-Owners Ins. Co. v. Tax Connection Worldwide, LLC

e-Journal Number: 53393

Judge(s): Per Curiam – K.F. Kelly, Markey, and Servitto

 

Holding that the trial court did not err in concluding that sending unauthorized facsimiles in violation of the TCPA was covered by the policy at issue and thus, the plaintiff-insurer had a duty to defend, the court affirmed the declaratory judgment entered in the defendants' favor in this policy coverage dispute. Plaintiff sought a determination that it had no duty to defend or indemnify defendants-Tax Connection and Beason against defendant-Jackson's Five Star Catering's complaint alleging violation of the TCPA. The trial court determined that the allegations in Jackson's complaint fell under the policy language of "advertising injury." The issue on appeal was whether defendants' unsolicited facsimile advertisement, sent to Jackson's and others allegedly in violation of the TCPA, constituted the "written publication of material that violates a person's right of privacy" under policy subsection (b). Pursuant to Dombrowski, the court concluded that corporations "come within the generally understood meaning of the word 'person.'" The court also noted that "Jackson's underlying complaint was brought on behalf of all persons who received defendants' unsolicited advertising facsimile." Thus, the allegations could include persons within any meaning ascribed to that term in subsection (b). "Because the duty to defend extends to any actions which even arguably come within the Policy coverage, even if one were to read subsection (b)'s reference to 'person,' as excluding corporations such reading would not, in and of itself, obviate plaintiff's duty to defend defendants against the underlying complaint." While "right of privacy" was not defined in the policy, "privacy" is defined by a dictionary as "the state of being free from unsanctioned intrusion." In making it unlawful for any person to use any facsimile machine to send an unsolicited advertisement, the TCPA "involves an interest in and protection of some sort of privacy right." The court held that at "its most basic level, the sending of unsanctioned advertising facsimiles in this case falls within the coverage language of an 'advertising injury' as broadly defined in the policy at issue." This finding was consistent with decisions by the Florida and Massachusetts Supreme Courts in which they were called upon to interpret the exact same language as the policy language at issue here. Comparing the allegations in the TCPA complaint with the policy's "advertising injury" provision, the court held that the policy afforded coverage for the underlying lawsuit. The court also rejected plaintiff's argument that Beason's initial statement that Tax Connection did not send the facsimiles rendered the policy void. The undisputed facts presented to the trial court showed that "Beason did not actually know that his statement was false when he made it" - he "did not purposely or intentionally make the misrepresentation" as required to render the policy void under the relevant provisions. Further, "the determination of whether there is a duty to defend is wholly dependent on the allegations set forth in the underlying complaint . . . ." Plaintiff "had a duty to defend defendants against the TCPA complaint, regardless whether Beason's statements were true (meaning that the allegations in the TCPA complaint were false), or whether his statement was false (meaning that defendants likely faced liability under the TCPA), if and so long as the TCPA claims 'even arguably come within' the coverage afforded by the Policy for an 'advertising injury.'"

 

This summary also appears under Contracts

 

Issues: Whether the plaintiff-contractor was entitled to compensation where no repairs were performed on the damaged house; Contract interpretation; Klapp v. United Ins. Group Agency, Inc.; Wilkie v. Auto-Owners Ins. Co.; Vushaj v. Farm Bureau Gen. Ins. Co.; Whether the defendant-insurer was obligated to pay the insurance proceeds to plaintiff because the insurer had notice of the alleged assignment; Whether the assignment was for all insurance proceeds that defendant-Williams was entitled to receive; Burkhardt v. Bailey; Right result reached for the wrong reason; Hess v. Cannon Twp.; "Lost profits"; Lawrence v. Will Darrah & Assocs., Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Sparkle Builders I, LTD v. Williams

e-Journal Number: 53414

Judge(s): Per Curiam – Wilder, Gleicher, and Boonstra

 

Holding that the plaintiff-contractor had no right under its contract with defendant-Williams (the insured) to any repair proceeds from the defendant-insurer where Williams chose to build a new home instead of repairing her prior home, the court affirmed the trial court's order granting the insurer summary disposition. A fire damaged Williams' home. She had a homeowners' policy with the insurer. Williams contracted with plaintiff to repair the damaged house and agreed to assign her insurance proceeds to plaintiff in connection with the repair work. However, after executing the contract with plaintiff, Williams decided to exercise the option in her policy to rebuild her house in another location, rather than to repair the existing structure. She refused to allow plaintiff to perform construction services under the contract. The insurer paid Williams for rebuilding in accordance with the policy. Plaintiff filed this action, alleging breach of contract, breach of custom and trade practice, and conversion. The action against Williams was administratively closed. In the briefs and hearings on the insurer's summary disposition motion, it became clear that the dispositive issue, assuming that Williams breached her contract with plaintiff, was whether the insurer owed plaintiff payment under the assignment provision of the contract, regardless of the fact that Williams elected to build a new home rather than repair her old one. The trial court granted the insurer summary disposition based on its finding that, because no repairs were performed on the damaged structure, plaintiff was not entitled to compensation. Plaintiff claimed that because the insurer had notice of the alleged assignment, it was obligated to pay the insurance proceeds to plaintiff. Plaintiff also contended that the assignment at issue was an assignment of all insurance proceeds that Williams was entitled to receive, regardless of their purpose. The court disagreed, concluding that "Williams did not assign any and all future insurance proceeds to plaintiff." The context was clear that "any assignment was for insurance proceeds that she was owed to cover the costs of repairing her fire-damaged home." The title of the contract was "Fire and/or Property Repair Agreement," and Williams was to pay plaintiff "for such repairs the amount of the adjusted claim." Further, and most importantly, the contract provided that "The Owner shall not be liable to the Contractor for any sum in excess of the adjusted claim paid by the Owner's insurance carrier for the Contractor's performance pursuant to the agreement . . . ." This provision made it clear that "the contemplated insurance proceeds in the agreement are the proceeds that were due for the repair" of Williams' home. But it was undisputed that pursuant to her homeowners' policy, she chose to build a new home instead of repairing her prior one. "As a result, Williams was never due any insurance proceeds for the repair of her home and had no right to such proceeds," and since plaintiff as the assignee stood in her place, it also had no right to any repair proceeds from the insurer.

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Automobile negligence; PIP benefits; Whether the plaintiff's notice to the Assigned Claims Facility (ACF) was timely even though it was provided 22 months after the accident; MCL 500.3145; The one-year notice provision; Goethals v. Farm Bureau Ins.; MCL 500.3174; Bronson Methodist Hosp v. Allstate Ins. Co.; Whether the one-year notice provision was tolled because plaintiff provided notice to a different insurer within one year of the accident; Allen v. Farm Bureau Ins. Co.; OAG, 1981, No. 6016 (12/1/81); Richards v. American Fellowship Mut. Ins. Co.; Devillers v. Auto Club Ins. Ass'n; Effect of Attorney General opinions; Lysogorski v. Bridgeport Twp.; Whether there was a genuine issue of material fact that plaintiff was a "named insured" of defendant-Pioneer State Mutual Insurance Company; Whether plaintiff was entitled to PIP and uninsured motorist (UM) benefits under the terms of the Pioneer policy; MCL 500.3101(1); MCL 500.3114(1); Dobbelaere v. Auto-Owners Ins. Co.; Enforcing unambiguous insurance contract provisions; Rory v. Continental Ins. Co.; Effect of listing a person as a designated driver on a no-fault policy; Harwood v. Auto-Owners Ins. Co.; Klida v. Braman; Effect of documentary exhibits; Equitable estoppel; Sisk-Rathburn v. Farm Bureau Gen. Ins. Co.; Unpreserved issue; Walters v. Nadell

Court: Michigan Court of Appeals (Unpublished)

Case Name: Visner v. Harris

e-Journal Number: 53413

Judge(s): Per Curiam – Sawyer, Saad, and Meter

 

In these consolidated appeals, the court held that the trial court properly ruled that defendant-State Farm (assigned to defend this action by the ACF) was not liable for PIP benefits because the plaintiff failed to provide notice to the ACF within one year of the accident. Further, the trial court correctly concluded that there was no genuine issue of material fact as to whether plaintiff was a "named insured" of defendant-Pioneer and that she was not entitled to PIP and UM benefits under the terms of Pioneer's policy. Thus, the court affirmed the trial court's order granting State Farm and Pioneer summary disposition. Plaintiff was struck by a vehicle on 8/20/08 while standing in her driveway. She suffered serious injuries. Neither the operator of the vehicle nor the vehicle was covered by an insurance policy. At the time, plaintiff was listed as a "named driver" on a policy issued by Pioneer, but the policy only listed her then-fiancé as a "named insured." Under the terms of the insurance contract, Pioneer was only liable to provide PIP benefits to a "named insured" on the policy. Plaintiff timely provided notice of her injuries to Pioneer, which began paying PIP benefits to plaintiff. However, in 2/10, Pioneer realized that it was not liable for PIP benefits under the terms of the policy because plaintiff was not a "named insured." Thus, Pioneer ceased paying PIP benefits to plaintiff. In 6/10, plaintiff provided notice of her injuries to the ACF. The ACF denied liability for PIP benefits because it had not received notice within one year of the accident. The court held that "MCL 500.3174 and MCL 500.3145(1), when read together, provide that a claimant must provide notice to the ACF within one year of the accident." If the claimant fails to do so, the claimant cannot maintain an action for PIP benefits. Since it was undisputed that plaintiff failed to provide notice to the ACF within one year of the accident, her claim for PIP benefits was barred by the one-year notice provision of MCL 500.3145. Plaintiff argued that the one-year notice provision should be tolled because she provided notice to another insurer (Pioneer) within one year of the accident. The court noted that this case was similar to Allen. The only distinction was that the plaintiff in Allen provided timely notice to the ACF and untimely notice to the private insurer, while plaintiff here provided timely notice to a private insurer but untimely notice to the ACF. However, this was "a distinction without a difference because the ACF is entitled to the same one-year notice as a private insurer." The court also held that plaintiff was not entitled to PIP or UM benefits under the plain terms of the Pioneer insurance contract, and Pioneer was not obligated to pay her these benefits. The court noted that simply "listing a person as a designated driver on a no-fault policy does not make the person a 'named insured.'" The policy provided that a person was entitled to PIP benefits if the person was the named insured, the spouse of the named insured, or a relative domiciled in the same household. It also provided that a person was entitled to UM benefits to the same extent a person was entitled to PIP benefits. Plaintiff was not a spouse of her then-fiancé, nor was she related to him "by blood, marriage, or adoption."

 

Negligence & Intentional Tort

 

This summary also appears under Insurance

 

Issues: Automobile negligence; PIP benefits; Whether the plaintiff's notice to the Assigned Claims Facility (ACF) was timely even though it was provided 22 months after the accident; MCL 500.3145; The one-year notice provision; Goethals v. Farm Bureau Ins.; MCL 500.3174; Bronson Methodist Hosp v. Allstate Ins. Co.; Whether the one-year notice provision was tolled because plaintiff provided notice to a different insurer within one year of the accident; Allen v. Farm Bureau Ins. Co.; OAG, 1981, No. 6016 (12/1/81); Richards v. American Fellowship Mut. Ins. Co.; Devillers v. Auto Club Ins. Ass'n; Effect of Attorney General opinions; Lysogorski v. Bridgeport Twp.; Whether there was a genuine issue of material fact that plaintiff was a "named insured" of defendant-Pioneer State Mutual Insurance Company; Whether plaintiff was entitled to PIP and uninsured motorist (UM) benefits under the terms of the Pioneer policy; MCL 500.3101(1); MCL 500.3114(1); Dobbelaere v. Auto-Owners Ins. Co.; Enforcing unambiguous insurance contract provisions; Rory v. Continental Ins. Co.; Effect of listing a person as a designated driver on a no-fault policy; Harwood v. Auto-Owners Ins. Co.; Klida v. Braman; Effect of documentary exhibits; Equitable estoppel; Sisk-Rathburn v. Farm Bureau Gen. Ins. Co.; Unpreserved issue; Walters v. Nadell

Court: Michigan Court of Appeals (Unpublished)

Case Name: Visner v. Harris

e-Journal Number: 53413

Judge(s): Per Curiam – Sawyer, Saad, and Meter

 

In these consolidated appeals, the court held that the trial court properly ruled that defendant-State Farm (assigned to defend this action by the ACF) was not liable for PIP benefits because the plaintiff failed to provide notice to the ACF within one year of the accident. Further, the trial court correctly concluded that there was no genuine issue of material fact as to whether plaintiff was a "named insured" of defendant-Pioneer and that she was not entitled to PIP and UM benefits under the terms of Pioneer's policy. Thus, the court affirmed the trial court's order granting State Farm and Pioneer summary disposition. Plaintiff was struck by a vehicle on 8/20/08 while standing in her driveway. She suffered serious injuries. Neither the operator of the vehicle nor the vehicle was covered by an insurance policy. At the time, plaintiff was listed as a "named driver" on a policy issued by Pioneer, but the policy only listed her then-fiancé as a "named insured." Under the terms of the insurance contract, Pioneer was only liable to provide PIP benefits to a "named insured" on the policy. Plaintiff timely provided notice of her injuries to Pioneer, which began paying PIP benefits to plaintiff. However, in 2/10, Pioneer realized that it was not liable for PIP benefits under the terms of the policy because plaintiff was not a "named insured." Thus, Pioneer ceased paying PIP benefits to plaintiff. In 6/10, plaintiff provided notice of her injuries to the ACF. The ACF denied liability for PIP benefits because it had not received notice within one year of the accident. The court held that "MCL 500.3174 and MCL 500.3145(1), when read together, provide that a claimant must provide notice to the ACF within one year of the accident." If the claimant fails to do so, the claimant cannot maintain an action for PIP benefits. Since it was undisputed that plaintiff failed to provide notice to the ACF within one year of the accident, her claim for PIP benefits was barred by the one-year notice provision of MCL 500.3145. Plaintiff argued that the one-year notice provision should be tolled because she provided notice to another insurer (Pioneer) within one year of the accident. The court noted that this case was similar to Allen. The only distinction was that the plaintiff in Allen provided timely notice to the ACF and untimely notice to the private insurer, while plaintiff here provided timely notice to a private insurer but untimely notice to the ACF. However, this was "a distinction without a difference because the ACF is entitled to the same one-year notice as a private insurer." The court also held that plaintiff was not entitled to PIP or UM benefits under the plain terms of the Pioneer insurance contract, and Pioneer was not obligated to pay her these benefits. The court noted that simply "listing a person as a designated driver on a no-fault policy does not make the person a 'named insured.'" The policy provided that a person was entitled to PIP benefits if the person was the named insured, the spouse of the named insured, or a relative domiciled in the same household. It also provided that a person was entitled to UM benefits to the same extent a person was entitled to PIP benefits. Plaintiff was not a spouse of her then-fiancé, nor was she related to him "by blood, marriage, or adoption."

 

Product Liability

 

This summary also appears under Contracts

 

Issues: Applicability of the "economic loss doctrine" to the plaintiff's product liability claim; Neibarger v. Universal Coop. Inc.; Quest Diagnostics, Inc. v. MCI WorldCom, Inc.; MASB-SEG Prop./Cas. Pool, Inc. v. Metalux; Effect of the absence of "privity of contract"; Citizens Ins. Co. v. Osmose Wood Preserving, Inc.; Distinguishing Detroit Bd. of Educ. v. Celotex Corp.; Claims under the Uniform Commercial Code (UCC)(MCL 440.1101 et seq.); Whether the statute of limitations barred plaintiff's warranty claims; MCL 440.2102; MCL 440.2105(1); Farm Bureau Mut. Ins. Co. v. Combustion Research Corp.; Statute of limitations for breach of a contract for the sale of goods; MCL 440.2725(1) and (2); Applicability of the "discovery rule"; MCL 600.5833; Waldron v. Armstrong Rubber Co. (On Remand); H. Hirschfield Sons, Co. v. Colt Indus. Operating Corp.; Frommert v. Bobson Constr. Co.; "Fraudulent concealment"; MCL 600.5855; Doe v. Roman Catholic Archbishop of the Archdiocese of Detroit; Whether there was a genuine issue of material fact as to fraudulent concealment; Prentis Family Found., Inc. v. Barbara Ann Karmanos Cancer Inst.; Silence; Common-law indemnity; Botsford Continuing Care Corp. v. Intelistaf Healthcare, Inc.; Langley v. Harris Corp.; North Cmty. Healthcare, Inc. v. Telford; Restatement Torts, 2d, § 886B; Restatement Restitution and Unjust Enrichment, 3d, § 23; Whether the defendants met their initial burden in their summary disposition motion of specifically identifying issues on which there were no material facts in dispute

Court: Michigan Court of Appeals (Unpublished)

Case Name: Semco Energy, Inc. v. Eclipse, Inc.

e-Journal Number: 53390

Judge(s): Per Curiam – O’Connell, Donofrio, and Beckering

 

The court held that the trial court did not err in ruling that the economic loss doctrine barred the plaintiff's product liability claim, and in concluding that the statute of limitations barred plaintiff's claims under the UCC. Further, plaintiff's common-law indemnity claim failed as a matter of law because it was not "held liable" for the replacement cost of the valves at issue as a result of the defendants' alleged wrongdoing. Thus, the court affirmed the trial court's order granting the defendants summary disposition. Plaintiff distributes natural gas to customers for the operation of home appliances. Plaintiff estimated that it had 41,522 Rockford Eclipse Series 125 gas valves in service. Defendants-Eclipse were the sole designers and sellers of the valves from 1990 until 1993. In 1993, defendants-Mueller purchased the product line from Eclipse and sold the valves from 1993 until 1999. Plaintiff purchased valves from Eclipse before 1993 and from Mueller from 1993 until 1998. Plaintiff alleged counts for, inter alia - (1) breach of express warranty, (2) breach of implied warranty of merchantability, (3) breach of implied warranty of fitness, (4) defective product liability, and (5) express-contractual, implied-contractual, and common-law indemnity. As to plaintiff's product liability claim, the court concluded that plaintiff sought damages for purely economic loss. Further, the court noted that this case was "one in which all parties to the transaction were sophisticated commercial entities. The use of the gas valves to regulate natural gas - a highly flammable substance - necessarily involves a contemplation of the risks to other property should a valve fail. These facts support a finding that the risk was reasonably contemplated at the time of the contract." As to the UCC's statute of limitations, the court noted that there was no factual dispute that plaintiff last purchased the valves in 1998. Applying the four-year statute of limitations, plaintiff must have brought its claims under the UCC before 2002. However, plaintiff filed this suit in 2010. Thus, the statute of limitations barred plaintiff's claims. The court rejected plaintiff's argument that the discovery rule applied to its warranty claims and that when it discovered its warranty claims presented genuine issues of material fact. While in the past the court had held that the discovery rule in MCL 600.5833 tolls the statute of limitations for a breach of contract, more recently the court has "specified that when a plaintiff's claim is subject to the UCC, the discovery rule in MCL 600.5833 does not toll the statute of limitations. This is because MCL 600.5833 applies to warranties in service contracts - not to warranties that the UCC governs." The court also concluded that plaintiff failed to show there was a genuine issue of material fact as to fraudulent concealment, and even if the statute of limitations was tolled for two years, plaintiff's claim was still barred. As to plaintiff's common-law indemnity claim, the court concluded that its "past and prospective costs to replace the valves are not costs owed to a third party due to a legal liability owed to such third party."

 

Termination of Parental Rights

 

Issues: Termination of parental rights pursuant to §§ 19b(3)(c)(i), (g), and (j); Whether the trial court adequately considered whether termination was in the child's (M) "best interests" given that he was placed with a relative; In re Mason; In re Olive/Metts

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re LeBeau

e-Journal Number: 53467

Judge(s): Per Curiam – Wilder, Gleicher, and Boonstra

 

In an order, the court vacated its prior opinion (see e-Journal # 53171 in the 11/29/12 edition) and issued a new opinion concurrently with the order. In the new opinion, the court stated that it retained jurisdiction. The court remanded the case for further proceedings consistent with its opinion, and set deadlines for the proceedings on remand. The court held that although petitioner-DHS established a statutory ground for termination of the respondent-father's parental rights, the trial court failed to consider whether termination was in M's best interests given that he was placed with a relative. Thus, the court vacated the termination order and remanded for further consideration of M's best interests. M was born on 11/18/08. The DHS immediately took jurisdiction over him because his mother had lost custody of her three older children and was participating in reunification services. M spent one month in his maternal aunt's care and then stayed with his paternal aunt until he was returned to his mother's custody in 5/09. Respondent resided with the child and his mother at the time. Because of the parents' substance abuse issues and incidents of domestic violence in the home, the trial court again took custody of M on 7/8/10. Respondent did not become actively involved in the proceedings until that time. M then lived with his paternal grandparents until 12/19/11, when petitioner returned M to his custody. During that time, M's mother voluntarily relinquished her parental rights. Respondent was placed on probation for indecent exposure on 3/7/11. Despite his probation conditions and terms of his PAA, respondent admittedly drank alcohol and used cocaine. Many of his drug screens were diluted and he failed to appear for several. He tested positive for cocaine only four days before M was returned to his care. Respondent also failed to tell his caseworker that he was arrested on 11/29/11, while fleeing the scene of a grocery store after his girlfriend (KS) stole a woman's purse. M was returned to his paternal grandparents' care on 1/30/12 after respondent was arrested on suspicion of assaulting KS. M was asleep in the home at the time and officers found crack cocaine paraphernalia sitting in plain sight. The court concluded that the factual basis for termination of respondent's parental rights was established, but the trial court did not adequately consider the child's best interests before terminating respondent's parental rights. The trial court was required to consider M's relative placement in determining whether termination was in his best interests based on Mason and Olive/Metts. "A trial court's failure to explicitly address whether termination is appropriate in light of the children's placement with relatives renders the factual record inadequate to make a best interests determination and requires reversal."

 

Issues: Termination under §§ 19b(3)(c)(i) and (g); Whether the respondent-father complied with his parent-agency agreement (PAA); MCR 3.977(K); In re Mason; Child's best interests; In re Olive/Metts

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Hudson

e-Journal Number: 53470

Judge(s): Memorandum – Saad, K.F. Kelly, and M.J. Kelly

 

Holding that the trial court did not clearly err in finding that the respondent-father failed to comply with his PAA and that terminating his parental rights was in the child's best interests, the court affirmed the trial court's order terminating his parental rights. Respondent's parental rights were previously terminated based on the fact that he was continuously incarcerated since the child entered foster care. However, the court reversed, finding that his conduct while in prison - including participation in parenting classes, anger management classes, and substance abuse classes - as well as his imminent release from prison, "indicated that respondent's incarceration would be rectified, and that respondent would be available to plan for the child and provide custody within a reasonable time." The case was remanded to the trial court and respondent was provided with a PAA, which required him to "obtain a psychological evaluation, attend parenting classes, attend anger management classes, submit to drug screens, maintain and obtain suitable housing, maintain and obtain legal employment, and follow the conditions of his parole." However, "respondent spent a majority of his time in and out of jail and was unable or unwilling to comply with the PAA." He did not supply verification of income or housing. "There was some evidence that he completed anger management and parenting classes, but failed to benefit. Respondent's drug abuse and the drug addiction remained the primary barrier to reunification, as confirmed by his psychological evaluation and consistent positive drug screens." He admitted at the termination hearing that he had only been "clean" for two and a half weeks. He also testified that he got "blasted drunk" over his frustrations and fears about not seeing his child. The court concluded that viewing the evidence as a whole, the trial court did not clearly err in finding that the statutory grounds for termination were met by clear and convincing evidence. Noting that the child was in care nearly his entire life, and struggled with not being adopted while his brother (who was not respondent's child) was adopted, the court also upheld the trial court's finding as to the child's best interests.

 

Classifieds

Announcement
Association Desired
Employment AvailableNEW!
Employment Wanted
Event/Seminar
For Sale
Office Space
Public Notice
Referrals
Advertising Marketplace

Fields of Practice

Adoption
ADR
Appellate Practice
Arbitration & Mediation
Attorney Discipline
Business Law
Commercial Litigation
Copyrights
Divorce
Family Law
Federal False Claims
Health Care
Immigration
Intellectual Property
Law Enforcement
Legal Malpractice
Lemon Law
Licensing
Medicare Liens
Patents
Personal Injury
Stockbrokers
Taxation
Trademarks

Disclaimer