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The e-Journal provides summaries of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals(published and unpublished), the U.S. Sixth Circuit Court of Appeals(published), and selected U.S. District Courts.


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Today's e-Journal includes summaries of two Michigan Supreme Court orders under Criminal Law and Family Law. Case appear under the following practice areas:

Criminal Law (9)
Family Law (1)
Insurance (2)
Litigation (3)
Malpractice (3)
Negligence & Intentional Tort (2)
Termination of Parental Rights (1)

Criminal Law

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Issues: Exclusion of the alleged victim's testimony because she had "some taint" from hearing the opening statements after the trial court ordered the witnesses to be sequestered; People v. Stanley; MRE 615; Whether the trial court abused its discretion in excluding the testimony; People v. Babcock; Whether the alleged victim had a constitutional right to be present at all portions of the trial (Const. 1963, art. 1, § 24); The court's duty to refrain from deciding constitutional issues when a case can be decided on other grounds; Wayne County v. Hathcock
Court: Michigan Court of Appeals (Published)
Case Name: People v. Meconi
e-Journal Number: 38254
Judge(s): Murray and Servitto; Concurrence – Sawyer
 
While the court did not necessarily disagree with the prosecution’s argument the alleged victim had a constitutional right to be present at all portions of the trial, it concluded the case was “more prudently resolved” by accepting the alternative argument the trial court abused its discretion in excluding her testimony because she remained in the courtroom and heard the opening statements after the trial court ordered the witnesses to be sequestered. The victim alleged defendant grabbed her and threw her off a porch, causing her to fracture her elbow. At the outset of the bench trial, the trial court ordered anyone who was scheduled to testify, might testify, anticipated they would testify, or probably could testify to leave the courtroom, and not to discuss their testimony until released by the trial court. The prosecutor and defense counsel proceeded to make brief opening statements, and the prosecutor called the alleged victim as his first witness. The trial court realized the alleged victim had remained in the courtroom during opening statements. She explained she did not exit the courtroom because she was instructed to remain by the crime victim’s advocate. The trial court declared a mistrial and precluded the alleged victim from testifying at the new trial, concluding she was tainted and there was no way to remedy the taint. Noting its duty to refrain from deciding constitutional issues when a case can be decided on other grounds, the court held even if the alleged victim did not have a constitutional right to be present for the entire trial proceedings, the trial court abused its discretion by imposing such a severe sanction. It was undisputed the violation of the sequestration order was due to an innocent mistake. The fact the violation was not purposeful was “a significant mitigating factor,” as was the fact the alleged victim did not hear any testimony. Further, this was a bench trial and the trial court was capable of determining the alleged victim’s credibility knowing she heard the opening statements. Reversed and remanded.
 

Issues: Whether the trial court properly admitted other acts evidence; MRE 404(b); People v. Crawford; People v. VanderVliet; The test in People v. Golochowicz; MRE 401; People v. McGuffey; Sufficiency of the evidence defendant was armed to convict him of armed robbery; People v. Ford; People v. Jolly; MCL 750.529; Prosecutorial misconduct; People v. Rice (On Remand); People v. Bahoda; People v. Reed; People v. Watson; Ineffective assistance of counsel; People v. Rogers; People v. Ackerman; Whether the trial court properly denied defendant’s motion for resentencing; MCL 769.12 and .13; People v. Walker
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Baker
e-Journal Number: 38218
Judge(s): Per Curiam – Talbot, Zahra, and Meter
 
Since the other acts evidence showing the defendant robbed another woman satisfied the four-part Golochowicz test of admissibility, it was properly admitted by the trial court. Substantial evidence defendant committed the other robbery existed because the victim, W., identified him and he was pursued and arrested near the robbery scene. Special qualities of the robberies existed to prove defendant’s identity in this case. The robberies both occurred outside, within close proximity, and were committed within two days of each other. Both victims were female. Their robber wore a camouflage jacket and dark pants and shoes, and he did not obscure his face. His demands for money were similar—“Look, B****, give me what you got and hurry up” and “B****, give me all you got.” The robber implied he had a gun, but did not show it or discharge it. Although the robber succeeded in kidnapping W. only, he wanted both victims to go with him afterward. The evidence of the robbery of W. was material to defendant’s guilt. Defendant’s identity as the robber was particularly at issue because he argued he was not the robber and the victim's, (A.), identification of him in the lineup was mistaken. Evidence defendant robbed another woman under similar circumstances made his identity as A.’s robber more probable. The probative value of the testimony was not outweighed by its potential for unfair prejudice. The record did not show a tendency the other acts evidence would be given preemptive or undue weight by the jury. Also, the trial court and the prosecutor informed the jury the evidence of W.’s robbery should only be used as evidence of identity in A.’s robbery. The trial court instructed the jury the evidence of W.’s robbery should not be used to decide defendant was a bad person or was likely to commit crimes. Affirmed.
 

Issues: Sufficiency of the evidence to convict the defendant of armed robbery, felon in possession, felony-firearm, and CCW; People v. Nowack; People v. Hardiman; People v. Gray; Other acts evidence; “Signature” crimes; People v. Smith; People v. Ewoldt; People v. Starr; People v. VanderVliet; Whether the trial court was required to hold an evidentiary hearing regarding a witness’s identification; United States v. Rowan (6th Cir.); Suggestibility of the lineup; Whether the search warrant lacked probable cause; People v. Osantowski; Whether a sweatshirt was lawfully seized; People v. Martin; Prosecutorial misconduct; People v. Abraham; “Smoke and mirrors”; People v. Rodriguez; People v. Bahoda; Sentencing; Scoring of OVs 4 and 13; People v. Hornsby; People v. Drohan; People v. Apgar; Ineffective assistance of counsel; MCR 6.429(C)
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Bell
e-Journal Number: 38202
Judge(s): Per Curiam – Kelly, Cavanagh, and O’Connell
 
There was sufficient evidence to convict the defendant of armed robbery, felon in possession, felony-firearm, and CCW. He argued the evidence was insufficient because there was no physical evidence, such as DNA, fingerprints, or gunshot residue tying him to the scene. However, there is no requirement the prosecution must present physical evidence of the kind he described. Circumstantial evidence and the reasonable inferences from it are always sufficient to support a conviction, provided the prosecution meets its burden of proof. The prosecution is not obligated to prove its case with absolute scientific and metaphysical certainty, and it is not required to disprove every plausible explanation of the evidence proffered by a defendant. Thus, defendant’s arguments about the nature of the evidence presented, particularly the quality of the evidence he would have preferred, only invited speculation and were without merit. Further, the items found in the searched apartment were sufficiently linked to him by the evidence. The prosecutor presented evidence he stayed there and his “Johnny Blaze” sweatshirt was later found in the apartment. Defendant’s distinctive van was seen there and he was arrested in the company of S., who lived there and further associated him with it. The items found in the apartment included the clothing and a firearm matching the items from the Speedway robbery. The court concluded there was ample evidence for the jury to infer the items found at the apartment were defendant’s property. Defendant’s convictions were affirmed, but the case was remanded for clarification of his score for OV 13 and reinstatement of his original sentence, or resentencing.
 

Issues: Whether the trial court abused its discretion by denying the defendant’s motion for a new trial predicated on juror misconduct; People v. Crear; MCR 6.412(A); MCR 2.510 and 2.511; People v. Eccles; Whether defendant was prejudiced; People v. Daoust; Right to a fair and impartial jury and verdict; People v. DeHaven
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Miller
e-Journal Number: 38211
Judge(s): Per Curiam - Davis, Murphy, and White
 
The trial court abused its discretion by denying the defendant’s motion for a new trial predicated on juror misconduct. After the verdict but before sentencing, defendant learned contrary to the information provided on his jury questionnaire, a juror was previously convicted of assault with intent to commit CSC involving sexual penetration in 1991 and 1999, which is a felony. Defendant moved for a new trial based on this information. Under MCR 2.511(D)(1), the juror would have been excusable for cause because he was “not qualified to be a juror,” given MCL 600.1307a(1)(e) provides “[t]o qualify as a juror a person shall [n]ot have been convicted of a felony.” There can be no dispute had the juror’s previous felony convictions been made known in a timely manner, the juror would not have been seated on the jury in the criminal trial and prosecution against defendant. Although the case law indicates a defendant is entitled to a new trial if a challenged juror would have been excusable for cause, MCL 600.1354(1) requires a different analysis under the facts in this case. It appeared defendant raised the issue of the juror’s qualifications as soon as the convictions became known, and the noncompliance was certainly substantial. Thus, the court must resolve whether defendant was prejudiced when the convicted felon participated as a member of the jury in defendant’s trial. Based on DeHaven, the court held defendant was prejudiced. The crimes committed by the defendant and the challenged juror were also similar in nature, relating to CSC. Moreover, the challenged juror himself had committed the crimes, not just a relative as in DeHaven. Further, while the challenged juror proclaimed he was fair, impartial, and listened to the evidence, arguments, and instructions, the jurors in DeHaven also claimed an ability to be fair and impartial, yet the Supreme Court reversed. Accordingly, defendant was not afforded a fair and impartial jury and was thus prejudiced. Reversed and remanded for a new trial.
 

Issues: Whether the trial court’s jury instruction on the prosecution’s aiding and abetting theory was supported by the evidence; People v. Ho; People v. McGhee; People v. Graves; People v. Hess; First-degree premeditated murder; People v. Wofford; People v. Robinson; People v. Lemons; Motion for the appointment of a medical expert; People v. Tanner; People v. Babcock
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Moore
e-Journal Number: 38243
Judge(s): Per Curiam - Talbot, Zahra, and Meter
 
The trial court’s jury instruction on the prosecution’s aiding and abetting theory was supported by the evidence. A witness testified a man with braids fired the first three shots at the victim during a bar confrontation. She also stated defendant did not have braided hair, and the victim was not dead following the first gunshots. She and a second witness testified defendant fired the final shots. The witness further testified the victim died following the gunshots fired by defendant, while the victim was lying wounded on the barroom floor. The ballistics expert testified the bullets recovered from the victim’s body were fired from a single gun. This evidence supported the aiding and abetting instruction. If defendant was not the sole assailant, the evidence supported the prosecution’s alternate theory, he assisted the first gunman by obtaining the firearm from him and shooting the victim, thus bringing about his death. Because there was evidence to support the elements of aiding and abetting, the trial court did not err in instructing the jury on the theory and leaving it to the trier of fact to weigh the evidence and determine credibility. Defendant presupposed a favorable result from the court arguing the general guilty verdict, which could have been decided by the jury on the basis of the allegedly unsupported aiding and abetting theory, necessitated reversal. However, the court did not reach the argument of whether the jury convicted defendant on the basis of misdirection of the jury. Defendant’s convictions of first-degree premeditated murder, felon in possession of a firearm, and felony-firearm were affirmed.
 

Issues: Conviction of misdemeanor stalking in violation of a city ordinance; Other acts evidence regarding the defendant’s prior contact with the victim; People v. Lukity; MRE 404(b)(1); People v. VanderVliet; People v. Sabin (After Remand); People v. McGhee; Whether the other acts evidence was relevant; People v. Ackerman; Whether the evidence was unfairly prejudicial to defendant; People v. Ortiz; Sufficiency of the evidence to support defendant’s conviction; People v. Strong; People v. Lemmon; Whether defendant’s alleged contact with the victim would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested; Jury instructions regarding intent and defendant’s prior unconsented contact with the victim; CJI2d 4.11; Whether the trial court committed outcome-determinative error; People v. Martin; Exclusion of a videotape depicting defendant and the victim engaged in sexual intercourse; Whether the videotape could be authenticated; MRE 901(a); Whether the videotape was relevant; MRE 401; Denial of defendant’s request for an evidentiary hearing; Whether the request was for all intents and purposes a request for a preliminary examination; MCL 600.8311(d)
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Nyilos
e-Journal Number: 38238
Judge(s): Per Curiam – Talbot, Zahra, and Meter
 
The trial court properly admitted evidence of defendant’s prior unconsented contact with the victim in his trial for misdemeanor stalking in violation of a city ordinance because his prior unconsented contact and the contact at issue “shared sufficient common features to infer a plan, scheme, or system with regard to the acts.” Defendant and the victim were formerly in a relationship. His conviction arose from three incidents in April 2004 when he encountered the victim leaving her workplace. According to the victim, the three incidents were part of a pattern of harassment by defendant. After she ended their relationship in 2000, she asked defendant to stay away from her. However, he continued to contact her, forcing her to obtain multiple PPOs against him. She testified she does not know what to expect from defendant, and she was afraid he would hurt her. Defendant previously contacted the victim by telephoning her, leaving her gifts and letters, following her in his vehicle, and appearing at her home and workplace. In April 2004 he contacted her by appearing near her workplace in his vehicle. These incidents occurred almost immediately after a third PPO against him expired. The court concluded it was apparent the contact at issue fit into “defendant’s pattern of appearing at the places” the victim frequented, “especially after the PPOs against him expired.” Although his prior contact with the victim occurred about two years before the incidents at issue, the remoteness of an act only affects the weight of the evidence, not its admissibility. The evidence was also offered to show intent. The fact defendant had prior unconsented contact with the victim made it more likely he intended to make contact with her in April 2004. The evidence was relevant, and not unfairly prejudicial to defendant in light of the trial court’s jury instructions. The court reversed the circuit court’s ruling reversing defendant’s conviction and reinstated his conviction.
 

Issues: Whether the trial court properly denied defendant’s postjudgment motion to withdraw her pleas due to insufficient factual bases for them; People v. Brownfield (After Remand); People v. Jones; The embezzlement counts; People v. Leuth; Whether defendant was the victim’s “caregiver” as used in MCL 750.174a(11)(c); Common law obstruction of justice; Witness intimidation; People v. Vallance; MCL 750.122; People v. Milstead; People v. Greene; Double jeopardy; People v. Mehall; People v. Nutt; People v. Ford; People v. Bobby Smith; Blockburger v. United States; In re Forfeiture of Bail Bond; “Unit of prosecution” double jeopardy analysis; People v. Harper; United States v. Busacca; Sentencing; PRVs 6 and 7; OV 13
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Williams
e-Journal Number: 38239
Judge(s): Per Curiam – Zahra, White, and O’Connell
 
Concluding the factual basis for defendant’s embezzlement convictions was sufficient, but she failed to provide a sufficient factual basis for her conviction of common law obstruction of justice, the court held the trial court erred in denying her motion to withdraw her pleas on this count. The case arose from defendant’s manipulation of her relationship with Kemp, a vulnerable adult, and her attempt to persuade Kemp to urge the prosecution to dismiss the embezzlement charges. Defendant pleaded guilty as charged and admitted her habitual offender status. The sentencing guidelines for embezzlement, a Class D offense, placed the minimum range at 19 to 76 months as an habitual offender. The trial court sentenced defendant to concurrent terms of 76 to 240 months for the embezzlement convictions. On appeal, defendant contended the trial court erred in denying her postjudgment motion to withdraw her pleas due to insufficient factual bases for them. Defendant admitted she stood in a relationship of trust with Kemp, a vulnerable adult. The record at the plea proceeding indicated defendant befriended Kemp after answering a help-wanted ad. Initially, Kemp intended to hire defendant to perform lawn-care services. However, after Kemp bonded with defendant, she relied on defendant to hire a lawn-care service on Kemp’s behalf. Additionally, defendant assisted in Kemp’s care by acting as her chauffeur. Kemp who was either unable or unwilling to drive a car, was permitted to address her needs only because of defendant’s assistance. Accordingly, the court concluded defendant provided a sufficient factual basis to establish she was a caregiver under the statute, and there was sufficient factual support for her guilty plea to four counts of embezzlement under MCL 750.174a(4)(a). The court affirmed the embezzlement convictions, reversed the common law obstruction of justice conviction, and remanded.
 

Issues: Sentencing; Prosecutorial misconduct; United States v. Green; United States v. Emuegbunam; Stipulation of loss amount; Brady claim regarding disclosure of loss amount; Strickler v. Greene; United States v. Bencs; Kyles v. Whitley; United States v. Ross; Matthews v. Ishee; Scope of defendant’s waiver of the right to appeal in her plea agreement; United States v. Calderon; United States v. Sharp; Claim the sentence was too long; Distinction between “upward adjustments” (sentence enhancements) and “upward departures”; Whether by disputing the district court’s sentence enhancements defendant was appealing what her plea agreement provided she could not appeal
Court: U.S. Court of Appeals Sixth Circuit
Case Name: United States v. Coker
e-Journal Number: 38252
Judge(s): Boggs, Kennedy, and Jordan
 
The government’s decision to stipulate a different loss amount with the co-conspirator, Walsh, than it argued for at defendant’s sentencing hearing was not prosecutorial misconduct, but was legitimate and acceptable prosecutorial conduct. Defendant was indicted on five counts of conspiring to defraud the United States, taking bribes, and violating the federal conflict of interest laws. She pleaded guilty to a single count of committing an illegal conflict of interest, in return for having the other charges dropped. She argued misconduct occurred when the government stipulated with Walsh to a lower loss amount than the amount for which the government argued she was responsible. The government argued at defendant’s sentencing hearing the loss amount from her kickbacks was $383,000. Nine months later, at Walsh’s sentencing hearing, the government asked the district court to find the loss amount for Walsh’s involvement in the same scheme was $263,000. The lower amount reflected the estimated $120,000 in taxes Walsh paid to the government on the $383,000 he made on the tape sales. The taxes he paid were factored into Walsh’s loss amount because the guidelines state the loss amount should be reduced by “[t]he money returned . . . by the defendant or other persons acting jointly with the defendant, to the victim before the offense was detected.” Defendant assumed she was entitled to the same credit because she “acted jointly” with Walsh in committing the crime. She misread the provision. It refers to those who act jointly to ameliorate the crime, not to commit it. Walsh paid taxes on his ill-gotten gains. Defendant neither paid nor helped Walsh pay his taxes, and she could not take advantage of the provision. Defendant argued these “inconsistent” loss amounts between herself and Walsh constitute prosecutorial misconduct because one of the stipulations must be “inaccurate.” This argument failed to recognize two different loss amounts, for two different defendants, can both be accurate because the different loss amounts reflect the different loss for which each defendant was responsible. Further, the government’s different loss calculations cannot be prosecutorial misconduct—let alone misconduct rising to plain error—because the government has no obligation to stipulate to identical loss amounts with co-conspirators. Affirmed.
 

Issues: Sentencing following the defendant’s conviction of one count of kidnapping; Whether the district court properly sentenced the defendant to 188 months in prison; United States v. Davis; The § 3553(a) factors; Motion to correct sentence under Fed.R.Crim.P. 35(a); United States v. Vicol; Whether the error was harmless or  constituted reversible error; Gall v. United States; United States v. Duckro
Court: U.S. Court of Appeals Sixth Circuit
Case Name: United States v. Vicol
e-Journal Number: 38251
Judge(s): Martin, Kennedy, and Cole
 
Holding the district court abused its discretion in its calculation of the correct guidelines sentencing range required under § 3553(a) and the error was not harmless where it affected the district court’s decision in sentencing the defendant, the court vacated his sentence and remanded to the district court for resentencing, taking into account the properly calculated non-mandatory guidelines range. Defendant, recently released from jail, arranged to meet with a former girlfriend to discuss reconciliation. He met her and her friend at a party where he became angry and attacked the former girlfriend. The two women left the party and fled. Defendant pursued the women and repeatedly rammed his car into theirs until they pulled over. He ran to the car and using a pair of shears smashed the driver’s side window, ordered the friend into the back seat, and slashed her face. He then smashed the girlfriend’s face into the dashboard several times, breaking a tooth, stabbed her in the leg, and cut off her hair. He told both women they would die and drove them to a hotel, called the friend’s father and told him she would not be home, but later released her. He refused to let the girlfriend go and took her to a hotel in Indiana. After being contacted by the FBI, his family convinced him to give himself up. He confessed to kidnapping both women and was later convicted. The PSIR stated the guidelines called for a base level of 32 under § 2A4.1(a)(1) and classified defendant as having a criminal history of V due to his 18 prior convictions, yielding a range of 360 months to life. He argued his base level should be 24. The district court misunderstood his argument and believing the guideline increase came after his crime, sentenced him to 188 months. The government moved to correct the sentence. The district court held it had jurisdiction to resentence defendant and imposed a sentence of 360 months. On appeal, the court ruled the district court did not have jurisdiction to resentence him, vacated the sentence, remanded, and directed imposition of the original sentence. The district court again sentenced him to 188 months. The government appealed the reinstated original sentence.
 

Family Law

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Issues: Whether the judgment of divorce should be vacated because it was based on an allegedly invalid arbitration award; Bayati v. Bayati; Domestic Relations Arbitration Act (DRAA)(MCL 600.5072); Harvey v. Harvey; Miller v. Miller; Shifferd v. Gholston; Whether the trial court properly accepted the arbitrator’s custody, child support, and parenting time recommendations without making an independent determination of the best interests of the minor children; Ernsting v. Ave Maria Coll.; Thompson v. Thompson; Rembert v. Ryan’s Family Steak Houses, Inc.; MCL 600.5080(1) and (2); Whether the arbitrator exceeded his authority; Collins v. Blue Cross & Blue Shield of MI; Krist v. Krist; Whether the arbitrator separated marital and pre-marital property; Gates v. Gates; Reeves v. Reeves; Whether the arbitrator miscalculated the value of the Iroquois property and issued an inequitable property award; Whether the arbitrator showed bias; Kauffman v. Haas; Cain v. Department of Corr.; Whether the arbitrator improperly commented on the daughter’s preference to live with the defendant-mother; MCL 722.23(j); Treutle v. Treutle
Court: Michigan Court of Appeals (Unpublished)
Case Name: Hartt v. Hartt
e-Journal Number: 38220
Judge(s): Per Curiam - Wilder, Borrello, and Beckering
 
The arbitration award was valid and the court would not vacate the award. The plaintiff-husband argued the judgment of divorce should be vacated because it was based on an invalid arbitration award. Plaintiff maintained the arbitration award was invalid because the parties failed to comply with the statutory requirements of the DRAA. The parties entered into an agreement satisfying the requirements of MCL 600.5072 when they stipulated to entry of the order for binding arbitration the trial court in due course was supposed to enter. Although the stipulated order was not entered within the anticipated time frame, on January 25, 2007, the trial court entered an order for arbitration nunc pro tunc deemed effective December 12, 2005. Because the stipulated order was supposed to have been entered, but through mistake or inadvertence no order was entered, the order for arbitration nunc pro tunc was sufficient to correct this error. The parties agreed on the record to arbitrate and the following facts were made known on the record―(1) the arbitration was voluntary, (2) the decision was binding absent a showing of fraud or misrepresentation, (3) the limited role of appeal in arbitration, and (4) the costs associated with arbitration. Although the remaining factors listed in MCL 600.5072 were not specifically complied with, this did not invalidate the agreement to arbitrate. “As long as the parties agree to some document” meeting the minimal requirements of MCL 600.5071 and MCL 600.5072(1)(e), “the agreement is sufficient.” The parties agreed to arbitrate on the record and a stipulated order was entered nunc pro tunc. Affirmed.
 

Insurance

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This summary also appears under Negligence & Intentional Tort
 
Issues: Whether the adoption of the federal financial requirements for the transportation of hazardous materials in the Motor Carrier Safety Act (MCSA) (MCL 480.11 et seq.) creates an exception to the No-Fault Act’s abolition of tort liability as to transporters of hazardous materials; MCL 500.3101(1); MCL 500.3135(3); MCL 500.3121; The Federal Motor Carrier Safety Act (FMCSA)(USC § 31139(d)) and CFR 387.9 (requiring a $5 million level of financial security to be carried by carriers of hazardous materials) adopted by Michigan through the MCSA in 1996; Michigan Dep’t of Transp. v. Initial Transp., Inc.; When the plaintiff seeks security provided for in the MCSA; 49 CFR 387.15 prescribing the form of endorsements (known as MCS-90); American Inter-Fid. Exch. v. American Re-Ins. Co.; John Deere Ins. Co. v. Nueva (9th Cir.); Whether the plaintiff must proceed with a negligence action against the insured; Office Planning Group, Inc. v. Baraga-Houghton-Keweenaw Child Dev. Bd.; Baxter v. Gates Rubber Co.; Whether res judicata and collateral estoppel applied; Sewell v. Clean Cut Mgmt., Inc.; PT Today. Inc. v. Commissioner of Fin. & Ins. Servs.; Monat v. State Farm Ins. Co.; Compulsory joinder; MCR 2.203(A); Necessary joinder; MCR 2.205(A); United States Auto. Ass’n v. Nothelfer; Liquefied petroleum gas (LPG)
Court: Michigan Court of Appeals (Published)
Case Name: Michigan Dep't of Transp. v. North Cent. Coop. LLC
e-Journal Number: 38253
Judge(s): Servitto and Murphy; Dissent – Zahra
 
Since the MCSA’s requirement the transporters of hazardous materials maintain $5 million in security created an exception to the No-Fault Act’s $1 million cap on damages, and neither res judicata nor compulsory joinder barred the present action, the court reversed and remanded for further proceedings. The lawsuit arose from an accident involving a tanker truck, owned and operated by defendant-North Central, which was transporting LPG. The truck struck a guardrail causing the tanker to separate from the trailer, crash over the barriers of a freeway overpass, and fall to the road below. Upon impact, the tanker exploded, enveloping the road and overpass bridge in flames, ultimately causing significant damage to both. Plaintiff paid nearly $2 million to repair the damage. Plaintiff sued defendant’s insurer under the No-Fault Act to recover the cost of the repairs, and was awarded $658,138 in its case against Farmland Insurance. Plaintiff then filed this negligence case against defendant, contending it was directly liable for the remaining damages. The trial court granted defendant summary disposition. The court held the MCSA creates an exception to the No-Fault Act’s abolition of tort liability with respect to transporters of hazardous materials. In 1996, Michigan adopted by reference certain federal motor carrier safety regulations. The court held to recover the security required by the MCSA for the transportation of hazardous materials, a plaintiff must proceed with a negligence action against the insured. The court also held the doctrines of res judicata and collateral estoppel were inapplicable, and neither compulsory nor necessary jointer applied. Reversed and remanded.
 

Issues: Whether the trial court properly denied the defendant’s motion for summary dismissal of the plaintiff’s uninsured motorist claim on the ground plaintiff could not meet the insurance contract’s “actual physical contact” requirement; Dressel v. Ameribank; Berry v. State Farm Mut. Auto. Ins. Co.; Whether a “substantial physical nexus” existed; Wills v. State Farm Ins. Co.
Court: Michigan Court of Appeals (Unpublished)
Case Name: Kerr v. Citizens Ins. Co. of Am.
e-Journal Number: 38240
Judge(s): Per Curiam - Kelly, Cavanagh, and O’Connell
 
The trial court erred by denying the defendant’s motion for summary dismissal of the plaintiff’s uninsured motorist claim on the ground plaintiff could not meet the insurance contract’s “actual physical contact” requirement because plaintiff failed to establish a genuine issue of material fact with regard to this issue. Plaintiff was traveling on I-94 when she saw a bale of hay in the traffic lanes. She swerved to avoid it, made some contact with it, and then lost control, striking a guard rail and causing damage to her car and injuries to herself. She sought uninsured motorist benefits under a policy from defendant. Defendant argued the trial court erroneously denied its motion for summary disposition because plaintiff failed to present evidence of a substantial physical nexus between a hit-and-run vehicle and the bale of hay. Plaintiff was not merely asking the bale of hay be inferred as projecting from an unidentified vehicle—a vehicle seen in the area of the incident but unable to be identified. Instead, plaintiff was requesting the court infer an unidentifiable vehicle in fact dropped the bale of hay—no vehicle was seen in the area. Although “inferential evidence rather than objective evidence is enough to establish a link between a disappearing vehicle and plaintiff’s vehicle,” in this case there was no disappearing vehicle. Plaintiff argued she should be able to establish her case with circumstantial evidence. However, she had not offered any facts from which a reasonable inference could be drawn as to how or when the bale of hay got into the roadway. She merely offered the fact it was, indeed, in the roadway. Plaintiff failed to offer evidence establishing “a continuous sequence of events with a clearly definable beginning and ending, resulting in plaintiff’s coming into contact with the [bale of hay].” Thus, if this case was presented to a jury, the court would be asking the jury to find facts based on nothing more than conjecture and speculation. There were a number of explanations for the bale of hay’s presence on the roadway and not all of them involved a hit-and-run vehicle. Reversed and remanded.
 

Litigation

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This summary also appears under Malpractice
 
Issues: Wrongful death medical malpractice; Statute of limitations; Mullins v. St. Joseph Mercy Hosp.
Court: Michigan Supreme Court
Case Name: Clemens v. Koziarski
e-Journal Number: 38248
Judge(s): Taylor, Cavanagh, Weaver, Kelly, Corrigan, Young, Jr., and Markman
 
In an order in lieu of granting leave to appeal, the court reversed the judgment of the Court of Appeals (see e-Journal #37126 in the 9/28/07 edition) in part because plaintiff-Clemens fell within the class of plaintiffs entitled to relief identified in the court’s order in Mullins. The court remanded the case to the trial court for entry of an order denying defendants’ motion for summary disposition in case no. 03-001783-NH and for further proceedings not inconsistent with this order and the order in Mullins. The court denied leave to appeal in all other respects because it was not persuaded it should review the remaining question presented.
 

This summary also appears under Malpractice
 
Issues: Medical malpractice; Whether the trial court properly applied Waltz v. Wyse retroactively to grant defendants summary disposition; Mullins v. St. Joseph Mercy Hosp.; MCL 600.5852; Farley v. Advanced Cardiovascular Health Specialists, PC; Whether the court should consider the equities of the case; MCR 7.216(A)(7); Bryant v. Oakpointe Villa Nursing Ctr., Inc.; Ward v. Siano; Denial of motion to appoint a successor plaintiff following plaintiff-PR’s death; Res judicata; Washington v. Sinai Hosp. of Greater Detroit
Court: Michigan Supreme Court
Case Name: Hartman v. Port Huron Hosp.
e-Journal Number: 38249
Judge(s): Taylor, Cavanagh, Weaver, Kelly, Corrigan, Young, Jr., and Markman
 
In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals’ judgment (see e-Journal #36994 in the 9/12/07 edition) because the plaintiff fell within the class of plaintiffs entitled to relief identified in the court’s order in Mullins. The court remanded the case to the trial court for entry of an order denying the defendants’ motion for summary disposition and for further proceedings not inconsistent with the order and the order in Mullins. Further, the court directed the trial court to enter an order granting the motion to substitute the successor PR as the plaintiff in this case consistent with MCL 700.3613.
 

Issues: Whether the trial court denied the plaintiff a fair trial when it did not give the jury a redacted transcript; Chastain v. General Motors Corp.
Court: Michigan Court of Appeals (Unpublished)
Case Name: Sammour v. Farm Bureau Gen. Ins. Cos. of MI
e-Journal Number: 38214
Judge(s): Per Curiam - Saad, Borrello, and Gleicher
 
The trial court did not deny the plaintiff a fair trial when it did not give the jury a redacted transcript in this first-party no-fault insurance action. Plaintiff alleged the trial court denied him a fair trial when it failed to give the jury a redacted transcript of Harwood’s deposition and, according to plaintiff, sternly admonished the jury for whispering in the courtroom. During deliberations, the jury asked the court for a copy of Harwood’s deposition and asked about the exact date the deposition was taken. In response, the trial court explained to the jury its copy of the deposition contained some information only pertinent to plaintiff’s third-party claim against Bazzi. The trial court then advised the jury those parts would have to be redacted before the trial court could give the jury the transcript. The jury then resumed deliberations and returned with a no cause verdict approximately 20 minutes later. It did not appear from the record the jury asked the trial court to provide the redacted deposition. The court found no error in the trial court’s remarks and, by affirmatively approving of the trial court’s instruction and comments, plaintiff waived any objection. The jury’s verdict of no cause for action was affirmed.
 

Malpractice

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This summary also appears under Litigation
 
Issues: Wrongful death medical malpractice; Statute of limitations; Mullins v. St. Joseph Mercy Hosp.
Court: Michigan Supreme Court
Case Name: Clemens v. Koziarski
e-Journal Number: 38248
Judge(s): Taylor, Cavanagh, Weaver, Kelly, Corrigan, Young, Jr., and Markman
 
In an order in lieu of granting leave to appeal, the court reversed the judgment of the Court of Appeals (see e-Journal #37126 in the 9/28/07 edition) in part because plaintiff-Clemens fell within the class of plaintiffs entitled to relief identified in the court’s order in Mullins. The court remanded the case to the trial court for entry of an order denying defendants’ motion for summary disposition in case no. 03-001783-NH and for further proceedings not inconsistent with this order and the order in Mullins. The court denied leave to appeal in all other respects because it was not persuaded it should review the remaining question presented.
 

This summary also appears under Litigation
 
Issues: Medical malpractice; Whether the trial court properly applied Waltz v. Wyse retroactively to grant defendants summary disposition; Mullins v. St. Joseph Mercy Hosp.; MCL 600.5852; Farley v. Advanced Cardiovascular Health Specialists, PC; Whether the court should consider the equities of the case; MCR 7.216(A)(7); Bryant v. Oakpointe Villa Nursing Ctr., Inc.; Ward v. Siano; Denial of motion to appoint a successor plaintiff following plaintiff-PR’s death; Res judicata; Washington v. Sinai Hosp. of Greater Detroit
Court: Michigan Supreme Court
Case Name: Hartman v. Port Huron Hosp.
e-Journal Number: 38249
Judge(s): Taylor, Cavanagh, Weaver, Kelly, Corrigan, Young, Jr., and Markman
 
In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals’ judgment (see e-Journal #36994 in the 9/12/07 edition) because the plaintiff fell within the class of plaintiffs entitled to relief identified in the court’s order in Mullins. The court remanded the case to the trial court for entry of an order denying the defendants’ motion for summary disposition and for further proceedings not inconsistent with the order and the order in Mullins. Further, the court directed the trial court to enter an order granting the motion to substitute the successor PR as the plaintiff in this case consistent with MCL 700.3613.
 

This summary also appears under Negligence & Intentional Tort
 
Issues: Wrongful death medical malpractice action; Statute of limitations; Waltz v. Wyse; Whether Waltz should apply retroactively; Mullins v. St. Joseph Mercy Hosp.; Whether the plaintiff’s appointment as successor PR on July 16, 2004 afforded her a new wrongful death saving period
Court: Michigan Supreme Court
Case Name: Kimpson v. Botsford Gen. Hosp.
e-Journal Number: 38250
Judge(s): Taylor, Cavanagh, Weaver, Kelly, Corrigan, Young, Jr., and Markman
 
In an order in lieu of granting leave to appeal, the court reversed the judgment of the Court of Appeals (see e-Journal # 37313 in the 10/15/07 edition) because the plaintiff fell within the class of plaintiffs entitled to relief identified in the court’s order in Mullins. The court remanded the case to the trial court for entry of an order denying defendants’ motion for summary disposition and for further proceedings not inconsistent with this order and the order in Mullins. The court denied leave to appeal in all other respects because it was not persuaded it should review the remaining questions presented.
 

Negligence & Intentional Tort

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This summary also appears under Malpractice
 
Issues: Wrongful death medical malpractice action; Statute of limitations; Waltz v. Wyse; Whether Waltz should apply retroactively; Mullins v. St. Joseph Mercy Hosp.; Whether the plaintiff’s appointment as successor PR on July 16, 2004 afforded her a new wrongful death saving period
Court: Michigan Supreme Court
Case Name: Kimpson v. Botsford Gen. Hosp.
e-Journal Number: 38250
Judge(s): Taylor, Cavanagh, Weaver, Kelly, Corrigan, Young, Jr., and Markman
 
In an order in lieu of granting leave to appeal, the court reversed the judgment of the Court of Appeals (see e-Journal # 37313 in the 10/15/07 edition) because the plaintiff fell within the class of plaintiffs entitled to relief identified in the court’s order in Mullins. The court remanded the case to the trial court for entry of an order denying defendants’ motion for summary disposition and for further proceedings not inconsistent with this order and the order in Mullins. The court denied leave to appeal in all other respects because it was not persuaded it should review the remaining questions presented.
 

This summary also appears under Insurance
 
Issues: Whether the adoption of the federal financial requirements for the transportation of hazardous materials in the Motor Carrier Safety Act (MCSA) (MCL 480.11 et seq.) creates an exception to the No-Fault Act’s abolition of tort liability as to transporters of hazardous materials; MCL 500.3101(1); MCL 500.3135(3); MCL 500.3121; The Federal Motor Carrier Safety Act (FMCSA)(USC § 31139(d)) and CFR 387.9 (requiring a $5 million level of financial security to be carried by carriers of hazardous materials) adopted by Michigan through the MCSA in 1996; Michigan Dep’t of Transp. v. Initial Transp., Inc.; When the plaintiff seeks security provided for in the MCSA; 49 CFR 387.15 prescribing the form of endorsements (known as MCS-90); American Inter-Fid. Exch. v. American Re-Ins. Co.; John Deere Ins. Co. v. Nueva (9th Cir.); Whether the plaintiff must proceed with a negligence action against the insured; Office Planning Group, Inc. v. Baraga-Houghton-Keweenaw Child Dev. Bd.; Baxter v. Gates Rubber Co.; Whether res judicata and collateral estoppel applied; Sewell v. Clean Cut Mgmt., Inc.; PT Today. Inc. v. Commissioner of Fin. & Ins. Servs.; Monat v. State Farm Ins. Co.; Compulsory joinder; MCR 2.203(A); Necessary joinder; MCR 2.205(A); United States Auto. Ass’n v. Nothelfer; Liquefied petroleum gas (LPG)
Court: Michigan Court of Appeals (Published)
Case Name: Michigan Dep't of Transp. v. North Cent. Coop. LLC
e-Journal Number: 38253
Judge(s): Servitto and Murphy; Dissent – Zahra
 
Since the MCSA’s requirement the transporters of hazardous materials maintain $5 million in security created an exception to the No-Fault Act’s $1 million cap on damages, and neither res judicata nor compulsory joinder barred the present action, the court reversed and remanded for further proceedings. The lawsuit arose from an accident involving a tanker truck, owned and operated by defendant-North Central, which was transporting LPG. The truck struck a guardrail causing the tanker to separate from the trailer, crash over the barriers of a freeway overpass, and fall to the road below. Upon impact, the tanker exploded, enveloping the road and overpass bridge in flames, ultimately causing significant damage to both. Plaintiff paid nearly $2 million to repair the damage. Plaintiff sued defendant’s insurer under the No-Fault Act to recover the cost of the repairs, and was awarded $658,138 in its case against Farmland Insurance. Plaintiff then filed this negligence case against defendant, contending it was directly liable for the remaining damages. The trial court granted defendant summary disposition. The court held the MCSA creates an exception to the No-Fault Act’s abolition of tort liability with respect to transporters of hazardous materials. In 1996, Michigan adopted by reference certain federal motor carrier safety regulations. The court held to recover the security required by the MCSA for the transportation of hazardous materials, a plaintiff must proceed with a negligence action against the insured. The court also held the doctrines of res judicata and collateral estoppel were inapplicable, and neither compulsory nor necessary jointer applied. Reversed and remanded.
 

Termination of Parental Rights

 
Issues: Jurisdiction; In re Gazella; MCL 712A.2(b); MCR 3.971(A), (B), and (C); MCR 3.903(C)(7) and (10); MCR 3.903(A)(18); Whether the order terminating the respondent-father’s parental rights must be vacated if the court sets aside the adjudication; MCR 3.977(E)
Court: Michigan Court of Appeals (Published)
Case Name: In re S.L.H.
e-Journal Number: 38255
Judge(s): Owens, Bandstra, and Zahra
 
The trial court erred by finding the minor children came within the jurisdiction of the trial court and by terminating the respondent-father’s parental rights to his three minor children because no trial was held, he did not enter a plea, and the mother’s purported plea was invalid. Thus, the trial court never obtained jurisdiction over the children pursuant to MCL 712A.2(b). The petitioner-DHS submitted a petition to the trial court alleging the children came within the jurisdiction of the court based on the respondent’s sexual abuse of S.L. and A.J. and other non-child abuse criminality by him. Respondent argued the trial court erred in taking jurisdiction over the children based solely on the mother’s plea, in which she admitted to no neglectful or abusive conduct on her part, but merely testified regarding the allegations against the father. Respondent further argued if the finding of jurisdiction was reversed, the subsequent order terminating his parental rights must necessarily be vacated. No trial was held, nor did respondent offer a plea. However, the mother offered a plea to the first paragraph of the petition, which the trial court accepted and found sufficient to establish jurisdiction. Respondent asserted the trial court could not take a plea from the mother because there were no allegations in the petition to which she could plead. Stated differently, respondent noted the petition made no allegations the mother had committed an act or omission to bring the children within the jurisdiction of the trial court pursuant to MCL 712A.2(b). The petition alleged the mother found respondent having sex with A.J. and he admitted to her he had been having sex with A.J. The petition did not allege she permitted, or failed to prevent, the alleged sexual abuse from occurring. Thus, although the mother was a “party” to the proceeding, by definition she was not a respondent. Only a respondent may enter a plea, and the mother was not a respondent and could not enter a plea. Although the court recognized the heinous nature of the acts respondent allegedly committed against his daughters, the trial court proceedings were so replete with error the court was compelled to reverse and remand.