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Thursday, April 26, 2007

Case Summaries

Today's e-Journal includes summaries of two Michigan Supreme Court opinions under Insurance and Litigation, one Michigan Supreme Court order under Negligence & Intentional Tort/School Law, five Michigan Court of Appeals published opinions under Administrative Law, Civil Rights/Constitutional Law, Employment & Labor Law, Insurance/Litigation, and Real Property, and one Sixth Circuit Court of Appeals opinion under Criminal Law. Cases appear under the following practice areas:

SBM Home, Copyright © 2007 State Bar of Michigan

    Case Summaries

      Adminsitrative Law

      This summary also appears under Employment & Labor Law

      Issues: The Reciprocal Retirement Act (RRA)(MCL 38.1101 et seq.); Request to transfer credits for service as a county public defender to the Judges Retirement System for use in calculating the petitioner's retirement allowance under the RRA; MCL 38.1105; MCL 38.1106(4) (§ 6(4)); Caprathe v. Michigan Judges Ret. Bd. (Unpub.) (Caprathe I); Whether the trial court applied the correct standard of review; J&P Mkt. v. Liquor Control Comm'n; Whether the trial court improperly substituted its judgment for the respondent-Board's judgment
      Court: Michigan Court of Appeals (Published)
      Case Name: Caprathe v. Judges Ret. Bd.
      e-Journal Number: 35702
      Judge(s): Saad and Schuette; Concurring in result only—Smolenski

      While the trial court applied the correct standard of review to the respondent-Board's decision, it improperly substituted its judgment for the Board's in reversing the Board's decision to deny the petitioner's request to transfer credits for use in calculating his retirement allowance under the RRA. Petitioner sought to transfer credits for six months of service as a county public defender for use in calculating his retirement allowance. In Caprathe I, the court directed the Board to adopt a written policy pursuant to § 6(4), which provides each reciprocal retirement system unit is to "establish a written policy to implement the provisions of this section in order to provide uniform application of this section to all members of the reciprocal retirement system." To preserve the financial integrity of the Judges Retirement System, the Board adopted a policy prohibiting all service credit transfers. Pursuant to this policy, it again denied petitioner's request. The trial court reversed and required the Board to issue another policy under § 6. The court reversed and reinstated the Board's decision, concluding it was fully consistent with the court's prior ruling and with the statutory mandate concerning the adoption and implementation of a policy about service credits. The court's directions to the Board were for it to implement a policy under § 6(4) and then decide the petition under § 6(1). The statutory language indicates the purpose of the policy is to provide uniform application of the section to all system members. Determining it would not allow the transfer of service credits to or from any member was a uniform policy. "Where the Board has discretion whether to allow the transfers, a decision not to grant any transfers is also within the Board's discretion." The court reversed the trial court and affirmed the Board's decision.

      Full Text Opinion

      Issues: Approval of a power supply cost recovery (PSCR) plan; Whether the PSC's orders were unlawful and unreasonable and did not comply with Const. 1963, art. 6, § 28 and MCL 24.285; Nuclear Waste Policy Act (NWPA) (42 USC § 10101 et seq.); Spent nuclear fuel (SNF); Department of Energy (DOE); Procedural/discovery issues; Effect of federal law; Scope of the PSC's jurisdiction; MCL 460.6j; Michigan Envtl. Council v. Pub. Ser. Comm 'n (Unpub.)
      Court: Michigan Court of Appeals (Published)
      Case Name: Michigan Envtl. Council v. Michigan Pub. Serv. Comm'n
      e-Journal Number: 35700
      Judge(s): Saad, Hoekstra, and Smolenski

      The court affirmed the PSC's orders approving IMPCo's PSCR application and denying appellants' petition for rehearing, concluding the appellants' claim the PSC's decision was unlawful and unreasonable because it did not comply with Const. 1963, art. 6, § 28 and MCL 24.285 was unsubstantiated. The appellants argued the PSC's decision on the SNF issues was not supported by competent, material, and substantial evidence on the whole record and did not make findings of fact and conclusions of law allowing for meaningful appellate review. IMPCo owns and operates a nuclear generating plant supplying electricity to customers in Michigan. SNF is stored at an on-site facility at the plant. IMPCo entered into a Standard Contract with the DOE, as required by the NWPA, under which the utility pays a fee to the DOE for a federal SNF disposal program. This program was scheduled to begin no later than 1998, but the DOE estimated it will not begin before 2010. The utilities classify the SNF fee as a nuclear fuel expense and include the cost in their PSCR plans. Appellants contended the PSC had the authority and the duty to undertake a broad investigation of IMPCo's actions with regard to SNF issues. Appellants argued the PSC should have taken the position IMPCo's request it be allowed to recover SNF costs from ratepayers via its PSCR clause was presumptively unreasonable in light of the DOE's failure to commence an SNF disposal program, and should have required IMPCo to overcome this presumption. However, no authority allows the PSC to make such an assumption. The PSC must "evaluate the reasonableness and prudence of the decisions underlying" a utility's PSCR plan, and "approve, disapprove, or amend" the PSCR plan in light of that evaluation. IMPCo presented evidence payment of the SNF fees was mandated by federal law and its Standard Contract with the DOE, and failure to make the payments could lead to imposition of interest charges and possible loss of its license to operate its nuclear facility. The PSC was entitled to rely on the evidence presented by IMPCo on this issue, rather than the evidence presented by appellants. Moreover, the PSC concluded in the absence of evidence IMPCo acted unreasonably and imprudently with regard to the collection of SNF costs, it had no authority to impose additional remedies such as those suggested by appellants, who pointed to no statute or case law holding to the contrary. Affirmed.

      Full Text Opinion

      Civil Rights

      This summary also appears under Constitutional Law

      Issues: Federal constitutional claims related to the plaintiff's decedent's medical care while he was a pretrial detainee in jail; Deliberate indifference; Estelle v. Gamble; Farmer v. Brennan; Williams v. Mehra (6th Cir.); Whether a § 1983 claim can be brought solely on the basis a professional has committed malpractice; Causation; Robins v. Garg; Horn v. Madison County Fiscal Court (6th Cir.); Miller v. Calhoun County (6th Cir.); Johnson v. Karnes (6th Circuit); Qualified immunity; Harlow v. Fitzgerald; Saucier v. Katz; Brosseau v. Haugen; Neuroleptic malignant syndrome (NMS)
      Court: Michigan Court of Appeals (Published)
      Case Name: In re Estate of Morden
      e-Journal Number: 35703
      Judge(s): Per Curiam—Smolenski, Saad, and Wilder

      The defendant-psychiatrist was entitled to summary disposition of plaintiff's federal constitutional claim under § 1983 because there was no genuine issue of material fact regarding deliberate indifference and even if an issue of fact existed, the defendant would be entitled to qualified immunity because there was no court precedent predating her actions clearly establishing such actions by a psychiatrist constitute deliberate indifference. Plaintiff's decedent was a pretrial detainee on prescribed psychotropic medications (Risperdal and Celexa). After a suicide alert was issued, defendant saw the decedent and recommended an increase in the Risperdal dose. After the decedent was later again put on suicide watch, defendant recommended another increase in Risperdal. The defendant later concluded the Risperdal was likely causing orthostatic hypertension, so she suggested switching to a different neuroleptic according to a schedule. The decedent died after exhibiting seizure-like activity. An autopsy found no determinable cause of death. The county medical examiner testified in his opinion the decedent probably died of a cardiac arrhythmia caused by medications. While the trial court denied defendant summary disposition, the court held evidence defendant did not comply with the required standard of care was insufficient to prove cruel and unusual punishment since the constitutional claim cannot be based on negligence. Further, plaintiff's causation theory was also insufficient as a matter of law to establish the necessary proximate cause for a § 1983 claim. Even assuming the decedent suffered from NMS, which was speculative, no evidence indicated defendant drew this inference. Reversed and remanded for entry of summary disposition for the defendant.

      Full Text Opinion

      Constitutional Law

      This summary also appears under Civil Rights

      Issues: Federal constitutional claims related to the plaintiff's decedent's medical care while he was a pretrial detainee in jail; Deliberate indifference; Estelle v. Gamble; Farmer v. Brennan; Williams v. Mehra (6th Cir.); Whether a § 1983 claim can be brought solely on the basis a professional has committed malpractice; Causation; Robins v. Garg; Horn v. Madison County Fiscal Court (6th Cir.); Miller v. Calhoun County (6th Cir.); Johnson v. Karnes (6th Circuit); Qualified immunity; Harlow v. Fitzgerald; Saucier v. Katz; Brosseau v. Haugen; Neuroleptic malignant syndrome (NMS)
      Court: Michigan Court of Appeals (Published)
      Case Name: In re Estate of Morden
      e-Journal Number: 35703
      Judge(s): Per Curiam—Smolenski, Saad, and Wilder

      The defendant-psychiatrist was entitled to summary disposition of plaintiff's federal constitutional claim under § 1983 because there was no genuine issue of material fact regarding deliberate indifference and even if an issue of fact existed, the defendant would be entitled to qualified immunity because there was no court precedent predating her actions clearly establishing such actions by a psychiatrist constitute deliberate indifference. Plaintiff's decedent was a pretrial detainee on prescribed psychotropic medications (Risperdal and Celexa). After a suicide alert was issued, defendant saw the decedent and recommended an increase in the Risperdal dose. After the decedent was later again put on suicide watch, defendant recommended another increase in Risperdal. The defendant later concluded the Risperdal was likely causing orthostatic hypertension, so she suggested switching to a different neuroleptic according to a schedule. The decedent died after exhibiting seizure-like activity. An autopsy found no determinable cause of death. The county medical examiner testified in his opinion the decedent probably died of a cardiac arrhythmia caused by medications. While the trial court denied defendant summary disposition, the court held evidence defendant did not comply with the required standard of care was insufficient to prove cruel and unusual punishment since the constitutional claim cannot be based on negligence. Further, plaintiff's causation theory was also insufficient as a matter of law to establish the necessary proximate cause for a § 1983 claim. Even assuming the decedent suffered from NMS, which was speculative, no evidence indicated defendant drew this inference. Reversed and remanded for entry of summary disposition for the defendant.

      Full Text Opinion

      Contracts

      This summary also appears under Negligence & Intentional Tort

      Issues: Wrongful death claim; Whether the trial court correctly held there was no material question of fact whether defendant-Manthei Dev. knew or authorized defendant-MDC to modify the portable rock crusher allegedly causing the plaintiff's decedent's death; Whether the modification was allowed on the lease of the rock crusher; Ross v. Auto Club Group; The corporate entity; Rymal v. Baergen; Speculation; Altairi v. Alhaj; Libralter Plastics, Inc. v. Chubb Group of Ins. Cos.; Whether defendants abused the corporate form; Seasword v. Hilti, Inc. (After Remand)
      Court: Michigan Court of Appeals (Unpublished)
      Case Name: Lowe v. Manthei Dev. Corp.
      e-Journal Number: 35690
      Judge(s): Per Curiam—Donofrio, Fitzgerald, and Markey

      Since the plaintiff produced no evidence from which it could be inferred defendant-Manthei Dev. actually authorized or required the modification of the portable rock crusher, the trial court properly concluded based on the undisputed facts Manthei Dev. was entitled to judgment as a matter of law. Defendant-MDC employed plaintiff's decedent, who was killed in 2004 when a conveyor struck him in the chest after it was released from the portable rock crusher's fixed fastening base. MDC leased the rock crusher from Manthei Dev. in 2003 when it assumed Manthei Dev.'s mining operations, and former Manthei Dev. employees became MDC employees. One of the former Manthei Dev. employees who transferred to MDC, modified the rock crusher in the spring of 2003. Plaintiff claimed this modification caused decedent's death, and the lease did not authorize the modification because it was not intended to keep the leased equipment in "good working order." Plaintiff argued because Manthei Dev. did not plead as an affirmative defense the modification was unauthorized, Mark Manthei, president of both Manthei Dev. and MDC, must have authorized the modification. The court concluded the trial court properly granted summary disposition to Manthei Dev. Plaintiff pointed to no evidence Manthei Dev. had knowledge of, or authorized the modification to the rock crusher. Plaintiff's argument concerning the lease agreement was without merit because it was based on speculation, which did not create a material issue of fact. Affirmed.

      Full Text Opinion

      Criminal Law

      Issues: Sufficiency of the evidence to convict the defendant of felony-firearm and felon in possession; People v. Hardiman; People v. Burgenmeyer; People v. Meshell; Whether a police officer was properly allowed to offer opinion testimony defendant possessed the drugs with the intent to distribute them; MRE 704; People v. Stimage
      Court: Michigan Court of Appeals (Unpublished)
      Case Name: People v. Bell
      e-Journal Number: 35676
      Judge(s): Per Curiam—Servitto, Talbot, and Schuette

      There was sufficient evidence to sustain the defendant's felony-firearm and felon in possession convictions because the evidence established he possessed the firearm recovered by the police during the search of his residence. Evidence defendant had keys to the apartment and personal property belonging to him was found inside a bedroom dresser supported an inference he was living in the apartment at the time of the search. Although the gun was found hidden in the basement, other items associated with the gun, including a holster and ammunition, were found in the bedroom with defendant's personal belongings in close proximity to some of the drugs discovered in the search of the residence. Viewed in the light most favorable to the prosecution, the evidence was sufficient to enable the jury to find beyond a reasonable doubt the location of the gun was known to defendant, it was accessible to him during the time he possessed the drugs, and he had attempted to hide the gun in the basement. Defendant's convictions of possession with intent to deliver less than 50 grams of cocaine, felon in possession, and two counts of felony-firearm were affirmed.

      Full Text Opinion

      Issues: Prosecutorial misconduct; People v. Abraham; Improper voir dire of a juror; Batson violation; People v. Bell; Improper opening argument; People v. Brown; People v. Ackerman; Improper use of statement to police; Improper closing argument; Right of confrontation; Ineffective assistance of counsel; People v. Riley (After Remand); Failure to move for severance; People v. Hana; Failure to challenge the search of the vehicle; Failure to move to redact the codefendant's statement; MRE 801(d)(1); Failure to investigate, subpoena, and call defense witnesses; People v. Dixon; Failure to provide a defense; Failure to make an opening statement; Failure to object; Improper closing argument; Great weight of the evidence; People v. Musser; Possession with intent to deliver; People v. Craw; People v. Nunez; People v. Wolfe; Conspiracy; People v. Mass; People v. Justice (After Remand); Cumulative error
      Court: Michigan Court of Appeals (Unpublished)
      Case Name: People v. Lott
      e-Journal Number: 35662
      Judge(s): Per Curiam—Zahra, Bandstra, and Owens

      The prosecutor's actions did not constitute misconduct denying the defendant a fair trial.  He argued the prosecutor improperly questioned a juror during voir dire. Defendant maintained in the challenged exchange, the prosecutor attempted to elicit a "different" answer from the juror and, when the juror responded in a manner the prosecutor did not like, the prosecutor "tried to force the 'correct' response in front of the entire pool," potentially tainting the jury pool. Essentially, defendant argued the prosecutor attempted to use the contested line of questioning to argue the government's case to the jury during voir dire proceedings. The prosecutor's questions alluded to the government's theory the codefendant knew 11 kilos of cocaine were in the gas tank of the rented vehicle. Neither party disputed defendant was not present in the vehicle when it was stopped. The question whether someone could drive the vehicle without knowing 11 kilos of cocaine were in the gas tank was harmless to defendant, because the prosecutor never claimed  he drove the vehicle. Any error caused by the exchange between the prosecutor and the juror was harmless to defendant. Defendant's conviction of possession with intent to deliver 1,000 or more grams of a mixture containing cocaine, and conspiracy to possess with intent to deliver 1,000 or more grams of a mixture containing cocaine were affirmed.

      Full Text Opinion

      Issues: Whether there was sufficient evidence of premeditation and deliberation to convict the defendant of first-degree premeditated murder; MCL 750.316(1)(a); People v. Coy; People v. Abraham; People v. Johnson; Whether counsel was ineffective for not requesting CJI2d 7.17 (instructing the jury defendant did not have a duty to retreat in his own dwelling); Self-defense; CJI2d 7.15; People v. LeBlanc; People v. Riddle; People v. Fennell
      Court: Michigan Court of Appeals (Unpublished)
      Case Name: People v. Patterson
      e-Journal Number: 35671
      Judge(s): Per Curiam—Wilder, Sawyer, and Davis

      Viewed in a light most favorable to the prosecution, there was sufficient evidence of premeditation and deliberation to allow a jury to find defendant guilty of first-degree murder. The evidence showed defendant and the victim had a rocky relationship. He was known to stalk the victim and had at least one documented violent outburst, damaging a male friend's car. The victim obtained a PPO the year before her death due to defendant's escalating temper, although she terminated it shortly after it was effective. The evidence also supported an inference the victim was attacked in defendant's master bedroom. She was struck a minimum of three times with a baseball bat and the blows to her head were so forceful her skull was fractured and her brain was injured. The victim sustained a defensive wound to her left arm. Despite claiming a desire to seek help, defendant did not call 911 or rouse his neighbors. The evidence indicated after the killing, defendant went about his normal activities. He went to work the next day and to a co-worker's son's hockey game that night, and washed dishes the next day. Defendant also methodically cleaned the crime scene, disposed of the victim's body, and initially her car. Further, defense counsel was not ineffective for not requesting CJI2d 7.17 (defendant did not have a duty to retreat in his own dwelling) where the trial court instructed the jury on self-defense by giving CJI2d 7.15. Defendant's convictions of first-degree premeditated murder and receiving stolen property were affirmed.

      Full Text Opinion

      Issues: Whether failure of the government's cooperating witness to produce 15 boxes of evidence until late in the trial constituted a violation of Brady v. Maryland; Carter v. Bell; Motion for severance; United States v. Gardiner; Ineffective assistance of counsel; Whether the district court erred in giving a supplemental jury instruction after the jury indicated it had reached a verdict
      Court: U.S. Court of Appeals Sixth Circuit
      Case Name: United States v. Graham
      e-Journal Number: 35692
      Judge(s): Rogers and Gilman; Dissent—Batchelder

      The district court did not err by failing to find the government violated its obligations under Brady by not causing the 15 boxes of financial and legal documents to be produced earlier because the cooperating witness was not acting on behalf of the government. Defendants were convicted of conspiracy to commit mail fraud and to file false tax returns, conspiracy to commit money laundering, money laundering, and subscribing false tax returns. The charges were based on a kickback scheme in which the defendants caused a steel processing company to overpay for equipment while a portion of the amount fraudulently charged was funneled back to the defendants through shell entities created by their attorney. The attorney was an unindicted co-conspirator who acted as a cooperating witness for the government pursuant to a plea agreement. Near the end of the defendants' trial, the attorney produced 15 boxes of documents, some of which pertained to his representation of the defendant-Graham. Graham failed to show the government suppressed the evidence upon which he based his appeal thus, he could not establish a violation of due process under Brady. Because the attorney was not "acting on the government's behalf," the government could not be said to have suppressed the 15 boxes of documents in his control. While cooperating with the government pursuant to the terms of his plea agreement, the attorney remained an independent actor. As evidence of this fact, the government noted it had to obtain approval from the attorney's attorney before interviewing him and had to serve a subpoena on him to compel the production of documents. Another clear indication of the attorney's independence from the government was the fact the attorney refused to provide the government with materials covered by the attorney-client privilege. The convictions of both defendants were affirmed.

      Full Text Opinion

      Employment & Labor Law

      This summary also appears under Administrative Law

      Issues: The Reciprocal Retirement Act (RRA)(MCL 38.1101 et seq.); Request to transfer credits for service as a county public defender to the Judges Retirement System for use in calculating the petitioner's retirement allowance under the RRA; MCL 38.1105; MCL 38.1106(4) (§ 6(4)); Caprathe v. Michigan Judges Ret. Bd. (Unpub.) (Caprathe I); Whether the trial court applied the correct standard of review; J&P Mkt. v. Liquor Control Comm'n; Whether the trial court improperly substituted its judgment for the respondent-Board's judgment
      Court: Michigan Court of Appeals (Published)
      Case Name: Caprathe v. Judges Ret. Bd.
      e-Journal Number: 35702
      Judge(s): Saad and Schuette; Concurring in result only—Smolenski

      While the trial court applied the correct standard of review to the respondent-Board's decision, it improperly substituted its judgment for the Board's in reversing the Board's decision to deny the petitioner's request to transfer credits for use in calculating his retirement allowance under the RRA. Petitioner sought to transfer credits for six months of service as a county public defender for use in calculating his retirement allowance. In Caprathe I, the court directed the Board to adopt a written policy pursuant to § 6(4), which provides each reciprocal retirement system unit is to "establish a written policy to implement the provisions of this section in order to provide uniform application of this section to all members of the reciprocal retirement system." To preserve the financial integrity of the Judges Retirement System, the Board adopted a policy prohibiting all service credit transfers. Pursuant to this policy, it again denied petitioner's request. The trial court reversed and required the Board to issue another policy under § 6. The court reversed and reinstated the Board's decision, concluding it was fully consistent with the court's prior ruling and with the statutory mandate concerning the adoption and implementation of a policy about service credits. The court's directions to the Board were for it to implement a policy under § 6(4) and then decide the petition under § 6(1). The statutory language indicates the purpose of the policy is to provide uniform application of the section to all system members. Determining it would not allow the transfer of service credits to or from any member was a uniform policy. "Where the Board has discretion whether to allow the transfers, a decision not to grant any transfers is also within the Board's discretion." The court reversed the trial court and affirmed the Board's decision.

      Full Text Opinion

      Family Law

      Issues: Divorce; Child custody; Whether the trial court properly determined an established custodial environment existed with both parties; MCL 722.28; Mogle v. Scriver; Thompson v. Thompson; Phillips v. Jordan; Whether the trial court's findings on the statutory "best interest" factors were against the great weight of the evidence; MCL 722.27(1); Eldred v. Ziny; Whether the trial court relied on irrelevant evidence; MRE 401; People v. Leach
      Court: Michigan Court of Appeals (Unpublished)
      Case Name: Rossini-Gibson v. Dykema-Gibson
      e-Journal Number: 35687
      Judge(s): Per Curiam—Servitto, Talbot, and Schuette

      Since the trial court properly determined an established custodial environment existed with both parties and its finding as to the statutory "best interest" factors were not against the great weight of the evidence, the court affirmed. The parties were married in 1997, and had two children—twins born in 2002. Plaintiff filed for divorce seeking sole physical custody of the children and defendant filed a counterclaim for divorce, also seeking sole physical custody of the children. A consent judgment was entered in 2003, awarding the parties' various marital assets and granting them joint legal custody of the children. A trial regarding physical custody began in August 2005 and continued on several dates until March 2006.  On appeal, the plaintiff-mother argued the trial court erred in failing to find an established custodial environment with her when the children had lived primarily with her for the past three years. The court disagreed where testimony indicated over an appreciable time, the children naturally looked to both parents for guidance, discipline, the necessities of life, and parental comfort. Thus the evidence did not preponderate against the trial court's conclusion. Further, the trial court did not inappropriately weigh several of the best interest factors against plaintiff. The court concluded weighing the sum of all factors, the parties would still be equal with respect to most factors. Affirmed.

      Full Text Opinion

      Issues: Suit to establish paternity; Whether plaintiff-Voris had standing as a putative father to establish his paternity of the minor child (Corbyn) following the termination of parental rights of Corbyn's biological mother and legal father; In re KH; The Paternity Act (MCL 722.711(a)); Girard v. Wagenmaker; Fritts v. Krugh (overruled on other grounds by In re Hatcher); Prior termination proceedings determining Justin Cooper was the legal father of the child at issue in its order terminating parental rights; People v. Howard
      Court: Michigan Court of Appeals (Unpublished)
      Case Name: Voris v. Department of Human Res.
      e-Journal Number: 35691
      Judge(s): Per Curiam—Saad, Hoekstra, and Smolenski

      Since the parentage of Corbyn had already been determined by the Shiawassee Circuit Court's holding Justin Cooper was the child's legal father in its order terminating parental rights, plaintiff had no standing to pursue this suit for paternity. In 2005, the Shiawassee Circuit Court terminated the parental rights of Heather and Justin Cooper to Corbyn. Although Heather was married to Justin at the time of Corbyn's conception and birth, plaintiff sought to intervene in the termination proceedings, claiming to be the child's biological father. The Shiawassee Circuit Court held plaintiff lacked standing to assert rights as a putative father because Corbyn had a legal father (Justin) at the time of the proceedings. Later, Justin filed for divorce from Heather in the Wexford Circuit Court, which subsequently granted a judgment of divorce in which it found the plaintiff in this case (Voris) to be the "biological and legal father" of Corbyn. Relying on this holding, plaintiff filed this case for paternity in the Shiawassee Circuit Court. The defendant-agency moved for summary disposition on the ground plaintiff lacked standing to sue under the Paternity Act. Defendant argued, inter alia, the Wexford Circuit Court lacked authority to decide Corbyn's paternity in the divorce action given the parties' parental rights to the child had been previously terminated. The trial court disagreed and relying on the judgment of divorce as to plaintiff's standing denied defendant's motion. It was not disputed Corbyn was born during an intact marriage. Thus, plaintiff had no standing to establish paternity "without a prior determination the mother's husband is not the father." However, the court did not agree the divorce judgment established plaintiff's standing. As defendant argued, since the parental rights had already been terminated, there was no reason for the Wexford trial court to determine parentage in the divorce case. Thus, plaintiff was without standing to pursue this paternity suit. The court reversed the trial court's order denying defendant's motion for summary disposition.

      Full Text Opinion

      Insurance

      Issues: Whether the defendant-Pro-Seal's act of shipping a product in a competitor's packaging with its labeling affixed to it constituted an "advertisement" for purposes of an insurance policy; Duty to defend; Commercial general liability (CGL) policy
      Court: Michigan Supreme Court
      Case Name: Citizens Ins. Co. v. Pro-Seal Serv. Group, Inc.
      e-Journal Number: 35757
      Judge(s): Per Curiam—Taylor, Corrigan. Young Jr., and Markman; Dissent—Cavanagh and Weaver; Separate Dissent—Kelly and Weaver

      The Court of Appeals erred in holding the plaintiff-insurer was required to defend defendant under the terms of a CGL policy because the underlying complaint alleged a violation of trade dress and such a violation inherently involved advertising activity—the court held the act of shipping a product in a competitor's packaging with one's own name affixed to it was insufficient to satisfy the CGL policy's definition of an "advertisement." Under the terms of the CGL policy, defendant must publicly disseminate information about its goods and services for the purpose of attracting the patronage of potential customers. Defendant sent a seal to a specific customer in a Flowserve container for the purpose of completing a single transaction. At best, Pro-Seal's argument it expected other customers might view the package at the distribution center and as a result would be encouraged in doing business with defendant was an incidental and remote benefit, which did not fundamentally alter the fact this was a single transaction with a specific customer.The court concluded the purpose for placing a Pro-Seal label on the Flowserve container in this instance was to identify for that specific customer the source of the seal to allow the specific customer to contact defendant with any questions or complaints about the product. Accordingly, the court held the harm alleged to have been caused by Pro-Seal's act of shipping a seal in a Flowserve container did not "arise out of an advertisement" and thus, plaintiff was not obligated to tender a defense based on this allegation under the terms of the CGL policy. Reversed and remanded to the trial court.

      Justices Cavanagh and Weaver agreed with dissenting Justice Kelly that in the underlying complaint, Flowserve's allegations amounted to allegations of a violation  of its trade dress, and also agreed with her analysis of the terms "advertisement" and "notice." However, Justice Cavanagh would resolve the case simply by reviewing the specific allegations Flowserve made in its complaint against Pro-Seal because  the question whether an insurer has the duty to defend must be answered by examining the allegations in the underlying complaint, rather than by looking at the insured's specific actions.

      Justices Kelly and Weaver believed the complaint alleged one of the advertising injury offenses covered by the policy and the injury complained of did not fall within an enumerated exception to coverage. As a consequence, they would have affirmed the judgment of the Court of Appeals.

      Full Text Opinion

      This summary also appears under Litigation

      Issues: Denial of PIP benefits; Attorney fees under MCL 500.3148(1); McCarthy v. Auto Club Ins. Ass'n; Case evaluation sanctions; MCR 2.403(O); Beach v. State Farm Mut. Auto. Ins. Co.; Dessart v. Burak; Taxable costs; MCR 2.625; Klinke v. Mitsubishi Motors Corp.
      Court: Michigan Court of Appeals (Published)
      Case Name: Ivezaj v. Auto Club Ins. Ass'n
      e-Journal Number: 35701
      Judge(s): Per Curiam—Zahra, Bandstra, and Owens

      The trial court properly awarded attorney fees to the plaintiff-insured under MCL 500.3148(1) and did not clearly err when it concluded the defendant-insurer failed to rebut the presumption of unreasonableness because defendant failed to identify any evidence indicating its initial refusal to reimburse plaintiff was unreasonable. Defendant argued the trial court should not have awarded attorney fees to plaintiff because its refusal to pay certain benefits claimed by plaintiff was reasonable. Defendant contended since plaintiff recovered only a small portion of her claimed benefits at trial, this proved its refusal to pay was reasonable. Defendant relied exclusively on the jury verdict to support its argument its initial decision not to pay for certain medical and replacement service expenses requested by plaintiff was reasonable.  However, defendant did not know a jury would only find it liable for a percentage of the disputed medical and replacement service expenses when it refused to pay these expenses. Defendant could not use the jury verdict as evidence to rebut the presumption its initial refusal to reimburse plaintiff for these expenses was unreasonable. Defendant failed to identify any evidence indicating it recognized plaintiff's claims were unreasonable at the time it initially refused to make the payments. However, the court agreed with defendant the trial court erred when it adjusted the jury verdict by adding the award of MCL 500.3148(1) attorney fees and found plaintiff was not liable for case evaluation sanctions. The trial court also erred in awarding plaintiff MCR 2.625 taxable costs. The readjusted verdict, minus the erroneously added attorney fees, did not surpass the $165,000 threshold at which plaintiff would no longer be liable for case evaluation sanctions. Since plaintiff was liable for case evaluation sanctions, defendant was entitled to recover its actual costs and thus, was considered the prevailing party under MCR 2.625. The trial court's award of attorney fees was affirmed, but the trial court's orders denying defendant's request for case evaluation sanctions and awarding taxable costs to plaintiff were reversed.

      Full Text Opinion

      Litigation

      Issues: Motion to amend a complaint to substitute the bankruptcy trustee as the plaintiff; The relation back doctrine; Employers Mut. Cas. Co. v. Petroleum Equip., Inc.; MCR 2.201(B); MCR 2.118(A)(2) and (D); Cowles v. Bank W.; The misnomer doctrine; Voigt Brewery Co. v. Pacifico
      Court: Michigan Supreme Court
      Case Name: Miller v. Chapman Contracting
      e-Journal Number: 35758
      Judge(s): Per Curiam—Taylor, Corrigan, Young Jr., and Markman; Dissent—Weaver; Separate Dissent—Kelly and Cavanagh

      Adopting as its own the Court of Appeals unpublished opinion, the court affirmed the Court of Appeals' ruling affirming the trial court's order dismissing the lawsuit after denying plaintiff's motion to amend the complaint to substitute the bankruptcy trustee as plaintiff. Plaintiff's attorney erroneously named plaintiff, rather than plaintiff's bankruptcy trustee, as the plaintiff in the suit. After the limitations period expired, the defendants moved to dismiss the case on the basis plaintiff was not the real party in interest and his bankruptcy trustee was the only party who could pursue the lawsuit. The trial court denied plaintiff's motion for leave to file an amended complaint to correct the "misidentification" of the named plaintiff and granted defendants summary disposition, concluding pursuant to Employers, the amendment would be futile because the addition of the new party could not relate back to the original complaint. The relation-back doctrine does not apply to the addition of new parties, and the Court of Appeals properly rejected plaintiff's argument the requested amendment would do no more than correct a misnomer. The misnomer doctrine applies only to correct inconsequential deficiencies or technicalities in the naming of parties. Where a plaintiff seeks to "'substitute or add a wholly new and different party to the proceedings, the misnomer doctrine is inapplicable.'" The court added MCR 2.118(D) specifies an amendment relates back to the date of the original pleading only if it adds a claim or defense—it does not specify an amendment to add a new party relates back to the date of the original pleading. Affirmed.

      Justice Weaver would deny leave to appeal "because to do otherwise would create an injustice," concluding the bankruptcy trustee was not a new party in the sense of being another party added by the proposed amendment, but rather, the amendment simply involved replacing the wrongly named plaintiff with the correct name of the plaintiff's bankruptcy trustee and a new plaintiff was not being added.

      Justices Kelly and Cavanagh concluded the majority misread MCR 2.118 and affirmed dismissal of the suit "on the basis of a contrived legal technicality." The justices would reverse the lower courts' judgments, allow the substitution of the trustee as the party plaintiff, and remand the case for trial, finding the majority's reliance on MCR 2.118(D) ill-founded since the rule does not address the substitution of a party and concluding relation back should be permitted here because it was consistent with the general principle underlying the relation-back doctrine.

      Full Text Opinion

      This summary also appears under Insurance

      Issues: Denial of PIP benefits; Attorney fees under MCL 500.3148(1); McCarthy v. Auto Club Ins. Ass'n; Case evaluation sanctions; MCR 2.403(O); Beach v. State Farm Mut. Auto. Ins. Co.; Dessart v. Burak; Taxable costs; MCR 2.625; Klinke v. Mitsubishi Motors Corp.
      Court: Michigan Court of Appeals (Published)
      Case Name: Ivezaj v. Auto Club Ins. Ass'n
      e-Journal Number: 35701
      Judge(s): Per Curiam—Zahra, Bandstra, and Owens

      The trial court properly awarded attorney fees to the plaintiff-insured under MCL 500.3148(1) and did not clearly err when it concluded the defendant-insurer failed to rebut the presumption of unreasonableness because defendant failed to identify any evidence indicating its initial refusal to reimburse plaintiff was unreasonable. Defendant argued the trial court should not have awarded attorney fees to plaintiff because its refusal to pay certain benefits claimed by plaintiff was reasonable. Defendant contended since plaintiff recovered only a small portion of her claimed benefits at trial, this proved its refusal to pay was reasonable. Defendant relied exclusively on the jury verdict to support its argument its initial decision not to pay for certain medical and replacement service expenses requested by plaintiff was reasonable.  However, defendant did not know a jury would only find it liable for a percentage of the disputed medical and replacement service expenses when it refused to pay these expenses. Defendant could not use the jury verdict as evidence to rebut the presumption its initial refusal to reimburse plaintiff for these expenses was unreasonable. Defendant failed to identify any evidence indicating it recognized plaintiff's claims were unreasonable at the time it initially refused to make the payments. However, the court agreed with defendant the trial court erred when it adjusted the jury verdict by adding the award of MCL 500.3148(1) attorney fees and found plaintiff was not liable for case evaluation sanctions. The trial court also erred in awarding plaintiff MCR 2.625 taxable costs. The readjusted verdict, minus the erroneously added attorney fees, did not surpass the $165,000 threshold at which plaintiff would no longer be liable for case evaluation sanctions. Since plaintiff was liable for case evaluation sanctions, defendant was entitled to recover its actual costs and thus, was considered the prevailing party under MCR 2.625. The trial court's award of attorney fees was affirmed, but the trial court's orders denying defendant's request for case evaluation sanctions and awarding taxable costs to plaintiff were reversed.

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      Negligence & Intentional Tort

      Issues: Premises liability involving a slip and fall; Whether the trial court properly concluded the condition allegedly causing the plaintiff's slip and fall was open and obvious and the defendant-property maintenance company did not owe plaintiff a separate and distinct duty under a snow removal contract; Novotney v. Burger King Corp. (On Remand); Hughes v. PMG Bldg.; Corey v. Davenport Coll. of Bus. (On Remand); Kenny v. Kaatz Funeral Home, Inc.; Teufel v. Watkins; The snow removal contract; Fultz v. Union-Commerce Assocs.; Beaty v. Hertzberg & Golden, PC
      Court: Michigan Court of Appeals (Unpublished)
      Case Name: Hernandez v. Studio Plus Props.
      e-Journal Number: 35688
      Judge(s): Per Curiam—Donofrio, Fitzgerald, and Markey

      Since plaintiff failed to present evidence to create a genuine issue of material fact, the trial court did not err in holding the condition allegedly causing the plaintiff's slip and fall was open and obvious and the property maintenance company did not owe her a separate and distinct duty under a snow removal contract. Although plaintiff was a Texas resident, she was a regular patron of the plaintiff-Studio Plus Properties, an extended stay hotel, and stayed in the same room on her visits to Michigan. She was familiar with the hotel exits and parking lot. Plaintiff testified it had snowed 13 inches overnight, but had stopped before she attempted to leave the hotel. She exited out the main entrance. She testified the concrete slab immediately outside the entrance was cleared of snow, and the parking lot was still snow-covered, but there was a shoveled trail cleared to the pavement without salt about two to three feet wide in the direction of her car. As she started to step on the pavement where the trail was shoveled, she slipped and fell backward. She claimed she did not see any ice before or after she fell, but felt the ice when she tried to get up. Plaintiff was familiar with Michigan winters. Even viewing the evidence in a light most favorable to plaintiff, the evidence demonstrated a reasonably prudent person with ordinary intelligence would have anticipated an icy condition could be present on pavement after a snowstorm resulting in 13 inches of freshly fallen snow. An average person with ordinary intelligence would have been able to foresee the danger of a slippery condition on the pavement trail and would have discovered the danger and risk presented on casual inspection. Summary disposition for defendants was affirmed.

      Full Text Opinion

      This summary also appears under Contracts

      Issues: Wrongful death claim; Whether the trial court correctly held there was no material question of fact whether defendant-Manthei Dev. knew or authorized defendant-MDC to modify the portable rock crusher allegedly causing the plaintiff's decedent's death; Whether the modification was allowed on the lease of the rock crusher; Ross v. Auto Club Group; The corporate entity; Rymal v. Baergen; Speculation; Altairi v. Alhaj; Libralter Plastics, Inc. v. Chubb Group of Ins. Cos.; Whether defendants abused the corporate form; Seasword v. Hilti, Inc. (After Remand)
      Court: Michigan Court of Appeals (Unpublished)
      Case Name: Lowe v. Manthei Dev. Corp.
      e-Journal Number: 35690
      Judge(s): Per Curiam—Donofrio, Fitzgerald, and Markey

      Since the plaintiff produced no evidence from which it could be inferred defendant-Manthei Dev. actually authorized or required the modification of the portable rock crusher, the trial court properly concluded based on the undisputed facts Manthei Dev. was entitled to judgment as a matter of law. Defendant-MDC employed plaintiff's decedent, who was killed in 2004 when a conveyor struck him in the chest after it was released from the portable rock crusher's fixed fastening base. MDC leased the rock crusher from Manthei Dev. in 2003 when it assumed Manthei Dev.'s mining operations, and former Manthei Dev. employees became MDC employees. One of the former Manthei Dev. employees who transferred to MDC, modified the rock crusher in the spring of 2003. Plaintiff claimed this modification caused decedent's death, and the lease did not authorize the modification because it was not intended to keep the leased equipment in "good working order." Plaintiff argued because Manthei Dev. did not plead as an affirmative defense the modification was unauthorized, Mark Manthei, president of both Manthei Dev. and MDC, must have authorized the modification. The court concluded the trial court properly granted summary disposition to Manthei Dev. Plaintiff pointed to no evidence Manthei Dev. had knowledge of, or authorized the modification to the rock crusher. Plaintiff's argument concerning the lease agreement was without merit because it was based on speculation, which did not create a material issue of fact. Affirmed.

      Full Text Opinion

      This summary also appears under School Law

      Issues: Governmental employee immunity; Poppen v. Tovey; Jackson v. Saginaw County; Gross negligence; Proximate cause; Robinson v. City of Detroit; Ritchie-Gamester v. Berkley
      Court: Michigan Supreme Court
      Case Name: Reaume v. Jefferson Middle Sch.
      e-Journal Number: 35696
      Judge(s): Taylor, Corrigan, Young Jr., and Markman; Voting to deny leave to appeal—Cavanagh; Voting to grant leave to appeal—Weaver and Kelly

      In an order in lieu of granting leave to appeal, the court reversed the judgment of the Court of Appeals (see e-Journal # 32873 in the 8/21/06 edition) and remanded to the trial court for entry of summary disposition in favor of defendant-Ryan Nadeau. Even accepting as true the allegation the defendant, without warning, grabbed the plaintiff from behind and took him to the wrestling mat, this did not produce the injury to the plaintiff. The injury occurred while the defendant and the plaintiff were engaged in wrestling activity. The plaintiff testified after a completed body roll, he did what he had been taught to do—brace his arm to attempt to escape—and only then did the injury occur. The defendant's alleged failure to give adequate notice of the initial takedown, utilized by the Court of Appeals as the basis to affirm the denial of summary disposition, was not the proximate cause of the plaintiff's injury.

      Full Text Opinion

      Real Property

      Issues: Mortgage foreclosure; MCL 600.3204; Whether the foreclosure proceedings should be voided because the defendant published its first notice of foreclosure before it actually acquired its interest in the indebtedness; Whether the defendant was not obliged to follow MCL 600.3204(1)(d) because it had fulfilled the requirements of MCL 600.3204(3); Michigan Basic Prop. Ins. Ass'n v. Ware; Whether what was at issue was simply a notice defect; Arnold v. DMR Fin. Servs., Inc.
      Court: Michigan Court of Appeals (Published)
      Case Name: Davenport v. HSBC Bank USA
      e-Journal Number: 35704
      Judge(s): Jansen, Cavanagh, and Borrello

      Since defendant did not yet own the indebtedness it sought to foreclose, it lacked the statutory authority to foreclose and the foreclosure proceedings were void ab initio. The trial court erred in ruling defendant's noncompliance with the statutory requirements did not nullify the foreclosure proceedings. Plaintiff executed a mortgage on certain real property. It was assigned to another entity, which then assigned it to defendant on October 31, 2005, by which time plaintiff was in default on the mortgage. Defendant initiated foreclosure proceedings by publishing its first notice on October 27, 2005. Defendant was the successful bidder at the sheriff's sale. Plaintiff sued to have the foreclosure proceedings voided and any continuing proceedings enjoined on the basis defendant published its first notice of foreclosure days before it actually acquired an interest in the indebtedness. The trial court granted defendant summary disposition. Defendant appeared to argue it was not obliged to follow MCL 600.3204(1)(d) since it fulfilled the requirements of MCL 600.3204(3). The court disagreed, concluding subsection (3) did not allow a successor mortgagee to disregard the requirements of subsection (1) for foreclosing by advertisement merely because he or she expects to have achieved a perfect chain of title by the time of sale. MCL 600.3204(1)(d) clearly requires a party own the indebtedness or an interest in the indebtedness prior to undertaking to foreclose a mortgage by advertisement. Thus, defendant was not eligible to initiate the foreclosure when it did because it did not yet own the indebtedness. Further, what was at issue here was "not a mere notice defect." Rather, it was "a structural defect that goes to the very heart of defendant's ability to foreclose by advertisement in the first instance." The court vacated the foreclosure proceedings and remanded the case.

      Full Text Opinion

      School Law

      This summary also appears under Negligence & Intentional Tort

      Issues: Governmental employee immunity; Poppen v. Tovey; Jackson v. Saginaw County; Gross negligence; Proximate cause; Robinson v. City of Detroit; Ritchie-Gamester v. Berkley
      Court: Michigan Supreme Court
      Case Name: Reaume v. Jefferson Middle Sch.
      e-Journal Number: 35696
      Judge(s): Taylor, Corrigan, Young Jr., and Markman; Voting to deny leave to appeal—Cavanagh; Voting to grant leave to appeal—Weaver and Kelly

      In an order in lieu of granting leave to appeal, the court reversed the judgment of the Court of Appeals (see e-Journal # 32873 in the 8/21/06 edition) and remanded to the trial court for entry of summary disposition in favor of defendant-Ryan Nadeau. Even accepting as true the allegation the defendant, without warning, grabbed the plaintiff from behind and took him to the wrestling mat, this did not produce the injury to the plaintiff. The injury occurred while the defendant and the plaintiff were engaged in wrestling activity. The plaintiff testified after a completed body roll, he did what he had been taught to do—brace his arm to attempt to escape—and only then did the injury occur. The defendant's alleged failure to give adequate notice of the initial takedown, utilized by the Court of Appeals as the basis to affirm the denial of summary disposition, was not the proximate cause of the plaintiff's injury.

      Full Text Opinion