• Administrative Law (1)
• Contracts (1)
• Criminal Law (1)
• Environmental Law (1)
• Family Law (1)
• Insurance (1)
• Litigation (1)
• Negligence & Intentional Tort (1)
• Product Liability (1)
• Real Property (1)
• Workers' Compensation (1)

Administrative Law

 

Issues: The appellants-Municipal Coalition and ABATE's challenge to the way in which the PSC calculated the "peak demand" in the context of "cost allocation"; In re Michigan Consol. Gas Co. to Increase Rates Application; The Customer Choice and Electricity Reliability Act (the Act); MCL 460.11; In re Detroit Edison Co. Applications; Challenge to the PSC's decision as to the refund of certain "decommissioning funds"; Attorney Gen. v. Public Serv. Comm'n; The Municipal Coalition's claim the PSC erred when phasing out the municipal pumping credit; MCL 460.11(1); In re Review of Consumers Energy Co. Renewable Energy Plan; The Municipal Coalition's claim the PSC erred in continuing to group municipalities in the same class as other commercial and industrial customers; In re Consumers Energy Application For Rate Increase; The appellant-Attorney General and ABATE's claim that the PSC exceeded its authority when it authorized Consumers Energy to adopt a "revenue decoupling mechanism" (RDM); MCL 460.1089(6); Claim that the PSC exceeded its authority when it authorized Consumers Energy to charge its customers for continued funding of the Low Income and Energy Efficiency Fund (LIEEF); Claim that the PSC erred in approving Consumer Energy's use of "tracking mechanisms"; ABATE's claim that the PSC erred in approving funding for Consumers Energy's Advanced Metering Infrastructure (AMI) program without better ascertaining the program's benefits to its customers; Appellant-Forner's claim that the PSC erred in requiring the electric utility rates to include direct and indirect costs attributable to a gas utility program

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Application of Consumers Energy Co. to Increase Rates

e-Journal Number: 53124

Judge(s): Per Curiam – Ronayne Krause, Borrello, and Riordan

 

The court, inter alia, rejected the claim of error as to the calculation of the peak demand and the PSC's decision to eschew a method known as "MH4CP"and reiterated that the PSC retains broad discretion in deciding such methodology. Appellants-Municipal Coalition and ABATE challenged the way in which the PSC calculated the peak demand in the context of cost allocation. As indicated in the Act, the cost of providing service to each customer class shall be based on the "50-25-25 method of cost allocation," which is understood as the peak demand constituting 50%, peak energy use constituting 25%, and total energy use constituting 25%. At issue here was how to calculate the peak demand and the PSC's decision to eschew a method known as "MH4CP" in favor of one designated "12CP." The Municipal Coalition and ABATE argued that the Legislature intended that the MH4CP continue to be used in connection with the 50-25-25 cost-allocation formula. However, the court rejected this argument in Detroit Edison, holding that "the Legislature intended to prescribe the 50-25-25 formula while leaving the PSC and the utilities it regulates to determine such components as 12CP or MH4CP in the normal course of business." The court further explained in Detroit Edison that it is "not at liberty to read into the statute provisions which the legislature did not see fit to incorporate, nor may it enlarge the scope of its provisions by an unwarranted interpretation of the language used." However, the court held that the PSC exceeded its authority in allowing Consumers Energy, as an electricity provider, to adopt an RDM, and it reversed the PSC's decision insofar as it authorized Consumers Energy to collect funds for the LIEEF from its ratepayers. The court also agreed with ABATE that the PSC erred in approving funding for Consumers Energy's AMI program "without better ascertaining the program's benefits to its customers." Affirmed in part, reversed in part, and remanded.

 

Contracts

 

This summary also appears under Insurance

 

Issues: Whether the "business use exclusion" applied and precluded coverage; McDonald v. Farm Bureau Ins. Co.; Royal Prop. Group, LLC v. Prime Ins. Syndicate, Inc.; Westfield Ins. Co. v. Ken's Serv.; Hayley v. Allstate Ins. Co.; Group Ins. Co. of MI v. Czopek; Exclusionary language - "used to carry property in any business"; Carriers Ins. Co. v. Griffie (WD PA); "While" defined; Klapp v. United Ins. Group Agency, Inc.

Court: Michigan Court of Appeals (Published)

Case Name: Hunt v. Drielick

e-Journal Number: 53228

Judge(s): Riordan, Ronayne Krause, and Borrello

 

The court held that the first part of the business use exclusion in the garnishee appellant-Empire Fire and Marine Insurance Co.'s policy applied and precluded coverage and garnishment by defendants-Great Lakes Carriers and Sargent Trucking, Inc. The court further held that since the business use exclusion applied, Empire was relieved from its duty under the contract and the trial court erred in concluding otherwise. Thus, the court reversed the trial court's order overruling Empire's objections to the garnishment sought by Great Lakes Carriers and Sargent. The court also held that since the first clause of the business use exclusion applied, it did not need to address whether the second clause relating to a lease or rental agreement applied. The garnishments were made payable to plaintiffs-Hunt, the Luczaks, and Huber, all of whom were involved in a car accident with semi truck driver defendant-Corey. Empire (insurance carrier for the trucking company) appealed the trial court's garnishment ruling, claiming that the named driver exclusion and the business use exclusion justified the denial of coverage. At the time of the accident, Corey was driving to the Great Lakes Carriers yard because he had been dispatched to haul a load. He was only miles from the yard at the time of the accident, and was not transporting any property. Empire contended that the first part of the business use exclusion applied and precluded coverage and garnishment by Great Lakes Carriers and Sargent. The first part of the business use exclusion stated that "coverage does not apply when bodily injury or property damage occurred 'while a covered auto is used to carry property in any business.'" Since there is no Michigan law directly on point, Empire cited numerous federal cases that involved the exact same exclusionary language of the automobile being "used to carry property in any business." One such case was Carriers. Likewise, in this case, the parties agreed that Corey was "under dispatch" at the time of the accident and was only a couple of miles away from the yard. Even though he did not have to be at the yard at a specific time, he was not driving aimlessly, and there was no dispute that he was specifically driving to the yard to attach the loaded trailer and drive. While Corey was not carrying property at the time of the accident, the exclusion does not state that the auto must be carrying property. Rather, the exclusion applies "while the covered auto is used to carry property in any business." The term "while" is defined as "an interval of time" and the term "use" is defined as "to employ for some purpose; put into service." Further, the policy at issue stated on its cover "Insurance for Non-Trucking Use." Since Corey was purposely driving to the yard to transport property, the accident occurred during an interval of time when the truck was employed for the purpose of carrying property in the trucking business. This was not a case where the driver was engaged in an activity unrelated to the business of transporting property, such as driving a truck on a personal matter, to which the exclusion would not apply. The court held that it must apply the plain language of the contract as written.

 

Criminal Law

 

Issues: Sufficiency of the evidence to convict the defendant of eight counts of CSC III (victim between 13 and 15); People v. Tennyson; People v. Hardiman; Credibility of the victim's testimony; People v. Avant; People v. Lemmon; "Cunnilingus"; MCL 750.520a(4); The trial court's evidentiary rulings; People v. Holtzman; People v. Babcock; Whether the "other acts" evidence was properly admitted under MCL 768.27a; People v. Mann; Constitutionality of MCL 786.27a; People v. Pattison; People v. Watkins; People v. Smith; Whether the other acts evidence was unfairly prejudicial; People v. Pickens; Whether the trial court properly prevented defendant from admitting evidence of a consensual relationship after the victim turned 16; People v. Kurr; People v. Unger (On Remand); Sentencing; Scoring of OVs 4, 10, 13, and 19; Whether Michigan's sentencing scheme violates Blakely v. Washington; People v. McCuller; People v. Drohan; People v. Hornsby; People v. Ratkov (Before Remand); People v. Steele; People v. Cannon; People v. Bonilla-Machado; People v. Harmon; People v. McDonald; Prosecutorial misconduct; People v. Dobek; People v. Johnson; People v. Grayer; Whether the dates in the information were "too vague"; People v. Harbour; People v. Sabin

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Perez

e-Journal Number: 53132

Judge(s): Per Curiam - Talbot, Wilder, and Riordan

 

In this case where the defendant was convicted by a jury of eight counts of CSC III (victim between 13 and 15) and argued, inter alia, on appeal that testimony related to "other acts" evidence should not have been admitted under MCL 768.27a because the testimony did not describe other violations of the CSC statutes, the court held that attempted acts of listed offenses against minors are admissible under the statute. The testimony involved defendant's attempts to commit CSC and were thus, admissible under MCL 768.27a. The court also held that the statute is not unconstitutional. Defendant argued that the victim's testimony of four incidents of cunnilingus did not support that she was "penetrated" with his tongue as required for his CSC III convictions. The court concluded that this argument was contrary to the statutory definition of sexual penetration, which includes "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening of another person's body, but emission of semen is not required," (MCL 750.520a(r)). Defendant also argued that MCL 768.27a violates MRE 401, MRE 402, and MRE 403, which are under the exclusive authority of the judiciary. However, these evidence rules operate to ensure that only relevant evidence is admitted. Consistently, MCL 768.27a specifies that evidence admitted under the statute must be "considered for its bearing on any matter to which it is relevant." Evidence that is admitted under MCL 768.27a is subject to analysis under of the requirements of MRE 403. The court noted that there is a conflict between MRE 404(b) and MCL 768.27a because MRE 404(b) prohibits the admission of a defendant's other bad acts to prove defendant's propensity to commit the charged crime. However, because MCL 768.27a is a legislated rule of evidence that is based on public policy, rather than a procedural rule, it is an exception to and supersedes MRE 404(b). The court held that none of the issues defendant raised on appeal had merit and affirmed his convictions and sentences.

 

Environmental Law

 

Issues: Claims under Part 115 of the Solid Waste Management Act of the Natural Resources and Environmental Protection Act (MCL 324.11501 et seq.) (Part 115); Guardian Envtl. Servs., Inc. v. Bureau of Constr. Codes & Fire Safety; Michigan Farm Bureau v. Department of Envtl. Quality; Sidun v. Wayne Cnty. Treasurer; Statutory interpretation; U.S. Fid. Ins. & Guar. Co. v. Michigan Catastrophic Claims Ass'n (On Rehearing); Robinson v. City of Lansing; Fluor Enters., Inc. v. Department of Treasury; MCL 324.11507(1); MCL 324.11533(1)-(3); MCL 324.11512(2); MCL 324.11539(a); MCL 324.11535(d); MCL 324.11541(1); MCL 324.11538(1)(c); "May"; In re Forfeiture of Bail Bond; MCL 324.11538(1)(i); MCL 324.11538(2); MCL 324.11513; MCL 324.11358(6); Miller v. Allstate Ins Co.; Controlling statutory definitions; Haynes v. Neshewat; "Minimum"; MCL 324.11548(1); MCL 324.11546(1); County of Saginaw v. John Sexton Corp. of MI; MCL 324.11538(1)(f); MCL 324.11503(6); "Include"; Whether Part 115 permits a county to impose an annual limit on the amount of solid waste accepted for disposal by the only operating landfill in the county; Whether the disposal cap is an unconstitutional imposition on interstate commerce; U.S. Const., Art. I, § 8, cl. 3; Fort Gratiot Sanitary Landfill v. Michigan Dep't of Natural Res.; Oregon Waste Sys. v. Department of Envtl. Quality; SDDS, Inc. v. South Dakota (8th Cir.). Ashland Oil v. Caryl; Philadelphia v. New Jersey; Chemical Waste Mgmt. v. Hunt; The Pike test (Pike v. Bruce Church); United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth.; GMC v. Tracy; Arkansas Elec. Coop. Corp. v. Arkansas Pub. Servs. Comm'n; Whether the disposal cap violated plaintiffs-Pitsch's substantive due process rights; In re CR; Trentadue v. Buckler Automatic Lawn Sprinkler Co.; Cadle Co. v. City of Kentwood

Court: Michigan Court of Appeals (Unpublished)

Case Name: County of Ionia v. Pitsch Recycling & Disposal, Inc.

e-Journal Number: 53141

Judge(s): Per Curiam – Markey, Shapiro, and Ronayne Krause

 

The court held that defendant-Ionia County's solid waste management plan, including its disposal cap, was enforceable by law pursuant to Part 115, the disposal cap in the County's plan did not unconstitutionally burden interstate commerce, and plaintiffs-Pitsch did not demonstrate that their substantive due process were violated. The primary issue was whether Part 115 permitted Ionia County to impose an annual limit on the amount of solid waste accepted for disposal by Pitsch, the only operating landfill in the county. The court found no provision within Part 115, individually or as a whole, equally susceptible to more than one meaning or irreconcilably conflicting with any other provision, so Part 115 was not ambiguous. The court further concluded that Ionia County's disposal cap was authorized. In Part 115, the Legislature directed the defendant-DEQ to "assist in developing and encouraging methods for the disposal of solid waste that are environmentally sound, that maximize the utilization of valuable resources, and that encourage resource conservation . . . ." Each solid waste management plan is required to "include an enforceable program and process to assure that the nonhazardous solid waste generated or to be generated in the planning area for a period of 10 years or more is collected and recovered, processed, or disposed of at disposal areas that comply with state law and rules promulgated by the department governing location, design, and operation of the disposal areas." A solid waste disposal area cannot be operated contrary to the provisions of a solid waste management plan. The court held that operating a solid waste disposal area in compliance with a solid waste management plan is a minimum requirement of Part 115. "Solid waste management plans must 'contain enforceable mechanisms for implementing the plan.'" Insofar as the court could determine, Ionia County's plan did not explicitly reference any enforcement mechanism, at least in so many words. "However, nothing in Part 115 requires a plan to identify an enforceable mechanism. 'The state solid waste management plan shall consist of the state solid waste plan and all county plans approved or prepared by the department.'" Thus, a county's disposal plan, once approved by the DEQ, becomes a part of Michigan's statewide solid waste management plan - it is itself enforceable as state law. The court noted that the DEQ explained in a letter that a county's plan "may contain other provisions that are neither required nor expressly authorized for inclusion in a solid waste management plan" and its approval of any such plan "does not extend to any such provisions." However, the court held that "the disposal cap here is absolutely necessary to Ionia County's plan, so it could not possibly be a provision 'neither required nor expressly authorized.'" The court affirmed the trial court's order granting dismissal in favor of the County and the DEQ.

 

Family Law

 

This summary also appears under Litigation

 

Issues: Divorce; Property division; Failure to provide legal or factual support for claims on appeal; Mitcham v. Detroit

Court: Michigan Court of Appeals (Unpublished)

Case Name: Winton v. Winton

e-Journal Number: 53127

Judge(s): Memorandum – Murphy, Sawyer, and Hoekstra

 

Holding that the defendant-husband abandoned his issues on appeal by failing to provide any supporting legal or factual support, the court affirmed the parties' divorce judgment. The parties were married in 1996 and the plaintiff-wife filed for divorce in 2009. The dispute in the case primarily was about the property division and whether certain property was marital or separate property. Defendant argued on appeal that the trial court erred in dividing the property, but he did not provide any cogent argument to show that the division was based on an error of law or fact. He did not identify what specific findings of fact were made or how they were clearly erroneous, did not point to contrary evidence that undermined those findings, and did not explain how those allegedly erroneous findings undermined the validity of the property settlement. The court noted that an "appellant must do more than 'simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.'"

 

Insurance

 

This summary also appears under Contracts

 

Issues: Whether the "business use exclusion" applied and precluded coverage; McDonald v. Farm Bureau Ins. Co.; Royal Prop. Group, LLC v. Prime Ins. Syndicate, Inc.; Westfield Ins. Co. v. Ken's Serv.; Hayley v. Allstate Ins. Co.; Group Ins. Co. of MI v. Czopek; Exclusionary language - "used to carry property in any business"; Carriers Ins. Co. v. Griffie (WD PA); "While" defined; Klapp v. United Ins. Group Agency, Inc.

Court: Michigan Court of Appeals (Published)

Case Name: Hunt v. Drielick

e-Journal Number: 53228

Judge(s): Riordan, Ronayne Krause, and Borrello

 

The court held that the first part of the business use exclusion in the garnishee appellant-Empire Fire and Marine Insurance Co.'s policy applied and precluded coverage and garnishment by defendants-Great Lakes Carriers and Sargent Trucking, Inc. The court further held that since the business use exclusion applied, Empire was relieved from its duty under the contract and the trial court erred in concluding otherwise. Thus, the court reversed the trial court's order overruling Empire's objections to the garnishment sought by Great Lakes Carriers and Sargent. The court also held that since the first clause of the business use exclusion applied, it did not need to address whether the second clause relating to a lease or rental agreement applied. The garnishments were made payable to plaintiffs-Hunt, the Luczaks, and Huber, all of whom were involved in a car accident with semi truck driver defendant-Corey. Empire (insurance carrier for the trucking company) appealed the trial court's garnishment ruling, claiming that the named driver exclusion and the business use exclusion justified the denial of coverage. At the time of the accident, Corey was driving to the Great Lakes Carriers yard because he had been dispatched to haul a load. He was only miles from the yard at the time of the accident, and was not transporting any property. Empire contended that the first part of the business use exclusion applied and precluded coverage and garnishment by Great Lakes Carriers and Sargent. The first part of the business use exclusion stated that "coverage does not apply when bodily injury or property damage occurred 'while a covered auto is used to carry property in any business.'" Since there is no Michigan law directly on point, Empire cited numerous federal cases that involved the exact same exclusionary language of the automobile being "used to carry property in any business." One such case was Carriers. Likewise, in this case, the parties agreed that Corey was "under dispatch" at the time of the accident and was only a couple of miles away from the yard. Even though he did not have to be at the yard at a specific time, he was not driving aimlessly, and there was no dispute that he was specifically driving to the yard to attach the loaded trailer and drive. While Corey was not carrying property at the time of the accident, the exclusion does not state that the auto must be carrying property. Rather, the exclusion applies "while the covered auto is used to carry property in any business." The term "while" is defined as "an interval of time" and the term "use" is defined as "to employ for some purpose; put into service." Further, the policy at issue stated on its cover "Insurance for Non-Trucking Use." Since Corey was purposely driving to the yard to transport property, the accident occurred during an interval of time when the truck was employed for the purpose of carrying property in the trucking business. This was not a case where the driver was engaged in an activity unrelated to the business of transporting property, such as driving a truck on a personal matter, to which the exclusion would not apply. The court held that it must apply the plain language of the contract as written.

 

Litigation

 

This summary also appears under Family Law

 

Issues: Divorce; Property division; Failure to provide legal or factual support for claims on appeal; Mitcham v. Detroit

Court: Michigan Court of Appeals (Unpublished)

Case Name: Winton v. Winton

e-Journal Number: 53127

Judge(s): Memorandum – Murphy, Sawyer, and Hoekstra

 

Holding that the defendant-husband abandoned his issues on appeal by failing to provide any supporting legal or factual support, the court affirmed the parties' divorce judgment. The parties were married in 1996 and the plaintiff-wife filed for divorce in 2009. The dispute in the case primarily was about the property division and whether certain property was marital or separate property. Defendant argued on appeal that the trial court erred in dividing the property, but he did not provide any cogent argument to show that the division was based on an error of law or fact. He did not identify what specific findings of fact were made or how they were clearly erroneous, did not point to contrary evidence that undermined those findings, and did not explain how those allegedly erroneous findings undermined the validity of the property settlement. The court noted that an "appellant must do more than 'simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.'"

 

Negligence & Intentional Tort

 

This summary also appears under Product Liability

 

Issues: Claims arising from an apartment complex fire related to a leaking boiler and placement of a drip pan; The tenants-subrogees' negligence claims against the defendant-heating and cooling contractor (PTHAC); Loweke v. Ann Arbor Ceiling & Partition Co., LLC; Citizens Ins. Co. of Am. v. American Cmty. Mut. Ins. Co.; Whether PTHAC owed a "duty of care" to the tenants separate and distinct from its contractual duties; Fultz v. Union-Commerce Assocs.; Hill v. Sears Roebuck & Co.; Applicability of the "economic loss doctrine" to the plaintiff-insurer's negligence claim for the losses of the building's owner and its manager (JFA/JAS); Neibarger v. Universal Coops., Inc.; Higgins v. Lauritzen; Frommert v. Bobson Constr. Co.; Issue of whether a tort action may arise out of a contractual promise; Rinaldo's Constr. Corp. v. Michigan Bell Tel. Co.; Breach of contract claim; Whether the maintenance agreement released PTHAC from liability for fire damage; Butler v. Wayne Cnty.; Limitation of liability provision; Enforcing unambiguous contracts as written; Coates v. Bastian Bros., Inc.; Product liability claim; Greene v. AP Prods., Ltd.; A "product liability action" defined (MCL 600.2945(h)); MCL 600.2947(1) & (2); MCL 600.2945; Whether there was a genuine issue of material fact that JFA/JAS "misused and altered" the drip pan

Court: Michigan Court of Appeals (Unpublished)

Case Name: Citizens Ins. Co. of Am. v. Professional Temperature Heating & Air Conditioning, Inc.

e-Journal Number: 53092

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

 

The court held that as to the tenants' subrogees' claims, the plaintiffs-insurers properly pleaded the duty element of a negligence claim and factually supported it with evidence of defendant-PTHAC's contractual relationship with the apartment building's owner and its manager (JFA/JAS) and its obligations to prevent or warn of the risk of a fire hazard. Thus, the court affirmed the trial court's order denying PTHAC's motion to dismiss the tenants' subrogees' negligence claims. However, the court held that the trial court erred in denying PTHAC's summary disposition motion as to the negligence claims of JFA/JAS's insurer (plaintiff-Hartford) because Hartford failed to show a genuine issue of material fact as to PTHAC's breach of a duty that existed separate and distinct from its contractual duties under the maintenance agreement. Further, PTHAC was entitled to summary disposition on Hartford's breach of contract claim and on the plaintiffs' product liability claim. JFA/JAS retained PTHAC to perform preventative maintenance to the building's heating system pursuant to the maintenance agreement. In 2008, the building was damaged by a fire that was apparently caused by a leaking boiler. The boiler leaked intermittently since at least 2001. JFA/JAS decided to purchase a drip pan from PTHAC, which ordered the pan. When JFA/JAS's employees installed the drip pan, they placed it directly on the wood floor. The parties generally agreed that during the seven-year period the drip pan was in place, radiant heat and leaking water from the boiler caused the pan to oxidize, leaving the decaying wooden floor below susceptible to heat damage. The 2008 fire occurred directly under the boiler. The court concluded that PTHAC "had a common-law duty to avoid endangering other persons lawfully present in the building." There was a question of fact whether PTHAC breached that duty by failing to report an apparent fire hazard related to the heating system that PTHAC undertook to inspect, and PTHAC's contractual duties as to the boiler system could not be reasonably segregated from the problems with the drip pan. The problem was caused by the placement of the boiler in the pan in direct contact with the combustible floor. Also, PTHAC "was in a special relationship giving rise to a duty of care to the tenants. A safe and reliable heating system is not an amenity for apartment dwellers, but an essential service." PTHAC knew that JFA/JAS engaged its services to help ensure that the tenants' units would be safely and reliably heated, and that hot water would be readily available. However, the court held that PTHAC was entitled to summary disposition on Hartford's breach of contract claim based on the limitation of liability provision in the maintenance agreement. Further, PTHAC was entitled to summary disposition on plaintiffs' product liability claims because there was "no genuine issue of material fact that JFA/JAS misused and altered the drip pan." Affirmed in part, reversed in part, and remanded.

 

Product Liability

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Claims arising from an apartment complex fire related to a leaking boiler and placement of a drip pan; The tenants-subrogees' negligence claims against the defendant-heating and cooling contractor (PTHAC); Loweke v. Ann Arbor Ceiling & Partition Co., LLC; Citizens Ins. Co. of Am. v. American Cmty. Mut. Ins. Co.; Whether PTHAC owed a "duty of care" to the tenants separate and distinct from its contractual duties; Fultz v. Union-Commerce Assocs.; Hill v. Sears Roebuck & Co.; Applicability of the "economic loss doctrine" to the plaintiff-insurer's negligence claim for the losses of the building's owner and its manager (JFA/JAS); Neibarger v. Universal Coops., Inc.; Higgins v. Lauritzen; Frommert v. Bobson Constr. Co.; Issue of whether a tort action may arise out of a contractual promise; Rinaldo's Constr. Corp. v. Michigan Bell Tel. Co.; Breach of contract claim; Whether the maintenance agreement released PTHAC from liability for fire damage; Butler v. Wayne Cnty.; Limitation of liability provision; Enforcing unambiguous contracts as written; Coates v. Bastian Bros., Inc.; Product liability claim; Greene v. AP Prods., Ltd.; A "product liability action" defined (MCL 600.2945(h)); MCL 600.2947(1) & (2); MCL 600.2945; Whether there was a genuine issue of material fact that JFA/JAS "misused and altered" the drip pan

Court: Michigan Court of Appeals (Unpublished)

Case Name: Citizens Ins. Co. of Am. v. Professional Temperature Heating & Air Conditioning, Inc.

e-Journal Number: 53092

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

 

The court held that as to the tenants' subrogees' claims, the plaintiffs-insurers properly pleaded the duty element of a negligence claim and factually supported it with evidence of defendant-PTHAC's contractual relationship with the apartment building's owner and its manager (JFA/JAS) and its obligations to prevent or warn of the risk of a fire hazard. Thus, the court affirmed the trial court's order denying PTHAC's motion to dismiss the tenants' subrogees' negligence claims. However, the court held that the trial court erred in denying PTHAC's summary disposition motion as to the negligence claims of JFA/JAS's insurer (plaintiff-Hartford) because Hartford failed to show a genuine issue of material fact as to PTHAC's breach of a duty that existed separate and distinct from its contractual duties under the maintenance agreement. Further, PTHAC was entitled to summary disposition on Hartford's breach of contract claim and on the plaintiffs' product liability claim. JFA/JAS retained PTHAC to perform preventative maintenance to the building's heating system pursuant to the maintenance agreement. In 2008, the building was damaged by a fire that was apparently caused by a leaking boiler. The boiler leaked intermittently since at least 2001. JFA/JAS decided to purchase a drip pan from PTHAC, which ordered the pan. When JFA/JAS's employees installed the drip pan, they placed it directly on the wood floor. The parties generally agreed that during the seven-year period the drip pan was in place, radiant heat and leaking water from the boiler caused the pan to oxidize, leaving the decaying wooden floor below susceptible to heat damage. The 2008 fire occurred directly under the boiler. The court concluded that PTHAC "had a common-law duty to avoid endangering other persons lawfully present in the building." There was a question of fact whether PTHAC breached that duty by failing to report an apparent fire hazard related to the heating system that PTHAC undertook to inspect, and PTHAC's contractual duties as to the boiler system could not be reasonably segregated from the problems with the drip pan. The problem was caused by the placement of the boiler in the pan in direct contact with the combustible floor. Also, PTHAC "was in a special relationship giving rise to a duty of care to the tenants. A safe and reliable heating system is not an amenity for apartment dwellers, but an essential service." PTHAC knew that JFA/JAS engaged its services to help ensure that the tenants' units would be safely and reliably heated, and that hot water would be readily available. However, the court held that PTHAC was entitled to summary disposition on Hartford's breach of contract claim based on the limitation of liability provision in the maintenance agreement. Further, PTHAC was entitled to summary disposition on plaintiffs' product liability claims because there was "no genuine issue of material fact that JFA/JAS misused and altered the drip pan." Affirmed in part, reversed in part, and remanded.

 

Real Property

 

Issues: Action to quiet title; Whether the trial court should have set aside the quitclaim deed; Special Prop. VI v. Woodruff; Ligon v. City of Detroit; VanderWerp v. Plainfield Charter Twp.; When a deed takes effect; Power v. Palmer; Whether the trial court should have invalidated the quitclaim deed because the signatures were not properly acknowledged or verified pursuant to the Notary Public Act (NPA)(MCL 55.261 et seq.); The parties' agreement that the quitclaim deed was improperly notarized; How this fact impacted the validity of the deed; Whether the trial court should have invalidated the quitclaim deed pursuant to MCL 55.307(2); Whether the deed was invalid because it did not satisfy statutory recording requirements; Whether the deed violated the Land Division Act (MCL 560.101 et seq.); In re Rudell Estate; Whether MCL 560.109(3) applied to the quitclaim deed; Whether the quitclaim deed violated the real estate transfer tax; MCL 207.502(b); Whether the transfer was exempt; Consideration; Amerisure Ins. Co. v. Graff Chevrolet, Inc.; The "clean hands" doctrine; Richards v. Tibaldi; McFerren v. B & B Inv. Group.; Whether a forged signature invalidates a deed; Felcher v. Dutton; Credibility assessments; People v. Jackson; Whether the trial court properly found the handwriting expert's testimony was not dispositive

Court: Michigan Court of Appeals (Unpublished)

Case Name: McConnell v. McConnell

e-Journal Number: 53130

Judge(s): Per Curiam – Gleicher, Saad, and Beckering

 

Noting that the trial court heard the evidence and the arguments presented by the parties and explained its determination that defendants' theory was meritorious, the court held that the trial court did not err and plaintiffs' claims were without merit. Plaintiffs appealed the trial court's order that quieted title to a disputed parcel of property in favor of the defendants. The trial court also ruled that plaintiffs forfeited a $60,000 land contract to repurchase the land that they deeded to defendants. The trial court awarded defendants $84,739 in damages. The court affirmed. Plaintiffs contended, inter alia, the trial court should have set aside the quitclaim deed. They denied that they signed the quitclaim deed and argued that the trial court should have invalidated the deed because the signatures were not properly acknowledged or verified pursuant to the NPA. The notary public testified that she notarized the quitclaim deed without witnessing or verifying the signers or signatures. She also did not know who prepared the quitclaim deed or when it was originally signed. The parties agreed that the quitclaim deed was improperly notarized. The dispute was how that fact impacted the validity of the deed. The court concluded that the notary public's failure to properly acknowledge and verify the deed signatures meant that no presumption arose as to the accuracy of any facts set forth in the deed, but it did not mean the deed was invalid and "ample trial evidence supported its validity." Further, pursuant to MCL 565.604, the deed remained valid even with the notorial act invalidated. The court also noted that the trial court stated that the expert's opinion, considered with the facts and circumstances of the case, provided evidence that plaintiffs signed the deed and land contract. "The trial court discussed plaintiffs' theory that they signed the land contract thinking that they were purchasing an adjacent parcel from defendants, and dismissed this theory because the signatures on the quitclaim deed were authentic and defendants did not own the adjacent parcel to sell to plaintiffs at the time both the deed and land contract were signed." The trial court also discussed the notary issue and determined that the deed was valid despite any error in acknowledging the deed. Further, the trial court addressed plaintiffs' argument as to the lack of consideration.

 

Workers' Compensation

 

Issues: The magistrate's authority to address the 1990 open award of benefits; Whether the Worker's Disability Compensation Act required defendant-GM to file a petition to stop payment; MCL 418.841(1); Harris v. Vernier; Adams v. Great Atl. & Pac. Tea Co.; MCL 418.847(1); Reed v. Yackell; MCL 418.222; The magistrates' authority to address the plaintiff's entitlement to continuing wage-loss benefits for his 1980 back injury; Whether the WCAC applied the proper standard of review in reversing the magistrates' decisions that plaintiff was not entitled to benefits for his 1980 injury; Pulley v. Detroit Eng'g & Mach. Co.; Whether plaintiff established a new "wage-earning capacity" during his employment with GM from 11/97-5/04; The WCAC's review of a magistrate's decision; Mudel v. Great Atl. & Pac. Tea Co.; Judicial review in worker's compensation cases; Reiss v. Pepsi Cola Metro. Bottling Co.; Charboneau v. Beverly Enters., Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Ulin v. General Motors, L.L.C.

e-Journal Number: 53093

Judge(s): Per Curiam – Beckering; Concurring in the result only – Saad; Dissent – Gleicher

 

The court held that the WCAC erroneously determined that the magistrate did not have authority to address the continuation of benefits for the plaintiff's 1980 back injury. However, the court agreed with the WCAC that the magistrate's analysis on second remand as to plaintiff's establishment of a new wage-earning capacity was incomplete. Thus, the court reversed and remanded the WCAC's order affirming in part and reversing in part the magistrate's decision on second remand denying plaintiff's petition for benefits. In 10/80, plaintiff suffered a work-related injury to his lower back. He filed a worker's compensation claim and on 1/11/82, defendant-GM voluntarily began paying him benefits. GM later sought to terminate payment of plaintiff's benefits on the basis that he was vocationally rehabilitated and had established a wage-earning capacity. In 1990, a magistrate issued an opinion and order finding that GM's assertion lacked factual basis. The magistrate ordered GM to "resume the payment of weekly compensation based on the October 1980 injury date until further order of the Board." On 11/19/97, plaintiff returned to work for GM after GM agreed to provide him with reasonable accommodations for his back restrictions. Without filing a petition to stop payment of benefits, GM stopped paying plaintiff wage-loss benefits upon his return to work, and he did not seek benefits pursuant to the 1990 order. However, he continued to submit and be reimbursed for medical expenses for treatment of his back injury. He stopped working for GM on 5/10/04 due to neck and arm problems. GM did not resume paying wage-loss benefits for the 1980 back injury as awarded in the 1990 order, and plaintiff did not seek to enforce the order. On 7/7/04, he applied for mediation or hearing seeking medical and wage-loss benefits and, later, amended the application to assert the following disabilities - (1) the 1980 lower-back injury requiring surgery and resulting in a work restriction, (2) a 6/98 injury to his right knee that required surgery in 12/98, (3) a 2001 cervical spine injury, (4) a 2/02 injury, (5) a neck injury on 10/29/02, and (6) aggravation of his neck and lower-back conditions on 5/7/04. After two remands to the magistrates and three appeals to the WCAC, GM argued on appeal to the court, inter alia, that the WCAC erred by concluding that the Act required GM "to file a petition to stop payment in order to place before the first magistrate the issue of plaintiff's eligibility for continuing wage loss benefits for his 1980 back injury." GM asserted that the issue was sufficiently placed before the first magistrate by both plaintiff's 2004 application for benefits on the basis of several injuries, including his 1980 back injury, and GM's answer in which it contested his right to benefits for the 1980 injury. The court agreed, concluding that the WCAC's interpretation of MCL 418.841(1) and MCL 418.847(1) was "clearly wrong" and that the magistrates had the authority to address plaintiff's entitlement to continuing wage-loss benefits for his 1980 injury. GM also argued that plaintiff established a new wage-earning capacity during his six-plus years of employment with GM from 11/97 until 5/04. Concluding that the second magistrate's analysis lacked any discussion of four necessary considerations set forth in Pulley, the court remanded the case to the magistrate for further consideration of this issue.

 

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