Jennifer Dukarski Fishman Stewart Matthew W. Frank Cynthia Haffey Michael D. Hanchett Mary Massaron Megan Mitchell Ryan C. Washburn
Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Action seeking PIP benefits for attendant care; Default cap on attendant care after the 2019 amendments to the No-Fault Act (NFA); MCL 500.3157(10); Exceptions to the default cap; MCL 500.3157(11); Allowable expenses; Less than unlimited coverage under the 2019 amendments to the NFA; MCL 500.3107c; State Farm Mut Auto Ins Co v Fortin Estate; “Allowable Expenses (Medical)” & “Unlimited person Primary”; Contract interpretation
Holding that the trial court erred by granting defendant-insurer’s (Home-Owners) motion for partial summary disposition because plaintiff-insured’s (Terry) auto insurance policy provided for unlimited allowance expenses, which included attendant care, the court reversed and remanded. Plaintiff and his son were injured in a car accident, after which they received attendant care 24 hours per day. They sued defendant to recover the cost for this care as part of Terry’s PIP benefits. Terry estimated he incurred $157,584 in attendant care expenses. Defendant argued that the 2019 amendments to the NFA capped plaintiffs’ attendant care at 8 hours per day, or 56 hours a week. The trial court agreed. On appeal, the court noted that while it recognized the trial court’s concerns, they were “inapplicable to the present case because of the policy’s particular language. The policy explicitly listed ‘Allowable Expenses (Medical),’ which explicitly included attendant care, and Terry selected unlimited coverage. This was not a situation in which Terry selected a mere unlimited dollar amount for PIP coverage and later sought to extrapolate this to attendant care.” Rather, he “explicitly selected boundless and infinite coverage for allowable expenses, which included attendant care. The policy did not list any exceptions.” As such, the court did “not believe MCL 500.3157(10) and (11) were rendered meaningless by Terry’s interpretation. The policy in the present case was clear and unambiguous in its language.” The court noted that “nothing about Terry’s interpretation prevents future parties from allowing for unlimited PIP benefits in terms of the dollar amount while still restricting attendant care hours to 56 hours per week. To avoid the result in the present case, insurers must simply not allow insureds to select unlimited allowable expenses.” Nothing in MCL 500.3157(11) “requires that an insured must use special language beyond the ‘unlimited’ language used in the policy.” As to the policy language providing “that allowable expenses were ‘subject to limitations of Chapter 31 of the Michigan Insurance Code[,]’” it appeared this was included “merely to alert the parties that the policy was subject to the various statutory limitations” in the NFA. “Many of these limitations, such as the hourly cap within MCL 500.3157(11), are able to be contracted around.” Finally, defendant’s argument “ignored the opening language of the policy’s PIP benefits section.” Defendant was “not entitled to partial summary disposition on the issue of Terry’s attendant care claims because Terry was not limited to 56 hours per week.”
Sentencing; Scoring of OV 3; Successive motions for relief from judgment under MCR 6.502(G); Consideration of acquitted conduct; People v Beck; People v Ewing; Whether Beck applied retroactively; People v Barnes; Teague v Lane; Principle that when a judicial decision announces a new rule, retroactive application does not extend to cases that have already become final
Holding that Beck’s holding is not retroactive on collateral review, the court affirmed the trial court’s denial of defendant’s successive motion for relief from judgment. He was convicted of AWIM, FIP, and felony-firearm arising out of an incident at a nightclub in which several people were shot. The trial court assessed 100 points for OV 3, and then sentenced him to 285 to 700 months for each AWIM, 3 to 5 years for FIP, and 2 years for felony-firearm. Defendant filed several successive motions for relief from judgment, arguing in the most recent motion that he was entitled to resentencing under Beck because the trial court considered acquitted conduct. He claimed the motion was not barred by MCR 6.502(G) because Beck represented “a retroactive change in law that occurred after the first motion for relief from judgment was filed’ under MCR 6.502(G)(2)(a). The trial court denied his motion, finding “he was not entitled to relief under Beck because the new rule was not retroactively applicable on collateral review.” On appeal, the court held that the trial court did not abuse its discretion by denying defendant’s successive motion for relief from judgment because Beck is not entitled to retroactive application in cases that were final at the time it was decided. Applying the federal framework, the court noted that because “Beck explicitly determined it was considering the question ‘on a clean slate,’ [it] announced a new rule of law that was not dictated by previous precedent.” And despite its “constitutional foundation, Beck did not create a new substantive rule of law warranting retroactive application on collateral review under Teague.” The court reached the same conclusion under Michigan’s retroactivity framework. “Because the rule in Beck is irrelevant to the fact-finder’s determination of guilt, it is ‘amenable to prospective application.’” In addition, “the general reliance of courts on Ewing as sanctioning the use of acquitted conduct at sentencing weighs against retroactive application of Beck.” Finally, the third factor “does not outweigh the significance of the first two factors which weigh heavily in favor of the prospective-only application of Beck.”
Search & seizure; Motion to suppress; Carrying a concealed weapon in public without a concealed pistol license (CPL); MCL 750.227(2); Constitutionality of MCL 28.425f (requiring a licensed person to carry his or her CPL when carrying a concealed weapon & to show the CPL & identification upon a police officer’s request); The Fourth Amendment; Northrup v Toledo Police Dep’t (6th Cir); United States v Galaviz (6th Cir); United States v Culver (Unpub ED MI); United States v Williams (Unpub 6th Cir); United States v Bridges (Unpub ED MI); United States v Graham (ED MI)
The court concluded that, as stated in various federal court opinions applying Michigan law, an officer suspecting “that a person is carrying a concealed weapon may approach the suspect and ask for proof of a CPL.” It further held “that under Michigan law a police officer has reasonable suspicion to approach a person and ask for proof of a CPL after observing a bulge in a person’s clothing indicative of a hidden firearm.” Thus, it reversed the trial court’s orders granting defendant’s motion to suppress and dismissing the charges against him, and remanded. The charges were all weapons charges. The court noted that the “plain language of MCL 28.425f requires a CPL holder who is in possession of a concealed firearm to also have in their possession their CPL and either their state issued driver’s license or identification and to provide both to law enforcement officers upon request.” It then considered whether the statute violates the Fourth Amendment. Defendant relied heavily on Northrup, a Sixth Circuit decision arising from an Ohio case. The prosecution relied on “other cases, some unpublished, distinguishing Northrup under Michigan law.” The court found the reasoning of those cases (Galaviz, Culver, Williams, Bridges, and Graham) instructive and determined that “Michigan law does not comport with Northrup which is substantively distinguishable from the case at bar.” It noted that the “plain language of MCL 28.425f permits a police officer to ask any person observed to be carrying a concealed weapon to produce his or her CPL, at any time and for any reason. MCL 750.227 also makes possession of a concealed weapon a presumptive crime, which can be rebutted by a suspect with evidence of a CPL.”
Voluntariness of defendant’s plea; Motion to withdraw plea; MCR 6.310(B)
The court held that the circuit court abused its discretion in allowing defendant to withdraw his plea. Thus, it reversed the order of the circuit court and remanded for entry of defendant’s no-contest plea. The prosecution argued “that the circuit court abused its discretion in allowing defendant to withdraw his plea by not properly considering the court rule governing plea withdrawal.” Before the circuit court accepted his “no-contest plea, the prosecutor explained that defendant would be pleading to a reduced charge of assault with intent to commit” CSC II. The circuit court then asked him “if that was his understanding of the plea agreement, and defendant responded affirmatively.” It informed him “that he would be subject to a five-year maximum term of imprisonment at sentencing. Finally, the circuit court explained the rights that defendant would be giving up by pleading no contest, including the right to a jury trial, the right to question witnesses, and the right to automatically appeal.” The record demonstrated his “plea was understanding, voluntary, and accurate.” The court noted that defendant “was made aware of the maximum possible penalty and the other direct consequences of his plea.” He and his counsel confirmed he “was not threatened to plead no contest and was not promised anything outside the plea agreement.” The court noted that defendant “withdrew his no-contest plea after the trial court’s acceptance but before being sentenced.” Thus, MCR 6.310(B) applies. Here, his “reason for withdrawal was that he was under the impression a prison sentence would not be imposed, based on statements he alleges the trial judge made during the chambers meeting. These alleged statements are not reflected in the record, and the trial judge purported to have no memory of any sentencing discussion with defendant before the plea was entered.” It was “unlikely the trial judge made any promises regarding sentencing when the parties agreed on the record that no sentencing agreement was part of the plea (neither defendant nor his counsel objected when the trial judge stated at the time of the plea that there was no sentencing agreement). Even if the trial judge made statements to defendant regarding sentencing, dissatisfaction with the sentence has been found not to constitute a reason in the interest of justice under MCR 6.310(B)(1).” Further, the circuit court’s reasoning for allowing him “to withdraw his plea did not comport with the requirements of MCR 6.310(B)(1).” Also, the circuit court did not address the second prong of MCR 6.310(B)(1).
Admission of the victim’s preliminary exam testimony; The Confrontation Clause; Crawford v Washington; People v Jemison; Unavailable witness; MRE 804(a)(4); Remote preliminary exam testimony during the COVID-19 pandemic; MCR 6.006(B) MCL 766.11a; Administrative Order (AO) No. 2020-6; Exclusion of defendant’s proposed other acts evidence; Relevance; Right to present a defense; Testimony that defendant tried to flee or resisted arrest; MRE 404(b); People v Coleman; MRE 403
The court held that the trial court did not err in admitting the victim’s (G) preliminary exam testimony at trial where she was unavailable under MRE 804(a)(4). Further, under the circumstances, the district court did not err in allowing G to testify remotely at the preliminary exam. In addition, the trial court did not err in excluding defendant’s proposed other acts evidence about embezzlement allegations against G’s brother (GG) as irrelevant, and doing so did not violate defendant’s right to present a defense. Finally, the trial court did not abuse its discretion by permitting testimony that defendant tried to flee or resisted arrest. Thus, the court affirmed her convictions of embezzlement of a vulnerable adult in the amount of $50,000 or more but less than $100,000, embezzlement of a vulnerable adult in the amount of $1,000 or more but less than $20,000, using a computer to commit a crime, retaining a financial transaction device without consent, and failing to file tax returns. Defendant contended she was unable to properly cross-examine G at the preliminary exam because G “appeared via remote videoconferencing software.” But the record showed “defense counsel cross-examined [G] over a period spanning two days. Defense counsel asked [G] to review copies of a series of cashed checks from her personal banking account and to determine whether she had authorized payment of those funds. At trial, jury members were given copies of the exhibits so that they could follow along with” G’s testimony. Defendant failed to explain “what additional questions or topics she wanted to raise with [G] that were not addressed at the preliminary” exam. The court found that the record supported “the conclusion that [G] was subject to full cross-examination.” As to allowing her to testify at the preliminary exam remotely, AO No. 2020-6 and MCR 6.006 permitted the video testimony. As to the exclusion of defendant’s proposed evidence about GG, the fact he “may have taken money from the box after he obtained access to it would not make it more or less probable that defendant had previously taken money from the box, that she failed to put money into the box (as she claimed to have done), or that she wrongfully obtained money from [G] by other means.”
Claims for damages & declaratory relief under the Michigan Regulation of Collection Practices Act (MRCPA), Article 9 of the Michigan Occupational Code (MOC), & the Michigan Consumer Protection Act (MCPA); Independent action under MCR 2.612(C)(3) to set aside a default judgment; Waiver; Asset Acceptance, LLC (AAL)
Concluding plaintiff-Brackens “waived any claim for an evidentiary hearing or trial on his independent-action count to set aside” a default judgment previously entered against him, the court affirmed summary disposition for defendant-AAL on that count. It also upheld summary disposition for AAL on his claims under the MRCPA, MOC, and MCPA. AAL obtained the default judgment against plaintiff after it purchased a credit card account. The court noted “the trial court was prepared to ignore any res judicata or collateral estoppel argument posed by AAL, was prepared to disregard AAL’s argument that there was no genuine issue of material fact with respect to the independent-action count under MCR 2.612(C)(3), and was prepared to give Brackens an evidentiary hearing on the validity of the process of service and effectively resolve the independent-action count.” But he did not take any steps to pursue its “offer of an evidentiary hearing. None. Perhaps Brackens declined to do so on the belief that the trial court would grant him summary disposition on the independent-action count under MCR 2.116(I)(2), but, if true, it was a decision with consequences. Even as late as the second summary disposition hearing . . . the trial court expressed that it would still consider conducting an evidentiary hearing if requested, and counsel for Brackens remained silent.” Thus, the court let stand the ruling granting AAL summary disposition of the independent-action count. As to his MOC claim, the record showed “AAL was not acting as a ‘collection agency’ in seeking payment from Brackens; rather, AAL was engaged in collecting or attempting to collect a claim owed or due or asserted to be owed or due to AAL itself.” Further, he acknowledged that it was “not ‘licensed’ as a collection agency.” Thus, his MOC claim failed as a matter of law. The court also found he did not have a valid claim under the MRCPA, noting among other things that absent “an allegation that MRCPA liability arose because AAL was a ‘regulated person,’ [he] failed to state a cause of action for alleged violations of MCL 445.252.” Finally, the trial court dismissed his MCPA claim based on the exception in MCL 445.904(1)(a) and Brackens effectively did “not challenge this reasoning on appeal.”
PIP benefits under the No-Fault Act (NFA); Claim for PIP benefits that exceeded the fee schedule provisions in MCL 500.3157; Andary v USAA Cas Ins Co; MCL 500.2111f
In this “claim for PIP benefits that exceeded the fee schedule provisions delineated in MCL 500.3157,” the court concluded “that the trial court erred in denying [defendant-insurer’s] motion for partial summary disposition because all relevant events, comprised of policy renewal, accident, injury, and treatment, occurred after the statutory enactment of the amendments to the” NFA. Following an auto accident, plaintiffs-guardian and conservator for protected individual RD contended the fee schedules in MCL 500.3157 did not apply to services provided to RD after 7/1/21. “The plain language of MCL 500.3157 provides that the fee schedules apply to treatment or training rendered after” 7/1/21. To avoid application of the 7/1/21 fee schedule caps, plaintiffs contended Andary found the “caps in MCL 500.3157 were inapplicable.” Contrary to their claim, “the Andary Court concluded that the amendments to the [NFA] applied at the earliest ‘to those individuals who were injured while covered by an insurance policy issued on or after [6/11/19],’ and at the latest, applied ‘to those individuals who were injured by an insurance policy issued after [7/1/20], that incorporated the requirements of the 2019 amendments.’” The Andary Court did not determine, as plaintiffs alleged, “that it could not apply to their policy that was issued on [10/1/19] because the amendments . . . were only applied to policies issued after [7/1/20]. Our review of MCL 500.2111f reveals that it required an automobile insurer in Michigan to file premium rates for PIP coverage to the insurance director before [7/1/20].” The court found that its “disposition of this matter is not solely contingent upon MCL 500.3157 or MCL 500.2111f. Rather, because PIP benefits required by the [NFA] arise from both statutory and contract law, we must examine whether the injured person is covered under the terms of a no fault policy and the applicable PIP benefits.” The accident occurred on 10/25/19, “24 days after the policy was in effect. The amendments to the [NFA] took effect on [6/11/19]. Therefore, at the time of the accident, the amended [NFA] applied. The scope of available PIP benefits vested when the accident occurred on [10/25/19].” The court noted that under “Michigan insurance law, the rights and obligations of the parties vest at the time of the accident. But, a PIP benefits claim for a specific amount of money to pay for medical services does not accrue until the expense is actually incurred.” The court found that “although the amendments to the [NFA] took effect on [6/11/19], MCL 500.3157(2) set forth a reduction in the amount of the benefit covered contingent on the date the service was performed for treatment rendered after [7/1/21] and before [7/2/22], MCL 500.3157(2)(a) covered 200% of the Medicare rate. Defendant presented documentary evidence addressing the date of the service provided, the bills reflecting the fee charged, the Medicare fee scheduling price, and the computed benefit amount premised on the Medicare schedule. Plaintiffs did not challenge defendant’s calculation of the covered benefit amount under the amended” NFA. Reversed and remanded for entry of an order granting defendant’s motion for partial summary disposition.
Insurer priority dispute; Motion to reopen the case; Finality of an order; MCR 2.604(A); Appellate jurisdiction; MCL 600.308(1); MCR 7.203(A)(1); Waiver; The Cadle Co v City of Kentwood; Distinguishing a motion to reopen the case from a motion for relief from judgment; MCR 2.612(C); Comparing Peterson v Oakwood Healthcare, Inc
The court held that the trial court’s order “was a final order for purposes of MCR 2.604(A) and MCR 7.202(6)(a)(i)5 because, with [appellant-AAA’s] reimbursement claim having been waived, it disposed of all the remaining claims in need of adjudication.” It also held that the trial court did not err in “applying MCR 2.612(C), and the time constraints imposed by subrule (C)(2), to AAA’s motion to reopen the case.” Plaintiff was injured when he was struck by a car while riding a motocross bike. The car was owned by AAA’s insured. Plaintiff was uninsured, but lived with his mother, who was insured by appellee-Home-Owners. AAA filed a third-party complaint against Home-Owners. The trial court ultimately granted summary disposition for AAA, finding Home-Owners was highest in priority. AAA and Home-Owners later indicated they had reached an agreement, and the trial court entered judgment for plaintiff and against Home-Owners, indicating it was a final order and closed the case. In a prior appeal, the court affirmed the trial court’s rulings as to plaintiff’s domicile and the nature of the motocross bike. AAA then filed a motion to reopen the case, arguing that its third-party complaint included a claim for reimbursement that was never adjudicated. The trial court found the motion was effectively a mislabeled motion for relief from judgment and denied it as untimely. The court rejected AAA’s claim that the trial court’s order “was not final and should not have resulted in closure of the case because it did not adjudicate all the claims and all the rights and liabilities of all the parties.” AAA participated in entry of the “order with full understanding that (1) it was being submitted as a final order; (2) the order bore the language required by MCR 2.602(A)(3) indicating that it was a ‘final order and closes the case’; and (3) Home-Owners intended to pursue a claim of appeal from the order to challenge the trial court’s earlier rulings” on the priority dispute. This last point was the most significant because Home-Owners could only claim an appeal by right from the order “if it was the first order to dispose of all the claims and adjudicate the rights and liabilities of all the parties. This fact should have been manifestly apparent to AAA given this Court’s previous denial of Home-Owners’s interlocutory appeal.” Thus, by clear implication, “AAA was waiving its right to adjudication of its unresolved reimbursement claim.” It also asserted the trial court erred by misconstruing its motion to reopen as a motion for relief from judgment. The court concluded AAA was seeking relief from the relevant portion of the order, “regardless of whether it had any complaint regarding the balance of the order granting partial summary disposition and judgment in favor of plaintiff.” Affirmed.
Prescriptive easement; Mulcahy v Verines; “Continuous” use of the property; Von Mending v Strahl; “Adverse or hostile” use; Inadmissible hearsay; MRE 602, MRE 801(c), & MRE 802; Ykimoff v Foote Mem’l Hosp
The court held that the trial court did not err by finding defendant had a prescriptive easement over the driveway at issue. Plaintiff filed this action against defendant seeking to quiet title to the driveway. Defendant filed a counterclaim for adverse possession, acquiescence, and prescriptive easement. The trial court found defendant established he had a prescriptive easement to use the driveway before plaintiff purchased the property from the previous owner, and that defendant’s “undisputed evidence showed that he had used the driveway for almost eighteen years before plaintiff’s purchase of” the property. On appeal, the court rejected plaintiff’s argument that the trial court erred by finding defendant established the elements of a prescriptive easement. “In light of the fact that defendant’s documentary evidence was unrebutted by any admissible evidence from plaintiff . . . the trial court did not err by holding that defendant’s use of the driveway had been hostile or adverse for the requisite 15-year prescriptive period.” Plaintiff also briefly argued that “defendant’s use of the driveway was not continuous, but only support[ed] that argument with statements from affiants who first observed defendant’s use of the driveway long after the prescriptive period had passed.” Plaintiff offered “no evidence to counter defendant’s sworn statement that his prior use of the driveway was continuous considering the nature of the property as a driveway for a residential home.” Affirmed.
Child’s best interest; “Relative” placement; In re Mays; In re Olive/Metts Minors; In re Mason
Regardless of factors weighing in favor of termination, the court vacated the trial court’s best-interest determination where as “part of its best-interest ruling, the trial court relied on an outdated definition of ‘relative,’ which led to [it] failing to consider whether termination was in ARW’s best interests in light of her placement with a relative in contravention of established caselaw,” and remanded. Shortly after Mays, this court held in Olive/Metts “that a trial court’s failure to explicitly consider a child’s placement with a relative amounted to clear error requiring vacatur of the lower court’s best-interest analysis.” The court held that “ARW’s father was clearly a ‘relative’ under this definition. Yet the trial court mistakenly considered ARW’s father a ‘non-relative.’ This resulted in [it] failing to explicitly consider ARW’s placement with a relative as part of its best-interest analysis contrary to [Mason,] rendering the factual record ‘inadequate to make a best interests determination,’ ‘which requires us to vacate the court’s best-interest analysis and remand for further proceedings.’” The DHHS contended “that the trial court was not required to consider ARW’s relative placement because, unlike in” Mason and Olive/Metts, termination here was sought in the initial petition. “This difference is significant, the DHHS claims, because [Mason] and [Olive/Metts] relied on MCL 712A.19a(8)(a).” While it was “true that this case did not proceed to a termination hearing under this subsection, the DHHS does not adequately explain why that is significant.” Mason and Olive/Metts “relied on MCL 712A.19a(8)(a) (previously subsection (6)(a)) because that subsection makes plain that the Legislature considers a child’s placement with relatives to be a factor that can strongly weigh against termination. The subsection states that, even if a trial court would otherwise be required to initiate termination proceedings, it is not required to do so if the child is in a relative placement. Both cases extrapolated from this that placement with relatives ‘was an explicit factor to consider in determining whether termination was in the children’s best interests.’” The court found that nothing “about the text of MCL 712A.19a(8)(a) suggests that it is identifying a factor that is required to be considered when determining whether termination is in a child’s best interests. That was simply a reasonable inference that the courts drew from the statute’s text—if placement with a relative is so significant that a trial court can decline to initiate termination proceedings that it would otherwise be required to order, then trial courts should be required to take that placement into account when deciding whether termination is in the child’s best interests. This reasoning holds true for any best-interest analysis, regardless of the manner in which termination proceedings were initiated.” Thus, the court rejected “the DHHS’s invitation to carveout an exception to the rule that a trial court must consider a child’s placement with relatives as part of its best-interest analysis.” The court retained jurisdiction.