Negligence Law Section
Issue No. 3 April 2011
Message from the Chair
David E. Christensen
David Christensen

David E. Christensen
Gursten, Koltonow, Gursten, Christensen & Raitt PC

The attack on the civil justice system is intensifying in Lansing. This column should be a clarion call to all Michigan negligence lawyers who enjoy what they do. After reading it, I hope each of you will be alarmed enough to get even more involved in battling the forces that want to destroy the right to jury trial.

If you have not yet heard, many members of Michigan's legislature have plans to further gut Michigan's constitutional right to jury trial, and bail out the highly profitable insurance industry and other special interests with taxpayer dollars. Bills that grant special interests immunity for their unlawful negligent conduct that maims or kills innocent people have been flooding into the Senate and House at alarming rates.

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The Murky Waters of ERISA Preemption: The Evolving Status of Public Employees

Troy Haney
Troy Haney

Troy W. Haney

As of the present writing, one of the most heated debates in American domestic politics involves the extent to which public employees will be called upon to bear a substantial disproportionate burden of the broad and financial difficulties of state governments. The battle has been most directly joined in Wisconsin, where large numbers of demonstrators have for weeks now ringed the capitol building in to protest the efforts of the new Republican governor to eliminate the collective bargaining rights of public workers. However the struggle shakes out politically, it is likely that the courts will be the final arbiter of many of the issues presented. Moreover, this political struggle is likely to collaterally inform broader issues involving public employees, possibly including their rights to benefits under the Employee Retirement Income Security Act of 1974 (ERISA). Practitioners in this complex area of federal statutory law who are representing disability claimants who are public employees must remain aware of the salient issues surrounding such claims.

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Internet Jurisdiction

Kevin Moffatt
Kevin Moffatt

Kevin L. Moffatt
Martin, Bacon & Martin PC

Introduction

If you never explored a website or shopped online, then I doubtyou own or have access to a computer. If so, it is time to replace your rotary dial telephone with a desktop, laptop, tablet, smartphoneor other programmable device that will allow you to search the Internet. ComScore, Inc., a global leader in measuring the digital world, recently reported that online retailers sold $142.491 billion worth of merchandise in 2010, up from $129.797 billion in 2009.# With the advent of the Internet, e-retail has become a significant business market while e-commerce continues to grow. Companiescan sell their products and services worldwide with a click of a mouse. What does e-commerce have to do with your practice and how may it affect your clients? Two words: Internet jurisdiction.

Personal Jurisdiction

The Internet is an interstate and international network connecting millions of computers. E-tailers and retailers alike, through their websites, have a presence on the World Wide Web. However, does a website alone subject its proprietor to personal jurisdiction in courts where the cite is accessible? More specifically, can Internet activity constitute sufficient contacts for personal jurisdiction in Michigan?

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Earl J. Cline Award

This award is presented in recognition of superb skills as a judge/attorney in the field of negligence law and dispute resolution.

It shall be the purpose of this organization:

  • To preserve the jury system and promote the fair and just administration of negligence law.
  • To advance professional and ethical standards on the part of negligence law practitioners.
  • To preserve and promote trial advocacy skills in the practice of negligence law.
  • To encourage attorneys to enter the field of negligence law.
  • To recognize by way of awards and scholarships excellence in tort law and outstanding contribution to the practice of the profession.

Prior Recipients
2003—Honorable Michael L. Stacey
2004—Samuel A. Garzia
2005—Frank W. Brochert
2006—George J. Bedrosian
2007—Honorable Pat Donofrio
2008—Honorable Robert J. Colombo Jr.
2009—George Googasian
2010—Kathleen L. Bogas
2011—Brian D. Einhorn

Attorney Conducted Voir Dire: Where Oh Where Have You Gone?

Ven Johnson
Fieger, Fieger, Kenney and Johnson PC

Ven Johnson
Ven Johnson

In the last few years I have had the pleasure of trying cases in the States of Arizona, California and Indiana, as well as numerous cases throughout the State of Michigan including in Calhoun, Eaton, Ingham, Macomb, Monroe, Oakland, St. Clair and Wayne Counties. The only judges who prevented the parties from conducting their own voir dire were from the Detroit Metropolitan Counties. Practitioners on both sides of the "v" are virtually in unanimous agreement that attorney-conducted voir dire is not only preferable but also necessary to obtain a fair trial. Paul Manion and Matt Thomas of the Rutledge, Manion, Rabaut, Terry & Thomas PC, wrote an excellent voir dire article last year that appeared in Michigan Lawyers Weekly in the November 29, 2010 issue. They conclude, as I do, that attorney-conducted voir dire is the best and perhaps ONLY way for the parties to ensure that they have a jury that is truly "fair and impartial" and whose deep-down prejudices, explicit and implicit, have been thoroughly probed, examined and hopefully exposed.

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Amy TrippAmy Tripp
Author of the Special Needs Chapter of ICLE's Advising the Older Client or Client with a Disability, Fourth Edition and selected as a Rising Star in both 2008 and 2009 by Super Lawyers Magazine.
Insurance Coverage Advisor
Hal O. Carroll
Hal O. Carroll

Hal O. Carroll
Vandeveer Garzia PC

The Contractual Liability Exclusion

In the last issue, we discussed the intentional act ("expected or intended injury") exclusion, which is exclusion number 1 in most general liability policies, and serves the obvious purpose of carving out events that are by their nature not supposed to be insured or insurable. The purpose of the contractual liability exclusion, which is usually exclusion 2, is not quite as clear.

It begins broadly by excluding coverage for bodily injury or property damage "for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement." That's simple enough and it's pretty broad, but it is followed by a peculiar exception where the contract obligation is created by an "insured contract," and that is where the real work is done. "Insured contract" is a defined term, and the definition goes on for half a page, with its own set of conditions and exceptions.

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Photos
On February 16, 2011 Justice Brian Zahra attended the Negligence Council Meeting.

David Christensen, Justice Brian Zahra, Steven Galbraith, Paul Manion

Michael Sullivan, Tom Waun, Anne Randall, Justice Brian Zahra, David S. Mittleman

Spring Seminar New Orleans, May 5-8, 2011

Sponsors

Bienenstock Court Reporting & Video—Lauren Bienenstock

Lawsuit Financial Corporation—Mark M. Bello

Leading Technologies, LLC, Consultants and Forensic Experts—Robert Yano

Legal Copy Services, Inc.—Beth Cannon

Daniel P. Makarski

Alternative Dispute Resolution

Secrest, Wardle, Lynch, Hampton, Truex & Morley PC

Ringler Associates—Mark Vogel

IN THIS ISSUE
Chair's Message
Murky Waters of ERISA Preemption
Internet Jurisdiction
Earl J. Cline Award
Attorney Conducted Voir Dire
Insurance Coverage Advisor
Photos
Executive Committee
Brian D. Einhorn, 2011 Earl J. Cline Award Winner
Legal Update

State Bar of Michigan Negligence Council

CHAIR
David E. Christensen
Gursten, Koltonow, Gursten, Christensen & Raitt PC

VICE CHAIR
Paul J. Manion
Rutledge, Manion, Rabaut, Terry & Thomas PC

SECRETARY
Thomas W. Waun
Waun & Parillo PLLC

TREASURER
Steven B. Galbraith
Galbraith, Gordon & Penzien, P.C

COUNCIL
Jody L. Aaron
McKeen & Associates PC

Mark Bernstein
The Bernstein Law Firm

Ronald F. DeNardis
DeNardis McCandless & Miller

Jennifer M. Grieco
Neuman Anderson PC

Michael R. Janes
Martin, Bacon & Martin PC

Ven Johnson
Fieger Fieger Kenney Johnson
& Giroux PC

David Mittleman
Church Wyble PC

Gerald V. Padilla
Padilla-Kostopoulos

Anne L. Randall
Portnay & Roth PC

Michael J. Sullivan
Collins, Einhorn, Farrell & Ulanoff PC

EX OFFICIO
Jose' T. Brown
Cline, Cline & Griffin PC

COMMISSIONER LIAISON
Brian D. Einhorn
Collins, Einhorn, Farrell & Ulanoff PC

LOBBYIST
Todd N. Tennis, Lansing

EDITORS
Anne L. Randall
Michael J. Sullivan

EXECUTIVE DIRECTOR
Madelyne Lawry

Advertise in this publication—contact Madelyne Lawry,
Advertising Information

Brian D. Einhorn, 2011 Earl J. Cline Award Recipient

Brian Einhorn
Brian Einhorn

Brian is a defense lawyer who has tried so many cases that his count can only be estimated as being "in the hundreds." In the last twenty-five years of his practice, many of the cases he has tried have been in defense of fellow lawyers. For the most part, any defense lawyer can win the cases that are meant to be won. But Brian is known for also winning the cases that he wasn't "supposed" to win.

Brian is skilled at developing a case through the pre-trial phase. He is so skilled at trials (and so willing to try cases) that this often enables him to secure very favorable settlements for his clients. And because of his trial skills, he is regularly retained by insurers or clients in the very few weeks before a case will be tried.

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Lansing Free for All

Todd Tennis
Captiol Services, Inc.

Todd Tennis

After several years of partisan gridlock in Lansing which made it next to impossible to pass any legislation dealing with negligence or torts, the Republican sweep of 2010 has given them solid control of every branch of Michigan government. This philosophical shift in state government is most notably being reflected in tax policy, state spending issues and collective bargaining rights. However, while we have yet to see truly sweeping legislation introduced in the negligence law area, several bills are moving through the legislature that will each have an impact on section members.

There is a rash of bills seeking to expand limits on liability for a variety of settings. House Bill 4111 (Rendon, R-Lake City) would extend governmental immunity to volunteers who do service for the Department of Natural Resources. Thanks to an amendment by Representative Matt Huuki (R-Atlantic Mine), those volunteers can now also be armed. Senate Bill 230 (Marleau, R-Lake Orion) would grant immunity from liability for any damages to a passenger arising from the negligence of a volunteer driver working for a non-profit agency unless the negligence constituted willful and wanton conduct. House Bill 4350 (Haines, R-Waterford) would extend the current limitations on liability granted to volunteer physicians in free clinics to physicians who are being paid to work in free clinics. None of these bills have passed the Legislature yet, but they may well have by the time this article goes to print.

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Negligence Law Section
Northern Michigan Events

Turtle Creek Casino
Williamsburg, Michigan
and The Kingsley Club

Kingsley, Michigan

Sunday, July 31, and Monday, August 1, 2011

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Negligence Law Section
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Grand Ledge MI 48837
E-mail: neglawsection@comcast.net