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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Underinsured motorist benefits; Whether the insurance policy was ambiguous
Finding no errors warranting reversal, the court affirmed the trial court’s grant of summary disposition to defendant-insurer under MCR 2.116(C)(10) on “the issue of whether plaintiffs were entitled to underinsured motorist benefits under their policy” issued by defendant. Plaintiffs were involved in an auto accident. They argued that “the insurance policy at issue was ambiguous as it related to the scope of coverage for underinsured motorist benefits.” They asserted “the policy states that defendant would become liable to pay if the at-fault party’s limits of liability become exhausted because of judgment or settlement.” Plaintiffs contended “this provision is in ‘disharmony’ with the provision only requiring defendant to pay if plaintiffs are ‘legally entitled’ to recovery.” They claimed the policy was “ambiguous because it only obligates defendant to pay underinsured motorist benefits that plaintiffs are ‘legally entitled to recover,’ but at the same time requires payment even when there is a settlement or judgment.” The court disagreed. “The two provisions do not present any ambiguity; rather, the operation of the two ‘disharmonious’ provisions simply left plaintiffs without the additional coverage when viewed in light of the stipulated order.” Their fundamental problem was “that they do not read the two provisions together, as the language of the policy itself directs.” While the limits of liability of the individual they claimed was at fault (M) “were exhausted, thus satisfying the first condition of the second provision, plaintiffs were not ‘legally entitled’ to any additional damages from [M] under the stipulated order, which stated that plaintiffs ‘will cap their recovery, including costs, interest, and attorney fees, at Defendant’s $20,000 per person, $40,000 per accident policy limits in exchange for acceptance of the Summons and Complaint by State Farm Mutual Automobile Insurance Company.’ And because defendant’s liability under the underinsured motorist coverage provision flowed from [M’s] ultimate liability, the underinsured motorist provision did not apply.” The court found that while “plaintiffs may be dissatisfied with the agreement they made and believe the benefit was not worth the cost, the agreement—i.e., the stipulated order—is clear that [they] traded a limitation on their damages in exchange for acceptance of service of the complaint. The legal effect of that bargain also meant that plaintiffs could not avail themselves of the additional coverage provided by defendant’s insurance policy, because [they] were no longer legally entitled to recover more from” M.
Sentencing; Scoring of OV 3 (death occurred during a commission of a crime and homicide is not the sentencing offense); MCL 777.33(1)(a) & (2)(b); Principle that a trial court can only consider the sentencing offense when scoring OV 3; People v McGraw; Principle that the offense of delivery of a controlled substance is complete when the delivery is complete; Resentencing; People v Francisco
Holding that the trial court erred by scoring OV 3 for a fatal overdose that followed a delivery, the court vacated defendant’s sentence and remanded for resentencing. He pled guilty to delivery of a controlled substance (heroin) less than 50 grams in exchange for dismissal of a possession charge and a delivery-causing-death charge. In sentencing him, the trial court scored OV 3 at 100 points on the basis of the dismissed delivery-causing-death charge before sentencing him near the top of the guidelines range. On appeal, the court agreed with defendant that the trial court’s erroneous scoring of OV 3 necessitated resentencing. "When defendant placed the heroin in the victim’s mailbox, the crime of delivery was complete. Anything occurring after, including [the victim’s] fatal overdose, should not have been considered by the trial court for scoring OV 3.” The court did “not disagree with the prosecution’s arguments that it is more likely than not that but for” this delivery, the victim’s death would not have occurred.” But its issue here was “not one with causation so much as . . . with the temporal limitations under the law.” In other words, even if the victim “overdosed only a few hours later, rather than the following day, the crime of delivery was still complete before the overdose occurred.” Because scoring OV 3 at 0 points “lowers his minimum guidelines sentencing range to 0-16 months’ punishment under the sentencing grid for Class D offenses,” he is entitled to resentencing.
Appointment of a foreign language interpreter; MCR 1.111(B)(1) & (F)(2); Motion for Special Immigrant Juvenile (SIJ) determination; SIJ classification; Factual findings; MCR 7.216(A)(7); In re Velasquez; In re Guardianship of RH (Unpub)
The court vacated the order of the probate court and exercised its discretion to make each finding pertinent to DRRR’s SIJ status by a preponderance of the evidence, and find that DRRR was born on 5/25/06 in Guatemala, is under 21 years old, and is an unmarried minor under the laws of the State of Michigan. The court further found: (1) DRRR was declared dependent on the probate court through guardianship proceedings resulting in the appointment of appellant-guardian (her sister); (2) Reunification with her father is not viable due to neglect and abandonment, and reunification with her mother is not viable due to neglect; and (3) her “best interests would not be served by returning to her country of origin, Guatemala.” The court found “that the trial court erred when it failed to allow the hearing on [5/20/24] to proceed with an interpreter offered by appellant.” It concluded that it “made several critical errors, resulting in DRRR being denied meaningful access to justice[.]” Appellant requested “that this Court make the factual determinations for DRRR’s SIJ classification pursuant to MCR 7.216(A)(7) and” Velasquez. The court held that because “the record provides the necessary evidence and because it promotes the interests of justice to do so, we will make the predicate factual findings pertinent to” her SIJ status. It found “by a preponderance of the evidence that DRRR’s reunification with her father and mother was not viable due to abandonment and neglect by her father and neglect by her mother.” It also found by a preponderance of the evidence that her “best interests would not be served by returning to her country of origin, Guatemala. The record established that DRRR was required to work with her mother every day of the week in Guatemala, without personally receiving compensation, preventing her from performing the ordinary tasks of a student, such as studying and furthering her education.” Also, she was “not provided with adequate food and clothing in her country of origin.” The record demonstrated “that, in the United States, DRRR’s sister provides her food, clothing, and medical care, and facilitates her desire to pursue her education. The option between her country of origin and the United States presents a stark contrast. Accordingly, ‘[w]hether using the child custody factors, adoption factors, or a combination of factors,’ the record supports our finding that it is not in DRRR’s best interests to return to Guatemala.” Instead, the court found that “it is in her bests interests to remain in appellant’s custody in the United States.”
Stepparent adoption; Termination of parental rights under MCL 710.51(6) of the Michigan Adoption Code; In re NRC; Personal jurisdiction; MCL 600.701(1) & (2)
The court held that the trial court properly: (1) denied respondent-biological father’s motion for summary disposition because general personal jurisdiction over him was satisfied under the first two sections of MCL 600.701, and (2) terminated his parental rights. Petitioners-biological mother and stepfather initiated adoption proceedings asking the trial court to terminate respondent’s parental rights and allow the stepfather to adopt the child. On appeal, the court rejected respondent’s argument that the trial court failed to prove it could exercise personal jurisdiction over him with respect to the adoption and termination proceedings. First, he “did not support his motion for summary disposition with documentary evidence, merely stating that he was moving to dismiss ‘for lack of personal jurisdiction.’ Nor did he provide any documentary evidence in his reply. Instead, [he] asserted he was ‘domiciled in the Kingdom of God’ at the time the petition was filed, and that ‘any current or past use of an address or zip code ha[d] no [e]ffect whatsoever on [his] sovereign status.’ These unsupported statements are insufficient to overcome petitioners’ allegations.” Further, he “attended the hearing on petitioners’ motion for alternative service in person, highly suggesting that he was present in the state at the time process was served, which satisfies MCL 600.701(1).” Moreover, although he “claimed he was ‘domiciled in the Kingdom of God,’ he did not deny residing at” an address where petitioners attempted to serve him, “asserting that his ‘current or past use of an address or zip code’ had no bearing on his domicile.” The court also rejected his claim that the trial court erred by terminating his parental rights, concluding “the threshold requirements of MCL 710.51(6)” were met. Given his noncompliance with the child-support order, the trial court did not err by finding “his one-time payment did not amount to ‘a considerable quantity of the payments required by the order.’” As such, it “properly determined that MCL 710.51(6)(a) was satisfied by clear and convincing evidence.” Further, his only communication with the child “was to send him a calendar and ‘possibly one or two’ other things in the mail.” And he made no “attempt to reinstate parenting time with [the child], a process that was provided for and outlined in the judgment of divorce. Because [he] regularly and substantially failed to contact or communicate with [the child], despite having the ability to do so, the trial court properly determined that MCL 710.51(6)(b) was satisfied.” Affirmed.
First-party action under the No-Fault Act (NFA); Personal protection insurance (PIP) benefits; “Incurred” expenses; Shanafelt v Allstate Ins Co
Holding that the trial court properly dismissed plaintiff-estate’s claims for PIP benefits as to some claimed medical expenses because they were not incurred but erred in dismissing others, the court affirmed in part, reversed in part, and remanded. Plaintiff’s decedent (Richards) was seriously injured in a car crash and later died. He had a no-fault auto insurance policy through defendant-Grange. Plaintiff alleged that Grange did not pay PIP benefits on Richards’ behalf. The trial court partially granted Grange summary disposition. The issue on appeal was “whether the medical expenses associated with Richards’ treatment at” nonparties-Spectrum “Hospital, DMC Rehabilitation Institute of Michigan, and Harper Hutzel Hospital were ‘incurred.’” The court found that “it is clear that an expense is incurred when the insured accepts medical treatment and is charged for the services provided, but that the expense does not remain ‘incurred’ indefinitely. Rather, once the insured is no longer legally responsible for the expense, then [it] ceases to be ‘incurred’ under” the NFA. Spectrum’s billing ledger reflected it had “written off the costs associated with Richards’ care” (apparently twice,) and plaintiff offered “no evidence to refute that the Spectrum bill has been written off so as to relieve him of any legal obligation to pay the bill either directly or through any available insurance.” Given the uncontroverted evidence “that plaintiff has no legal responsibility for the Spectrum bill,” the court held “that the expenses were not incurred and are not subject to payment by” Grange. Thus, the trial court did not err in “summarily dismissing this part of plaintiff’s claim.” But the circumstances as to the other two providers were different. While “the billing ledgers reflect a $0 balance, plaintiff produced evidence in the form of an affidavit from” a DMC billing representative (P) that contradicted them. P “averred that, ‘at this time,’ those medical providers were expecting payment from Grange and, as a result, they were not directly pursuing their right to payment from plaintiff. As explained in Shanafelt, . . . a plaintiff’s liability for the expenses from those providers is not altered merely because the providers expect payment from the insurer rather than from” plaintiff. Thus, the trial court erred in summarily dismissing the claims as to these providers.
Alleged violations of the Open Meetings Act (OMA); Failure to state a claim; Injunctive relief; “Ongoing violation”; CBACS v Algonac Cmty Sch; Request for the appointment of a special master; Types of relief available under the OMA; Motion to disqualify the trial court judge; MCR 2.003(C)(1)(b); The appearance of impropriety standard in Canon 2 of the MI Code of Judicial Conduct; Canon 7; Effect of campaign contributions to City Council candidate committees; State Bar of MI Ethics Opinions JI-145 & JI-30; Adair v State Dep’t of Educ
The court held that “plaintiff failed to state a viable claim for injunctive relief under the OMA” and that the trial court judge and the Chief Judge “both correctly concluded that there is no basis for” disqualifying the trial court judge. Thus, it affirmed summary disposition for defendant-City in this case alleging OMA violations. Plaintiff “sought injunctive relief and an appointment of a master to monitor the City’s compliance under the OMA[.]” The court found that the trial court correctly determined plaintiff did not state a viable claim for injunctive relief given that he did not allege “any facts to suggest that an ongoing violation or real and imminent danger of irreparable injury occurred. Plaintiff’s complaint only alleges violations of the OMA on the basis of the single closed session at the [10/16/23] City Council meeting, claiming the City failed to properly identify the purpose for the closed session during the meeting and in writing in the meeting minutes. Beyond this, [he] does not allege facts to support any assertion that any OMA violations occurred at any other meeting before or after it. The error at hand was also rectified in the meeting minutes.” His allegation that the alleged violations were part of the City’s “‘practices of conducting government business in secrecy’” was not supported “by any facts to indicate the City engages in any practice of conducting business in secrecy. These allegations alone are not enough to plead a pattern of ongoing violations to state a claim for injunctive relief.” The court also noted that the OMA “makes no mention of appointment of a special master” and that he abandoned his request for one. As to his motion for disqualification, “there was neither a serious risk of actual bias impacting due process rights, nor the appearance of impropriety under MCR 2.003.” As to the latter, he relied on Canon 7 and cited “the trial judge’s nominal campaign contributions to two City Council candidate committees, and attendance at a fundraiser for one of the then-candidates[.]” The court found that Canon 7 did not support his argument and that the judge’s “actions, without more, do not amount to improper conduct.”
Appointment of a successor guardian ad litem (GAL); MCR 3.916(A); Ineffective assistance of counsel; Failure to advise respondent of her Fifth Amendment rights; Failure to investigate/obtain an expert witness; Denial of an oral motion for substitution of lawyer
The court held that the trial court did not abuse its discretion in declining to appoint a successor GAL. Also, respondent-mother could not establish that her lawyer provided constitutionally deficient assistance, and the trial court did not abuse its discretion when it denied her request for the substitution of her lawyer. Thus, the court affirmed the trial court’s order terminating her parental rights to her children. Respondent argued “that the trial court erred by failing to immediately appoint a successor [GAL] to represent her interests after the first GAL withdrew due to scheduling conflicts.” The trial court “noted that, in the absence of a motion from respondent or petitioner, it would not appoint a successor GAL ‘at this time.’ [It] explained that respondent was represented by a court-appointed lawyer ‘who has not raised any concerns about the ability to communicate with [her].’ The [trial] court found that there was no ‘need in this matter’ for the appointment of a successor GAL.” The court found no abuse of discretion given “that there was nothing on the record indicating that there was a need for a replacement GAL at the time that the first GAL withdrew[.]” As to her ineffective assistance claims, the court concluded “that respondent’s lawyer’s performance fell below an objective standard of reasonableness when she failed to advise respondent of her constitutional rights before she testified.” But it determined that respondent “failed to establish that, but for her lawyer’s deficient performance, the outcome of the child-protective proceedings would have been different.” As to the substitution of counsel issue, the denied request “was respondent’s third such oral request. The [trial] court had previously accommodated her requests. In denying” this one, it “considered the fact that the request was made in the middle of the ongoing adjudication trial, and granting a substitution would prejudice respondent and cause an undue delay in the proceedings.”