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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Employment-discrimination claim under the Elliott-Larsen Civil Rights Act (ELCRA); MCL 37.2202(1)(a); Whether an independent contractor can bring a discrimination claim under the ELCRA; McClements v Ford Motor Co; City of Wayne v Miller; Retaliation; MCL 37.2701; Hostile work environment; Public-accommodation claim; MCL 37.2302; Haynes v Neshewat
The court held that the trial court erred when it determined that plaintiff could not bring an employment-discrimination claim under ELCRA. It also held that the trial court erred by dismissing his retaliation, hostile work environment, and public-accommodation claims. Plaintiff filed a complaint raising race-based claims under ELCRA, including employment discrimination, a hostile work environment, and retaliation. Alternatively, he alleged a claim for discriminatory denial of a place of public accommodation. The trial court found plaintiff was an independent contractor, and not entitled to protection under ELCRA. It granted defendant’s motion for summary disposition, declined to rule on plaintiff’s substantive ELCRA claims, and denied his motion for reconsideration. On appeal, the court agreed with plaintiff that the trial court erred by granting summary disposition of his ELCRA claims based on his status as a nonemployee independent contractor. “Based on the holdings of McClements and Miller, plaintiff’s employment status was not dispositive of his ability to bring an employment-discrimination claim against defendant. Rather, the appropriate inquiry is whether plaintiff ‘can establish that the defendant affected or controlled a term, condition, or privilege of [his] employment.’” The trial court “erred by dismissing plaintiff’s employment-discrimination claim based on its determination [he] was a nonemployee independent contractor. Plaintiff’s employment status was not dispositive of his ability to bring an ELCRA claim against defendant, and the record supports that defendant affected and controlled the conditions or privileges of” his employment. Defendant “hired and paid plaintiff. Defendant, through its agents, dictated plaintiff’s job duties and the conditions of his work each time he arrived on the jobsite. Finally, defendant and its agents had the authority to hire and fire its workers, and ultimately terminated plaintiff.” As such, he “established ‘a genuine issue of material fact that [defendant] affected or controlled a term, condition, or privilege of [plaintiff’s] employment . . . .’” The court further found that the trial court erred by dismissing his retaliation and hostile work environment claims based on his nonemployee status. And because his “employment status is not dispositive of his public-accommodation claim, the trial court also erred by granting summary disposition” on this basis. Reversed and remanded.
Forum-selection clause; Dismissal under FedRCivP 12(b)(6); Whether the complaint plausibly alleged that the parties changed their forum-selection clause from Mexico to Michigan during the course of their transactions; Contract interpretation under Michigan law; Whether the court could affirm on the alternative ground of forum non conveniens
[This appeal was from the ED-MI.] The court held that plaintiff-VCST’s complaint plausibly alleged that Michigan was the proper venue because the parties had changed the original contract’s forum-selection clause from Mexico to Michigan during the course of their ongoing transactions. VCST agreed to ship a car part it made in Mexico to a plant in Mexico operated by defendants-BorgWarner. Their initial contract documents (including a Letter of Intent and Purchase Order) contained what the court referred to as the BW Mexico Terms, which included “a forum-selection clause pointing to a Mexican venue.” They conducted their transactions through a series of documents rather than “a ‘universal’ contract . . . .” VCST sued in Michigan for breach of contract, seeking over $28 million in damages. BorgWarner moved to dismiss the case under Rule 12(b)(6) based on the forum-selection clause in the BW Mexico Terms, and based on forum non conveniens. The district court granted dismissal based on the first argument and did not consider the forum non conveniens argument. On appeal, applying Michigan contract law, the court held that VCST “plausibly allege[d]” that during the course of their transactions, the parties had switched to a Michigan forum-selection clause. Their business arrangements were governed by “a series of documents, including a Letter of Intent, an Addendum No. 1, Quotes, Award Letters, and Purchase Orders. Many of these documents changed over time. Some also conflict with each other—a clear sign of ambiguity in the parties’ agreements.” Thus, the court held that it could not say at this stage “that BorgWarner has established that the BW Mexico Terms apply ‘as a matter of law.’” The court rejected BorgWarner’s request to affirm the district court based on the alternative ground of forum non conveniens, holding that “the same factual dispute that dooms the Rule 12(b)(6) motion also dooms this alternative request at this stage.” Reversed and remanded.
Domestic violence; Admissibility of the victim’s statement to a police officer under MCL 768.27c; Whether a statement is “testimonial”; Michigan v Bryant; Motion to stay the proceedings under MCR 6.126; The court’s remand power; MCR 7.216(A)(5)
The court held that remand was required for the trial court to review an officer’s body-camera footage and determine whether the victim’s statements to the officer were testimonial. Defendant was charged with a variety of crimes, including domestic violence, stemming from an altercation with the victim during a custody exchange of their three-year-old child, BM. After he was bound over, the prosecution moved to admit the victim’s statements to the officer under MCL 768.27c. The trial court denied the motion and excluded the statements, finding they “were not made to assist with an ongoing emergency but rather were made to assist with prosecuting defendant, and as such, were testimonial.” It also denied the prosecution’s motion for a stay under MCR 6.126 “on the basis that ‘an appeal would be frivolous because legal precedent is clearly against the prosecutor’s position.’” On appeal, the court noted that because body-worn camera footage was not introduced at defendant’s preliminary exam, the trial court’s “determination that the victim’s statements to police were testimonial was based only on the testimony of” the officer and the victim's mother. In the court’s view, “the body-worn camera footage is highly relevant for determining whether the victim’s statements to police were testimonial.” And because “there were no findings of fact regarding the body-worn camera footage, the existing record” was insufficient for appellate review. Reversed and remanded.
Sentencing; “Supervised release”; Whether the district court violated Article III by including mental-health treatment as a condition of supervised release; Whether the district court improperly allowed the probation officer to supervise drug testing; United States v Vaughn
The court affirmed the district court’s inclusion of mental health and drug treatment as conditions of defendant-Lockridge’s supervised release, holding that Article III was not violated by the district court’s assistance from the probation department. Lockridge pled guilty to meth distribution and was sentenced to 210 months in prison and three years of supervised release. The order of supervised release contained two conditions which he challenged. The first required that he obtain mental health treatment, and the second that he be treated for substance abuse. He claimed that these requirements violated Article III’s provisions regarding district court responsibilities because a probation officer, rather than the court, oversees them. The court reviewed the parameters of Article III as it pertains to the courts’ rights to “assistance” and affirmed the probations officer’s role in Lockridge’s sentence. It affirmed the district court’s authority to “accept[], modif[y], or reject[], the nonjudicial officers’ recommendations[,]” as long as “the Article III court remains in charge.” The court held that the district court was not required to specify how the requirements were to be met or whether the mental-health treatment was to be in-patient or outpatient, especially where it would be almost two decades before Lockridge could be released. At that time, his probation officer will make recommendations and present them to the district court, which will make the decision as required under Article III. As for his objections to a probation officer deciding how many drug tests he must undergo, the court explained that it had previously held in Vaughn that a “district court may allow the probation officer to take the first pass at the number of drug tests required by a special condition, so long as the court remains free to modify that choice on its own initiative or in response to a claim by the defendant.”
Custody; Counsel in a child custody proceeding; A civil litigant’s lack of representation; The trial court’s refusal to adjourn an evidentiary hearing pursuant to MCR 2.503(D)(1); The Child Custody Act (CCA)
The court found that even if defendant-mother “was entitled to counsel in the child custody proceeding, she” failed to show she was entitled to relief. It also concluded that the trial court did not abuse its discretion in denying her oral motion to adjourn the third day of the evidentiary hearing. Thus, the court affirmed the divorce judgment, which awarded plaintiff-father sole legal and physical custody of the parties’ children. Defendant asserted “she was deprived of her right to counsel when she was forced to proceed, in propria persona, in the midst of the evidentiary hearing after the trial court discharged” her attorney upon her request. The court noted that Michigan “courts have not explicitly recognized a parental right to counsel in child custody or guardianship proceedings.” But it has found “that a civil litigant’s lack of representation may entitle the party to legal recourse.” In this case, defendant “elected to discharge her counsel during an evidentiary hearing, and did not acquire substitute counsel for the remainder of the litigation. As [she] essentially deprived herself of her presumed right to counsel, she is not entitled to relief.” As to the denial of her motion to adjourn, “the trial court was within its discretion to find that defendant had not exercised due diligence in attempting to obtain alternate counsel before the evidentiary hearing and in failing to request an adjournment until the date and time set for the third hearing.” In addition, she failed “to indicate exactly what evidence was pertinent to the underlying matter that alternate counsel would have presented on her behalf.” The court also found that it was “not evident that an adjournment permitting [her] to retain alternate counsel would have yielded a different outcome. The trial court extensively relied on defendant’s own testimony and her conduct throughout the proceedings to determine her fitness as a parent and to resolve the majority of the best-interest factors.” The court also noted that the CCA “permits a trial court to ‘modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances,’ as long as the modification would be in the child’s best interests[.]” Defendant is able to file such a motion with new counsel’s assistance. The trial court’s ruling “fell within the range of principled outcomes.”
Petition for review; Whether petitioner, a U.S. citizen, could be deported for lying on his citizenship application under 8 USC § 1227(a)(2)(E)(i); Whether the statute covers individuals who were “citizens” at the time of their conviction; Loper Bright Enters v Raimondo; Costello v United States
The court granted petitioner-Gonzales’s petition for review of an order of removal because his criminal “conviction” for child abuse occurred after he had attained citizenship; therefore, his failure to disclose his indictment when applying for citizenship did not subject him to removal as “an alien” who was “convicted” of child abuse at any time after being admitted into the United States. Gonzales legally entered the United States and was granted citizenship, failing to disclose that he had recently been indicted for sexually abusing his niece. After he became a citizen, he pled guilty to that charge. The government eventually revoked his citizenship because of his lie and tried to deport him under § 1227(a)(2)(E)(i), which provides for deportation when “‘[a]ny alien who at any time after admission is convicted of a crime of . . . child abuse.’” However, he moved for cancellation of removal arguing that “when the conviction occurred,” he was a “citizen,” not an “alien.” The court relied on the Supreme Court’s decision in Loper Bright, which held that the statute does not cover individuals who were citizens at the time they were convicted. The court reviewed prior precedent, such as Costello, where they considered a similar statute for moral turpitude. It also reviewed decisions from several of its sister circuits where they supported this outcome. Applying “the rule of lenity to alleviate the ambiguity,” the court granted the petition for review, vacated the removal order, and remanded for further proceedings.
PIP benefits for medical services
The court held that viewing the evidence presented in the light most favorable to intervening plaintiff-Flint Region, “there was a genuine issue of material fact as to whether reasonable, allowable expenses were incurred.” Thus, the trial court’s 4/4/23 order granting summary disposition to defendant-Allstate under MCR 2.116(C)(10) was reversed and remanded. Flint Region appealed from the trial court’s 1/24/24 “stipulated dismissal order but challenged the trial court’s [4/4/23] order granting summary disposition in favor of Allstate under MCR 2.116(C)(10) and dismissing Flint Region’s claims for no-fault benefits for medical treatment services provided to” Allstate’s insured, nonparty-P. Flint Region contended that “the trial court erred by granting summary disposition to Allstate and dismissing Flint Region’s claims for no-fault benefits for performing [P’s] lumbar spinal fusion, because (1) there was evidence supporting its incurred expenses and (2) the reasonableness of the billing was a jury question.” The court agreed. There was “no dispute that Flint Region provided treatment to [P] after the accident, including her surgery.” There was “also no dispute that, after Allstate moved for summary disposition to dismiss Flint Region’s claims for no-fault benefits, Flint Region did not timely present evidence in a formal response to the surgery bill motion for summary disposition.” The court noted that while “Flint Region did not file a response to the surgery bill motion, it argues that the misfiling of its response should not have led to the trial court granting summary disposition regarding the surgery bill because, ultimately, the trial court allowed Flint Region to correct its mistake by filing a supplemental response.” The court agreed. After “the trial court’s instruction, Flint Region filed its supplemental response, which included the initial disclosures, supplementary initial disclosures, a witness list, and a response to the causation summary disposition motion, as exhibits. The disclosures included medical records and billing information for the surgery.” Flint Region asserted “that the evidence presented in its supplemental response created a question of fact it incurred expenses from the surgery.” The court agreed. It found that “evidence created a genuine issue of material fact as to whether Flint Region incurred allowable expenses from [P’s] surgery. Whether these expenses were reasonable or reasonably necessary presents a question of fact, which should be determined by a jury.” Further, it found that “even without consideration of any evidence presented by Flint Region, Allstate’s surgery bill motion presented evidence creating a question of fact as to whether Flint Region incurred allowable expenses.” The court held that to the extent Allstate asserted “Flint Region waived its right to refute the surgery bill motion, this argument is misguided.”
Medical malpractice; Causation; Personal Representative (PR)
Concluding that a genuine issue of material fact on the causation element of plaintiff-PR's malpractice claims existed, the court held that the trial court erred in granting summary disposition to defendants-McLaren, Dr. Banerjee, and Arundhuti Banerjee, M.D. PC. Plaintiff claims that malpractice on the part of Dr. Banerjee ultimately led to decedent-Ryan’s “death because the malpractice delayed Ryan receiving critical neurological evaluation and life-saving treatment.” The trial court found that Dr. V’s (one of plaintiff’s causation experts) opinions were mere speculation. The court concluded “that the trial court erred in this regard, and it failed to view the evidence in the light most favorable to the plaintiff.” Dr. V “opined that had Dr. Banerjee ensured that the repeat CT scan had been performed, the consulting neurologist, Dr. [S], would have consulted with a neurosurgeon, and a decompressive craniectomy with hyperosmolar therapy would have followed to save Ryan’s life. This opinion was not based on mere conjecture.” The court held that viewing “the evidence in the light most favorable to plaintiff, a question of fact existed with respect to whether a mechanical thrombectomy or hemicraniectomy would have been available to Ryan in a timely fashion had Dr. Banerjee ensured the repeat CT scan occurred.” Further, the trial court ignored Dr. V’s opinion as to “the administration of hyperosmolar therapy that could have been ordered by Dr. [S], the neurologist on staff at McLaren.” On this record, the court found “that the trial court erred when it concluded that plaintiff failed to present sufficient evidence to give rise to a question of fact with regard to whether Ryan’s death was more probably than not proximately caused by Dr. Banerjee’s negligence. McLaren has not provided evidence to support its claim that it did not have the ability to provide the decompressive craniectomy or that had Ryan been transferred, he would not have received the needed treatment in time to prevent his death.” By contrast, “plaintiff provided expert testimony that there were several hours within which hyperosmolar therapy or a decompressive craniectomy could have been performed and that had the surgical procedure been performed to relieve the swelling and pressure on the brain, Ryan would have survived. The evidence supported a conclusion that it was more likely than not that Dr. Banerjee’s failure to ensure that a repeat CT scan occurred was a cause of Ryan’s death. The causal connection between Dr. Banerjee’s actions and Ryan’s death was not too attenuated to satisfy the but-for requirements. Rather, the record demonstrates that plaintiff set forth substantial specific facts to support a reasonable inference of a logical sequence of cause and effect.” At the very least, the court held that “a question of fact existed in this regard.” Reversed and remanded.
Battery; Vicarious liability; Hamed v Wayne Cnty; Scope of employment; Cook v Michigan Cent RR; Foreseeability; Direct liability for negligent hiring, supervision, & retention; Brown v Brown; Intentional infliction of emotional distress (IIED); Graham v Ford; Extreme & outrageous conduct; Lewis v LeGrow
The court held that the trial court did not err by denying defendant-KKC’s motion for summary disposition of plaintiff’s claims of vicarious liability, direct liability, and IIED. Plaintiff sued KKC and its bouncer (Matthew) for a battery Matthew committed against him at KKC’s saloon. The trial court granted in part defendants’ motion for summary disposition, but denied it as to assault, battery, negligent hiring, supervision, and retention, and IIED. On appeal, the court rejected KKC’s argument that the trial court erred as to plaintiff’s vicarious liability claim as “there was no question of fact that Matthew acted outside the scope of his employment when he attacked an already-ejected customer and it was unforeseeable [he] would mount such an attack against plaintiff.” It found plaintiff established a genuine issue of material fact on this issue, noting “Matthew attacked plaintiff from behind and repeatedly punched him in the head and kicked him as he tried to roll away, conduct indicative of an intent to cause serious injury. It remains a question for the jury whether the severity of the attack counsels that Matthew was acting outside the scope of his authority to use force to eject patrons.” As to foreseeability, it found that statements made by KKC employees about Matthew’s reputation created “a factual question whether KKC was aware [he] had a reputation for using more force than necessary to remove patrons.” The court also rejected KKC’s contention that the trial court erred by denying its motion as to plaintiff’s claims involving direct liability for negligent hiring, supervision, and retention. Evidence that he “received virtually zero training” and there was no background check “paired with Matthew’s alleged reputation for excessive force could support that a patron would eventually be injured fighting with [him] or by Matthew using unnecessary roughness or aggressiveness when removing a patron from the premises.” Finally, as to the plaintiff’s IIED claim, he “did not need to seek mental health care to establish a question of fact regarding severe emotional distress. [His] deposition established that he experienced stress and anxiety as a result of the attack that continued to have some impact on his daily life. He struggled with conflict in his daily life and experienced ongoing feelings of anxiety, stress, embarrassment, and shame stemming from the attack.” This evidence “demonstrated a genuine issue of material fact whether the attack caused plaintiff severe emotional distress.” Affirmed.