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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Sentencing; Whether People v White required a score of zero points for OV 4 (psychological injury to a victim); “Victim”; Crime Victim’s Rights Act (CVRA); Waiver
Considering the record as a whole, the court held that the trial court did not clearly err in scoring OV 4 at 10 points. Defendant-Bryant pled guilty to CSC II and was sentenced to 32 months to 15 years. He contended that the only evidence supporting the trial court’s “scoring decision was speculation from the child’s mother that her child suffered a serious psychological injury requiring treatment.” Bryant argued White required a score of zero points for OV 4. However, the scoring “decision was made after the child’s mother affirmed that, within two weeks after Bryant abused him, the child was in therapy” due to the sexual abuse. Because the trial court’s “decision was based on evidence of an actual occurrence of a serious psychological injury requiring professional treatment, White does not mandate a score of zero points in this case.” Further, to the extent Bryant found “error in the fact that the victim impact statement was improperly made by” the mother, his claim lacked merit. The mother was permitted to submit a victim impact statement under the CVRA. The trial “court may consider the victim impact statement—even a statement prepared by a victim’s parent—when” imposing sentence. Next, contrary to Bryant’s argument, the “mother did not speculate that her child had suffered a serious psychological injury.” Viewing her victim impact statement as a whole, it was “clear that she was not merely recounting hypothetical psychological harm to her child arising solely from the nature of the offense, nor was she merely speculating that he would be harmed in the future. Instead, she described the actual affect that Bryant’s actions had on her child.” Her observations indicated that “he had difficulty sleeping, that he is angry and sad, that he is afraid, that his ability to trust men had been diminished, that he had expressed a wish to die as a result of what Bryant did, that he is paranoid of being harmed again, and that he fears being alone. Moreover, because of Bryant’s actions, at the time of sentencing, the child was in therapy.” Although the trial court “made its decision to score OV 4 only on the basis that the child was in therapy as a result of Bryant’s sexual abuse of him, our review of the court’s scoring of OV 4 is not limited to the reasoning provided by the trial court.” Affirmed.
Admissibility for impeachment purposes of a written statement by defendant attached to a PSIR; MCL 791.229; People v Rohn; People v Hooper (After Remand)
On remand, the court again affirmed the trial court’s challenged evidentiary ruling, holding that in light of Rohn and Hooper, the trial court did not err in concluding “that MCL 791.229 allowed introduction of defendant’s prior statement from the PSIR for impeachment purposes.” Defendant challenged the trial court’s ruling that statements he “made during a prior sentencing hearing were admissible for impeachment purposes in his upcoming trial.” He also challenged the trial court’s ruling that his written statement, submitted with the PSIR as to “why he was entitled to leniency, could also be used for impeachment.” The court previously affirmed the trial court’s order, and remanded for the trial to take place. “On defendant’s application, the Supreme Court denied leave to appeal, but remanded for us to reconsider the issue of whether the statement attached to the PSIR could be used at trial in light of MCL 791.229.” The court first found that “both Rohn and Hooper made clear that the importance of impeachment (whether done by defendant or the prosecution) to the search for the truth can overcome the confidentiality of the statute. Second, the statute does not speak to the admissibility of reports or statements attached to the report but instead speaks only to the confidentiality of the reports in terms of ‘disclosure to the public,’ and who is able to access the reports and information. Indeed, as others have noted, there are several positions and entities related to the court system—including judges and the attorney general—that are statutorily allowed access to the reports.” Thus, the court concluded that “if defendant chooses to testify and testifies inconsistently with his prior statement made a part of the PSIR, MCL 791.229 does not foreclose its use by the prosecution for impeachment.”
Medical malpractice; Determining whether a claim sounds in ordinary negligence or medical malpractice; Bryant v Oakpointe Villa Nursing Ctr, Inc; Whether an expert satisfied the requirements of MCL 600.2169; Motion for an extension to submit a new affidavit of merit (AOM); Futile request to amend; Personal representative (PR)
The court held that plaintiff-PR’s claim sounded in medical malpractice rather than ordinary negligence, and that her expert (F) did not meet MCL 600.2169’s requirements. Finally, the trial court did not abuse its discretion in denying her motion to submit a new AOM where the trial court did not grant defendant summary disposition due to any deficiencies in the AOM. Plaintiff’s decedent (Quick) was a 97-year-old woman with dementia when the events leading to this case occurred. She fractured her leg when she apparently moved it “through the rail of the stretcher and it collided with the doorframe” as she was being transported at defendant’s hospital. She died a few weeks later. It was undisputed she “was a cervical-spine precaution patient. As a result, only a registered nurse” (RN) or a physician could transport her. An RN in defendant’s ER (nonparty-L) was acting in her capacity as an RN when she was assigned to Quick’s care. “She testified that she used her knowledge and training in transporting patients with Quick’s medical condition when she moved Quick. Specifically, she ensured that Quick was on the stretcher, the rails were up, and that Quick had a blanket over her. She added that, because Quick was disorientated, there were additional risks associated with her transport so closer observation was required. [L] tried to take those additional risks into account during the transportation process. A jury relying only on common knowledge and experience would not know what would constitute proper transportation of a patient with Quick’s medical condition.” Thus, the trial court correctly found that plaintiff’s “claim sounded in medical malpractice, not ordinary negligence.” As to F’s qualifications, she stated during her deposition “that she was a ‘charge nurse’ in 2016 when she worked triage and ‘helped nurses with their patient care.’ However, she expressly testified that 30% of her duties were clinical and 70% were administrative. Because she did not spend the majority of her professional time in 2016 (the year before Quick’s injury) on the ‘active clinical practice of the same health profession in which the party against whom’ was licensed, she could not satisfy” MCL 600.2169(1)(b). Affirmed.
The No-Fault Act (NFA); Tolling; Interpretation of MCL 500.3145(3) as amended by 2019 PA 21; Presumption that statutes apply prospectively; “Explanation of Benefits” letters (EOBs)
Given the lack of clear language indicating the Legislature intended to apply the amendment retroactively, the court held that the trial court did not err in failing to apply the tolling provision in MCL 500.3145(3) to plaintiff’s case. Because the preamendment version of MCL 500.3145 applied, his claim was untimely under the plain language of MCL 500.3145(1). Thus, the court affirmed summary disposition for defendant-insurer. Plaintiff was injured in an auto accident in 2014. Between 4/4/17 and 4/24/18, he received treatment from a doctor for injuries he alleged were related to the accident. He filed this action on 6/12/20 after defendant responded to invoices from the doctor with EOBs indicating a coverage amount of $0.00. The trial court determined “that the EOBs constituted a formal denial” of his claim and thus, his suit was untimely. Plaintiff argued that it “misinterpreted MCL 500.3145(3) of the postamendment version of the” NFA, because it did not apply the statute’s tolling provision, which became effective on 6/11/19, before he filed his complaint. The court disagreed, finding that in “the amended version of MCL 500.3145, the Legislature did not include language expressing its ‘clear, direct, and unequivocal’ intent to apply this statute retroactively.” The court noted that the “preamendment version of MCL 500.3145(1) did not contain a tolling provision . . . .” Defendant asserted that plaintiff did not “show the action ‘commenced at any time within 1 year after the most recent allowable expense . . . has been incurred.’” It relied on the EOBs, which showed his most recent expense occurred on 1/11/18. Thus, under MCL 500.3145(1)’s plain language, he should have filed suit by 1/11/19, “one year from the most recent expense.”
Duty to advise as to the adequacy of the business insurance coverage provided; Genesee Foods Servs, Inc v Meadowbrook, Inc; Harts v Farmers Ins Exch; Janovski v S J Ferrari Ins Agency, Inc (Unpub); Special relationship; Chartered Property Casualty Underwriter (CPCU)
The court concluded that because there was no special relationship between defendants and plaintiffs, they did not have a duty to advise plaintiffs as to the adequacy of their insurance coverage. Thus, it affirmed summary disposition for defendants. Plaintiffs argued that “because defendants were independent insurance agents, ‘their primary duty of loyalty rested with plaintiffs, who could depend on this duty of loyalty to ensure that defendants were acting in their best interests both in terms of finding an insurer that could provide them with the most comprehensive coverage and in ensuring that the insurance contract properly addressed their needs.’” They contended that “defendants breached that duty because they did not ‘inform' plaintiffs that the policy they purchased did not provide casualty coverage for” plaintiff-Cloverleaf’s personal property. The court noted that the “lead case on an insurance agent’s duty to advise an insured as to the adequacy of the coverage provided is” Harts. Plaintiffs argued that “defendants’ duty of loyalty is stated in Genesee Foods and that Harts only applies to captive insurance agents, not" independent agents. But the court has rejected similar arguments in several unpublished opinions. It found Janovski persuasive and, likewise, concluded that Harts applied here. Plaintiffs argued that a special relationship existed between them and defendants. While there was record evidence that Cloverleaf had a long history with defendants and that defendant-Hieronymus is a CPCU, the record did “not support a finding that defendants had ‘complete knowledge’ of the insurance plaintiffs needed. Rather, Hieronymus provided evidence as to what insurance was required by law and what insurance plaintiffs sought because their lease indicated that it was their responsibility, but that does not equate to a finding that defendants therefore had ‘complete knowledge’ of" their needs. The record also did not “allow for an inference that defendants promised to provide all coverage needed.” Rather, it appeared that they “agreed to try and procure specific coverage, but were unable to find an insurer that would cover the contents of the buildings.” Further, plaintiffs did not point “to any record evidence indicating that defendants misrepresented the nature or extent of the coverage offered.” Viewing the record in the light most favorable to plaintiffs, there were “no facts indicating that defendants misrepresented to plaintiffs the nature or extent of the coverage.” There also was no “evidence that an ambiguous request was made that required a clarification.”
Duties of shippers, common carriers, & drivers in the trucking industry; Common-law duty of ordinary care; Clark v Dalman; Effect of Michigan’s passage of MCL 480.11a (adopting the federal motor carrier safety regulations as part of the Motor Carrier Safety Act (the MCSA)); 49 CFR § 392.9; Abrogation of the common law by statute; Murphy v Inman; A shipper’s common-law duty of care to the carrier & its drivers; The “shipper’s exception” or “Savage rule”; United States v Savage Truck Line, Inc (4th Cir)
The court held that “the common-law duty of care owed by a shipper to a driver was not abrogated by MCL 480.11a.” Further, in an issue of first impression, it adopted the “shipper’s exception” or “Savage rule,” under which a shipper responsible for loading cargo “is not liable in negligence for a defect in loading that is apparent to the carrier or its agents, but is instead only liable if the defect is hidden.” Applying the rule to this case, it concluded plaintiff-truck driver (McMaster) did not show a genuine issue of material fact that a latent defect caused his injuries. Thus, while the court disagreed with the Court of Appeals’ conclusion that MCL 480.11a abrogated the common-law duty of a shipper, it affirmed on alternate grounds its ruling upholding the trial court’s entry of summary judgment for defendant-DTE Energy. As a threshold matter, the court agreed “with McMaster and the Court of Appeals that” a shipper such as DTE owed a common-law duty of ordinary care to a driver such as McMaster in the loading of cargo for transport. Turning to the question of whether this duty was abrogated by the MCSA, the court noted it was “plain from the statute’s text that the MCSA contains no unequivocal statement that the common law has been abrogated.” The court concluded that the “MCSA, which regulates ‘all employers, employees, and commercial motor vehicles that transport property or passengers in interstate commerce,’ . . . does not occupy the entire field of liability questions regarding shippers in this industry. It is not fully comprehensive on the question of negligence because it does not speak to the shipper’s duties in loading cargo—at all. Legislative silence as to the shipper’s duties in this realm is not indicative of abrogation. In sum, the MCSA did not repeal the common law, either explicitly or through occupation of the field.” As to the contours of the shipper’s duty, the court determined “the Savage rule properly delineates the duties of shippers and carriers and that this rule is consistent with our common law, with our comparative-fault regime, and with the MCSA.” McMaster’s theory was that a large “blue pipe was improperly loaded parallel to the back of the container.” However, because its placement was readily observable to him (and he in fact observed it), its placement was not a latent defect and “no reasonable jury could conclude that DTE breached its duty to him.”
Children’s best interests; Relative placement
Holding that termination of respondent-mother’s parental rights was in the children’s (ML, MH, and MM) best interests, the court affirmed. As an initial matter, she argued that the trial court failed to consider the children’s relative placements. Although she was “correct that the trial court must consider relative placement and that it weighs against termination,” her argument was not supported by the record. “The trial court explicitly considered the relative placements of ML and MM with their maternal grandmother, and MH was not in relative placement with her father because parents do not qualify as relatives.” Turning to the remainder of the best-interests analysis, the record supported the trial court’s determination. “Respondent had almost four years to complete her service plan, but she failed to do so. Respondent claimed that she no longer had a substance-abuse problem, but the [DHHS] was unable to verify these claims because respondent failed to complete her required drug screens. Respondent’s attendance with therapy and parenting classes was also so poor throughout the proceedings that she was rereferred to them at least 21 times.” Despite repeated referrals, the only service she “appeared to participate in consistently was therapy, which her therapist stated respondent did not benefit from. Additionally, respondent missed about half of her visits with the children and had not seen them in person since” 11/20. Although she “had a bond with the children, that bond was outweighed by her failure to participate in or benefit from her service plan despite almost four years to do so.” Given the length of the case, “the foster care worker’s testimony that respondent was no more capable of caring for the children at the time of the hearing than when ML and MH were removed from her care in 2017 is particularly compelling. Respondent had an extensive amount of time to show that she could care for the children, but she failed to do so.” Her claim that she needed more time to show she could care for the children was "unconvincing given that she demonstrated little progress throughout the long history of this case.” Instead, given the length of the case, “the children need permanency and stability. Respondent’s lack of progress with her service plan outweighs her bond with the children and the relative placements of ML and MM.”
Termination under §§ 19b(3)(b)(i), (g), (j), & (k)(iii); “In the future” requirement; Doctrine of anticipatory neglect; Whether reasonable reunification efforts were required; MCL 712A.19a(2)(a); Distinguishing In re Newman; Due process; Trial via Zoom; Waiver; Administrative Order No. 2020-6 & Amended Administrative Order No. 2020-17; The trial court’s refusal to hear additional testimony as to jurisdiction & statutory grounds; Refusal to allow a child to testify; Competency; MRE 601; Ineffective assistance of counsel; In re Mota; Child’s best interests
The court rejected respondent-mother’s due process and ineffective assistance of counsel claims, and held that §§ (b)(i), (g), (j), and (k)(iii) supported terminating her parental rights. It further found that reasonable reunification efforts were not required here, and that termination was in the child’s (P) best interests. Thus, it affirmed the termination order. As to respondent’s due process arguments, the court found no merit in her claim that she did not waive her right to an in-person trial before the start of the COVID-19 pandemic. It added that even if she had not waived the issue, “the trial was held via Zoom because respondent was ill, in compliance with Michigan Supreme Court Administrative Orders” and she did not explain how conducting it “via Zoom affected the outcome of the proceedings.” The court also concluded the trial court did not abuse its discretion in finding that P “was not competent to testify. P[] never articulated that he could tell the difference between the truth and a lie and never promised to tell the truth.” His responses also revealed “that he did not have the capacity to testify understandably.” As to statutory grounds for termination, respondent challenged the “in the future” requirement as to §§ (b)(i), (g), and (k)(iii). However, under the doctrine of anticipatory neglect, given her “severe physical abuse of” another of her children (S) and previous “physical and verbal abuse of” S and another child, “the trial court did not clearly err by finding there was a reasonable likelihood that” P would be harmed if returned to her care. The court also noted that testimony respondent had hit P with a “wooden back scratcher, leaving temporary red marks, further” supported a finding that he was at risk of harm in her care. While respondent contended “termination was premature and she should have been provided with services and the opportunity to show her ability to parent[,]” the trial court referee recommended that reasonable reunification efforts were not required due to evidence showing P “was subjected to ‘[e]xtreme physical abuse’ by respondent. The trial court adopted the referee’s recommendation” and later determined clear and convincing evidence supported termination under § “(k)(iii), which expressly requires a finding of ‘[b]attering, torture, or other severe physical abuse.’” Thus, pursuant to MCL 712A.19a(2)(a), reasonable reunification efforts were not required.
Termination under § 19b(3)(c)(i); Reasonable reunification efforts; The Americans with Disabilities Act (ADA); Child’s best interests
The court concluded the trial court did not err by finding DHHS made reasonable reunification efforts, and did not clearly err by finding § (c)(i) supported termination and that terminating respondent-mother’s parental rights was in child-LR’s best interests. DHHS repeatedly offered her “services aimed at rectifying the conditions that led to court involvement to allow for reunification.” The court concluded that providing those “services constituted reasonable efforts for reunification,” and noted she raised no issue with the services in the trial court. Although she “eventually completed the psychological evaluation, participated in individual therapy, and visited LR frequently, respondent failed to address her substance-abuse issues or complete drug screens, failed to obtain appropriate housing for herself and LR, and failed to provide proof of her income.” Thus, the record belied her claim. The DHHS “worked at reunification for over two years despite respondent’s apparent refusal to address the underlying issues that led to court involvement—respondent’s substance abuse and lack of permanent housing.” Respondent claimed that “she could not complete the drug screens because she did not have the necessary pin numbers to do so and because she had transportation issues.” Neither of these were valid excuses. DHHS provided her “the requisite pin numbers on at least five occasions,” as well as bus tickets. “After two years of failing to comply with her service plan—without raising any issues with the plan—respondent moved to Arizona with no stated intention to return.” While there, she continued to avoid her required services, all of which DHHS “rereferred her to in Arizona; respondent again raised no objection with the services that she failed to utilize. Respondent thus failed in her ‘commensurate responsibility’ to participate in the services” DDHS offered. She now asserted “she should have been provided a parent partner to assist in completing her services, and that DHHS failed to reasonably accommodate her disability. Although the trial court originally ordered a parent partner, [DHHS] could not provide one due to a lack of funding for that program. In light of the numerous other services offered to respondent, the lack of a parent partner cannot be deemed substantial.” Moreover, her implication that “she had some type of intellectual disability” was undeveloped and nothing in the record showed an ADA violation. The court found that rather “than being unable to complete the drug screens and substance-abuse counseling due to a disability, it appears respondent simply refused to do so[.]” Affirmed.