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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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The Employee Retirement Income Security Act (ERISA); Withdrawal from a multiemployer pension fund; Calculation of “withdrawal liability”; 29 USC §§ 1381(b)(1) & 1393(a)(1); Investment return prediction (referred to as the withdrawal interest rate); The best estimate test; Whether defendant-Pension Fund illegally calculated plaintiff’s withdrawal liability; Sofco Erectors, Inc v Trustees of OH Operating Eng’rs Pension Fund; Arbitrator’s choice of remedy; Request for attorney fees & costs under FedRAppP 38 & § 1451(e)
[This appeal was from the ED-MI.] The court held that defendant-Pension Fund’s actuary’s estimate of plaintiff-Ace-Saginaw’s withdrawal liability violated ERISA § 1393(a)(1) because it was not “the actuary’s best estimate of anticipated experience under the plan.” And in an issue of first impression in this circuit, the court held that when recalculating the withdrawal liability on remand, the actuary “may deviate from the assumptions and methods used to calculate minimum funding for the relevant plan year.” Ace sought to partially withdraw from defendant, a multiemployer pension fund. To do so, the Fund’s actuary (F) had to calculate Ace’s “withdrawal liability,” and this required a calculation of the “withdrawal interest rate” (a prediction of the Fund’s investment return). Based on a calculation using a 2.27% withdrawal interest rate, F told Ace it owed $16,386,924, but Ace thought it should owe $6,297,833, using a 7.75% rate. Ace sued over the discrepancy, and the dispute went to arbitration. The arbitrator concluded that the Fund’s 2.27% rate violated § 1393(a)(1) because it was not “the actuary’s best estimate of anticipated experience under the plan.” The arbitrator ordered the Fund to recalculate using a “rate that complies with §1393(a)(1).” The district court agreed and granted Ace summary judgment but denied its request to change the arbitrator’s remedy and instead use its 7.75% rate. On appeal, the court held that the Fund failed to show that its 2.27% rate constituted the actuary’s “best estimate,” and that he was “driven by concerns inappropriate for his actuarial role.” The court noted it is not the actuary’s role to consider “policy issues. Congress made the applicable policy choices when it enacted § 1393.” As to the arbitrator’s choice of remedy, as a matter of first impression, the court affirmed “the district court’s decision to give the Fund another chance to calculate Ace’s withdrawal liability.” It noted that it has “found it reasonable for an actuary to use the same interest rate assumption for calculating minimum funding and withdrawal liability. But it is also permissible for the two assumptions to diverge.” It stated that the discretion to deviate from the assumptions “is limited to differentiating factors that improve the accuracy of the withdrawal liability calculation[.]” Finally, the court denied Ace’s request for attorney fees. Affirmed and remanded.
Retaliation claim under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA); MCL 37.2201(a); Miller v Department of Corrs; “Person” under MCL 37.2103(h); Whether corporations may assert claims of retaliation; MCL 37.2801(1); InterVarsity Christian Fellowship/USA v Board of Governors of Wayne State Univ (ED MI); “Employer”; “Individual”; ELCRA’s antiretaliation provision; Protected activity
The court held that the trial court did not err by granting defendants’ motions to dismiss plaintiff’s retaliation claim under the ELCRA. Plaintiff claimed defendants’ termination of their business relationship was retaliatory under the ELCRA because it followed plaintiff’s opposition to their alleged discriminatory behavior. On appeal, the court rejected plaintiff’s argument that the trial court erred by requiring that, to survive a motion to dismiss its retaliation claim, it had to establish that defendants either had an employment relationship with plaintiff or be a place of public accommodation. The court agreed with the trial court. The “law recognizes that defendants potentially could retaliate under the ELCRA without being plaintiff’s employer. The question, though, is whether either defendant could discriminate against plaintiff without being plaintiff’s employer, such that the opposed conduct constituted a requisite violation of the ELCRA.” The court found that “plaintiff adequately alleged that, although neither defendant is plaintiff’s employer, each defendant is an employer under the ELCRA.” However, plaintiff “is not an ‘individual.’” And the “use of the word ‘individual’ in the context of MCL 37.2202(1)(a) precludes the type of alleged business-to-business discrimination opposed here by plaintiff.” The court concluded “‘an employer can be held liable under the [EL]CRA for discriminatory acts against a nonemployee if the nonemployee can demonstrate that the employer affected or controlled a term, condition, or privilege of the nonemployee’s employment.’” There were no allegations that one of the defendants, as a customer of plaintiff, or the other defendant, as a contractor with plaintiff, affected or controlled the work status of plaintiff’s owner. Even if the court interpreted “the complaint as asserting a third-party retaliation claim, there still [was] no underlying protected act.” Affirmed.
Sufficiency of the evidence for a possession of meth conviction; MCL 333.7403(2)(b)(i); Prosecutorial error; Questioning of a defense witness; People v Emery; Vouching; Ineffective assistance of counsel; Failure to make a futile objection; Claim that the police & prosecution failed to investigate or produce evidence; People v. Heft; Arizona v Youngblood; Inapplicability of Brady v Maryland analysis
The court held that there was sufficient evidence to support defendant’s meth possession conviction. It also rejected his prosecutorial error and related ineffective assistance of counsel claims. Finally, as he did not even allege that the police or prosecution acted in bad faith, his due process claim for failing to investigate or produce certain evidence for trial failed. The case arose from the stop of a vehicle in which he was a front-seat passenger. It was driven by another man (M). Two baggies of meth were discovered. The first “was located in a pair of pants on the passenger-side floorboard” and the second was found “in a cigarette-lighter port, also on the passenger side. Defendant’s name was printed on a tag inside the pants’ waistband, which were a size 34 by 32 inches. Notably, officers confirmed that [M] wore size 38 pants.” The court concluded the evidence presented at trial “provided the jury with a reasonable basis for inferring that defendant had control over the contraband found in the pants and cigarette-lighter port. First, there was evidence that [he] was in control of the area where the drugs were found. Although [he] did not own the vehicle, the police observed that he was a front-seat passenger immediately before the vehicle was seized. The drugs were found in areas of the vehicle that a passenger typically occupies, and therefore normally controls: the passenger floorboard and passenger-side area where the cigarette-lighter port was located.” Thus, the jury could “reasonably infer that the contraband found in these areas was known to, and under the control of, defendant. The evidence also suggested that the pants in which the contraband was found belonged to [him], given that, not only were they found at [his] feet, but also, they were two sizes too small for [M], and defendant’s name was printed in the waistband. The inference that the pants belonged to [him] further permitted the jury to reasonably infer that defendant had both knowledge of, and control over the” meth in them. As to his prosecutorial error claims, the court found that the questioning of a defense witness reflected “a good-faith effort to introduce evidence impeaching [her] credibility,” and that the prosecutor did not improperly vouch for a police witness’s credibility. Affirmed.
Motion in limine to preclude testimony on cross-examination; Scope of cross-examination; MRE 611(c); Right of confrontation; Relevance; MRE 401; Unfair prejudice; MRE 403; Credibility; Other acts evidence; Character for truthfulness; MRE 608(b)(1); Common scheme, plan, or motive; MRE 404(b)(2)
Holding that the trial court erred by granting the prosecution’s motion in limine to preclude cross-examination of a police witness (Sergeant L) on allegations of misconduct relating to another witness, the court reversed the order. The trial court granted the prosecution’s motion in limine to preclude the cross-examination of Sergeant L regarding his conduct with a witness at his house. On appeal, the court agreed with defendant that the exclusion of this evidence would violate his right of confrontation. “[T]here is no dispute that Sergeant [L] was involved in the investigation into the victim’s death. [He] participated in the search for the victim’s body, investigated and took photographs of the scene, searched defendant’s house, and participated in multiple witness interviews.” As such, his “actions were not collateral to this case, and evidence bearing on his credibility is relevant.” In addition, “it was during the investigation of this case that [he] threatened to get the witness in trouble for cocaine, requested she spend the night, and was intoxicated while attempting to interview her as a witness.” Further, although “this evidence would be prejudicial, it would not be unfairly so. The trial court erred when it excluded all allegations of misconduct because the complete exclusion is disproportionate to the purpose of preventing jury confusion.” And its “complete limitation on cross-examination prevents defendant from placing before the jury facts from which bias, prejudice, or lack of credibility of a prosecution witness might be inferred, and, so, it constitutes denial of the” right of confrontation. “Defendant should be able to inquire about matters that bear on Sergeant [L’s] credibility and that are relevant to his investigation.” Finally, the “trial court erred by barring any inquiry during cross-examination into the interaction between Sergeant [L] and the witness because some of the specific instances of conduct are probative of [his] character for truthfulness or untruthfulness.”
Divorce; Property division; Collateral estoppel; Bryan v JPMorgan Chase Bank; Oral agreements; Postnuptial agreements; Wright v Wright; Statute of frauds; MCL 566.106; Partial performance; Barclae v Zarb
The court held that the trial court erred by granting summary disposition for plaintiff-ex-wife. The trial court entered a judgment of divorce awarding: “(1) the parties their respective bank accounts, vehicles, and debts; and (2) plaintiff the Torch Lake property, the remaining proceeds from the sale of the Battle Creek property, and the parties’ joint bank account.” On appeal, the court agreed with defendant-ex-husband that the trial court erred by applying collateral estoppel to the parties’ claims when granting plaintiff’s motion for summary disposition. “Even though this case was initiated in Barry County before proceeding in Antrim County, there is no evidence that: (1) the parties had an opportunity to litigate these issues in Barry County, or (2) the Barry County proceedings resulted in a valid and final” judgment. The court also agreed with defendant that the trial court erred by granting summary disposition for plaintiff because there was a genuine issue of material fact as to the existence of any alleged oral agreements between the parties. When viewing the “competing evidence in the light most favorable to defendant, reasonable minds could differ as to whether the parties entered into the alleged oral postnuptial agreement.” And even “though defendant violated the restraining order, a genuine issue of material fact existed as to whether the parties entered into the alleged final settlement agreement[.]” Finally, the court agreed with defendant that even assuming “that the alleged oral agreements existed, they would not be enforceable because they are against public policy and contrary to the statute of frauds.” Even if “the parties did enter into this alleged oral postnuptial agreement, it would be invalidated on the basis that it encouraged divorce by making it financially attractive for plaintiff to divorce defendant.” And because plaintiff “failed to show that either oral contract existed by clear and convincing evidence, the trial court could not apply the doctrine of partial performance to the alleged agreements.” As such, “even if the alleged oral agreements existed, they would not be enforceable because they are against public policy and contrary to the statute of frauds.” Vacated and remanded.
Personal protection insurance (PIP) benefits; Limitations period; Notice; MCL 500.3145(1) & (4); Perkovic v Zurich Am Ins Co; “In behalf of”
The court held that the notice of a nonparty-passenger’s (Q) injury that defendant-insurer “received did not comply with MCL 500.3145(4). Because the notice-of-injury exception did not apply, plaintiffs’ claims were barred by the statute of limitations in MCL 500.3145(1).” Q was a passenger in a vehicle insured by defendant when it was involved in an accident. Plaintiffs sought PIP benefits for services provided to Q. Defendant successfully sought summary disposition based on the statute of limitations. Plaintiffs contended “the statute was tolled because defendant had been sufficiently notified of [Q’s] injury within one year under MCL 500.3145(4) by the insured’s telephone calls with defendant’s claims adjuster and the police traffic crash report in defendant’s possession.” Under MCL 500.3145(4), the required “notice must be given to the insurer by either the injured person or by someone ‘in his [or her] behalf.’” Reviewing Perkovic, the court understood it “to mean that any person can provide notice of an injury to an insurer in behalf of an injured person if their reason for doing so is some interest of the injured person. This approach comports with the facts in Perkovic because when the hospital in that case sent the bills and records to the insurer seeking payment, it implicitly acted in the truck driver’s financial interest of having his medical expenses paid. That is, the relevant distinction is whether the notice was ‘given to the insurer . . . by someone in the person’s behalf,’ . . . rather than merely independently acquired by the insurer.” The court found the record did “not show that anyone involved in giving the police report to defendant was motivated by [Q’s] interest. The insured’s representative called [defendant’s claims representative-B] twice in the course of reporting the accident” but did not tell B “anything about [Q] being injured.” Rather, the representative initially told B “that ‘no injuries were reported’ and, in a later call, discussed that there were passengers in the vehicle, but ‘did not report any injury to . . . [them].’ The police and LexisNexis who, respectively, wrote and transmitted the police report to defendant were not acting in [Q’s] behalf, but rather acting as neutral third parties. Lastly, the adjuster did not retrieve the police report in [Q’s] behalf” bur instead “to fill out the file for the insured’s claim and had no knowledge of [Q’s] potential injury before” doing so. No one acting in Q’s behalf notified defendant of his “injury within one year of the accident.” Affirmed.
Standing; Whether plaintiffs showed a sufficient “injury in fact” to support Article III standing; Speerly v General Motors, LLC; Whether plaintiffs’ state common-law fraud claim was properly dismissed; Whether Fed. R. Civ. P. 9(b)’s “heightened pleading requirement” for a fraud claim’s “knowledge” element will be applied to a product-defect claim; Whether plaintiffs sufficiently alleged defendant knew of the defect through consumer reporting agencies; 15 USC § 2055a(c)(1); 16 CFR § 1102.20; Whether defendant had a “duty to disclose”; M&D, Inc v WB McConkey (MI App); Chapman v General Motors LLC, (ED MI); State “consumer protection” claims; Michigan Consumer Protection Act
[This appeal was from the WD-MI.] In this putative class action, the court held that the district court erred by finding plaintiffs-purchasers failed to plausibly allege that defendant-Whirlpool had knowledge of the alleged product defect through consumer complaints about the defect. It also held that Rule 9(b)’s heightened pleading requirement will not be applied to a product-defect claim. Plaintiffs sued Whirlpool under various federal and state theories, alleging certain models of its single-device gas ovens with stovetop burners and front-mounted control knobs “acuate unintentionally,” resulting in a dangerous condition, and that Whirlpool did not notify the purchasers as soon as it became aware of the defect. Whirlpool argued that plaintiffs lacked Article III standing and that their claims lacked merit. The district court ruled that they alleged a sufficient injury to support standing but dismissed all their claims for failure to state a claim. On appeal, the court first held that plaintiffs sufficiently alleged that the product had “inherent safety risks.” It declined to apply Rule 9(b)’s heightened pleading requirements to a product defect claim, holding that plaintiffs must allege that Whirlpool “plausibly knew” of the defect. Here, they alleged that consumer reporting agencies sent notices of the defect “directly to Whirlpool consistent with their reporting obligations.” To determine whether Whirlpool had a duty to disclose the defect, the court had to consider the laws in each of the five states represented by the plaintiffs. Under Michigan law, if a manufacturer has superior knowledge of a defect, it has a duty to disclose. Only Illinois law has no such duty. Considering plaintiffs’ consumer protection claims, the court held that they pled a plausible claim under Michigan’s consumer protection law, as well as that of the rest of the states. The court then reinstated plaintiffs’ common law fraud and consumer protection claims, aside from the Illinois common law fraud claim. Affirmed in part and reversed in part.
Easement created by deed; When the deed was recorded
Given that the trial court mistakenly determined that the 1982 deed containing the easement at issue was not recorded until a decade later, the court vacated and remanded “to allow the trial court to reanalyze this issue with the correct factual understanding that the deed” was recorded in 1982, not 1992. Plaintiff appealed the trial court’s order denying his summary disposition motion, granting defendants’ summary disposition motion, and “holding that plaintiff did not establish an easement over defendants’ land.” The court noted that the date error in the trial court’s written opinion and order did “not appear to be a clerical error given that the trial court went on to analyze” the facts of the case “under Michigan’s race-notice statute, explaining that because the easement was not recorded until 1992, it was recorded after the burdened parcel was sold in 1986, without reference to the easement. The trial court’s legal findings were therefore made on this mistaken factual finding.” The court concluded that “the most prudent course of action is to vacate the trial court’s order and remand for further proceedings . . . .” It noted that, with “this factual issue resolved, the trial court will need to analyze whether a valid easement was created despite it never being recorded on the burdened estate.” It reminded “the trial court and the parties that ‘if the intentions of the original contracting parties are not reflected in the public record, a subsequent bona fide purchaser who has relied upon the public record cannot be bound by those unrecorded intentions.’” In addition, in “‘order to create an express easement, there must be language in the writing manifesting a clear intent to create a servitude. Any ambiguities are resolved in favor of use of the land free of easements.’” Further, when “‘the intent to create an easement is not clear, the issue is to be resolved in favor of use of the land free of an easement.’”
Scope of an easement; Bayberry Group, Inc v Crystal Beach Condo Ass’n; Scope of injunctive relief
The court held that while the trial court did not err in granting plaintiff-association summary disposition based on the plain language of the easement at issue, its injunction as to defendant’s use of the easement exceeded the relief requested by plaintiff “and improperly limited defendant’s use of the property[.]” Thus, the court vacated the trial court’s order and remanded for it “to clarify the order’s language regarding: (1) what use is permitted by defendant under the easement as opposed to what use is permitted by defendant as a member of the Association, and (2) what use is permitted by defendant’s short-term tenants under the easement and Association bylaws.” The court noted that “defendant was expressly granted an easement for ‘the right of ingress, egress over lots 17 & 18 . . . with dock privilege not to exceed 20’ section . . . .’” Given this unambiguous language, reasonable minds could not disagree that the easement “clearly only provided defendant with the right to: (1) ingress and egress over plaintiff’s land to access the lake and (2) use the dock.” On appeal, defendant only challenged “the scope of relief, arguing that the language of the trial court’s order exceeded plaintiff’s requested relief—to limit defendant’s use under the easement—and improperly limited defendant’s use of the property, as a member of the Association, under the Association’s bylaws.” Plaintiff conceded “it ‘did not ask the trial court to determine Defendant’s rights under the Bylaws in regard to the use of Lots 17 & 18 (only as to the rights of Defendant’s short-term tenants to use the pier) . . . .’” The court agreed. The operative language of the order did “not differentiate between defendant’s use under the easement and [its] use as a member of the Association. Pursuant to the order’s language, defendant itself, not just its short-term renters, is enjoined from ‘[u]sing Lots 17 and 18 for anything other than ingress and egress to Coldwater Lake’ and from” using them to picnic, sunbathe, and play in the sand. This language failed to “take into account the Association’s bylaws[,].” which it was undisputed allowed “defendant, its family members, and nonpaying visitors certain rights beyond lake ingress and egress such as picnicking, sunbathing, and playing in the sand. Therefore, to the extent that the current order prohibits defendant itself from engaging in those activities, although complying with the easement language, it appears to contradict defendant’s rights under the bylaws.”