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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.

 

 

Case Summary


Cases appear under the following practice areas:

  • Constitutional Law (1)

    Full Text Opinion

    This summary also appears under Social Security Law

    e-Journal #: 73767
    Case: Ramsey v. Commisioner of Soc. Sec.
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: White and Donald; Dissent – Siler
    Issues:

    Whether issue exhaustion is a requirement in Appointments Clause challenges to administrative law judge (ALJ) appointments; Lucia v. Securities & Exch. Comm’n; Jones Bros., Inc. v. Secretary of Labor; Island Creek Coal Co. v. Bryan; Cirko v. Commissioner of Soc. Sec. (3d Cir.); Carr v. Commissioner of Soc. Sec. (10th Cir.); Davis v. Commissioner of Soc. Sec. (8th Cir.); Judicially imposed exhaustion requirements; Sims v. Apfel; McCarthy v. Madigan; 20 CFR §§ 404.949 & 416.1433(a)(3); The nature of the claim presented; Maloney v. Commissioner of Soc. Sec. (Unpub. 6th Cir.); Anderson v. Barnhart (8th Cir.); Shaibi v. Berryhill (9th Cir.); Mills v. Apfel (1st Cir.); Mathews v. Eldridge; Freytag v. C.I.R.

    Summary:

    [This appeal was from the ED-MI.] In an issue of first impression in this circuit, the court held that a claimant does not forfeit an Appointments Clause challenge in a Social Security proceeding by failing to raise that claim before the agency. Plaintiffs/claimants were all denied Social Security disability and/or supplemental security income benefits. While judicial review was pending, they moved to add an Appointments Clause challenge to the ALJs’ appointments, a claim they did not raise during the administrative hearing process. This claim was brought in light of Lucia, which held that the Securities and Exchange Commission’s ALJs “had not been appointed in a constitutionally legitimate manner” and that a new hearing before a different ALJ was required. Like those ALJs, the ALJs in Social Security cases “were not appointed by the President, a court, or the head of department. Rather, they were hired by the Office of Personnel Management.” Plaintiffs argued that the same reasoning that applied in Lucia applied to Social Security ALJs, and that they were entitled to new hearings before different judges. Defendant-Commissioner argued that they forfeited their argument by not raising it at the administrative level, and the district court agreed. However, the court joined the Third Circuit by holding that in an Appointments Clause challenge in Social Security proceedings, issue exhaustion is not required. Although other circuits have disagreed, it found the reasoning in Cirko persuasive. The court noted that an “Appointments Clause challenge involves neither an exercise of discretion, nor an issue within the agency’s special expertise.” Thus, it agreed with Cirko that “‘exhaustion is generally inappropriate where a claim serves to vindicate structural constitutional claims like Appointments Clause challenges, which implicate both individual constitutional rights and the structural imperative of separation of powers.’” The court found it significant that the Social Security Act regulations do not give claimants notice that the failure to raise an Appointments Clause challenge prohibits them from doing so in the future. The court noted that its holding was “narrow”—“only that a claimant does not forfeit an Appointments Clause challenge in a Social Security proceeding by failing to raise that claim before the agency.” Thus, it concluded that plaintiffs were entitled to a new hearing before different ALJs. Vacated and remanded to the Social Security Administration.

    Full Text Opinion

  • Contracts (1)

    Full Text Opinion

    This summary also appears under Insurance

    e-Journal #: 73676
    Case: Farm Bureau Gen. Ins. Co. of MI v. Hore
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Sawyer and Boonstra; Concurring in part, Dissenting in part – Ronayne Krause
    Issues:

    Action seeking a defense or indemnification under an insurance policy; An insurance policy as a contract that should be read as a whole to determine the parties’ intent; McKusick v. Travelers Indem. Co.; Contract interpretation; Wilson v. Home Owners Mut. Ins. Co.; Construction of ambiguities; Westen v. Karwat; Boyd v. General Motors Acceptance Corp.; Loss of coverage under a policy when an exclusion in the policy applies to a particular claim; Century Sur. Co. v. Charron; Business use exclusion; MCL 500.2118(2)(f); Husted v. Dobbs; “Commercial use”; Lintern v. Zentz; The Legislature’s authority on matters of public policy; Woodman v. Kera, LLC; Tyler v. Livonia Pub. Schs.

    Summary:

    The court held that the trial court did not err by granting summary disposition for plaintiff-insurer and declaring that it had no obligation to defend or indemnify defendant-driver (Khan) in any action arising out of the car accident at issue. Khan was in the accident while transporting several passengers to work as a favor for his niece (B). He filed a claim with plaintiff for liability coverage, seeking defense and indemnification from suits arising out of the accident. The trial court found Khan was “transporting passengers for a fee (even if he did not receive the fee), and the policy excluded from coverage damage arising from the operation of a vehicle used to carry passengers for a fee, that the business-use exclusion applied and [plaintiff] did ‘not have a duty to defend any suit or settle any claim for bodily injury or property damage arising out of the’” accident. On appeal, the court agreed with the trial court that the policy exclusion’s “plain language was not ambiguous, stating that it ‘provides that there is no coverage for liability while a vehicle “is being used to carry persons or property for a fee”’ and that nothing in its language ‘require[d] that Khan himself receive the fee.’” The trial court correctly concluded that “whether Khan received compensation for transporting passengers for [B] was irrelevant, because the exclusion simply applies when the insured’s vehicle is being used to transport passengers for a fee. Further, because MCL 500.2118(2)(f) specifically allows ‘insurers to limit insurance coverage on the basis of business use,’ [plaintiff’s] exclusionary provision is consistent with public policy as expressed by our Legislature.” The court also found that the trial court “did not err by finding that no genuine issue of material fact existed regarding whether Khan had transported passengers for a fee and, as a result, that the business-use exclusion in his policy barred his claim.” Although Khan “did not receive payment for assisting [B], either from the passengers or from [B], each passenger in Khan’s vehicle either paid, or was expected (and expecting) to pay, [B] for the transportation they received.” The clear, unambiguous language of the business-use exclusion barred “liability coverage when an insured’s vehicle is used to transport persons for a fee and, as a result, the trial court did not err by granting summary disposition” for plaintiff on the basis of the exclusion. Affirmed.

    Full Text Opinion

  • Criminal Law (4)

    Full Text Opinion

    e-Journal #: 73663
    Case: People v. Jones
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Redford, Meter, and O’Brien
    Issues:

    Ineffective assistance of counsel; People v. Lane; People v. Head; People v. Douglas; Trial strategy; People v. Dunigan; People v. Matuszak; People v. Stewart (On Remand); People v. Muhammad; Failure to advance a meritless position or make a futile motion; People v. Henry (After Remand); People v. Ericksen; A substantial defense; People v. Dixon; People v. Jackson (On Reconsideration); Prejudice; People v. Randolph; Hearsay; Unavailable witness exception; MRE 804(a); Former testimony exception; MRE 804(b)(1); Waiver; People v. Carter; Double jeopardy; People v. Baham; People v. Ream; Legislative intent; People v. Barber (On Remand); AWIGBH; MCL 750.84(1) & (3); People v. Bailey; Principle that unpublished opinions can be persuasive but are not binding; People v. Manuel; Failure to enforce procedures under MCL 780.972 & 780.961(2); Shackling; People v. Davenport; People v. Horn

    Summary:

    The court held that defendant was not denied the effective assistance of counsel. He was convicted of second-degree murder and AWIGBH arising out an altercation in which the victim was stabbed and ultimately died. On appeal, the court rejected his argument that he was denied the effective assistance of counsel, holding that he failed to demonstrate a reasonable probability that, but for any unprofessional errors by counsel, the result of the trial would have been different. It noted that counsel’s failure to present certain witness testimony did not deprive defendant of a substantial defense, and that he “adequately counseled and prepared defendant regarding his decision whether to testify.” The court also found that any objection by counsel on double jeopardy grounds, or based on the supplemental jury instruction, would have been futile. It further held that defendant failed to show that counsel “should have done anything differently with respect to seeking to enforce the requirements of MCL 780.961(2) and MCL 780.972, or that any such additional actions by [counsel] were reasonably likely to have led to a different outcome in the case.” Finally, the court noted that although the trial court abused its discretion by requiring him to wear leg shackles, he “presented no evidence that he was prejudiced by the shackling.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73696
    Case: People v. McBride
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Shapiro, Servitto, and Letica
    Issues:

    Whether the trial court is required to advise defendants seeking to waive a jury trial of their right to a unanimous verdict; People v. Allen; MCL 763.3(1); MCR 6.402; People v. Mosly; People v. Shields; People v. James (After Remand)

    Summary:

    The court held that “given the absence of any Michigan statute, court rule, or caselaw requiring trial courts to advise defendants" seeking to waive a jury trial "of their right to a unanimous verdict,” defendant failed to establish plain error as to his jury trial waiver. Thus, it affirmed his convictions and sentences. He argued that his jury waiver was invalid, specifically because the trial court did not inform him that a jury verdict must be unanimous. He made his waiver after his arraignment. Defendant “acknowledged on the record that he consulted with his attorney before making this decision.” The trial court advised him “that he had the constitutional right to a trial by jury and that it was his choice whether to proceed with a jury trial or a bench trial.” It ensured that he “understood that he would be giving up his constitutional right to a jury if he chose to have a bench trial. Defendant stated that he understood and that he wanted to proceed with a bench trial. Moreover, defendant signed a written waiver that was consented to by the prosecutor and approved by trial court.” Additionally, “before the bench trial began the trial court again confirmed with defendant that he wished to have a bench trial.” Thus, the trial court properly ascertained that he understood his right to have a jury trial, and his “waiver was voluntary, knowing, and intelligent.” The court has previously rejected his “argument that the trial court is required to inform a defendant seeking to waive a jury trial that a jury verdict must be unanimous in” James.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73678
    Case: People v. Sango
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gadola and Stephens; Concurrence – Gleicher
    Issues:

    Self-representation; People v. Anderson; People v. Richards; Substitution of counsel; People v. Strickland; Good cause; People v. Buie; People v. Meyers; Sufficiency of the evidence; People v. Wolfe; FIP; MCL 750.224f; People v. Perkins; Actual or constructive possession; People v. March; People v. Johnson; Felony-firearm; MCL 750.227b; People v. Avant; People v. Dillard

    Summary:

    The court held that the trial court committed reversible error when it neither engaged in the Anderson process nor made any finding of fact on the Anderson factors. But defendant did not meet the requisite good cause threshold necessary for substitution of counsel and thus, the trial court did not abuse its discretion when it denied that request. Further, there was sufficient evidence he was a FIP of a firearm in violation of MCL 750.224f and thus, committed felony-firearm in violation of MCL 750.227b. The court vacated his convictions due to the error regarding his self-representation request, and remanded for a new trial. He “made an unequivocal request to proceed in propria persona after voir dire had been completed, a jury selected, and in the middle of his counsel’s examination of the prosecution’s first witness.” The trial court denied his request and stated, “You may not represent yourself. That motion also is not timely made. If you wanted to represent yourself in this case you had months to make that request.” It did not make any determination as to whether he “was asserting his right to self-representation knowingly, intelligently, and voluntarily; nor whether defendant proceeding in propria persona would disrupt, unduly inconvenience, or burden the court and the administration of its business.” From the record the court could only conclude that its “decision was based on timing. It implied” he was dilatory in making the request. But as he “explained at trial, the circumstances that gave rise to his request to represent himself did not arise until his counsel refused to ask the ex-girlfriend questions which defendant thought he and his counsel agreed would be asked. Defendant explained the significance of the evidence sought to be elicited to his defense and while the court agreed in part, it also stated that it would not tell defense counsel ‘how to run his case.’ The court explicitly determined that the request was itself untimely, apparently referring to the fact that trial had already commenced.” However, the fact the trial has started cannot by itself “be the basis of an untimeliness determination.” Unlike in Anderson, the record did “not reflect a defendant who had numerous substitutions of counsel, rejected offers to represent himself and myriad pre-trial motions." Also, defendant’s request "did not include a request for an adjournment. The trial court did not cite any previous delays, indicate how the timing placed an additional burden on the prosecution, witnesses or the jury, nor note if any delay in proceedings would have been occasioned by self-representation.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73692
    Case: People v. Turner
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, Sawyer, and Boonstra
    Issues:

    Sufficiency of the evidence for first-degree child abuse & torture convictions; MCL 750.136b(2); MCL 750.85(1) & (2); People v. Thomas; Scope of a parent’s lawful authority to discipline his or her child; People v. Hicks; People v. Green; Intent; People v. Kanaan; People v. Hawkins; Motion for a mistrial; People v. Dickinson; People v. Dawson; People v. Dry Land Marina, Inc.; Removal of a juror exposed to extraneous influences; People v. Tate; MCL 768.18; Sentencing; Scoring of OVs 1, 3, 7, 8, & 12; MCL 777.31(1)(d) & (2)(b); MCL 777.33(1)(c); “Life-threatening”; People v. Chaney; MCL 777.37(1)(a); “Excessive brutality”; People v. Rosa; “Similarly egregious conduct”; People v. Rodriguez; MCL 777.38(1)(a); Asportation; People v. Barrera; Reliance on acquitted conduct in scoring OV 12; People v. Beck; Presumptive proportionality of a within guidelines sentence; People v. Odom; Unusual circumstances needed to overcome the presumption; People v. Lee

    Summary:

    Holding that there was sufficient evidence that defendant-Turner acted with the required intent to support her torture and first-degree child abuse convictions, and that the trial court did not abuse its discretion in handling a juror allegedly exposed to extraneous influences, the court affirmed her convictions. It also rejected her challenges and those of defendant-Lesure to the scoring of their OVs, except as to Turner’s score for OV 12, and subtracting those 10 points did not entitle her to resentencing. Lesure’s proportionality challenge to his within guidelines sentence also failed. Thus, the court affirmed their convictions (Lesure was convicted of first-degree child abuse) and sentences. It remanded for the ministerial task of correcting Turner’s guidelines score. The victim was Turner’s four-year-old daughter, A. The evidence showed that Turner tied A “to a chair and beat her to the point of sustaining severe internal injuries and leaving permanent scars, while the child screamed and begged to be released. A[] would have been utterly helpless, unable to protect herself, incapable of escaping, and powerless to even slightly deflect any of the impending blows. Turner could not possibly have been unaware that she was inflicting serious pain on” the child. Further, “even if physical discipline might ever be appropriate, the severity of the beatings inflicted by Turner was grossly disproportionate to A[]’s age. This evidence allowed the jury to find that Turner intended that A[] would feel the full physical and emotional impact of being beaten with a leather belt by a parent—a person to whom a child, especially a four-year-old child, would naturally look for security, protection, and guidance.” While Turner argued that she simply disciplined A to a “point where the child, unfortunately but simply, required rehydration and physical therapy[,]” the court noted that her “conduct exceeded the scope of anything recognized in a civilized society as mere ‘discipline.’” The court also rejected both defendants’ claims that the trial court abused its discretion in denying their motions for a mistrial and instead removing Juror 8. It commended “the trial court for its careful handling of the matter.”

    Full Text Opinion

  • Employment & Labor Law (2)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 73693
    Case: Lyons v. Department of Corr.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Gleicher, Stephens, and Cameron
    Issues:

    Employment discrimination & retaliation in violation of the Michigan Civil Rights Act (MCRA) (MCL 37.2101 et seq.); Collateral estoppel; Lyons v. Michigan Dep’t of Corrs. (6th Cir.); Moot issue of whether the dismissal of plaintiff’s circuit court case was premature; Gleason v. Kincaid; Barrow v. Detroit Election Comm’n

    Summary:

    The court affirmed the order granting defendants summary disposition in this case alleging employment discrimination and retaliation. The case involved several disciplinary investigations plaintiff was involved during his employment at a correctional facility. In addition to this case, he had filed an action in federal court. After the federal district court dismissed that action, defendants successfully moved for summary disposition in this case based on collateral estoppel. On appeal, plaintiff argued that the federal district court’s judgment was not final while his appeal of that decision was still pending. However, the U.S. Court of Appeals for the Sixth Circuit affirmed the district court’s decision dismissing his federal claims. The period in which he had to seek further review by the U.S. Supreme Court had since expired. Thus, the issue of whether the dismissal of his state court case was premature was moot. “Apart from challenging the finality of the district court’s judgment, plaintiff does not question whether collateral estoppel would otherwise bar his MCRA claims.” Thus, the court did not address the matter further. It was also unnecessary for it to consider the substantive merits of his MCRA claims, “as the trial court properly granted summary disposition on the basis of collateral estoppel.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73765
    Case: Black v. Pension Benefit Guar. Corp.
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Siler, Gibbons, and Nalbandian
    Issues:

    Termination of a defined-benefit plan; ERISA; Whether 29 USC § 1342(c) requires a judicial adjudication to terminate a pension benefit plan; Jones & Laughlin Hourly Pension Plan v. LTV Corp. (2d Cir.); In re UAL Corp. (7th Cir.); Pension Benefit Guar. Corp. v. Alloytek, Inc.; Allied Pilots Ass’n v. Pension Benefit Guar. Corp. (DC Cir.); In re Syntex Fabrics, Inc. Pension Plan (3d Cir.); Procedural due process; Leary v. Daeschner; Board of Regents of State Colls. v. Roth; Duncan v. Muzyn; Whether defendant-Pension Benefit Guaranty Corporation’s (PBGC) decision to terminate the plan was “arbitrary & capricious”; Pension Benefit Guar. Corp. v. Kentucky Bancshares, Inc. (Unpub. 6th Cir.); 5 USC § 706(2)(A); Pension Benefit Guar. Corp. v. LTV Corp.: National Ass’n of Home Builders v. Defenders of Wildlife; Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.; §§ 1342(a) & 1302(a)

    Summary:

    [This appeal was from the ED-MI.] The court joined other circuits and held that § 1342(c) of the ERISA does not require a judicial adjudication to terminate a pension-benefit plan. Rather, a plan may be terminated by an agreement between defendant-PBGC and the plan administrator. The PBGC and Delphi Corporation agreed to terminate Delphi’s salaried pension plan. Plaintiffs-retirees sued, objecting to the termination of the plan. The district court granted PBGC summary judgment. The retirees argued that termination of the plan required a judicial decree. But, after reviewing the statute, the court concluded that § 1342(c) provides an additional procedural alternative for terminating a distressed pension plan—by agreement between PBGC and the plan administrator. The court noted that this interpretation has been adopted in other circuits. It also rejected the retirees’ claim that the lack of a judicial hearing violated their due process rights, holding that they did “not have a property interest in the full amount of their vested pension benefits because the Salaried Plan document provides that only funded benefits at the time of plan termination are nonforfeitable.” Finally, the court rejected the retirees’ argument that the PBGC’s decision was “arbitrary and capricious.” Affirmed.

    Full Text Opinion

  • Family Law (1)

    Full Text Opinion

    e-Journal #: 73707
    Case: Teachout v. Teachout
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Cavanagh, and Swartzle
    Issues:

    Divorce; Challenges to the trial court’s jurisdiction & authority over the parties’ property; MCL 552.6(1); MCL 552.18 & 552.19; Engemann v. Engemann; MCL 552.12; MCL 600.611; Power to hold a litigant in contempt & to enter a default; Johnson v. White; Reed Estate v. Reed; Residency requirements; Smith v. Smith; MCL 552.9(1); Constitutionality & enforceability of Michigan’s no-fault divorce laws; Cowsert v. Cowsert; The electronic compilation of the MCLs as the official compilation; MCL 8.47(3); Contempt ruling; Cassidy v. Cassidy; Porter v. Porter; MCL 600.1701(f) & (g); Matter of Hague; In re Contempt of Dudzinski; The trial court’s authority to allow entry onto land for discovery purposes (such as an appraisal) & to limit the persons who could be present; MCR 2.310(B)(1)(b); MCR 2.302(C)(5); Hutchins v. Hutchins; Whether compliance with a court order was impossible; Arbor Farms LLC v. GeoStar Corp.; MCR 3.216(A)(1), (C)(1), & (C)(2); Attorney fees incurred due to a party’s contemptuous conduct; Taylor v. Currie; Due process; Cummings v. Wayne Cnty.; Huntington Nat’l Bank v. Daniel J Aronoff Living Trust; Property division; Richards v. Richards; Effect of failing to file a cross-appeal; Bank of Am., NA v. Fidelity Nat’l Title Ins. Co.

    Summary:

    The court rejected defendant-ex-husband’s challenges to the trial court’s jurisdiction and authority over the parties’ property, and concluded that it did not err in holding him in contempt. It also rejected his due process claims, and found that the trial court did not abuse its discretion in fairly evenly splitting their property between them. Finally, it declined to consider plaintiff-ex-wife’s challenges to the trial court’s decisions due to her failure to file a cross-appeal. Thus, it affirmed the divorce judgment. While defendant, proceeding in propria persona, cited “cases involving changes of domicile as affecting a court’s jurisdiction over a divorce” case, he did not assert that “plaintiff did not live in Calhoun County, Michigan, for the periods required by MCL 552.9(1).” Rather, his assertions as to domicile related to his contention that she “abandoned property by leaving the marital home.” This appeared to be a property argument; it was “not a jurisdictional argument. And in any event, although plaintiff left the marital home, her complaint indicates that she continued to reside in Calhoun County, Michigan, and there is no evidence to the contrary. The trial court had jurisdiction.” The trial court found defendant in contempt for violating three court orders. There was no dispute that he did so. Apart from his failed jurisdictional argument, he also appeared to challenge the correctness of the orders. But his “recourse if he disagreed with the orders was to seek an appeal; he could not simply disregard the orders on the basis of his subjective view that the orders were wrong or would later be declared invalid.” The court noted that despite the opportunity he was given “to purge himself of contempt and to comply with the trial court’s orders without facing more serious repercussions,” he persisted in violating them. Thus, consistent with the trial court’s warnings, “(1) a default was entered against defendant and (2) the trial court accepted plaintiff’s valuation of the real and personal property. This exercise of the trial court’s contempt powers, in light of defendant’s repeated violations of court orders, was not an abuse of discretion, particularly in light of the trial court’s attempts to employ less drastic measures to compel defendant’s compliance.”

    Full Text Opinion

  • Healthcare Law (1)

    Full Text Opinion

    This summary also appears under Insurance

    e-Journal #: 73701
    Case: Life Skills Residential, LLC v. Titan Ins. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Stephens, and Cameron
    Issues:

    First-party action for no-fault benefits for care in a residential program; MCL 500.3107(1)(a); Whether plaintiff provided adult foster care services; Lawfully rendered treatment; MCL 500.3157; Cherry v. State Farm Mut. Auto. Ins. Co.; The Adult Foster Care Licensing Act (AFCFLA) (MCL 400.701 et seq.); “Adult foster care facility”; MCL 400.703(4); Licensing requirement; MCL 400.713; “Foster care”; MCL 400.704(8); Life Skills Vill., PLLC v. Nationwide Mut. Fire Ins. Co.; “Supervision”; MCL 400.707(7); “Personal care”; MCL 400.706(1); “Protection”; MCL 400.706(5); Defining “room & board” using dictionary definitions; Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of MI; Distinguishing Olsen v. Allstate Ins. Co. (Unpub.)

    Summary:

    Holding that the trial court erred in determining that plaintiff-Life Skills Residential (LSR) unlawfully rendered adult foster care services to the insured (H), the court reversed summary disposition for defendant-insurer (Titan) in this first-party no-fault benefits case. H suffered a brain injury in a motor vehicle accident and received care from LSR in its residential program. Titan denied LSR payment because it believed LSR provided H adult foster care as defined by the AFCFLA without being licensed to do so, rendering the treatment unlawful and thus, non-compensable under MCL 500.3157. On appeal, the court concluded that the trial court erred when it determined LSR provided H “with personal care, protection, and room and board.” The court noted that LSR provided him “1) 24-hour staff availability, 2) daily checks, 3) transportation to medical appointments, 4) prompting, 5) coordination with care teams, and 6) socialization to foster a sense of community.” The court ruled that those services fell “under the category of supervision and not personal care.” It noted that in Life Skills, it “held that reminding a resident ‘to perform daily activities and conducting daily checks on his health and safety’ constituted ‘supervision’ under MCL 400.707(7), as amended by 1987 PA 257.” Transporting H to medical appointments also fell “under the definition of supervision as part of ‘[a]ssisting a resident in keeping appointments.’” Further, making 24-hour staff available by itself did not equate to providing H “with personal care. The uncontradicted testimony was that the staff’s assistance was limited to prompting and guiding [him] toward efficacious self-care, not the provision of personal assistance.” Given the lack of proof that LSR provided H “with foster care as defined in MCL 400.704(7), LSR was not required to be licensed as an adult foster care facility and its services were lawful.” The court further rejected Titan’s claim that the facts here were analogous to Olsen, concluding that H did not require or receive the same level of assistance. Remanded.

    Full Text Opinion

  • Insurance (2)

    Full Text Opinion

    This summary also appears under Contracts

    e-Journal #: 73676
    Case: Farm Bureau Gen. Ins. Co. of MI v. Hore
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Sawyer and Boonstra; Concurring in part, Dissenting in part – Ronayne Krause
    Issues:

    Action seeking a defense or indemnification under an insurance policy; An insurance policy as a contract that should be read as a whole to determine the parties’ intent; McKusick v. Travelers Indem. Co.; Contract interpretation; Wilson v. Home Owners Mut. Ins. Co.; Construction of ambiguities; Westen v. Karwat; Boyd v. General Motors Acceptance Corp.; Loss of coverage under a policy when an exclusion in the policy applies to a particular claim; Century Sur. Co. v. Charron; Business use exclusion; MCL 500.2118(2)(f); Husted v. Dobbs; “Commercial use”; Lintern v. Zentz; The Legislature’s authority on matters of public policy; Woodman v. Kera, LLC; Tyler v. Livonia Pub. Schs.

    Summary:

    The court held that the trial court did not err by granting summary disposition for plaintiff-insurer and declaring that it had no obligation to defend or indemnify defendant-driver (Khan) in any action arising out of the car accident at issue. Khan was in the accident while transporting several passengers to work as a favor for his niece (B). He filed a claim with plaintiff for liability coverage, seeking defense and indemnification from suits arising out of the accident. The trial court found Khan was “transporting passengers for a fee (even if he did not receive the fee), and the policy excluded from coverage damage arising from the operation of a vehicle used to carry passengers for a fee, that the business-use exclusion applied and [plaintiff] did ‘not have a duty to defend any suit or settle any claim for bodily injury or property damage arising out of the’” accident. On appeal, the court agreed with the trial court that the policy exclusion’s “plain language was not ambiguous, stating that it ‘provides that there is no coverage for liability while a vehicle “is being used to carry persons or property for a fee”’ and that nothing in its language ‘require[d] that Khan himself receive the fee.’” The trial court correctly concluded that “whether Khan received compensation for transporting passengers for [B] was irrelevant, because the exclusion simply applies when the insured’s vehicle is being used to transport passengers for a fee. Further, because MCL 500.2118(2)(f) specifically allows ‘insurers to limit insurance coverage on the basis of business use,’ [plaintiff’s] exclusionary provision is consistent with public policy as expressed by our Legislature.” The court also found that the trial court “did not err by finding that no genuine issue of material fact existed regarding whether Khan had transported passengers for a fee and, as a result, that the business-use exclusion in his policy barred his claim.” Although Khan “did not receive payment for assisting [B], either from the passengers or from [B], each passenger in Khan’s vehicle either paid, or was expected (and expecting) to pay, [B] for the transportation they received.” The clear, unambiguous language of the business-use exclusion barred “liability coverage when an insured’s vehicle is used to transport persons for a fee and, as a result, the trial court did not err by granting summary disposition” for plaintiff on the basis of the exclusion. Affirmed.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Healthcare Law

    e-Journal #: 73701
    Case: Life Skills Residential, LLC v. Titan Ins. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Stephens, and Cameron
    Issues:

    First-party action for no-fault benefits for care in a residential program; MCL 500.3107(1)(a); Whether plaintiff provided adult foster care services; Lawfully rendered treatment; MCL 500.3157; Cherry v. State Farm Mut. Auto. Ins. Co.; The Adult Foster Care Licensing Act (AFCFLA) (MCL 400.701 et seq.); “Adult foster care facility”; MCL 400.703(4); Licensing requirement; MCL 400.713; “Foster care”; MCL 400.704(8); Life Skills Vill., PLLC v. Nationwide Mut. Fire Ins. Co.; “Supervision”; MCL 400.707(7); “Personal care”; MCL 400.706(1); “Protection”; MCL 400.706(5); Defining “room & board” using dictionary definitions; Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of MI; Distinguishing Olsen v. Allstate Ins. Co. (Unpub.)

    Summary:

    Holding that the trial court erred in determining that plaintiff-Life Skills Residential (LSR) unlawfully rendered adult foster care services to the insured (H), the court reversed summary disposition for defendant-insurer (Titan) in this first-party no-fault benefits case. H suffered a brain injury in a motor vehicle accident and received care from LSR in its residential program. Titan denied LSR payment because it believed LSR provided H adult foster care as defined by the AFCFLA without being licensed to do so, rendering the treatment unlawful and thus, non-compensable under MCL 500.3157. On appeal, the court concluded that the trial court erred when it determined LSR provided H “with personal care, protection, and room and board.” The court noted that LSR provided him “1) 24-hour staff availability, 2) daily checks, 3) transportation to medical appointments, 4) prompting, 5) coordination with care teams, and 6) socialization to foster a sense of community.” The court ruled that those services fell “under the category of supervision and not personal care.” It noted that in Life Skills, it “held that reminding a resident ‘to perform daily activities and conducting daily checks on his health and safety’ constituted ‘supervision’ under MCL 400.707(7), as amended by 1987 PA 257.” Transporting H to medical appointments also fell “under the definition of supervision as part of ‘[a]ssisting a resident in keeping appointments.’” Further, making 24-hour staff available by itself did not equate to providing H “with personal care. The uncontradicted testimony was that the staff’s assistance was limited to prompting and guiding [him] toward efficacious self-care, not the provision of personal assistance.” Given the lack of proof that LSR provided H “with foster care as defined in MCL 400.704(7), LSR was not required to be licensed as an adult foster care facility and its services were lawful.” The court further rejected Titan’s claim that the facts here were analogous to Olsen, concluding that H did not require or receive the same level of assistance. Remanded.

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  • Litigation (2)

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    This summary also appears under Probate

    e-Journal #: 73698
    Case: In re Conservatorship of Bobbie Jean Lee
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, Sawyer, and Boonstra
    Issues:

    Petition objecting to co-conservators’ annual account; Dismissal as a sanction; Vicencio v. Ramirez; Kalamazoo Oil Co. v. Boerman; Making a factual determination as to the objections without a hearing on the issue allowing petitioner to present her case; MCR 5.310(C)(2)(c)(iv); Due process; In re Adams Estate

    Summary:

    The court held that the trial court abused its discretion in dismissing petitioner-Bond’s petition as to objections to the co-conservators’ annual account of the estate of Bobbie Jean Lee as a sanction for failing to appear at a hearing. It also abused its discretion in making a factual determination as to her objections without a hearing to allow her to present her case, contrary to MCR 5.310(C)(2)(c)(iv). Thus, the court vacated the order dismissing her petition with prejudice and remanded. Bond is one of Lee’s daughters. There was a dispute over alleged inconsistencies in an annual accounting prepared by Lee’s other two daughters (and former co-conservators). On appeal, Bond asserted that “dismissal was a harsh, unjustified sanction considering that” she was absent because she was helping Lee in a medical emergency. It appeared that the trial court deemed her “violation willful because ‘she could have called,’ but it did not consider whether a medical emergency might be a relatively less egregious level of willfulness. The trial court otherwise simply found that the case had been going on longer than” it thought was warranted, and “made improper factual findings.” The record did not indicate “that Bond had a history of noncompliance or delay,” and the court noted that none of “Lee’s children appeared. The circumstances suggest little prejudice to any party. Most importantly,” while the court appreciated the trial court’s frustration, “it clearly gave no consideration to whether a lesser sanction would be more appropriate. The trial court did not offer adequate justification for dismissing the petition upon Bond’s failure to appear. Such a harsh result, particularly when the trial court failed to examine alternatives and to evaluate the Vicencio factors, falls outside the range of reasonable and principled outcomes and is a palpable error.” Further, while it disagreed with Bond’s claim that “the trial court effectively granted summary disposition to the former co-conservators concerning Bond’s objections to the annual accounting before” discovery was completed, it found that the trial court violated MCR 5.310(C)(2)(c)(iv), which “obligates the trial court to hold a hearing where there remain unresolved objections to the annual accounting before making its determination on the merits.”

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    This summary also appears under Employment & Labor Law

    e-Journal #: 73693
    Case: Lyons v. Department of Corr.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Gleicher, Stephens, and Cameron
    Issues:

    Employment discrimination & retaliation in violation of the Michigan Civil Rights Act (MCRA) (MCL 37.2101 et seq.); Collateral estoppel; Lyons v. Michigan Dep’t of Corrs. (6th Cir.); Moot issue of whether the dismissal of plaintiff’s circuit court case was premature; Gleason v. Kincaid; Barrow v. Detroit Election Comm’n

    Summary:

    The court affirmed the order granting defendants summary disposition in this case alleging employment discrimination and retaliation. The case involved several disciplinary investigations plaintiff was involved during his employment at a correctional facility. In addition to this case, he had filed an action in federal court. After the federal district court dismissed that action, defendants successfully moved for summary disposition in this case based on collateral estoppel. On appeal, plaintiff argued that the federal district court’s judgment was not final while his appeal of that decision was still pending. However, the U.S. Court of Appeals for the Sixth Circuit affirmed the district court’s decision dismissing his federal claims. The period in which he had to seek further review by the U.S. Supreme Court had since expired. Thus, the issue of whether the dismissal of his state court case was premature was moot. “Apart from challenging the finality of the district court’s judgment, plaintiff does not question whether collateral estoppel would otherwise bar his MCRA claims.” Thus, the court did not address the matter further. It was also unnecessary for it to consider the substantive merits of his MCRA claims, “as the trial court properly granted summary disposition on the basis of collateral estoppel.”

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  • Negligence & Intentional Tort (1)

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    e-Journal #: 73684
    Case: Barnes v. Q Line Detroit, LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Redford, Meter, and O’Brien
    Issues:

    Action arising from a bicycle slipping into tracks causing a fall; Premises liability; Estate of Trueblood v. P&G Apts., LLC; Stitt v. Holland Abundant Life Fellowship; Lugo v. Ameritech Corp., Inc.; Open & obvious danger; Buhl v. City of Oak Park; Slaughter v. Blarney Castle Oil Co.; Special aspects; Hoffner v. Lanctoe

    Summary:

    Concluding no questions of material fact existed and that a reasonable juror could only find that the condition was open and obvious lacking special aspects, the court affirmed summary disposition for defendants-Q Line Detroit, LLC, and M-1 Rail. Plaintiff’s bicycle slipped into the Q Line tracks causing her to fall. The court held that they were an open and obvious condition. “They were not hidden or obscured in anyway. Indeed, plaintiff testified that she could clearly see the tracks as she biked down” the street. “A person of ordinary intelligence could readily observe the tracks and discover the hazard posed by riding a bike over them; the tracks are not even with the ground, so riding a bicycle over the tracks could cause a person to fall.” Plaintiff argued that there was “a question of fact whether the danger posed by the Q Line tracks was open and obvious because she testified at her deposition that she did not believe that she could potentially injure herself by riding her bike over the tracks. But the test for whether a condition is open and obvious is an objective one, so whether a plaintiff subjectively knew that the condition was hazardous is not relevant.” Because the court assumed for purposes of the appeal that she was an invitee, it addressed “whether special aspects existed such that liability may still exist for the open and obvious hazard posed by” the tracks. Plaintiff asserted “that ‘[i]t is clearly evident that’” they were unreasonably dangerous. The court found that “the risk of harm posed by falling off a bike because of the Q Line tracks is not comparable to the risk of harm posed by falling into a thirty-foot-deep pit.” It disagreed that “‘[i]t is clearly evident that’ the Q Line tracks were unreasonably dangerous,” and held that no reasonable juror could determine “that any special aspect of the Q Line tracks created an unreasonably dangerous hazard.” As to whether they were effectively unavoidable, the trial court determined that “plaintiff clearly had a choice whether to confront the Q Line tracks while riding her bike; she could have easily gotten off and walked her bike.” Alternatively, she “could have taken a different street to avoid the tracks. In the face of these readily available alternatives to riding a bike across the Q Line tracks, no reasonable juror could conclude that the danger posed by crossing” them on a bike was effectively unavoidable.

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  • Probate (1)

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    This summary also appears under Litigation

    e-Journal #: 73698
    Case: In re Conservatorship of Bobbie Jean Lee
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, Sawyer, and Boonstra
    Issues:

    Petition objecting to co-conservators’ annual account; Dismissal as a sanction; Vicencio v. Ramirez; Kalamazoo Oil Co. v. Boerman; Making a factual determination as to the objections without a hearing on the issue allowing petitioner to present her case; MCR 5.310(C)(2)(c)(iv); Due process; In re Adams Estate

    Summary:

    The court held that the trial court abused its discretion in dismissing petitioner-Bond’s petition as to objections to the co-conservators’ annual account of the estate of Bobbie Jean Lee as a sanction for failing to appear at a hearing. It also abused its discretion in making a factual determination as to her objections without a hearing to allow her to present her case, contrary to MCR 5.310(C)(2)(c)(iv). Thus, the court vacated the order dismissing her petition with prejudice and remanded. Bond is one of Lee’s daughters. There was a dispute over alleged inconsistencies in an annual accounting prepared by Lee’s other two daughters (and former co-conservators). On appeal, Bond asserted that “dismissal was a harsh, unjustified sanction considering that” she was absent because she was helping Lee in a medical emergency. It appeared that the trial court deemed her “violation willful because ‘she could have called,’ but it did not consider whether a medical emergency might be a relatively less egregious level of willfulness. The trial court otherwise simply found that the case had been going on longer than” it thought was warranted, and “made improper factual findings.” The record did not indicate “that Bond had a history of noncompliance or delay,” and the court noted that none of “Lee’s children appeared. The circumstances suggest little prejudice to any party. Most importantly,” while the court appreciated the trial court’s frustration, “it clearly gave no consideration to whether a lesser sanction would be more appropriate. The trial court did not offer adequate justification for dismissing the petition upon Bond’s failure to appear. Such a harsh result, particularly when the trial court failed to examine alternatives and to evaluate the Vicencio factors, falls outside the range of reasonable and principled outcomes and is a palpable error.” Further, while it disagreed with Bond’s claim that “the trial court effectively granted summary disposition to the former co-conservators concerning Bond’s objections to the annual accounting before” discovery was completed, it found that the trial court violated MCR 5.310(C)(2)(c)(iv), which “obligates the trial court to hold a hearing where there remain unresolved objections to the annual accounting before making its determination on the merits.”

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  • Social Security Law (1)

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    This summary also appears under Constitutional Law

    e-Journal #: 73767
    Case: Ramsey v. Commisioner of Soc. Sec.
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: White and Donald; Dissent – Siler
    Issues:

    Whether issue exhaustion is a requirement in Appointments Clause challenges to administrative law judge (ALJ) appointments; Lucia v. Securities & Exch. Comm’n; Jones Bros., Inc. v. Secretary of Labor; Island Creek Coal Co. v. Bryan; Cirko v. Commissioner of Soc. Sec. (3d Cir.); Carr v. Commissioner of Soc. Sec. (10th Cir.); Davis v. Commissioner of Soc. Sec. (8th Cir.); Judicially imposed exhaustion requirements; Sims v. Apfel; McCarthy v. Madigan; 20 CFR §§ 404.949 & 416.1433(a)(3); The nature of the claim presented; Maloney v. Commissioner of Soc. Sec. (Unpub. 6th Cir.); Anderson v. Barnhart (8th Cir.); Shaibi v. Berryhill (9th Cir.); Mills v. Apfel (1st Cir.); Mathews v. Eldridge; Freytag v. C.I.R.

    Summary:

    [This appeal was from the ED-MI.] In an issue of first impression in this circuit, the court held that a claimant does not forfeit an Appointments Clause challenge in a Social Security proceeding by failing to raise that claim before the agency. Plaintiffs/claimants were all denied Social Security disability and/or supplemental security income benefits. While judicial review was pending, they moved to add an Appointments Clause challenge to the ALJs’ appointments, a claim they did not raise during the administrative hearing process. This claim was brought in light of Lucia, which held that the Securities and Exchange Commission’s ALJs “had not been appointed in a constitutionally legitimate manner” and that a new hearing before a different ALJ was required. Like those ALJs, the ALJs in Social Security cases “were not appointed by the President, a court, or the head of department. Rather, they were hired by the Office of Personnel Management.” Plaintiffs argued that the same reasoning that applied in Lucia applied to Social Security ALJs, and that they were entitled to new hearings before different judges. Defendant-Commissioner argued that they forfeited their argument by not raising it at the administrative level, and the district court agreed. However, the court joined the Third Circuit by holding that in an Appointments Clause challenge in Social Security proceedings, issue exhaustion is not required. Although other circuits have disagreed, it found the reasoning in Cirko persuasive. The court noted that an “Appointments Clause challenge involves neither an exercise of discretion, nor an issue within the agency’s special expertise.” Thus, it agreed with Cirko that “‘exhaustion is generally inappropriate where a claim serves to vindicate structural constitutional claims like Appointments Clause challenges, which implicate both individual constitutional rights and the structural imperative of separation of powers.’” The court found it significant that the Social Security Act regulations do not give claimants notice that the failure to raise an Appointments Clause challenge prohibits them from doing so in the future. The court noted that its holding was “narrow”—“only that a claimant does not forfeit an Appointments Clause challenge in a Social Security proceeding by failing to raise that claim before the agency.” Thus, it concluded that plaintiffs were entitled to a new hearing before different ALJs. Vacated and remanded to the Social Security Administration.

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  • Termination of Parental Rights (2)

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    e-Journal #: 73722
    Case: In re Baumgartner
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Markey, K.F. Kelly, and Tukel
    Issues:

    Termination under §§ 19b(3)(b)(i) & (j); In re Beck; In re Ellis; In re Hudson; In re BZ; In re Miller; Reasonable reunification efforts; MCL 712A.19a(2)(c); Child’s best interests; In re Moss Minors; In re Olive/Metts Minors; In re White

    Summary:

    Holding that §§ (i) and (j) existed, MCL 712A.19a(2)(c) was implicated and reasonable efforts at reunification were unnecessary, and termination of respondent-mother’s parental rights was in the child’s (E) best interests, the court affirmed. The trial court determined that §§ (i) and (j) “were satisfied because substance abuse continued to be an unrectified problem which prevented respondent from properly caring for [E], and because respondent was in no better position to plan or care for [E] than she was when the court terminated her parental rights to” H. Her drug use caused H and E “to be born with drugs in their systems and to have withdrawal symptoms, establishing ‘physical injury’” to them. Also, “her ongoing use of illegal drugs and failure to seek and obtain substance abuse treatment after nearly two and a half years of virtually continuous child protective proceedings established a reasonable likelihood that [E] would suffer an injury in the foreseeable future if placed in” her home. For the same reasons, the court held that there was no clear error by the trial court in holding that there existed a reasonable likelihood that E would be harmed if returned to respondent’s home.

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    e-Journal #: 73721
    Case: In re TN
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Shapiro, Servitto, and Letica
    Issues:

    Termination under § 19b(3)(c)(i); In re Williams; Principle that only one statutory ground must be met; In re Trejo Minors; In re HRC; Best interests of the child; In re Moss Minors; In re Olive/Metts Minors; In re Frey; In re White

    Summary:

    Holding that § (c) was met, and that termination was in the child’s best interests, the court affirmed termination of respondent-mother’s parental rights. Her rights were terminated based on allegations of domestic violence, “lack of stable housing, lack of employment, lack of treatment for mental health issues, and struggles with resource availably and management.” On appeal, the court rejected her argument that the DHHS failed to prove a statutory ground for termination. It agreed with the trial court that, under § (c), there was “clear and convincing evidence presented establishing that mother did not rectify her mental health, domestic violence, parenting skills, and resource barriers in the 704 days that this case was pending.” The evidence further showed that she would “not be able to rectify these conditions within a reasonable time considering the amount of services that were offered, the barriers that still continue to exist, and the child’s age.” The court also rejected her claim that termination was not in the child’s best interests. “After considering the testimony given, mother’s failure to benefit from the services offered, and her continued relationship with father despite its negative effects on” the child, the trial court found, and the court agreed, that “in light of the legislative mandate for permanency and by a preponderance of the evidence, it was in the best interests of [the child] to terminate mother’s parental rights.”

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