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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Operating a common carrier while inebriated; 18 USC § 342; Interpretation of the term “operate”; Statutory context; United States v. Santos; United States v. Miller; Statutory purpose; Holloway v. United States; Rule of lenity; United States v. Bass; Chapman v. United States; McBoyle v. United States; United States v. Lanier; Sufficiency of the evidence; United States v. Taylor; Jury instructions; United States v. Fisher; United States v. Young; Sentencing; Denial of motion for a downward departure under USSG § 2D2.3; United States v. Gale; United States v. Theunick
[This appeal was from the WD-MI.] The court held in an issue of first impression that a pilot’s (defendant-Fitzgerald) preflight actions constituted the “operation of a common carrier” while inebriated. Fitzgerald took several preflight actions, including requesting flight clearance from air-traffic control, before his co-pilot concluded that Fitzgerald was too drunk to fly and reported him to airline authorities, who then called law enforcement. His blood-alcohol level registered 0.301% and 0.312%. He admitted that he was inebriated, but argued that “his preflight actions did not constitute operating the aircraft[.]” The statute does not define the term “operate” but, applying dictionary definitions, the court agreed with the district court that the plain meaning was “[t]o run or control the functioning of . . . .’” It held that Fitzgerald’s preflight steps—calibrating the altimeter, programming the flight-management system, turning on the auxiliary power unit, and requesting flight clearance from air-traffic control— were “necessary steps along the way” for the plane to take flight. The term “‘operate’ comprises a wide universe of actions—anything that causes a machine to work, works a machine, or controls a machine’s functioning.” When instructing the jury, “the district court interpreted ‘operates’ to include pilot actions ‘directly and proximately linked to actual operational or functional requirements for the flight.’” The court agreed that “[t]hese instructions fit nicely in the context of operating a complex airplane, including the reality that preflight actions might well dictate the airplane’s movement once the engines are fired up and the plane is in the air.” Further, the statutory propose of protecting passengers would be undermined if preflight conduct that could endanger them did not violate the statute. The court declined to apply the rule of lenity in Fitzgerald’s favor where there was no ambiguity and he “did not lack fair notice that he was acting illegally.” The court also held that the government produced sufficient evidence to uphold the jury’s verdict, and that there was no error in instructing the jurors or in answering their question. It reviewed the denial of Fitzgerald’s request for a downward departure based on the small number of passengers involved, but let the district court’s determination stand. Affirmed.
Action for equitable relief under the Employee Retiree Income Security Act (ERISA); § 502(a)(3) (29 USC § 1132(a)(3)); “Fiduciary duties” under ERISA; § 1001(b); §§ 1104(a)(1) & (a)(1)(B); Duty to disclose; Haviland v. Metropolitan Life Ins. Co.; James v. Pirelli Armstrong Tire Corp.; Sprague v. General Motors Corp.; Krohn v. Huron Mem’l Hosp.; Eddy v. Colonial Life Ins. Co. of Am. (DC Cir.); Gregg. v. Transportation Workers of Am. Int’l; Walker v. Federal Express Corp. (Unpub. 6th Cir.)
The court held that plaintiff-Vest failed to adequately plead that defendant-Resolute breached its fiduciary duties under ERISA by failing to notify her late husband of his right to convert a group life insurance policy to an individual policy after he stopped working for Resolute and began drawing long-term disability benefits. The court agreed with the district court that Vest “failed to plead ‘unique facts or circumstances’ showing defendant knew its ‘silence might be harmful’ and thus failed to establish her entitlement to equitable relief.” The court distinguished Krohn, where it found that a fiduciary could be held liable for providing incomplete or inaccurate information “‘in response to participants’ questions,’ and that providing ‘materially misleading’ information, whether negligently or intentionally, or by statement or omission, breaches this duty.” Vest did not plead any of the conditions for fiduciary liability set forth in Sprague. Further, the summary plan description was not required to provide life-insurance conversion information. Additionally, Vest failed to plead that “Resolute knew the ability to convert the optional life insurance would be important to” her husband and “‘that [its] silence might be harmful . . . .’” The court affirmed the district court’s dismissal of the case.
Constitutionality of MCL 388.1752b (allocating money from the State’s general fund to reimburse nonpublic schools for complying with health, safety, or welfare requirements mandated by law or administrative rule); Const. 1963, art. 8, § 2; Traverse City Sch. Dist. v. Attorney Gen.; Advisory Opinion re Constitutionality of 1974 PA 242; Actual costs defined; MCL 388.1752b(9) & (10); Whether a statute is facially unconstitutional; Judicial Attorneys Ass’n v. Michigan; Presumption that statutes are constitutional; In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38; Standing; MCL 600.2041(3); MCR 2.201(B)(4); Lansing Schs. Educ. Ass’n v. Lansing Bd. of Educ.; Michigan Educ. Ass’n v. Superintendent of Pub. Instruction; Const. 1963, art. 4, § 30
The court held that the Legislature may allocate public funds to reimburse nonpublic schools for actual costs incurred to comply with state health, safety, and welfare laws and administrative rules without offending Const. 1963, art. 8, § 2 if three criteria are met. Thus, it reversed the Court of Claims ruling that effectively found MCL 388.1752b unconstitutional on its face, and remanded for the Court of Claims to examine, under those criteria, each of the “actual costs” for which the provision permits reimbursement. It also directed the Court of Claims to consider plaintiffs’ claim that the statute violates Const. 1963, art. 4, § 30. It first held that plaintiffs had standing under MCL 600.2041(3), MCR 2.201(B)(4), and Lansing. Next, it rejected any finding that MCL 388.1752b is facially unconstitutional. Rather, public funds may be allocated “to reimburse nonpublic school for actual costs incurred in complying with state health, safety, and welfare” laws if the performance or action that must be undertaken to comply “(1) is, at most, merely incidental to teaching and providing educational services to private school students (non-instructional in nature), (2) does not constitute a primary function or element necessary for a nonpublic school to exist, operate, and survive, and (3) does not involve or result in excessive religious entanglement.” Further, it found that payments to cover criminal background check fees, disposing of instruments containing mercury, and for “maintaining ‘2 epinephrine auto-injectors’ in the school” as mandated by statute fit within these criteria. As to MCL 388.1752b(9), which states that actual cost, in part, “means the hourly wage for the employee or employees performing a task or tasks required to comply with a health, safety, or welfare" requirement, when “a nonpublic school employee is performing a health, safety, or welfare task mandated by law, he or she is not engaged, at that time, in employment for educational purposes, even if” the rest of his or her workday consists of educating students. Thus, public funds “are not aiding a person’s employment as a teacher or educator at a nonpublic school.” The court reversed summary disposition for plaintiffs and remanded.
Sentencing; Scoring of OV 15; MCL 777.45(1)(a) & (b); People v. Gray; Scoring of OVs generally; People v. Sargent; People v. McGraw; Principle that a misapprehension of the guidelines range results in a sentencing decision in reliance upon inaccurate information; MCL 769.34(10); People v. Francisco
Holding that OV 15 was improperly scored, resulting in an alteration of the applicable sentencing guidelines range, the court vacated defendant’s sentence and remanded for resentencing. She was sentenced as a second-offense habitual offender to 20 to 35 years for her plea-based conviction of conspiracy to deliver 450 or more but less than 1,000 grams of heroin or cocaine. On appeal, the court agreed with defendant that the trial court erred by scoring 100 points for OV 15, noting the case was not distinguishable from Gray. “The trial court’s reasoning that defendant possessed more than 450 grams in the course of the criminal conduct for which she was being sentenced was similar to the trial court’s reasoning in Gray that the defendant was in possession of the cocaine in the motel and in the car at the same time.” However, “as stated in Gray, McGraw requires a sentencing court to separate the conduct that constitutes the sentencing offense from the conduct constituting any counts that were dismissed pursuant to a plea agreement. It would be ‘fundamentally unfair’ to allow the prosecution to drop the charge of conspiracy to deliver more than 1,000 grams ‘while brokering a plea bargain, then resurrect it at sentencing in another form.’ Because defendant’s sentencing offense involved ‘450 grams or more but less than 1,000 grams’ of a controlled substance, only 75 points should have been scored for OV 15.” Using a 75-point score for OV 15, the guidelines’ recommendation for her "minimum sentence was 135-281 months, but the trial court’s upward adjustment of the score for OV 15 produced a range of 171-356 months.”
Sufficiency of the evidence to support defendant’s conviction for aggravated stalking; MCL 750.411i; People v. Harverson; People v. Velasquez; People v. Solloway Stalking defined; MCL 750.411i(1)(e); Harassment defined; MCL 750.411i(1)(d); Whether the conduct constituted willful harassment; Nastal v. Henderson & Assoc. Investigations, Inc.; People v. Coones; People v. White; Hayford v. Hayford; Whether the conduct would cause emotional distress to a reasonable person; Emotional distress; MCL 750.411i(1)(c)
Holding that there was sufficient evidence to support defendant’s conviction of aggravated stalking, the court affirmed. The conviction arose from 20 phone calls he made to his ex-wife while serving a prison sentence for stalking her. Defendant argued that because he was calling her in attempts to reach his children, this conduct could not constitute willful harassment. The jury was clearly justified in finding that he was not acting to serve a legitimate purpose. As in Coones, defendant contacted the victim in violation of a no-contact order, which was not legitimate conduct regardless of its purported purpose. As informed by White, defendant’s persistent phone calls were not justified even when attempting family reconciliation. Above all, the jury “was entitled to conclude from the evidence that [he] was not acting for a legitimate purpose.” Defendant also argued that his conduct would not, as a matter of law, cause emotional distress to a reasonable person. He did not dispute that the victim suffered emotional distress. Rather, he argued that the phone calls would not bring about emotional distress in a reasonable person. “Considered without context, it is possible a reasonable person receiving 20 phone calls from the same person over the course of 19 months might well suffer emotional distress.” But here, “the prosecution presented significant evidence of previous violence, abuse, and stalking that defendant perpetrated against” her. The 20 phone calls he made from prison were preceded by his long history of threatening and harassing her. Also, his calls constituted repeated violations of a no-contact order. Under these circumstances, a rational trier of fact could find that a reasonable person would have found his repeated phone calls distressing. Affirmed.
Habeas corpus; Sentencing enhancement under the Armed Career Criminal Act’s (ACCA) residual clause; Welch v. United States; Johnson v. United States; Whether a prior state conviction qualified as “violent”; Cradler v. United States; Sentence to “time-served” as part of habeas relief; United States v. Nichols; United States v. Hadden (4th Cir.); Ajan v. United States; Supervised release; United States v. Webb
The court held that the government’s arguments as to whether defendant-Mitchell was subject to enhanced sentencing under the ACCA had been decided by subsequent case law, which determined that at least one of his Tennessee felonies was not considered to be “violent.” Thus, the ACCA no longer applied to him. But it also held that the district court’s decision to sentence him to “time served” as part of his habeas relief was invalid. Once it was determined that Mitchell could not qualify for sentencing enhancement under the ACCA, his maximum sentence became 10 years. However, he had already served 17 years. The court held that the sentencing issue must be remanded because “a time-served sentence that is equivalent to a term-of-months sentence above the statutory maximum is invalid” under Nichols. It also held that the “district court has the discretion to select appropriate proceedings for correcting a sentence—so long as the corrected sentence complies with substantive and procedural reasonableness.” Affirmed in part, reversed in part, and remanded.
Medical malpractice; Whether the affidavit of merit (AOM) satisfied the requirements of MCL 600.2912d & MCL 600.2169 where the one most relevant specialty was cardiology (not interventional cardiology); Interpretation & application of MCL 600.2169; Qualifications as an expert; Woodard v. Custer; MCL 600.2169(1)(a)
The court held that the trial court properly determined that the AOM submitted by Dr. F (a board-certified cardiologist) on behalf of plaintiff satisfied the requirements of MCL 600.2912d and 600.2169, where the one most relevant specialty was cardiology, not interventional cardiology. Thus, it affirmed the order denying the motion by defendants-Dr. Gencheff and DLP Marquette General Hospital for summary disposition, which was based on the claim that plaintiff’s AOM was “defective because it was executed by a physician who was unqualified to render” an expert opinion. Before plaintiff’s decedent, Norczyk, died, he was taken to the Hospital, where Gencheff, a board-certified cardiologist and interventional cardiologist, was consulted and provided recommendations. The court found that the documentary evidence made it “clear that the difference between a cardiologist and an interventional cardiologist is that the latter is permitted or authorized to perform invasive procedures to address cardiac issues, whereas a general cardiologist engages in the practice of diagnosing, evaluating, and assessing cardiac problems but cannot perform invasive procedures.” The court held that the one most relevant specialty in this case was cardiology, not interventional cardiology, because the malpractice allegations did “not pertain to negligence in the performance of invasive procedures, but instead concern failures by Gencheff to act relative to Norczyk’s care and treatment, falling outside of and not encompassed by the performance of invasive procedures.” Defendants’ position was built on the proposition that, because plaintiff alleged that “Gencheff was negligent in not timely performing a catheterization, and because only an interventional cardiologist can perform a catheterization, Gencheff was practicing interventional cardiology” at the relevant time. However, nothing in the record suggested that “a general cardiologist is not just as capable as an interventional cardiologist in assessing a patient’s need for a catheterization or other invasive procedure.” It was “quite telling that defendants did not produce an affidavit or deposition testimony by Gencheff himself wherein he claims that he was practicing interventional cardiology, as opposed to general cardiology,” as to Norczyk’s care before invasive procedures were used. Also, F’s “summary disposition affidavit averred that Gencheff ‘was being consulted in the standard role of a board-certified cardiologist who was on call for cardiac consultations for patients presenting to’” the ER. Affirmed.
Prima facie case of negligence; Duty; Loweke v. Ann Arbor Ceiling & Partition Co., LLC; Fultz v. Union-Commerce Assoc.; Equipment; The doctrine of ejusdem generis; Atlantic Cas. Ins. Co. v. Gustafson; Riddle v. McLouth Steel Prods. Corp.
The court held that because defendant-Grand River Building Services (GRBS) employees did not perform any maintenance or exercise any influence over the cafeteria seats, they owed plaintiff no duty of ordinary care under the common law. Thus, the trial court correctly determined that GRBS was entitled to summary disposition. Plaintiff was injured when he sat on a defective cafeteria stool at defendant-school. He brought a negligence claim against GRBS, which supplied custodial and maintenance employees to defendant-District at the time of the injury. Under the terms of the contract, GRBS employees were required to wash all furniture during summer breaks, but the contract explicitly indicated that this obligation did not apply to tables and chairs except during the school year. Thus, as an initial matter, GRBS employees were not contractually required to clean the cafeteria tables or the attached seats during the summer of 2013. However, the contract further provided for an unidentified and undefined “contractual manager,” who was required to “report potentially hazardous conditions and items in need of repair including office lighting, emergency and exit lights, plumbing, and water cooler problems, etc., to the Operations office.” Because this language appeared to provide only a nonexhaustive list of hazardous conditions that must be reported, it could be interpreted to extend to items such as cafeteria seats. But a contracting party’s failure to perform a contractual promise does not constitute grounds for a third-party tort claim. The contract made GRBS “responsible for advising the District of the need for . . . all necessary repairs and replacements to the District’s facilities and equipment . . . .” It also stated that GRBS “may be required to purchase [,for cost,] any usable inventory of custodial supplies and maintenance/grounds supplies that may be on hand at the commencement of operations under an award Contract.” The last provision of any possible relevance required GRBS to “furnish all equipment: such as floor machines, vacuum systems and all other equipment.” The court held that even “if the parties did intend for the provisions to apply to cafeteria seats, and even taking into account” the contract provisions, “any failure of GRBS employees to advise the District of the need for repairs to the seats would” be insufficient to establish tort liability to plaintiff. Affirmed.
Whether the DHHS provided reasonable services to respondent before taking jurisdiction over the child; Distinguishing In re Mason; MCR 3.965(C)(4); Reasonable efforts findings; “Custodial” & “custodian”; In re Huisman; Statutory grounds to assume jurisdiction; In re BZ; In re Sanders; MCL 700.5103; In re Martin; Parenting time under MCL 712A.13(a)(13); Keweenaw Bay Indian Community (KBIC)
The court held that respondent-father was not the child’s (S) custodian and the DHHS was not required to provide reasonable efforts to “reunify” him with her prior to her removal at the initial stage of the proceedings. Also, it did not clearly err by finding that jurisdiction was proper under MCL 712A.2(b)(2). Finally, because the evidence showed that parenting time with him in a prison setting could be harmful to S’s well-being, the trial court did not abuse its discretion by denying his request for parenting time. He appealed by right the trial court’s order removing his infant daughter, S, (who is of Native American heritage) from the mother’s (HA) custody based on abandonment and an unfit environment for the child. He argued that the trial court erred in determining the DHHS provided reasonable services to him before taking jurisdiction over S. The court held that the trial court did not err by finding HA—the custodial parent—was provided reasonable services before it took jurisdiction over the child. Significant substance-abuse services were provided by both the DHHS and KBIC. Because respondent was never a custodial parent, however, he was not entitled to services to prevent S’s removal from HA’s home. He first argued that, under Mason, the trial court was required to provide services to him prior to removal. Because his parental rights were not terminated, his reliance on Mason was misplaced. Second, he cited MCR 3.965(C)(4) in support of his argument. The court held that it was apparent from the record that he had been imprisoned since before S’s birth, had never met the child, and did not provide any support for her. Affirmed.
Will contest; Undue influence; MCL 700.3407(1)(c); Adam v. Sylvan Golf Course; Capacity; MCL 700.2501; Removal of a personal representative; MCL 700.3611
The court held that the trial court did not err by denying appellants-heirs’ motion to remove appellee as personal representative (PR) of the decedent’s (V) estate, or by denying their motion for summary disposition seeking to invalidate a will, power of attorney, and deed. Appellants sought to remove appellee as PR, alleging he had been reckless and self-serving in administering the estate. They also sought to invalidate V’s will, appellee’s power of attorney, and a deed whereby V’s home was transferred to appellee upon V’s death. They alleged V was incompetent due to cognitive impairment. The trial court denied the motion to invalidate the documents and later denied the motion to remove appellee as PR. On appeal, the court rejected their argument that the trial court erred by denying their motion for summary disposition concerning the validity of the will, power of attorney, and deed. “Appellants argue[d] that because they provided medical evidence and appellee did not, the trial court was bound to grant their motion.” However, they cited “no legal authority that medical testimony on behalf of the nonmoving party is necessary to counter a motion for summary disposition such as that filed by appellants.” When the evidence “is viewed in the light most favorable to the nonmoving party, a genuine issue of material fact is apparent. The trial court did not err by denying appellants’ motion.” The court also rejected their claim that the trial court erred by denying their motion to remove appellee as PR, noting that “[w]hile some errors did occur,” they did not “rise to such a level that the trial court abused its discretion by denying” their motion. “Appellee, who is not an accountant or an attorney, has not performed perfectly in his role as [PR], but the trial court did not err in finding that appellants failed to prove that appellee ‘mismanage[d]’ the estate or undertook other actions requiring his removal.” Affirmed.