Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Attorney fees under MCL 500.3148(1); Principle that PIP benefits are overdue if not paid within 30 days after an insurer receives reasonable proof of the fact & amount of loss sustained; MCL 500.3142(2); Reasonableness; Moore v Secura Ins; Case evaluation sanctions; Whether a verdict may be adjusted for amounts paid before trial; MCR 2.403(O)(1) & (3)
The court held that plaintiff was entitled to fees and costs because of defendant-insurer’s failure to timely pay PIP benefits, but it rejected his argument that the verdict should be adjusted for case evaluation sanction purposes based on money defendant paid to satisfy a Medicaid lien before trial. Thus, it affirmed in part, reversed in part, and remanded with instructions that “the trial court, after determining the amount of attorney fees to which plaintiff is entitled, shall then address whether the verdict should be adjusted for purposes of case evaluation sanctions by adding the amount of the attorney fee award.” Plaintiff was injured in an auto accident and defendant “was responsible for the payment of certain medical and replacement services benefits.” The matter was submitted to case evaluation, resulting in an award of $50,000, which both sides rejected. Following a bench trial, plaintiff was awarded $27,806.24. Because this amount was less than the case evaluation award, the trial court awarded sanctions to defendant. On appeal, the court agreed with plaintiff that he was entitled to fees and costs because of defendant’s failure to timely pay the benefits. It seemed that he was “entitled to an attorney fee award for any attendant care and replacement services benefits that the trial court awarded at trial and for which defendant could have determined, at the time of the case evaluation, were, in fact, due and owing and not paid within 30 days.” The court found that the “trial court’s conclusions that plaintiff was entitled to interest from the date of case evaluation on the amounts awarded at trial because defendant was at that time aware of the outstanding claim is at odds with its later conclusion that the payment was not overdue and the delay in payment was not unreasonable.” However, it rejected his claim that the award should have also included over $65,000 defendant paid the day before trial to the State of Michigan in satisfaction of a Medicaid lien for medical bills initially paid by Medicaid after the accident. First, it was “clear that the Medicaid lien was never included in the case evaluation award and, therefore, there would be no basis for including it in the verdict in determining case evaluation sanctions.” Second, MCR 2.403(O)(1) does not “provide for an adjustment for the pretrial payment of a portion of the claim.”
Sentencing; Proportionality; People v Steanhouse; Effect of the trial court explaining it would have imposed the same sentence; People v Mutchie
Concluding that defendant’s sentence was proportionate, and noting the trial court made it clear that it would have sentenced him as it did even if the guidelines had initially been correctly scored, the court rejected his claim that he was entitled to resentencing. He was convicted of second-degree home invasion and sentenced as a third-offense habitual offender to 30 to 360 months. The trial court originally scored 10 points for OV 9, but it was undisputed it should have been scored at 0 points. He moved for resentencing. The trial court made the correction, ordering OV 9 rescored at 0 points. Defendant’s original guidelines minimum range was 29 to 85 months; correcting the scoring error lowered it to 19 to 57 months. But the trial court denied his motion for resentencing as unnecessary, stating that, if it resentenced him, it would “impose an identical 30-month minimum sentence, notwithstanding the recalculation of” his minimum guidelines range. On appeal, he speculated “that his original sentence was intended to be at the bottom of his original guidelines range, so he is entitled to a new sentence at the bottom of his revised guidelines range. This argument places undue weight on the guidelines.” The court noted that while they are a very relevant consideration, proportionality is the proper analysis. At the motion hearing, “the trial court appropriately and unequivocally stated its familiarity with the case, and it explained that a 30-month minimum sentence is what it would have imposed originally even if defendant’s sentencing guidelines had been properly scored. A trial court’s sentencing decision will be upheld despite any underlying errors in scoring the guidelines if it is clear that the trial court would have imposed the same sentence irrespective of the errors and that sentence is otherwise not improper.” Affirmed.
Identity; People v Yost; Suggestive identification procedure; People v Sammons; Civilian-initiated identification procedure; Van Hook v Anderson (6th Cir); Ineffective assistance of counsel; People v Head; Trial strategy; People v Traver; Sentencing; Scoring of OV 4 (serious psychological injury requiring professional treatment); MCL 777.34(1)(a); Effect of the fact treatment has not been sought; MCL 777.34(2); Scoring of OV 13 (continuing pattern of criminal behavior); MCL 777.43(1)(c)
The court held that the trial court did not err by admitting evidence of a suggestive identification procedure that was not used by law enforcement or by scoring OVs 4 and 13, and that defendant was not denied the effective assistance of counsel. He was convicted of armed robbery, felonious assault, and felony-firearm. The trial court sentenced him as a fourth offense habitual offender to 25 to 90 years for armed robbery, 4 to 15 years for felonious assault, and 2 years for felony-firearm. On appeal, the court rejected his argument that the trial court erred by admitting evidence of a suggestive identification procedure, noting he “failed to cite a single case where an identification procedure used by a civilian was excluded for being too suggestive.” The court also rejected his claim that he was denied his right to the effective assistance of counsel, noting decisions as to “‘what evidence to present, whether to call witnesses, and how to question witnesses are presumed to be matters of trial strategy.’” In addition, as to the decision not to call his ex-wife, “it was reasonable for defense counsel to decline to call a witness who could not account for defendant’s location at the time of the offense and could only speculate that he was in bed.” Further, as to another potential witness, “she did not submit an affidavit, so this court cannot know whether she would have even testified that she did not see defendant.” And although an instruction limiting the jury’s use of dog-tracking evidence “should have been given, and defense counsel erred by failing to” request it, defendant failed to show it “would have resulted in a different outcome at trial.” Finally, the court held that OVs 4 and 13 were properly scored. “The victim’s statement that he was traumatized and that he had stopped leaving his window open suggested an ongoing psychological injury that stemmed directly from the armed robbery.” And this criminal episode consisted of several felonious acts. “First, defendant, while armed with what appeared to be a firearm, stole the boyfriend’s bag out of the car—this constituted an armed robbery. Then, defendant pointed his gun at the girlfriend—this constituted a felonious assault. Finally, defendant pointed his gun at the boyfriend—this constituted a second felonious assault.” Affirmed.
Divorce; Property distribution; Invading separate property; MCL 552.401; Hanaway v Hanaway; Waiver; Allard v Allard; A passive investment; Dart v Dart; Spousal support
After remand for further proceedings as to two assets and elaboration about the spousal support award, the court affirmed the trial court’s rulings. One of the assets was defendant-ex-husband’s stock in a company referred to as SE. The other was his interest in a company referred to as CCB. As instructed, on remand the trial court considered the Hanaway factors, and made several factual findings. Defendant asserted it “did not make a separate finding as to whether MCL 552.401 applied.” However, the court noted that it “made multiple findings as to the” statute’s applicability. He also contended the statute did not apply because plaintiff-ex-wife did not contribute to the stock’s acquisition. As he acquired it before their marriage via a trust established by his father, he was correct that she did not contribute to its acquisition. But MCL 552.401 provides that a trial “court may award a party all or a portion of the property owned by his or her spouse when ‘the party contributed to the acquisition, improvement, or accumulation of the property.’” Given the use of the word “or” in the statute, the fact plaintiff did not contribute to the asset’s acquisition was not dispositive. The trial court made specific findings that she “contributed to the accumulation of the asset by her direct efforts as an employee and her management of the household and childcare for the couple’s children.” Defendant further contended that the statute did not apply because the company and its “shares did not appreciate during the marriage.” However, although an increase in the stock’s value was a measure of both parties’ contribution “to SE, effort which resulted in strengthening SE are also measures. Just as the court credited the defendant’s prodigious investment of time and talent into SE so could it credit plaintiff’s input.” As to his claim she waived application of the statute by failing to originally seek relief under it, the court found in Allard that “parties have no discernible rights to waive under . . . MCL 552.401.” The trial court did not clearly err in finding that defendant’s interest in CCB was a passive investment and thus, it “was properly excluded from the marital estate.” Finally, it clarified that plaintiff was to be awarded nonmodifiable spousal support in gross. Because it “was subject to the contingencies of death or remarriage and” was a definite sum to be paid in installments, this was not clearly erroneous.
Whether a claim sounds in medical malpractice or negligence; Bryant v Oakpointe Villa Nursing Ctr; Dorris v Detroit Osteopathic Hosp Corp; Negligent infliction of emotional distress (NIED) claims; Taylor v Kurapati; Mishandling of a corpse; Deeg v City of Detroit; The three-year period of limitations under MCL 600.5805(8)
The court held that the trial court erred by granting summary disposition for defendant-hospital on the basis that plaintiffs-parents’ claims against it sounded in medical malpractice, but properly granted summary disposition for the hospital and defendant-funeral home as to plaintiffs’ NIED claims. Finally, it held that the trial court should have considered plaintiffs’ mishandling of a corpse claims against the hospital without imposing a requirement that they show physical harm, but affirmed dismissal of this claim against the funeral home. Plaintiffs alleged both NIED and mishandling of a corpse after the funeral home initially cremated only the afterbirth material of their stillborn baby instead of the human remains. As to the hospital, the trial court found that plaintiffs’ complaint sounded in medical malpractice, and that the applicable limitations period had expired. As to the funeral home, it found plaintiffs’ emotional distress was not of the nature required for a NIED claim because they failed to show resulting physical harm. On appeal, the court agreed with plaintiffs that summary disposition for the hospital was improper because their claims did not sound in medical malpractice. “[P]laintiffs are not claiming that the hospital’s medical care was negligent, but rather that the hospital negligently cataloged and transferred the wrong human remains to the funeral home. Resolving these allegations does not require specialized medical knowledge that the jury would only be able to understand as explained by an expert.” However, the court upheld summary disposition for the funeral home on their NIED claims, noting there was “no genuine issue of material fact, upon which reasonable minds might differ, that neither plaintiff actually witnessed the negligent acts or demonstrated that they suffered severe emotional distress contemporaneously with the negligent acts.” The court agreed with plaintiffs that “Michigan law recognizes a claim for emotional distress arising from the mishandling of a corpse without a showing of resulting physical harm as well, and that the trial court erred to the extent that it may have understood otherwise.” On remand, the trial court should consider their claims against the hospital “without imposing a requirement that they show physical harm.” However, as to the funeral home, because they “did not show that the funeral home ever withheld the stillborn child from them, they failed to establish a genuine issue of material fact" as to their mishandling of a corpse claims against it. Affirmed in part, reversed in part, and remanded.
Termination under §§ 19b(3)(c)(i) & (g); Distinguishing In re Mason; Child’s best interests; In re White
Holding that clear and convincing evidence supported termination under §§ (c)(i) and (g), and that it was in the child’s (T) best interests, the court affirmed the order terminating respondent-father’s parental rights. While he “testified at length about his plans for quickly building a stable life in which he could care for” T, and the supports he would have to help do so, there was “ample evidence casting doubt on respondent’s ability to follow through on his plans and remain in the community without using drugs, reoffending, and further destabilizing” T’s life. After being released from prison in 2018, he “quickly used cocaine, was jailed for two days, released again, beat up his cousin for sleeping with” T’s mother, removed “his electronic monitor, and went on the run.” Although he was working during this period, he failed to send money for T’s care. He tried to stay connected to T via unsanctioned FaceTime calls and visit efforts but did not contact the DHHS “to continue his work toward reunification. For almost six months after disappearing, while” this case was ongoing, he “made a daily choice to prioritize avoiding prison over working toward reunification with his son. This failure to prioritize” T followed his assurance to the trial court that he wished to be part of T’s “life and would do everything necessary to be reunited with” him. The court found Mason distinguishable due to respondent’s behavior. He was twice released, “and both times made choices casting doubt on the reasonable likelihood that” he will be able to provide T proper care and custody within “a reasonable time when next released.” In addition, he did not assert “he was denied services, and he participated in the proceedings throughout the case, except when he was evading arrest. The trial court recognized respondent’s rights could not be terminated purely because he was incarcerated or” due to his criminal history. Given his “past behavior, combined with his behavior both times he was released during the course of this case, there was no error in the trial court’s conclusion that respondent was unlikely to provide" T proper care and custody in a reasonable time. As to T’s best interests, it considered his bond with respondent but found that he was “a stranger” to T, who was strongly bonded to his maternal grandmother. The record evidence supported these findings.