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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Commercial property insurance policy coverage dispute; Whether the policy language was ambiguous; Distinguishing Westfield Ins Co v Enterprise 522, LLC (ED MI); Whether the policy’s Protective Safeguards Endorsement (PSE) prevented defendant-insurer from denying coverage when it had notice plaintiff-insured did not have an automatic extinguishing system (AES); Equitable estoppel; Distinguishing Gordon v St Paul Fire & Marine Ins Co; Whether the policy should be reformed due to mutual mistake; Wolf v Mahar; Whether a genuine issue of material fact existed as to the sufficiency of plaintiff’s existing fire prevention equipment under the policy
The court held that the commercial property insurance policy at issue was not ambiguous on the basis it did not define an AES. Further, defendant-insurer was not precluded from denying coverage because it had notice there was no AES on the property and based on equitable estoppel. The court also rejected plaintiff-insured’s claim that the policy should be reformed due to mutual mistake, and concluded there was no genuine issue of material fact as to “whether plaintiff’s fire prevention equipment was sufficient to satisfy the requirements of the” policy’s PSE. Thus, it affirmed summary disposition for defendant. Defendant denied plaintiff’s claim after a fire because the property did not have an ASE. Plaintiff sued for breach of contract and the equitable relief of policy reformation. On appeal, it contended the policy language was ambiguous and “should be construed against defendant and in favor of coverage because an AES is not defined in the PSE.” The court disagreed, noting the “PSE refers to a P-9 system as ‘the protective system described in the Schedule,’ and the schedule itself refers to the P-9 as an AES. Additionally, § A(2) of the PSE provides a definition of an ‘automatic sprinkler system[.]’” As to plaintiff’s reliance on Westfield, the court found that case factually distinguishable. There, “the exclusion did not actually list a required protective device or service in the schedule, despite directing its insured to ‘maintain the protective devices or services listed in the schedule above.’ In this case, the PSE clearly indicates that plaintiff was required to maintain a ‘P-9’ system as a condition of insurance, and . . . defines both a P-9 and an AES with sufficient clarity to avoid confusion—at least in this case, in which it is undisputed that plaintiff did not have any sort of automatic sprinkler or fire extinguishing device in place.” As to plaintiff’s notice argument, its reliance on PSE § B(1) was misplaced. Defendant did not rely on § B(1) in denying coverage – it did so “under § A(1), which expressly provides that the presence of an AES on the property is a ‘condition of this insurance.’” As to equitable estoppel, the case on which plaintiff relied, Gordon, did not help it. And there was “no evidence of a mutually shared factual mistake by the parties regarding the impact of not having an AES at the property on the availability of coverage.”
Sentencing; Resentencing of juvenile defendants who were sentenced to life without parole (LWOP); People v Taylor
In an order in lieu of granting leave to appeal, the court vacated its 2022 order in this case, the Court of Appeals judgment (see e-Journal # 75500 in the 6/7/21 edition), and the trial court’s sentence, and remanded the case to the trial court for resentencing. Pursuant to Taylor, a trial court may not impose a LWOP sentence “on a defendant who was under 18 years of age at the time of his crime unless the prosecution has overcome its burden to rebut the presumption, by clear and convincing evidence, that [LWOP] is a disproportionate sentence.” Given that the trial court here “was not operating within this framework,” the court found that defendant was entitled to resentencing. Dissenting, Justice Viviano disagreed that defendant was entitled to resentencing. For the reasons given in his dissent in Taylor, he did “not believe there is a presumption that [LWOP] is a disproportionate sentence or that the prosecution is required to rebut” it in order for a LWOP sentence to be imposed “on a defendant who was under the age of 18 at the time of his crime.”
Sentencing; Proportionality of a sentence at the top of the guidelines range; People v Milbourn; People v Posey; People v Dixon-Bey
Rejecting defendant’s claim the trial court imposed a disproportionately harsh sentence by sentencing him at the top of his guidelines range, the court affirmed. He was convicted of reckless driving causing death and failure to stop at the scene of an accident resulting in serious impairment or death for a hit-and-run accident that killed a pedestrian. He was resentenced after a prior remand to 84 months to 15 years for reckless driving causing death and 1 to 5 years for failure to stop at the scene, to be served concurrently. At resentencing, the “parties agreed the guidelines range for the sentencing offense (reckless driving causing death) was 43 to 86 months.” The court concluded that because “the trial court did not list anything akin to the refusal to admit guilt as a factor in its proportionality analysis at resentencing, [its] simple indication it considered a lack of remorse in sentencing does not render the sentence unreasonable.” The court determined that the “trial court’s mention of defendant’s criminal record and disregard for life do not indicate impermissible double consideration of factors already encompassed in the guidelines. The guidelines include a mandate for sentencing courts to exercise their discretion to determine ‘where, on the continuum from the least to the most serious situations, an individual case falls and by sentencing the offender in accordance with this determination.’” The trial court cited “defendant’s criminal history and disregard for life as strong factors, which it gave weight to in placing [him] and his offense on the continuum presented by the guidelines range. [It] also made clear it considered the facts of the offense ‘heinous’ and ‘awful,’ a ‘factor[] not considered by the guidelines,’ which merited consideration.” The court found that “the trial court imposed a sentence ‘proportionate to the seriousness of the circumstances surrounding the offense and the offender,’ as required by the principle of proportionality, and within its discretion.” The court also noted the lack of any “authority suggesting that the trial court needs to consider factors not anticipated by the sentencing guidelines to justify a sentence that falls within the guidelines range.” It found that defendant failed to “overcome the presumption of proportionality produced by the trial court’s adherence to the guidelines.”
Flight jury instruction; Waived issue; Ineffective assistance of counsel; Failure to object to the instruction; Constitutionality of MCL 769.1k(1)(b)(iii); Separation of powers; Whether the statute is facially unconstitutional
The court held that defense counsel was not ineffective in failing to object to the flight instruction. Also, as to the constitutionality of MCL 769.1k(1)(b)(iii), the court held that because defendant's arguments have been considered and rejected by the court, he could not establish a plain error. He was convicted of first-degree premediated murder and mutilation of a dead body. He argued that counsel was ineffective in failing to object to the flight instruction. The evidence showed that he “suddenly ‘disappeared’ from his job on board” a United States Naval Sea Cadet Ship, leaving behind some of his possessions. “According to the prosecution’s theory, which was consistent with the evidence, this fleeing from the ship happened right after” the victim was killed. “This would constitute ‘fleeing from the scene of the crime’ and” supported the flight instruction. As to his argument regarding the constitutionality of MCL 769.1k(1)(b)(iii), the court noted that MCL 769.1k(1)(b)(iii) “allows a court to impose ‘any cost reasonably related to the actual costs incurred by the trial court without separately calculating those costs involved in the particular case.’” Defendant argued “that this statute violates our Constitution’s separation of powers because the statute constitutes an improper delegation by the Legislature to the judicial branch. This Court has already addressed this issue and held that the delegation of power is not unconstitutional.” Defendant also asserted “that the statute is facially unconstitutional because it violates a defendant’s right to due process by creating the potential for bias in trial judges who are pressured to raise money in the form of criminal sanctions to fund the court. This Court has also addressed and rejected this same argument.”
Judicial review of plea agreements; People v Rydzewski; Effect of an ambiguity
Holding that the trial court erred by finding a possible ambiguity in defendant’s plea and ordering resentencing, the court reversed. He pled guilty to conspiracy to teach the use of a firearm for the purpose of a civil disorder and felony-firearm, in exchange for dismissal of other charges in this case and in other cases. The trial court sentenced him to 32 months to 4 years for the former, and a consecutive term of 2 years for the latter. He moved to correct an invalid sentence, arguing there were ambiguities in his plea and that he expected a minimum sentence of between 0 and 9 months. The trial court found there was a possible ambiguity in the plea, ordered his sentence “stricken,” and ordered resentencing. On appeal, the court agreed with the prosecution that there was no ambiguity in the plea. “There was no confusion that the trial court had conducted a Cobbs evaluation and pronounced a likely minimum sentence of 32 months, because that evaluation was recited in the written plea agreement and stated on the record. There was also no confusion that there was no agreement to impose a sentence of 32 months.” The prosecution expressly stated “there was no sentence agreement, and defendant acknowledged that the court was ‘likely to give him 32 months’ but expressed the desire to address the trial court in person at sentencing regarding the ultimate sentence.” At sentencing, he “received a full opportunity to address the trial court and argue in support of a lesser sentence, and the trial court ultimately did not exceed its Cobbs evaluation of 32 months.” The trial court told him “that although his ‘initial’ guidelines range was zero to nine months, [it] was expressly not guaranteeing a minimum sentence within that range. Defendant signified his understanding.” Defendant could not “possibly have entered his plea on the expectation that he would receive a minimum sentence between zero and nine months.” Even if there was any ambiguity as to his “understanding of his guidelines range, any such confusion would have been irrelevant.” The trial court warned him “that his minimum sentence might not fall within the range of zero to nine months, to which defense counsel did not object.” As such, there was “unambiguously no agreement, understanding, or reasonable expectation that defendant would receive a minimum sentence of between zero and nine months. [His] plea could not have been made on the basis of a misunderstanding of the ramifications of that plea.”
Search & seizure; Motion to suppress evidence; Consent to search a wallet during a traffic stop; Schneckloth v Bustamonte; Sentencing; Procedural reasonableness; Whether the intended loss was mistakenly used in calculating the offense level rather than the actual loss; United States v Banks (3d Cir); Substantive reasonableness; Effect of a within-Guidelines sentence; Consideration of the 18 USC § 3553(a) factors & the individual characteristics of defendant & his offenses
The court held that the district court did not clearly error by ruling that defendant-Tellez failed to show a police officer’s check of his wallet, which contained incriminating evidence, was not consensual where he handed the wallet to the officer, thus giving nonverbal consent. It also rejected his sentencing challenges. He handed over the wallet during a routine traffic stop. He was charged with conspiracy to defraud the U.S., bank fraud, and identity theft. He moved to suppress the evidence, arguing he did not voluntarily consent to the search. The district court denied the motion. Tellez pled guilty, reserving the right to appeal the suppression ruling. The court found no clear error in the district court’s conclusion that he “voluntarily consented to the search of his wallet when he handed it to the officer.” He admitted he consented to a search of his vehicle. After that search, the officer asked him if he “had his wallet. Tellez indicated that he did, first by reaching for it, and then by handing the item over to the officer—telltale signs of a consented-to search.” The court rejected Tellez’s claim that, “‘Do you have your wallet,’ and ensuing instruction, ‘Let me see it for a moment’ failed to reflect the officer’s intent to search the item.” Tellez also challenged his sentence. He objected to the use of the intended loss to calculate his Guidelines offense level. While he was found with only 3 fraudulent gift cards, he also had a thumb drive containing information regarding 300 other debit and credit card accounts. The cards in his “wallet had been used to spend or withdraw an average of $1,400 per card.” The probation office calculated the intended loss by multiplying the 303 accounts by the $1,400 average. On appeal, Tellez argued “the district court mistakenly used intended (rather than actual) loss in calculating his offense level.” But at sentencing he asserted “the amount of intended loss should be $500 per account, not $1,400. He did not make the point he makes now—that it was error to use the intended loss metric altogether.” The court held that he failed to show plain error. “Even assuming the district court erred by using intended loss to derive Tellez’s sentencing range, any such error was neither obvious nor clear.” While the Third Circuit held in Banks that the loss to be used is limited to actual loss, as out-of-circuit precedent, this did “little to establish that the use of intended loss is ‘clearly contrary to the law [in this Circuit].’” His argument failed under existing Sixth Circuit law. The court also rejected his substantive reasonableness challenge, finding “the district court reasonably arrived at a sentence of 70 months, the bottom of the Guidelines range.” Affirmed.
Medical malpractice; Ottgen v Katranji
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 79169 in the 4/6/23 edition) and remanded the case to the Court of Appeals for reconsideration in light of the court’s opinion in Ottgen. The court denied leave to appeal in all other respects because it was not persuaded that it should review the question presented.
Variance request to keep chickens & a chicken coop on property in a One-Family Residential Zone; Ordinance interpretation; Pittsfield Twp v Malcolm
In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 79606 in the 6/20/23 edition), which held that “plaintiffs were not required to seek a variance and permission to keep chickens in a chicken coop on their property.” The court noted that the zoning ordinance at issue “stated what activities are permitted at the one-family detached dwelling on plaintiffs’ property: accessory uses and accessory structures customarily incidental to one-family detached dwellings.” Pursuant to Pittsfield Twp, under an ordinance that “specifically sets forth permissible uses under each zoning classification . . . absence of the specifically stated use must be regarded as excluding that use.” The court remanded the case to the Court of Appeals for consideration of whether the trial court erred in affirming the decision of defendant-Charter Township’s Zoning Board of Appeals to deny “plaintiffs’ request to keep chickens in a chicken coop on their property.”
Governmental immunity; Odom v Wayne Cnty; Defamation & tortious interference; “Governmental function”; American Transmissions, Inc v Attorney Gen; Motion to file an amended complaint; Gross negligence; Michigan Commission on Law Enforcement Standards (MCOLES); The Michigan Commission on Law Enforcement Standards Act (MCOLESA); Macomb County Sheriff’s Office (MCSO); Macomb Community College (MCC)
Because defendants-MCOLES and Rosa “were protected by governmental immunity from the tort claims levied against them and any amendment of the complaint would be futile,” the court affirmed the Court of Claims opinion and order granting summary disposition in favor of defendants and denying plaintiffs’ motion to file an amended complaint. Plaintiffs (law enforcement officers) “accused MCOLES, a government agency, of defamation and tortious interference with a contract.” They claimed “that instructors used excessive force, made sexual and sexist comments, and inappropriately touched students during and outside of training exercises.” The court held that “defamation claims against MCOLES go beyond the investigation and are based on the materials released and statements made to the Macomb Daily.” It concluded that governmental “immunity is extended in these circumstances under American Transmissions.” The court noted “MCOLES, through its agent Rosa, responded to a request for information and comment from a reporter about an investigation conducted within MCOLES’s governmental function.” The court determined that governmental “immunity protected MCOLES from tort liability for defamation and the Court of Claims correctly granted summary disposition in defendants’ favor.” The court held that the “Court of Claims also properly granted summary disposition in Rosa’s favor on governmental immunity grounds.” The court held that as “a government employee, Rosa’s right to protection is governed by MCL 691.1407(2), rather than subsection (1).” As described in Odom, “the immunity conferred on governmental employees depends on whether the tort alleged is intentional or negligent. [Plaintiff-] Franks accused Rosa of defamation.” Thus, the court found that “Rosa was entitled to governmental immunity either way.” The court noted that “Rosa was engaged in a governmental function in conducting his investigation and in answering questions posed by the Macomb Daily. Accordingly, the second element of the governmental immunity test is satisfied. Similarly, Rosa was acting within the scope of his authority.” The court noted that as “manager of the MCOLES Standards and Compliance Section, Rosa was tasked with investigating alleged violations of MCOLES’s standards, policies, procedures, laws, and regulations. When the MCSO and MCC brought the allegations of alleged sexual harassment and impropriety to MCOLES’s attention, it was Rosa’s job to investigate, prepare a report, and make recommendations, which he did.” The court found “Franks’s allegations do not rise to the necessary level of ‘gross negligence.’” The court concluded that absent “a showing the MCOLES investigation was conducted with malice or with reckless disregard for the truth, the statements supported by the evidence uncovered during that investigation could not be the result of gross negligence.”
Trip & fall in a grocery store; Whether a claim sounds in negligence or premises liability; Pugno v Blue Harvest Farms, LLC; Premises liability; Mouzon v Achievable Visions; Duty owed to an invitee; Finazzo v Fire Equip Co; Open & obvious danger; Kandil-Elsayed v F&E Oil, Inc; Lugo v Ameritech Corp
Holding that the trial court erred by granting defendant-grocery chain summary disposition of plaintiff-shopper’s negligence action, the court reversed and remanded. Plaintiff sued defendant for injuries she sustained when she tripped and fell over a dolly at defendant’s grocery store. The trial court granted summary disposition for defendant, stating that “a case like this is a premises liability case” and holding that the hazard was “an open and obvious condition with no special aspects.” On appeal, the court rejected plaintiff’s argument that the trial court erred by finding her claims sounded solely in premises liability, not ordinary negligence. “[P]laintiff theorized that an employee created a hazardous condition on the land, notwithstanding that the creation of this hazard may have occurred mere minutes or moments before plaintiff’s fall. This theory sounds in premises liability.” However, the court agreed with plaintiff that the trial court erred by finding the hazard was open and obvious, noting that “even under the Lugo standard for open and obvious hazards, the trial court erred by holding that the alleged hazard was open and obvious.” It noted a genuine issue of material fact remained “as to whether the hazard that plaintiff alleges caused her fall was reasonably discoverable on casual inspection.” Viewed in the light most favorable to the plaintiff, “reasonable minds could differ about whether [she] should have foreseen the danger.” Although defendant claimed she “could have avoided the danger by ‘watching her step,’ plaintiff testified that she had observed that the area behind her was clear only moments before.” The court rejected the contention that “the ‘reasonable observer’ standard requires a person to focus their gaze constantly at their feet for fear of hazards.”