Attorney fees under the No-Fault Act (NFA); MCL 500.3148; Moore v Secura Ins; Brown v Home-Owners Ins Co; Reasonableness of an insurer’s refusal to pay work loss benefits; Whether there was a bona fide factual dispute; Principle that work loss & medical expenses are distinct categories of personal protection insurance (PIP) benefits

The court held that the trial court did not clearly err in finding that defendant-insurer’s decision to refuse to pay work loss benefits was unreasonable under the circumstances and that plaintiff was entitled to attorney fees under the NFA. A jury found that he sustained an accidental bodily injury in an accident and was entitled to $149,630 in work loss benefits. It also determined that payment was overdue, and he was entitled to $17,955.60 in penalty interest. Based on the jury’s determinations, “a rebuttable presumption arose that defendant’s refusal to pay benefits was unreasonable, entitling plaintiff to attorney fees.” The court had to “determine the reasonableness of defendant’s decision based on the circumstances that existed” when it stopped payments. Defendant could not support its decision with a doctor’s opinion obtained months “after payments were discontinued.” That meant it could only rely on another doctor’s (J) report “and the surveillance of plaintiff, but neither was sufficient to overcome the presumption that defendant’s failure to pay was unreasonable.” It appeared that the video “was inconsequential. The surveillance showed plaintiff doing small everyday tasks such as leaving his home, getting into his vehicle, or vacuuming his truck for a few minutes. As there was not a claim that [he] was entirely disabled and unable to walk, this evidence proves very little.” J’s report contained “at least one inaccuracy and an assumption that should have given defendant more pause before stopping” the payment of benefits. Given another doctor’s “opinion that the multiple disc herniations were likely caused by the trauma of the accident and the inaccuracies and assumptions made in [J’s] report, the trial court did not err by finding that defendant could not reasonably rely on [J’s] report to stop payments” and avoid the attorney fee penalty under MCL 500.3148(1). Also, the jury’s decision not to award medical expense benefits did not preclude its decision to award work loss benefits and did not preclude a finding that such “benefits were overdue and unreasonably withheld.” Affirmed.

Pension benefits; Defined benefit plan; Vested deferred member; Normal retirement; Deferred retirement; Contract interpretation; Patel v FisherBroyles, LLP; Administrative decision review; Competent, material, & substantial evidence; Romulus v Michigan Dep’t of Envtl Quality

The court held that defendants were entitled to summary disposition because the applicable retirement documents unambiguously provided that plaintiff’s vested deferred pension benefits did not begin until age 65. Plaintiff was 57 years old when his at-will employment with defendant-Wayne County Airport Authority ended, and he had accrued slightly more than 20 years of service. The Retirement Commission determined that, as a vested deferred member, he could not receive pension benefits until age 65, but the trial court granted plaintiff summary disposition and awarded damages. On appeal, the court held that plaintiff did not satisfy normal-retirement requirements because he had not reached age 60 at his “selected date of retirement,” which was the date of termination. It further held that the Summary of Benefits controlled the timing of deferred retirement benefits under Plan #5A, which stated that payment of retirement benefits would begin “at age sixty-five (65).” The court rejected the trial court’s ambiguity ruling because the Plan and Summary of Benefits, read together, did not conflict, as the Plan itself did not contain a separate provision addressing the timing of deferred benefits. Because the unambiguous documents supported the Retirement Commission’s determination, the trial court erred by failing to “‘accord due deference to administrative expertise.’” Reversed and remanded.

Hearsay; Party admissions; Former MRE 801(d)(2); Excited utterances; Former MRE 803(2); People v Smith; Waiver; Plain error review; Lack of prejudice; Other acts evidence that defendant was previously on parole; MRE 404(b); People v Galloway; Identity; Unfair prejudice; Notice; Ineffective assistance of counsel; Not excusing a juror; Alibi defense investigation; Failure to raise hearsay objections; Factual predicate; Witness questioning; Closing argument; Representation at sentencing; Prosecutorial misconduct; Good-faith questioning

The court held that most of defendant’s claims of error had no merit, and that none of the others affected the outcome of the case. Thus, it affirmed his convictions of armed robbery, conspiracy to commit armed robbery, FIP, and felony-firearm. On appeal, he first raised hearsay arguments. It found one of them waived, and as to another, the trial “court did not err by admitting the Facebook evidence because sufficient evidence was presented to support a finding that the items were what the prosecution claimed them to be, as required by MRE 901(a), which were Facebook pages affiliated with defendant.” And the messages contained in the pages were admissible as party admissions. Other statements were admissible as excited utterances. And even if it accepted his argument that a police witness’s testimony about a parole agent’s statements constituted hearsay, defendant could not show “that the testimony affected the outcome of the” trial. He did not establish as to any of his hearsay claims that he was entitled to relief under plain error review. The court also concluded that he failed to show that the trial court plainly erred in admitting evidence that he previously had been on parole. This “fact was material to establishing defendant’s identity as the perpetrator, and it was not unduly prejudicial when the jury was aware that” he was previously convicted of a felony. While the trial court erred in “admitting the evidence when the prosecution had not provided notice of its intent to admit” it, defendant could not satisfy “the plain-error standard because the error was not prejudicial.” The court noted that one victim testified that he identified defendant as one of the robbers in a photo lineup and that he identified him in person at a hearing. He also identified him “as one of the robbers at trial and testified that defendant was the same person he previously identified. Defendant’s description matched the description given by” the other victim during his 911 call. Defendant “failed to show that he would have been able to overcome this damning evidence if the” challenged evidence had not been admitted. His ineffective assistance claims also lacked merit.

Life without parole (LWOP) sentence; Miller v Alabama factors; Compliance with the court’s remand order; Whether the court should have ordered resentencing; The court’s discretion; MCR 7.216(A)(7); The trial court’s consideration of the evidence; People v Copeland

The court held that the trial court on remand “sufficiently explained why a LWOP sentence was proportionate given this defendant’s background and the offense for which he was being sentenced” (a first-degree murder conviction for the rape and murder of a five-year-old child). The court previously vacated the original LWOP sentence and remanded “for the trial court to reevaluate its analysis under the proper framework.” On remand, the trial court corrected the two errors of law the court had found in its analysis and still determined that a LWOP sentence was appropriate here. In this appeal, defendant first argued that the court should have remanded for resentencing. It disagreed, noting that MCR 7.216(A)(7) gives it the discretion to render the relief it deemed was required. While “defendant may have wished for a different remedy, we were not required to provide one.” As to his claim that the trial court ignored the testimony of psychologist (M), the trial court simply disagreed with some of M’s conclusions. Disagreeing with M’s “opinion about defendant’s potential for rehabilitation is not akin to ignoring the opinion, nor is it a basis for finding clear error.” As to the weight it gave to certain testimony, the trial court was clearly aware of the testimony, and it was within its “discretion to decide how much weight to afford that evidence.” The court further found that the record did not support defendant’s claim that the trial court considered his “failure to take responsibility for his actions as an aggravating factor[.]” As to his argument concerning the third Miller factor, the “conduct underlying the offense is clearly distinct from these considerations. The trial court here considered defendant’s conduct underlying the offense as an aggravating factor, as it was permitted to do.” Finally, the court disagreed with his claim “that the trial court relied on any erroneous factual findings in support of its sentence[.]”

CSC I; MCL 750.520b(1)(f); Substitution of counsel; Sixth Amendment; Good cause; People v Ginther; People v Wilson; Ineffective assistance of counsel; Jury instructions; MCR 2.513(N)(1); Written jury instructions; MCR 2.513(N)(3); Verdict form; Presumption of innocence; Prior false sexual-assault allegation; Rape-shield statute; MCL 750.520j; MRE 608(b); People v Jackson; Mootness

The court held that the trial court properly denied defense counsel’s motion to withdraw and that defendant failed to establish ineffective assistance of counsel requiring a new trial. He was convicted of CSC I after LF testified that defendant threatened her with a gun, took her to his tent, drugged her, and sexually assaulted her. The trial court denied defense counsel’s pretrial motion to withdraw and later denied defendant’s postremand motion for a new trial after an evidentiary hearing. On appeal, the court first held that neither counsel nor defendant showed good cause for substitution because counsel stated only that they had “reached an impasse” and disagreed about the evidence and how to proceed, statements that “lacked specificity.” The court next held that counsel performed deficiently by failing to object when the jury received instructions in “an improper mix of oral and written forms,” but defendant failed to show prejudice given the absence of claimed jury confusion and the “overwhelming” testimonial, audiovisual, and DNA evidence. It also held that counsel was not ineffective for failing to object to the verdict form because each count included both “Guilty” and “Not Guilty” options. As to the prior false-allegation issue, the court held that counsel was not deficient for failing to comply with MCL 750.520j because evidence “of a prior false allegation of sexual abuse does not constitute evidence of the victim’s ‘sexual conduct.’” Although the trial court may have improperly excluded the impeachment evidence, any error was harmless because the impeachment value was weak and there was “overwhelming testimonial and physical evidence” corroborating LF’s account. The court declined to address moot CSC III amendment and directed-verdict issues after those convictions were vacated. Affirmed.

Sentencing; Hobbs Act extortion; 18 USC § 1951; Stalking; §§ 2261A(2)(b) & 2261(b)(5); Wire fraud; § 1343; Sentencing guidelines; Extortion by force or threat of injury or serious damage; USSG § 2B3.2; Blackmail & similar forms of extortion; § 2B3.3; United States v Douglas; Sentencing enhancements; Firearm discharge; § 2B3.2(b)(3)(A)(i); Permanent or life-threatening bodily injury; § 2B3.2(b)(4)(C); Relevant conduct; § 1B1.3(a)(1)(A); Willfully caused; United States v Hill; Harmless error; United States v Alvarado; Substantive reasonableness; Upward variance; 18 USC § 3553(a); Grouped offenses; USSG § 3D1.2; Consecutive sentences; Jenkins v United States

[This appeal was from the WD-MI.] The court held that the district court properly used USSG § 2B3.2 to set defendant’s base offense level, improperly applied two sentencing enhancements, and that defendant’s substantive-reasonableness arguments would not succeed. He was convicted of attempted Hobbs Act extortion, stalking, and wire fraud after using a false online identity in a sextortion scheme against victim B.G., who later died by suicide. The district court used the extortion guideline, applied firearm-discharge and permanent-or-life-threatening-injury enhancements based on the suicide, varied upward, and imposed a total 272-month sentence. On appeal, the court first held that § 2B3.2 applied rather than § 2B3.3 because defendant’s threats were “only possible because Defendant created and entrapped B.G. in a sexual extortion scheme entirely of Defendant’s own making,” and he was not merely threatening to “‘mak[e] public an established fact.’” The court next held that the firearm-discharge and bodily-injury enhancements were improper under Hill because there was no indication defendant “willfully caused” B.G. to shoot himself, and “the mere fact that the defendant created the conditions in which the shooting was foreseeable was not enough.” The court further concluded the error was not harmless because the enhancements increased the offense level by 11 points, and there was no indication the district court would have imposed the same sentence without them. While resentencing was required, the court held that defendant’s arbitrariness challenge lacked merit because the district court imposed 212 months on Counts 1 and 3 through 7, plus a consecutive 60 months on Count 2, and “‘there is no obstacle to stacking a defendant’s sentences for grouped offenses.’” It also rejected his claim that the district court gave undue weight to B.G.’s suicide, reasoning that the district court discussed defendant’s extensive criminal history, danger to the public, deterrence, and other § 3553(a) factors, and a “single mention” of the suicide did not show undue weight. Affirmed in part, reversed in part, and remanded for resentencing without the enhancements.

Pension benefits; Defined benefit plan; Vested deferred member; Normal retirement; Deferred retirement; Contract interpretation; Patel v FisherBroyles, LLP; Administrative decision review; Competent, material, & substantial evidence; Romulus v Michigan Dep’t of Envtl Quality

The court held that defendants were entitled to summary disposition because the applicable retirement documents unambiguously provided that plaintiff’s vested deferred pension benefits did not begin until age 65. Plaintiff was 57 years old when his at-will employment with defendant-Wayne County Airport Authority ended, and he had accrued slightly more than 20 years of service. The Retirement Commission determined that, as a vested deferred member, he could not receive pension benefits until age 65, but the trial court granted plaintiff summary disposition and awarded damages. On appeal, the court held that plaintiff did not satisfy normal-retirement requirements because he had not reached age 60 at his “selected date of retirement,” which was the date of termination. It further held that the Summary of Benefits controlled the timing of deferred retirement benefits under Plan #5A, which stated that payment of retirement benefits would begin “at age sixty-five (65).” The court rejected the trial court’s ambiguity ruling because the Plan and Summary of Benefits, read together, did not conflict, as the Plan itself did not contain a separate provision addressing the timing of deferred benefits. Because the unambiguous documents supported the Retirement Commission’s determination, the trial court erred by failing to “‘accord due deference to administrative expertise.’” Reversed and remanded.

Attorney fees under the No-Fault Act (NFA); MCL 500.3148; Moore v Secura Ins; Brown v Home-Owners Ins Co; Reasonableness of an insurer’s refusal to pay work loss benefits; Whether there was a bona fide factual dispute; Principle that work loss & medical expenses are distinct categories of personal protection insurance (PIP) benefits

The court held that the trial court did not clearly err in finding that defendant-insurer’s decision to refuse to pay work loss benefits was unreasonable under the circumstances and that plaintiff was entitled to attorney fees under the NFA. A jury found that he sustained an accidental bodily injury in an accident and was entitled to $149,630 in work loss benefits. It also determined that payment was overdue, and he was entitled to $17,955.60 in penalty interest. Based on the jury’s determinations, “a rebuttable presumption arose that defendant’s refusal to pay benefits was unreasonable, entitling plaintiff to attorney fees.” The court had to “determine the reasonableness of defendant’s decision based on the circumstances that existed” when it stopped payments. Defendant could not support its decision with a doctor’s opinion obtained months “after payments were discontinued.” That meant it could only rely on another doctor’s (J) report “and the surveillance of plaintiff, but neither was sufficient to overcome the presumption that defendant’s failure to pay was unreasonable.” It appeared that the video “was inconsequential. The surveillance showed plaintiff doing small everyday tasks such as leaving his home, getting into his vehicle, or vacuuming his truck for a few minutes. As there was not a claim that [he] was entirely disabled and unable to walk, this evidence proves very little.” J’s report contained “at least one inaccuracy and an assumption that should have given defendant more pause before stopping” the payment of benefits. Given another doctor’s “opinion that the multiple disc herniations were likely caused by the trauma of the accident and the inaccuracies and assumptions made in [J’s] report, the trial court did not err by finding that defendant could not reasonably rely on [J’s] report to stop payments” and avoid the attorney fee penalty under MCL 500.3148(1). Also, the jury’s decision not to award medical expense benefits did not preclude its decision to award work loss benefits and did not preclude a finding that such “benefits were overdue and unreasonably withheld.” Affirmed.