Legal malpractice insurance coverage; Policy notice requirements; Whether the insurance contracts were “ambiguous”; Policy exclusion

[This appeal was from the ED-MI.] The court affirmed dismissal of plaintiff-Bridges’s claims for legal malpractice insurance coverage because the insured law firm failed to give one of the insurers notice of the potential claim during the Policy Period, and coverage was barred under an exclusion in the other insurer’s policy. Bridges hired the law firm (not a party to this case) to represent her in a medical malpractice case. That case was dismissed when the firm failed to respond to a summary judgment motion. Bridges sued for legal malpractice. The firm had legal-malpractice insurance with three insurers: defendants-Maxum Indemnity and Landmark American Insurance, as well as a nonparty to this appeal (StarStone). All three refused to defend or indemnify as to Bridge’s claim. The firm settled with her, assigning her all its rights under the policies. She then filed this suit, pursuing declaratory judgment and contract breach claims under all three policies. The district court granted Maxum’s and Landmark’s motion to dismiss. Bridges and StarStone reached an agreement to dismiss. On appeal, after reviewing Michigan contract law, the court held that Maxum’s contract language was not ambiguous. “Under Section VII.B., a ‘condition precedent’ to coverage is that [the firm] must ‘give written notice’ of a claim to Maxum ‘no later than 60 days after the end of the “Policy Period.”’” There was an exception under which “an actual claim will be deemed timely even if it is reported more than 60 days after the end of the Policy Period as long as a potential claim arising from the same alleged malpractice was previously reported during the Policy Period.” The firm did not report an actual claim by Bridges until long after the end of both the Policy Period (5/18 to 5/19) and the Optional Extended Reporting Period (7/19 to 7/21). But it “had previously reported a related potential claim by Bridges” during the latter period. The court held that because “no potential claim was reported between” 5/18 and 5/19, and the firm’s “notice of Bridges’s potential claim occurred only thereafter, the notice occurred too late for the exception to apply.” It further found that a “discrepancy between the endorsement’s reference to a ‘Supplemental Extended Reporting Period’ and the main Policy’s reference to an ‘Optional Extended Reporting Period’” was a scrivener error. It also held that coverage was not available under the Landmark policy as a matter of law.

Due-process violation claim for failure to preserve evidence; People v Dickinson; Whether ammunition was exculpatory evidence; Bad faith; Arizona v Youngblood; Routine destruction pursuant to policy; People v Young; Prohibited person possessing ammunition (MCL 750.224f(7))

Concluding that the destroyed ammunition was not exculpatory evidence and that defendant failed to show bad faith, the court rejected his due-process violation claim based on the failure to preserve the evidence. He was convicted of being a prohibited person in possession of weapon ammunition under MCL 750.224f(7). The court first rejected his assertion “that the ammunition was exculpatory evidence, as it is not reasonably probable that the outcome of trial would have differed had the evidence not been destroyed.” As in Youngblood, all that could be said about the ammunition was that “it could have been subjected to tests.” But the arresting officer did not have it “tested for DNA because it was found in defendant’s possession in his vehicle.” And even if it “was tested for DNA, the results would not exonerate defendant because the statute only requires possession of the ammunition. Further, even if the ammunition found in defendant’s center console was examined and contained sand as [he] claimed, defendant did not assert the ammunition found in his vehicle’s trunk was also filled with sand and inoperable.” Given that the evidence could only “have been ‘potentially useful,’ defendant must show [it] was destroyed in bad faith to establish a due-process violation.” No evidence suggested that this was the case. “Negligent destruction of evidence is not the equivalent of bad faith.” And he did not point to any specific police department policy that was violated. The evidence supported a police detective’s assertion that he followed departmental policy. Absent any evidence that the ammunition “was destroyed in bad faith, [his] due-process argument fails.” Affirmed.

Sufficiency of the evidence for a CSC III conviction under MCL 750.520d(1)(b) (sexual penetration by force or coercion); People v Aikens; Sufficiency of the victim’s testimony; MCL 750.520h; Sentencing; Presumption that a within-guidelines sentence is proportionate; People v Posey; Overcoming the presumption; People v Burkett

The court held that the victim’s testimony was sufficient to support defendant’s CSC III conviction, and that defendant did not overcome the presumption that his within-guidelines sentence was proportionate. He was sentenced to 24 months to 15 years. He argued there was insufficient evidence “because the victim delayed reporting, and did not produce DNA evidence or submit to a medical examination. However, that type of evidence is not required to prove guilt beyond a reasonable doubt.” Under MCL 750.520h, a victim’s testimony by itself can be sufficient evidence for a conviction. The victim gave “detailed testimony about how the penetration occurred.” The court held that her testimony provided sufficient “evidence defendant forced penetration when he continued to penetrate [her] labia as she was pushing his hand away. Further, defendant surprised [her] as she was vulnerable on a massage table. Even though there was no threat or intimidation, the victim’s testimony is sufficient to show force under MCL 750.520b(1)(f)(i) and (v).” The jury resolved his claim that her “testimony was inconsistent and incredible[,]” and the court noted that a shop logbook showing an appointment, its duration, and what the customer paid was consistent with her testimony. As to his sentencing argument, he tried “to rebut the presumption of proportionality by referring to his lack of criminal history, gainful employment, and the victim’s lack of cooperation with law enforcement.” But the court found these reasons unpersuasive, noting the trial court acknowledged his “lack of a criminal history and still found the minimum sentence proportionate based on the seriousness of” his crime. The fact he was employed was not an unusual circumstance, And “the victim sufficiently cooperated with law enforcement by providing evidence, undergoing interviews, and testifying for the prosecution.” The court held that the trial court did not abuse its discretion. Affirmed.

Divorce; Marital home valuation; Property division; Sparks v Sparks; Dissipation of marital assets; Elahham v Al-Jabban; Interest on property awards; Reigle v Reigle; Fault; Extramarital affairs; Spousal support; Child support income

The court held that the trial court erred by awarding defendant reimbursement for dissipated assets and abused its discretion by awarding interest, but otherwise affirmed the divorce judgment. Plaintiff challenged the valuation of the marital home, the dissipation finding, interest award, fault allocation, and spousal support. The court first held that the marital-home valuation was not clear error because the trial court chose a value “within the range established by the proofs,” relied on the 1/24 appraisal as the most recent available valuation, and gave the parties a chance to submit updated appraisals before judgment. The court next held that the dissipation finding was erroneous because the trial court did not find plaintiff spent funds “wastefully or foolishly,” plaintiff provided for defendant and the children, and spending on food, entertainment, records, and family gifts was “part of plaintiff’s normal spending pattern.” The court also held that interest on certain property awards had to be vacated because interest in a divorce action is equitable, but the trial court “did not explain why it was equitable,” and plaintiff’s payments were not delinquent when judgment entered. The court rejected plaintiff’s fault challenge because the trial court considered the Sparks factors, then found fault based on plaintiff’s affairs, and the record did not show the court placed “excessive weight” on fault. Finally, the court upheld spousal support because the trial court made findings under the proper factors, recognized that much of defendant’s property award was not income-producing, and plaintiff cited no authority requiring child support to be counted as income for spousal-support purposes. Interest award vacated, dissipated-assets award reversed, and otherwise affirmed.

Medical malpractice; Statute of limitations; MCL 600.5805(8); Accrual; MCL 600.5838a; Death saving provision; MCL 600.5852; Notice of intent (NOI); MCL 600.2912b; 91-day notice period; Haksluoto v Mt Clements Reg’l Med Ctr; Premature complaint; Burton v Reed City Hosp Corp; Tyra v Organ Procurement Agency of MI

The court held that the trial court erred by denying defendants summary disposition because plaintiff’s medical malpractice claims were barred by the statute of limitations. Plaintiff sued defendants for allegedly failing to treat the decedent’s pressure wounds during a 2019 hospitalization, but did not send defendants an NOI until 2024 and filed suit on 8/16/24. The court first held that the malpractice claim accrued no later than 12/2/19, when the decedent was discharged from defendants’ care, because a malpractice action accrues “at the time of the act or omission” forming the claim, regardless of discovery. Although the death saving provision applied because the decedent died during the limitations period, the court held that the complaint was premature under MCL 600.2912b. The court rejected plaintiff’s reliance on the 91-day notice period because plaintiff offered no authority that the “claimant” in a wrongful-death action was the decedent, and the records sent to other providers referenced the decedent’s admission to defendant-hospital, meaning plaintiff “could reasonably have identified” defendants earlier. The court further concluded that even assuming the 91-day period applied, plaintiff filed too soon because, under Haksluoto, “the entire no-suit waiting period must expire before a suit may be filed,” and the complaint was filed on “day 91.” Finally, the court held that the trial court could not excuse the premature filing for lack of prejudice because Burton held that filing before the notice period expires “renders the complaint insufficient to commence the action,” and Tyra held that MCL 600.2301 cannot save a case when “‘there never were pending actions[.]’” Reversed and remanded.

Legal malpractice insurance coverage; Policy notice requirements; Whether the insurance contracts were “ambiguous”; Policy exclusion

[This appeal was from the ED-MI.] The court affirmed dismissal of plaintiff-Bridges’s claims for legal malpractice insurance coverage because the insured law firm failed to give one of the insurers notice of the potential claim during the Policy Period, and coverage was barred under an exclusion in the other insurer’s policy. Bridges hired the law firm (not a party to this case) to represent her in a medical malpractice case. That case was dismissed when the firm failed to respond to a summary judgment motion. Bridges sued for legal malpractice. The firm had legal-malpractice insurance with three insurers: defendants-Maxum Indemnity and Landmark American Insurance, as well as a nonparty to this appeal (StarStone). All three refused to defend or indemnify as to Bridge’s claim. The firm settled with her, assigning her all its rights under the policies. She then filed this suit, pursuing declaratory judgment and contract breach claims under all three policies. The district court granted Maxum’s and Landmark’s motion to dismiss. Bridges and StarStone reached an agreement to dismiss. On appeal, after reviewing Michigan contract law, the court held that Maxum’s contract language was not ambiguous. “Under Section VII.B., a ‘condition precedent’ to coverage is that [the firm] must ‘give written notice’ of a claim to Maxum ‘no later than 60 days after the end of the “Policy Period.”’” There was an exception under which “an actual claim will be deemed timely even if it is reported more than 60 days after the end of the Policy Period as long as a potential claim arising from the same alleged malpractice was previously reported during the Policy Period.” The firm did not report an actual claim by Bridges until long after the end of both the Policy Period (5/18 to 5/19) and the Optional Extended Reporting Period (7/19 to 7/21). But it “had previously reported a related potential claim by Bridges” during the latter period. The court held that because “no potential claim was reported between” 5/18 and 5/19, and the firm’s “notice of Bridges’s potential claim occurred only thereafter, the notice occurred too late for the exception to apply.” It further found that a “discrepancy between the endorsement’s reference to a ‘Supplemental Extended Reporting Period’ and the main Policy’s reference to an ‘Optional Extended Reporting Period’” was a scrivener error. It also held that coverage was not available under the Landmark policy as a matter of law.

Medical malpractice; Motion to amend witness list to replace an expert witness; MCR 2.401(I)(2); Good cause; Dean v Tucker; Discovery sanctions; Diligence; Prejudice; Affidavit of merit (AOM); MCL 600.2912d; Summary disposition; Dismissal with prejudice; Kirkaldy v Rim; Ottgen v Katranji

The court held that the Court of Appeals erred by requiring the circuit court to consider the Dean factors when deciding plaintiff’s motion to amend her witness list to add a replacement expert, but correctly concluded summary disposition was premature. Plaintiff filed a medical-malpractice action supported by an AOM from orthopedic expert Dr. B, and later sought to substitute Dr. H after Dr. B became unavailable for deposition. The circuit court denied amendment before granting defendants summary disposition. The court first held that the governing standard is MCR 2.401(I)(2), which permits exclusion of an unlisted witness “except upon good cause shown.” It reasoned that Dean involved “discovery sanctions that result in dismissal,” and its factors do not adequately address whether “good cause” exists to add an untimely witness because they focus primarily on misconduct rather than “a moving party’s diligence in securing an expert witness.” The court clarified that the “primary considerations” for such a motion are “(1) the diligence of the moving party and (2) the prejudice that either side would incur from granting or denying the motion.” The court next held that the circuit court abused its discretion under that standard. The record showed plaintiff was “in regular contact with Dr.” B and repeatedly tried to schedule his deposition earlier, which was “highly reflective of plaintiff’s diligence.” The circuit court also incorrectly believed discovery had closed, when it “was still open for another five months,” and it failed to articulate meaningful prejudice to defendants. Finally, because summary disposition depended on the flawed witness-list ruling that left plaintiff without an expert, the court held that summary disposition was “prematurely granted.” Reversed in part and remanded.

Judicial immunity; MCL 691.1407(5); Serven v Health Quest Chiropractic, Inc; Fraud on the court; Res judicata; Mecosta Cnty Med Ctr v Metro Group Prop & Cas Ins Co; Quiet title judgment; Vexatious appeal; MCR 7.216(C)

The court held that the trial court properly granted defendants summary disposition because judicial immunity and res judicata barred plaintiff’s fraud-on-the-court claims arising from a 1999 quiet-title judgment. Plaintiff sued the judge who entered the quiet-title judgment and the party who prevailed in that action, alleging they “engaged in an enterprise to convey property illegally.” The court first held that judicial immunity barred the claim against the former judge because MCL 691.1407(5) protects a judge acting “within the scope of his or her judicial . . . authority,” and absolute immunity protects judges from “‘vexatious actions prosecuted by disgruntled litigants.’” The court reasoned that plaintiff’s lawsuit was “exactly what judicial immunity prevents” because the judge acted within his judicial authority when he quieted title and extinguished plaintiff’s alleged property interest. The court next held that res judicata barred the claim against the quiet-title plaintiff because the prior action was decided on the merits, involved the same parties, and resolved or could have resolved plaintiff’s title theory. The court explained that plaintiff was “directly challeng[ing] the subject matter” of the earlier ruling and seeking “to relitigate the long-settled quiet title judgment under the guise of an alleged fraud on the court.” Finally, the court concluded on its own initiative that the appeal was vexatious because plaintiff’s arguments and brief “were ‘grossly lacking in the requirements of propriety, violated court rules, or grossly disregarded the’” fair presentation requirements, and it noted plaintiff had filed 12 other unsuccessful appeals since 2015. Affirmed.

Medical malpractice; Motion to amend witness list to replace an expert witness; MCR 2.401(I)(2); Good cause; Dean v Tucker; Discovery sanctions; Diligence; Prejudice; Affidavit of merit (AOM); MCL 600.2912d; Summary disposition; Dismissal with prejudice; Kirkaldy v Rim; Ottgen v Katranji

The court held that the Court of Appeals erred by requiring the circuit court to consider the Dean factors when deciding plaintiff’s motion to amend her witness list to add a replacement expert, but correctly concluded summary disposition was premature. Plaintiff filed a medical-malpractice action supported by an AOM from orthopedic expert Dr. B, and later sought to substitute Dr. H after Dr. B became unavailable for deposition. The circuit court denied amendment before granting defendants summary disposition. The court first held that the governing standard is MCR 2.401(I)(2), which permits exclusion of an unlisted witness “except upon good cause shown.” It reasoned that Dean involved “discovery sanctions that result in dismissal,” and its factors do not adequately address whether “good cause” exists to add an untimely witness because they focus primarily on misconduct rather than “a moving party’s diligence in securing an expert witness.” The court clarified that the “primary considerations” for such a motion are “(1) the diligence of the moving party and (2) the prejudice that either side would incur from granting or denying the motion.” The court next held that the circuit court abused its discretion under that standard. The record showed plaintiff was “in regular contact with Dr.” B and repeatedly tried to schedule his deposition earlier, which was “highly reflective of plaintiff’s diligence.” The circuit court also incorrectly believed discovery had closed, when it “was still open for another five months,” and it failed to articulate meaningful prejudice to defendants. Finally, because summary disposition depended on the flawed witness-list ruling that left plaintiff without an expert, the court held that summary disposition was “prematurely granted.” Reversed in part and remanded.

Medical malpractice; Statute of limitations; MCL 600.5805(8); Accrual; MCL 600.5838a; Death saving provision; MCL 600.5852; Notice of intent (NOI); MCL 600.2912b; 91-day notice period; Haksluoto v Mt Clements Reg’l Med Ctr; Premature complaint; Burton v Reed City Hosp Corp; Tyra v Organ Procurement Agency of MI

The court held that the trial court erred by denying defendants summary disposition because plaintiff’s medical malpractice claims were barred by the statute of limitations. Plaintiff sued defendants for allegedly failing to treat the decedent’s pressure wounds during a 2019 hospitalization, but did not send defendants an NOI until 2024 and filed suit on 8/16/24. The court first held that the malpractice claim accrued no later than 12/2/19, when the decedent was discharged from defendants’ care, because a malpractice action accrues “at the time of the act or omission” forming the claim, regardless of discovery. Although the death saving provision applied because the decedent died during the limitations period, the court held that the complaint was premature under MCL 600.2912b. The court rejected plaintiff’s reliance on the 91-day notice period because plaintiff offered no authority that the “claimant” in a wrongful-death action was the decedent, and the records sent to other providers referenced the decedent’s admission to defendant-hospital, meaning plaintiff “could reasonably have identified” defendants earlier. The court further concluded that even assuming the 91-day period applied, plaintiff filed too soon because, under Haksluoto, “the entire no-suit waiting period must expire before a suit may be filed,” and the complaint was filed on “day 91.” Finally, the court held that the trial court could not excuse the premature filing for lack of prejudice because Burton held that filing before the notice period expires “renders the complaint insufficient to commence the action,” and Tyra held that MCL 600.2301 cannot save a case when “‘there never were pending actions[.]’” Reversed and remanded.

Petition to appoint a guardian for an incapacitated individual; MCL 700.5303(1); Notice; MCL 700.5311; Appointment of a temporary guardian; MCL 700.5312; Clear & convincing evidence supporting appointment of an independent guardian; MCL 700.5306(1); Credibility; MCL 700.5303(3); Existence of a power of attorney; MCL 700.5306(2) & (5); In re Guardianship of CY; Not “suitable”; MCL 700.5313(3); Change to the request without filing an amended petition; MCR 5.102 & 5.113(B); Plain error

The court held that respondent failed to establish reversible error as to the issue of notice in this case concerning a petition to appoint a guardian for an incapacitated individual (HIH). Further, the probate court did not err in finding that clear and convincing evidence supported the appointment of an independent guardian. In doing so, it did not err in determining that respondent, who was HIH’s attorney-in-fact and patient advocate, “was not suitable to care for HIH.” Finally, she showed no plain error in petitioners’ failure to file an amended petition. Thus, the court affirmed the order granting the petition and appointing an independent guardian for HIH. The case involved an intra-family dispute. Respondent was HIH’s daughter. Petitioners were other family members. Respondent first argued the probate court did not establish jurisdiction due to lack of notice to her, HIH, and other interested individuals. Petitioners “filed a petition for the appointment of a guardian pursuant to MCL 700.5303(1), and also requested the appointment of a temporary guardian pending a decision on the petition because of an emergency situation caused by respondent’s neglect. Respondent and HIH appeared at the [6/6/24] hearing, and at the subsequent hearing” two months later. “MCL 700.5311(2), which requires personal service for the incapacitated individual, provides for a waiver of notice if the individual alleged to be incapacitated attends the hearing. By that statute respondent and HIH waived notice by appearing at the” June and August hearings. As to the probate court’s decision to appoint a guardian, there was testimony “that HIH had been diagnosed with dementia and diabetes. For example, respondent administered HIH’s medications every day, while one of HIH’s granddaughters testified that HIH should not be left alone at night, explaining that HIH became nervous at night and wandered around the house.” While respondent appeared to challenge the credibility of some testimony, the court would not disturb the probate court’s credibility findings. It concluded that the “probate court did not err by listening to witness testimony to determine whether HIH was an incapacitated individual lacking in understanding or capacity to make informed decisions. The testimony supported” its finding that she was and that appointing a guardian was necessary to provide her continuing care and supervision.

Child removal; MCL 712A.2(b)(1); Reasonable efforts pursuant to MCR 3.965(C)(4)

Holding that the trial court did not clearly err in authorizing the petition to remove respondent-mother’s child (MB) from her care, the court affirmed the order. The trial court concluded that the petition’s allegations fell within MCL 712A.2(b)(1). It “authorized the petition because respondent left MB in the care of his alleged abuser, contrary to court order, which presented a substantial risk to the child’s life, physical health, or mental well-being.” While respondent contended “that she never saw the order requiring” the abuser (S) to be removed from the home, she cited “no case, court rule, or statute that indicates that she was required to have a physical copy of the” order before being required to comply with it. Further, the record indicated that she “had actual notice of the order the day it was signed, as she was explicitly informed of the order by two different people—two days before she was seen violating” it. In addition, she did “not contest the petition allegation that she ‘violated the safety plan’” as to S being limited to only “‘supervised visitation as he has been observed picking [MB] up from daycare alone on multiple occasions.’” Respondent also asserted that the trial court did not “make any specific findings of fact that she committed any misconduct.” However, her “refusal to both comply with the order to remove [S] from her home and with CPS’s safety plan regarding [S] not being alone with MB, is misconduct that she committed.” As to her reasonable efforts argument, “pursuant to MCR 3.965(C)(4), although there was no obligation to make any determinations regarding reasonable efforts because MB was released to his father, the record indicates that the trial court did make specific determinations” that reasonable efforts were made.