TOV Injury and Safety Blog

Sixth Circuit reverses lower court, dismisses claims against officers who shot 15 year-old in his closet

Dorothy Chappell sued on behalf of the Estate of Brandon McCloud, alleging that the Cleveland Police officers who fatally shot McCloud several times, should be responsible for his death.  The City argued that the officers did not act unreasonably, and therefore that they should be immune from damages for killing McCloud.  The lower court denied the City's motion for summary disposition, holding that there were questions of fact regarding the reasonableness of the officers' claims.  The Sixth Circuit disagreed, however, and dismissed the case, holding that no reasonable person could dispute that the officers acted reasonably, given their testimony that McCloud was wielding a knife when he "lunged" from his bedroom closet.

Supreme Court reverses another medical malpractice dismissal

Vicki Zunich sued Family Medicine Associates of Midland, Jerry Ferrell, M.D. and others, arguing that they were negligent in treating her husband.  Zurich's husband died after suffering a series of grand mal seizures, apparently caused by an undiagnosed brain hemorrhage.  The case was dismissed after the Defendants complained that Zunich's Notice of Intent (NOI) and Amended Notice of Intent, alleging first 8 and then 16 breaches of the standard of care, did not adequately inform the physicians of their alleged negligence.  Applying the more reasonable standard that the Supreme Court elucidated in its recent Bush decision, the Supreme Court reversed the Court of Appeals and sent the Zunich case back for further development and amendment of the NOI, if necessary.

State Farm chastised for "disingenuous" actions in delaying payment of PIP benefits

Woodrow Byers was a bail bondsman employed by his wife's corporation until he suffered a severe knee injury in a motor vehicle collision.  State Farm stopped paying PIP benefits because it believed that he was continuing to work for his wife's business, even though he wasn't paid, a substitute "bounty hunter" was employed, and the medical testimony was undisputed regarding Byers' inability to work as a "bounty hunter."  On the eve of trial, State Farm finally paid for Byers' knee surgery--one year late--in what the court concluded was a calculated attempt to avoid defending the delay at trial.  The jury still awarded Byers' wage loss, a modest recovery for domestic service losses, and interest.  When the Court awarded attorneys' fees relating to the "overdue" medical benefits, State Farm appealed both the jury verdict and the Court's fee award. 

Contractor must pay for cost to repair home to make it saleable, and diminution of market value

Gerald T. and Jonna Heaton sued their builders after the foundation of their new home shifted twice, during construction, necessitating substantial repairs and modifications.  They sued alleging contract violations and negligence, but only the negligence theories went to trial.  Ultimately, the jury awarded them more than $70,000.00 in costs to repair and another $200,000.00+ for diminution in market value.  The Defendants argued that Heatons should not have been allowed to recover both forms of damages. 

AAA loses fight over emancipated child's residency

On many occasions, Michigan Courts have recognized that determining the domicile of a "young adult in transition" can be very difficult.  Roxana Tolar is a case in point.  She caused a motor vehicle collision that killed Philip Carl Gunther, while borrowing her sister's car.  In the weeks preceding the collision, she had returned from Louisiana, where she had attempted to establish herself, and was sleeping on her parents' floor.  She had unlimited access to the amenities of the household and used it as her mailing address.  She also kept clothing and her cat at the home, and her folks provided her with minimal cash support and transportation. 

She was waiting to move to a new apartment, when her brother-in-law left town for two weeks and Roxana stayed with her sister to help with the care of her nephew. It was during this stay that Roxana caused the collision.  Anaylzing all of the facts, the Court concluded that the trial court had been correct in concluding that Roxana's "domicile" was with her folks during this period.

Credit Union's defamation judgment against woman who published alleged theft from account is overturned.

Barbara J. Smith argued that the Michigan First Credit Union stole $40,000.00 from her account, and produced a bank document that appeared to support her claim.  The Credit Union argued that the document was a forgery and that the money was never deposited in Smith's account.  The trial court dismissed Smith's action, despite her evidentiary claim that she had deposited the money and it had been taken without her permission.  The Court of Appeals sent the case back to the lower court for a jury to decide, noting that Smith's testimony created a question of fact and credibility to be resolved by the jury.

A "Gator" utility tractor used to transport tourists is a "motor vehicle" for immunity purposes

The City of Sterling Heights utilized a "Gator" utility tractor and trailer to haul tourists through town during a festival.  Helin Yousif's son, Richard, was badly hurt when he fell off the tractor-trailer.  His mother sued the City, which claimed immunity.  Yousif's attorneys argued that the City was responsible for Richard's injuries under the "motor vehicle" exception to governmental immunity.  The trial court agreed and its decision was upheld by the Court of Appeals.  While certain four-wheeled vehicles, such as a golf cart, are not "motor vehicles" for purposes of the immunity statute, this vehicle is more in the nature of a "car, truck or bus" and was being used for a similar purpose.  Therefore, the City's immunity from suit was waived by statute.

AutoOwners wins partial victory in dispute over PIP benefits

When a no fault insured Michigan resident is so badly injured in a motor vehicle accident that he or she cannot manage his or her own affairs--necessitating the appointment of a guardian or conservator--the insurer responsible for paying PIP benefits (medical, three years of wages and household services) is required to pay the expense of the guardian.  William McDonald became the Conservator for Larry Jerome LeBoeuf under these circumstances, but was not initially aware of his right to bill AutoOwners for his service.  More than a year after some of his services were incurred, but less than a year after they were approved by the Probate Court, as required, he sued AutoOwners to recover his expenses. 

Two former employees win battle with "defamed" home health care provider

Evergreen Home Health Care sued two former employees (a nurse and a nurse aid) in an effort to punish them for criticizing the care given by Evergreen.  It alleged breach of a non-compete agreement, defamation and interference in its legal contracts with residents and their families.  It rejected mediation-proposed settlements and nominal settlement offers before its claims were ultimately dismissed by the trial court. 

Evergreen never produced a non-compete involving one of the former employees and the court deemed the other agreement "unreasonable" and unenforcible.  It concluded the suit was filed in retaliation for the employees' complaints reaching the office of the Attorney General and were in the nature of a "spite" or vengeance action--particularly given the fact that the employees had no insurance coverage and the suit appeared intended primarily to "ruin them financially."  The Court found no "significant, material" evidentiary support for Evergreen's claim and awarded the employees  sanctions in the form of costs and fees. 

The Court of Appeals upheld the decision, and agreed with the lower court that the action was frivolous. The higher court also returned the case to the lower court to explain why it had not awarded the employees' attorney the full amount of fees that they documented.  Given the attorney's 30+ years of experience, the lower court's failure to sanction his $200.00 per hour fee appeared to the Court of Appeals to be arbitrary on its face.

Court allows evidence from litigant who had earlier claimed fifth amendment privilege

Paul Paulson claimed the fifth amendment privilege against self-incrimination in a debtor's examination arising out of his bankruptcy claim.  Later, the assignee of Old Kent Bank, who was a major creditor of his defunct business, Lakeside Machine, Inc., sued Paulson and his wife for fraud or "reckless disregard of the truth."  The wife claimed that she was simply acting in a ministerial role when she signed various loan documents for the bank, and her husband filed an affidavit supporting this claim.