TOV Injury and Safety Blog

Insurer denied right to treat cleaning agents as "pollutant" and avoid liability coverage

Safety King Incorporated provides cleaning services and specializes in cleaning and treating ductwork.  It uses a sanitizing agent, triclosan, which is an antimicrobial found in a variety of uses, including personal hygiene products and cosmetics, although it is also categorized as a pesticide. Safety King purchased liability coverage through Hastings Mutual Insurance Company.  In 2007, a homeowner filed suit against Safety King, arguing that the children in the home suffered injury by mis-use of the sanitizing agent.  Hastings Mutual argued that it did not have to provide coverage to Safety King because its pollution exclusion applied to Safety King's use of a known pesticide.  The trial court agreed and refused to enforce the liability insurance contract.

Bronson Hospital denied right to recover for medical care provided to no fault victim: Allstate avoids payment on a technicality

Bronson Methodist Hospital provided $37,000.00 of care to an uninsured accident victim (probably one day's hospitalization, one x-ray, hang-nail surgery and three aspirin.....at going rates).  By law, it was entitled to recover these expenses from an "assigned insurer" licensed to sell auto insurance in Michigan.  MI insurers are randomly assigned to provide PIP benefits to uninsured passengers and pedestrians if they don't have coverage through a vehicle or a member of the household.  In this case, however, Bronson did not identify the victim as uninsured immediately, and did not apply for an "assigned' insurer for nearly 12 months.  By the time Allstate was assigned to the claim, the services were one year and two days old, and Allstate refused to pay for them, citing the "one year back rule."

Court rejects claim loading handicap-access bus is not "operation of a motor vehicle"

Jeanette Collins' wheelchair fell while she swas being loaded on a Capital Area Transportation Authority bus.  She suffered multiple injuries and ultimately died.  The driver who was loading her on the bus claimed he did not know why the lift malfunctioned, dropping her.  Despite the fact that CATA had been warned previously that the subject lift was not operating properly and was not equipped with a safety belt, CATA defended Collins' family's wrongful death claim to the hilt. The trial court and Court of Appeals rejected CATA's defenses, including its argument that loading and unloading a bus doesn't constitute the "operation of a motor vehicle." 

Government pushes for stronger standards on ATVs, particularly those imported from China

More people die on ATVs than through use of any other product regulated by the Consumer Product Safety Commission.  900 people die each year using the things, which were completely unregulated until last year.  Consumer advocates argue that they should be regulated in the same manner as automobiles and that the currently-adopted industry standards are grossly inadequate.  Chinese manufacturers, who build cheap, down-sized ATVs for kids, have been importing models that do not even meet the minimum standards adopted by the domestic manufacturers.

Of the 15,000 products monitored by the CPSC, none cause more injuries or deaths than ATVs. In 2002, nearly 900,000 were sold in the U.S., with the Chinese accounting for about one-quarter.  By 2008, the Chinese had captured a much larger share of the market, focusing primarily on cheaper kids' models.  More than 100 kids are killed each year and 40,000 more go to the Emergency Room with injuries.  "It's basically a race to the bottom to see who can get the cheapest machine" according to one industry analyst, and Sue Rabe of Concerned Families for ATV Safety is trying to fight this trend.  She lost her ten-year old son in an ATV rollover accident.

CPSC recalls 2.1 million drop-side cribs

It was widely reported today that the Consumer Product Safety Commission had recalled nearly all the drop-side cribs manufactured by Stork Craftsince 1993.  The CPSC cited 110 incidents and four deaths caused by problems with the drop-sides.  It is becoming clear from this and previous recalls that drop-side cribs are just inherently dangerous, either because of wear and tear, inadequate plastic components, or mistakes in assembly.  Free repair kits are available at www.storkcraft.com. 

Scientists propose database on pharmaceuticals to protect the public

Scientists this week urged creation of a public database on pharmaceuticals that would identify product risks and dangers much earlier.  Their article was published in the Archives of Internal Medicine.   They pointed to Vioxx--which increased the risk of heart attack or stroke among users by 39 percent--as an example of how the federal database would same money and lives. The authors believe that a proper meta-analysis of Vioxx would have identified its risks two years earlier. The drug manufacturing industry rejects the suggestion, and Dr. Michael Steinman of the medical school at the University of California, San Francisco, pointed to "this kind of dogma in medicine that you shouldn't use any drug for the first seven years after it's released, because it takes that long to figure out its harms and benefits."

Another punitive damage verdict against maker of estrogen supplements

Pfizer bought out Pharmacia and Wyeth earlier this decade, and inherited their liability for marketing estrogen supplements without warning women that they greatly increased the risk of breast cancer.  Women have now won 10 of the 12 cases that have been tried against the makers of estrogen supplements, and jurors in the last two cases awarded a total of $103 million in punitive damages after finding "wanton and reckless" misconduct in the marketing and warning associated with Premarin and Prempro.  There are reportedly more than 10,000 of these cases pending in the United States--but most likely none pending in Michigan:  we are the only state that immunizes drug manufacturers from their negligence if the FDA approves their drug.  The drugs generated $2 billion dollars per year in sales in 2002 and still generate nearly that value in sales for Pfizer, despite a study published by the Women's Health Initiative and the federal government which linked hormone therapy to the increased risk of cancer.

Court rejects apartment complex claim that camouflaged step is "open and obvious"

This week, a panel of the Court of Appeals reversed the trial court and reinstated Katrina Hilton's injury claim against her apartment complex owner, the Barrington Group, Inc.  The Court also rejected the lower court's decision to set aside a default entered against Barrington previously.

In a very reasoned opinion, the appellate judges pointed out that the single step in the laundry room was "indistinguishable from the surrounding floor," creating an issue of fact with regard to whether it would be "obvious to a reasonable invitee on casual inspection."  The question to be answered, in order to eliminate the defendant's duty to eliminate a hazard, is whether an "average person of ordinary intelligence [would] discover the danger and the risk it presented on casual inspection."  That is, whether the hazard was "known to the invitee, or 'so obvious that the invitee might reaosnably be expected to discover [it].' "  The court also pointed out that the hazardous step was "unavoidable" if a tenant were to use the leased laundry facilities.

Farm Bureau allowed to enforce one-year limit on notice of Uninsured Motorist Coverage

Farm Bureau was allowed to avoid paying Uninsured Motorist benefits purchased by Robert M. Marshall by relying on Farm Bureau's insurance policy language requiring that notice of uninsured fault be provided the insurer within one year of suffering injury.  Marshall's attorneys had claimed that the one-year notice provision was illegal and unconscionable and relied heavily on the fact that the policy was not sent to Marshall until after he purchased it, frequently injury victims do not know that the at-fault is uninsured within one calendar year, and in many cases they do not even know that their injury is severe enough to meet the "life-altering" standard established in the Kreiner decision. 

The trial court found these arguments persuasive and denied Farm Bureau summary disposition, however, the Court of Appeals reversed and threw out Marshall's claim.  It relied heavily on several decisions issued by the "Engler Majority" several years ago:  those decisions essentially overturned Michigan law and denied relief to insureds who were issued insurance policies that contained provisions that defied the insured's "reasonable expectations." 

Claim against roller rink dismissed after employee collides with skater

The Court of Appeals ruled that Skateland Arena in Flint owed no duty to Daquiri Hines, a minor who was injured when he was run down by the Arena's employee, Kelly Maule, while both were observing a game of dodge ball at the arena.  The Court ruled that Hines' attorneys had not met their burden of demonstrating that Skateland did not comply with the safety standards published by the rink operators association, and that Skateland owed Hines no other duty under the Roller Skating Safety Act. 

While the court recognized that the Legislature did not intend to grant roller rinks complete immunity under the RSSA, it nevertheless concluded that Hines had "assumed the risk" of injury and refused to follow the guidance of a previous decision that required rink floor guards to exercise "good judgment".  The case is another example of the special privileges and immunities afforded business entities with special access to lobbyists and legislators. 

Were roller rinks leaving the state due to liability problems?  Do they serve such an important public purpose that we should afford them immunity from their mistakes and from the injuries they cause?  Sadly, none of that matters.  They had the votes in the legislature, and sometimes they have the votes in court, to grab civil protection that ordinary people aren't accorded.

Pioneer State Mutual loses PIP argument about domicile

Pioneer is a late-starting competitor for cheapest no fault insurer in Michigan.  While not up to the standards of Allstate in cynical denial of benefits, Pioneer has demonstrated a willingness to challenge its insureds' claims on virtually any grounds available.  This week, it lost an argument attempting to transfer PIP expenses to State Farm. 

Jason Teeple is a 34 year-old resident of the U.P.  He doesn't have a driver's license or own a car.  He was injured in a motor vehicle collision while a passenger in a vehicle insured with Pioneer.  Pioneer denied his PIP benefits, arguing that he was a resident of his mother's home, even though he hadn't lived with her in about eight years.  Teeple used his mother's home on a regular basis for visits with his child and as his mailing address, but was currently living in an RV with a girlfriend.  Since living with his mother, he had lived for several years with a fiance and in several other cities for significant periods.  The Court found that under the facts as elicited, he was not domiciled with his mother and not a "member of her household."

Doctors' groups block patient access to data on physician errors

A Tulsa daily newpaper reported today on its efforts to examine why a federal data base on physician errors is not available to patients.  The reporter, Gavin Off, noted that most State Medical Boards, like Oklahoma's, use the data base before granting physicians' licenses to practice, but the system continues to succumb to physician pressure to hide the doctors' identities from the public.  The data has been gathered on doctors' errors since 1989 and includes information on 23,768 preventable patient deaths, 8100 major permanent injuries and 3896 cases that resulted in quadriplegia, brain damage or lifelong care.  It includes, for example, in Oklahoma alone, nine cases of sexual misconduct and 28 lawsuits over procedures conducted on a mistaken body part (with $2.9 million dollars in settlements). 

The reporter spoke with one authority who pointed out that if the information was reliable enough to use in making licensing decisions, it was reasonable to provide it to patients.  As with credit files, doctors could be free to supplement the data, if they believed there was an error.  Nonetheless, the experts report that the data will remain unavailable to patients and consumers, even though it is available to hospitals granting staffing privileges, because the AMA has a lock on politicians who would have to vote to make it available to the public.

Panel denies landlord's duty to provide secondary egress to each individual apartment

A conservative panel of the Court of Appeals upheld the dismissal of a family's wrongful death claim arising out of the death of Edward Brannon.  Brannon encountered a fire at the doorway of his apartment that blocked his exit, and ultimately jumped from a second-story window.  He suffered severe burns and injuries including paralysis that ultimately resulted in his death.  His family sued the landlord, KZ Properties, LLC, alleging that the landlord had violated its common law and statutory duties to provide a safe alternative egress to apartment residents.

Court allows cerebal palsy case to go forward, but not against Hospital who recommended doctor

Cynthia Soufane (Rooke) sued her obstetrician, Jung Wu, and St. Joseph Mercy Hospital, doing business as McPherson Hospital, after her son, Bryan, was born with devastating birth defects.  She claimed that Bryan suffered massive, avoidable, permanent damages (he is retarded and confined to a wheelchair with severe cerebal palsy) when Wu failed to diagnose a premature rupture of membranes or to administer antenatal steroids.  Somewhat surprisingly, mom was able to recruit prominent physicians, including the head of maternal-fetal medicine at the University of Michigan, to support her claim that Bryan would have been born relatively normal if the standard of care had been observed.  The trial court dismissed her claim, however, holding that her expert testimony was not specific enough.  The trial court also held that even though a McPherson Hospital employee had allegedly referred Soufane to Wu as "our doctor," she could not hold the Hospital accountable for his negligence.

Employee with Parkinson's fails to stop working before termination; disability benefits denied

Roger Heikkinen became concerned in January, 2003, that his employer would terminate him.  He was reprimanded that month for missing a deadline and reluctantly informed his employers that he suffered from Parkinson's disease.  He immediately sought advice from a law  firm, and the attorneys suggested that he apply for disability immediately.  Heikkinen did not want to give up his full salary (or his job) any earlier than necessary, however, so he continued to work while the attorneys negotiated a termination agreement with his employer.

Hospital denied summary disposition where employee falls in parking structure run by hospital subsidiary

Maureen Lefevre works for St. John Hospital and Medical Center.  She fell on ice in the Hospital parking structure and suffered a severe injury.  Because the parking structure is operated by and leased to Affiliated Health Services and not her employer, she filed suit against Affiliated for negligence in failing to take reasonable steps to clear the ice where she fell.  The hospital argued that since both the Hospital and Affiliated are wholly-owned subsidiaries of St. John Health, it should be considered Lefevre's employer for purposes of the exclusive remedy provision of the worker's compensation statute. 

Sixth Circuit says health insurer need not pay its share of attorneys fees or costs

On November 16, 2009, the Sixth Circuit decided Longaberger Company v. Kolt,  a dispute over an ERISA health insurance plan's demand for an injury victim's negligence recovery from the at-fault driver's insurance.  Samuel Billiter was hurt in a car accident in Ohio, and his medical expenses were covered by Longaberger, a self-funded employee welfare benefit plan.  Billiter sued, through his attorney Jeffrey Kolt, and recovered $135,000.00 from the negligent driver's insurers.  Acting on the law as he understood it prior to the Supreme Court's recent decision in Sereboff v. Mid-Atlantic, Kolt distributed the insurance recovery without honoring the claimed Longaberger lien of $113,000.00. 

Longaberger sued Kolt and Billiter, claiming that the proceeds of the third-party negligence action were held in an equitable constructive trust for "reimbursement" of the plan's medical expenses.  The Sixth Circuit upheld the District Court's summary judgment for Longaberger and refused to honor Kolt's state law "charging lien" for creating the recovery.  Billiter was required to pay Longaberger almost $76,000.00 of his $86,000.00 recovery and Kolt was required to turn over about $38,000.00 of his $45,000.00 fee.  Chances are that if it weren't "for the honor of the thing," both men would have forsaken the lawsuit entirely, had they known that their efforts would only inure to the ERISA plan's benefit.

The outcome of this case either violates or endorses our belief that "pigs get fat and hogs get slaughtered," but we don't know which of the parties initially exhibited the pig-headedness.   It would appear that a fair outcome would have involved some compromise by both parties.

Talk about adding insult to injury: Truck kills a woman; no recovery for family.

Sheri Williams was killed when a large object was thrown through her windshield and struck her head.  Marc Sevigny, a J.R. Phillips Trucking, Ltd, employee, was hauling a tractor-trailer filled with slag in the opposite direction at the time of the incident. Williams' family contended that she was killed when a large fragment of slag became lodged in the semi-tractor's tires and dislodged as the truck accelerated away from the steel mill where it had just been loaded.  After many procedural twists, the steel mill was dismissed from the case, and a jury ultimately concluded that the truck driver and his employer were not negligent.  The family appealed, arguing that the verdict was "against the great weight of the evidence" and that the lower court had incorrectly allowed the trucking company's expert to substantially and dramatically change his defense theory during the trial.

Jury must decide whether woman's neck injuries are a "serious impairment of bodily function"

Emma O'Keefe was hurt when Francis Kirchoff backed into her car in Oakland County.  The Auto Club acknowledged that O'Keefe suffered an objectively manifested injury, but denied that the consequences were a "serious impairment of bodily function" as that threshold requirement was re-defined in the Kreiner v. Fischer case. On that basis, O'Keefe's lawsuit seeking non-economic damages from Kirchoff's insurer was dismissed.

Observing that O'Keefe's back and neck injuries now prevent her from performing yard work, housework, baking, walking on a treadmill and playing with, or even reading to her grandchildren, the Court of Appeals concluded that it was an error to dismiss her case as a matter of law.  Since these and other restrictions and limitations, including a loss of marital relations, appear to be permanent, a jury should determine whether O'Keefe has suffered a "serious impairment of bodily function." 

Disability insurer cannot avoid obligation to drunk driver by characterizing his injuries as "intentional"

The Sixth Circuit recently handed down an important decision interpreting ERISA insurance policies.  Under these policies, insurers have traditionally excluded payment of benefits where an insured intentionally suffered injury.  The Reagan-Bush appointees to the Court has, over the past decade, begun recognizing a broader range of negligent conduct as "intentional" at the request of insurers seeking to avoid a duty to pay health or accident benefits.  The result has been the "activist" development of a line of cases suggesting that insurers could avoid paying benefits where an insured did something "stupid," in cases where no one would categorize the actual injuries as "intentionally" suffered.  In Kovach, et al. v. Zurich American Insurance Company, the Sixth Circuit finally handed down a ruling placing a limit on this development under ERISA.

Apartment complex not liable for foliage blocking view from entryway

Bicyclist Harmail Sidhu suffered numerous injuries, including two broken arms, when he swerved to avoid colliding with a car exiting an apartment complex owned by 830 South Main Street, L.L.C.  He claimed the incident resulted was caused by a wall of vegetation adjacent to the complex that blocked the view of motorists exiting the complex parking lot.  The trial court and Court of Appeals dismissed Sidhu's negligence claim, even though the complex was cited by the City of Ann Arbor for violating an ordinance that required trimming vegetation within the right-of-way. 

School Board can limit duration of public speech at meeting

Several families who wanted to complain about the football coach's treatment of their sons secured a 5 minute slot on the monthly agenda for their lawyer to speak.  The following month, they attempted to secure another 5 minute slot, however, the Board refused them, concluding that the request was "repetitive."  The sued the Board, claiming that their sons had been denied a constitutional or civil right to participate in football.  Their case was dismissed; at which point the sued the Board claiming they had been denied the 1st and 14th Amendment rights of free speech at board meetings.  The Sixth Circuit wasted no time in dismissing their claim, as it concluded that the limitation on "repetitive" presentations during the public meeting was content neutral.  The case is Lowery, et al. v. Jefferson County Bd. of Educ., and it represents a small victory for all of us who have sat through interminable public meetings where a small group has repeatedly scolded the majority over a perceived slight or difference of opinion.

Family responds to health insurer's attack and wins

In 1981, Ian Pearl's father bought health insurance on his family.  It was the best move he ever made, as Ian was born with muscular dystrophy and has been "fighting 24/7" to survive, ever since.  He is wheelchair bound, uses a ventilator, and requires 24 hour-per-day medical support.  Despite these burdens and limitations, the 37 -year old was elected President of his high school class and has been an active advocate for the disabled.

Last December, Guardian Life Insurance decided that several expensive insureds like Ian were "dogs" the company needed to discard for profitability, and it notified Ian that his coverage would be dropped.  This would have been a death sentence for Ian most likely, however, he and his family fought back.  They lobbied and sought media attention for the plight of insureds like Ian, and eventually drew the attention of state legislators and Guardian Life's corporate executives. 

State legislators have introduced a bill to prevent insurers from dumping expensive insureds, and in an attempt to dampen the furor, Guardian LIfe has now apologized and reinstated coverage to Ian and two other "dogs".  It still plans to discontinue coverage to another class of expensive insureds, however, so only the "squeaky wheel" is getting greased, apparently.  Congratulations to Ian and his mother, Susan Pearl, for fighting back and bringing attention to this problem.  And here's hoping Guardian LIfe executives some day learn a degree of empathy for the "dogs" they gambled on and lost.  Some "Guardian", huh?

Malpractice verdict against prostate cancer patient is affirmed

James Burek's family continued his malpractice case against Dr. Kimberly Hart, Dr. Arthur Frazier and Harper-Hutzel, Huron Valley Sinai and Karmanos Cancer Institute, after Burek died of severe radiation burns.  Burek was diagnosed with early-stage, localized prostate cancer in 2001, at age 49, and the Defendants recommended treatment with mixed-beam radiation therapy.  By "general agreement of the experts," Burek suffered "the most severe and extensive [radiation burns and injuries that the experts] had ever seen," including burns to organs outside the treatment area.  Burek died from complications of the radiation burns. 

Burek's family argued that the doctors were negligent in choosing an experimental form of treatment, that they failed to properly inform Burek of the investigational nature of the treatment chosen, and that he had been over-radiated by one or more of the two participating institutions.  The jury found in favor of the doctors and hospitals after a lengthy trial, and the family appealed.  Among other claims, the family argued that the trial court erred by refusing to admit into evidence testimony from a  Blue Cross doctor confirming the insurer's categorization of mixed-beam radiation therapy as experimental.  It also faulted the judge's refusal to admit a policy statement published by the American Society for Therapeutic Radiation and Oncology, documenting the lack of scientific acceptance of mixed-beam radiation therapy for early stage, localized prostate cancer.

Police officers have no liability for death resulting from high-speed chase

The Sixth Circuit ruled this month that two Redford Township police officers would not be liable for wrongful death as a result of their failure to discontinue a high speed chase in the dark.  Clayton Jones was killed when his car was struck by a fleeing motorist who had turned off his headlights in attempting to elude the officers.  The officers believed that the occupants of the Ford Taurus they were chasing might be suspects in a local armed robbery.  After turning off their headlights, the suspects ran several traffic lights at high speed before striking Jones' vehicle and killing him.  He was on his way to work.

Court reverses summary disposition for Allstate regarding PIP benefits

Dustin Stevens, who was legally incapacitated at the time, suffered further injury in a single vehicle collision.  He was the driver of an  uninsured car registered to his mother.  Although he and the mother denied he had permission to use the vehicle, there were other circumstantial pieces of evidence that would imply that he was either buying the car or enjoyed regular use.  The trial court granted Allstate summary judgment, however, the Court of Appeals reversed, noting that it was not appropriate for the judge to weigh credibility and decide disputed facts:  under our Constitution, the case should  have been decided by jurors.

Psychiatrist treats--and medicates--4141 patients in nursing homes, annually, with dangerous drug

Dr. Michael Reinstein provides care to a number of Chicago-area nursing homes and mental health facilities.  So many, in fact, that the Chicago Tribune reports that during 2007 he wrote 'scripts for 4141 Medicaid patients alone.  He relies heavily on a psychotropic medication, clozapine, that has been approved only for actively suicidal patients or schizophrenic patients who did not improve on another medication.  It contains five "black box" health warnings.  At one of Reinstein's homes, 300 of the 415 patients under his care were on the drug.  Many of these nursing home patients suffered side effects "so severe that they trembled, hallucinated or lost control of their bladder function" and he has been sued numerous times alleging clozapine-related deaths. 

One million strollers recalled

On November 9, 2009, about a million Maclaren strollers sold by Babies 'R' Us and Target were recalled after 12 reports of fingertip amputations suffered by children.  According to the Chicago Tribune, the recall includes all nine models of strollers sold by the company.  They have been on the market since 1999.  As a remedial measure, the company is offering free hinge covers to owners.  The strollers were manufactured in China and distributed by Maclaren USA, Inc. of Norwalk Connecticut. The Company's website has been taken off line.

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. 

Consumer group argues that power windows are an unrecognized hazard to children

On November 2, the KidsAndCars.org group challenged the National Highway Traffic Safety Administration to account more accurately for children injuries and deaths associated with power auto windows.  It called for the universal application of an "auto reverse" feature on car windows to protect children. NHTSA responded that the risk to children is a "small, but persistent problem," not requiring government action.  It estimates that car windows cause 1995 injuries to children annually, which it claims are "mostly minor," and six deaths.  A 2003-4 study documented similar numbers, annually.  Making the changes requested by KidsAndCars would cost less than $6 per window.

Consumer group argues that power windows are an unrecognized hazard to children

On November 2, the KidsAndCars.org group challenged the National Highway Traffic Safety Administration to account more accurately for children injuries and deaths associated with power auto windows.  It called for the universal application of an "auto reverse" feature on car windows to protect children. NHTSA responded that the risk to children is a "small, but persistent problem," not requiring government action.  It estimates that car windows cause 1995 injuries to children annually, which it claims are "mostly minor," and six deaths.  A 2003-4 study documented similar numbers, annually.  Making the changes requested by KidsAndCars would cost about $6 per window.

Court upholds insurer's second-guessing of doctor's long-term disability

David B. Cox was awarded long-term disability insurance and Social Security disability after suffering an event which his neurologist described as a stroke.  After paying benefits for two years, the ERISA insurer, Standard Insurance Company, "reevaluated" Cox's disability and determined that he could return to the practice of Family Medicine.  Cox filed an administrative appeal, which was denied, and then filed suit in Federal Court to challenge the decision.

Condo owner cannot sue condo association for negligent acts of independent contractor

Steven Valentine's lawsuit against the Barclay Association was dismissed by the Court of Appeals this week, and the Court opened the door for additional fees and costs to be awarded to the association he sued.  Valentine had become embroiled in a dispute with his condo association after it hired a roofing company whose negligent acts allegedly caused damage to the interior of Valentine's condominium.  Valentine withheld his dues and sued the Association, arguing that it was responsible for the damage to his unit caused by the roofer's negligence in re-roofing [a common area duty of the Association]. 

Where employer leases parking lot, injured employee cannot sue landlord after fall.

Simon Thwaite attempted to sue Vincenti Court, LLC, and others, after he suffered injury in a fall on his way into his office.  He was employed by a company that enjoyed an exclusive lease of the parking lot, and was traversing the lot, on crutches, on his way to work, when he fell.  He argued that he fell on ice that resulted from a defect in the building, a pipe that allowed water to drain from the roof of the building on to the asphalt; and that the duty to repair this condition could not be delegated by Vincenti to his employer.

The Court of Appeals rejected Thwaite's claim, holding that his employer had the sole duty to clear ice from the parking lot, since it enjoyed exclusive possession of the lot.  Unfortunately, the judges failed to address the building owner's active negligence in failing to repair the known defective roof condition that was rendering the parking lot unsafe.  Under the employer's lease with Vincenti, the employer had no right to repair the roof defect.  Perhaps the Supreme Court will address this failure of common sense and justice.

No fault PIP application is adequate notice of victim's injury and potential third-party claim

Vivian Atkins was injured when two Suburban Mobility Authority for Regional Transportation (aka "SMART" buses) collided in Wayne County.  She filed an Application for no fault PIP benefits promptly, and later filed a lawsuit alleging a more serious "third-party" injury meeting the "serious impairment" threshold.  Her claim was dismissed on the theory that she had provide only "notice of her injury" and not "notice of her claim" within 60 days.  The Court cited the controversial "Engler Gang of Four" Rowland v. Washtenaw County Road Commission decision, for its holding that the SMART defendant need not show that it was prejudiced by any defect in Atkins' Notice.

Supreme Court places slightly less onerous interpretation on building defect notice requirement

The Supreme Court's recent decision in Carla Ward v. Michigan State University helped to expose the raw political divisions on the Michigan Court.  Ward was severely injured when she was struck in the eye by a hockey puck.  She claimed the injury occurred because of the school's failure to replace a protective plexiglas on the perimeter of the rink, resulting in a safety defect.  She did not retain an attorney immediately, however, and when she did, the attorney's rushed notice was late, lacked details, mistakenly referred to an "automobile accident" on the pertinent date, and was sent to "MSU Munn Ice Arena," rather than an individual who could appropriately be served with pleadings.

Supreme Court holds that lack of informed consent is simple malpractice, not denial of an opportunity for better outcome.

The unanimous Michigan Supreme Court granted Deborah Compton's appeal and reversed a Court of Appeals' decision that would have virtually dismissed Compton's malpractice claim against Helen Pass, M.D., Jane Pettinga, M.D., and William Beaumont Hospital.  Compton argued that the doctors did not provide her with an informed basis to consent to a more invasive treatment for breast cancer (removal of additional lymph nodes, resulting in axillary cording and lymphedema), and therefore commited malpractice in subjecting her to these complications without proper consent, in violation of the standard of care. 

Defendant that files answer to complaint cannot argue about service of summons

Christopher Evans sued the Grosse Pointe Public School system, alleging that he was illegally fired in violation of the Persons with Disabilities Civil Rights Act.  The Defendant answered but later challenged the manner of service of process on a technicality.  The Court rejected Grosse Pointe's argument, noting a long historical policy of not allowing a party who recognizes the pending proceedings to quibble over the manner of notice.  If a pary wishes to object to notice, he or she must respond with an pleading limited to that issue.

Still wondering if its safe to eat ground beef?

This was another bad week for the American meat industry, in terms of public relations.  First, a New Hampshire resident died after consuming meat infected with E.coli bacteria.  The source was apparently the same meat that sickened Rhode Island school children in October.  This contamination event resulted in the recall of a half-million pounds of ground beef from the New York Fairbanks Farms.  It is thought that the primary risk associated with this beef is meat stored in freezers by consumers unaware of the recall.

Then South Shore Meats Co. of Brockton, Massachusetts initiated a recall after making 20 additional Rhode Island children and adults ill at a camp in Plymouth. Purchases of the meat in each case were made at large chain grocers.

The news became slightly less worrisome, but infinitely more disgusting, when the beef industry announced it would fight attempts to ban meat producers from feeding cows chicken feces.  The Consumers Union, McDonald's Corp., and others have asked the FDA to ban the practice of feeding this chicken waste to cattle. (We wonder why McDonald's doesn't just refuse to contract with suppliers who refuse to avoid the practice:  is that asking too much?)  The FDA estimates that farmers feed between one and two million pounds of chicken litter/feces to cattle, annually.

The practice isn't just disgusting, however.  It is also unsafe:  chicken "litter" includes tissue from other ruminants which had been fed to chickens--thus following the precise practice which is responsible for bovine spongiform encephalopathy, or "mad cow disease." The National Cattlemen's Beef Association, which will cry for help when beef consumption falls with the next report of "mad cow" or the next resulting foreign ban on American beef, objected to such a ban because the risk is "too remote".  The Consumers Union scientists interviewed noted that the practice is also objectionable because the litter contains "disease-causing bacteria, antibiotics and foreign objects such as dead rodents, rocks, nails and glass."

A food safety expert from Cal Davis said that while the practice sounds gross, it is as old as agriculture, with "anything that falls to the ground being fair game."  On the other hand, the practice was probably safer before the onset of industrial, chemical-laced food production practices when animals were not slaughtered by a stranger on an assembly line.

Radiology magazine reports that doctors surveyed would not report errors

According to HealthImaging.com, radiologists would be reluctant, and a majority would not inform patients of errors in interpreting previous x-rays.  A physician from the departments of medicine and bioethics at the University of Washington conducted a study that surveyed 364 radiology specialists from seven different geographic regions.  He found that if presented with a historical error in mammogram interpretation, only 15 percent answered that they would inform the patient "that an error had occurred" and that calcifications had increased in number between mammograms.