TOV Injury and Safety Blog

Transportation authority entitled to dismissal of claim, despite actual notice

William Pollard suffered a broken hip on a Suburban Mobility Authority bus in Wayne County.  The bus driver was forced to call an ambulance to take Pollard to the hospital, and later the Authority mailed him an application for no fault benefits.  Pollard never returned the application, but he did file suit three months later, alleging serious injury resulting from the driver's negligence.  The Authority sought dismissal of the claim, based on Pollard's failure to provide the Authority with written notice of his injury within 60 days.  The trial court pointed to the Authority's actual knowledge of the injury and refused to dismiss the claim.  The Court of Appeals ruled that even though the Authority suffered no prejudice by the failure to mail a written notice, the case must be dismissed for failure to comply with the statute that requires notice.

Court dismisses failure-to-administer t-PA claim against ER doctor

The Plaintiff sued Dr. Carl Palffy and his E.R. practice for failing to administer t-PA [a plasminogen activator] to him in the E.R. at St. Joseph Mercy Hospital in Pontiac.  He had been admitted with a stroke and suffered an acute infarct the following day, rendering him a hemiplegiac.  The Plaintiff offered an expert witness who claimed that the standard of care included the administration of t-PA, however, the Defendant offered a different expert who claimed that administering t-PA was not the standard of care at the time. 

Court of Appeals upholds jury verdict against family in Lenawee County death case

The family of a young man killed in a Highway collision on US 223 filed suit against the trucking firm that struck the man's van while it was making a left turn.  The family claimed that the defendant was illegally passing the victim's left-turning vehicle and provided proof that the turn signal was activated.  The Defendant driver claimed that the van turned off the right shoulder into the path of his truck without warning, constituting a "sudden emergency."  Each side presented expert reconstruction testimony supporting their theory of how the collision happened, and the jury found in favor of the Defendant.  The Plaintiff family objected to the trial court's incomplete instruction on sudden emergency and also asked the higher court to overturn the verdict as "against the great weight of the evidence."  The Court of Appeals refused. 

Court overturns dismissal of claim arising out of fall on wet gas station floor

Helen Bialick fell and broke her ankle just inside the door of the Megan Mary, Inc., gas station in Oakland County.  She testified that when she entered the gas station, she checked out where she was walking, but did not notice that the floor was wet.  She claimed she fell on light-colored tile and only noticed that it was damp after she was on the floor.  The owner provided testimony that directly contradicted his own interrogatory answers on several key points, but testified at trial that  while customers had tracked moisture into the station, there were mats on the floor, and a warning sign was in place.  There was a clear conflict of testimony on these key points, with the station owner's evidence heavily impeached by his own significant inconsistent statments.  Nevertheless, the trial court had dismissed the case, holding that the owner owed no duty to Bialick because the wet floor was an "open and obvious danger."

The Court of Appeals reversed in a unanimous opinion. It noted that weighing the parties' conflicting claims about visibility, warnings and safety measures was properly a task for the jury.  It reminded the lower court that in order to relieve a premise-owner of his duty to take reasonable steps to make the premises safe, the hazardous condition that caused injury must be one which "an average user with ordinary intelligence [would] have been able to discover...upon casual inspection." 

The Court also rejected the insurer's argument that the victim's observations should be inadmissible. (On the pretext that the test of "open and obvious" danger should be an objective one, the insurer wanted to allow jurors to hear only its own evidence about the weather, the floor and the measures taken by the owner to address the tracked-in moisture.)  After a decade of winning any arguments they made before the so-called "Engler Majority," Michigan insurers have developed an arrogant pattern of arguing theories that most reasonable people would find to be obnoxious.  Fortunately, the latter era has ended, and the current Supreme Court (although still with a 4-3 Republican majority) is far more balanced and reasonable.

Court of Appeals addressed alleged improprieties in verdict against Waste Management

A successful Michigan trial attorney once claimed, in essence, that "a milion dollar verdict is a $250,000.00 settlement that a defendant was too bone-headed to resolve."  The case of Freed v. Salas, Healthlink Medical Transportation Services and Waste Management of Michigan, is a case in point:  Waste Management rejected a settlement of $500,000.00 in this wrongful death case and wound up owing a judgment of more than 6 million dollars.  Attempting to recover from its error in judgment, Waste Management filed an appeal, arguing all manner of errors in the conduct of the trial. 

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 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." 

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."

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.

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.

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.

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. 

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. 

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]. 

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.

Court dismisses claim arising out of fall on freshly-mopped floor

Jacqueline Maness sued the Carlton Pharmacy and a company hired to mop its floors, alleging that she hadn't been adequately warned of the slippery, wet floor on which she fell, suffering serious injury.  Initially, her claim was dismissed on appeal, after the defendants claimed that the trial court should have found the condition of the floor to be an "open and obvious" danger.  The Supreme Court reversed, however, noting that Maness' claim against the cleaning company, which was not in possession of the drugstore premises, could not be evaluated under the "open and obvious" doctrine, since that doctrine applies only to hazards maintained by a landowner/possessor.  The claim against the cleaning agency was sent back to the trial court to be evaluated on the basis of negligence and comparative fault.

Woman can sue dealership for failing to identify needed repairs

In a complicated case, Ruth Webb's car shuddered and vibrated after it was repaired following a minor collision.  She complained repeatedly to Progressive Insurance and Adrian Dodge, the entity that was paid to fix the front end.  Adrian Dodge claimed it couldn't find anything else wrong and Progressive claimed that any additional problems with the car related to normal "wear and tear."  Webb had the vehicle examined by other mechanics who confirmed collision damage, but when she sued Adrian Dodge in Small Claims to compel it to complete the repairs, the magistrate ruled against her. 

A few weeks later, she lost control of the car when it began vibrating and Webb was badly hurt in a collision. A mechanic who examined the vehicle found damage in the left tie rod socket and steering knuckle that he felt was related to the original collision and the vibration problem--and which he believed caused the second collision.

Attorney must pay child's injury settlement after releasing funds to parent without restrictive endorsement

In the matter of The Estate of Calvin Graves, the Court of Appeals recently ruled that a child's attorney must pay the child's Estate the money that the attorney mistakenly turned over to the child's father.  The father was the child's Conservator, however, after an injury settlement was achieved, the attorney issued the child's check to the father without making it payable to him as Conservator for Calvin.  As a result, he was able to (and did) cash the check and spend it.  When he could not fulfill his duty to pay the money over to the Estate, the Probate Court required the attorney to come up with the money.  On appeal, the Court of Appeals rejected the attorney's claims arguing lack of subject matter jurisdiction and that he could not be sued by the Court for "malpractice."  The higher court pointed out that his client was the boy's Estate, and it was entitled to hold him responsible for his failure to act with due care.

Supreme Court repudiates hyper-technical examination of malpractice notice of intent

Malpractice victims are required to file a detailed "Notice of Intent" six months prior to suing a health care provider in Michigan.  When the victim's suit is filed, it must be accompanied by Affidavits of Merit signed by appropriately specialized physicians or experts.  For the past eight years, the medical profession enjoyed a field day before the "Engler Majority" of the Michigan Supreme Court, consistently dismissing viable, meritorious claims based on alleged technical deficiencies in the Affidavits or Notices.  

Applying the Engler Majority standard, lower courts felt compelled to dismiss claims for all manner of minor procedural deficiencies, and the reported malpractice cases became an incantation of dismissals that never reached the substance of victim claims.  That practice changed this summer when the Supreme Court adopted a more reasonable stance, consistent with statutes and rules of pleading, allowing amendment of good faith notices and affidavits to cure minor defects.  This week, the Supreme Court sent three more cases back to the lower courts, rejecting technical dismissals.

Minority owner vindicated after partners steal business

William Junge created a business with James Bartles and Oscar Burrell, with each man being a one-third owner.  They were stunned when they did more than a million dollars worth of business in the first year, moving and installing equipment.  Apparently, the business was destroyed by its success, as disputes arose over use of credit cards, withdrawal of profits and job performance.  Ultimately, Bartles and Burrell opened a new, competing business using the same employees and serving the same customers, but without Junge as an owner.  He sued, alleging an equitable claim of ownership in the new company.  While he was denied treble damages or attorney fees, the Court of Appeals upheld the lower court's award of one-third of the book value of the new business. 

Court rejects malpractice insurer's claim that filing one day early should lead to permanent dismissal

Barbara Zwiers sued Sean Growney, M.D. and Michigan Pain Consultants for malpractice.  Under the law, she was required to file a Notice of Intent spelling out the basis of her suit, and then wait 182 days before filing her Complaint and Affidavit of Merit.  Her attorneys miscalculated and filed the suit one day early.  The insurer's attorneys then waited for the statute of limitations to run before asking to dismiss the claim.  The lower court agreed with the insurer and permanently dismissed the lawsuit.

The Court of Appeals reversed, noting that the stated legislative purpose of the statutory waiting period was to allow for the settlement of claims prior to suit, thereby assuring that meritorious claims would be compensated while reducing the cost of processing claims.  The court noted that accidentally filing the suit one day early did not defeat this legislative purpose, and held that pursuant to MCL 600.2301, a statute that allows the Court to ignore defects in pleadings or in "process," should be applied.  Since the alleged victim acted in good faith and the dismissal would not be "in furtherance of justice" the Court reversed the lower court and reinstated the malpractice claim, despite the one-day error in computing the notice period. 

Malpractice claim dismissed when victim's doctor mis-states basis of his opinion

Timothy Blount sued Jean Marie PIerre, M.D., Blount's family doctor, alleging that Pierre was negligent in attempting to biopsy a suspicious lesion on Blount's tongue.  Blount's attorneys demonstrated confusion in filing two separate claims against Pierre, one alleging that Pierre was a General Practitioner and a second alleging that he was a Family Practice specialist.  Ultimately, they moved forward on the allegations of negligence by a General Practitioner, which required them to provide expert testimony from a comparably-credentialed physician familiar with the "local" community standard of care. 

Employer held accountable, beyond workers compensation, for traumatic amputation

Kristi Fries lost both hands above the wrist when the stamping machine she was operating cycled in response to her loose clothing.  She sued her employer, Mavrick Metal Stamping, arguing that it was responsible beyond workers compensation benefits because it had intentionally caused her injury.  An employer in Michigan is immune even from gross negligence or willful misconduct, if an employee is covered by workers compensation:  the courts have been exceedingly slow to allow employees to recover more than medical and partial wages, no matter how egregious the employer's fault is causing an injury.  The Court of Appeals allowed Fries to recover outside work comp, however, after reciting the facts leading up to her horrible injury.

Court decides to publish malpractice decision regarding forseeability and causation

Several weeks ago, we reported on the Lockridge v. Oakwood Hospital and Donald R. Schipper, M.D., decision.  Scarlett Lockridge had sued the defendants and achieved a modest verdict after Schipper mis-diagnosed and mis-treated her son.  The Lockridge boy suffered chest pains, vomited and lost consciousness on his way to the school bus.  Schipper diagnosed his problem as anxiety and prescribed him Toradol and valium.  Lockridge's expert physicians claimed that Schipper should have ordered a chest x-ray, and that if he had, the aortic abnormality which killed young Lockridge would have been discovered and successfully treated before it ruptured.

Excessive force claim against Deputy is dismissed

Officers investigating a domestic disturbance arrested John Mahl, the ex-husband.  As they prepared to handcuff him, he told the officers that he suffered from a shoulder injury, had confirming physician documentation at his home, and asked that he be handcuffed with his wrists in front of his body.  Officers rejected his request and he later filed an injury suit alleging gross negligence and assault and battery.  The arresting officer's motion to dismiss was denied by the trial court, as the judge concluded the reasonableness of the officer's conduct was a question of fact to be decided by the jury.  Judges Chris Murray, Jane Markey and Stephen Borrello completed an anti-victim sweep of their cases for the month by overturning the Genesee County judge's decision and dismissing the claim.  They held that the gross negligence claim was incorporated into the battery claim, and that the latter claim should be dismissed because "there [was] no evidence that Defendant in bad faith disregarded plaintiff's request...There must be some discretion reposed in a sheriff or other officer...[A]nd this discretion cannot be passed upon by a court or jury unless it has been abused thorugh malice or wantonness or a reckless indifference..."

Of course, by the court's appellate standard in this case, the officer's account of his conduct simply can't be challenged at all, since the Court refused to consider the alleged victim's account of his arrest and treatment by the deputy.   The case is Mahl v. Maguire.

Landlord again avoids liability for criminal activity against tenant

Joyce Memminger sued the landlord of her gated apartment complex, McKinley Properties, alleging that it should be responsible for allowing access to her ex-husband.  The ex-husband held her captive for hours and shot her when she attempted to escape.  Memminger initially argued that the landlord was negligent in allowing the assailant unauthorized access to the premises, however, the court dismissed that claim.  She then filed a second action alleging that she had been fraudulently induced to rent the apartment based on false representations regarding the landlord's restrictions on non-tenant entry.  The Court of Appeals rejected this claim, as well.  That result probably did not surprise the parties, once Judge Henry Saad was assigned to the hear the appellate case.  His is a consistent voice for the interests of insurance companies.

Court reaffirms: no remedy for Michigan insureds when Farm Bureau acts in bad faith

Shirley Nixon sued Farm Bureau General after it refused to pay benefits under her homeowner's policy and accused her of intentionally setting fire to her home.  The trial court refused to dismiss her "bad faith" claim or her cause of action for "intentional infliction of emotional distress."  Farm Bureau appealed to the Court of Appeals, arguing that even if it acted in "bad faith" and wrongfully denied Nixon's purchased benefits, she had no claim for damages.

Citing an earlier case where Blue Cross wrongfully refused to pay for treatment of Stage IV metastatic breast cancer treatment, the Court of Appeals reversed the lower court ruling in Nixon's case and dismissed her claim for "bad faith."  The Court held that "the mere failure to pay insurance benefits" does not create a cause of action against the insurer in Michigan.  Unlike most states, Michigan does not recognize a cause of action for bad-faith refusal to pay an insurance claim, no matter how egregious the insurer's conduct, as "[f]ailure to pay a contractual obligation does not amount to outrageous conduct, eve if it is willful or in bad faith."  

Do you still have doubt about the power of insurance companies to control the law in Michigan?

Court examines "gross negligence" in the context of road construction and warnings

While re-paving US-127 in Ingham County, MDOT employees were consulted by Rieth-Riley Construction employees about how to address a trench adjacent to the Holt Road exit.  The project engineers for MDOT told the contractors that nothing should be done to barricade, warn or pave over the trench, and that if Rieth-Riley took action on its own, the expenses would not be covered under the contract.  In May of 2005, Bruce Boone was operating his motorcyle on US-127 when he attempted to exit at Holt Road and found himself in the trench immediately adjacent to the fog line in an area where the shoulder, exit and paved lane were combined during construction.   Boone was paralyzed in the resulting accident.

Court re-states basic obligations of operating motor vehicle with due care

In McCuish v. Hallie Nicole Jaffe, the Court of Appeals took pains to re-state the obligations of a motorist charged with negligence after striking a pedestrian.  The Court noted that bystanders and physical evidence both supported the interpretation that the pedestrian had mistakenly stepped into the side of Jaffe's vehicle.  Other than a single witness' suggestion that Jaffe was driving "45 to 50" miles per hour in a 45-mph limit zone, there was no evidence to suggest a deviation from the standard of care by the motorist. 

While Jaffe could have been negligent if she had failed to observe the approach of a pedestrian who is "able to be seen coming in to...her path [if] the driver fails to stop when he or she is capable of doing so," there was nothing in McCuish's behavior that served as a warning to Jaffe.  He was one of a group of high school students standing at the curb, waiting for traffic to clear, when he apparently stepped out without warning.  Under the circumstances, there was no foundation for McCuish to pursue a claim against Jaffe, and no basis for a jury decision of negligence.

Malpractice claimant gets "homered;" substance of claim is dismissed

Ruth Aldrich took over her husband's medical malpractice claim after he died from an unrelated cause.  Her husband, Steven, had sued Robert Genovese, M.D., and Rodney Diehl, D.O., for malpractice in failing to respond properly to a morbidly prolonged erection (i.e., as everyone post-Viagra advertising now knows, this condition is called "priapism" and should not continue for more than four hours). Adrich had been admitted  to Mid Michigan Medical Center for chest pain and first noticed the erection around 5:00 a.m.  It was not relieved for about 36 hours.

Wild party man can't sue the witnesses who complain to police

Michael Stephen Irish apparently does not lead a sedentary lifestyle.  Others who live on Algonquin Lake in Barry County complained to police that they needed protection from his "reckless behavior," which included "drinking and driving, drinking and boating, and...indecent exposure."  The cops charged him with disturbing the peace and indecent exposure, however, after a trial he was convicted only of the former charge.  Never one to retire to the basement, Irish then sued the neighbors for defamation, malicious prosecution and also under various other theories.  Ultimately, his claim was dismissed.  The trial judge and the appellate judges all agreed that the complaints by citizens to criminal authorities were entitled to absolute immunity.

Defense attorney's misconduct is not adequate grounds for new trial

The Court of Appeals this week reversed a Barry County Circuit judge and denied a new trial to a woman who claimed she sufferred injury at the hands of a JC Penney Co. hairdresser.   A jury entered verdict against the woman after her trial, but the presiding judge ordered a new trial, citing several instances of misconduct by the Defendant's attorney.  He had apparently interjected into the trial irrelevant and misleading suggestions of prior lawsuits by and against her, inaccurately suggested a prior lawsuit was dismissed on its merits, suggested a bankruptcy filing, and impeached her credibility based on her failure to acknowledge that she  was a paralegal who had once attended a Paralegal Institute in Georgia.

The appellate panel, including the insurers' advocate, Richard Bandstra, reversed the opinion of the judge who supervised the trial, concluding that the several errors of the defense attorney were harmless and cured by the judge's instructions. That appellate decision certainly won't discourage defense attorneys from wrongfully interjecting prejudicial and irrelevant matters into civil trials:  it tells insurance attorneys, "hey, if someone is bold enough to seek legal redress and you don't have a solid defense, just attack, attack, attack...throw up enough garbage and something may stick."

Court refuses summary disposition of brachial plexus-shoulder dystocia claim

Marilyn Clemons sued Roderick Cairgle, M.D. and Sinai Hospital on behalf of her son, Miles, alleging that Cairgle's negligence resulted in a birth injury and permanent paralysis of Miles's arm.  She claimed that Miles's delivery had been temporarily obstructed when his shoulder hung-up on the pubic bone (this is called shoulder dystocia) and that Cairgle permanently injured Miles's shoulder by applying excessive force to manipulate his shoulder through the birth canal.  She also argued that Cairgle should have delivered Miles by C-section once he recognized the  occurrence of shoulder dystocia, however, Cairgle denied that a shoulder dystocia even occurred.  The Defendants persuaded the trial court to grant partial summary disposition on the C-section claim, based on the argument that the Clemons' attorneys had not proved that a shoulder dystocia had actually occurred.

Court reduces malpractice verdict because man who lost functional use of both arms didn't prove economic damage

John Shivers sued Susan Schmiege, M.D. and Valley Anesthesia for malpractice after he lost virtually complete use of both arms.  Schmiege had been admitted to St. Mary's Medical Center for bladder removal, and after the surgery his physical conditon deteriorated rapidly.  He had weakness in his arms in the recovery room and the weakness progressed overnight to almost complete paralysis.  Schmiege checked Shivers at 7 p.m. and recorded diminished arm function but took no action.  A nurse claimed she reported further deterioration to Schmiege at 12 midnight, but Schmiege denied she was called.  Another nurse claimed that someone resembling Schmiege was in and examined the patient at 2 a.m., without charting, but Schmiege denied she attended Shivers that night. 

A surgeon was consulted the following morning and rushed Shivers back to surgery to relieve the pressure on his spinal cord, however, the emergent surgery achieved little recovery in Shiver's arm function.  Schmiege lost the functional use of both arms and was dependent on his elderly wife and daughters for the requirements of daily living.  A jury awarded Shivers 1.7 million dollars to compensate for the loss of use he suffered as a result of Schmiege's failure to act more promptly, and Schmiege's insurers appealed on various technicalities.

Officer must demonstrate he acted in "good faith" to benefit from governmental immunity for false arrest

Catherine Simmons took $29,000.00 she obtained by refinancing her home to Greektown Casino to gamble.  She was suspected of money-laundering and Steven Ford, a State Police officer, detained her for several hours and held her cash.  She provided Ford with proof of the source of the cash and recovered her money two days later, and then sued Ford and Greektown for false arrest.  Ford argued that he was entitled to summary disposition based on immunity because there was probable cause to arrest Simmons.  The trial court found no probable cause for the arrest and Ford appealed.  The Court of Appeals sent the case back for a new hearing, pointing out that the question was not whether probable cause for arrest existed, but rather whether Ford had provided sufficient evidence that he believed in good faith that probable cause existed.

Court refuses to apply "discovery" extension where Doctor's employment is misrepresented in chart

Gary Tyson went the the VA Medical Center in Ann Arbor for x-rays on his ankle.  One Dr. Ebrahim was identified as his "Primary Interpreting Staff" and "Attending Radiologist," and it turns out that Ebrahim mis-read the x-ray.  Tyson continued to ambulate on a fractured ankle for several weeks, before the mis-diagnosis was discovered.  Under the Federal Tort Claims Act, he filed a claim against the VA Medical Center.  Under that Act, the veteran cannot sue the individual practitioner and must look only to the Federal Government for compensation.  To his surprise, the VA eventually responded--after the two-year statute of limitations for malpractice claims--by notifying Tyson that it was not responsible under the FTCA for the error made by Ebrahim, because Ebrahim was not employed on staff by the VA:  he was an employee of the University of Michigan working under contract for the VA.

Expert not allowed to offer opinion on poor design of surgical table

Pontiac Osteopathic Hospital hired an expert to criticize its "shoulder chair," after the chair collapsed during surgery on Michael Pagano.  The Hospital, Allen Medical Systems, manufacturer of the chair, and Hillenbrand Industries had all been sued by Pagano after he fell to the floor while unconscious, injuring his neck and back.  The Defendants settled Pagano's claim and then continued the case among themselves to apportion fault.  Ultimately, the trial court excluded the Hospital's expert testimony regarding flaws in the design of the "shoulder chair," leaving the Hospital to bear the entire cost of the settlement because it could not prove fault by the manufacturer.

Chinese drywall manufacturers snub U.S. Courts investigating defects

Virtually every day, another article appears in the U.S. media discussing the thousands of homes where defective Chinese drywall has caused substantial problems.  The drywall breaks down, emitting chemicals and odors, has been shown to ruin copper piping and to cause health problems. While a number of lawsuits have been filed, the Chinese manufacturers have simply refused to appear in court.  They recognize that U.S. judgments against them will not be enforced in China, allowing them to ignore the consequences of their negligence with impunity.  Fortunately for consumers in most of the affected states, the retailers and intermediaries involved in the purchase and installation of the defective drywall will be held accountable:  unfortunately, many of those intermediaries are completely without fault or will not survive the economic impact of these claims.

For consumers in some states, however, the problem is even more substantial.  If a state has rejected joint and several liability, thereby eliminating the duty of an at-fault with a "deep pocket" to make an innocent victim whole, innocent victims will achieve little or no compensation for a defect that has virtually destroyed new homes.  In Michigan, the problem goes even deeper.  Through tort "reform" adopted during the Engler era, even the retailers who sold the drywall would not be required to stand behind it:  unless they were independently negligent, retailers in Michigan have no liability for selling a defective product.  Thus, a Michigan resident would be required to prove that the retailer knew of the drywall defect before purchase, in order to hold the seller accountable.

The major problem with this "retailer immunity" is that is takes away the retailer's incentive to either confirm the quality of its suppliers, or to demand insurance indemnity coverage in the event of a defect.  Ultimately, the consumer is left at the mercy of unscrupulous, ignorant or simply negligent manufactuers.  In a "flat world," we have learned that this  policy exposes consumers to injury from defective toys, clothing, medicines, and all manner of products that are shipped to this country from unaccountable sources who are only a step above criminal enterprises.

A note discussing this issue was recently published by Ashley Thompson in the University of Michigan Journal of Law Reform.

Case against City of Grand Rapids is dismissed, admittedly "elevating form over substance."

Judge Alton Davis wrote a concurring opinion to emphasize his dissatisfaction with the current state of the law, as applied in Maureen Ketchum v. City of Grand Rapids. Ketchum fell in a pothole while crossing the street in front of the Pearl Street entrance to the Amway Grand Plaza Hotel.  She suffered a serious ankle fracture, and would have the right to compensation from the City, if she could prove that the crosswalk was defective and the City had ample notice of the defect in time to fix it.  The case never got that far, however, because of a technicality that Davis found offensive.

Trial judge's grant of new trial is reversed by Court of Appeals

Sallie Smith was allegedly hurt when Michael Lundeen made a left turn in front of her on a winter day.  He argued that she was speeding and ran a red light, but never offered that excuse to the investigating officer.  The jury found in favor of Lundeen, but the Court granted a new trial, finding that the verdict was "against the great weight of the evidence."  The judge pointed to the inconsistency of the Defendant's excuses and also the fact that the Defense attorney violated the judge's pre-trial ruling precluding him from offering weather as an excuse and from bringing up the plaintiff's denial of Social Security Disability.

Title Agency must defend claim of gross negligence

When BCV Colonnade attempted to sell the K-Mart it owned in Jackson, it relied upon United Realty Companies, LLC and the Morris Home Title Agency to close the transaction. It required the buyer to maintain a $100,000.00 cash deposit with Chicago Title Insurance Company and Morris Home until the closing date, and was twice assured by Morris that the deposit was secure.  The buyer failed to perform, and when BCV sought the escrow from Morris, it was informed that the buyer had also failed to place the cash deposit with Morris.