TOV Injury and Safety Blog

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.

No homeowner coverage for defective workmanship or mold

Hometowne Building Company built a house for a customer in South Lyons and then experienced problems with water seepage and mold.  After several unsuccessful attempts at remediation, the owner sued Hometowne and ultimately, one of its insurers, the North American Specialty Insurance Company (NASIC) settled the claim with the owners.  NASIC then sued Amerisure Mutual to force it to contribute to the settlement.  Amerisure argued that two exclusions in its policy let it off the hook, and the Court of Appeals agreed. 

The Court concluded that the "defective workmanship" exclusion precluded coverage for any damage to the structure caused by mistakes made by Hometowne.  This would leave limited liability for Amerisure to cover injury or damage to contents caused by defective workmanship, however, the policy also contained a "fungi or bacteria" exclusion which eliminated any contents coverage for damage caused by mold, fungi or mildew or their ramifications.

Buyer who opts for dual-agency contract with seller's broker cannot complain about the agent's failure to protect him

The VanHellemonts agreed to buy a $1.6 million dollar estate from the McManamons in Oakland County.  They used as their agent the McManamon's broker, and signed a dual-agency disclosure agreement.  The deal slowly fell apart and the VanHellemonts were sued for damages or specific performance.  They sued their realtor for malpractice, arguing that the agent should have written the buy-sell to protect them more fully:  in particular, they alleged the document should have called for the loss of their $35,000 earnest money deposit, rather than a $500,000 penalty, in the event that they did not close on the purchase.  The Court concluded that the VanHellemonts gave up their fiduciary duty claim against the realtor when they agreed to the dual-agency relationship.

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. 

Sixth Circuit requests Supreme Court's guidance on issue of "property interest" in loved one's brain

Karen Waeschle sued the Medical Examiner of Oakland County, Ljubisa Dragovic, after he incinerated Waeschle's mother's brain following an autopsy.  The 88 year old mother had fallen in a nursing home prior to her death and her body was sent to Dragovic for a post mortem.  The Sixth Circuit Court of Appeals held that the medical examiner was personally entitled to "qualified immunity" for incinerating the brain, since he did not deny Waeschle a well-established due process right, but also directed the lower court to seek input from the Michigan Supreme Court with regard to whether the County might be institutionally liable for denial of a protected Michigan right.

Is failure to report child abuse governed by medical malpractice laws?

In Lee v. Detroit Medical Center and Children's Hospital, a panel of the Court of Appeals was presented with the thorny question of whether an abused child's representative must comply with medical malpractice rules in order to hold a medical professional responsible for the breach of the professional's statutory duty to report suspected child abuse.  Two judges concluded that since the statute creates a duty in both professionals and non-professionals, it does not create a "professional" duty and the malpractice rules are irrelevant to the statutory claim.  The third judge would have defined the duty based on the professional occupation of the person alleged to have committed the statutory breach.  The case is likely to end up before the Michigan Supreme Court before we have a final answer.

Title insurer not liable for failing to alert buyer to demolition order

Kandasha Glenn bought a home in Pontiac and title insurance from First American.  One week after the closing, the home was demolished pursuant to a two-year old order issued by the City of Pontiac.  Glenn filed suit against the title company, alleging it was negligent in failing to uncover and give her notice of the order under its duty to search "public records."  The Court of Appeals upheld the dismissal of Glenn's claim, deciding that the title insurance contract did not expressly cover a complaint of this nature.  The Court held that the title insurer was only obligated to fulfill its contract, and it interpreted the contractual promise to apply only to matters of "title" to the property.

Grand Traverse County fraud and misrepresentation claim dismissal upheld

Shirley Akers was swindled out of nearly a quarter-million dollars by Margaret Zimmerman, a former employee of Bankers Life and Casualty Company.  Akers sued Bankers Life, alleging that it committed fraudulent concealment or intentional misrepresentation when it wrote and told Akers that Zimmerman was no longer employed by Bankers Life, but failed to reveal that Zimmerman was discharged for unethical behavior.    After the discharge, Zimmerman solicited her former Bankers LIfe-client to make investments in several "ponzi"-type vehicles.

Akers could not sue for negligence because she did not bring her action within three years of Bankers Life's alleged misconduct, however, if she could prove fraud, the statute of limitations would be longer.

Court applies six-year statute of limitations to surveyor and clerical error

Cedar River Investment Company sued Benchmark Engineering and Joseph B. O'Neill for negligence after purchasing a condominium in Antrim County.  Through a clerical error, the condo was certified as having 26000 square feet of floor space, when in actuality it had only 18000 square feet.  The Investment Company claimed that it relied upon the surveyor's certification of the size of the unit in the condo sub plan when it purchased the unit. 

The Court of Appeals upheld the lower court's ruling that Cedar River's claim was brought too late.  Even though the error in floor space was made by a technician who worked for Benchmark, the Court ruled that the six-year statute of limitations applicable to surveyors and survey reports was applicable to this claim.

Malpractice claim versus real estate appraiser explained

Michael Dorman sued the appraiser he hired to support his inverse condemnation claim, Gilbert Zook.  Dorman had sued Clinton Township, claiming an illegal "taking" of his right to develop a parcel of real estate.  He claimed that he lost his case because Dorman mistakenly failed to account for the Michigan Land Division Act and subsequently conceded (wrongly) that Dorman could still secure a profit on his development by complying with the Township's zoning requirements.

Another "man-bites-dog" story: doctor's malpractice claim against divorce lawyer thrown out

Dr. Robert Roosenberg sued his first attorney, claiming the attorney mismanaged his divorce from his second wife, Jane Lubin.  Both Roosenberg and Lubin are opthalmologists, and each brought substantial property, including a total of 5 or 6 homes, a business,  and two retirement accounts to the marriage.  Apparently they never completely merged their property during the six year marriage. [We think the legal complications of the divorce have now lasted longer than their cohabitation--which ended in 1999.]

Roosenberg "cherry-picked" the analyses of two successive arbitrators for advantageous provisions, and attempted to hold his first attorney responsible for any of the negative aspects of the ultimate outcome.  The Court concluded that his claim was too speculative and that he could not meet the causation requirement of proving that negligence by his attorney had caused him to achieve a poorer outcome in the divorce settlement.

Title insurers aren't responsible for negligence in Michigan

Apparently because there was concern they would flee the state, Michigan title insurers have gradually been granted immunity by state court judges, at least according to the Court of Appeals' recent ruling in Wormsbacher v. Phillip R. Seaver Title Co.  A buyer who relied on title searches before buying land in a Rochester subdivision attempted to sue the title company when it turned out that the company failed to advise him of restrictions prohibiting commercial use of the land.

Court rejects "serious impairment" defense in legal malpractice case.

Adrianne Williams was hurt in a car wreck.  She retained Dan Rusch, an experienced attorney, to represent her, however, unfortunately he failed to file suit within the pertinent statute of limitations.  She brought an action against him and secured a verdict of $145,000.00.  Mr. Rusch appealed claiming Williams hadn't suffered a serious impairment, and his attorneys "disingenuously" claimed that Williams' injury was not "life-altering." 

The court noted that after three years of constant back pain and limitations on activity, Williams' spine was fused surgically.  She endured years of PT, nerve blocks, use of a TENS unit and was unable to perform normal household tasks or recreational activities.  She is required to take pain medication daily and has been told that her leg will not improve.  The appellate court concluded that the trial judge was correct in concluding that she had suffered a "serious impairment" as a matter of law.  The case is Williams v. Rusch, et al.

The attorney judgment rule in legal malpractice claims: Docs sue lawyer, or "Dog bites man"

This month, the Court of Appeals had two occasions to address the so-called "attorney judgment rule" in legal malpractice claims.  The latter rule arises when an attorney is sued for negligence and claims as a defense that he or she is not responsible for a bad outcome as the decisions he or she made were in accordance with sound professional judgment.  It is a common defense in all professional malpractice cases that the allegedly erroneous action was actually an exercise of judgment in accordance with the standard of care of other reasonable professionals in the same field.  For example, if a trial attorney makes a considered tactical decision not to call a particular expert because the witness will do more harm than good, and that judgment is not an identifiable error at the time, he or she cannot be sued for that decision if the case is ultimately lost.