TOV Injury and Safety Blog

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 dismisses woman's toxic mold exposure claim after Supreme Court eliminates "discovery" rule

Connie Colaianni alleged that she suffered numerous sinus and respiratory problems after her workplace moved into a newly-renovated location in 1998.  She did not sue until July of 2003, however, and the landlord argued that her case should be dismissed because it was not in compliance with the three-year statute of limitations. The trial court held that Colaianni did not reasonably discover the basis for her claim until her doctor diagnosed her illness as stemming from toxic mold exposure, and therefore concluded her suit was timely, as it was filed within three years of reasonable discovery. 

The Defendants renewed their motion to dismiss, however, after the Engler Majority of the Supreme Court wrote its opinion in Trentadue v. Gorton in 2007.  The Court of Appeals panel in Colaianni noted that when the Supreme Court completely repudiated the common law discovery rule in 2007, it undercut the basis for Colaianni's lawsuit.  Therefore, the case had to be dismissed on the basis of the three year statute of limitations, even if Colaianni's doctors did not identify the cause of her problems during the statutory limitation period.

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.

Court reaffirms holding that continuing misdiagnosis or mis-treatment does not extend statute of limitations

Brown v. Dr. Karen Milner and Dr. Dan Andrews, et al., is a very unattractive malpractice claim brought by a Ph.D., Mr. Kenneth Brown, against his treating physicians.  Brown claimed that inadequate or substandard care by his physicians contributed to a dysfunctional decade that included multiple job changes, multiple failed business ventures, three bankruptcy declarations, two divorces, and perhaps two criminal sexual conduct crimes. It will shock very few readers to learn that his malpractice claim was dismissed.  It is unfortunate, however, that the justification for the dismissal was the Michigan judiciary's refusal to consider "continuing wrong" liability.

Fraud case against Auto Club allowed to proceed

Sharon Strozewski sued the Auto Club Insurance Association, alleging that it fraudulently denied her proper payment for quitting her job to care for her two small children who suffered severe brain damage in a car accident.  Her case came back to the Court of Appeals, after appeal to the Supreme Court, to determine whether the insurer could properly be charged with defrauding two brain-damaged very young children.  The Court concluded that even though the children were no misled by the alleged fraud, their representative, Strozewski, was:  therefore a fraud case was viable.

Court enforces one-year statute of limitation for defective product

Liparoto Construction sued General Shale Brick, and Lincoln Brick, alleging that they provided defective materials [brick] to Liparoto's construction project.  It also sued its commercial insurer for losses suffered as a result of the defective brick.  The Court held that it was too late in suing the manufacturer, and that State Auto, Liparoto's insurer, had not agreed to insure this type of loss.

Malpractice death case dismissed as filed too late

In Lawson v. Spectrum Health, et al., the family of a woman who died after cardiac catheterizaion filed suit against the hospital and cardiologist.  The woman died in February of 2005, but her family did not appoint a Personal Representative of the Estate until April of that year.  They then filed a Notice of Intent  (NOI) in March of 2007, and filed suit in October of 2007.  The Court pointed out that Lawson needed to file suit within two years of the alleged malpractice (by February of 2007) or within two years of the date of appointing a P.R. (April of 2007).  The Michigan Supreme Court had previously ruled that filing the NOI within the two-year period after appointment of the P.R. did not extend the statute of limitations in a death case:  the NOI and waiting period requirements must be fulfilled within the two-year "saving period".

Statute of limitations when there is a "continuing wrong"

One of the least discussed errors of recent Michigan jurisdprudence has been a deliberate confusion and rejection of the concept of a "continuing wrong".  Whether the claim is for a trespass on someone else's property, or  for a professional's continuing malpractice, there are occasions when an error occurs not just on the first day of the wrong--but also on subsequent days.  The so-called Engler Majority turned Michigan jurisprudence on its ear in the 2005 Garg case by deciding that the statute of limitations begins to run the day the first of these continuing errors is made:  a patient litigant who did not run to the courthouse steps is punished for his attempt to resolve matters without suit.

Sixth Circuit reinstates death claim against Providence Hospital

The family of Marie Irons sued Providence Hospital after it failed to admit Irons' estranged husband to a psychiatric unit.  A phyisican who examined the husband in the Providence E.R. had recommended admission, but apparently a second doctor counter-manded the order and the husband was discharged.  Ten days later, he murdered Irons with an axe.  The case had been dismissed in 2007 by the trial court after the St. John Health System, which runs Providence, contested the Estate's standing to sue and the application of the Emergency Medical Treatment and Active Labor law.  The appellate judges of the Sixth Circuit concluded that the lower court was in error in deciding factual questions that should have been considered by the jury.

Successor Personal Representative of Estate can file suit after limitations period has run on initial P.R.

In McGill-Kohler v. Hasan and North Oakland Medical Center, the Court of Appeals reaffirmed the right of a successor Personal Representative to file a wrongful death claim, if the claim is filed within two years of the successor's appointment by the Probate Court.  The trial court had dismissed the claim, measuring the two-year statute of limitations from the date letters of authority were issued to the original P.R.  The case had been dismissed once before, without prejudice, when the initial P.R. failed to file suit within two years of her appointment.  The Estate's attorneys took advantage of the wrongful death savings provision to secure a new limitations period by appointing a new P.R.

Insurer who repeatedly demanded more information cannot argue ultimate suit was filed late

Employers Mutual insured two gas stations operated by the Tiel Oil Company in Reed City.  The gas stations suffered an in-ground petroleum leak after water infiltrated underground pipes, froze, and fractured the pipes.  The insurer was notified of the loss but declined to pay, offering serial excuses based upon its interpretation of various policy clauses. 

State Farm avoids payment of attendant care obligation

Daniel O'Connell was seriously injured in a motor vehicle collision.  His wife was apparently approved to provide attendant care in 2003, but she filed no documentation with State Farm after September of 2003 to support her claim for services.  The family then delayed beyond the "one year back" rule before filing suit against State Farm for payment of the services she provided in 2003 and 2004 [under this rule, any no fault benefit not sued upon within one year--even if it is not denied by the insurer--is waived].  The court summarily rejected her claim for "old" benefits and the O'Connells did not appeal that decision.

With respect to more recent attendant care services, the appellate court ruled that since Mrs. O'Connell testified that she expected  her 2004 services to be paid through an intermediary, she had not documented an obligation owed by State Farm, and for that reason, she could not collect for these more recent services, either.  Thus, without disputing O'Connell's need for attendant care which it had initially approved, State Farm was allowed to avoid payment:  the O'Connells were too late in suing for 2003 services and had not provided State Farm with [timely] "reasonable proof of both the fact and amount" of 2004 services.  It is cases like this one which document the need for the advice of a good lawyer in addressing No Fault PIP issues.  In a better world, insurers would not be released from statutory obligations on a technicality:  that is not our world.

Another injustice by Republican activists

In 2007, the activist conservative majority on Michigan's Supreme Court held that the family of a rape/murder victim could not avail itself of the "discovery" rule to bring an action against the parties at fault, even though the perpetrator was not identified until long after the statute of limitations had run.  In most jurisdictions, the victim has additional time to act after he or she "reasonably should have discovered" the identity of the wrongdoer.  The four Republican extremists on Michigan's Court refused to apply the discovery rule here, however, even though the family had no idea, during the limitation period, who was responsible for the crime.

Judge Henry Saad, who never saw an insurance defense that he didn't like, and a panel of Court of Appeals' judges relied upon the rape/murder case in throwing out a case against Ford Motor Company in Beaulier v. Ford Motor.  Mr. Beaulier was attempting to hold Ford Motor responsible for contaminating his property with methane gas and piles of industrial waste.  Many jurists argue that Ford's conduct in a case such as this constitutes a "continuing" trespass, which the landowner can act upon at any time--since the polluting trespass is continuing.   We think that whether one addresses the issue as one of fairness or one of public policy, the "continuing tort" theory is more appropriate.  It is ironic that jurists appointed by a political party that eschews litigation and a "rush to the courthouse" continues to interpret the law in an activist manner that denies any "day in court" to people who have not sued on the earliest possible date. [See the earlier blog entries addressing the restrictive interpretation this court has applied, for example requiring No fault PIP actions within one year, rather than within one year of denial, as was the law for 19 years.]

Court enforces 120-day notice provision against disabled woman

The Court of Appeals recently held that a woman could not sue the City of Taylor for inadequate road maintenance, because she did not advise the City of her injuries and her potential road claim within 120 days of the accident that caused them.  The Court held that the statutory provision allowing an injury victim additional time to report a road defect if he or she is "mentally or physically incapable of giving notice" did not apply to this woman, despite the fact that she was living in a nursing home or sleeping in a hospital bed in her living room during the first 120 days after she was hurt, as a result of spinal cord injuries and a femur fracture, several surgeries, a disabling infection, and not surprisingly, depression.

Local judge writes disappointing opinion.

Rick Griffin, a Traverse City native appointed by the Bush Administration to the Sixth Circuit, authored a disappointing opinion regarding insurance time limits this week.

Michigan's Supreme Court won't protect insurers from fraud

   While the activist majority of Michigan's Supreme Court will stretch a long way to protect the insurers and Chamber of Commerce who secured their appointment to the Court, they ruled on June 25 that they would not protect insurers from outright fraud claims.  The majority had earlier reversed 19 years of no fault law to require that suit on no fault PIP benefits be brought within one year of the date of any expense or service.  Sharon Strozewski sued AAA alleging that the Auto Club had defrauded her of proper benefits for caring for her two severely disabled children; this week the Court held that if she proved all of the elements of fraud, she could win her case, despite the one-year limitation, because actual fraud has a longer statute of limitations.

University Medical system denied reimbursement for patient's medical care

The University of Michigan lost its claim against Titan Insurance Company for expensive treatment provided to an uninsured man severely injured in a motor vehicle collision.  It would have been paid in full if it had sued Titan within one year of the injury, however, at that time, the Supreme Court had held that suit could be delayed until one year after the insurer denied payment. 

The unusual statute of limitations for architects, engineers and other land-related professionals

  Michigan has a separate, distinct statute of limitations for the negligence of surveyors, architects, engineers and contractors who improve property.  The statute says that no claim may be brought six years after a survey or report is delivered to the customer/client, regardless of other questions regarding the "accrual" of a negligence claim.