Michigan Law Summaries
General Considerations in Insurance Claims Management
M.C.L.A. § 29.4
Reporting of Fires; Release of Information by Insurance Companies
Fire investigators and fire prevention officials may request an insurer investigating a fire loss of real or personal property release all information in possession of the agent relative to the loss.
If an insurer has reason to suspect a fire loss was caused by incendiary means, the insurer must notify the fire investigating agency and furnish them with all relevant material acquired during its investigation of the fire loss.
M.C.L.A. § 29.6
Fire Marshal Investigative Authority
State fire marshal may investigate and inquire into fire cause and origin that results in death or property damage, and without restraint or trespass liability.
M.C.L.A. § 257.1106
Death, Injury or Damages Caused by Uninsured Motorist; Application for Payment from Fund
Where the death of or personal injury or property damage to any person or property is occasioned by an uninsured motor vehicle, any person who would have a cause of action against the owner or driver of the uninsured motor vehicle in respect to the death or personal injury or property may make application for payment out of the Motor Vehicle Accident Claims Act fund for all damages in respect to the death or personal injury and for damages in excess of $200.00 in respect to property damage.
M.C.L.A. § 257.1123
Maximum Payments for Death, Injury or Property Damage
In respect to applications under the Motor Vehicle Accident Claims Act for payment of damages arising out of motor vehicle accidents, the secretary shall not pay out of the fund:
(1) More than $20,000.00, exclusive of costs, on account of injury to or the death of one person, and, subject to such limit for any one person so injured or killed, not more than $40,000.00, exclusive of costs, on account of injury to or the death of two or more persons in any one accident; and
(2) More than $10,000.00, exclusive of costs, for loss of or damage to property resulting from any one accident.
M.C.L.A. § 436.1801(3)
Liquor liability
Right of action of person killed, injured, or damaged by unlawful sale or providing of alcohol to minor or visibly intoxicated person, if the unlawful sale is proven to be a proximate cause of the damage, injury or death.
M.C.L.A. § 500.2006
Timely Payment of Claims or Interest; Proof of Loss; Calculation of Interest; Exemptions
An insurer must pay on a timely basis to its insured the benefits provided under the terms of its policy, or, in the alternative, the insurer must pay to its insured twelve percent interest on claims not paid on a timely basis. Failure to pay claims on a timely basis or to pay interest on claims is an unfair trade practice unless the claim is reasonably in dispute.
An insurer shall specify, in writing, the materials that constitute a satisfactory proof of loss not later than thirty (30) days after receipt of a claim, unless the claim is settled within the thirty (30) days. If proof of loss is not supplied as to the entire claim, the amount supported by proof of loss shall be considered paid on a timely basis if paid within sixty (60) days after receipt of proof of loss by the insurer.
M.C.L.A. § 500.2026
Unfair Claims Practices
(1) Unfair or deceptive acts or practices in the business of insurance include, but are not limited to,:
a) Misrepresenting pertinent facts or insurance policy provisions relating to coverage at issue;
b) Failing to acknowledge promptly or to act reasonably and promptly upon communications with respect to claims arising under insurance policies;
c) Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies;
d) Refusing to pay claims without conducting a reasonable investigation based upon the available information;
e) Failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed; and
f) Failing to attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear.
(2) The failure of an insurer to maintain a complete record of all the complaints of its insureds which it has received since the date of the last examination is an unfair method of competition and unfair or deceptive act or practice in the business of insurance.
M.C.L.A. § 500.2845
Insured Real Property Fire Proceeds
If a claim is filed for a loss to insured real property due to fire or explosion and a final settlement is reached on the loss to the insured real property, an insurer shall withhold from payment twenty-five percent of the actual cash value of the insured real property at the time of the loss or twenty-five percent of the final settlement, whichever is less. For residential property, the twenty-five percent settlement or judgment withheld shall not exceed $6,000.00 adjusted annually beginning June 1, 1999, in accordance with the Consumer Price Index.
M.C.L.A. § 500.4503
Fraudulent Insurance Acts
A person commits insurance fraud if they present or prepare any oral or written statement supporting an application or claim for insurance while knowing the statement is false, either in whole or in part.
M.C.L.A. § 500.4507
Release of Information to Authorized Agency or Insurer
Upon written request by an authorized agency, an insurer may release to the authorized agency, at the authorized agency's expense, any or all information that is considered important relating to any suspected insurance fraud. An authorized agency may release information on suspected insurance fraud to an insurer upon a showing of good cause. This information may include, but is not limited to, the following:
(1) Insurance policy information relevant to an investigation, including any application for a policy;
(2) Policy premium payment records that are available;
(3) History of previous claims made by the insured; and/or
(4) Information relating to the investigation of the suspected insurance fraud, including statements of any person, proofs of loss, and notice of loss.
M.C.L.A. § 500.4509
Report of Information Concerning Insurance Fraud
In the absence of malice in a prosecution for insurance fraud, any person who cooperates with an authorized agency or complies with a court order to provide evidence or testimony is not subject to civil liability with respect to any act concerning the suspected insurance fraud, unless that person knows that the evidence, information, testimony, or matter contains false information pertaining to any material fact or thing.
M.C.L.A. § 500.4511
Violations; Penalties
A person who commits insurance fraud is guilty of a felony punishable by imprisonment for not more than four years or a fine of not more than $50,000.00, or both, and restitution. A person who enters into an agreement or conspiracy to commit insurance fraud is guilty of a felony punishable by imprisonment for not more than ten years or by a fine of not more than $50,000.00, or both, and shall be ordered to pay restitution.
Automobile Insurance
M.C.L.A. § 500.3009
Minimum Auto Insurance Limits
An automobile liability policy insuring against loss resulting from liability imposed by law for property damage, bodily injury, or death suffered by any person arising out of the ownership, operation, maintenance, or use of a motor vehicle shall not be issued to any motor vehicle unless the liability coverage is subject to a limit, exclusive of interest and costs of:
(1) Not less than $20,000.00 because of bodily injury to or death of one person in any one accident, and subject to that limit for one person;
(2) To a limit of not less than $40,000.00 because of bodily injury to or death of two or more persons in any one accident; and
(3) To a limit of not less than $10,000.00 because of injury to or destruction of property of others in any accident.
M.C.L.A. § 500.3010
Loss or Damage Caused by Fire or Explosion to Motor Vehicle
An automobile insurer shall not pay a claim of $2,000.00 or more for loss or damage caused by fire or explosion to an insured motor vehicle until a report has been submitted to the fire or law enforcement authority designated and the insurer has received from the insured a copy of the report.
This section does not apply to accidental fires or explosions. If the insurer or the fire or law enforcement authority designated determines that the fire or explosion may not be accidental, the insurer shall notify the insured of the requirement for a report under this section by no later than thirty (30) days after the determination.
M.C.L.A. § 500.3105
Personal Protection Benefits; Accidental Bodily Injury
(1) Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle.
(2) Personal protection insurance benefits are due without regard to fault.
(3) Bodily injury includes death resulting therefrom and damage to or loss of a person's prosthetic devices in connection with the injury.
(4) Bodily injury is accidental as to a person claiming personal protection insurance benefits unless suffered intentionally by the injured person or caused intentionally by the claimant. Even though a person knows that bodily injury is substantially certain to be caused by his act or omission, he does not cause or suffer injury intentionally if he acts or refrains from acting for the purpose of averting injury to property or to any person, including himself.
M.C.L.A. § 500.3107
Allowable Medical Expenses and Accommodations
Personal protection insurance benefits are payable for the following:
(1) Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services, and accommodations for an injured person's care, recovery, or rehabilitation;
(2) Work loss consisting of loss of income from work an injured person would have performed during the first three years after the date of the accident if he or she had not been injured. The statutory maximum is based upon a schedule which is periodically adjusted for inflation; and
(3) Replacement services or expenses, not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he or she had not been injured, an injured person would have performed during the first three years after the date of the accident, not for income but for the benefit of himself or herself or of his or her dependent.
M.C.L.A. § 500.3112
Payees of Personal Protection Benefits; Payments as Discharge of Liability
Personal protection insurance benefits are payable to or for the benefit of an injured person or, in case of his death, to or for the benefit of his dependents. Payment by an insurer of personal protection insurance benefits discharges the insurer's liability to the extent of the payments unless the insurer has been notified in writing of the claim of some other person. If there is doubt about the proper person to receive the benefits or the proper apportionment, the insurer and the claimant may apply to the circuit court for an appropriate order. In the absence of a court order the insurer may pay:
(1) To the dependents of the injured person, the personal protection insurance benefits accrued before his death without appointment of an administrator or executor; and
(2) To the surviving spouse, the personal protection insurance benefits due any dependent children living with the spouse.
M.C.L.A. § 500.3113
Persons Not Entitled to Personal Protection Benefits
A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident:
(1) The person was using a motor vehicle or motorcycle which he or she had taken unlawfully, unless the person reasonably believed that he or she was entitled to take and use the vehicle;
(2) The person was the owner or registrant of a motor vehicle involved in the accident and failed to maintain the security for payment of benefits under personal and property protection insurance; and/or
(3) The person was not a resident of Michigan, was an occupant of a motor vehicle not registered in Michigan, and was not insured by an insurer which has filed a certification for nonresidents.
General Liability Considerations
M.C.L.A. § 418.131
Employer-Employee Recovery; Remedies
The right to the recovery of workers’ compensation benefits shall be the employee’s exclusive remedy against the employer for a personal injury or medical condition resulting from the employment. An employer can be held liable for an intentional tort where an employee is injured as a result of a deliberate act of the employer and the employer specifically intended the injury. An employer is presumed to have intended to injure the employee if the employer had knowledge that an injury was certain to occur and willfully disregarded that knowledge.
M.C.L.A. § 600.1483
Medical Malpractice Damages Cap
In a medical liability action, total noneconomic damages recoverable by all plaintiffs against all defendants are limited to $280,000.00, adjusted annually for inflation, except in cases where the plaintiff is hemiplegic, paraplegic, or quadriplegic due to an injury to the brain or spinal cord, or where the plaintiff had permanently impaired cognitive capacity, or the plaintiff has had a permanent loss of or damage to a reproductive organ, then noneconomic damages shall not exceed $500,000.00.
M.C.L.A. § 600.2913
Parental Liability for Minor Child’s Willful Injury or Damage
Person can recover damages for maximum of $2,500.00 from parents of resident minor child of parents when the minor has willfully or maliciously caused injury or damaged property.
M.C.L.A. § 600.2922
Wrongful Death Actions
Whenever the death of a person is caused by a wrongful act, neglect, or fault of another and the act would have entitled the party injured to maintain an action and recover damages if death had not ensued, the party that would have been liable shall be liable to an action for damages. Every action under this section shall be brought by, and in the name of, the personal representative of the estate of the deceased. The people entitled to damages by being damaged by the death only include the decedent’s spouse, parents, children, descendants, grandchildren, brothers and sisters, grandparents, the children of the decedent’s spouse, and those who are devisees under the will of the deceased.
M.C.L.A. § 600.2925a
Contribution Between Tortfeasors
When two or more persons become jointly or severally liable in tort for the same injury to a person or property, there is a right of contribution among them even if a judgment has not been recovered against all or any of them.
The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. A tortfeasor against whom contribution is sought shall not be compelled to make contribution beyond his own pro rata share of the entire liability.
M.C.L.A. § 600.2946
Product Liability Actions
A manufacturer or seller is not liable unless a plaintiff establishes that the product was not reasonably safe at the time the specific unit of the product left the control of the manufacturer or seller and, according to generally accepted production practices at the time, a practical and technically feasible alternative production practice was available that would have prevented the harm without significantly impairing the usefulness or desirability of the product to users and without creating equal or greater risk of harm to others.
There is a rebuttable presumption that the manufacturer or seller is not liable if the aspect of the product allegedly causing the harm was in compliance with federal or state standards, or was in compliance with regulations or standards relevant to the event causing the death or injury promulgated by a federal or state agency responsible for reviewing the safety of the product.
M.C.L.A. § 600.2946a
Product Liability Actions; Caps on Damages
In an action for product liability, the total noneconomic damages shall not exceed $280,000.00, adjusted annually for inflation, unless the defect in the product caused either the person’s death or permanent loss of a vital bodily function, in which case the total amount of damages for noneconomic loss shall not exceed $500,000.00.
In awarding damages in a product liability action, the trier of fact shall itemize damages into economic and noneconomic losses. Neither the court nor counsel for a party shall inform the jury of the limitations. The court shall adjust an award of noneconomic loss to conform to the limitations.
M.C.L.A. § 600.2959
Comparative Fault
In a tort action, the court shall reduce the damages by the percentage of comparative fault of the person upon whose injury or death the damages are based. If the plaintiff’s percentage of fault is greater than the aggregate fault of the other person or persons, whether or not parties to the action, the court shall reduce economic damages by the percentage of comparative fault of the person upon whose injury or death the damages are based, and noneconomic damages shall not be awarded.
M.C.L.A. § 600.6304
Joint and Several Liability
The trier of fact must allocate liability among nonparties, even in medical malpractice cases where the plaintiff is not at fault, before joint and several liability is imposed on each defendant. Once joint and several liability is determined to apply, joint and several liability prohibits the limitation of damages to each defendant’s respective percentage of fault.
M.C.L.A. § 691.1407
Governmental Immunity from Tort Liability
A governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.
An officer, employee, member, or volunteer of the governmental agency is immune from tort liability caused while acting on behalf of the government agency if the following three conditions are met:
(1) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority;
(2) The governmental agency is engaged in the exercise or discharge of a governmental function; and
(3) The officer's, employee's, member's, or volunteer's conduct does not amount to negligence that is the proximate cause of the injury or damage.
Miscellaneous Statutes
M.C.L.A. § 24.264
Declaratory Judgment Actions
Unless an exclusive procedure or remedy is provided by a statute governing the agency, the validity or applicability of a rule may be determined in an action for declaratory judgment when the court finds that the rule or its threatened application interferes with or impairs, or imminently threatens to interfere with or impair, the legal rights or privileges of the plaintiff.
M.C.L.A. § 600.2157
Waiver of Physician-Patient Privilege
In any personal injury suit, if the plaintiff produces a physician as a witness who has treated the patient for the injury or for any disease or condition for which the malpractice is alleged, that patient is considered to have waived the privilege provided in this section as to another physician who has treated the patient for the injuries, disease, or condition.
M.C.L.A. § 600.6303
Collateral Source Benefits; Subrogation
In a personal injury action in which the plaintiff seeks to recover expenses, evidence that the expense or loss was paid or is payable by collateral source is admissible. The collateral source provider is joined after a verdict for the plaintiff is rendered and before a judgment is entered on the verdict. If the court determines that all or part of the plaintiff’s economic damages are payable by a collateral source, the court will reduce the part of the judgment which represents damages paid or payable. This reduction shall not exceed the amount of the judgment for economic loss or that portion of the verdict which represents damages paid or payable by a collateral source.
Within ten (10) days after a verdict for the plaintiff, plaintiff's attorney shall send notice of the verdict to all persons entitled by contract to a lien against the proceeds of plaintiff's recovery. If a contractual lienholder does not exercise the lienholder’s right of subrogation within twenty (20) days after receipt of the notice of the verdict, the lienholder shall lose the right of subrogation.
Romain v. Frankenmuth Mutual Ins. Co., et al., 762 N.W.2d 911 (Mich. 2009)
Comparative Negligence Statute Thresholds
The original case involved a dismissal of a party who owed no legal duty to homeowners under Michigan’s Comparative Fault Statutes. The other defendants sought to reinstate the dismissed party as a non-party at fault, but the trial court denied the motion. The issue on appeal was whether a party could be found as a non-party “at-fault” without the existence of a legal duty.
In a close 4-3 decision, the Supreme Court clarified differing opinions in the Court of Appeals. The Court found there could be no fault found if there was no legally established duty. The Justices reasoned that without a legal duty, that party could not have a causal connection to the harm alleged, and could not be introduced as a non-party at fault. The existence of a duty is a threshold element for negligence liability. The three dissenters interpret Michigan’s Comparative Negligence Statutes to give duty as an element of negligence, not as a threshold requisite.
Insurance Coverage Decisions
Aladdin’s Carpet Cleaning, Inc. v. Farm Bureau General Ins. Co., 2009 WL 499209 (Mich. Ct. App. 2009)
Scope of “Occurrence” and Duty to Defend
The issue on appeal in this case was whether or not Farm Bureau had a duty to defend the plaintiff in an action under terms contained in a Commercial Umbrella Liability Policy. Plaintiff argued that Farm Bureau breached the insurance contract and had improperly induced the plaintiff into believing that they would be covered if the plaintiff faced a suit due to improper spread of mold during a water restoration work order. The Court of Appeals of Michigan concluded that the negligence claims against the plaintiff, at least arguably, were an “occurrence” within the meaning of the policy, finding that the defendant had a duty to defend.
Auto Owners Ins. Co. v. Ferwerda Enterprises, Inc., 2009 WL 972822 (Mich. Ct. App. 2009)
Insurance Contract Coverage
The plaintiff was the insurer of the defendant’s hotel. During repair of an indoor pool’s heating system, a maintenance man failed to turn off the chlorine injector, which caused toxic fumes to be released when the system was turned back on. This caused injuries to a guest family. The insurance policy had an exception to not cover any “pollutants,” but a further endorsement stated pollutants would be covered if released from a heating system.
The court found that there was sufficient evidence for the plaintiff’s claim to survive summary judgment. The pool heating machinery was also the only source of heat for the indoor pool area, possibly making it within the heating endorsement. The court found that the exclusions and endorsement were generally ambiguous, of which a fact finder would be better suited to decide rather than the judge.
Auxier v. Nationwide, 2009 Mich. Ct. App. LEXIS 159
No Fault Automobile Insurance Action
Auxier sustained injuries when he was rear-ended while driving his girlfriend’s van. The issue in dispute was whether Auxier was an “owner” of the van under MCL § 500.3113(b). During his recorded statement Auxier claimed that he had use of the van for more than 30 days. He used the van to go to the store, run errands, go to work, and go to the movies at least once per week for at least one year. Additionally, he paid for gas he used, changed the oil, and replaced the brake pads. Auxier’s girlfriend testified that Auxier usually asked permission to use the van and that she denied him use on three to four occasions. On the basis of Auxier’s recorded statement, Nationwide denied Auxier’s request for no fault benefits because Auxier was an “owner” of the van and was disqualified from recovering benefits pursuant to MCL § 500.3113(b), which precludes a person from recovering benefits when that person is the owner of an uninsured vehicle involved in the accident. The court found Auxier’s use did not rise to the regular or exclusive usage seen in other cases where the court had deemed a party a vehicle’s owner under MCL § 500.301(2)(h)(i).
Fenton v. Farm Bureau General Ins. Co., 2009 WL 839086 (Mich. Ct. App. 2009)
Dispute of “Ownership” of Motor Vehicle
This case involved an uninsured owner of a vehicle seeking personal injury benefits from defendant based on an insurance policy held by the plaintiff’s sister, who had title to the vehicle. At the trial court, summary disposition was granted to Farm Bureau. On appeal by the plaintiff, Farm Bureau argued the plaintiff was an owner of the car and precluded from benefits because he did not insure the vehicle independently. The Court of Appeals of Michigan noted the plaintiff was an owner of the vehicle under statutory definitions. The Court of Appeals reversed the trial court’s order of summary disposition, holding the plaintiff was not precluded from benefits.
Neill v. Meemic Ins. Co. et al., 2009 WL 930059 (Mich. Ct. App. 2009)
No-Fault Benefits
The decedent was killed when an object fell off a parked trailer and struck him. The plaintiff asserted that the estate had the right to no-fault insurance benefits.
The court found there was no need for the insurance company to pay the plaintiff no-fault benefits. Under MCL § 500.3105(1), the insurer must pay the injured benefits for “accidental bodily injury arising out of the ownership, maintenance or use of a motor vehicle as a motor vehicle.” Because the trailer was parked, the court reasoned the vehicle was in the process of being used merely for “storage” and not for the functions of a motor vehicle. Therefore, the insurance company had no obligation to pay no-fault benefits.
Phillip v. State Farm Mutual Auto Ins., 2009 WL 1027536 (Mich. Ct. App. 2009)
Place of “Domicile” Under Insurance Policy
This case involved the issue of determination of a person’s place of “domicile” for purposes of insurance coverage. The trial court had granted summary disposition to State Farm. Upon appeal, if it was determined that the plaintiffs were domiciled at a certain residence, Farm Bureau would be liable for protection benefits. The Court of Appeals of Michigan outlined factors relevant to determine a person’s place of domicile, which include: 1) mailing address; 2) place of possessions; 3) driver’s license address; 4) possession of a bedroom at the home; or 5) whether the individual was dependent upon the insured financially. On appeal, it was concluded that under the circumstances of the case, the trial court had correctly determined the place and domicile and the grant of summary disposition to State Farm was affirmed.
Shankster v. Farm Bureau Mut. Ins. Co. of Mich., 2009 WL 3014412 (Mich. Ct. App. 2009)
PIP Coverage for Operator of Off-Road Vehicle
The insured brought suit for the payment of PIP coverage after he was injured driving an off-road utility vehicle. The off-road vehicle was exempt from registration and insurance coverage under Michigan statute, but the court allowed the insured to recover PIP benefits, stating that the insurance exemption does not lead to an exemption under the PIP statutes.
The Michigan Legislature amended the definition section of the statute in 2008. Now, the definition of “motor vehicle” expressly excludes “off-road vehicles.” The court, however, denied a retroactive look at the amendments, holding at the time, the off-road vehicle was considered covered under PIP coverage.
2. Premises Liability Decisions
Glod v. River Cruise Company, 2009 WL 186188 (Mich. Ct. App. 2009)
Open and Obvious Danger Doctrine
The plaintiff was injured when she tripped and fell over a coaming on defendant’s ship. She argued on appeal that the trial court improperly applied Michigan’s open and obvious danger doctrine when granting defendant’s motion for summary disposition.
The Court of Appeals held the trial court did not err in applying Michigan law to the defendant’s motion for summary disposition because the outcome would have been the same under maritime law. The court noted the open and obvious danger doctrine precludes liability where an invitee or passenger should have discovered and realized a dangerous condition. The court disagreed with plaintiff’s argument that the open and obvious danger doctrine did not apply to the duty of reasonable care in her negligence claims. The court also disagreed with plaintiff’s arguments that her status as an elderly passenger prevented her from realizing the danger of the condition and that maritime law regarding comparative negligence does not negate a defendant’s duty.
Gorges v. Kenna, 2009 WL 153421 (Mich. Ct. App. 2009)
Premises Liability – Open and Obvious Doctrine
Plaintiff visited the home of the defendant one night in December, during which there was a rain/snow mix falling outside. The defendant had the sidewalk and driveway shoveled earlier in the day, but the plaintiff slipped and fell on the doorway steps.
The trial court granted summary judgment in favor of the defendant, and the appellate court affirmed. The decision relied on the “open and obvious” doctrine, and that a twelve-year resident of Michigan would have been able to discover the danger of an icy step with reasonable inspection. The court also found there were not other factors that made the condition unreasonably dangerous in order to impose liability on the invitee defendant.
Powell v. Save-a-Lot, 2009 WL 1067563 (Mich. Ct. App. 2009)
Premises Liability
The plaintiff slipped and fell on black ice that had accumulated outside of the defendant’s business. The weather reports showed there were snow flurries for seven hours leading up to the fall, and temperatures were consistently below zero.
The court found that the defendant business owed no duty to the plaintiff. Although the plaintiff was an invitee, an invitee need only be protected against unknown dangers. The court reasoned that a lifelong citizen of Michigan should have objectively foreseen that these weather conditions in February could have led to the formation of black ice, and no duty was owed.
Van Buren v. Woodstock Apartments, 2009 WL 222623 (Mich. Ct. App. 2009)
Premises Liability
Plaintiff suffered injuries when she fell at the apartment of her sister, who was a tenant in defendant’s apartment building. Plaintiff maintained that she lost her balance on an uneven portion of the carpet in the hallway. She admitted she was aware of the uneven condition, and the trial court concluded that as a licensee, the plaintiff’s knowledge of the condition precluded her from liability.
The Court of Appeals reversed and remanded the trial court’s finding that the plaintiff was a licensee based on case precedent which held the duties owed to social guests by landlords was that of an invitee, not a licensee.
Procedure Decisions
Auto-Owners Ins. Co. v. Keizer-Morris, Inc, et al., 2009 WL 1835065 (Mich. Ct. App. 2009)
Third-Party Beneficiary Intervention
Auto-Owners denied coverage and defense to Keizer-Morris for a suit by an injured worker due to negligent manufacture of equipment by Keizer-Morris. The injured worked sought to intervene in the declaratory judgment action of Auto-Owners, stating he had a property interest in the insurance coverage issue because Keizer-Morris was otherwise a defunct business.
The Court of Appeals reversed the trial court’s decision, and allowed the injured worker to intervene in Auto-Owners’ action seeking declaratory relief. Although the court recognized the injured worker as an incidental third-party beneficiary, and not a named beneficiary under the insurance policy, the court did not find this determinative of the injured worker’s standing to sue. The court found it preferable to allow intervention by the injured worker because exclusion would leave the injured worker without recourse.
Greene v. State Farm Mut. Auto. Ins. Co., 2009 WL 1067287 (Mich. Ct. App. 2009)
Expert Testimony at Trial
The plaintiff was alleging serious brain injuries, for which she utilized a medical expert witness at trial. The witness was not identified in initial disclosures because the doctor’s EEG’s were performed after the initial disclosures were submitted. The defendant, however, learned of the doctor and the possibility of the doctor being called as a witness well before trial, and failed to provide any opposition to the doctor taking the stand. The court on appeal decided this was not a reversible error and upheld a jury verdict in favor of the plaintiff.
Lawson v. Spectrum Health et al., 2009 WL 1067562 (Mich. Ct. App. 2009)
Medical Malpractice Statute of Limitations
The decedent allegedly died due to the negligence of the defendants, and the plaintiff became the personal representative of the estate two months later. However, the plaintiff did not file a notice of suit or file her complaint until after the two-year statute of limitations for medical malpractice stated in MCL § 600.5805(6).
The court agreed with the summary disposition in favor of the defendants. The court did not allow the claim because the plaintiff had ample time and notice to be aware of possible medical malpractice, and simply failed to file her complaint in time. The court pointed out that if the notice of suit was filed within the statute of limitations, the time would toll pursuant to MCL § 600.5856(c).
Plaggemeyer v. Lee, 2009 Mich. Ct. App. LEXIS 1039
Serious Impairment of Body Function
Plaintiff’s left femur was injured when his bicycle was struck by the defendant’s motor vehicle. Plaintiff required surgery and was released from all restrictions by his physician 14 weeks later. He still suffered pain in his left leg and did not return to some of the activities he previously performed.
The court did not allow the plaintiff to recover for non-economic loss because it found no serious impairment of body function. Although the plaintiff did not return to all activities, these restrictions were self-imposed and not mandated by a doctor. The plaintiff also was able to walk without impairment and only suffered a cosmetic scar, not amounting to a serious impairment of body function.
Tipton v. Lang, 2009 WL 996952 (Mich. Ct. App. 2009)
Serious Impairment of Body Function
The plaintiff was injured in a motor vehicle accident by a vehicle driven by the defendant. The plaintiff underwent neck surgery, but the defendant contended there was no serious impairment of body function because the plaintiff was already restricted by prior work-related injuries. The trial court granted summary disposition to the defendant.
The court on appeal found the plaintiff had provided enough evidence for the jury to decide whether he suffered a serious impairment of body function. It was enough to survive summary judgment that the plaintiff no longer could sleep in a bed, but was forced to sleep in a recliner, that his intimacy with his wife was severely diminished, and his activity level outdoors was minimal. These impositions were backed by physician testimony that the restrictions were medically imposed, and that CT and MRI evidence depicted severe problems with the plaintiff’s neck.
Negligence Decisions
Dadd v. Mount Hope Church and Int’l Outreach Ministries, et al., 2009 WL 961516 (Mich. Ct. App. 2009)
Duty to Protect
The plaintiff was injured during an “alter call” at a leadership rally at the defendant’s place of worship. The plaintiff became weak, fell, and injured her head. She required medical treatment. Plaintiff testified that ushers were usually present at the altar to catch those congregants that become weak during the calls.
The court recognized there is usually no duty to act on the behalf of another to protect. However, the defendant usually provided protection in the form of having ushers present at the altar who are cognizant of each participant in the altar call. Because plaintiff relied on the presence of the ushers during the altar call, and that others were being caught by the ushers at the leadership rally, the defendant was under the duty to protect those participating in the call.
Martin v. Ledingham, 282 Mich. App. 158 (2009)
Medical Negligence
Plaintiff alleged the defendant-appellee’s nurses were negligent in their failure to report a worsening condition to physicians and that the negligence was a proximate cause of her injuries.
The Court of Appeals upheld the trial court’s summary judgment finding that since there was no evidence to suggest that plaintiff’s treatment would have been different if the condition had been reported correctly, the trial court had properly granted summary disposition.
Berkeypile v. Westfield Ins. Co., appealed from 760 N.W.2d 624 (Mich. App. 2008)
UIM Coverage
A plaintiff in a multi-car accident settled her claim with several of the other parties, but brought a UIM action for damages from a hit and run driver that was not a party to the original settlement. The insurer attempted to deny the coverage based on several theories including exclusions applying to the claim, duplicate payments, and reduction-of-benefits claims.
The Supreme Court will review whether the insured is still entitled to recovery although the insurer denies coverage liability on these several grounds.
Insurance Institute of Michigan v. Commissioner, Financial & Ins. Services, appealed from 280 Mich. App. 333, 761 N.W.2d 184 (Mich. App. 2008)
Insurance Administrative Rules Challenge
The Commissioner promulgated administrative rules disallowing an insurance company from using credit scores to determine insurance rates. Several insurance companies brought an action for declaratory judgment, claiming due process and other violations.
The Supreme Court will review multiple issues in this case, including the right of the insurance companies to bring a declaratory action and the scope of the Commissioner’s administrative rule-making ability.
Myers v. Muffler Man Supply Co., appealed from 2008 WL 4330240 (Mich. App. 2008)
Employer Negligence in Injury at Work
The plaintiff was injured after attempting to clean a large machine during his employment. The machine had been installed and maintained by a third party, who slightly altered the machine during the installation process by removing a guard and scraper.
The Supreme Court will review whether the third party is negligent in its alteration of the machine, or if the employee’s own negligence contributed to his injuries.
State Farm Mut. Auto. Ins. Co. v. Hudson, appealed from 2008 WL 4604389 (Mich. App. 2008)
Service of Process Following Motor Vehicle Accident
A plaintiff attempted service on a defendant by certified mail after a motor vehicle accident. The plaintiff used the address listed on the police report from the accident, and finally needed to serve the defendant’s brother, who was also involved in the accident.
The Supreme Court will review whether service on the defendant’s brother is sufficient, given the failed attempts for proper service.
Woodman v. Kera, LLC, appealed from 280 Mich. App. 125, 760 N.W.2d 641 (Mich. App. 2008)
Enforcement of Liability Release
A young boy attended a birthday party at the defendant’s playground, and sustained injuries when he jumped from the top of an inflatable slide. Prior to the party, the boy’s parent signed a release waiving the facility’s liability. The Court of Appeals found the liability waiver was invalid.
The Supreme Court will determine whether the pre-injury release is valid and enforceable.