Trial Lawyers’ Bottom Line: Requesting penalty interest under the UPTA for insurer’s delay to pay UIM benefits is not subject to “reasonably in dispute” standard.
In 2004, the George and Thelma Nickola were injured in a car accident by another driver, Roy Smith, who was insured by Progressive. Smith’s policy did not cover the cost of the Nickolas' injuries, so they sought Underinsured Motorist Benefits from their insurance company. The insurance company refused, but after years of procedural wrangling, an arbitration panel awarded the Nickolas their UIM benefits.
The Nickolas then sought penalty interest under the Uniform Trade Practices Act (UTPA), MCL 500.2001 et seq. But the trial court refused to apply penalty interest because the claim was not "reasonably in dispute." The Court of Appeals affirmed, but the Michigan Supreme Court reversed, holding that this language did not apply the Nickolas' claim.
Read MoreTrial Lawyers’ Bottom Line: Trial courts have discretion to hold a Franks hearing, even if defendant fails to make “a substantial preliminary showing.”
In 1978, the U.S. Supreme Court decided Franks v. Delaware, 438 US 154 (1978), which held that a defendant is entitled to a hearing under the Fourth Amendment if he or she “makes a substantial preliminary showing” (1) that a police officer knowingly or intentionally made a false statement in an affidavit to obtain a search warrant and (2) that the false statement was necessary to the judge’s finding of probable cause. These hearings came to be known as “Franks Hearings.” The Michigan Court of Appeals interpreted this decision to bar a trial court from holding a Franks hearing—even if the trial court wants to—unless the defendant first makes “the substantial preliminary showing.” The Supreme Court reversed this decision.
Read MoreTrial-lawyers’ bottom line: If parent has a disability, HHS must establish a service plan that accommodates the parent’s disability.
Ms. Brown is mentally disabled. In 2012, she brought her infant daughter to the Department of Health and Human Services. The Department moved to place the child in protective custody, and the Wayne County Circuit Court took jurisdiction, instituting a service plan provided by the Department. Brown later gave birth to a son, who the court took jurisdiction over him in 2013.
During 2013, Brown’s attorney argued that the Department’s services did not meet her needs as a disabled person. Through 2014 and much of 2015, Brown’s attorney sought services to accommodate Brown’s intellectual disability. She never received them. And in 2015, the Department filed a petition to terminate her parental rights, which the Court of Appeals granted.
The Court of Appeals gave short shrift to the Department’s argument that Brown waived her claim by failing to object to the service plan when it was adopted. The Court of Appeals then ruled that the Department failed to provide a service plan that accommodated Brown’s disability. The Supreme Court granted the children’s guardian ad litem leave to appeal. The questions were (1) whether Brown timely raised her claim for accommodation; and (2) whether the Department’s efforts at family reunification were reasonable—as required by statute.
Read MoreTrial-lawyers’ bottom line: For-profit schools are eligible for tax exemption under MCL 211.9(1).
SBC Health Midwest ran Sanford-Brown College Grand Rapids, a for-profit school located (oddly) in Kentwood, Michigan. SBC requested a tax exemption for the school under MCL 211.9(1). The City of Kentwood denied it. SBC appealed the decision to the Michigan Tax Tribunal, which also denied the exemption, holding that the statute provides an exemption for nonprofit schools only. SBC appealed again, finally winning in the Court of Appeals, which reversed the tax tribunal’s decision. The Supreme Court granted leave to appeal; the question was whether a for-profit school could avail itself of the property exemption in MCL 211.9(1)(a).
Read MoreTrial-Lawyers’ Bottom Line: Plain language of “fixed by the court” meant a court, not jury, determined attorney fees.
Cynthia Barton-Spencer signed a contract to begin working as a life-insurance agent for Farm Bureau Life Insurance in 2000. The contract stated that Barton-Spencer “agree[d] to reimburse [Farm Bureau’s] attorney fees and costs as maybe fixed by the court” if the company prevailed against Barton-Spencer in any contract dispute. The question was whether this provision meant that reasonable attorney fees would be fixed by a court rather than a jury.
Read MoreTrial-lawyers’ bottom line: A 3rd party can toll the no-fault act’s one-year limitations period by providing notice to a claimant’s insurance company.
Perkovic crashed his semi-truck in Nebraska on February 28, 2009. He was taken to the Nebraska Medical Center for treatment. The hospital sent a bill to his employer’s insurance company, Zurich American Insurance, who denied payment and returned the bill to the hospital.
Three months later, Perkovic filed a claim for insurance benefits with his personal insurer--not Zurich--under Michigan’s no-fault act, MCL 500.3101 et seq. He failed to amend his complaint to add Zurich until March 25, 2010, after the one-year statute of limitations (MCL 500.3145(1)) had expired. As a result, Zurich moved for summary disposition. Perkovic argued that the hospital’s bill tolled the limitations period under the statute because the bill gave Zurich notice of Perkovic's claim. The trial court disagreed and granted Zurich summary disposition. The Court of Appeals affirmed.
The no-fault act creates an exception to the one-year limitations period if “written notice of injury as provided herein has been given to the insurer within 1 year after the accident.” MCL 500.3145(1). The statute continues: “The notice of injury required by this subsection may be given to the insurer . . . by a person claiming to be entitled to benefits therefor, or by someone in his behalf.” Id. The question was whether the hospital constituted “someone in [Perkovic’s] behalf.”
Read MoreTrial-Lawyers’ Bottom Line: Presumptive father is a necessary party when court is determining parental rights, and the mother could not assert the presumptive father’s limitations defense until he joined the case as a defendant.
In 2009, Sharea Foster gave birth to a baby boy. Under Michigan law, her husband, Christopher Foster, was the child’s presumptive father. See Pecoraro v. Rostagno-Wallat, 291 Mich. App. 303 (2011). But Shae Graham filed a petition under the Revocation of Paternity Act (RPA), MCL 722.1431 et seq., to prove his paternity of the child. Graham sued Sharea Foster only, however (not both of the Fosters). As a result, Sharea moved for summary disposition, arguing that (1) her husband Christopher was a necessary party; and (2) the RPA’s limitations period had expired in relation to Christopher. The trial court disagreed, and Sharea filed an interlocutory appeal.
Read MoreBarrera pled guilty to multiple counts of criminal sexual conduct. During the course of his crime, he moved the victim from the living room into a bedroom. The question was whether this movement constituted “asportation” for the purposes of sentencing. MCL 777.38, also called Offense Variable (or “OV”) 8, adds points during sentencing in part when “a victim was asported to another place of greater danger or to a situation of greater danger.”
Trial-Lawyers' Bottom Line: If a victim is carried or moved to a place of greater danger, then OV-8 applies
Read MoreKrystal Lowrey fell down the stairs of Woody’s Diner, breaking her tibia and fibula. She claimed the step was covered with water and sued Woody’s Diner for negligence. The Diner moved for summary disposition under MCR 2.116(C)(10), which the trial court granted, holding that Lowrey failed to raise a genuine issue of material fact regarding whether the diner had actual or constructive knowledge of the condition of the stairs.
Trial-Lawyers’ Bottom Line: In premises liability case, defendant need not prove it lacked notice by showing what an inspection would have revealed. Demonstrating insufficient evidence of an essential element of the claim is enough under MCR 2.116(C)(10).
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