Opinion Analysis: Court goes into details of calculating time for statute of limitations

Trial Lawyers’ Bottom Line: When calculating limitations period for medical malpractice cases under the Revised Judicature Act, fractions of days are rounded to provide whole days of counting and thus more time.

Haksluoto went to the emergency room due to stomach pains. After a CT scan, a doctor at Mt. Clemens Regional Medical Center said the plaintiff was fine to return home. Ten days later, Haksluoto returned to the emergency room, and doctors determined that he needed immediate surgery. Haksluoto sued for medical malpractice for the misinterpretation of the original CT scan.

Two statutes determined when Haksluoto needed to bring his suit.  Under MCL 600.5805(6), he had two years to file his medical malpractice claim, creating a deadline of December 26, 2013. In addition, the Revised Judicature Act (MCL 600.101 et seq.) requires a prospective medical-malpractice plaintiff to give 182-days notice to a potential defendant before filing a claim. The combined effect of the statutes is to create two-year limitations period, within which Haksluoto needed to serve his Notice of Intent (NOI) to start the 182-day clock.  Then he had to wait 182 days before he could file his suit.  While those 182 days are counting the statute of limitations is tolled.  And once the 182 days pass, the counting of the statute of limitations resumes.

Haksluoto waited until the very last day of limitations period, December 26, 2013, to serve his NOI. This started the 182 days of tolling under Revised Judicature Act. If Haksluoto was considered to have filed his NOI on December 26, then he needed to file suit on June 26, 2014. But Haksluoto did not file his suit until June 27. The hospital filed a motion for summary disposition, arguing that the suit was time-barred. The trial court denied the motion, but the Court of Appeals reversed.

The panel held that MCR 1.108, which is the rule that determines the calculation of time, said the 182-day notice period began the day after Haksluoto served the NOI—meaning December 27, 2013—and expired on June 26, 2014. Because this meant that the NOI did not commence until after the two-year limitations had expired, the NOI could not have tolled that limitations period. The Court of Appeals wrote that its holding “means that a plaintiff who serves an NOI on the last day of the limitations period is legally incapable of filing a timely complaint and is, in effect, deadlocked from timely filing a suit.”  The Court granted leave to appeal.

Read More

Opinion Analysis: Ecclesiastical abstention doctrine has no effect on jurisdiction

Trial Lawyers’ Bottom Line: Ecclesiastical abstention doctrine is never relevant to a court’s subject matter jurisdiction.

The Marist Fathers of Detroit operate two private, Catholic schools, Notre Dame Prep and Marist Academy, in Oakland County. Bettina Winkler attended the middle school for these two institutions, but was denied admission to the high school. She believed the school rejected her because she had dyslexia, a learning disability. She sued under MCL 37.1402, part of the Persons with Disabilities Civil Rights Act.

The Marist Fathers of Detroit moved for summary disposition, arguing that the ecclesiastical abstention doctrine deprived the circuit of subject matter jurisdiction over a challenge to admissions decisions of a religious school. The Marist Fathers also argued that the Persons with Disabilities Civil Rights Act did not apply to religious institutions. The circuit court denied the motion on both grounds.  The Court of Appeals reversed, relying on Dlaikan v. Roodbeen, 206 Mich App 591 (1994).  The panel said that, under the First Amendment, civil courts cannot analyze the decisionmaking process of a religious institution regarding admission. As a result, the panel did not need to reach the question of whether the Act applies to religious schools.  The Supreme Court granted leave to appeal.

Read More

Opinion Analysis: Trial court cannot sua sponte correct a sentence after judgment

Trial Lawyers’ Bottom Line: Trial court cannot correct an invalid sentence sua sponte after judgment; instead, a party must move for resentencing.

In 2011, Comer pled guilty to criminal sexual conduct.  Under MCL 750.520n and People v Brantley, 296 Mich App 546 (2012), the trial judge should have imposed lifetime monitoring on the defendant, but the judge failed to do so. Even after a remand for resentencing due to incorrect scoring of offense variables, the trial court still did not impose lifetime monitoring.

The Michigan Department of Corrections wrote a letter to the trial court saying that the defendant’s sentence should have included lifetime monitoring; but the prosecution never moved for resentencing.  The trial court then imposed life monitoring sua sponte. After a remand from the Michigan Supreme Court for consideration as on leave granted, the Court of Appeals affirmed, holding that “the trial court was empowered to correct defendant’s invalid sentence without time limitation.”  The Court granted leave to appeal.

Read More

Opinion Analysis: Removing goods from car is using a vehicle "as a vehicle" for parked car exception to PIP benefits

Trial Lawyers' Bottom Line: Removing goods from a car counts as using a motor vehicle "as a motor vehicle" for the parked vehicle exception for PIP benefits.

Kemp hurt himself when removing items from his car.  He sought no-fault benefits, but the insurance company moved for summary disposition, arguing that his injury didn’t arise out of the ownership, operation, maintenance, or use of the parked vehicle, he didn’t meet the parked vehicle exception, and his injury didn’t have a causal relationship to the vehicle.  The trial court granted the motion, and the Court of Appeals affirmed. The question was whether Kemp had created a genuine issue of material fact under the parked-motor-vehicle exception in MCL 500.3106(1)(b). 

Read More

Opinion Analysis: No knock-and-talks after hours

Trial Lawyers’ Bottom Line: The scope of knock and talks is time sensitive. If consent to a search is not “sufficiently attenuated” from an unconstitutional search, then evidence must be suppressed.

In the two consolidated cases, the Kent Area Narcotics Enforcement Team made unscheduled visits to the defendants’ homes at 4:00 a.m. and 5:30 a.m.  The families at both houses were asleep.  After an initial conversation, the police officers read the defendants their Miranda rights.  The defendants signed a consent form and consented to a search of their homes, where the police found marijuana butter and other marijuana products.

At trial, the defendants moved to suppress the evidence, but the trial court held that it was a valid, voluntary search.  The Court of Appeals affirmed, emphasizing that the officers waited to be received before conducting their search.  The Supreme Court then granted leave to appeal.

Read More

Opinion Analysis: Court disagrees with "decades of Court of Appeals caselaw"; holds that a healthcare provider can sue a no-fault insurer to recover no-fault benefits

Trial Lawyers' Bottom Line: Healthcare provider cannot sue no-fault insurer directly for unpaid medical expenses; it must sue the patient-insured instead.

Jack Stockford was injured in a car accident and received treatment at Covenant Medical Center.  His medical expenses totaled $43,484.80.  Covenant sent a bill for this amount to Stockford’s insurer, State Farm, who refused to pay.  Stockford then sued State Farm for no-fault insurance benefits.  They settled for $59,000.  As a part of the settlement, Stockford released State Farm from liability for all allowable no-fault expenses, including medical bills and past claims.

Covenant sued State Farm in 2013 to receive payment for the billed medical expenses.  State Farm answered Covenant’s complaint by citing the settlement and release.  The circuit court granted State Farm summary disposition on the theory that Covenant’s claim was derivative of Stockford’s and thus extinguished by the release.  The Court of Appeals reversed, holding that State Farm’s liability to Covenant could not have been dismissed by State Farm’s settlement with Stockford because State Farm had received written notice of Covenant’s claim before the settlement.  The Supreme Court granted leave to appeal.

Read More

Opinion Analysis: Assessing OV 5 does not require evidence that victim's family intends to seek psychological treatment

Trial Lawyers’ Bottom Line: OV 5 should be assessed for “significant psychological injury,” even if victim’s family has no intention of seeking medical treatment

Damian Jones shot and killed a man he suspected of stealing his girlfriend’s phone.  Calloway served as the getaway driver and was convicted of second-degree murder on an aiding and abetting theory.  He was sentenced to 20 to 50 years in prison.

The trial court scored fifteen points for OV 5, which asks whether a “serious psychological injury requiring professional treatment occurred to a victim’s family.”  The Court of Appeals reversed because there was no evidence that any member of the victim’s family required or intended to seek professional treatment.  The Court granted leave to determine whether evidence of an intention to seek treatment is required to score fifteen points for OV 5.

Read More

Opinion Analysis: Court overrules Great Wolf Lodge, Rule 411 does not apply to municipalities; no-switch rule applies only if presently receiving electricity

Trial Lawyers’ Bottom Line: Rule 411 does not apply to municipal electricity providers, and the no-switch rule applies only if the customer is presently already receiving electricity.

The Court granted to leave to consider overruling Great Wolf Lodge of Traverse City, LLC v Public Service Commision, 489 Mich 27 (2011).  The Court also clarified the meaning of MCL 124.3, which outlines "the no-switch" rule.

Read More

Opinion Analysis: Court clarifies differences between statutes of limitations and statutes of repose

Trial Lawyers’ Bottom Line: if statute counts from when claim accrued, it is a statute of limitations and can be tolled by fraudulent concealment; statute of repose cannot be tolled.

This case revolved around the company ePrize, which specialized in online sweepstakes and interactive promotions.  The plaintiffs were former employees of ePrize, who had acquired ownership interests in the company.  They said the defendant, founder of ePrize Joshua Linkner, had promised them that their ownership interests would never be diluted or subordinated.

The plaintiffs sued for various claims, including LLC member oppression, breach of contract, and breach of fiduciary duty.  The trial court granted summary judgment for the defendants, however, because the plaintiffs’ claims were untimely.  The Court of Appeals reversed.  The Supreme Court took the case to determine whether the statute was one of limitations or repose.

Read More

Opinion Analysis: Court makes it easier to seek penalty interest under UTPA for insurer's delay to pay UIM benefits

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 More

Opinion Analysis: Trial Court has discretion to hold Franks hearing

Trial 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 More

Opinion Analysis: HHS must accommodate parent’s disability before terminating parental rights

Trial-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 More

Opinion Analysis: For-profit schools eligible for tax exemption under MCL 211.9(1)

Trial-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 More

Opinion Analysis: Agreement that says attorney fees will be “fixed by the court” means just that; no constitutional concern

Trial-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 More

Opinion analysis: Third party’s notice to insurance company can toll no-fault act’s 1-year limitations period

Trial-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 More

Opinion analysis: Court leaves open question of “necessary-party exception” to a statute of limitations defense.

Trial-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 More

Opinion Analysis: If victim is carried or moved to a place of greater danger, then OV-8 applies at sentencing

Barrera 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 More

Opinion Analysis: Demonstrating insufficient evidence enough for summary disposition in negligence case

Krystal 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).

Read More

Opinion Analysis: Parallel parking lanes do not fall under the highway exception to governmental immunity

Helen Yono stepped into a pothole and broke her ankle when she approached her car, which was parked in a parallel parking lane on M-22 in Suttons Bay. She sued the state for failure to maintain the road in a reasonably safe condition. The state claimed governmental immunity under the Governmental Tort Liability Act, MCL 691.1407(1), which grants immunity to any governmental agency “engaged in the exercise or discharge of a governmental function.”

There is one exception to this immunity, however, and that is the (familiar to many attorneys) “highway exception.” The Legislature codified the highway exception in MCL 691.1402(1) by stating that the agency responsible for highways “shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel.” But what the Legislature giveth, the Legislature taketh away: the statute goes on to say that the highway exception “extends only to the improved portion of the highway designed for vehicular travel.” And this brings us to Ms. Yono’s case. Was the parallel parking line—a very common road design in smaller Michigan towns—part of “the highway designed for vehicular travel”?

Trial-Lawyers’ Bottom Line: Governmental immunity extends to parallel parking lanes, so the municipality is not liable for failing to maintain that portion of the road.

Read More

Opinion Analysis: Construction lien can be enforced by prevailing through foreclosure

Two parties each claimed breach of a construction contract. The construction company claimed a construction lien for over $600K. At arbitration, the arbitrator awarded the construction company that amount, but also awarded the purchaser $185K. The purchaser paid the amount in full, which the construction company accepted.

The Construction Lien Act (CLA), MCL 570.1118, grants a court discretion to award attorney’s fees to “a lien claimant who is the prevailing party” in “an action to enforce a construction lien through foreclosure.” The question is whether the construction company “prevail[ed]” when it won on a breach of contract claim and accepted a full payment mandated by an arbitrator.

Trial-Lawyers’ Bottom Line: A company can prevail in an action to enforce a construction lien through foreclosure, even if it doesn’t win on the construction lien claim.

Read More