Important opinions — A recap for January-June 2024

Michigan Lawyers Weekly presents a compilation of the Most Important Opinions from January to June 2024. You’ll find more than 100 cases highlighted below.

 

ADMINISTRATIVE

Administrative Hearsay

Where a final order of the Board of Health and Safety Compliance and Appeals has been challenged, that challenge should be rejected because a workplace safety officer’s field narrative report was admissible hearsay, held the Michigan Court of Appeals in an unpublished opinion. JBS Plainwell Inc. v. Occupational Safety & Health Admin.; MiLW 08-107777

 

ARBITRATION

Arbitration Auto lease

Where a complaint was dismissed based on an agreement to arbitrate in the parties’ lease agreement for a vehicle, that decision should be upheld because the plaintiff’s claim for fraudulent business practices is covered by the arbitration clause, held the Michigan Court of Appeals. Emerzian v. North Bros Ford Inc.; MiLW 07-107816

 

Arbitration Employment application

Where a defendant’s motion to compel arbitration was allowed, that decision should be upheld because the plaintiff agreed to be bound to arbitration when she applied for, and accepted, the defendant’s offer of employment, held the Michigan Court of Appeals in an unpublished opinion. Johnson v. Best Buy Co. Inc.; MiLW 08-107843

 

Arbitration Exemption LLC

Where a motion to compel arbitration was allowed, that decision should be upheld because the plaintiff, as a as limited liability company, is not covered under the Federal Arbitration Act’s exemption for workers engaged in interstate commerce, held the Sixth Circuit Court of Appeals. Tillman Transp. LLC v. MI Bus. Inc.; MiLW 01-107806

 

Arbitration Notice-of-dispute provision

Where a plaintiff filed a complaint alleging conversion and statutory claims under Michigan law, a decision to award the defendant summary disposition because of the plaintiff’s failure to arbitrate his claims should be affirmed, as the defendant’s failure to provide plaintiff with a notice-of-dispute form has no bearing on the parties’ contractual obligation to arbitrate, rather than litigate, their disputes, held the Michigan Court of Appeals in an unpublished opinion. Maufort v. PayPal Inc; MiLW 08-107774

 

Arbitration State trooper Termination

Where an arbitrator ordered the reinstatement of a state trooper, a judge’s decision to vacate the arbitration award should be reversed because the arbitrator’s conclusion that the trooper was discharged without good cause and determination that unpaid suspension was proper was not contrary to a collective bargaining agreement, held the Michigan Court of Appeals. Michigan Dep't of State Police v. Michigan State Police Troopers Ass’n; MiLW 07-107544

 

Arbitration Waiver Discovery

Where a defendant employer moved to compel arbitration, a judge’s decision to deny that motion should be affirmed because the employer implicitly waived its right to arbitrate, held the Sixth Circuit Court of Appeals. Schwebke v. United Wholesale Mortgage LLC; MiLW 01-107856

 

ATTORNEYS

Attorneys Buyout Confidential settlement agreement

Where a defendant was granted summary disposition in a dispute between attorneys regarding buyout of an interest in a law practice, the trial court erred in finding that the plaintiff’s claims of fraud and breach of fiduciary duty were waived under a release in a confidential settlement agreement, held the Michigan Court of Appeals in an unpublished opinion. Smith v. Forrest; MiLW 08-107578

 

Attorneys Discipline Immunity

Where a judge ruled in favor of the Attorney Grievance Commission in a suit brought by a plaintiff attorney, the judgment must be affirmed on immunity and collateral estoppel grounds, held the Michigan Court of Appeals in an unpublished opinion. Bazzo v. Attorney Grievance Comm'n; MiLW 08-107963

 

Attorneys Fees ADA

Where a plaintiff was awarded $12,000 in counsel fees and costs under the Americans with Disabilities Act, that award should be upheld despite the plaintiff’s claim that he is entitled to more fees and costs, held the Sixth Circuit Court of Appeals. Betancourt v. Indian Hills Plaza LLC; MiLW 01-107496

 

Attorneys Fees Lanham Act

Where a defendant that was awarded summary judgment under the Lanham Act has moved for an award of counsel fees, that motion should be allowed because the case falls into the “exceptional” category in which reverse fee shifting under the Lanham Act is justified, held the U.S. District Court for the Eastern District of Michigan. RJ Control Consultants Inc. v. Multiject LLC; MiLW 02-107592

 

Attorneys Fees MCL 700.3720

Where a plaintiff law firm sought fees incurred during three probate court cases, a grant of summary disposition in the defendant’s favor should be affirmed based on In re Nestorovski Estate , 283 Mich App 177; 769 NW2d 720 (2009), held the Michigan Court of Appeals in an unpublished opinion. Braun Kendrick Finkbeiner PLC v. Estate of Scott; MiLW 08-107841

 

Attorneys Guardian Delegation

Where billing disputes between a plaintiff guardian and a defendant insurance company have given rise to important questions of whether and when professional guardians may use employees to perform guardianship tasks on their behalf, a professional guardian cannot, without complying with MCL 700.5103, lawfully delegate to employees their final decision-making authority over a guardianship “power” that is explicitly listed in MCL 700.5314 or over any guardianship task that alters or impairs an incapacitated individual’s rights, duties, liabilities or legal relations, but a professional guardian may lawfully have employees assist in exercising a guardianship power and may have employees perform any other guardianship task on behalf of the professional guardian, held the Michigan Supreme Court. In re Malloy Guardianship; MiLW 06-108049

 

Attorneys Lien Fees

Where a defendant has challenged an order granting an attorney’s charging lien for payment of attorney fees, a charging lien could not be granted because there was no recovery in the underlying litigation, held the Michigan Court of Appeals in an unpublished opinion. Dabaja v. Beydoun; MiLW 08-108079

 

Attorneys Nassar defense Fee share

Where a complaint has been filed alleging breach of a “local counsel agreement,” summary judgment must be denied on the contract claim because an ambiguity in the agreement must be resolved by a jury, held the U.S. District Court for the Eastern District of Michigan. Lipton Law Ctr. P.C. v. Andrus Wagstaff P.C.; MiLW 02-107935

 

Attorneys Non-client Personal guaranty

Where a defendant has moved for summary disposition on a fee claim asserted by a plaintiff attorney, that motion should be allowed because the defendant was not the attorney’s client and has not made a personal guaranty for payment on the client’s alleged debt to the attorney, held the Wayne Circuit Court. Stephen M. Ryan PLLC v. Christensen; MiLW 10-107805

 

CIVIL PRACTICE

Civil Practice Offer of judgment rule Interest-of-justice exception

Where a judge imposed sanctions under the offer of judgment rule, a remand must be ordered because the judge failed to address an argument that the interest-of-justice exception to the offer of judgment rule should bar recovery of counsel fees, held the Michigan Court of Appeals in an unpublished opinion. Capello v. Walton; MiLW 08-107498

 

CIVIL RIGHTS

Civil Rights Fitness-for-duty evaluations Due process

Where the plaintiff, a former employee of Saginaw County, brought suit under 42 U.S.C. 1983 after the defendants scheduled him for two fitness-for-duty evaluations, the plaintiff has not demonstrated a violation of his federal statutory or constitutional rights, held the Sixth Circuit U.S. Court of Appeals. Capen v. Saginaw County, Michigan; MiLW 01-108065

 

COMMERCIAL

Commercial Royalties

Where two plaintiffs were awarded summary disposition in a business dispute over royalties, that judgment should be affirmed despite the defendant’s assertion that the trial court committed reversible error by awarding treble damages, held the Michigan Court of Appeals in an unpublished opinion. Master Beat Inc. v. Skill; MiLW 08-107755

 

CONTRACT

Contract Construction lien

Where a defendant has moved for summary disposition on a plaintiff’s claim for foreclosure of a construction lien, that motion should be denied despite the defendant’s argument that the plaintiff did not complete any improvement to the subject property that added value, held the Oakland Circuit Court. ECI Envtl. Consultants & Eng’rs LLC v. House of Providence; MiLW 10-107540

 

Contract Fees Assignment

Where an award of contractual counsel fees was reduced from to $227,273.48 to $0, that decision must be reversed because the trial court ran afoul of the law-of-the-case doctrine, held the Michigan Court of Appeals in an unpublished opinion. Great Lakes Eye Inst. PC v. Krebs; MiLW 08-107797

 

Contract Guaranty Statute of frauds

Where a plaintiff has brought a breach of contract suit against a defendant guarantor, the defendant’s motion for summary disposition should be denied despite his argument that his personal guaranty is unenforceable under the statute of frauds, held the Macomb Circuit Court. Mach. Mgmt. Inc. v. Kattula; MiLW 10-107686

 

Contract Successor liability Statute of Frauds

Where a plaintiff that was a party to a master development agreement has filed a complaint, the defendant is entitled to summary disposition because the plaintiff has failed to establish that the defendant assumed a debt to the plaintiff under a theory of successor liability, held the Oakland Circuit Court. Jing-Jin Elec. N. Am. v. Via Motors Inc.; MiLW 10-107732

 

CRIMINAL

Criminal Contempt

Where two defendants were held in contempt in a dispute over title to real property, the trial court failed to follow proper procedures before finding them in contempt, held the Michigan Court of Appeals in an unpublished opinion. Tiller v. Tiller; MiLW 08-107708

 

Criminal Life without parole 18-year-old

Where a defendant was convicted of having committed first-degree murder at the age of 18, the defendant’s sentence of mandatory life without the possibility of parole must be vacated, held the Michigan Court of Appeals. People v. Poole; MiLW 07-107595

 

DAMAGES

Damages Loss of society and companionship Dementia

Where the estate of the victim of a fatal shooting was awarded $557,105 for loss of society and companionship, the verdict should be upheld despite the defendant’s argument that the victim’s dementia, which led to behavioral problems, made her no longer able to provide society and companionship, held the Michigan Court of Appeals in an unpublished opinion. Brooks v. Spacil; MiLW 08-107642

 

Damages Title VII Cap

Where a plaintiff employee claimed the defendant employer retaliated against him in violation of Title VII and Michigan’s Elliott-Larsen Civil Rights Act, a $2 million jury verdict must be reduced because the plaintiff is limited to $300,000 rather than $1 million in punitive damages, held the U.S. District Court for the Western District of Michigan. Glowacki v. O'Reilly Auto Enter. LLC; MiLW 03-107570

 

EDUCATION

Education Immunity University of Michigan

Where a complaint was filed alleging that a fatal overdose was caused by fentanyl obtained from a University of Michigan pharmacology lab, the university’s motion to dismiss should have been allowed on sovereign immunity grounds, held the Sixth Circuit Court of Appeals. Kerchen v. Univ. of Michigan; MiLW 01-107980

 

ELECTIONS

Elections Qualifications Presidential primary

Where court decisions denied two requests to prevent a candidate from being included on upcoming election ballots, the decisions denying those requests should be upheld, as it is unnecessary to make any determinations regarding whether the candidate engaged in insurrection or is actually disqualified from holding the office of President of the United States by the 14th Amendment, at least at this time, held the Michigan Court of Appeals. Davis v. Wayne County Election Comm'n; MiLW 07-107473

 

Elections Standing Inspector appointments

Where two plaintiffs initiated an action for declaratory relief and mandamus based upon their allegations that the city of Flint’s board of election commissioners violated the requirements stated in MCL 168.674 and MCL 168.765a, a grant of summary disposition in favor of the defendants should be affirmed because the plaintiffs lack standing, held the Michigan Court of Appeals. Michigan Republican Party v. Donahue; MiLW 07-107767

 

EMPLOYMENT

Employment Accommodation Remote work

Where a defendant has moved for summary judgment in a suit brought by the plaintiff, a former employee, that motion should be allowed because the plaintiff’s request to work remotely was not a reasonable accommodation request, held the U.S. District Court for the Eastern District of Michigan. Kellar v. The Yunion Inc.; MiLW 02-107737

 

Employment Adverse employment action Retaliation

Where a defendant employer has moved for summary judgment on a plaintiff employee’s retaliation claim, that motion should be allowed because requiring the plaintiff to attend a medical examination was not an adverse employment action, held the U.S. District Court for the Western District of Michigan. Johnson v. McDonough; MiLW 03-108008

 

Employment Arbitration

Where a defendant employer moved to compel arbitration, that motion should be allowed based on an arbitration agreement between the parties, held the U.S. District Court for the Eastern District of Michigan. Hardaway v. Aveanna Healthcare LLC; MiLW 02-108045

 

Employment Associational or ‘third party’ retaliation claims

Where the Court of Appeals ruled that the Elliott-Larsen Civil Rights Act did not authorize a so-called third-party retaliation claim, the ELCRA prohibits such retaliation under MCL 37.2701(a), so that ruling must be reversed, held the Michigan Supreme Court. Miller v. Dep't of Corr.; MiLW 06-108010

 

Employment City council ELCRA

Where a defendant who formerly served as an elected member of the Wayne city council asserted counterclaims under the Elliott-Larsen Civil Rights Act, a grant of summary judgment in favor of the plaintiff city must be reversed because the trial court erred by concluding that the defendant was not an employee of the city, held the Michigan Court of Appeals. City of Wayne v. Miller; MiLW 07-108070

 

Employment Claim preclusion Title VII

Where a defendant employer has moved to dismiss Title VII claims, that motion should be allowed because the plaintiff’s Title VII claims could have been resolved in prior state court litigation, held the U.S. District Court for the Eastern District of Michigan. Ruggirello v. County of Lapeer; MiLW 02-107689

 

Employment Commissions Sales representative

Where a defendant, who resigned from her position as the plaintiff’s director of manpower and recruiting, has asserted a counterclaim pursuant to the Michigan Sales Representative Commission Act, the plaintiff employer’s motion to dismiss that counterclaim should be denied despite its argument that the alleged commissions were not based on “goods” or “products” as required by the statute, held the Oakland Circuit Court. Everworks Inc. v. Rinaldi; MiLW 10-107687

 

Employment Disability Anxiety

Where a plaintiff, whose request for an accommodation in relation to her employer’s mask mandate was denied, brought suit under Michigan’s Persons with Disabilities Civil Rights Act, a grant of summary disposition in favor of the employer should be affirmed because the plaintiff did not satisfy her burden of demonstrating that her mental condition satisfied the definition of disability set forth in the PWDCRA, held the Michigan Court of Appeals in an unpublished opinion. Tyler v. Kalamazoo Pub. Sch.; MiLW 08-107630

 

Employment FLSA Class certification

Where a plaintiff who brought a proposed collective action under the Fair Labor Standards Act has filed a renewed motion for conditional certification, that motion should be denied because the evidence does not show that the plaintiff and other employees are similarly situated and that the defendant had a company-wide overtime policy that violates the FLSA, held the U.S. District Court for the Eastern District of Michigan. Piddock v. Cmty. Living Network; MiLW 02-108023

 

Employment FLSA Equitable tolling

Where a putative collective action has been brought alleging violations of the Fair Labor Standards Act, a motion for equitable tolling of the statute of limitations for potential opt-in plaintiffs should be allowed under Clark v. A&L Homecare and Training Ctr., LLC , 68 F.4th 1003 (2023), held the U.S. District Court for the Eastern District of Michigan. Duncan v. Magna Seating of Am. Inc; MiLW 02-107787

 

Employment Harassment Texts

Where a defendant employer has moved for summary judgment on hostile work environment, gender discrimination and retaliation claims, that motion should be allowed because the plaintiff has not proffered sufficient evidence from which a jury could reasonably conclude that she was subjected to a severe or pervasive hostile work environment based on her gender, held the U.S. District Court for the Eastern District of Michigan. Wargo v. MJR Partridge Creek Digital Cinema 14; MiLW 02-107715

 

Employment Noncompete agreement

Where a plaintiff seeking to enforce a noncompete agreement was granted a preliminary injunction, that decision should be upheld, as the agreement protected a reasonable business interest and the defendant provided no evidence to suggest it restricted wage growth or stifled employee mobility, held the Michigan Court of Appeals in an unpublished opinion. Matthews-Hargreaves Chevrolet Co. v. Desantis; MiLW 08-108037

 

Employment Noncompete agreements Mortgage industry

Where a plaintiff mortgage lender has brought suit to enforce noncompete provisions in the employment contracts of defendant former employees, a motion for summary disposition filed by those defendants should be denied because the noncompete provisions are not overly broad and, therefore, they are reasonable and enforceable, held the Wayne Circuit Court. Rocket Mortgage LLC v. House of Lending; MiLW 10-107954

 

Employment Retaliation First amendment

Where a plaintiff filed a complaint alleging that his termination as a state university police officer was in violation of his right to freedom of speech, a judge’s decision to deny summary judgment to the defendants should be upheld, as sovereign immunity does not bar the plaintiff’s claim for prospective relief, while qualified immunity is inapplicable because it is clearly established law that public employees speaking outside of the scope of their responsibilities on a matter of public concern are engaging in protected speech as private citizens, held the 6th U.S. Circuit Court of Appeals. Ashford v. Univ. of Michigan; MiLW 01-107567

 

Employment Retaliation WDCA

Where a plaintiff alleged retaliation in violation of the Worker’s Disability Compensation Act, a judgment in favor of the defendant should be affirmed because the plaintiff cannot show that her protected activity was a “significant factor” in the defendant’s decision to take the adverse employment action, held the Michigan Court of Appeals in an unpublished opinion. Ziots v. Promedica Employment Serv. LLC; MiLW 08-107968

 

Employment Vaccination Religious beliefs

Where a plaintiff who was terminated under the defendant employer’s mandatory COVID-19 vaccine mandate has moved for leave to amend her complaint, that motion should be allowed because the complaint as amended sufficiently alleges religious beliefs that conflict with the COVID-19 vaccine policy, held the U.S. District Court for the Eastern District of Michigan. Williams v. Blue Cross Blue Shield of Michigan; MiLW 02-107983

 

Employment Whistleblower

Where a defendant employer was awarded summary disposition under the Whistleblowers’ Protection Act, the plaintiff reported existing and ongoing conduct, so the trial court erred by granting summary disposition on the plaintiff’s claim under the WPA, held the Michigan Court of Appeals. Green v. Pontiac Pub. Library; MiLW 07-107766

 

Employment Whistleblower Retaliation

Where summary disposition was awarded to the defendant on a plaintiff’s claim of retaliatory discharge under the Whistleblowers’ Protection Act, that judgment should be affirmed because the plaintiff has failed to establish that a genuine issue of material fact exists that the defendants’ legitimate business reasons for its adverse employment decisions were pretextual, held the Michigan Court of Appeals in an unpublished opinion . Karsney v. City of Burton; MiLW 08-107536

 

EVIDENCE

Evidence Hearsay IME report

Where the plaintiffs in a premises liability action have filed a motion in limine to preclude introduction of the defendant’s insurance medical examination report, that motion should be allowed on hearsay grounds, held the U.S. District Court for the Eastern District of Michigan. Zarycky v. Costco Wholesale Corp.; MiLW 02-107615

 

Evidence Spoliation

Where a defendant was sanctioned for spoliation of evidence, that order must be vacated because the evidence was not material to the plaintiff’s lawsuit, held the Michigan Court of Appeals in an unpublished opinion. McDuffie v. Neal; MiLW 08-107698

 

FAMILY LAW

Family Law Child support Arbitration

Where a judge determined that the calculation of child support presents a subject matter for arbitration, the judge erred by placing limitations on the arbitrator’s review, held the Michigan Court of Appeals in an unpublished opinion. Beachum v. Beachum; MiLW 08-107506

 

Family Law Divorce Lawsuit proceeds

Where a plaintiff filed for divorce and then was involved in a motorcycle crash, the trial court erred by finding that defendant was entitled to 50% of the plaintiff’s lawsuit proceeds related to the motorcycle crash, held the Michigan Court of Appeals in an unpublished opinion. Simmons v. Simmons; MiLW 08-108014

 

Family Law Embryo IVF

Where a judge awarded a cryogenically preserved embryo to a defendant, that decision should be upheld because the judge properly proceeded to perform the balancing test as prescribed in Markiewicz v Markiewicz, unpublished per curiam opinion of the Court of Appeals, issued March 24, 2022 (Docket No. 355774), held the Michigan Court of Appeals in an unpublished opinion. Markiewicz v. Markiewicz; MiLW 08-107494

 

Family Law Fraud upon marital assets Trust

Where an appellant challenged a revocable inter vivos trust created by her husband, a judge’s decision to reject that challenge should be upheld because the appellant has not made the requisite showing of a public policy violation or a fiduciary breach, held the Michigan Court of Appeals. Lyden v. Lyden; MiLW 07-107864

 

INSURANCE

Insurance Appraisal Fire

Where a defendant insurance company has challenged the grant of summary disposition in favor of the plaintiff in a dispute over the damages sustained as a result of a fire, that judgment should be affirmed despite the defendant’s contention that the court erroneously concluded that the dispute should be resolved by the appraisal process under MCL 500.2833(1)(m), held the Michigan Court of Appeals. Cantina Enter. II LLC v. Property-Owners Ins. Co.; MiLW 07-107596

 

Insurance Assignment Release

Where a defendant insurance agent moved for summary disposition, a denial of that motion should be affirmed despite the defendant’s argument that the plaintiff failed to, and could not possibly, plead damages, held the Michigan Court of Appeals. Abdelmaguid v. Dimensions Ins. Group LLC; MiLW 07-107671

 

Insurance Coverage limit Fraud

Where a plaintiff insurance company has requested a declaration that a policy issued to the defendant is void, the policyholder is entitled to summary disposition in its favor, as (1) the defendant was not fully and completely indemnified for its total inventory loss and (2) no fraud was committed by the defendant, held the Oakland Circuit Court. Frankenmuth Mut. Ins. Co. v. Architectural Door & Millwork Inc.; MiLW 10-107539

 

Insurance Renewal rule Notice

Where a defendant insurance company was awarded summary disposition, a remand must be ordered based on the applicability of the renewal rule, held the Michigan Court of Appeals in an unpublished opinion. Start-All Enter. Inc. v. Home-Owners Ins. Co.; MiLW 08-107875

 

JURISDICTION

Jurisdiction Contract Purposeful availment

Where a complaint has been filed by a Michigan plaintiff that entered into a contract with a Missouri defendant, the defendant’s motion for summary disposition should be allowed because the exercise of limited personal jurisdiction over the defendant would not comport with the requirements of due process, held the Oakland Circuit Court. Integrated Sys. Design v. Hager Co.; MiLW 10-107734

 

Jurisdiction Gaming Control Board

Where a defendant casino moved for summary disposition of a plaintiff’s complaint alleging unjust enrichment and fraudulent misrepresentation, that motion should have been allowed because the plaintiff’s claim falls under the exclusive jurisdiction of the Michigan Gaming Control Board, held the Michigan Court of Appeals in an unpublished opinion. Jewell v. MGM Grand Detroit LLC; MiLW 08-107842

 

Jurisdiction Private right of action 49 U.S.C. 14704(a)(2)

Where the plaintiffs, independent truck owner-operators, have filed a putative class action based upon regulations that govern 49 U.S.C. 14102 and 14704(a), a motion to dismiss should be denied, as the plaintiff owner-operators may bring a private right of action for damages under 49 U.S.C. 14704(a)(2), held the U.S. District Court for the Eastern District of Michigan. Fetinci v. Rayco Logistics LLC; MiLW 02-107956

 

LABOR

Labor Fee policy Grievance process

Where a union implemented a pay-for-services fee policy that required bargaining unit employees who had opted not to pay union dues to pay a fee to the union before the union would review and process a matter through the collective bargaining agreement’s grievance process, the fee policy at issue violates the union’s duty of fair representation, held the Michigan Supreme Court. Technical, Prof’l & Officeworkers Ass'n of Michigan v. Renner; MiLW 06-107938



Labor Irregular hours Overtime

Where a defendant employer has challenged a U.S. District Court order granting summary judgment to several of its current and former employees in their suit for unpaid overtime compensation, that judgment must be reversed because the employer has presented evidence creating a genuine dispute of fact as to the reason behind the plaintiff oilfield technicians’ irregular schedules, held the Sixth Circuit Court of Appeals. Jones v. Producers Serv. Corp.; MiLW 01-107760

 

LANDLORD & TENANT

Landlord and Tenant Stairs

Where a judge dismissed the statutory claims asserted by a plaintiff tenant who was injured on stairs, that decision should be upheld despite the tenant’s assertion that there remained factual questions regarding (1) whether the stairs were reasonably fit for their intended use under MCL 554.139 and (2) defendant’s duty to repair the stairs, held the Michigan Court of Appeals. Holder v. Anchor Bay Inv. Inc.; MiLW 07-107813

 

Landlord and Tenant Pandemic

Where a commercial landlord was awarded summary disposition, that judgment should be affirmed because the tenant was not excused from paying rent while the government’s COVID-19 closure orders were in effect, held the Michigan Court of Appeals in an unpublished opinion. Fitness Int'l LLC v. Cole LA Bloomfield Hills MI LLC; MiLW 08-107723

 

Landlord and Tenant Premises liability Light fixture

Where a plaintiff stylist was injured when a light fixture fell from the ceiling of premises leased from the defendant, a grant of summary disposition in favor of the defendant must be reversed because the trial court’s ruling was based solely on its erroneous conclusion that there was no genuine issue of material fact that defendant did not have the requisite possession and control to justify imposing a duty in premises liability regarding the hazardous condition at issue, held the Michigan Court of Appeals in an unpublished opinion. Epps v. NPT-313 Co.; MiLW 08-108059

 

MUNICIPAL

Municipal Immunity Gross negligence

Where two defendant city employees moved for summary judgment in an action over an injury that occurred at a city park, that motion should have been allowed because a reasonable juror could only conclude that the defendants were not grossly negligent, held the Michigan Court of Appeals in an unpublished opinion. EC v. City of Lincoln Park; MiLW 08-107509

 

Municipal Immunity Sewage disposal system

Where plaintiffs brought suit over the flooding of their properties, an award of summary disposition in favor of the government defendants must be reversed because the plaintiffs established each element of the sewage-disposal-system-event exception to governmental immunity, held the Michigan Court of Appeals in an unpublished opinion. Allen v. Vill. of Goodrich; MiLW 08-107950

 

Municipal Negligence Bus driver

Where the defendant city of Detroit was awarded summary disposition in a suit brought by a plaintiff whose vehicle was struck by a bus, the judgment must be vacated because the plaintiff established a genuine issue of material fact regarding whether the bus driver operated the bus in a negligent manner, held the Michigan Court of Appeals in an unpublished opinion. Arnold v. City of Detroit; MiLW 08-108015

 

Municipal Immunity Street sweeper

Where a plaintiff brought suit over a collision with a street sweeper, the defendants are entitled to summary disposition because the plaintiff failed to properly plead or raise genuine issues of material fact in avoidance of governmental immunity, held the Michigan Court of Appeals in an unpublished opinion. Harris v. Allstate Ins. Co.; MiLW 08-107533

 

Municipal Public road Abandonment

Where plaintiffs filed a complaint alleging abandonment of a public road, a grant of summary disposition to defendant Barry County Road Commission must be reversed because the trial court erred (1) by ruling that the plaintiffs’ claim for common-law abandonment was precluded by MCL 600.5821 and MCL 224.18 and (2) by indicating that the plaintiffs’ claim was not factually supported, as doing so was premature, held the Michigan Court of Appeals. Scoby v. Mitchell; MiLW 07-107622

NEGLIGENCE

Negligence Choir teacher Piano

Where a jury found that a defendant choir teacher did not engage in gross negligence while moving a piano that fell off a dolly and onto the plaintiff’s foot, that verdict should be upheld because it was not error for the trial judge to exclude statements that a prior choir teacher had allegedly made about the piano, held the Michigan Court of Appeals in an unpublished opinion. Amman v. Busch; MiLW 08-107552

 

Negligence Comparative fault Crosswalk

Where the defendants in a negligence suit arising out of a traffic accident were granted summary disposition, that judgment must be vacated and a remand ordered because there are genuine issues of material fact whether one of the two defendants negligently operated the other defendant’s vehicle and whether the plaintiff was more than 50% at fault for the accident, held the Michigan Court of Appeals in an unpublished opinion. Murphy v. Hanover Ins. Co.; MiLW 08-107495

 

Negligence Dramshop Act Notice

Where a defendant filed a motion for summary disposition related to the notice provision of the Dramshop Act, a judge’s decision to deny that motion must be vacated because that decision was based on factual findings unsupported by competent evidence, held the Michigan Court of Appeals in an unpublished opinion. Dakaj v. Deters; MiLW 08-107796

 

Negligence Hi-lo Retail store

Where a plaintiff was injured when he went to a store to pick up flooring that he had ordered, a motion for summary judgment filed by the defendant should be denied because the plaintiff’s testimony, viewed in the light most favorable to him, demonstrates that the defendant breached its duty of care to the plaintiff, held the U.S. District Court for the Eastern District of Michigan. Miller v. Lumber Liquidators Inc.; MiLW 02-107713

 

Negligence Immunity Automobile exception

Where a catastrophic collision occurred between a snowmobile operated by a plaintiff and a crossover utility vehicle operated by a defendant employee of the codefendant Department of Natural Resources, a denial of the DNR’s motion for summary disposition must be reversed because the Court of Claims erred by concluding that a genuine issue of material fact existed as to whether the plaintiff could establish the motor vehicle exception to governmental immunity outlined in MCL 691.1405, held the Michigan Court of Appeals in an unpublished opinion. Goss v. Dep't of Natural Res.; MiLW 08-107996

 

Negligence Insurance agent Special relationship

Where the defendant independent insurance agent and his codefendant employer were awarded summary disposition in a negligence action, that judgment should be affirmed because there is no special relationship between the defendants and the plaintiff, so the defendants did not have a duty to advise the plaintiff as to the adequacy of its coverage, held the Michigan Court of Appeals in an unpublished opinion. Five Waters Prop. LLC v. Bone; MiLW 08-107746

 

Negligence Ladder Lightbulb

Where a plaintiff fell off a ladder while changing a lightbulb at the home of a defendant relative, the trial judge’s decision to allow the defendant’s motion for a directed verdict should be upheld because the judge did not err by concluding that the defendant did not owe the plaintiff a legal duty, held the Michigan Court of Appeals in an unpublished opinion. Whiteside v. Reinwand; MiLW 08-107844

 

Negligence Medical malpractice Discovery

Where a defendant hospital has challenged a discovery order, the trial court abused its discretion by ordering the production of documents pertaining to CT scans and ultrasounds conducted during a decedent’s hospital stay, held the Michigan Court of Appeals in an unpublished opinion. Chandler v. VHS Sinai-Grace Hosp. Inc.; MiLW 08-107638

 

Negligence Medical malpractice Ostensible agency

Where a defendant hospital was awarded summary disposition in a medical malpractice suit involving an independent contractor who treated the plaintiff, the trial court properly granted summary disposition in favor of Beaumont on the issue of ostensible agency as laid out in Grewe v. Mt Clemens Gen Hosp , 404 Mich 240; 273 NW2d 429 (1978), held the Michigan Court of Appeals in an unpublished opinion. Markel v. William Beaumont Hosp.; MiLW 08-107572

 

Negligence Medical malpractice Ostensible agency

Where a defendant moved for summary disposition in a medical malpractice action, that motion should have been allowed because the defendant may not be held vicariously liable under a theory of ostensible agency, held the Michigan Court of Appeals in an unpublished opinion. Maitland v. Jaskierny; MiLW 08-107684

 

Negligence RUA owner-liability provision

Where a defendant landowner was granted summary disposition under the recreational land use act, that judgment should be affirmed because there was no factual support for a finding that defendant was grossly negligent, held the Michigan Supreme Court. Milne v. Robinson; MiLW 06-107812

 

Negligence Trampoline

Where a defendant moved for summary disposition in a suit over a cervical spinal injury sustained at its indoor trampoline park, that motion should have been allowed because any failure to comply with the signage requirements of the Michigan Trampoline Court Safety Act did not cause the injury, the plaintiff was 50 percent or more responsible for his accident because of his intoxication and the plaintiff failed to establish a genuine issue of material fact regarding his claim that the defendant’s equipment was defective or contributed to his injury, held the Michigan Court of Appeals in an unpublished opinion. Cavins v. BAT Commercial LLC; MiLW 08-108034

 

Negligence Transportation services - Wheelchair

Where a plaintiff brought suit over an injury that occurred while plaintiff was being transported by the defendant, the lower court erred by concluding a special relationship existed, held the Michigan Court of Appeals in an unpublished opinion. Davis v. State Farm Mut. Auto. Ins. Co.; MiLW 08-107660

 

Negligence Vicarious liability Security guard

Where a motion for summary disposition was filed by the defendant employer of a security guard involved in a fatal shooting, a judge’s decision to deny that motion should be affirmed based on questions of fact regarding whether the security guard’s conduct was within the scope of his employment with the defendant and whether the harm was foreseeable, held the Michigan Court of Appeals in an unpublished opinion. Harris v. Gates; MiLW 08-108057

 

Negligence Walkway Delivery

Where a plaintiff store owner was injured in a fall that occurred when his feet became tangled in shrink wrap discarded by the defendant delivery driver, a grant of summary disposition in favor of the driver and his codefendant employer must be reversed because the trial court erred when it determined that the plaintiff’s claims sounded in premises liability rather than ordinary negligence, held the Michigan Court of Appeals in an unpublished opinion. DiMaggio v. Sidney Transp. Serv.; MiLW 08-107483

 

NO-FAULT LAW

No-Fault Law Election Minor

Where a plaintiff sought a declaratory judgment that would have voided the defendant’s election of lower no-fault coverage for her minor son, the defendant’s election was valid under MCL 500.3009 and she was not required to seek her minor son’s authority for such an election, held the Michigan Court of Appeals. Newton v. Progressive Marathon Ins. Co.; MiLW 07-107545

 

No-Fault Law IMEs Taxes

Where a defendant insurance company moved to quash subpoenas seeking production of tax documents from individuals who performed insurance medical examinations of the plaintiff, the trial court’s decision to deny that motion should be affirmed despite the defendant’s argument that the trial court erred when it denied ordered the disclosure of the IME examiners’ 1099s and W-2s for the tax years 2019 to 2021, held the Michigan Court of Appeals in an unpublished opinion. Warda v. Farm Bureau Gen. Ins. Co. of Michigan; MiLW 08-107644

 

No-Fault Law Mandatory joinder

Where a plaintiff, who was involved in a traffic accident involving a city bus, sued the defendant city seeking PIP benefits and then brought a separate suit against the defendant alleging negligence, a judge’s decision to dismiss the negligence complaint must be reversed because the plaintiff’s PIP and tort claims were not subject to mandatory joinder under MCR 2.203(A), held the Michigan Court of Appeals in an unpublished opinion. White-Atley v. Bullock; MiLW 08-107603

 

No-Fault Law PIP Health coverage

Where the defendant Michigan Automobile Insurance Placement Facility, or MAIPF, moved for summary disposition, that motion should have been allowed because the plaintiff was not entitled to PIP benefits from any entity, including the defendant, held the Michigan Court of Appeals in an unpublished opinion. Donner v. Progressive Michigan Ins. Co.; MiLW 08-107868

 

No-Fault Law Policy limits Choice of coverage

Where (1) a plaintiff insurance company sought declaratory relief in a wrongful death action brought by defendant following an automobile accident and (2) that request was granted based on a choice-of-coverage form executed by the policyholder, that purported choice of reduced bodily injury liability limits lacked effectiveness and enforceability because he did not make his choice before or contemporaneously with the issuance of the policy, held the Michigan Court of Appeals. State Farm Mut. Auto. Ins. Co. v. Estate of Fortin; MiLW 07-107621

 

No-Fault Law Reformation Residency

Where a defendant insurance company has challenged a trial court’s decision to reform an auto policy, the trial court did not err by determining that there were no genuine issues of material fact regarding the insurance company’s knowledge that the insured was a Michigan resident at the time it issued its automobile insurance policy, held the Michigan Court of Appeals. Hahn v. Geico Indem. Co.; MiLW 07-107694

 

No-Fault Law Rescission

Where a judge awarded summary disposition to an insurer based on a finding that an auto policy had been obtained through fraud, the judge erred by automatically awarding rescission to preclude a provider’s claim, held the Michigan Court of Appeals. Mota-Peguero v. Falls Lake Nat’l Ins. Co.; MiLW 07-107834

 

No-Fault Law Rescission

Where a judge ruled that a defendant insurance company was not entitled to rescind an auto policy, that ruling should be affirmed because a balancing of the equities weighs heavily in favor of denying rescission, held the Michigan Court of Appeals. Van Dyke Spinal Rehab. Ctr. PLLC v. USA Underwriters; MiLW 07-108050

 

No-Fault Law Standing Third-party factoring companies

Where a defendant insurance company was granted summary disposition based on a judge’s determination that the plaintiff lacked standing because it had sold its rights to third-party factoring companies, that judgment must be reversed under C-Spine Orthopedics, PLLC v Progressive Ins Co , ___ Mich App ___, ___ NW2d ___ (2022) (Docket No 358170), held the Michigan Court of Appeals in an unpublished opinion. C-Spine Orthopedics PLLC v. Progressive Marathon Ins. Co.; MiLW 08-107503

 

PARENT AND CHILD

Parent and Child Custody Preference

Where a parent’s custody modification request was granted, it was plain error not to consider the preference of the child, held the Michigan Court of Appeals. Quint v. Quint; MiLW 07-107861

 

Parent and Child Temporary guardianship Visitation

Where a temporary guardian was appointed for a respondent’s daughter, the court erred by ordering visitation, held the Michigan Court of Appeals. In re ADW; MiLW 07-107794

 

PREMISES LIABILITY

Premises Liability Condominium Common area

Where a plaintiff slipped and fell while in a common area of a condominium complex, the plaintiff was precluded from advancing a premises liability claim by Francescutti v Fox Chase Condo Ass’n , 312 Mich App 640; 886 NW2d 891 (2015), held the Michigan Court of Appeals in an unpublished opinion. Jones v. Universal City Estates Ass'n; MiLW 08-107529

 

Premises Liability Constructive notice

Where a defendant was granted summary disposition in a premises liability action, that judgment should be reversed because the plaintiff presented sufficient evidence for a reasonable jury to infer that the defendant had constructive notice of the hole in the ground, held the Michigan Court of Appeals in an unpublished opinion. Zweng v. McIntyre; MiLW 08-108087

 

Premises Liability Constructive notice Grate

Where a defendant was granted summary disposition in a premises liability action, that judgment must be vacated and a remand ordered because there is a genuine issue of material fact whether the defendant had constructive notice of the hazardous condition of an uneven metal grate, held the Michigan Court of Appeals in an unpublished opinion. Banks v. William Beaumont Hosp.; MiLW 08-108040

 

Premises Liability Corporate dissolution

Where the defendants in a premises liability action were granted summary disposition, the trial court erred in granting summary disposition on the basis of corporate dissolution because there remained a question of fact whether defendants wound up affairs before plaintiff brought his claim, which existed before defendants’ dissolution, held the Michigan Court of Appeals in an unpublished opinion. Drake v. Plum Hollow Lanes Inc.; MiLW 08-107685

 

Premises Liability Curb Open and obvious doctrine

Where summary disposition was denied in a premises liability action, the defendants should have been awarded summary disposition because the evidence presented concerning the defendants’ alleged breach generates no questions of fact, held the Michigan Court of Appeals in an unpublished opinion. Wright-Burton v. City of Detroit; MiLW 08-107993

 

Premises Liability Expert Weather

Where a defendant was awarded summary disposition, that judgment must be vacated because the trial court erred by striking the plaintiff’s expert witness in meteorology, held the Michigan Court of Appeals in an unpublished opinion. Basehore v. Short; MiLW No. 08-107828

 

Premises Liability Licensee

Where a plaintiff was injured descending a staircase while making a social visit to the defendant’s home, a grant of summary disposition in favor of the defendant should be affirmed because the defendant would have been entitled to summary disposition even without applying the open and obvious doctrine, held the Michigan Court of Appeals in an unpublished opinion. Hassen v. Hopson; MiLW 08-107750

 

Premises Liability Licensee Church volunteer

Where a plaintiff fell on ice in a church parking lot, a grant of summary disposition in favor of the church should be affirmed despite the plaintiff’s contention that she was an invitee, held the Michigan Court of Appeals in an unpublished opinion. Molitoris v. Saint Mary Magdalen Catholic Church; MiLW 08-107576

 

Premises Liability Open and obvious doctrine Retroactivity

Where a plaintiff was injured when she fell in front of her home in The Woods Condominium complex, a remand must be ordered because the Michigan Supreme Court’s recent decision in Kandil-Elsayed v F & E Oil, Inc , ___ Mich ___; ___ NW2d ___ (2023), operates retroactively, held the Michigan Court of Appeals. Gabrielson v. The Woods Condo. Ass'n Inc.; MiLW 07-107541

 

Premises Liability Parking lot Pothole

Where a plaintiff allegedly tripped in a pothole in the unlit parking lot of a building that was owned by defendants, a grant of summary disposition in favor of the defendants must be reversed because there exists a question of fact regarding whether defendants failed to properly address and repair the offending pothole or to otherwise act reasonably to protect plaintiff from an unreasonable risk of harm, held the Michigan Court of Appeals in an unpublished opinion. DiPerna v. Mainella; MiLW 08-107703

 

Premises Liability Ski Area Safety Act

Where a skier died after allegedly sustaining fatal injuries when he collided with snow-making equipment at a ski area owned and operated by the defendant, summary disposition must be awarded to the defendant because the plaintiff’s premises liability claim is abrogated by the Ski Area Safety Act, held the Michigan Court of Appeals. Round v. Trinidad Resort & Club LLC; MiLW 07-107478

 

Premises Liability Swamp Camper

Where a defendant was awarded summary disposition in a wrongful death action, a remand is necessary because there remains a genuine issue of material fact concerning the plaintiff’s claim of premises liability, held the Michigan Court of Appeals in an unpublished opinion. Farrar v. Misch; MiLW 08-107964

 

Premises Liability Zip line

Where a plaintiff sued for an injury she suffered after falling from a zip line on the defendants’ property, the defendants are entitled to summary judgment on the plaintiff’s ordinary negligence claim but summary judgment is denied as to her premises liability claim, held the U.S. District Court for the Western District of Michigan. Wenzel v. Tremonti; MiLW 03-107936

 

REAL PROPERTY

Real Property Delinquent taxes Taking

Where a complaint was filed by the plaintiff owner of property that was transferred following a tax taking, a grant of summary disposition in favor of the defendants must be reversed in part, as an unconstitutional taking of the plaintiff’s property occurred when the defendants transferred the property for far less than what was owed in delinquent taxes, held the Michigan Court of Appeals in an unpublished opinion. Yono v. County of Ingham; MiLW 08-107559

 

Real Property Land contract Lease with option

Where a judge ruled in favor of the plaintiff in a suit over a sale of real property, the judge erred by finding that the parties entered into a valid land contract for the sale of the property, held the Michigan Court of Appeals in an unpublished opinion. Veldkamp v. Ribble; MiLW 08-108038

 

Real Property Nuisance Outdoor lighting ordinance

Where a plaintiff alleged that the defendant’s unshielded outdoor light fixtures interfere with the peaceful use and enjoyment of her property, a judgment in favor of the plaintiff should be affirmed despite the defendant’s argument that the plaintiff does not have standing to enforce Traverse City’s outdoor lighting ordinance and, even if she did have standing, the subject light fixtures do not violate the ordinance, held the Michigan Court of Appeals in an unpublished opinion. Hasenohrl v. Immaculate Conception of Traverse City; MiLW 08-107967

 

Real Property Preemption ICCTA

Where a defendant claimed a prescriptive easement over a narrow parcel of land that runs adjacent to an active rail line, that claim is preempted by the Interstate Commerce Commission Termination Act, held the Sixth Circuit Court of Appeals. Norfolk S. Ry. Co. v. Dille Rd. Recycling LLC; MiLW 01-107736

 

RETIREMENT

Retirement Age discrimination ELCRA

Where an employer was awarded summary judgment in an age discrimination suit brought under the Elliott-Larsen Civil Rights Act by retired employees, the judgment should be affirmed because the retirees’ claim involves the “establishment or implementation” of a retirement policy, so it was barred by MCL 37.2022(2), held the Michigan Court of Appeals in an unpublished opinion. Brown v. Van Buren Pub. Sch.; MiLW 08-107601

 

TORT

Tort Pandemic Health Care Immunity Act

Where a plaintiff brought suit seeking to hold the defendant hospital liable for the actions of an unnamed security officer during the COVID-19 pandemic, a grant of summary disposition in the hospital’s favor should be affirmed based on the immunity provided by the Pandemic Health Care Immunity Act, held the Michigan Court of Appeals in an unpublished opinion. Griggs-Swanson v. Beaumont Hosp. Farmington Hills; MiLW 08-108076

 

UNEMPLOYMENT COMPENSATION

Unemployment Compensation CARES Act

Where claimants applied for unemployment benefits under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, circuit courts’ approval of their benefits should be upheld because the claimants were the primary caretakers for their children, their children could not attend school in-person due to government-imposed lockdowns, and the claimants otherwise met the qualifications of a “covered individual’ under the statute, held the Michigan Court of Appeals. Holbrook v. Dep't of Labor & Econ. Opportunity; MiLW 07-107639

 

Unemployment Compensation Credit-card servicing fees

Where a plaintiff who applied for unemployment benefits commenced an action in the Court of Claims alleging that, pursuant to MCL 421.31 and MCL 600.1990, the defendants were required to reimburse him for the credit-card servicing fees of $11.25 for each of the two applications he filed, the plaintiff failed to present any facts or law demonstrating that the Legislature intended MCL 421.31 and MCL 600.1990 to provide a private cause of action for recovering credit-card servicing fees, held the Michigan Court of Appeals in an unpublished opinion. White v. State of Michigan; MiLW 08-108013

 

WILLS & TRUSTS

Wills and Trusts Forfeiture

Where a judge granted the petition to forfeit an appellant’s share under her father’s trust, that decision should be affirmed because the appellant did not satisfy a trust provision requiring her to inform her son about the identity of his biological father within 60 days after the death of the settlor, held the Michigan Court of Appeals in an unpublished opinion. In re the Bernard Boutet Revocable Living Trust; MiLW 08-107653

 

ZONING

Zoning Exclusionary rule Drone

Where the defendants in a civil nuisance abatement proceeding moved to exclude evidence that the plaintiff township obtained by using an unmanned drone to take aerial photographs and video of the defendants’ property, a decision to deny that motion should be upheld because the exclusionary rule does not apply to civil enforcement proceedings that effectuate local zoning and nuisance ordinances and seek only prospective, injunctive relief, held the Michigan Supreme Court. Long Lake Twp. v. Maxon; MiLW 06-107987

 

 

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