Secrest Wardle

Boundaries 01/26/2012

01/26/2012

Attorneys who represent businesses and their insurers have become very familiar with the "Open and Obvious Doctrine," as articulated in Lugo v Ameritech Corp, Inc, 464 Mich 512, 516 (2001)....

Boundaries 01/24/2012

01/24/2012

Victims of dog attacks often try to impose liability upon property owners, when the dog is owned y one of the property owner's tenants. However, Michigan courts have rejected the argument that property owners should be strictly liable for attacks by their tenants' dogs....

No-Fault Newsline 12/28/2011

12/28/2011

In Frazier v Allstate Insurance Company, ____ Mich ____ (2011), the Michigan Supreme Court in a 4-3 decision provided clarification regarding claims made by persons seeking recovery of No-Fault PIP benefits for falls outside of a motor vehicle....

Boundaries 12/22/2011

12/22/2011

The first question that must be answered in any negligence suit is: Did the defendant owe a duty to the plaintiff?...

Boundaries 11/21/2011

11/21/2011

Courts throughout the United States have long agreed "that one may expressly 'assume the risk' of another's negligence unless because of the particular facts there is some special public policy to the contrary....

Boundaries 10/12/2011

10/12/2011

Attorneys who represent businesses and their insurers have, in the past ten years, become very familiar with the "Open and Obvious" Doctrine, as articulated in Lugo v Ameritech Corp, Inc, 464 Mich 512, 516 (2001)....

No-Fault Newsline 09/15/2011

09/15/2011

Our January 31, 2011 No-Fault Newsline discussed the fact that, despite concerted efforts by the Plaintiff's bar, federal courts had not interpreted the Medicare Secondary Payer Act (MSP) to permit double recovery in private-party personal injury cases where payments had been made by Medicare....

Boundaries 09/07/2011

09/07/2011

In the unpublished case of Ehrler v Frankenmuth Motel, Inc, No. 296908 (August 2, 2011), the Michigan Court of Appeals has suggested when a known, obvious and naturally occurring icy condition might nonetheless require action by the owner or controller of a premises....

Industry Line 09/02/2011

09/02/2011

A lessee's minor children do not have standing to sue a lessor for failure to disclose information regarding the hazards of lead paint as required by the Residential Lead-Based Paint Hazard Reduction Act of 1992 (commonly known as "Title X") according to the Sixth Circuit Court of Appeals....

Boundaries 08/30/2011

08/30/2011

In a published opinion issued August 24, 2011, the Michigan Court of Appeals, in a decision of first impression in Michigan, held that a plaintiff can recover non-economic damages for damage to or destruction of real property....

Community Watch 08/26/2011

08/26/2011

As speculation continues to surround the issues of what activity may or may not be allowed by the Michigan Medical Marijuana Act (MMMA), MCL 333.26421 et seq., the question of whether the MMMA permits the selling of marijuana by patient to patient has recently been laid to rest by the Michigan Court of Appeals...

Boundaries 08/25/2011

08/25/2011

Is a premises owner under a duty to protect invitees from the criminal acts of third parties? If so, to what extent? Michigan appellate courts have searched for clear answers to these questions for decades....

No-Fault Newsline 08/18/2011

08/18/2011

In Dawson v Farm Bureau Ins Co, ___ Mich App ___ (2011), the Michigan Court of Appeals agreed with the insurer that its unambiguous "underinsured motorist" contract language must be enforced as written....

Boundaries 08/12/2011

08/12/2011

Michigan law has long recognized that when a person chooses to participate in certain sports, he or she takes on certain risks....

Blueprints 08/12/2011

08/12/2011

Under Michigan law, subcontractors on a construction job site are responsible for ensuring that the site is safe for their employees....

No-Fault Newsline 08/08/2011

08/08/2011

In Krohn v Homeowners Ins Co, issued July 29, 2011, a four member majority of the Michigan Supreme Court defined a legal threshold for determining if experimental medical procedures are “allowable expenses” payable as personal insurance protection benefits under MCL 500.3107(1)(a). In order for such procedures to qualify as “reasonably necessary....

No-Fault Newsline 08/05/2011

08/05/2011

On July 26, 2011, the Michigan Court of Appeals released Karmol v Encompass Prop & Cas. Co, for publication and reversed a ruling by the Lenawee County Circuit Court which entered a default judgment in favor of the Plaintiff and further awarded Plaintiff no-fault penalty interest and attorneys fees....

No-Fault Newsline 08/02/2011

08/02/2011

On July 14, 2011, the Court of Appeals issued its published decision in Ile v Foremost Insurance Company, which held that optional $20,000/$40,000 Underinsured Motorist Coverage purchased by Plaintiff's decedent was illusory. Under the policy language, benefits would never be afforded....

Community Watch 08/01/2011

08/01/2011

If there was any confusion as to what constitutes a "majority" vote of a Zoning Board of Appeals under the Michigan Zoning Enabling Act, the Michigan Court of Appeals has cleared up that confusion by way of its recently issued decision in EDW C. Levy Co v Marine City Board of Zoning Appeals, ____ Mich App ____ (2011)...

Community Watch 07/21/2011

07/21/2011

An individual cannot recover damages under the Michigan Whistleblower's Protection Act ("WPA") where the pursuit of the matter was not to inform the public on a matter of public concern, but instead was to advance the individual's own financial interests....

No-Fault Newsline 06/28/2011

06/28/2011

Despite the election of Justice Mary Beth Kelly and the appointment of Justice Brian Zahra to the Michigan Supreme Court, the Court declined to reconsider McCormick....

No-Fault Newsline 06/27/2011

06/27/2011

The standard for bringing a tort action under MCL 500.3135 of the No-Fault Act changed significantly on July 31, 2010 when the Michigan Supreme Court issues McCormick v Carrier, 487 Mich 180 (2010).....

Boundaries 06/24/2011

06/24/2011

Under a new law signed by Governor Snyder on June 20, 2011, parents may, under certain circumstances, waive the rights of their minor child to sue for injuries sustained while participating in recreational activities....

Boundaries 06/08/2011

06/08/2011

The principles articulated in Fultz v Union-Commerce, 470 Mich 460 (2004) have long protected construction subcontractors, snow removal contractors, and other types of businesses from negligence claims brought against them by third-parties....

No-Fault Newsline 06/02/2011

06/02/2011

On May 20, 2011, the Michigan Supreme Court granted leave to appeal in Joseph v Auto Club Ins Assn, No. 142615, in order to consider whether its own decision in Regents of the Univ of Michigan v Titan Ins Co, 487 Mich 289; 791 NW2d 897 (2010) was correctly decided....

Boundaries 04/18/2011

04/18/2011

It is well established that the first thing a plaintiff must prove, in order to proceed with a negligence claim, is duty. As our Supreme Court noted in Fultz v Union-Commerce Assoc, 470 Mich 460 (2004), "[i]t is axiomatic that there can be no tort liability unless defendants owed a duty to plaintiff." Duty requires the defendant to conform to a specific standard of conduct in order to protect others against unreasonable risks of harm....

Community Watch 04/11/2011

04/11/2011

Last month's Michigan Supreme Court decision in Klooser v City of Charlevoix (decided March 10, 2011) has raised several issues pertaining to the duties of assessors and when an assessor should uncap a property's taxable value....

Boundaries 04/04/2011

04/04/2011

For attorneys who represent businesses and their insurers, the "Open and Obvious" Doctrine - as articulated in Lugo v Ameritech Corp, Inc, 464 Mich 512, 516 (2001) - and Fultz v Union-Commerce Assoc, 470 Mich 460 (2004) are two very familiar defenses....

Community Watch 03/23/2011

03/23/2011

In our August 9, 2010 edition of Community Watch, we discussed a significant Michigan Supreme Court decision concerning enforcement of the prohibition on unfunded mandates contained in §29 of the Headlee Amendment to the Michigan Constitution, Adair v State of Michigan (decided July 14, 2010)....

Boundaries 03/21/2011

03/21/2011

In Miller v Hot Rod Motorcycles, Inc, an unpublished decision of the Court of Appeals, the Court rejected Plaintiff's attempt to utilize a snow covered condition to avoid the "open and obvious" defense.

State of the Art 03/04/2011

03/04/2011

In Smith v Stryker Corp, the Michigan Court of Appeals has recently decided when a cause of action "accrues" in a product liability suit for purposes of the statute of limitations.

No-Fault Newsline 01/31/2011

01/31/2011

A recent article circulating among the plaintiffs' bar suggests that a provision in the Medicare Secondary Payer Act (MSP) can be used as a tool to bolster the value of tort cases...

Boundaries 01/18/2011

01/18/2011

In Miller v Dunham's Discount Sports, ___ Mich App ___ (issued Dec 16, 2010) (Docket No. 294445), an unpublished decision, the Court of Appeals relied upon the "open and obvious" doctrine and affirmed a trial court's dismissal of a lawsuit where plaintiff fell from an elliptical machine at a sporting goods store.

No-Fault Newsline 01/10/2011

01/10/2011

Hours ago, newly elected Governor Rick Snyder announced the appointment of Court of Appeals Judge Brian Zahra to the Michigan Supreme Court. Judge (soon to be Justice) Zahra will replace Justice Maura Corrigan, who recently accepted Governor Snyder's appointment as Director of the State Department of Human Resources. Justice Corrigan will leave the Court later this week...

Boundaries 12/23/2010

12/23/2010

On December 7, 2010, the Michigan Court of Appeals released its unpublished opinion in Torrez v Goodwill Industries, No. 292138. In this timely opinion - released just days before an early December snowstorm that was remarkable even by Michigan's standards - the court held that the Plaintiff's "black ice" slip and fall claim was properly dismissed under the "open and obvious" doctrine....

Boundaries 12/17/2010

12/17/2010

On December 14, 2010, the Michigan Court of Appeals released its unpublished opinion in Gibson v Anderson, No. 293830. Gibson involved a Plaintiff who slipped on an icy road adjoining Defendant's property, and fell onto a metal pipe stuck into the ground in Defendant's yard....

Boundaries 12/16/2010

12/16/2010

In Watts v Michigan Multi-King d/b/a Baha Fresh, ____ Mich App ____ (12/14/10), the Court of Appeals found that a recently mopped restaurant floor was not "obvious" upon "casual inspection" and was not similar to Sidorowicz v Chicken Shack, the case that determined that a blind man encountering a visible puddle of water in a men's bathroom was open and obvious.

Boundaries 12/09/2010

12/09/2010

Summary disposition of plaintiff's claim alleging a slip and fall on a pile of salt outside of a restaurant was affirmed in Gerzanics v Boston Market Corp, an unpublished opinion issued by the Michigan Court of Appeals, on November 18, 2010....

No-Fault Newsline 12/08/2010

12/08/2010

In a major victory for DaimlerChrysler Insurance Company and for auto insurers that issue policies to corporate or other entities, the Supreme Court, after full briefing and oral argument, has vacated its order granting leave to appeal a Court of Appeals finding of unambiguous contract language, and declined to further consider the case....

On The Job 11/08/2010

11/08/2010

Drug screening is not a violation of the Americans with Disabilities Act if there is a job-related business necessity. In Bates v Dura Automotive Systems, Inc, 2010 FED App. 0339P (6th Cir.), the United States Court of Appeals considered whether an employer could test for drugs that were typically prescribed by a physician.

Boundaries 11/04/2010

11/04/2010

In Hoffner v Lanctoe, et al, ___ Mich App ___ (issued Nov. 2, 2010) (Docket No. 292275), the Court of Appeals clarified when a tenant could be liable for a dangerous sidewalk, noting that liability attaches only when the tenant has possession and control.

No-Fault Newsline 11/03/2010

11/03/2010

Republicans regained control of the Michigan Supreme Court in yesterday's election. Wayne County Circuit Court Judge Mary Beth Kelly and incumbent Justice Robert Young Jr. prevailed over three other candidates.

Boundaries 11/03/2010

11/03/2010

Republicans regained control of the Michigan Supreme Court in yesterday's election. Wayne County Circuit Court Judge Mary Beth Kelly and incumbent Justice Robert Young, Jr. prevailed over three other candidates.

Boundaries 10/29/2010

10/29/2010

The Michigan Supreme Court recently vacated its own March 2010 order granting leave to appeal in Singer v Sreenivasan, unpublished opinion per curiam of the Michigan Court of Appeals, issued Sept. 1, 2009 (Docket No. 284575).

No-Fault Newsline 10/29/2010

10/29/2010

On The Job 10/21/2010

10/21/2010

In the recently published decision of Escher v BWXT Y-12, LLC ___ US COA ___ (10/15/10, 6th Cir), the court upheld a termination of a naval reserve employee for misusing the email of his non-military employer.

Boundaries 10/21/2010

10/21/2010

The Michigan Court of Appeals recently considered if the International Building Code created a statutory duty that imposed an independent legal duty upon a defendant. After considering the facts and law in the recently unpublished opinion of Kahler v Rent-A-Center, No 293168 (10/14/10 Mich App), the Court held that it did not.

No-Fault Newsline 10/19/2010

10/19/2010

In Camaj v Home Owners Insurance, unpublished, Plaintiff sustained injuries to his neck, back, hips, and head. He filed a complaint against defendant, his automobile insurer, alleging that he was wrongfully denied uninsured motorist ("UM") and PIP benefits.

No-Fault Newsline 10/19/2010

10/19/2010

On August 23, 2010, the Michigan Supreme Court issued Shay v Aldridge et al, ___ Mich ___ (2010) (Docket No. 138908). The 4-3 decision (justice Weaver wrote for the majority which also included Chief Justice Kelly, Justice Cavanagh, and Justice Hathaway) has broad implications for cases where contract language is disputed.

Boundaries 10/07/2010

10/07/2010

In Slager v Kid's Kourt, ___ Mich App ___ (2010), the Court of Appeals clarified who can be a non-party at fault in a negligence case. The Court held that only those whose actions are the factual and proximate cause of an injury are eligible.