In January of 2008 Plaintiff slipped and fell on ice on a patio near the front entrance of Trinity Continuing Care Services nursing home.   She had driven her three-wheeled bicycle to the building to donate clothing.   She parked her bike on the uncleared and unsalted patio which was next to the main entrance walkway.  The main entrance walkway did not have any ice and snow on it, but the patio did.  The main walkway was covered by an awning.  There was a sign posted nearby which said:  “Sidewalks, Parking Lots and Common Areas may be wet, snow covered and slippery.”  As she walked across the patio, she slipped on ice.  She testified that she did not see the ice.  It was undisputed that the plaintiff took a path across the patio rather than the cleared walkway.

        The plaintiff filed suit against Trinity under various theories of liability, including ordinary negligence.  The trial court denied Trinity’s motion to dismiss.  The Court of Appeals reversed.  First, the Court of Appeals held that the suit was a premises liability suit and thus, the plaintiff could not make an ordinary negligence claim.  Courts are not bound by the labels that parties attach to their claims, and must read the complaint as a whole to determine the exact nature of the claim.  If a claim is premised on a condition of the land, it is a premises liability claim only and only the rules of law in that arena apply.  Here, the plaintiff’s injury occurred when she slipped and fell on ice, which she alleged was a dangerous condition on defendant’s land.    It was a premises liability claim only, and the trial court erred in not dismissing her ordinary negligence claim.

      Next,  the plaintiff claimed that the  trial court erred in holding that the condition was open and obvious and dismissing her claim on that basis.  The Court of Appeals disagreed. Where the dangers that exist are known to the invitee or are so obvious that the invitee is expected to know of them, an invitor owes no duty to protect.   Generally, the hazard represented by ice and snow is open and obvious, and the landowner has no duty to warn or to remove the ice and snow.  A landowner’s duty to invitees is to take reasonable measures within a reasonable period after snow to diminish the hard only if there is some special aspect that makes the snow unreasonably dangerous.  Here, there was not.

       The question is whether the ice and snow was visible to the plaintiff or whether there were other signs of a hazardous condition which would impute knowledge of it to her.  The Court of Appeals held that there were.  Evidence showed that it rained and snowed the day before.  The plaintiff admitted that she saw the ice after she fell.  The maintenance man testified that he saw the ice. The plaintiff  testified that she knew that water fell from the awning onto the patio and she had seen the caution sign.   The fact that the plaintiff strayed from the sidewalk/entranceway does not cause liability to be imposed on Trinity.

The Court of Appeals also rejected the plaintiff’s claim that she had a cause of action under a Michigan Administrative Code provision requiring nursing homes to maintain the premises in a safe and sanitary condition and in a manner consistent with the public health and welfare.  Further MCL 125.471 in the Housing Law, which imposes on owners of dwellings an obligation to maintain the roof and to drain rain water, does not apply as the duty is imposed to “avoid dampness in the walls and unsanitary conditions.”


What This Means For Plaintiffs:  If your injury results from a condition of the land on which you visit, your case will be analyzed under the rules of premises liability, not ordinary negligence.   This limits the possible theories of recovery that an injured plaintiff can use.  In addition, the Court of Appeals continues to deny recovery to persons who slip and fall on ice, and  continues to deny claims that recovery should be found based on statutory provisions.

 You can read the entire opinion here.

Authored by Barbara A. Assendelft

Yesterday, the Michigan Supreme Court did away with the long-held rule of protecting minors and the infirm in no-fault claims.   This legal issue has literally been a political ping-pong match with the balance of the court changing so much since 1999.   Since 1973 — when the no-fault act was enacted — it had always been the rule to protect this class of persons.

In 2006, however, AAA of Michigan got its request granted when the new court created a new rule that no longer protected minors and the infirm.  This directly impacted medical providers because their unpaid claims approaching one year were now at risk.  If not paid or a lawsuit filed, those unpaid claims became barred under no-fault.  Resorting to Medicare or Medicaid or writing off as bad debt were the only remaining options.

The old no-fault law protecting this class of persons was restored in 2010 when the U of M Hospital challenged the new rule.  But now the political ping pong has been hit back in Joseph v ACIA .  Once again, children, the infirm and their medical service providers must adhere to the one-year-back-rule for no-fault claims.

Authored by L. Page Graves

            Plaintiff, age 19, attended an after-prom party at the home of defendant’s son, who was a junior in high school and a minor.  The party was held in a pole barn on the defendant-father’s property, which was located a short distance from the house.  Alcohol was served at the party.  The alcohol was brought in by other guests.  A fight broke out at the party and Plaintiff was seriously injured by another guest, who was 24 years old.  The guest attacked the plaintiff with a baseball bat, causing injury to the plaintiff’s head.  The evidence showed that the son’s mother was not home at the time of the party and the son’s father (defendant) was asleep in the house at the time of the party.  There was no evidence that the mother or father knew that alcohol was going to be served, as the alcohol was brought in by other guests.

             Plaintiff filed suit against the defendant-parents  under the legal theory of “social host liability,” MCL 750.141a, which provides that owners of premises shall not knowingly allow a minor to consume or possess alcohol at a social gathering on their premises.   The trial court entered summary judgment for the parents, and the plaintiff appealed.

             The Court of Appeals affirmed judgment for the parents.  The Court of Appeals noted that social host liability cannot be premised on the serving of alcohol to adults (persons over the age of 18).  Since the attacker was 24 years old and an adult, social host liability can not be asserted.  In addition, although there are some contra cases, the Court of Appeals here held that there is no exception to this rule for criminal acts, i.e., when the injury to the plaintiff is caused by an assault or battery by the wrongdoer, as opposed to, for example, the wrongdoer’s drunken driving.  

             As another grounds for its holding, the Court of Appeals held that here was insufficient evidence that the mother or father had knowledge that minors were consuming alcohol at the party.  Knowledge is an essential factor in MCL 750.141a; the statute prohibits a person/host from “knowingly” allowing a minor to consume alcohol at a social gathering.  Here, the mother was not home at the time of the party, and evidence showed that the father was asleep during the party. 

  What this means for social hosts:  If you host a party at which both minors and adults attend, and alcohol is served and a guest is injured by an intoxicated adult, no liability will lie against the hosts under the social host liability statute. The statute solely prohibits furnishing alcohol to a minor at a gathering.  In addition, if a guest’s injury is caused by a fight at the party, no liability will lie because the social liability act doesn’t cover criminal acts.  The other important point of the case is that for liability to lie, the person hosting the party (i.e., the parent) has to have knowledge that alcohols is being served.  This means that the parent either had actual knowledge, or circumstances exist which would cause a reasonable person to conclude that the parent had knowledge. Here, because the party was held in a pole barn on the defendant-father’s property and since he was asleep during the party, there was insufficient evidence of knowledge.  However, had the father actually gone to the pole barn, observed the drinking, and went back to the house without taking corrective action, it could be said that he violated the statute.

You can read the entire opinion here.


Authored by Barbara A. Assendelft

The Decedent had a life insurance policy which named his mother as the beneficiary.  Subsequently the decedent met and dated his girlfriend. They eventually moved in together and had a baby girl together in 2003.  While his girlfriend was pregnant, they discussed decedent changing the beneficiary of the policy.  In 2005 decedent began having serious medical problems. In August 2006 he had surgery, but it was not successful and he was thereafter confined to a hospital bed.  After the surgery he was unable to speak but he could nod, move his lips, and gesture.   Then, one week before he died, decedent told his girlfriend that he wanted her and their daughter to share the life insurance proceeds equally, and instructed her to  fill out the appropriate  change forms, which she did.   The decedent signed the change of beneficiary forms at the hospital.  The girlfriend was not present when he signed them, but a hospital social worker and a notary were present.  They testified that the decedent could communicate, that he understood the document and that he intended to execute it.

            Decedent’s mother testified that on the way to the hospital before his surgery, decedent said he wanted her (the mother) to have his life insurance benefits.  

             After decedent died, there was a dispute between decedent’s mother and his girlfriend as to who should get the life insurance proceeds. The mother claimed that decedent’s changing the beneficiary was the result of undue influence on the part of the girlfriend.  The insurance company filed an interpleader action to get the court’s ruling on who was entitled to the proceeds.   The trial court ruled that the mother did not meet the burden of a presumption of undue influence.  The Court of Appeals reversed.  Upon remand, the trial court ruled that although the mother established the presumption, the girlfriend had successfully rebutted the presumption of undue influence.   Thus, the girlfriend was entitled to the proceeds.  The mother appealed.   The Court of Appeals affirmed, finding that the trial court did not err in finding that the presumption was rebutted.  

            Under the law, undue influence will presumed if evidence establishes the following three things: 1) the existence of a confidential relationship between the decedent and a fiduciary, i.e, the girlfriend; 2) the fiduciary benefits from the transaction; 3) the fiduciary had an opportunity to influence the grantor.   The party opposing the claim of undue influence then has the burden, by competent and credible evidence, of providing evidence to rebut the presumption.   The Court of Appeals held that although all three of the criteria for a presumption were met in this case, the girlfriend satisfactorily rebutted the presumption by the following evidence:  Decedent could communicate by moving his lips and gesturing.  He was medically cleared before signing the forms. The social worker and notary testified they believed he understood what he was doing.  The girlfriend was not present in the room when decedent signed the forms, and the only contra testimony indicating coercion was from the girlfriend’s sister, from whom she was estranged and whose testimony the trial court found not credible.   The Court of Appeals held that the trial court did not err in concluding that the girlfriend rebutted the presumption.  The Court of Appeals also held that the fact that the girlfriend’s testimony was self-serving did not change the conclusion, nor did the fact that the decedent was in a weakened and vulnerable physical state.

  What this means for beneficiaries:   A claim of undue influence can be made if a fiduciary to the decedent receives more from the estate than other heirs.  The girlfriend in this case was found to be a fiduciary because she was decedent’s appointed agent in his durable powers of attorney.  Fiduciaries are more vulnerable to a claim of undue influence because of the presumption mentioned in the case.   If you are a fiduciary (agent appointed in a durable power of attorney, executor, or trustee), you should take care not to take actions which could be construed as trying to exert influence on the decedent to leave more of his estate to you, especially if the grantor is elderly, frail, or in poor health.   Fortunately for the girlfriend in this case, there was enough evidence that the decedent was not unduly influenced so that the courts  denied the mother’s claim of undue influence and upheld the change in beneficiary.

You can read the entire opinion here.

Authored by Barbara A. Assendelft

            Plaintiff was injured when he was struck by a vehicle driven by the defendant.  In response to a complaint filed by the plaintiff, the defendant raised the defense of “sudden medical emergency.”   In his answers to a first set of requests for discovery, the defendant admitted that he had recently been prescribed Xanax, and that he took a pill about four hours before the accident.  Medical records that the defendant produced from his emergency room visit showed that he told the doctors that he had taken Xanax and fallen asleep.   He also told the doctors that he has other medical conditions and takes several medications every day.

             Plaintiff served a second set of interrogatories on the defendant some months later, inquiring further into defendant’s medical condition.  Then, defendant’s counsel sent plaintiff a letter stating that he was voluntarily withdrawing his “sudden medical emergency” affirmative defense and would be asserting the physician-patient privilege, MCR 2.314(B)(1), and would not be providing the requested medical information.  The physician-patient privilege is a rule of law which provides that a party may refuse to testify or otherwise produce evidence regarding confidential information between the party and his or her doctor.  Plaintiff filed a motion to compel production of the requested medical information, taking the position that under MCR 2.314(B)(1) which states that a party must assert the privilege in answers to interrogatories or in answers to a request for production for documents and that a privilege not “timely asserted” is waived, the defendant waived the privilege.  The trial court sided with the defendant, finding that the fact that the defendant provided some basic medical information early on did not waive the privilege when the plaintiff later asked for more detailed medical information.

             The Michigan Court of Appeals reversed.  The Court of Appeals noted that MCR 2.314(B) specifically states, in addition to the requirement that the privilege be raised in answers to discovery requests, that a privilege “not timely asserted is waived in that action.”   The Court of Appeals noted that in response to the first interrogatories, requests to produce, and requests to admit, the defendant did not assert that the information sought was privileged.  Further, he provided medical records and other medical information during discovery.  The Court noted that the defendant only asserted the waiver when he believed that the plaintiff’s requests had become intrusive.  That kind of change in strategy is precisely the type of situation that the Supreme Court has declared impermissible.   The Court of Appeals thus ruled that the defendant could not assert the privilege at the later date.

 What This Means For Injured Persons:  

This case is a warning to injured persons, especially defendants, that if you put your medical condition into issue early on, you will not be able to later change your mind and raise the physician-patient privilege in trying to keep out your medical records.  Although the Court of  Appeals in a 1999 opinion held that if a party gratuitously mentions in answers to a first set of interrogatories that they have a certain illness or disease they can still assert the privilege at a later date if they are later asked for medical records, the Court of Appeals in this case was taking a stricter stance  and holding that the mention of a disease/illness and the act of producing emergency room records early on is a waiver of asserting the physician-patient privilege later on.

You can read the entire Michigan Court of Appeals opinion here.

Authored by Barbara A. Assendelft

            In 1984 Lyall and June Aldrich signed a quit claim deed that transferred ownership in some land to their three children, Kim Aldrich, Randy Aldrich, and Kit Price as tenants in common.   Randy Aldrich died without a Will in 1998.  No probate estate was opened at the probate court after his death.  In June 2001 Randy’s wife, Carol,  signed a deed transferring her interest in the property as survivor of her husband, to Randy’s brother, Kim Aldrich, and his sister, Kit Price.  After both Lyall and June died, Kim and Kit filed suit to quiet title in the property claiming they legally held all the interest.    Kim and Kit filed a motion for summary disposition, claiming that under the statute pertaining to intestate succession, MCL 700.2102 (1), Carol had interited  her husband’s entire estate, so that when she quitclaimed the property to Kim and Kit, she effectively transferred her husband’s one-third interest in the property to them.   Randy’s children, on the other hand, claimed that since Randy’s estate was not probated, Carol had never received a deed transferring the property to her and thus she could not transfer her interest to Kim and Kit. 

                The trial court ruled for Kim and Kit.  The trial court ruled that by executing the June 2001 quitclaim deed, Carol Aldrich in effect elected to take her survivor’s share in her husband’s estate.   The children appealed. The Court of Appeals affirmed.  The Court of Appeals noted that under Michigan law, title to real property vests in a decedent’s heirs at the moment of the decedent’s death, even if no probate estate is opened.  Hence, Carol received Randy’s 1/3 intere4st immediately when Randy died.  Thus, she could properly quit claim the 1/3 interest to Kim and Kit.   A quitclaim deed effectively transfers whatever interest in the property that the grantor had at the moment of the transfer. Because title to her husband/s one-third interest vested in her at the moment of her husband’s death, Carol Aldrich owned the one-third interest when she executed the quit claim deed.  Accordingly, there was nothing left for Randy’s children.


 What This Means For Heirs:

 If a person dies without a Will or Trust, a probate estate does not have to be opened at the probate court in order for legal title to real estate to pass to the decedent’s heirs.   However, be aware that this is not the rule for personal property.  The Court of Appeals specifically stated that title to personal property does not transfer to a decedent’s heirs at the moment of death; rather, it passes to the executor of the decedent’s estate upon appointment as executor by the probate court.  So, for all assets other than real estate, you should always have a probate estate opened in order to properly pass title to the heirs. 

You can view the entire Court of Appals opinion here.

Authored by Barbara A. Assendelft

Congressman Dave Camp (R-Mi), Chairman of the Committee on Ways and Means, has announced that the Committee will hold the second of two hearings on how accounting rules cause different types of businesses – specifically, publicly-traded and closely-held businesses – to evaluate tax policy choices differently. Whereas a previous hearing focused on financial accounting rules and publicly-traded companies, this hearing will focus on the special challenges faced by small and closely-held businesses that are less concerned with financial accounting rules but must confront tremendous complexity in dealing with tax accounting and various choice of entity regimes.   The hearing will take place on Wednesday, March 7, 2012 in room 1100 of the Longworth House Office Building at 10:00 a.m.




    Unlike publicly-traded companies, closely-held companies often rely less on Generally Accepted Accounting Principles (“GAAP”) to report information to owners and creditors, although there are exceptions.  Instead, closely-held entities tend to focus almost exclusively on how tax policy changes affect cash flows. Closely-held companies, face their own set of challenges with regard to tax complexity and uncertainty.  These challenges range from compliance with complicated rules on inventory  accounting and cost recovery to numerous sets of tax rules governing different business forms. 

   The three major business forms from which closely-held companies must choose for federal tax purposes are C corporations, S corporations, and partnerships, although a number of other types of business entities exist to serve specific purposes.  While C corporations are subject to entity-level tax and shareholders are again subject to tax on dividends and capital gains, S corporations and partnerships are “pass-through” entities that do not pay entity-level tax – rather partners and shareholders pay tax on their share of the entity’s income on their individual tax returns (and therefore under the individual rate schedule).  Companies must choose to operate under one of these regimes, and the choice can have significant tax consequences.  Many commentators recommend modifications to the choice of entity rules to reduce the potential distortions introduced by such rules – with ideas ranging from consolidating existing pass-through rules into a “unified pass-through regime”,  making it easier for closely-held C corporations to convert to pass-through status, or even subjecting some existing pass-through entities to double taxation as C corporations.  On the other hand, tax reform proposals that create too large a spread between the top corporate rate and the top individual rate risk exacerbating these distortions rather than reducing them.

Authored by Barbara A. Assendelft

A health system’s actual procurement costs for surgical implants is subject to disclosure for payment consideration by auto no-fault insurers.

Patients of Bronson Methodist Hospital, in Kalamazoo, Michigan, were involved in motor vehicle accidents and sustained traumatic, orthopedic injuries requiring surgical implants.  Pursuant to the no-fault act (MCL 500.3107(1)(a)), Bronson submitted its charges incurred by the patients to the liable no-fault auto insurer (Auto-Owners Insurance Company) for payment.  The no-fault insurer paid the health system’s charges except for the line item for the implants.  For payment consideration and pursuant to a different section of the no-fault act (MCL 500.3157 and MCL 500.3158), Auto-Owners requested that Bronson disclose its actual cost to acquire the implants.  Bronson refused to disclose this proprietary information.  Consequently, Auto-Owners refused to timely issue payment for the full amount of the implant charges submitted.  Bronson filed suit to compel payment of the charges incurred by the patients for the implants.

During the course of the litigation, Auto-Owners (relying on CorVel Corporation, its retained audit/review company’s recommendation) issued payment for what it maintained was in line with what the health system actually paid for the implants, plus a 50% mark-up.  At the trial court, Bronson requested the court to rule that it was not obligated to disclose its proprietary information and that it was entitled to be paid the full charge incurred by the patient.  The trial court agreed.  Auto Owners, therefore, appealed the decision.

In a Published Opinion dated February 16, 2012, the Michigan Court of Appeals reversed the trial court and held that a health system’s actual procurement costs for surgical implants is subject to disclosure for payment consideration by auto no-fault insurers.  The court, however, limited the application of its newly announced rule solely to “durable medical supply products at issue here.”

What this means for patients and providers.

First, the Bronson case is binding law now in Michigan.  It will remain so unless and until our Michigan Supreme Court says otherwise.  An appeal to the Michigan Supreme Court is discretionary and not guaranteed because the Supreme Court may decline Bronson’s request which effectively means it agrees with the current rule.  Bronson has 42 days to preserve a timely application to appeal the decision.  MCR 7.302(C)(2).  At this time, no application has been filed yet.  You can track the appellate history of this case here.

Second, as you see in this case, Bronson did not disclose the amount of its hard costs and yet, it still was paid a portion of its bill.  For health systems, generally, that will be the likely outcome going forward when a health system decides to continue its internal policy to withhold the proprietary data.  If the hospital decides to pursue the balance bill in litigation, however, then the data will be subject to disclosure.

Finally, in deciding whether to initiate that balance bill case, health systems must be able to demonstrate with other evidence that there is more to the overall cost to delivering an implant to a patient besides its raw, wholesale cost.  What about the costs to store/maintain its purity from contamination before actual use?  What about insurance costs to protect against its loss from contamination or fire before use?  This list of added over-head to the delivery of the implant  is incomplete but it is intended to help illustrate how health systems should begin analyzing and developing their case response.  Recognize, too, that a built-in profit is o.k..  A jury gets that.  It also understands over-head.  So, what is the total over-head to deliver the implant?  That answer is what will justify a health system’s cost-to-charge ratio.

You can read the Published Court of Appeals opinion here.

Authored by L. Page Graves

A man was walking was walking his dog on a road.  A car and a snowmobile were approaching in opposite directions to the man and his dog.  The car had its headlight on.  The operator of the snowmobile testified that the car’s headlights blinded/obstructed his vision such that he did not see the man walking his dog.  The snowmobile struck the pedestrian who sustained accidental bodily injuries.

The pedestrian had his own auto no-fault policy issued by Citizens.  Thus, Citizens was the priority insurer potentially liable to pay his medical expenses.  MCL 500.3114(1) and MCL 500.3115(1).  The man presented his medical expense claims but Citizens refused to pay arguing that the insured’s accidental bodily injuries did not “arise out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle” as contemplated by MCL 500.3105(1).  The Michigan Court of Appeals agreed with Citizens reasoning that the car’s headlights were as coincidental as a setting sun that just as easily could have blinded the snowmobile operator’s vision.  The Court distinguished the factual scenario presented in this case with other pedestrian/motorcycle accidents involving a motor vehicle which do trigger no-fault liability.  The Court explained that in those other cases, typically the car’s involvement forced the other person/biker to change his course of travel to avoid a collision.

What this means for accident victims and medical providers.

You cannot generally apply the facts of this case to the next one that walks into your ER department because no two cases are exactly the same.  You must strictly analyze the facts of how the accident actually occurred.  Simply relying upon what a police report says or what a pedestrian/snowmobile operator/motorcyclist patient says they recall occurred does not adequately resolve the critical factual riddle.  You must take sworn statements of all persons/operators involved, probing into each their collective memory of what happened and what they each did to avoid the accident before a fully informed conclusion can be reached regarding no-fault application.  Never rely on the auto insurer’s self-serving analysis.  Just because the facts did not ultimately bear out in this particular case, does not mean the next case will not.  A minor investment to investigate the facts of an accident is the difference between no-fault coverage paying versus private pay or government reimbursement.

You can read this opinion here.

Authored by L. Page Graves

A&A Property Management owned a gas station in the City of Detroit.  It purchased the gas station by taking out a secured loan from Comerica Bank. It also maintained its fuel supply through a mortgage arrangement with Armada Oil and Gas.  Armada recorded its mortgage first.  When A&A defaulted on its loan payments with Comerica, Comerica got a court-appointed receiver and was granted permission by the court to sell the gas station at auction.   The Court order specifically provided that any sale conducted on Comerica’s behalf would be subject to Armada’s first-recorded lien.

Plaintiff entered the winning bid at the auction.  At the time of sale, Plaintiff signed a purchase agreement specifically stating that the property was being sold “AS IS” and “WHERE IS” and “WITH ALL FAULTS”.   On the date of the sale, neither the Armada nor Comerica loan had been discharged.  Plaintiff purchased title insurance from Defendant.  The sale closed on January 24, 2008.  The defendant title insurance company issued an owner’s title insurance policy benefiting plaintiff, and this policy covered plaintiff against Armada’s claimed first lien on the property.

While plaintiff’s purchase was still pending, Armada filed suit against Comerica seeking payment of its undischarged mortgage debt.  Armada later added plaintiff as a named defendant in the lawsuit. When plaintiff notified its title insurance company, the company hired counsel to represent Plaintiff and covered all the costs involved in the litigation.  The title insurance company settled the Armada lawsuit and discharged the Armada mortgage.

Although the title company represented plaintiff in court and did ultimately clear the title, causing no harm to plaintiff, plaintiff filed suit against the title insurance company, complaining that the length of time that the litigation took was too long.  Plaintiff pointed to the fact that the title insurance policy stated that a defense would be provided “without unreasonable delay.”  The trial court dismissed the lawsuit and the Court of Appeals agreed.

The Court of Appeals held that while the policy requires defendants to provide a legal defense “without unreasonable delay”, it does not specify a particular length of time for the litigation.  Further, the plaintiff bought the property “as is” and “where is” and “with all faults,” which limits any liability.  And the policy gives the title insurance company, not the plaintiff, the right to decide whether to defend the case in court or simply pay the insured.    Finally, although the plaintiff accused the title insurance companies of fraud and misrepresentation, the plaintiff did not show the requisite reliance on the alleged fraudulent statements.

 What This Means For Persons Who Purchase Title Insurance:

     Once you have succeeded in turning a real estate lawsuit over to your title insurance company, the company has a lot of leeway in the steps it takes to defend the case.  It can vigorously defend the case or pay you and settle.   A claim that they are not pursuing the case in a timely manner would likely fail.

Authored by Barbara A. Assendelft