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 “New” Michigan Assigned Claims Plan for No-fault Benefits
In 2012, the Michigan Legislature passed and Gov. Snyder signed into law, a new Michigan Assigned Claims Plan for No-fault Benefits. The new law modifies the administration of the Michigan Assigned Claims Plan. Formerly, the plan was administered by and through the Secretary of State. Now, under the new law, it is administered through the Michigan Automobile Insurance Placement Facility. The administrative transfer became effective on December 17, 2012. From this day forward, all potential MACP claims shall be submitted to the new MAIPF. You can read more about the MAIPF here. And the Application for No-Fault Benefits under the plan can be found here (and also can be found on the website). For more questions or information regarding the new MAIPF, please contact us directly.
Authored by L. Page Graves
No-Fault Insurance Medical Service Providers Beware
No-fault insurance medical service providers must be aware and cautious of the status of a patient’s no-fault PIP claim. Particularly, if the patient has filed a lawsuit and the medical provider has elected not to intervene or file its own, joint action. That is because if the patient ultimately settles his/her PIP claim for future care and signs a release, that will forever bar the medical service provider from claiming payment for services for future care. That is exactly what happened to a medical provider who attempted to collect unpaid charges after the patient released future PIP benefits, in Michigan Head & Spine Institute, P.C., v. State Farm Mut Auto Ins Co, ___ Mich ___ (2013), released on February 12, 2013. See opinion here.
Authored by L. Page Graves
Claim For Unpaid Back Rent From Estate Must Be In Writing…
Plaintiff rented out a condominium to his mother and the decedent, his mother’s husband. The couple paid the mortgage payment directly to the mortgage holder. After plaintiff’s mother died, the decedent continued to live in the residence and pay the mortgage. After the decedent passed away, the plaintiff filed a claim for unpaid back rent. The plaintiff claimed that he did not charge the couple full rental value during the decedent’s lifetime because of a promise that the outstanding balance would be paid back through a provision in the decedent’s will. In other words, he claimed that the decedent promised to leave the plaintiff something in his will. The Personal Representative filed a disallowance of the claim. The plaintiff thereupon filed a complaint in the probate court on the theories of breach of contract, promissory estoppel, and quantum meruit (an equitable theory to receive remuneration on the basis of fairness).
The probate court dismissed the case on the basis that MCL 700.2514, which requires that contracts to make a will must be in writing, barred the action. The probate court raised this statute on its own. The plaintiff claimed on appeal that it was error for the probate court to raise this statute on its own. The plaintiff claimed that his case was an ordinary breach of contract action. The Court of Appeals disagreed. The Court of Appeals held that a party’s choice of labels for a cause of action is not dispositive. A party cannot avoid the dismissal of a cause of action through “artful pleading.” The Court of Appeals further held that MCL 700.2514 directly applied to this situation. This statute provides that a contract to make a will, or to die without a will, must be in writing. The Court of Appeals held that because the terms of the alleged contract in this case were to arise after death, it was clearly an agreement to make a will. Since it was not in writing, it was unenforceable. The trial court correctly dismissed the case.
What this means for claimants: If you expend monies or provide other services on behalf of someone in exchange for their promise that you will be reimbursed via their Will or Trust, be sure to get that promise in writing.
You can read the entire opinion here.
Improper to Rely on Study Not Part of Evidence…
In this divorce appeal, the trial court modified the parenting time schedule to give the defendant parenting time every other weekend including Sunday overnight, and Monday and Wednesday after school until 7:15 p.m. The defendant claimed that the trial court erred in relying on a study about the advisability of children waking up in their own beds at the end of the ruling. At the end of the court’s ruling, the trial court stated: “I’m also a big believer in the study that kids should wake up in their own bed and that’s why I ruled the way I did on the parenting time.” However, there was no study introduced as evidence at the hearing, and no witnesses testified regarding the findings of any study. The Court of Appeals held that the trial court erred. A court must make its decision on testimony given in open court, not on extrajudicial information. Although the plaintiff argued that the trial court made this statement only after making its findings and that the judge’s comments did not indicate that he actually relied on the study, the comments do not bear this out. The trial court’s comments that it “ruled the way it did” because of its belief in the study indicates that the error was not harmless and that the error did affect the outcome. By referencing and then relying on a study not introduced into evidnce or part of the record, the trial court committed clear legal error.
You can read the entire opinion here.
Promise to Reimburse Rent by Leaving Inheritance in Will…
Plaintiff rented out a condominium to his mother and the decedent, his mother’s husband. The couple paid the mortgage payment directly to the mortgage holder. After plaintiff’s mother died, the decedent continued to live in the residence and pay the mortgage. After the decedent passed away, the plaintiff filed a claim for unpaid back rent. The plaintiff claimed that he did not charge the couple full rental value during the decedent’s lifetime because of a promise that the outstanding balance would be paid back through a provision in the decedent’s will. In other words, he claimed that the decedent promised to leave the plaintiff something in his will. The Personal Representative filed a disallowance of the claim. The plaintiff thereupon filed a complaint in the probate court on the theories of breach of contract, promissory estoppel, and quantum meruit (an equitable theory to receive remuneration on the basis of fairness).
The probate court dismissed the case on the basis that MCL 700.2514, which requires that contracts to make a will must be in writing, barred the action. The probate court raised this statute on its own. The plaintiff claimed on appeal that it was error for the probate court to raise this statute on its own. The plaintiff claimed that his case was an ordinary breach of contract action. The Court of Appeals disagreed. The Court of Appeals held that a party’s choice of labels for a cause of action is not dispositive. A party cannot avoid the dismissal of a cause of action through “artful pleading.” The Court of Appeals further held that MCL 700.2514 directly applied to this situation. This statute provides that a contract to make a will, or to die without a will, must be in writing. The Court of Appeals held that because the terms of the alleged contract in this case were to arise after death, it was clearly an agreement to make a will. Since it was not in writing, it was unenforceable. The trial court correctly dismissed the case.
What this means for claimants: If you expend monies or provide other services on behalf of someone in exchange for their promise that you will be reimbursed via their Will or Trust, be sure to get that promise in writing.
You can read the entire opinion here.
Authored by Barbara A. Assendelft
Temporary Staff Psychiatrist Entitled to Governmental Immunity Even Though He Was Called an Independent Contractor
Plaintiffs were employees of Caro Regional Center who were attacked by a patient.
After being found not guilty by reason of insanity at a criminal trial on another matter, the patient was admitted to Caro in December 2003. While at Caro, the patient showed progress and was given a grounds pass which gave him unsupervised access to the grounds at Caro for 15-minute periods. On June 22, 2004, the defendant, a locum tenens (i.e., temporary) psychiatrist at Caro, examined the patient so he could give testimony at an upcoming probate court hearing regarding the patient. That evening, the patient used his grounds pass and disappeared from Caro. Three days later, he reappeared at the Caro Learning Center nearby, where he attacked the plaintiffs with a hammer and his fists, severely injuring them. He was apprehended three days later and was found guilty but mentally ill of assault with intent to commit murder, MCL 750.83.
In a civil lawsuit against defendant-psychiatrist, the trial court found defendant to be entitled to governmental immunity under MCL 691.1407(2), and thus not liable for the plaintiffs’ injuries. The plaintiffs appealed, arguing that the psychiatrist was not an employee of Caro. The Court of Appeals disagreed with the plaintiffs and affirmed the dismissal of the psychiatrist.
The Court of Appeals noted that under the Governmental Immunity Act, MCL 691.1407(2), employees of a governmental agency are immune from tort liability for injuries to persons if: 1) the employee is acting within the scope of his authority; 2) the governmental agency is engaged in a governmental function; and 3) the employee’s actions are not grossly negligent. Here, the psychiatrist was called an “independent contractor.” However, this is not dispositive. Whether he is an employee for purposes of the Act and can be subject to tort liability depends on application of the “economic reality” test. The following four factors are considered: 1) the governmental unit’s control of the worker’s duties; 2) payment of wages; 3) right to hire, fire, and discipline, and 4)performance of the duties as an integral part of the employer’s business towards the accomplishment of a common goal. Under this test, the trial court correctly found that the defendant-psychiatrist was an employee of Caro. The evidence showed that the defendant’s supervisors at Caro had the right to control the defendant’s duties. They had the right to discipline and fire him. He was considered part of the staff at Caro. He was required to abide by the bylaws in place for staff members. His supervisor testified that his duties were “more or less” the same as other staff psychiatrists. They could take corrective action against him.
Under the totality of the circumstances, the trial court correctly concluded that the defendant was an employee entitled to governmental immunity.
What This Means For Injured Plaintiffs: If you are injured by the actions of a governmental worker, it is not the employee’s title that determines whether or not he is immune from suit but rather the four factors in the economic reality test. This makes it more likely that the employee will be found to be immune.
You can read the entire opinion here.
Authored by Barbara A. Assendelft
No Recovery For Plaintiff Who Fell on Ice Who Strayed From Walkway
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
IMPORTANT NO-FAULT UPDATE FOR MEDICAL SERVICE PROVIDERS AND MVA VICTIMS WHO ARE MINORS AND/OR SUSTAIN TRAUMATIC BRAIN INJURY
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
No Social Host Liability Where Guest Is Injured In Assault By Intoxicated Adult Guest
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
Change of Life Insurance Beneficiary Not The Result of Undue Influence
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