This newsletter has been compiled utilizing the latest reported Michigan Court of Appeals and Supreme Court Decisions. Case citations (if published at the time this newsletter is distributed) will reference the specific reporter, volume and page number. Unpublished Decisions (or those which have not been published as of the date of newsletter distribution) will be cited by Appellate Slip Opinion number. Copies of all Decisions summarized within this newsletter are available for your review upon request. Questions and comments are welcomed.

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The 1995 Tort Reform legislation preserved the right of a severally liable tortfeasor to bring an action for contribution.

Facts – This case arose from a three vehicle accident that occurred in 1997. In one vehicle were Ash and Nicastri, the injured parties in the underlying claim. In the second vehicle (owned by the Regents of the University of Michigan), was employee, Barry Maus. In the third vehicle (owned by American Beauty Turf Nurseries) was employee, Cecil Lawson. Ash and Nicastri filed suit in the Court of Claims against Maus and the Regents. The Regents insurer settled with Ash and Nicastri on behalf of Maus and the Regents. The underlying tort action was accordingly dismissed with prejudice.

Said insurer then filed a contribution action against Defendants Lawson and American Beauty pursuant to MCL 600.2925a – 600.2925d. Defendant’s moved for summary disposition, arguing that the Tort Reform Act of 1995, by eliminating joint and several liability in certain tort actions, including the underlying action in this case, abrogated Plaintiff’s contribution cause of action. The Supreme Court disagreed. In a fairly lengthy analysis of pre and post tort reform law, it indicated that although the 1995 tort reform legislation had rendered unnecessary most claims for contribution in personal injury accidents, it did not preclude every type of contribution claim. Even before the 1995 legislation, a tortfeasor had a statutory right to seek contribution in the event he settled a claim. This was the type of contribution at issue in this litigation. The Court could find no basis to conclude that a right to seek contribution has been precluded in cases in which liability among multiple tortfeasors is now "several" only, rather than "joint and several."

Plaintiff’s right to seek contribution existed because Plaintiff allegedly paid more than its pro-rata share of the common liability. Plaintiff’s total recovery in the contribution action would be limited to the amount paid by it and in excess of its pro-rata share.

In conclusion, the Michigan Supreme Court held that MCL 600.2925a – 600.2925d provided Plaintiff with a statutory right to seek contribution from other responsible tortfeasors after having settled with the injured parties in the underlying tort action. Tort reform legislation did not alter this right.

In a concurring Opinion, Justice Weaver observed that the contribution statute has not been repealed by the legislature and does remain in effect. Therefore, it must be applied to the present case. Gerling Konzern Allgemeine Versicherungs AG, Subrogee of Regents of the University of Michigan v. Lawson, et al., 472 Mich 44 (2005).

Recommendation – As the Court’s Opinion indicates, this decision only addressed a situation where contribution was sought as a result of a voluntary settlement (as opposed to jury verdict or other judgment). If contribution may be sought in any particular litigation, one must ensure that the specific provisions of MCL 600.2925(a)(3) are followed (i.e. – extinguish the liability of the contributee; make a reasonable effort to notify the contributee of the pendency of the settlement negotiations; give the contributee reasonable opportunity to participate in the settlement negotiations; settle in good faith).

Facts – Plaintiff is the son of Mr. Jenks and Mrs. Dixon. Jenks and Dixon divorced in 1987. The judgment awarded both parents joint legal custody. Jenks had sole physical custody; Dixon had visitation rights. When Plaintiff was fourteen, he was injured in an automobile accident. After attaining the age of majority, he filed this action to recover uninsured motorist benefits under the policy which Defendant had issued to Dixon two months before the accident at issue.

Pursuant to the insuring agreement, an "insured" included the named insured and his or her relatives. A relative was defined as "a person related to your or your spouse by blood, marriage or adoption who resides primarily with you." The trial court ruled that Plaintiff was not a resident relative as defined by the policy and granted Defendant’s motion.

In affirming the trial court, the Court of Appeals noted that the insurance policy at issue did not define the word "reside". The fact that a policy does not define a relevant term, does not render the policy ambiguous. Rather, an undefined term is to be interpreted in accordance with its commonly used meaning. The Court may refer to dictionary definitions to ascertain the meaning of a particular term.

The Court found that the verb "reside" is defined as "to dwell permanently or for some time; live." It was undisputed that Plaintiff’s primary residence was his father’s home, and that he was actually residing there at the time of the accident. Even assuming that Plaintiff also resided with Dixon by virtue of the visitation arrangement, reasonable minds could not differ in concluding that Plaintiff did not reside there "primarily" when he spent the majority of his time living in his father’s house. Jenks v. State Farm Mutual Insurance Company, Michigan Court of Appeals Unpublished Decision Dated March 15, 2005, Docket Number 251522.

Recommendation – The Court of Appeals applied a "common sense" reading of the insurance contract at issue. When attempting to analyze coverage issues, a complete and thorough review of the basic policy language and all applicable endorsements must be made.

Facts – In this case, Plaintiff was seriously injured in a four vehicle chain reaction collision when his pickup truck was rear-ended by a tractor-trailer rig driven by Richard Martin, in which the ostensible owner/operator, Willie Conway was a passenger. Because the Conway rig carried a placard indicating it was leased to Wall Street Systems, a long-distance hauling company, Plaintiff sued both Wall Street Systems and its insurance carrier, Gulf Insurance Company, claiming negligence.

Defendants produced evidence that the lease between Conway and Wall Street Systems had been unilaterally terminated by Wall Street Systems a month before the accident involving Plaintiff Ross. The termination process complied with a provision in the lease that permitted unilateral termination on one days notice sent in writing to the address provided in the lease agreement. There was no dispute that the notice sent by Wall Street Systems complied with the terms of the lease. The dispute was over whether it was effective.

Plaintiff contended that Wall Street Systems was liable due to the presence of its placard on the Conway vehicle at the time of the accident. The Court indicated that where the lease provides that the contractor is responsible for the return of the placards, a letter demanding the return constitutes a reasonable step to terminate the lease. The absence of a valid lease precludes the imposition of vicarious liability against Wall Street Systems and the presence of its placards on the Conway tractor at the time of the accident does not constitute grounds for imposing vicarious liability.

Plaintiff also brought a motion for reconsideration based on the theory that Conway’s coverage had a thirty-five day grace period. The federal government mandates that authorized carriers must assume full financial responsibility for any leased vehicles. The government requires carriers to add the form MCS-90 endorsement to their insurance policies. That endorsement specifies that coverage will remain in effect continuously until terminated. The endorsement further requires a thirty-five day grace period after the termination of the insurance policy (and not after termination of the lease). Ross v. Wall Street Systems, et al., United States Court of Appeals Sixth Circuit Decision, Dated March 14, 2005, Docket Number 04-5051.

Recommendation – This office recently encountered a situation which was directly influenced by the mandatory financial responsibility requirements of 40 CFR §387.1. In that particular case, Defendant trucking company’s insurer denied coverage because the vehicle which was involved in the accident was not specifically listed as a covered vehicle on the declarations sheet. When it was brought to the insurance company’s attention that pursuant to ICC Regulations, it was required to assume full financial responsibility for any leased vehicles (scheduled or unscheduled), the insurer reluctantly agreed to provide a defense, thereby eliminating the uninsured motorist claim which had been filed against Plaintiff’s insurer. The trucking company’s own insurance agent was a valuable source of information, proving that contact with potential witnesses may assist in eliminating a needless claim.

Facts – Megan Woods was backing her car out of Defendant’s driveway when a motorcycle driven by Plaintiff’s decedent struck the car. Decedent died from injuries sustained during the accident. Plaintiff’s Estate alleged that Defendant’s failure to maintain the vegetation on their property contributed to the accident because the vegetation obstructed the views of both drivers. The trial court granted summary disposition in favor of Defendants, concluding that Defendants had no duty to maintain the vegetation on their property that was within the public right-of-way easement. The trial court also concluded that Defendants had no duty to maintain naturally occurring vegetation.

In upholding the trial court’s decision, the Michigan Court of Appeals indicated that the right to recover for a condition or defect of land requires the presence of both legal possession and control of the property. Land owners of property abutting a street are presumed to own fee title to the property out to the center of the street, subject to the public right-of-way easement. The public right-of-way that results from the establishment of a public highway is presumed to be sixty-six feet in width. The owner of the fee subject to an easement may rightfully use the land for any purpose not inconsistent with easement owner’s rights. However, the easement owner, rather than the owner of the fee subject to the easement, has a duty to maintain the easement in a safe condition so as to prevent injuries to third parties. The trial court properly held that Defendants had no duty to remove the vegetation from their property to the extent that it was in the public right-of-way easement.

The Court did not address Plaintiff’s assertion that Defendants had a duty to maintain their property beyond the public right-of-way easement because the automobile driver only stopped to check for traffic from a point that was within the public right-of-way.

The Court did note that a land owner may be liable for injuries sustained on abutting property if the land owner physically intruded into the property or committed an act that created a hazard or increased an existing hazard. It was determined that any mowing in this case did not increase the vegetation, create new vegetation, or create or increase the hazard to passers by. Defendant’s occasional mowing was not an exercise of possession and control which warranted the imposition of a duty upon them. Pappas v. Yake, Michigan Court of Appeals Unpublished Decision Dated March 10, 2005, Docket Number 252438.

Recommendation – This situation may occur more frequently than one might expect, especially in rural areas. When investigating a claim involving obstruction of vision by a land owner, some cooperation may be sought through the local county road commission. That entity would in all likelihood have access to surveys which would establish the location of easements and rights-of-way.

Facts – Plaintiffs were involved in a motor vehicle collision. Stallworth did not seek medical attention immediately following the accident. Jones went to the emergency room complaining of neck pain that day, but was found to have full range of motion in her neck. Stallworth and Jones treated with various physicians and participated in physical therapy following the accident, and for a time had some unspecified restrictions on their activities.

In affirming the trial court’s grant of summary disposition, the Court of Appeals noted that although a physician had diagnosed muscle spasm and although Plaintiffs had claimed unspecified restrictions on their activities, no evidence showed that those restrictions lasted longer than a few months. Plaintiffs indicated that after the accident, they did not engage in recreational activities as they had prior to the accident, and Stallworth indicated that he no longer did occasional work as a painter or a plasterer. There was no evidence which showed that any physician placed restrictions on either Plaintiff’s ability to work or engage in recreational activities. The Court went on to observe that self-imposed restrictions are not sufficient to create the existence of a serious impairment of body function. Stallworth, et al. v. Coleman, Michigan Court of Appeals Unpublished Decision Dated March 15, 2005, Docket Number 251254.

Recommendation – In this case, it was obvious that Plaintiffs had failed to produce any evidence in opposition to Defendant’s motion for summary disposition, creating an issue of fact as to whether Plaintiffs’ injuries affected their general abilities to lead their normal lives. A thorough investigation of Plaintiff’s capabilities should be made in all cases where a serious impairment of body function has been claimed.

Facts – In this action for PIP death benefits, the trial court granted summary disposition in favor of Plaintiff, concluding that there was no genuine issue of material fact that the decedent’s heart failure was precipitated by his pushing his automobile one-half mile after it ran out of gas, and therefore, decedent’s death arose from his ownership, operation, maintenance, or use of a motor vehicle. Plaintiff alleged that the decedent died of a heart attack triggered by the exertion of pushing his motor vehicle to a gas station. Defendant claimed that the cause of death listed on the death certificate (arteriosclerotic coronary disease), established a question of fact whether the decedent died from a pre-existing condition, not from the operation or use of a motor vehicle.

The Court felt that while the evidence did not preclude a finding that exertion from pushing a car aggravated the decedent’s condition and caused death when death was not previously imminent, evidence attributing the decedent’s death to an ongoing disease, rather than an acute event, established factual support for Defendant’s theory that the decedent may have died of a pre-existing condition that was only fortuitously linked to his using an automobile. If the injured person’s presence in the automobile is merely fortuitous, or there is no causal nexus between the injury and the ownership, maintenance, or use of the motor vehicle, then recovery is not available. Rashid v. Farmers Insurance Exchange, Michigan Court of Appeals Unpublished Decision Dated March 15, 2005, Docket Number 251543.

Recommendation – In this particular case, there was also evidence that the decedent experienced symptoms that were inconsistent with a heart attack after pushing his vehicle. Viewed in a light most favorable to Defendant, the evidence raised a question of fact whether there was a sufficient nexus between Decedent pushing his car and his subsequent heart failure. Where there may be more than one explanation for an individual’s claimed injury, a record review by a competent specialist may be in order.