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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 Unpublished Decisions (or those which have not been published as of the date of newsletter distribution) will be cited by Appellate Slip Opinion number.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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Facts – Plaintiff’s decedent, a pedestrian wearing dark clothing, was crossing Lapeer Road, when a vehicle driven by Defendant Justus struck her. The decedent did not attempt to cross the street at a street light or crosswalk. Rather, witnesses testified that she just ran across the road. The location where the accident occurred was not illuminated by street lights. Defendant was traveling with family members to a local fast food restaurant with which she was familiar. Defendant testified that she did not see the decedent until, "she was literally right there."

Other witnesses corroborated the testimony that the location was dark, and that Defendant was not exceeding the speed limit.

Plaintiff filed a Complaint alleging that Defendant was negligent in operating her motor vehicle. The Trial Court granted Defendant’s motion for summary disposition which asserted that Plaintiff could not satisfy the requirements for a negligence claim.

In affirming the lower court, the Michigan Court of Appeals acknowledged that a motor vehicle operator owes a duty to pedestrians to exercise due care that includes following safety rules. However, a person that dashes into the street and strikes the side of a motorist’s vehicle, does not necessarily present sufficient evidence to proceed to a jury on the question of the motorists negligence. A question of fact for jury determination must be demonstrated by admissible, documentary evidence. Plaintiff failed to meet that burden. Additionally, the Court held that Plaintiff’s expert accident reconstructionist had submitted nothing but mere conclusory allegations which were devoid of detail. No information outlining his qualifications or the foundation for his opinion was offered. Ramey v. Justus, Michigan Court of Appeals Unpublished Decision Dated March 28, 2006, Docket Number 257948.

Recommendation – Typically, the issue of whether a Defendant was negligent, remains a question of fact for jury determination. However, there are some cases where a motion for summary disposition may be appropriate. If a strong argument exists to support a claim of no negligence, such a motion should be considered.

FACTS – Boshaw-Weaver and Buerkel began dating in February of 2001. One year later, Boshaw-Weaver and her father purchased a used Pontiac Sunfire. The insurance policy for the vehicle was in her name alone. On the date in question, Boshaw-Weaver and Buerkel had arrived at a bowling alley for a birthday party for one of her children. While the children were bowling, Buerkel played billiards with his brother and consumed alcohol . After the party ended, Boshaw-Weaver loaded up her car and was preparing to leave, when Buerkel’s brother informed her that he could not locate Buerkel. Defendant then went back inside to look for Buerkel, but was unable to locate him. Upon returning to her car, Boshaw-Weaver found Buerkel sitting in the driver’s seat. He told her that he was upset about the children’s behavior that morning.

Buerkel then told Boshaw-Weaver that he was going to take the vehicle, but she told him that she would not permit it. She was particularly concerned about preventing him from driving while he was upset. Defendant reached into the vehicle through the open driver-side window and attempted to remove the keys from the ignition. Buerkel pushed her away and started the vehicle. Boshaw-Weaver began pounding on the window but Buerkel ignored her. Defendant tried to unlock the doors with her vehicle remote, but Buerkel kept re-locking them Eventually, Boshaw-Weaver was able to get into the passenger side of the vehicle. She told Buerkel to get out, but he refused.

Buerkel then started driving away while the passenger door was still open. Defendant shut the door and began yelling at her boyfriend. She was able to get him to pull into a McDonald’s parking lot where she told him to let her out. When he stopped the vehicle, she attempted to open the door and grab the keys from the ignition at the same time. She was unsuccessful.

Buerkel began driving again as their argument continued to escalate. Ultimately, Buerkel rear-ended Plaintiff’s vehicle.

The facts also indicated that Buerkel had helped to pay for costs associated with the vehicle, including the purchase of gasoline. Boshaw-Weaver had given Buerkel a set of keys so that he could use the vehicle to drive to work and back. She had denied him use of the car on at least one occasion. Buerkel had testified that he always had to ask for permission before using the vehicle.

The Trial Court granted summary disposition in this declaratory judgment action, finding that Buerkel was not using the vehicle with Boshaw-Weaver’s permission at the time of the accident. The fact that she knew that he was driving, did not render her liable under the circumstances.

In upholding the Trial Court, the Court of Appeals found it significant that Boshaw-Weaver had attempted to use force to regain control over Buerkel’s set of keys. It concluded that the Legislature only intended to hold those persons liable, who willingly agreed to the assumption of risk by consenting to someone else’s driving of their vehicle. Auto Club Insurance Co. v. Buerkel, et al., Michigan Court of Appeals Unpublished Decision Dated March 21, 2006, Docket Number 258051.

Recommendation – This case contains a very good discussion of the interplay between the Owner’s Liability Statute and the Financial Responsibility Act. The bottom line is that permission to operate a motor vehicle can be revoked. Any investigation in that regard should focus on the degree to which said revocation was communicated to the driver of the motor vehicle.

Facts – Plaintiff was injured in an automobile accident while driving a Jeep Cherokee that was owned and registered solely in the name of her husband. In fact, her husband was a passenger in the automobile at the time of the accident. The Jeep was uninsured because the husband had stopped paying premiums. Plaintiff normally drove a Ford Escort. Her husband normally drove the Jeep. Plaintiff had however driven the Jeep on at least eight occasions.

Plaintiff notified the Assigned Claims Facility of her claim for PIP benefits. It was assigned to Defendant who denied the claim on the grounds that she was the "owner" of an uninsured vehicle within the meaning of MCL 500.3113. The Trial Court granted summary disposition in favor of Defendant on that basis.

In upholding the Trial Court’s ruling, the Michigan Court of Appeals stated that a person does not need to have had use of a vehicle for thirty days or more in order to qualify as an owner of that vehicle. Rather, the focus must be on the nature of the person’s right to use the vehicle. The undisputed testimony established that Plaintiff had every right to use her husband’s Jeep for a period extending well beyond thirty days. It was accessible to her whenever she needed to use it. The fact that she did not actually use it on a regular basis for a thirty day period was deemed irrelevant. Vucinaj v. Amerisure Insurance Co., Michigan Court of Appeals Unpublished Decision Dated March 21, 2006, Docket Number 264933.

Recommendation – When investigating a claim of this type, one should focus on the individual’s right to use the vehicle as well as its accessibility.

Facts – In the absence of any other known insurer, Plaintiff paid PIP benefits. Plaintiff attempted to contact the motor vehicle operator numerous times, to ask whether he had a No-Fault insurance carrier. More than one year after the accident, Plaintiff finally learned that Defendant did insure the vehicle and was in a higher order of priority. Defendant asserted that the accident was never reported and that it was not aware of it until Plaintiff’s notice was received.

Plaintiff demanded payment from Defendant, arguing that it was entitled to bring this action, either one year after the date of loss or one year after learning of another insurance company, whichever was later. Defendant denied that request on the basis that that claim was barred by the Statute of Limitations.

The Trial Court found that the one-year Statute of Limitations applied and that any amendment of Plaintiff’s complaint would be futile.

In upholding that ruling, the Michigan Court of Appeals found that MCL 500.3145 clearly and unambiguously states the necessary time line of an action for recovery of PIP benefits. Plaintiff’s action was not commenced within one year after the accident. Summary disposition was appropriate. Even if the Plaintiff paid the damages by mistake, its claim is still one of Subrogation and is subject to limitations in §3145. Titan Ins. Co. v. North Point Ins., Co., 270 Mich App 339 (2006).

Recommendation – As illustrated above, "judicial tolling" is no longer a consideration when interpreting the statute of limitations contained in §3145 of the Michigan No-Fault Code. As such, every effort should be made to determine the existence of "other insurance" as quickly as possible.

PREMISES LIABILITY

Facts – This case arose when Plaintiff slipped and fell on an icy sidewalk at Oak Hill Apartments, which was owned and maintained by Defendant. Plaintiff testified that he had seen patchy ice on some of these sidewalks when he left for work. When he returned home from work at about 6:00 p.m., he noticed that the sidewalks were covered with snow. It was dark outside. Plaintiff ultimately fell on ice, severely fracturing his leg.

Plaintiff filed suit alleging that Defendant violated the statutory duty to maintain common areas contrary to MCL 554.139. The Trial Court disagreed and granted Defendant’s motion for summary disposition based upon the open and obvious doctrine.

In reversing the Trial Court, the Court of Appeals held that sidewalks located within an apartment complex, constitute "common areas". As such, a landlord has a duty to take reasonable measures to ensure that sidewalks are fit for their intended use. A genuine issue of material fact was found to exist with respect to whether Defendant’s preventative measures constituted reasonable care in light of weather conditions that day.  Benton v. Dart Properties, Inc., 270 Mich App 437 (2006).

Recommendation – We will continue to monitor this decision. Although the above quoted statute does provide that a lessor keep premises and all common areas fit for the use intended by the parties, the Michigan Supreme Court may wish to address the extent to which that statute will be applied.

This Decision is especially troublesome given a Michigan Court of Appeals Unpublished Decision which was issued on March 21, 2006 (Docket Number 257775) which concluded that under MCL 554.139, an accumulation of snow and ice is not a defect in the premises. As such, that statute does not impose a duty to remove snow or ice and does not prevent a defendant from availing itself of the open and obvious defense. Furthermore, in that case, the sidewalk where Plaintiff slipped was not deemed to be a "portion of her dwelling", even though it was arguably a "common area" of the apartment complex.