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 Unpublished Decisions (or those which have not been published as of the date of newsletter distribution) will be cited by Appellate Slip Opinion number.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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On December 8, 2005, the Michigan Supreme Court reversed the judgment of the Court of Appeals in the published case of McKim v. Forward Lodging, Inc., 266 Mich App 373 (2005).

On December 8, 2005, the Michigan Supreme Court reversed the judgment of the Court of Appeals in the published case of McKim v. Forward Lodging, Inc., 266 Mich App 373 (2005). This case was previously discussed in our June 2005 Newsletter. The Supreme Court found that Plaintiff (a paramedic) was not an invitee upon Defendant hotel’s premises because Defendant did not derive a business or commercial benefit from Plaintiff’s provision of medical services on its property. Moreover, the hazard giving rise to Plaintiff’s injuries (ice and snow) was open and obvious and there was no special aspect present.

This case was handled by our office, and is significant from the respect that a paramedic will not be considered to be an invitee while providing emergency medical services.

In addition to the above, the Michigan Court of Appeals approved for publication, the previously Unpublished Decision of Mallison v. Scribner, et al., which we reported in our September 2005 Newsletter. In that case, the Court held that if a Plaintiff chooses to drink and become intoxicated, and chooses to ride with an intoxicated driver, the Plaintiff is 50% or more the cause of the accident that occurs and the Defendant is entitled to the absolute defense provided by MCL 600.2955a(1).

Facts – Plaintiff was passing through Defendant’s neighborhood when he saw a fire. Under the mistaken belief that the Defendant’s garage was the fire’s point of origin, he ran onto Defendant’s property to warn them of the emergency. While there, Plaintiff was bitten by one of Defendant’s dogs. He sought damages under the Dog Bite Statute. (MCL 287.351). The Trial Court agreed that Plaintiff was a trespasser and dismissed the action. In reversing the lower Court’s Decision, the Michigan Court of Appeals held that permission to enter land may be implied where the owner acquiesces in the known, customary use of property by the public. Permission may be implied by words or conduct. Prevailing customs and well-established usages of a civilized community entitle everyone to assume that a possessor of land is willing to permit him to enter for certain purposes until a particular possessor expresses unwillingness to admit him. There is a cherished American custom of helping a neighbor in need. The volunteer is entitled to assume that he or she has permission to enter onto the land. Plaintiff was acting as a good Samaritan. Durecki v. Alcock, Michigan Court of Appeals Unpublished Decision Dated November 17, 2005, Docket Number 263640.

Recommendation – The Court made clear the fact that its ruling did not bear on any issues which might exist regarding provocation. The holding would presumably have been different if Plaintiff suffered the dog bite after he was told to leave the property. During an investigation, one should document as complete a chronology as possible in order to determine claimant’s status upon the premises.

Facts – This case arises from a hit and run automobile accident. A claim for No-Fault benefits was filed approximately forty days post accident. Fourteen months post accident, Plaintiff sent a letter through legal counsel, seeking uninsured motorist benefits. Defendant denied Plaintiff’s claim because a year had passed since the incident occurred, and the claim was barred under the terms of the insurance policy.

The Trial Court granted Defendant’s motion for summary disposition on the grounds that the insurance contract was unambiguous and must be enforced as written. Further, the Court found that Plaintiff’s claim for No-Fault benefits was not a specific claim for uninsured motorist coverage, and declined to read a judicial tolling provision in the contract.

In affirming the Trial Court’s ruling, the Court of Appeals held that the case of Rory v. Continental Insurance Co., 473 Mich 457 (2005) was applicable. In that case, the Supreme Court held that uninsured motorist coverage was optional. Accordingly, the rights and limitations of such coverage are purely contractual and are construed without reference to the No-Fault act. Unless the contract violates the law, or a traditional defense to the enforcement of a contract applies, the judiciary should not impose its own idea of "reasonableness". The one year time limitation contained in the insurance policy did not violate the law.

Additionally, Plaintiff’s claim for No-Fault benefits was insufficient to put Defendant on notice of the instant claim for uninsured motorist benefits. The section of the policy entitled "conditions" clearly instructed on the duties of the insured under each type of coverage. Parsons v. Farm Bureau Insurance Co., Michigan Court of Appeals Unpublished Decision Dated November 29, 2005, Docket Number 255309.

Recommendation – When dealing with optional coverages, a strict interpretation of the policy should be made before coverage is granted or denied. In the event a specific type of notice is required, a determination should be made as to whether all conditions have been met.

Facts – Plaintiff filed suit alleging that Defendant unreasonably refused to pay PIP benefits. Defendant eventually filed a motion to compel independent medical examinations pursuant to MCL 500.3151. Defendant alleged that it had made many attempts to schedule the Plaintiff to undergo medical examinations, but the Plaintiff declined unless Defendant agreed to enter into a stipulation with numerous limitations. Defendant claimed that it had a statutory right to examine Plaintiff and that the No-Fault Act did not authorize the imposition of conditions on the medical examinations. Plaintiff responded by arguing that MCR 2.311 allows the Trial Court to impose such conditions and that the conditions Plaintiff sought to impose were reasonable and did not prejudice the Defendant.

The Trial Court allowed the medical examinations but imposed several conditions citing the Court Rule. Those conditions included allowing Plaintiff’s counsel to be present during the examination, allowing the examination to be videotaped, and precluding Plaintiff from giving Defendant’s examiners an oral account of the accident or her medical history.

The Michigan Court of Appeals concluded that a "reasonableness" standard should be applied. The right created by statute is not intended to give the parties a right to determine how to proceed with discovery in a civil action. Rather, the Legislature has expressed a plain intent in MCL 500.3159 to give the Trial Court authority to issue a discovery order. Defendant failed to establish that the Trial Court abused its discretion. Muci v. State Farm Mutual Automobile Insurance Co., 267 Mich App 431 (2005).

Recommendation – In his dissenting Opinion, Judge Saad stated that Plaintiff had effectively refused to submit to the examination required by §3151 by making various demands. The Legislature obviously chose not to impose these types of restrictions. Rather, it provided for remedies which include the imposition of penalties on No-Fault insurers for overdue payments if the insurer refuses to pay benefits after reasonable proof of loss is submitted. Thus, to the extent a claimant has a grievance or concern that an insurer is abusing the medical examination process simply to delay the payment of benefits, the Legislature provides substantial remedies that contain various disincentives for an insurer to attempt to abuse that process. We will continue to monitor this case in the event the Michigan Supreme Court chooses to weigh in on this particular issue.

Facts – Plaintiff, a passenger on Defendant’s motorcycle, was injured after Defendant collided with another vehicle. At issue was whether Plaintiff must meet the No-Fault "serious impairment" threshold to recover non-economic damages from Defendant. The Trial Court ruled that she did and that, because Plaintiff’s injuries did not meet the threshold, Defendant was entitled to summary disposition.

In reversing the lower Court ruling, the Michigan Court of Appeals held that a motorcycle is not a "motor vehicle" under the No-Fault Act. As such, where Plaintiff seeks recovery in tort from the driver of a vehicle other than a "motor vehicle" the limitations of §3135 are inapplicable. Williams v. Whitfield, Michigan Court of Appeals Unpublished Decision Dated November 17, 2005 Docket Number 254906.

Recommendation – Because §3135(3) only abolished tort liability arising from the use of a motor vehicle for which insurance is required, and because a motorcycle is not a "motor vehicle", it is not required to be insured under §3101. In this type of situation, a claimant may recover for personal injuries without proving a threshold injury.

Facts – This action arose from an accident which occurred while Defendant and the Decedent were cutting trees on Defendant’s property. The Decedent was hit with a tree branch, which eventually led to his death. The Trial Court granted Defendant’s motion for summary disposition, holding that the danger in cutting trees with a chain saw was open and obvious.

In affirming the Trial Court’s decision, the Court of Appeals recognized that the dangerousness of using a chain saw to cut down a tree, which then immediately falls to the ground, is well known. It is also well known that cutting a tree down may cause one of its branches to fall loose or become tangled with other branches. The danger presented in this situation was open and obvious to an average person with ordinary intelligence.

In the dissenting opinion, Judge White felt that Plaintiff had set forth a claim for general negligence. Zelenko v. Stites, Michigan Court of Appeals Unpublished Decision Dated November 29, 2005 Docket Number 254691.

Recommendation – In this case, although Decedent’s accident was unfortunate, it was not "effectively unavoidable", and therefore, did not pose a "uniquely high risk of harm" as required by Lugo v. Ameritech Corp., Inc., 464 Mich 512 (2001). Although most case law principally addresses the open and obvious doctrine in the context of dangerous conditions, the doctrine has also been applied to dangerous activities. Pre-suit investigation should take the foregoing into consideration.

Facts – This case involved a slip and fall accident in the parking lot of a restaurant. The Trial Court granted Defendant’s motion for summary disposition, finding that the dangerous condition involved was open and obvious so as to prevent recovery. Plaintiff argued that the slippery condition was not open and obvious, and that even if it was, it presented "special aspects" that rendered it unreasonably dangerous in spite of its open and obvious nature.

In upholding the Trial Court’s decision, the Court of Appeals reiterated the fact that building code violations are insufficient to impose a legal duty of care on an invitor.  Desloover v. Ryan’s Steak House, Unpublished Michigan Court of Appeals Decision Dated November 22, 2005 Docket Number 255660.

Recommendation – Keep in mind that the Court of Appeals has previously held that the open and obvious doctrine cannot be used to avoid a specific statutory duty. However, where a claim is based solely on violation of building code regulations, the "open and obvious" doctrine remains a valid defense.

Should you have any questions or comments regarding this or any of our newsletters, please feel free to contact us by voice 989.799.3033, e-mail jtc@saginaw-law.com or write to Collison & Collison, P.C., 5811 Colony Drive, North, P.O. Box 6010, Saginaw, MI 48608-6010.

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