Facts – In these consolidated appeals, Plaintiffs filed suit against their insurer to recover underinsured motorist benefits.  In Docket Number 260876, Plaintiff filed suit in Genesee County Circuit Court as a result of a motor vehicle accident occurring in Elkhart County, Indiana.  Subsequently following its Answer, Pioneer State Mutual of Michigan moved for a change of venue to Kent County, asserting MCL 600.1629 applied.  The Trial Court denied Defendant’s motion because the action sounded in contract.

In Docket Number 261397, Plaintiffs filed suit against Pioneer Mutual Insurance Company in Ingham County Circuit Court to recover underinsured motorist benefits as a result of an accident occurring in Eaton County, Michigan.  Again, Defendant moved for a change of venue to Eaton County, asserting that under MCL 600.1629, venue was proper in Eaton County.  The Trial Court also denied Defendant’s motion for the same reason.

The sole issue presented to the Court of Appeals was whether venue was properly determined pursuant to MCL 600.1621 or MCL 600.1629.  In both cases, Defendant argued that MCL 600.1629(1) governed the determination of venue because Plaintiffs were actually seeking to recover damages for personal injuries.  The Court noted however, Plaintiffs’ complaints were not based upon traditional tort theory.  Plaintiffs’ damages, in these breach of contract actions, by definition, were not damages for "personal injury".  The Defendant’s obligation to Plaintiffs did not arise from the fact that Plaintiffs suffered injuries from the motor vehicle accident, but rather, solely from the fact that the other vehicle involved in the accident causing the injuries was underinsured.  Therefore, Plaintiffs sought to recover the benefit of their bargain with Defendant, less amounts received from the underinsured motorist’s own insurance coverage.  The Court held that Plaintiffs were not seeking to hold Defendant responsible for their injuries, based upon Defendant’s fault in causing those injuries.  Their complaints are thus not based upon "another legal theory seeking damages for personal injury".  As a result, MCL 600.1621 applied.  Ferguson v Pioneer State Mutual of Michigan, Docket Number 260876 and Ferree v Pioneer State Mutual Insurance Company, Docket Number 261397, Michigan Court of Appeals Decision Approved for Publication Dated November 21, 2006.

Recommendation – Separate underinsured actions may be brought in any county in which the Defendant resides, has a place of business, conducts business, or in which the registered office of the Defendant corporation is located.

NEGLIGENCE

Facts – Plaintiff, a minor, was struck in the eye by an unknown, unrecovered object which she claimed was ejected from a lawn mower being operated by Defendant Minish.  Mr. Minish was providing a service to the property owners, the Kovich’s.  Defendants moved for summary disposition, which the Trial Court granted.

On appeal, Plaintiff first argued that the Trial Court erroneously concluded that there was insufficient evidence of causation.  The Court of Appeals determined that issue need not be addressed due to the fact that summary disposition was nevertheless warranted because Plaintiff’s arguments failed in other respects.  The Court noted that no Michigan authority had specifically addressed the degree of care a person mowing a lawn must exercise.  The Court looked for guidance in other jurisdictions. In Gore v Ohio Dep’t of Transportation, 119 Ohio Misc 2d 138, 141 (2002), the Ohio Court reasoned that removing debris from a mowers path is a routine precaution, which any careful contractor could be expected to take in the exercise of ordinary care.  Thus, the Ohio Court persuasively argued that inspecting a mowers path is what ordinary care requires. Adopting that argument, the Court of Appeals determined there was insufficient evidence that Defendant Ashton failed to exercise this care.  According to the evidence, Ashton inspected the lawn for a couple of minutes prior to cutting.  Plaintiff also admitted that Ashton was not doing anything unusual at the time of the incident.  In addition, it did not appear that he was in a hurry and he was watching where he was walking.  Plaintiff also admitted in her deposition that Ashton never acknowledged that he had mowed over anything.  Therefore, Ashton exercised ordinary prudence and was not required to exercise extraordinary care.

Plaintiffs next argued that the Trial Court erred in granting summary disposition as to the premises liability claims against the premises owners.  The Court of Appeals rejected that argument due to the fact that there was no causal connection and also due to the fact that the Kovich’s knew nothing about the lawn mowing equipment that Ashton would be using. Campbell v Kovich, Michigan Court of Appeals Decision Approved for Publication Dated December 14, 2006, Docket Number 269876.

Recommendation – A person operating a lawn mower is only required to exercise ordinary care.

Facts – Plaintiff was a tenant of an apartment building who slipped and fell on an accumulation of snow and ice as he attempted to reach his car in the parking lot.  Plaintiff alleged Defendant breached its common law duty to protect and warn Plaintiff and its statutory duty as a landlord under MCL 554.139(1).  Defendant then moved for summary disposition claiming Plaintiff’s common law claims were barred because the danger was open and obvious and Plaintiff could not rely on MCL 554.139(1) because the statute did not apply to natural accumulation of ice and snow.  The Trial Court subsequently granted Defendant’s motion.

On appeal, Plaintiff argued that the open and obvious danger doctrine did not bar his claim that Defendants violated a statutory duty imposed.  Plaintiff relied on Benton v Dart Properties, Inc, 270 Mich App 437 (2006) which explicitly held that the open and obvious danger doctrine did not bar Plaintiff’s claim against Defendant for violating its statutory obligation.  However, in that case, Plaintiff slipped and fell on a sidewalk.  In this case, the Court relied upon Teufel v Watkins, 267 Mich App 425 (2005) which involved a Plaintiff who fell in a parking lot of an apartment complex.  In that case, the Court reasoned that the landlord’s duty to remove snow and ice from the parking lot was not controlled by MCL 554.139(1).

The Court of Appeals stated that: "Despite our disagreement with Teufel, it is controlling, and we must follow it as binding precedent".  Although Plaintiff relied on a footnote in Teufel, the Court noted that it was generally ill-advised to follow and render a holding based upon a footnote. The Court noted that if the previous case intended to create a rule of law regarding a landlord’s duty to remove snow and ice under MCL 554.139(1)(a) and (b), it should have done so within the body of the opinion rather than in a footnote. Therefore, the open and obvious doctrine applied and summary disposition was proper. Allison v AEW Capital Mgt., LLP, Michigan Court of Appeals Decision Approved for Publication November 28, 2006, Docket Number 269021.

Recommendation – When determining whether a landlord has a statutory duty, careful attention must be made as to where Plaintiff actually fell.