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 Unpublished Decisions (or those which have not been published as of the date of newsletter distribution) will be cited by Appellate Slip Opinion number.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 State Bar of Michigan Civil Procedure and Courts Committee has proposed an amendment to the Case Evaluation Court Rule which would make it clear that a first party no-fault case evaluation award is limited to expenses claimed in the action that were incurred and disputed prior to the case evaluation hearing. The proposed amendment would also indicate that a judgment based on mutual acceptance of the award does not dispose of any claims in the action that seek declaratory relief for future benefits or for reimbursement of expenses that were incurred and disputed after the case evaluation hearing.

Comment – In the committee’s view, the most troublesome problem arises in cases where claims for declaratory relief for future benefits are involved. In Cam Construction v. Lake Edgewood Condominium Association, 465 Mich 549 (2002), the Supreme Court held that all claims in an action are disposed of by mutual acceptance of the case evaluation award. As a result, the committee felt that it was unwise, if not impossible for a plaintiff to accept case evaluation when declaratory relief is sought. To do otherwise, could result in dismissal of plaintiff’s entire claim and the loss of future benefits. Alternatively, plaintiffs were requesting (and case evaluators were cooperating in issuing) non-unanimous awards. Both of these practices were thought to defeat the purpose of case evaluation and render the process meaningless, as the desired purpose of case evaluation is to resolve matters.

We will keep you apprised as to any and all developments regarding the above.

Facts – Both parties rejected the unanimous case evaluation award in Plaintiff’s favor. The trial court denied defendant’s motion for summary disposition. Defendant appealed and the Court of Appeals affirmed. The Supreme Court granted defendant’s application for leave to appeal and reversed, determining that the natural accumulation doctrine precluded plaintiff’s claim.

In addition to moving on remand for entry of an order granting summary disposition, defendant also requested case evaluation sanctions under MCR 2.403(O). Defendant sought various sanctions including appellate costs and attorney fees.

The Supreme Court concluded that this particular Court Rule is "trial-oriented". The rule itself does not provide for recovery of appellate attorney fees or costs. Haliw v. City of Sterling Heights, 471 Mich 700 (2005).

Recommendation – Although appellate costs and attorney fees were not deemed recoverable in this case, the lower court did award sanctions for trial court fees and costs. As such, it is very important to document all efforts and expenditures in order to maximize recovery.

Facts – Plaintiff suffered injuries from a traffic collision. She recovered but was left with a scar above her right eye. It was described as being 1.25 inches long, located near the eyebrow. The trial court did not explicitly rule on the permanence of that disfigurement, most likely because the matter was not seriously disputed and because scars are commonly known to be permanent in nature.

In upholding the trial court’s grant of defendant’s motion for summary disposition based upon lack of permanent serious disfigurement, the Court of Appeals held that although Plaintiff’s scar was a permanent disfigurement, it was not a serious one for purposes of the No-Fault Act. Goodwin v. Sturdevant, et al., Michigan Court of Appeals Unpublished Decision dated January 25, 2005, Docket number 250280.

Recommendation – In analyzing whether scarring may meet the threshold requirement of permanent serious disfigurement, one should give the statutory word "serious" the weight it demands. In all likelihood, the residual effect of scarring will differ with the individual.

Facts – In this case, Plaintiffs contended that the carpeting and tile were the same or a similar dark color. The Court of Appeals, in affirming the lower court’s grant of defendant’s motion for summary disposition, found that the analysis of whether a danger is open and obvious does not revolve around whether steps could have been taken (i.e. painting contrasting colors) to make the danger more open or more obvious. Rather, the equation involved is whether the danger, as presented, is open and obvious. Plaintiff admittedly knew the condition of the floor and acknowledged in her deposition that one day prior to the incident, she noticed a piece of rubber cuff running from the carpeting up to the tile at the reception desk. She noticed that the tile was slightly higher than the carpeting and feared that she may turn her ankle were she to pass over it.

On the day of the incident, Plaintiff was looking ahead of her as she was walking. She acknowledged that after she fell, she could see the difference between the tile and the carpeting. Plaintiff admitted that the lighting in the hallway was adequate. Additionally, the corridor in which the incident occurred was the same corridor that Plaintiff and her colleague used on a previous occasion without incident. Given the facts, the court felt that an average person of ordinary intelligence would have been able to discover the tile lip upon casual inspection.

Additionally, there were no special aspects which would have made the area unreasonably dangerous. Sovis v. Hyatt Corporation, Michigan Court of Appeals Unpublished Decision dated January 27, 2005, Docket Number 250859.

Recommendation – In this particular case, the court felt that the subsequent testimony of the sole witness to the incident was extremely important in establishing the application of the open and obvious doctrine. Where possible, eyewitnesses should be thoroughly interviewed to aid in establishing whether the condition was avoidable.

We had previously reported on this case in our November 2003 newsletter.

Facts – Plaintiff alleged stalking by private investigators conducting surveillance. The Michigan Supreme Court granted leave to consider if, and when, such surveillance falls within the safe harbor in the Stalking Statute that exempts "conduct that serves a legitimate purpose". (MCL 750.411h[1][c]). The Court found that Plaintiff failed to establish a genuine issue of material fact that the conduct complained of ever ceased serving a legitimate purpose, notwithstanding the fact that Plaintiff observed the investigators following him. The prior judgment of the Court of Appeals was reversed and the case was remanded to the Circuit Court for entry of summary disposition in Defendant’s favor. Nastal v. Henderson & Associates Investigations Inc., et al, 471 Mich 712 (2005).

Recommendation – This case contains a very good discussion of the term "stalking" under Michigan Civil and Criminal Law. Conduct that is constitutionally protected or that serves a legitimate purpose cannot constitute harassment or, derivatively, stalking. The defendants in this case were licensed investigators, authorized to obtain information. Accordingly, surveillance, when it is conducted to obtain evidence concerning a party’s claim in a lawsuit, is valid and well within the law. As such, surveillance should be utilized wherever appropriate, without the fear of retribution by Plaintiff at some later point in the litigation.

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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