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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 Unpublished Decisions (or those which have not been published as of the date of newsletter distribution) will be cited by Appellate Slip Opinion number.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 – This case involved a dispute between two No-Fault insurers about responsibility for payment of Defendant’s PIP benefits. The injured Defendant was in a car accident while driving a vehicle owned by Sunrise (insured by Auto Owners). He "chased cars" for Sunrise, which is a used car dealership. Defendant stated that he had chased cars for five different companies and typically accepted work from the company which called first. The drivers were paid a flat fee, depending on the trip distance, and all drivers were paid the same fee. Sunrise did not withhold any taxes from Defendant’s checks, did not provide him with benefits, and gave him a 1099 tax form at the end of each year.

The Trial Court ruled that Defendant was an employee of Sunrise for purposes of MCL 500.3114(3). That section indicates that an employee who suffers accidental bodily injury while an occupant of a motor vehicle owned and registered by the employer, shall receive personal protection insurance benefits from the insurer of the furnished vehicle.

In applying the economic reality test, the following four factors were considered by the Court of Appeals:

(1)     Control of the workers duties;

(2)     Payment of wages;

(3)     Right to hire, fire and discipline; and

(4)     The performance of the duties as an integral part of the employers business toward the accomplishment of a common goal.

Auto Owners contended that Defendant was a mere independent contractor. After considering the circumstances as a whole, the Court of Appeals felt that the applicable facts lacked an employer-employee relationship. State Farm Mutual Automobile Insurance Company v. Houghtaling and Auto Owners Insurance Company, Michigan Court of Appeals Unpublished Decision Dated January 31, 2006, Docket Number 256815.

Recommendation – Where (as in this case), the key question involves an employment relationship, it is important to analyze all aspects of the party’s financial dealings.

Facts – In September 1998, eight-year-old Aris Hatcher was riding a bicycle in Detroit when an uninsured motorist struck her. She sustained head trauma, causing seizures and convulsions. In May 2004, Aris Hatcher applied for PIP benefits through the Assigned Claims Office, which assigned her claim to State Farm. State Farm denied the claim, invoking the one-year Statute of Limitations found in MCL 500.3145(1).

Litigation was filed by Hatcher. The Trial Court denied State Farm’s motion for summary disposition.

In reversing the lower court, the Michigan Court of Appeals adopted their prior holding in Cameron v. Auto Club Insurance Association, 263 Mich App 95 (2004). That Court found that because MCL 500.3145 is not contained in the Revised Judicature Act, the savings provision of MCL 600.5851(1) does not apply to No-Fault actions. Hatcher v. State Farm Mutual Automobile Insurance Company, 269 Mich 596.

Recommendation – In general, if a person who is entitled to bring an action is under eighteen years of age or is insane at the time the claim accrues, the person shall have one year after the disability is removed through death or otherwise to bring an action, although the period of limitations has run. As illustrated above, it is important to remember that a tolling or saving provision may be limited in its application.

Facts – Plaintiff was involved in an automobile accident. He was 65 years old at the time and had been receiving Social Security Disability benefits for approximately fourteen years due to severe scoliosis and degenerative arthritis of the lumbar spine. Following the accident, Plaintiff complained of pain in the lower back, knees and legs. He obtained temporary relief from epidural steroid injections. It was claimed that the accident exacerbated or aggravated his pre-existing condition and pain.

Plaintiff also asserted that because of the increase in his pain, he required a cane to walk and could not walk long distances; he required assistance to fully complete certain household tasks, such as cleaning the floors, laundry, and cooking; he required a device to put on his socks and was unable to tie his shoe laces; he was no longer able to hunt and fish as often; he was no longer able to shop or visit friends; and slept poorly and could only lay in one position.

The Trial Court granted summary disposition in favor of the defense, finding that the alleged injury did not affect Plaintiff’s general ability to lead his normal life. In upholding that decision, the Court of Appeals found that Plaintiff had suffered significant pain before the accident. His current impairment was claimed to be an aggravation or exacerbation of an existing condition and pain, the extent of which was difficult to quantify. Self-imposed, rather than physician imposed restrictions based on pain are not sufficient to establish residual impairment. Plaintiff presented no evidence that the restrictions on his hunting, fishing, shopping, or socializing activities were anything other than self-imposed. At the time of his deposition, Plaintiff admitted that he was still able to hunt small game, drive his own vehicle, cook, clean his apartment (except the floors), do his own grocery shopping, and wash half his laundry. While the Court felt that some aspects of Plaintiff’s entire normal life might be interrupted by the aggravation or exacerbation of symptoms, the course or trajectory of his normal life had not been affected by these slight changes. Therefore, his general ability to lead his normal life was not affected. Waltz v. Storey, Michigan Court of Appeals Unpublished Decision Dated January 24, 2006, Docket Number 265145.

Recommendation – In this particular case, Plaintiff had utilized a cane pre-accident and also complained to treating physicians that he was unable to perform some activities because of back pain. The Court felt that any claimed reduction in pre-accident activities was minor at best. It would appear as if pre-accident medical records were a significant help to the Court in arriving at its decision.

Facts – This dispute stemmed from a failed land contract. The Trial Court had dismissed Plaintiff’s claim against one of the Defendants. The remaining Defendant filed a motion to allow the filing of a notice of non-party fault with respect to the dismissed Defendant. The lower Court denied the motion.

In reversing that decision, the Michigan Court of Appeals held that the statutory provision at issue (MCL 600.6304[1][b]) allows for the identification of a non-party who may be at fault. However, the fault of a non-party cannot be considered unless the Defendant gives notice as provided in MCR 2.112(K). Where the notice is filed within 91 days after the first responsive pleading, the party need not obtain the Court’s approval. It is only where the party seeks to file a notice after this period, that the party must obtain the Court’s permission. The limited grounds for denying a motion to file a notice of non-party fault were not present in this case. The need for filing a notice was not apparent until Plaintiff’s claims against co-Defendant were dismissed. There was no basis for concluding that the late filing would result in unfair prejudice to Plaintiff, because Plaintiff was aware of the potential liability of co-Defendant. Wilson v. Henry, Michigan Court of Appeals Unpublished Decision Dated February 9, 2006, Docket Number 256222.

Recommendation – As the Court indicated, even though a dismissed party’s responsibility for damages could be litigated by way of a separate cause of action for contribution or indemnification, the statutory Tort Reform provisions and court rule do not indicate that their mandates are affected by the availability of a claim for contribution. Contrary to the Trial Court’s ruling, the availability of a separate cause of action for contribution or indemnification between a party and a non-party, is not a basis for denying a motion for leave to file a notice of non-party fault. Such a notice should be filed whenever the facts warrant.

Facts – Plaintiff minor was injured while riding his scooter on Defendant’s property. He had used a concrete block which was propped up over the curb in the driveway next door to his mobile home, as a ramp for his scooter. The boy was injured when he attempted to ride his scooter over the concrete block. Plaintiff was seven years old at the time.

In upholding the Trial Court’s grant of summary disposition in favor of the defense, the Michigan Court of Appeals reiterated the fact that land owners do owe a heightened duty of care to minor invitees. Minors are held only to the standard of care of a "reasonably careful minor". A Court must consider whether a dangerous condition would be open and obvious to a reasonably careful minor; that is, whether the minor would discover the danger and appreciate the risk of harm.

In this case, there was no dispute that the concrete block was an open and obvious condition. A reasonably careful minor would know that the concrete block in the driveway next door was not intended to be used as a ramp and that to do so, would impose some danger. The concrete block at issue was not "effectively unavoidable", did not impose a "severe risk of harm", nor did it constitute an attractive nuisance. Westfall v. Commerce Meadows, et al., Michigan Court of Appeals Unpublished Decision Dated January 31, 2006, Docket Number 255953.

Recommendations – When investigating a claim of this type, it is also important to determine whether the Defendant had knowledge of the condition causing the injury. The condition should be well documented and photographs taken for future use in determining whether same may be covered by the open and obvious doctrine.

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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