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Facts – In this case, Defendants Macak owned two dogs which were being boarded at Defendant, Chiefton Kennels. On June 5, 2003, the dogs escaped and ended up on Plaintiff’s property at a time when Plaintiff was outside on her deck with two cats. Plaintiff observed the two dogs approaching the deck and she yelled at them to scare them away but that the dogs apparently observed one of the cats which ran for the trees. The dogs caught the cat and started to tear it apart. Plaintiff ran barefoot through the woods yelling at the dogs and stuck her fingers in one of the dog’s eyes. She then grabbed the cat and ran for the house while the dogs were jumping for the cat causing gashes in her legs. The dogs then apparently spotted the other cat and caught it. Plaintiff then started to kick the dogs to get the cat loose which resulted in more dog bites.

Plaintiff filed suit against Defendants under the dog bite statute, MCL 287.351. Following discovery, Defendants filed a Motion for Summary Disposition asserting that they were not liable because Plaintiff provoked the dogs into attacking her. Defendants maintained that Plaintiff chased the dog into the woods, stuck her fingers in their eyes, kicked them, and otherwise fought them to save her cats, thus causing the dogs to attack her. Defendants maintained that Plaintiff could not claim lack of provocation relying on her defense of the cats because the cats are personal property. Plaintiff maintained that she had a right to defend her cats against trespassing dogs and thus the actions taken in defense of the cats did not constitute provocation as a matter of law. The trial court agreed with Defendants concluding that Plaintiff provoked the dogs into attacking her and dismissed the case.

On appeal, the parties were directed "to address whether a victim’s reaction to a dog attack on her own property can be considered provocation under MCL 287.351(1)". The court noted that the dog bite statute has consistently been interpreted as creating an almost absolute liability on the dog owner except where there is provocation. The definition of "provocation" does not take into account the intent of the actor, rather, the definition focuses on the nature of the act itself and the relationship between the act and the outcome. Under the circumstances, the court concluded that Plaintiff did not provoke Defendants’ dogs. The dogs came onto Plaintiff’s property unexpectedly and without her permission. The dogs immediately exhibited vicious and aggressive behaviors. Plaintiff’s response to those behaviors resulted in the dogs attacking her. The court held that the dogs were provoked before Plaintiff reacted to their behaviors. Therefore, Plaintiff’s response to the dogs violent behaviors cannot be considered "provocation" within the contemplation of MCL 287.351(1), as a matter of law. Therefore, it was irrelevant that Plaintiff's response may have been in defense of her cats. The court noted that the statute only says: "If a dog bites a person, without provocation . . . ." it does not say "if a dog bites a person, without justified provocation . . . .". Koivisto v Davis, et al., 277 Mich App 492 (2008).

Recommendation – When asserting the defense of provocation in response to the Michigan dog bite statute, MCL 287.351(1) a factual determination must be made whether the dog was provoked before Plaintiff reacted to its behavior.

Facts – In this case, Plaintiff did not hold record title to any vehicle and was residing in his sister’s home. She maintained a no-fault insurance policy issued by Bristol West Insurance Group. Plaintiff also had access to his brother’s vehicle which was insured by Defendant, Auto Club Insurance Association. Plaintiff had permission to drive that vehicle whenever he wanted to and had his own set of keys. Plaintiff’s brother would indicate ahead of time if he needed the car but otherwise Plaintiff could use the car at will. Plaintiff had been using the car off and on since March, 2003. In any event, Plaintiff, the driver of the car, was rear ended at a stop light and was injured. He received treatment from intervening Plaintiffs, Oakwood Hospital and Heritage Hospital. Following commencement of the suit, Bristol argued that Plaintiff should be considered the "owner" of the vehicle under MCL 500.3101(2)(g)(i) because he had use of the vehicle for a period greater than 30 days. Therefore, according to Bristol, Plaintiff was required to maintain insurance on the vehicle under the No-Fault Act. This was despite the fact that Plaintiff’s brother had already insured the vehicle with Auto Club. Given this contention, Bristol maintained that Plaintiff failed to insure the vehicle and was not entitled to collect PIP benefits. The trial court granted summary disposition in favor of Plaintiff against Bristol. The trial court awarded a judgment in favor of Plaintiff in the amount of $41,592.00 and a judgment in favor of Oakwood and Heritage.

On appeal, the court noted that an owner is statutorily defined pursuant to MCL 500.3101(2)(g). There was no dispute that Plaintiff’s brother was considered an owner under the No-Fault Act. The court noted that pursuant to MCL 500.3113(b) Plaintiff would be precluded from PIP benefits if he were an owner of the vehicle. The question presented was whether the vehicle and not Plaintiff had the coverage or security required by MCL 500.3101. The Court held that MCL 500.3113(b) did not preclude an award of PIP benefits to an "owner" of a vehicle, such as Plaintiff, if the vehicle is covered by a no-fault policy. Iqbal v Bristol West Insurance Group, 278 Mich App 31.

Recommendation – According to the foregoing case, an individual who is considered an owner of a vehicle is not required to maintain no-fault coverage if the vehicle is covered by a no-fault policy. Therefore, the individual would be entitled to PIP benefits in accordance with the priority statute.

Facts – In this case, Defendant owned and operated a tanker truck transporting liquefied petroleum gas which apparently struck a guard rail causing it to separate from the tractor. The tanker crashed over the barriers of the roadway below causing it to explode and envelope the road and overpass. In one action, Plaintiff, MDOT brought suit against Defendant’s insurer, Farmland Insurance Company to recover the cost of repairs. Plaintiff was awarded the remaining balance of the policy after the insurer paid monies to other claimants. Plaintiff then brought suit against Defendant in this action seeking the remainder of monies paid for the repair. Following discovery, Defendant filed its Motion for Summary Disposition. The trial court granted the motion opining that the No-Fault Act controlled.

On appeal, Plaintiff asserted that federal law requires that transporters of hazardous materials carry at least $5 million of financial responsibility to satisfy any liability for property damage. Plaintiff contended that the adoption of the federal financial requirements for the transportation of hazardous materials and the Motor Carrier Safety Act created an exception to the No-Fault’s Act’s abolition of tort liability with respect to transporters of hazardous materials. The court noted in Michigan Department of Transportation v Initial Transport, Inc., 276 Mich App 318 (2007) that the $5 million financial responsibility as adopted in the Motor Carrier Safety Act is an exception to the $1 million cap on property damages payable under one policy. In this case, because Defendant was transporting liquefied petroleum it was required to maintain $5 million in security to satisfy any liability for public liability. The court also addressed the issue of when Plaintiff seeks property protection benefits arising out of ownership, operation, or use of a motor vehicle, whether the insurer, and not the insured is a proper party Defendant to the action. The court looked to 49 CFR 387.15 of the Federal Code which required the $5 million level of responsibility which indicates the insurer agrees to pay within the limits of liability, a final judgment recovered against the insured for public liability. That endorsement language provided that the insurer agrees to pay any final judgment entered against the insured for negligence involving the vehicle subject to the federal financial responsibility requirements. Therefore, in order to recover, a final judgment must be entered against the insured or must first proceed against the insured. The court held "we conclude that to recover the security required under the MCSA the transportation of hazardous materials, a Plaintiff must proceed with a negligence action against the insured."

The court then addressed the issue of res judicata and collateral estoppel. The doctrine of res judicata, commonly known as claim preclusion is employed to prevent multiple suits litigating the same cause of action. The doctrine bars a subsequent action when (1) the prior action was decided on the merits, (2) the matter in the second case was, or could have been, resolved in the first, and (3) both actions involve the same parties or their privies. The party did not dispute that the first action was decided on the merits. The court did not believe that the issue of Defendant’s negligence could or should have been resolved in Plaintiff’s no-fault action against Farmland. MCL 500.3030 provides that the issue of insurance should not be addressed in a no-fault action against the insured. Secondly, the court noted that the issue in Plaintiff’s lawsuit against Farmland for no-fault damage was whether Farmland alone, or Farmland and another insurer were responsible for damages payable under the No-Fault Act. In the present action, the concern was whether Defendant was negligent in its operation of the tanker truck. The facts and evidence necessary for the resolution of these issues were thus significantly different. Therefore, the Court of Appeals reversed the Circuit Court. Michigan Department of Transportation v North Central Cooperative, LLC, Michigan Court of Appeals Released for Publication January 24, 2008, Docket No. 268432.

Recommendation – Given the foregoing, the party seeking damages as a result of transportation of hazardous materials may proceed in two suits, (1) against the insurer in the no-fault limit of $1 million dollars and (2) against the insured for the $5 million in financial responsibility pursuant to the MCSA.

Facts – In this case, a police officer from Central Michigan University observed Defendant approach a street from a parking lot. The driver used his turn signal before entering the street. As the officer continued to watch Defendant’s vehicle, he saw him change lanes without using a turn signal. He then conducted a traffic stop and discovered Defendant was intoxicated. Defendant moved in the District Court to suppress the evidence pursuant to the stop, arguing that MCL 257.648 does not require a driver to use a turn signal when changing lanes and therefore the traffic stop was invalid. The District Court denied the motion. On appeal to the Circuit Court, the court reversed the District Court’s order stating because the phrase "turning from a direct line" does not notify a driver whether one should signal before turning from a lane, a roadway, or both, the statute was unconstitutionally vague. Defendant contended that MCL 257.648 only applies to turns onto a different roadway. The Court of Appeals disagreed. The phrase "turning from a direct line" is not defined in the text of the statute nor were the individual terms that comprise the phrase. The court noted it is commonly understood that a driver must "change the direction or course" to achieve a lane change, and the courts have often used the term "turn" to describe a lane change. It held that MCL 257.648 provides fair notice of what conduct is prescribed. It requires drivers to use a turn signal when changing lanes on a highway and is not unconstitutionally vague. Therefore, the Circuit Court’s ruling was reversed and remanded. People v HRLIC, 277 Mich App 260 (2007).

Recommendation – Given the foregoing, a determination must be made to both Plaintiff’s and Defendant’s action if a lane change may have contributed to the accident to determine if one was presumptively negligent.

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