Facts – The Court awarded actual attorney fees post verdict inasmuch as Defendants had rejected case evaluation. In determining an appropriate rate, the Court utilized various factors including the professional standing and experience of the attorney, the skill, time and labor involved, the amount in question, the results achieved, the difficulty of the case, the expenses incurred and the nature and length of the professional relationship with the client. The Court also utilized empirical data contained in a Law Practice Survey.

The Michigan Court of Appeals held that a Trial Court may also properly consider the "locality" of a cause of action in determining a reasonable fee. This was determined to have been an average negligence action. While Plaintiff's attorney might command a larger hourly fee in Wayne County, his requested fee was not reasonable in Monroe County (Sutherland v Kennington Truck Services, et. al., Michigan Court of Appeals Unpublished Decision dated January 22, 2002, Docket Number 225034).

Recommendation – For the most part, Plaintiff's counsel do not keep detailed time records. In the event a situation arises whereby actual attorney fees are to be awarded, it is incumbent upon Defense counsel to ensure that billing records are produced which in fact correspond with services allegedly performed. The Trial Court's refusal to rely upon unsubstantiated billing statements is not an abuse of discretion.

Facts – Plaintiff filed suit against multiple defendants seeking damages for injuries which she suffered when struck in the head with a golf club while practicing at a driving range. Plaintiff settled her claim against two of the defendants and then requested that the Trial Court preclude the remaining party from arguing that the settling defendants shouldered some responsibility for Plaintiff's injuries. The Trial Court granted that request.

In reversing the lower court, the Michigan Court of Appeals held that Tort Reform legislation provides that each Defendant in a multiple tortfeasor action bears responsibility for only that portion of the damages that are in direct proportion to the person's percentage of fault. Further, the trier of fact is allowed to consider the fault of each person, regardless of whether or not that individual is or could have been named as a party to the action. This includes those tortfeasors who were released from liability (Smiley v Corrigan, 248 Mich App 51 [2001]).

Recommendation – It is always advisable to file a Notice of Non-Party Fault if possible. This "spreads the blame," and from a strategy standpoint, may force Plaintiff's counsel to add additional Defendants. The Notice must be filed within ninety-one (91) days after Defendant's first responsive pleading. On Motion, the Court shall allow a later filing of the Notice by a showing that the facts on which the Notice is based were not, and could not, with reasonable diligence have been known to the moving party earlier (provided that the late filing of the Notice does not result in unfair prejudice to the opposing party) (MCR 2.112[K][3]).

Facts – Plaintiff filed suit claiming to have sustained a serious impairment of body function by virtue of a diagnosed TMJ disorder. Additional residuals included frequent headaches which were controlled with over-the-counter products such as Ibuprofen. The only activity that Plaintiff claimed was affected by her injury was eating (she tended to eat softer foods and avoid larger items). Plaintiff wore a bite splint at night, but had worked full-time since the accident. The Court of Appeals held that the issue of whether a Plaintiff has suffered a serious impairment of body function, should be submitted to a jury only when there is an outcome-determinative genuine factual issue in dispute. This panel found that Plaintiff's claimed injury was not "serious." As such, dismissal at the Trial Court level was found to be proper (Spagnuolo v Dorn, et. al., Michigan Court of Appeals Unpublished Decision dated December 14, 2001, Docket Number 225535).

Recommendation – When analyzing a serious impairment claim, various factors must be considered, including extent of injury, treatment required, duration of disability, extent of residual impairment and prognosis for eventual recovery. In other words, it is not enough that Plaintiff claims to have suffered pain and discomfort without significant injury and resulting changes in lifestyle.

Facts – Plaintiff slipped and fell at Defendant's home while walking across a snow covered lawn toward the front door. There was no question that Plaintiff was a licensee (social guest) at the time. The Court of Appeals held that a landowner does owe a licensee a duty only to warn of hidden dangers of which the landowner knows or has reason to know, and only if the licensee does not know or have reason to know the dangers involved. There is no affirmative duty to inspect or repair in order to make premises safe for a licensee's visit (Burnett v Bruner, 247 Mich App 365 [2001]).

Recommendation – The Court basically decided that a licensee is expected to take the premises as the landowner uses it. In this particular case, however, there were areas left by excavation which may have been hidden under the snow, and which may have been known to the possessor of this property. It is important that the landowner be interviewed fairly extensively regarding knowledge of potential defects for which a duty to warn may be owed.

Facts – This suit was filed, claiming that the two insurance companies had a settlement agreement. The agreement was based on telephone conversations between adjusters from both companies. Defendant's adjuster made a notation in his activity log. The Court held that in order to be enforceable, a settlement agreement must comply with MCR 2.507(H), which indicates that such an agreement is not binding unless made in open court, or unless evidence of the agreement is in writing, subscribed by the party against whom the agreement is offered, or by that party's attorney.

Although the adjuster had made a "terse" notation as to settlement, the Court found that it was distinguishable from a formal acknowledgement of settlement (Michigan Mutual Insurance Company v Indiana Insurance Company, 247 Mich App 480 [2001]).

Recommendations – When negotiating a settlement, it is always advisable to confirm it in writing and to request that the opposing party also acknowledge the agreement in writing. Likewise, in the event a case is resolved at the time of a Settlement Conference, or other Court proceeding, the Plaintiffs (and/or their attorneys) should be required to acknowledge all terms on the record, in open court.

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