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 Unpublished Decisions (or those which have not been published as of the date of newsletter distribution) will be cited by Appellate Slip Opinion number.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 – The Trial Court issued a scheduling order which required all dispositive and in limine motions to be heard by a specific date, or be waived. Defendant filed a motion for summary disposition after the cut-off date. The Trial Court refused to hear the motion because it violated the scheduling order.

In upholding the Trial Court’s decision, the Michigan Court of Appeals noted that although MCR 2.116(B)(2) provides that a motion for summary disposition may be filed by a party "at any time", that Court Rule does not deprive the Trial Court of discretion to set a limit on the time within which such a motion may be filed, as provided by MCR 2.401(B)(2). That particular Court Rule specifically grants a Trial Court the power to limit the period for filing motions through a scheduling order, when it concludes that such an order would facilitate the progress of the case. Clawson v. RXIV Inc., 269 Mich App 338 (2005).

Recommendation – It is always advisable to comply with the pre-trial scheduling order when possible. Where additional time is needed, a motion to modify the order should be filed as promptly as possible.

NO-FAULT

Facts – Plaintiff’s complaint alleged that as a result of a collision, he suffered back injuries and wage loss beyond three years. Defendant filed a motion for summary disposition, arguing that Plaintiff had not suffered a serious impairment of a body function. Plaintiff had a long history of back problems. He produced extensive medical records demonstrating a degenerative spinal condition. Defendant emphasized in his motion that, while the evidence demonstrated Plaintiff had suffered spinal problems and related pain, none of the records and none of the deposition testimony demonstrated that Plaintiff suffered any objectively manifested back injury as a result of the accident.

In upholding the Trial Court’s grant of summary disposition, the Court of Appeals stated that although Plaintiff had presented evidence of "spurring", "degenerative changes", "mild hypertrophy", "facet arthrosis", "mild central stenosis", and "bulging", he failed to present any evidence demonstrating that these injuries were caused by the accident. Further, while the evidence showed that Plaintiff’s complaints of pain had changed and increased after the accident, subjective complaints of pain are not an objective manifestation of an injury. In summary, the evidence demonstrating that Plaintiff’s pain had changed and increased, it did not, beyond mere speculation, demonstrate that Plaintiff suffered any injury that was caused by the accident.

Although an injured party may recover excess economic work loss damages, even where they have not met the threshold requirements necessary to sustain a cause of action for non-economic damages, a Plaintiff must still show that he suffered or will suffer wage loss as a result of the alleged accident. In this case, none of Plaintiff’s doctors indicated that he was unable to work as a result of the accident, or for that matter, unable to work for any reason. Keeley v. Jackson, Michigan Court of Appeals Unpublished Decision Dated January 10, 2006, Docket Number 263937.

Recommendation – This case is interesting from the standpoint that although Plaintiff did have a rather significant prior history of degenerative spinal conditions, none of his physicians testified that there were any objective changes which could be attributable to the auto accident. The fact that Plaintiff was able to go on vacation, paint a house, drive his children to school and voluntarily chose to cease working, was enough to persuade the Court that there was no valid claim for excess wage loss. When investigating a claim of this type, one should focus on evidence of objective changes in the claimant’s pre-accident physical condition. If there are none, a motion for summary disposition may be appropriate.

Facts – Plaintiff filed an action for recovery of work loss benefits. At the time of his automobile accident, he was the sole shareholder in a meat-packing business. For each of the prior three years, the corporation operated at a net loss for federal tax purposes. Defendant denied Plaintiff’s claim for No-Fault work loss benefits on the basis that Plaintiff failed to demonstrate a loss of income because the corporation yielded no net profit.

In a case of first impression, the Michigan Court of Appeals held that Plaintiff was entitled to wage loss benefits. There was no dispute that Plaintiff received wages as an employee of the corporation. His remuneration from the corporation was not determined based on the annual net income of the corporation. Plaintiff did not assert a work loss claim based on the lost profits of the corporation. Plaintiff’s self-employment status does not dictate a calculation of the gross receipts of the corporation, less the corporate expenses in order to determine Plaintiff’s net income. The Court further recognized that the long-standing rule that a corporate entity is distinct even though all its stock is owned by a single individual or corporation. Its separate existence will be respected, unless doing so would subvert justice or cause a result that would be contrary to some other clearly overriding public policy.

In summary, because Plaintiff received wages from the corporation, and because Defendant presented no evidence to the contrary, the business expenses of the corporation were deemed irrelevant in calculating Plaintiff’s wage loss claim. Plaintiff was to be treated as being in no different position than an employee of any other corporation operating at a loss. Ross v. Auto Club Group, 269 Mich App 356.

Recommendation – Each claim of this type should be evaluated on its own merits. In the event an individual’s wages are dependent on the annual net income of the corporation, it may be possible to argue no loss of income where the corporation has yielded no profit.

Facts – Plaintiff (an eight-year-old minor) was riding a bicycle when an uninsured motorist struck her. She sustained head trauma, causing seizures and convulsions. Since the date of the accident, she required daily care and nursing services. Approximately five and one-half years after the accident, Plaintiff’s mother applied for personal protection benefits through the Assigned Claims Office. Defendant was assigned the claim and invoked the one-year statute of limitations contained in MCL 500.3145(1).

In analyzing the issues presented, the Court of Appeals held that a parent’s cause of action to recover benefits for expenses incurred during an insured’s minority, is derivative of the injured minor’s rights under the No-Fault Act. As such, the right to bring a PIP action (including claims for attendant care services), belong to the injured party. The Court further determined that the tolling statute found in MCL 600.5851(1) does not operate to bar the one-year statute of limitations found in MCL 500.3145. This Court relied on the prior published decision of Cameron v. Auto Club Insurance Assoc., 263 Mich App 95, 103 (2004). Hatcher v. State Farm Mutual Automobile Insurance Co., Michigan Court of Appeals Unpublished Decision Dated December 20, 2005, Docket Number 262964.

Recommendation – As per the above decision, the mere fact that a potential claimant is a minor, will not operate to toll the one-year statute of limitations found in the Michigan No-Fault Act.

Facts – Plaintiff and two of his friends were allegedly "huffing" at a local park one evening. As Plaintiff was driving home, he collided with an oncoming car, killing the other driver and passenger, and severely injuring a third occupant. Plaintiff was charged with two counts of vehicular manslaughter and one count of felonious driving. He pleaded no contest to all three charges against him.

At some later point, Plaintiff filed this auto negligence claim against Defendant’s Estate, claiming that the other driver was negligent. Defendant moved for summary disposition, arguing that Plaintiff’s claims were barred by the Wrongful Conduct Rule as well as MCL 600.2955b.

In upholding the Trial Court’s grant of summary disposition, the Court of Appeals relied upon MCL 600.2955b which codified the common law Wrongful Conduct Rule for felonies. Because Plaintiff’s claim for bodily injury arose out of the very same auto accident for which he was convicted, his cause of action was barred by statute. English v. The Estate of Himmell, Michigan Court of Appeals Unpublished Decision Dated January 10, 2006, Docket Number 255956.

Recommendation – This case should serve as a reminder that where Plaintiff’s own wrongful conduct results in his or her claimed injury, there may exist grounds for dismissal.

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