Facts – In this case, Plaintiff was involved in a rollover accident on June 12, 2002. Prior to the accident he had various health issues including a heart attack in 1993, was an insulin dependent diabetic, and suffered from hypertension and arterial sclerosis. As a result of the accident at issue, Plaintiff was diagnosed with a closed head injury. Notwithstanding, he was released to work on November 11, 2002. He returned for a short period of time but ceased working due to dizziness, inability to distinguish color coated wiring, and arguments with employees. Defendant initially paid work loss benefits but, stopped after three months. On December 17, 2002, Plaintiff experienced an acute cardiac vent which required a period of hospitalization and a few days of recovery. Then, in February, 2003, he suffered a transient ischemic attack (TIA). On November 3, 2003, Plaintiff signed an Application for Veterans Administration Pension or Compensation. Numerous treating physicians wrote letters supporting the benefit application. Dr. Brateman authored a November 3, 2003 correspondence which listed his medical ailments as "ischemic heart disease, post myocardial infarction with congestive heart failure and a second myocardial infarction in 2002." The doctor indicated Plaintiff’s inability to work was secondary to the ischemic heart disease, diabetes, neuropathy, and peripheral vascular occlusive disease. The letter did not mention the motor vehicle accident or closed head injury.

Dr. Brateman authored a second letter on December 14, 2003 which did list the motor vehicle accident and the traumatic brain injury. Plaintiff’s wife testified that her husband’s VA benefits arose from his service in Vietnam and exposure to Agent Orange. On September 15, 2004, the VA awarded Plaintiff benefits.

In any event, the first-party case proceeded to Trial regarding work loss and attendant care benefits. Plaintiff proffered evidence from several treating physicians. Dr. Brateman indicated Plaintiff suffered from dizziness, confusion, memory loss, chronic vertigo, and headaches and required constant attendant care. In regard to the intervening December, 2002 heart incident, he testified Plaintiff would have been off work for a short period absent the closed head injury from the MVA. Neuropsychologist, Dr. Vredevoogd concluded that Plaintiff’s closed head injury interacted with his diabetes related vascular condition so as to disable him. The vascular condition alone would not have disabled Plaintiff. Neuropsychologist, Dr. Blasé, opined that Plaintiff suffered from a traumatic brain injury and this injury disabled Plaintiff’s ability to work and care for his own needs. He also opined that Plaintiff required constant supervision. Defendant’s IME physician indicated that Plaintiff had suffered a head injury in the accident but it appeared to be relatively minor.

On appeal, Defendant first argued that it was denied a fair trial by the admission of irrelevant and prejudicial evidence regarding the handling of Plaintiff’s claim for no-fault benefits. The evidence came through the testimony of a former claims executive for the Defendant. The trial court had ruled that the testimony of Plaintiff’s expert was relevant to whether Plaintiff submitted reasonable proof of loss to Defendant, thus rendering Plaintiff’s claim for benefits overdue. Defendant argued that the claims handling evidence was not relevant to penalty interest because an insurer is liable for penalty interest if the benefits are overdue, regardless of the reason. The court noted that whether Plaintiff provided reasonable proof of loss after the Defendant failed to pay the claims within thirty days was a question before the jury. The claims handling evidence was therefore relevant as to whether Plaintiff provided Defendant reasonable proof of the fact and amount of the loss sustained for purposes of penalty interest under MCL 500.3142(2). Plaintiff’s theory was that Defendant had not fairly reviewed Plaintiff’s claim. Defendant claimed that it had not only fairly reviewed and denied Plaintiff’s no-fault claim, but that it had overpaid it. Therefore, the Court noted the issue of whether Defendant fairly reviewed Plaintiff’s claim file was within the range of litigated controversy and was a fact of consequence to the action.

Defendant also maintained that Plaintiff was judicially estopped to assert a claim for work loss benefits or replacement services after the December 17, 2002 heart incident because of his successful claim for VA benefits which were unrelated to the motor vehicle accident. The Court of Appeals noted that the Veterans Administration claim was not "wholly inconsistent" with his position for claiming no-fault benefits. Plaintiff proffered testimony from his family doctor, two neuropsychologists, and other health professionals which indicated Plaintiff’s closed head injury from the motor vehicle accident interacted with Plaintiff’s susceptible diabetes-caused condition that kept him from working. Therefore, Plaintiff’s claim for work loss benefits and replacement services were appropriate. Morales v State Farm Mutual Automobile Insurance Company, 279 Mich App 720 (2008).

Recommendation – In preparing a case for Trial, evidence of claim handling may be relevant and admissible and should be taken into consideration when formulating Trial strategy.

Facts – In March of 2004, Plaintiff was a passenger in a shuttle owned and operated by Defendant. When she attempted to exit the shuttle through its doors, she slipped and fell on the snow covered steps suffering serious injuries to her left ankle and foot. These injuries included a comminuted fracture of the heel bone and nerve damage which left her left foot permanently misaligned. Plaintiff claimed she experienced pain with walking which caused her to retire early from her position as a Court Clerk and begin working for Meijer, Inc. as a greeter. Following a Jury Trial, the Jury awarded Plaintiff $600,000.00 in non-economic damages and reduced it 25 percent due to comparative negligence.

On appeal, Defendant argued that the Trial Court failed to instruct the jury on the open and obvious doctrine. The Court noted previous decisions wherein applicability of the open and obvious danger doctrine depends upon the theory of liability. Previous decisions held that the open and obvious danger doctrine applies only to premises liability actions and certain product liability cases involving failure to warn, but was specifically not to apply to claims of ordinary negligence. The Court held the claim at bar was for third-party ordinary negligence and Defendant was obligated to exercise due care in the maintenance of its vehicle and transportation of its shuttled passengers, including insuring a safe access to and egress from the shuttle. Defendant next argued that the Trial Court erred in denying its Motion for JNOV because Plaintiff failed to establish that she suffered a serious impairment of body function. The Court of Appeals applied Kreiner and noted the injuries affected her general ability to lead her normal life. Jackson-Ruffin v Metro Cars, Inc., Unpublished Per Curiam Opinion of the Michigan Court of Appeals, Decided May 22, 2008, Docket No. 276144.

Recommendation – The open and obvious doctrine is not available as a defense to ordinary negligence claims which would include third-party no-fault actions. This issue of comparative negligence however, should be a key focus of investigation.

Facts – In this case, Plaintiff was invited to Defendant, Stobby’s residence to play darts. Upon arrival, he discovered that Defendant was too intoxicated to play. At that same time, other guests began to arrive at the residence. Defendant then stepped out onto the porch to inform the other guests when Defendant’s dogs charged up onto the porch, running between his legs, causing him to spin around and fall striking his neck on a parked car. Through discovery, Plaintiff admitted the dogs did not attack, growl at, or bite him. In addition, he admitted that the dogs have never "charged into" him or anyone else. Treatment which was sought several weeks later revealed a herniated cervical disc and spinal cord compression which required anterior cervical fusion. Plaintiff then attended physical therapy.

On July 1, 2004, Plaintiff was exiting his vehicle parked in the driveway of Beehr’s Towing when a tow truck back into his vehicle. Plaintiff claimed that he re-injured his neck. He filed suit against Stobby claiming strict liability for the attack of his dog and negligence due to the fact that his dog was not being controlled. Plaintiff then filed his First Amended Complaint including a no-fault gross negligence claim for non-economic damages against Beehr and Beehr’s Towing. Plaintiff filed a Second Amended Complaint which alleged that the dogs collided with, rather than jumped on him. In addition, he added a claim for premises liability.

Following the conclusion of discovery, Defendant Stobby filed a Motion for Summary Disposition claiming that there was no evidence of history of aggressive behavior and Plaintiff could not establish required elements of either strict liability or negligence. In addition, he argued that the presence of the dogs and the absence of a porch rail constituted an open and obvious danger in regard to the premises liability claim. Further, Defendants Beehr asserted that the incident did not cause a serious impairment of body function. The Court granted both Motions and dismissed Plaintiff’s Complaint.

On appeal, the Court noted that a common law claim for strict liability for injuries caused by a dog requires proof that the Defendant possessed the animal with knowledge of the dog’s "abnormal dangerous propensities" and that Plaintiff’s injuries resulted from the dangerous propensity that was known or should have been known. The Court record revealed no evidence that Stobby’s dogs had ever caused an injury or behaved in an aggressive or dangerous manner. One of Plaintiff’s friends testified that the dogs "jumped on me a lot" but they basically did so because they wanted to play. Another guest testified the dog that ran between Plaintiff’s legs appeared to be excited to get out of the house and he thought they were just running to get outside. None of the witnesses described Defendant’s dogs as dangerous or ill tempered in any fashion and nothing else in the record demonstrated that Stobby knew or had reason to know that his dogs presented any unusual risk to guests. Therefore, the Trial Court promptly dismissed Plaintiff’s strict liability claim. The Court noted that "a mere failure" to keep a dog under constant control does not constitute a breach of any duty of care. The standard of care requires an animal’s owner exercise the amount of control "which would be exercised by a reasonable person based upon the total situation at the time, including the past behavior of the animal and the injuries that could have been reasonably foreseen". The record established that Stobby’s dogs had no known unusual or dangerous propensities and had never previously injured any of his guests. Therefore, he had no duty to prevent his dogs from running into or out of his house, or to keep them under constant control. In regard to the premises liability claim, Plaintiff insisted that the absence of a railing and the presence of a loose dog, made the property "unreasonably dangerous" creating "special aspects" sufficient to render the open and obvious doctrine inapplicable. The Court noted that an absence of a guardrail does not amount to a hidden danger and therefore Defendant had no duty to warn Plaintiff regarding the use of his porch. Further, a "loose dog" on an unguarded porch did not create either a duty to warn or to protect Plaintiff from injury. A dog running into or out of its master’s home embodies neither an unavoidable danger nor an unreasonably high risk of severe injury. Therefore, the Trial Court properly granted summary disposition as to the claim of premises liability.

As to the issue of the auto negligence claim against Beehr and Beehr’s Towing, the Court engaged in a Kreiner analysis. The Court noted the Trial Court’s lengthy and detailed written opinion regarding whether Plaintiff’s injuries affected his general ability to conduct his normal life. The Opinion noted Plaintiff was receiving Social Security Disability benefits since 1990, had initial cervical fusion in 1993 and he also re-injured his neck in 2002. He was enrolled in physical therapy before the fall from the porch and continued with neck problems nine (9) days prior to the encounter with the dog. Therefore, the Court noted that Plaintiff was disabled at the onset of 2004 and in March, 2004 underwent a second neck fusion surgery. Both before and after that surgery, Plaintiff engaged in a limited repertoire of activities. Following the July 2004 accident, Plaintiff continued with those activities. There was no evidence that the July 2004 aggravation of Plaintiff’s neck injury affected his general ability to lead his normal life and therefore summary disposition was appropriate. Stoll v Stobby, Unpublished Per Curiam Opinion of the Michigan Court of Appeals, Decided June 12, 2008, Docket No. 278013.

Recommendation – When presented with a strict liability dog bite claim, the facts of the incident are important on how Plaintiff was injured and whether the dogs had any history regarding that act.

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