ATTORNEY – CLIENT

Facts – A memo previously prepared by a General Motors attorney was acquired by Plaintiffs and was attached to Plaintiff's Complaint. This memo had been obtained from another court file. General Motors took the position that this document contained legal advice and strategy regarding ongoing litigation, and that its disclosure in other litigation was either ordered or done inadvertently. Thus, it claimed that it had not waived attorney-client or work product privileges as a matter of law. The Michigan Court of Appeals agreed, reversed the Trial Court's original holding to the contrary, and remanded to the Trial Court for a determination of whether GM voluntarily disclosed the memo in connection with other litigation (Leibel v General Motors Corporation, Michigan Court of Appeals Published Decision dated March 1, 2002, Docket Number 224734).

Recommendation – Documents containing attorney-client privilege can sometimes be inadvertently disclosed. This case presents a good discussion of the applicable law on that privilege, the work product doctrine, and elements necessary to constitute a waiver of both. In the event this situation arises, a motion for protective order should immediately be filed. If necessary, affidavits should be prepared and/or an evidentiary hearing should be scheduled.

INSURANCE

Facts – This Opinion does not set forth the facts which gave rise to the instant dispute. However, the Court of Appeals did reiterate the current status of the law with respect to a captive agent. His/her job is to merely present the product of the principal and take such orders as can be secured from those who want to purchase the coverage offered. However, a duty to advise may arise when a "special" relationship exists between an insurance company and its agent and policy holder. Such a duty will be found where:

1. The agent misrepresents the nature or extent of the coverage offered or provided;

2. The insured makes an ambiguous request that requires a clarification;

3. The insured makes an inquiry that may require advice and the agent gives advice that is inaccurate; or

4. The agent assumes a duty by express agreement with or promised to the insured.

In this case, there was evidence that an ambiguous request was made which required clarification. As such, the matter should have been referred to the trier of fact for further determination (Cadger v Smith, et al., Michigan Court of Appeals Unpublished Decision dated February 26, 2002, Docket Number 226531).

Recommendation – When investigating this type of claim, one must always determine whether a special relationship existed. Obtain a detailed description of all conversations between the agent and the insured.

Facts – Defendant was driving when he observed an object in his lane. He slowed the vehicle and then observed decedent lying in Defendant's lane of travel. Defendant swerved but was unable to avoid decedent. Plaintiff's Estate filed suit claiming negligent operation of a motor vehicle.

The accident scene was not illuminated by street lights. Decedent was wearing dark clothing. Defendant testified that he did not observe decedent until it was too late to avoid striking him. A sudden emergency defense was asserted.

In upholding the Trial Court's grant of Defendant's motion for summary disposition, the Michigan Court of Appeals held that an unexpected event may be one which occurs under everyday circumstances, but which takes place so suddenly that a person is forced to act without the circumspection required by due care (Tyson v Groendyke, Michigan Court of Appeals Unpublished Decision dated February 22, 2002, Docket Number 227291).

Recommendation – The sudden emergency doctrine is a useful tool in defending against claimed liability based on factual patterns which are unusual or unsuspected. Every claim should be investigated with a view toward determining whether the circumstances involved varied from the everyday routine confronting motorists.

Facts – Plaintiff was involved in a motor vehicle accident which rendered him a quadriplegic. At the time of his accident, Plaintiff owned a split-level house. He did not return to this dwelling because of his restriction to a wheelchair and his limited ability to control his upper extremities. Defendant insurer hired a home remodeling company to provide an estimate for renovation. It determined that the cost would be prohibitive. Rather, it was suggested that an existing ranch style house be purchased and renovated.

Plaintiff was willing to give up ownership of his current home and contribute the equity toward Defendant's less costly alternative suggestion. In exchange, Plaintiff wanted full title to the new residence. Defendant insurer on the other hand, insisted that Plaintiff was entitled only to a life estate interest in any house which it might purchase and renovate to accommodate his medical needs.

The Court of Appeals found that the No-Fault Act does not address this situation with specificity. It held that Plaintiff should receive title to any home purchased, and that same did constitute a reasonable charge, reasonably necessary for Plaintiff's care. In fact, the Court found Defendant's refusal to either renovate or provide Plaintiff an ownership interest in a "cheaper to renovate" ranch house, to have been an unreasonable refusal to pay benefits.

This Opinion also discussed the Court's prior holding in Kitchen v State Farm Insurance Company, (202 Mich App 55 [1993]), where the insurer was allowed to have a newly built home held by an independent neutral corporate trustee in trust for an injured minor during her lifetime. It found that significant differences exist between that case and the one currently at issue (Williams v AAA Michigan, Michigan Court of Appeals Published Decision dated March 5, 2002, Docket Number 222542).

Recommendation – Pursuant to the above decision, it would appear as if adult property owners will be treated differently than adult and/or minor non-property owners with respect to ownership of housing accommodations. When negotiating a solution, all existing factors must be taken into consideration. Explore all options.

Facts – Plaintiff filed this action to recover damages for injuries sustained in an automobile accident. The Trial Court dismissed the claim, finding that Plaintiff had failed to prove that his injuries met the serious impairment threshold. Although the evidence established an objectively manifested injury that affected an important body function, the injury did not affect Plaintiff's ability to lead a normal life.

In upholding the Trial Court's decision, the Court of Appeals indicated that although Plaintiff complained of continuing back and leg pain, his ability to work was not medically restricted, even though the pain sometimes caused him to miss work or take additional breaks. The only other manifestations of injury were that he could not go out dancing as frequently as he used to, no longer performed all of his regular household tasks, had to change his usual sleeping posture and gained some weight (presumably due to his less active lifestyle) (Hallal v Freels, et al., Michigan Court of Appeals Unpublished Opinion dated February 26, 2002, Docket Number 228312).

Recommendation – When attempting to determine whether Plaintiff has suffered a serious impairment of body function, one should always look at the claimed limitations and the effect on Plaintiff's ability to lead a normal life. Minor lifestyle changes are not sufficient to allow recovery.

Facts – Plaintiff filed this action to recover damages for injuries sustained in an automobile accident. The Trial Court dismissed her complaint, finding that Plaintiff had failed to prove that her injuries met the serious impairment threshold.

The Court of Appeals agreed that the evidence did not show that Plaintiff's impairment was serious. She had testified that as a result of her injuries, she had continuing neck and back pain, headaches, dizziness, tremors and nervousness or panic attacks. Because of these problems, she voluntarily limited her usual activities by not going to the gym, limiting her housework and not taking her children out. She was still able to drive and to leave the home for business and social reasons. Therefore, the injury did not affect her ability to lead a normal life.

Plaintiff's expert apparently gave an opinion that Plaintiff's injury was serious. The Court held that this issue was one of law for the Court to decide (Bahrl v Gottis, Michigan Court of Appeals Unpublished Decision dated February 22, 2002, Docket Number 227913).

Recommendation – Often times Plaintiff's counsel will attempt to have an expert testify that the injury sustained by Plaintiff was both serious and impaired an important body function. This line of questioning is clearly objectionable and pursuant to this decision, should not affect a Trial Court's grant of summary disposition.

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