Facts – Plaintiff alleged that he was injured in an automobile accident (non-displaced fractured sternum, bruised right knee, ankle and hip). The trial court granted Defendant’s motion on the issue of proximate cause, finding there was no evidence that the ankle and hip injury were caused by the accident.

In upholding the trial court’s decision, the Court of Appeals stated that, while causation may be established by circumstantial evidence, such proof must be subject to reasonable inferences and must not be mere speculation. The burden of establishing proximate cause always rests with the complaining party and no presumption of it is created by the mere fact of an accident. Plaintiff’s treating physician had previously testified that those injuries "could or may have" been caused by the accident. (Seeley v Howard, Michigan Court of Appeals Unpublished Decision dated February 14, 2003, Docket No. 238626).

Recommendation – This Opinion is interesting inasmuch as the treating doctor had testified that a motor vehicle accident "can" cause this type of problem, and that the accident was the "most likely cause" absent some other type of trauma. The Court of Appeals found this testimony to be insufficient to create a genuine issue of material fact. In other words, although Plaintiff’s theory might have been factually supported, it was, at best, just as possible as another theory. Plaintiff’s own testimony was unclear as to whether there was a pre-existing condition. When evaluating a claim one should attempt to determine, as quickly as possible, whether treating physicians will specifically relate the condition to the accident at issue.

Facts – Following the remodeling of their house, Plaintiffs encountered water leaks in the roof allegedly resulting from ice dams which formed because of defects in the roofing work. The Plaintiff placed an electric heater on the roof of the home in an attempt to melt an ice dam which had formed. Later that evening the roof caught fire damaging much of Plaintiffs’ home. The loss from the fire exceeded the amount of Plaintiffs’ insurance coverage. The insurer refused to compensate Plaintiffs for the shortfall and claimed that the damage from the fire stemmed either from Plaintiffs’ negligent decision to place a space heater on the roof of their home, or the construction company’s installation of a defective roof.

Plaintiffs’ lawsuit alleged five causes of action (negligent failure to procure requested coverage, breach of express or implied oral contract, negligent performance of contractual duty, negligent performance of voluntary undertaking and negligent failure to advise concerning adequacy of coverage). Defendants filed a Notice of Non-Party Fault claiming that Plaintiffs and the construction company were wholly or partially liable for Plaintiffs’ damages and that each should be allocated a percentage of fault for comparative negligence. Plaintiffs argued that any consideration of fault with regard to the roof work and fire was improper because the lawsuit sought recovery for negligent failure to procure insurance.

According to the Michigan Court of Appeals, this case presented an issue of first impression concerning the application of comparative fault principles under the 1995 tort reform statutes. The court determined that allocation of fault for the underlying conduct (the fire) did not apply to Plaintiffs’ action to recover a shortfall in insurance proceeds. Therefore, the Notice of Non-Party Fault was improper. Simply stated, Plaintiffs’ claim was that their damages occurred because of inadequate insurance coverage, not because of the home fire. The cause of the fire was thought to be no more relevant than it would be if related to a purely accidental event such as a lightning strike. Defendants were entitled, under statutory provisions for comparative fault, to seek an apportionment of fault for liability concerning Plaintiffs’ lack of insurance, but not liability for causing the fire. (Holton v A+ Insurance Associates, Inc., et al, Michigan Court of Appeals Published Decision dated February 11, 2003, Docket No. 234134).

Recommendation – The argument set forth by the defense (negligence on behalf of the homeowner and/or contractor) would have more properly been raised in a companion declaratory and/or subrogation action. Michigan law does recognize a cause of action in tort for an insurance agent’s failure to procure requested insurance coverage, which includes an insurance agent’s duty to advise an insured upon the showing of a special relationship. Where the duty to advise has been breached, the insurance agent is liable for any damages resulting from the breach.

Facts – Plaintiff’s vehicle was struck by an uninsured motorist. Defendant insurer partially paid Plaintiff’s PIP claim and refused to pay him anything on his uninsured motorist claim. The insured was awarded damages as a result of a jury trial.

Defendant insurer’s claims adjuster had decided that Plaintiff did not meet the threshold for recovery, thereby resulting in a denial of uninsured motorist benefits under the insurance contract. Inquiry into the adjuster’s decision and reasoning behind it was relevant to the central issue of serious impairment of body function, in that the jury was entitled to hear about any evidence that might suggest that Plaintiff did not have a threshold injury, and the basis for that determination. Furthermore, Plaintiff had asserted in the Complaint that the insurer acted unreasonably in handling Plaintiff’s claim. An insurance company’s bad faith regarding a claim is relevant and not unduly prejudicial. Plaintiff elicited evidence that demonstrated the adjuster’s lack of medical and legal credentials, which could give rise to an inference of bad faith with regard to the handling in general of Plaintiff’s claims for benefits under the insurance contract.

In addition, the trial court allowed evidence of the insurance contract policy limit, indicating that Michigan courts traditionally interpret an insurance contract by construing the document in its entirety. (Mahaffey v CNA, et al, Unpublished Michigan Court of Appeals Decision dated February 14, 2003, Docket No. 235022).

Recommendation – In this particular case, there was no evidence introduced by the defense at trial to refute Plaintiff’s "parade of experts" and first-hand testimony about the severity of his injuries. Presumably, the trial court would have allowed the same type of questioning from Defendant’s claims adjuster in any event. Although most trial courts would probably not allow Plaintiff’s counsel to get into many of the issues involved in this Opinion, this case does serve as a good illustration of the need for immediate action by claims personnel to properly document a decision by use of supporting experts. If necessary, a record review should be conducted by a qualified medical professional. At the very least, medical reports should be requested from treating and examining physicians so as to clarify any disputed issues of fact.

Facts – In March 1997, Plaintiff fell twice on the premises of the apartment complex where he resided, once in the parking lot and once near the entrance to the apartment. On both occasions, the slippery conditions were attributed to a thin coating of ice which was covered by a "dusting" of snow. There was no dispute that the Plaintiff’s legal status was that of an invitee. As such, the Defendant had a legal duty of reasonable care to protect its invitee from the unreasonable risk of harm caused by a dangerous condition on the premises.

Plaintiffs alleged that prior incidents of ice in the parking lot and near the entrance to their apartment led them to complain to Defendants. They also testified that there had been other falls as a result of these conditions. The court found that Plaintiffs’ knowledge of the danger which they claim caused the fall affected the nature of Defendants’ duty. Where an invitee has knowledge of dangerous conditions, an invitor has no duty to protect or warn unless it can be said that the harm could be expected in spite of that knowledge. Plaintiffs did not allege, and advanced no proof that in spite of their knowledge that icy conditions sometimes developed, Defendants should have expected harm to them. Moreover, Plaintiffs presented no evidence that the condition of the parking lot and entrance area were unreasonably dangerous for purposes of premises liability. The trial court was correct in concluding that Defendants owed Plaintiffs no duty. (Bender v Saph, et al, Michigan Court of Appeals Unpublished Decision dated February 11, 2003, Docket No. 237189).

Recommendation – When investigating a premises liability claim of this type, it is always wise to determine whether the claimant knew (or should have known) of the existence of the very same defect which is alleged to have caused injury. If so, there may be no duty owed on the part of the landowner.

MCR 2.401 has been amended. Please note the following of significance:

1. If the court anticipates meaningful discussion of settlement, it may direct that the parties to the action, agents of parties, representatives of lien holders, representatives of insurance carriers, or other persons, be present at the conference (or immediately available) and have information and authority adequate for responsible and effective participation in the conference for all purposes, including settlement.

 

2. The court’s Order may require the availability of a specified individual, provided however, that the availability of a substitute who has the information and authority required by this rule shall constitute compliance with the Order.

 

3. The court’s Order may specify whether the availability is to be in person or by telephone.

 

4. Failure of a party or the party’s attorney or other representative to attend a scheduled conference or to have information and authority adequate for responsible and effective participation in the conference for all purposes, including settlement, may constitute a default or a ground for dismissal.

 

5. The court shall excuse a failure to attend a conference or to participate as directed by the court, and shall enter a just Order (other than one of default or dismissal) if the court finds that entry of an Order of default or dismissal would cause manifest injustice or that the failure was not due to the culpable negligence of the party or the party’s attorney. The payment of reasonable expenses may be ordered.

 

Comment – The above changes are effective May 1, 2003. It is very important that the insurance representative (if obligated to attend) has sufficient information and authority adequate for responsible and effective participation in the conference.

Should you have any questions or comments regarding this or any of our newsletters, please feel free to contact us by voice 989.799.3033, e-mail jtc@saginaw-law.com or write to Collison & Collison, P.C., 5811 Colony Drive, North, P.O. Box 6010, Saginaw, MI 48608-6010.

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