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 Unpublished Decisions (or those which have not been published as of the date of newsletter distribution) will be cited by Appellate Slip Opinion number.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 dismissed Plaintiffs’ fraud claim against the sellers’ agent and the real estate agency. The evidence submitted disclose that at Plaintiffs’ request, their agent inquired about the presence of a pipe. The sellers’ responded to this inquiry, but the real estate company did not. Because a claim of silent fraud requires circumstances that establish a legal duty to make a disclosure, and real estate agents do not have a general duty to disclose material defects involving the property to a purchaser, the Trial Court correctly determined that Defendants were entitled to summary disposition. Williston v. Garrow-Loftis Realtors, et al., Michigan Court of Appeals Unpublished Decision Dated February 14, 2006, Docket Number 257647. The holding in this case is self-explanatory. A legal duty to disclose information must exist before silent fraud can occur.

Facts – Mrs. Rakowski sustained injuries when the railing gave way on a handicap ramp at the home of her parents. The record reflected that the City of Dearborn Heights issued a permit to build the ramp. There was no evidence that the railing was completed. Defendant (a Dearborn Heights building inspector) conducted an inspection of the ramp and other building projects at the home. He initialed and wrote "okay" on the final inspection form for the ramp. It was the practice of building officials to conduct only visual inspections, and not destructive testing or stress tests to determine whether structures met weight bearing requirements.

After having reviewed the facts surrounding this incident, as well as Defendant’s status with the City of Dearborn Heights, the Court concluded that the fact that an event may be foreseeable, does not impose a duty upon a Defendant to take some kind of action accordingly. It found that Defendant did not conduct the inspection on behalf of Dearborn Heights as a warranty to the homeowner. Rather, Defendant performed the limited function of visually assessing the ramp for code compliance.

The Court also concluded that Defendant was a qualified governmental actor under Michigan’s Governmental Immunity Statute, and that his conduct did not amount to gross negligence. Rakowski v. Sarb, 269 Mich App 619 (2006).

Recommendation – It was noted in this opinion that the Michigan Supreme Court declined to extend the Public Duty Doctrine to protect all government employees from liability for the failure to perform or the inadequate performance of a duty owed to the public. The grant of such broad, common law immunity to all governmental employees would be inconsistent with the governmental Tort Liability Act which subjects government employees to liability for grossly negligent conduct which was the proximate cause of a Plaintiff’s injuries.

However, Plaintiff must establish that the government employee Defendant owed a common law duty in order to state a valid cause of action.

Facts – Powell (a truck driver for the Defendant), crossed the highway median and ultimately struck Plaintiff’s vehicle head on. The medical examiner attributed Powell’s cause of death to a heart attack which occurred before impact. At the conclusion of discovery, Defendant filed a motion for summary disposition claiming unforeseen sudden medical emergency.

In affirming the Trial Court’s grant of summary disposition, the Court of Appeals noted that the "sudden emergency doctrine" can be used to overcome the presumption of negligence per se imposed by a violation of statute. The doctrine will apply to one who suddenly finds himself in a place of danger and is required to act without time to consider the best means of avoiding the pending danger, even if the person fails to use what upon hindsight, may appear to have been a better method, unless the emergency is brought about by his own negligence. The circumstances attending the accident must be either unusual or unsuspected.

Michigan Law currently recognizes that the chain of proximate causation may sometimes be broken by an intervening cause which is one that actively operates to produce the harm after the negligent conduct of the Defendant has occurred. Davis v. Wisconsin Logistics, Inc., Michigan Court of Appeals Unpublished Decision Dated February 23, 2006, Docket Number 264002.

Recommendation – The sudden medical emergency defense will only be successful where the loss of consciousness or other medical symptom was not foreseeable. When investigating an accident which may have been caused by a sudden medical emergency, complete medical records should be obtained, including annual physicals and other materials which would show the insureds health status.

Facts – Plaintiff sustained neck injuries in an automobile collision. He filed a claim with Defendant, State Farm, maintaining that he was entitled to uninsured motorist benefits and No-Fault personal injury protection benefits under his parents’ policy. The Trial Court granted Defendant’s motion for summary disposition, concluding that Plaintiff did not "reside primarily" at his parents’ home as required by the applicable policy language.

On appeal, Plaintiff alleged that he was entitled to benefits because he could establish residency pursuant to MCL 500.3114(1). That statute (as part of the No-Fault Code) states that a personal protection insurance policy applies to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either, domiciled in the same household.

The Court of Appeals found that the crux of Plaintiff’s argument was that he was attempting to apply No-Fault principles to interpret the uninsured motorist provisions of his parents’ insurance policy. Uninsured motorist benefits are not statutorily required by the No-Fault Act and the language of the policy itself, controls.

The Court found that while Plaintiff might qualify as a "relative" of the named insured, he did not reside primarily with his father as required. Hayes v. State Farm, et al., Michigan Court of Appeals Unpublished Decision Dated February 23, 2006, Docket Number 264445.

Recommendation – The Court makes a good point. Elective coverages (such as uninsured motorist and underinsured motorist) are controlled by contractual language and not statutory definitions. When in doubt as to the meaning of any particular contractual definition, simply use the nearest dictionary to locate the normal usage of an important term.

Facts – Plaintiff was assisting another individual in unclogging a grain truck’s auger system when he was injured. Plaintiff lost his right index finger and a portion of his right middle finger. The Trial Court found that Plaintiff’s injuries were covered under MCL 500.3106(1). Defendant appealed.

Citizens argued that Plaintiff’s injury was not covered by the No-Fault Act because it did not arise out of the use of a motor vehicle as a motor vehicle (MCL 500.3105[1]). The Court disagreed in part, because in its opinion, Plaintiff’s injuries were a direct result of physical contact with equipment permanently mounted on the grain delivery vehicle, while the equipment was being operated or used (MCL 500.3106(b)).

In its analysis, the Court of Appeals found that this case was not factually analogous to Bialochowski v. Cross Concrete Pumping Co., 428 Mich 214 (1987). The Court also stated that McKenzie v. Auto Club Insurance Association, 458 Mich 214 (1998) was "at odds" with the No-Fault statutory scheme. The majority opinion urged that McKenzie be reconsidered by the Supreme Court, or in the alternative, that the legislature clarify the parked vehicle exception.

Judge Zahra’s dissenting opinion concluded that Plaintiff’s injuries did not arise out of the use of a motor vehicle as a motor vehicle. Drake v. Citizens Insurance Co., 270 Mich App 22 (2006).

Recommendation – We suspect that the Michigan Supreme Court will weigh in on this Panels' request for review. The foregoing decision appears to be at odds with controlling authority.

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