Facts – In this case, Plaintiff sustained severe and permanent injuries when he was struck by a drunken driver in 1978 when he was six years old. After the accident, he underwent extensive medical treatment including multiple surgeries. Despite his limitations, he attended college, obtained employment, married, fathered a child, and performed routine activities including driving. In 2000, after an unsuccessful surgery, one of Plaintiff’s three treating physicians prescribed 24 hour attendant care. Allstate paid Plaintiff’s then wife for around the clock attendant care services at the rate of $1,428.00 per week. She stopped furnishing attendant care services one month after Plaintiff’s surgery. Nonetheless, Plaintiff continued to claim attendant care services allegedly provided. Plaintiff went to great lengths to hide this fraud from Defendant. Plaintiff cashed attendant care services checks using his wife’s identification and depositing the money into his bank account. In addition, Plaintiff submitted claims for gym equipment and a special bed, neither of which were purchased. He also stole prescription pads from one of his treating physicians and forged the physician’s name to illegally obtain prescription medication. Defendant paid the claims submitted. Following questions related to the forged receipt and a private investigator’s observations, Defendant notified Plaintiff to appear for an Examination Under Oath as provided for within the policy. When Plaintiff failed to appear, benefits were suspended.

Plaintiff sought payment of attendant care benefits and unpaid medical expenses. Attendant care services totaled $156,376.00 (approximately $8.50 per hour, 24 hours a day for 761 days). Through discovery, it was determined that Plaintiff and his wife separated in November of 2001 and later divorced. Plaintiff then moved to his parents home. Three individuals allegedly provided attendant care. That being his father, his brother and his friend. All three acknowledged that they maintained no records of dates and times they allegedly provided attendant care and never submitted a claim to Defendant for payment of those services. Further, none of them asked Plaintiff for any payment of services provided and Plaintiff never promised them payment. In fact, his brother and friend testified that they did not expect to be paid for their services.

At trial, the jury awarded Plaintiff, $7,610.98 in medical expenses and $78,438.00 in attendant care expenses. The verdict was half the amount Plaintiff sought. Following the award, Defendant moved for JNOV which the trial court granted as it related to attendant care expenses.

On appeal, the Court noted Plaintiff furnished no evidence that he was liable for any attendant care expenses. He did not pay any individual and these individuals testified that they did not expect to be paid. In fact, Plaintiff did not even argue that he was liable or obligated in any way to pay said individuals. Therefore, pursuant to Proudfoot, Plaintiff did not incur attendant care services. Burris v Allstate Insurance Company, Michigan Supreme Court Order 132949, Decided March 7, 2008.

Recommendation – In this case, Plaintiff’s lack of evidence as it related to attendant care expenses was at the far extreme given that Plaintiff did not pay anyone, no individual testified that they expected to be paid, and Plaintiff did not argue that he was liable or obligated in any way to pay for benefits provided. The Court held that in Proudfoot, Plaintiff did not "incur" expenses. It is unclear whether if Plaintiff were to provide a piece of evidence regarding the foregoing that the Court would hold that he incurred expenses.

Facts – Plaintiff, who was a passenger and an insured under her mother’s policy was involved in an accident when she was 15 years old. At the time, Plaintiff’s mother maintained an underinsured motorist insurance policy. Shortly after Plaintiff turned 18 years old, she filed a lawsuit seeking benefits under the policy. Defendant moved to dismiss the action pursuant to MCR 2.116(C)(10) on the ground that the language of the contract barred the action. Pursuant to the policy, "no claimant may bring a legal action against the company more than one year after the date of the accident." Plaintiff responded that the minority tolling provision of the Revised Judicature Act, MCL 600.5851(1) allowed her to avoid the contractual limitation within the policy. The trial court agreed with Plaintiff and denied Defendant's Motion.

On appeal, the Court noted that a review of the legislative history with regard to the minority tolling provision offered little guidance as to the legislature’s intended meaning. Therefore, the Court relied upon the legislative directive of the RJA which "is remedial in character, and shall be liberally construed to effectuate the intents and purposes thereof." MCL 600.102. The purpose of the savings or tolling statute for a person under a disability is to protect the legal rights of those who are unable to assert their own rights and to mitigate the difficulties of preparing and maintaining a civil suit while the Plaintiff is under a disability. Without the tolling provision, the minor’s legal rights are pursued or lost at the discretion of someone to whom the claim does not belong. The Court concluded that a reasonable construction of the phrase "under this Act" contained within the minority tolling provision, MCL 600.5851(1) covers all civil actions brought under the RJA including Plaintiff’s breach of contract action. Klida v Braman, et al., 278 Mich App 60.

Recommendation – MCL 600.5851(1) will toll the running of the statute of limitations if the person is under a disability as defined by statute. In those situations, all investigative materials should be preserved for use at a later date if necessary.

Facts – In this case, the facts in large part were undisputed given the fact that Plaintiff had no memory of the accident. Plaintiff admitted that at the time of the accident, he had alcohol and marijuana in his system. In any event, as Plaintiff was driving his vehicle, he veered into the left lane. In response, Defendant who was traveling in the opposite direction steered his vehicle into the lane in which Plaintiff was supposed to be in. Then, Plaintiff steered his vehicle back into his own lane, wherein the two vehicles collided. Plaintiff suffered severe injury and filed suit claiming Defendant’s negligence caused the collision. Defendant moved for summary disposition arguing there was insufficient evidence of negligence on his behalf. The trial court disagreed and denied the motion.

On appeal, the Court noted there was insufficient evidence that Defendant was negligent. Defendant’s reaction to Plaintiff swerving into the wrong lane, thus going into the left lane himself, was reasonable and in accord with what a reasonably prudent person would do under the circumstances. Defendant had no duty to anticipate the negligent or unlawful conduct of Plaintiff. The Court agreed with Defendant’s argument that Plaintiff’s own testimony confirmed that he acted as a reasonably prudent person under the circumstances. During Plaintiff’s deposition, he admitted that he would avoid a vehicle which was traveling towards him in his lane with a deep ditch on his right by crossing into the other lane to avoid the vehicle and the ditch. The Court took issue with the Plaintiff’s expert "consultant engineer" who testified that Plaintiff’s reaction was much more appropriate than Defendant’s. The Court noted that all the evidence contradicted the expert’s apparent conclusion that Defendant was more at fault than Plaintiff. In addition, pursuant to MCL 500.3135(2)(b), damages shall not be assessed on the basis of comparative fault, except that damage shall not be assessed in favor of a party who is more than 50 percent at fault. In addition, pursuant to MCL 600.2955(A)(1), it is an absolute defense if Plaintiff had an impaired ability to function because of alcohol or drug intoxication and was 50 percent or more the cause of the accident. The Court noted that Plaintiff, a drunk driver, set in motion a chain of events that directly caused the accident. Defendant’s reaction in response to Plaintiff’s action was insufficient evidence that Defendant was more than 50 percent at fault. Therefore, the Court of Appeals reversed the trial court. Barton, III v Gayer, Unpublished Per Curiam Opinion of the Michigan Court of Appeals, Decided March 11, 2008, Docket No. 276932.

Recommendation – When Plaintiff sets in motion a chain of events that directly leads to an accident and Defendant is presented with a sudden emergency and takes evasive action, a motion for summary disposition should be pursued pursuant to MCL 500.3135(2)(b). The motion may also be based upon MCL 600.2955(A)(1) if Plaintiff had an impaired ability to function due to alcohol or drug consumption.

Facts – In this case, Plaintiff was a passenger in a vehicle driven by his girlfriend, Defendant Noblit. He had been involved in a dating relationship with her for approximately three years. They observed a vehicle in the roadway ahead with its hazard lights flashing. Defendant Noblit began to slow her vehicle and moved into the right lane of traffic behind the disabled vehicle. She then asked the disabled travelers if they needed to use her cell phone. She turned off her vehicle and turned on her own hazard lights. Plaintiff then exited his door and went to the disabled vehicle and attempted to start it. He then looked under the raised hood and proceeded back to the trunk of Noblit’s vehicle to retrieve his toolbox. Plaintiff was struck by another vehicle driven by Defendant Weiss.

Plaintiff filed a complaint claiming negligence against the operator of the disabled vehicle and the owner and operator of the vehicle that caused the collision. Later, he filed an amended complaint adding Defendant Noblit to the litigation. As it related to Noblit, it was asserted that she failed to make proper observation of other vehicles, failed to warn Plaintiff of other vehicles and failed to place her vehicle in a safe location. Defendant Noblit filed a Motion for Summary Disposition asserting she had no duty to protect Plaintiff from actions of third-party. The trial court agreed and granted her motion.

A separate action, which was consolidated, sought monies from Defendant’s insurance company for payment of benefits. On March 6, 2004, Defendant Weiss offered to stipulate to an entry of judgment in favor of Plaintiff in the amount of $100,000.00. On March 15, 2004, Plaintiff filed a counter-offer to stipulate to a judgment in the amount of $250,000.00 "against Defendants". There was no indication that the counter-offer was accepted. In any event, Defendant insurance company moved for summary disposition of Plaintiff’s claim for uninsured motorist benefits relying upon the offer to stipulate to entry of judgment. Defendant asserted that the terms of the insurance policy provided for a set off of benefits paid or benefits payable from any person who is or may be legally responsible for bodily injury to the insured. Defendant claimed that the offer of judgment by Defendant Weiss precluded the payment of uninsured motorist benefits pursuant to the terms of the policy. The trial court agreed and granted Defendant’s Motion for Summary Disposition.

In Docket No. 276931, Plaintiff asserted the trial court erred in granting Defendant’s Norblit’s Motion for Summary Disposition. The Court noted that an individual generally has no duty to protect another who is endangered by the conduct of a third person. The ultimate inquiry in determining whether a legal duty would be imposed is whether the social benefits of imposing a duty outweigh the social costs of imposing a duty. Relevant considerations include relationship of the parties, foreseeability of the harm, a burden that would be imposed upon the Defendant and the nature of risk presented. In this case, there was no special relationship between Plaintiff and Defendant Noblit which would give rise to a duty to protect and warn. When Plaintiff exited the passenger side of the vehicle, there was no indication that Noblit exercised any control over Plaintiff’s decision to aid the occupants of the disabled vehicle. In addition, there was no indication that Plaintiff entrusted himself to Defendant Noblit and lost any ability to protect himself. Therefore, the Court of Appeals affirmed the decision of the trial court.

In Docket No. 276933, the Court noted that the construction and interpretation of an insurance contract presents a question of law for the Court. In this case, the policy at issue noted:

"2. Any amount payable under this coverage shall be reduced by any amount paid or payable to or for the insured:

a. By or for any person or organization who is or may be held legally liable for the bodily injury to the insured." (Emphasis added in original).

The Court stated that the term "payable" is defined as "1. To be paid; due . . . 2. Capable of being or liable to be paid" Random House Webster’s College Dictionary (2000), Page 973. Therefore, the Court noted it was not a requirement that payment actually occur. But, setoff was triggered by amounts liable to be paid or that were due. In this case, Defendants Weiss offered to pay a judgment in the amount of $100,000.00. Therefore, the policy setoff provision was triggered. Mozal v Weiss, Michigan Court of Appeals Unpublished Decision Per Curiam, Decided March 13, 2008, Docket No. 276931.

Recommendation – Inquiry must be made whether an individual has a duty to protect another who is endangered by the conduct of a third person including the relationship of the parties, foreseeability of the harm, burden that would be imposed upon the Defendant and the nature of risk presented when deciding whether to file a Motion for Summary Disposition. In addition, pursuant to policy language, a policy setoff provision may be triggered when an individual offers to pay a judgment or settlement.

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