Facts – During the course of discovery in a civil action, Plaintiff was sent for Independent Medical Evaluation. Before the exam, Plaintiff told the doctor that surgery had been performed recently on his shoulder. He also informed the physician that his surgeon had placed restrictions on the movement of the right arm and shoulder. During the course of the examination, Defendant nonetheless forcefully rotated Plaintiff’s right arm and shoulder, detaching the labrum. This required Plaintiff to undergo surgery to repair the damage.

In reversing the prior decision of the Michigan Court of Appeals, the Supreme Court held that an IME physician has a limited physician/patient relationship with the examinee that gives rise to limited duties to exercise professional care. The limited relationship imposes a duty on the IME physician to perform the examination in a manner not to cause physical harm to the examinee.

According to the Court, if the IME physician’s alleged negligence sounds in malpractice, he will be able to avail himself of the evidentiary protections the legislature has granted to physicians in other circumstances. Dyer v Trachman, 470 Mich 45 (2004).

Recommendation – It is doubtful that this decision will affect the manner in which most physicians conduct Independent Medical Evaluations. In one sense, the Court has indicated that instead of acting as Defendant’s agent, the IME physician now has a "limited" relationship directly with the individual being examined.

Facts – Defendant drank for six or seven hours while attending a Christmas party. He called his wife to pick him up because he was concerned about his ability to drive safely, but later changed his mind. On the way home, Defendant failed to stop at a stop sign and collided with an ambulance. The insurer then filed an action seeking recovery for damage to the ambulance.

In affirming the decision of the Court of Appeals (but for different reasons), the Court held that Section 3135(3) makes unmistakable, its intent to define where immunity is lost. The statute makes no reference to "willful and wanton". Accordingly, in analyzing Section 3135(3)(a), the Courts are to review only whether the Defendant intended to cause the harm that resulted. Because Defendant did not intend to cause damage to the ambulance, he was found to be immune from suit. American Alternative Insurance Company, Inc. v Farmers Insurance Exchange, et al, Michigan Supreme Court Opinion dated May 5, 2004, Docket No. 121968.

Recommendation – This case involves the interpretation of statutory language. The Michigan Supreme Court was unwilling to become involved in a discussion as to whether "willful and wanton" conduct can rise to the level of an intentional act. This Court gave effect to a plain reading of the statute. Expect similar results where other issues of statutory interpretation are involved.

Facts – This case arises out of a dispute between insurers regarding liability for Plaintiff’s personal protection insurance benefits claim. Plaintiff testified at her deposition that while she was a passenger on a motorcycle, a motor vehicle seemed to be coming toward her, head-on. In order to avoid a collision, the motorcycle driver swerved and/or slammed on his brakes, causing he and Plaintiff to hit the ground. The police were unable to locate the motor vehicle and there was no information regarding the vehicle, its driver or its insurance.

Plaintiff’s own insurer argued that because the insurer of the motor vehicle could not be identified, Plaintiff should obtain benefits through the Michigan Assigned Claims Facility. The Court disagreed and adopted the general rule for payment of personal protection insurance benefits as set forth in MCL 500.3114(1). As such, Plaintiff’s own insurer was found responsible for payment of benefits. Frierson v West American Insurance Company, et al, Michigan Court of Appeals Published Decision dated May 4, 2004, Docket No. 244664.

Recommendation – To reach the above decision, the Michigan Court of Appeals necessarily concluded that the automobile at issue was "involved in the accident". In other words, it actively (as opposed to passively), contributed to the accident. Given this holding, it is always advisable to make a thorough investigation of any accident which may have involved the ownership, operation, maintenance or use of a motor vehicle.

Facts – Plaintiff sustained injury in a motor vehicle accident. The Trial Court granted Defendant’s Motion for Summary Disposition, concluding that Plaintiff had failed to demonstrate that a genuine issue of material fact existed with respect to whether Plaintiff suffered a serious impairment of body function under MCL 500.3135. In reversing the Trial Court, the Michigan Court of Appeals held that Plaintiff had submitted sufficient documentary evidence to create an outcome – determinative factual dispute. Plaintiff submitted documentary medical evidence that indicated that she had experienced bilateral paraspinal spasms to the lumbar and sacral vertebrae as well as cervical and thoracic spasms. Where muscle spasms are medically observable, there exists proof of an objectively manifested injury.

The Court determined that factual questions and issues remained for the trier of fact with respect to whether Plaintiff’s pain and muscle spasms arose out of the accident, whether the spasms were an indication of a back and neck problem serious enough to actually impair Plaintiff’s functioning, and whether a soft tissue injury was in fact the cause of Plaintiff’s alleged limited functioning. The movement of one’s back is an important body function. Crigler v Bryan, Michigan Court of Appeals Unpublished Decision dated April 29, 2004, Docket No. 246174.

Recommendation – This particular decision illustrates the split of authority as to whether muscle spasm constitutes objective evidence of injury as required to prove serious impairment of body function. We suspect that the Michigan Supreme Court will more fully address this particular issue in the near future.

Facts – Plaintiff fell into an open pit at Defendant’s place of business. He had taken his vehicle for an oil change and to have the interior of his automobile cleaned. Plaintiff pulled into the service bay where there was a pit underneath his car for Defendant’s employees to change his oil. He exited his vehicle and walked toward the customer service lounge. As Plaintiff walked along the left side of his car, he turned to his right, directly in front of his car and fell into the open pit. As a result, he sustained significant injuries to his right leg and left ankle.

Defendant had moved for Summary Disposition arguing that the oil pit was at all times open and obvious. Plaintiff argued that because the business was dimly lit and there were no cautionary signs regarding the open pit, there were genuine issues of fact. The Trial Court granted Defendant’s Summary Disposition. The Court of Appeals agreed.

Plaintiff had admitted that despite the lighting, he was able to see the manager. Additionally, he had been to this particular location more than five times, and was aware that there were open pits in the floor. Because the pits at Defendant’s business were expected, the Court found no special aspects that made them unreasonably dangerous. Additionally, the red floor surrounding the red pit and the three inch yellow vertical metal barrier constituted reasonable precautions, reasonable warnings or remedial measures. Lamb v DAV Tyre Enterprises, Inc., et al, Michigan Court of Appeals Unpublished Decision dated April 29, 2004, Docket No. 243770.

Recommendation – Again, Michigan Courts appear to be taking the position that a Plaintiff will be held accountable for his/her own actions when it comes to making appropriate observations and avoiding hazards which should (to a reasonably prudent person) be open and obvious conditions. As this case illustrates, the more familiar an individual is with a location, the less likely the Court will be to find a premises defect.

Facts – Under the Wrongful Death Act (MCL 600.2922), a Wrongful Death action must be brought by, and in the name of the Personal Representative of the Decedent’s Estate. The Estate (not the heirs) may bring an action. The duly appointed Personal Representative acts for, or represents, the Estate. The Estate’s cause of action does not transfer over to, or become the right of the Personal Representative. The Personal Representative is a separate entity from the Estate. While an individual may have the right to represent himself in his own proper person, the individual is not the true Plaintiff in this case. In other words, the Personal Representative was not representing himself in this litigation. Instead, he was representing a client, the Estate and was thus engaged in the unauthorized practice of law. Shenkman v Bragman, et al, 261 Mich App 412 (2004).

Recommendation – The above situation does not occur with any regularity. One should however be on the look out for appointed representatives who appear to be acting in a manner inconsistent with their obligation to represent a deceased or incapacitated individual.