Facts – While deer hunting in the same blind, Daniel unintentionally shot Bearinger. Both of those individuals had been drinking beer prior to the incident. Daniel eventually pleaded guilty to a charge of careless discharge of a firearm resulting in injury.

Bearinger filed a personal injury tort claim against Daniel. Although the Auto Club provided defense counsel, it later filed a declaratory judgment action to determine whether it was contractually obligated to provide a defense or indemnify the insured. The Trial Court held that the "criminal act" exclusion in Daniel’s policy eliminated any duty by the Auto Club to defend or indemnify.

In upholding the Trial Court’s grant of Summary Disposition, the Court of Appeals indicated that an insurance company will not be held responsible for a risk that it did not assume. An unambiguous policy must be enforced as written. There was no dispute that this incident met the definition of "criminal act or omission" as defined by the policy, because Daniel pleaded guilty to the criminal charge of careless discharge of a firearm.

The Court also indicated that the exclusion at issue was not void as against public policy. An insurance company is free to limit its liability as long as it does so clearly and unambiguously. Likewise, there was no support for the claim that the criminal exclusion provision rendered the policy "illusory". The Court noted that as a matter of public policy, an insurance contract which excludes coverage for a person’s criminal acts, serves to deter crime. A policy which provided benefits to those who committed crimes, would encourage criminal behavior. Auto Club v Daniel, Michigan Court of Appeals Unpublished Decision dated September 13, 2002, Docket Number 231706.

Recommendation – Any claim investigation should also include a determination as to whether criminal charges were filed against either the claimant or the insured as a result of the incident at issue. If so, a complete copy of the criminal file should be obtained along with all preliminary hearing, plea and sentencing transcripts. As illustrated above, the type of plea made by an insured could greatly affect that person’s entitlement to insurance coverage.

Facts – Plaintiff claimed that immediately prior to the collision, he was in the intersection, or so close to the intersection as to constitute an immediate hazard within the meaning of MCL 257.650(1), when Defendant made his left turn. Plaintiff’s claim was supported at least in part by a conclusory affidavit. Notwithstanding that fact, the Trial Court found no genuine issue of material fact.

In upholding the lower Court’s decision, the Court of Appeals indicated that the above-cited statute does not require a motorist to anticipate the negligent or unlawful acts of another motorist. Plaintiff’s right to recover depended on his ability to prove a wrongful act on the part of the Defendant, which he failed to do. Aljahmi v Thomas and Roadway Express, Inc., Michigan Court of Appeals, Unpublished Decision, dated August 30, 2002, Docket Number 229617.

Recommendation – If a Plaintiff cannot prove that the Defendant was negligent in some respect, his/her claim should be dismissed. An aggressive investigation into the facts of any particular accident should be made as quickly as possible. All potentially beneficial testimony should be preserved via recorded statement or otherwise.

Facts – This case was remanded back to the Michigan Court of Appeals by the Supreme Court with instructions to determine whether there was sufficient evidence to show that Plaintiff was 50% or more the cause of the accident or event that resulted in the claimed injury. MCLS 600.2955(a) provides that it is an absolute defense in an action for the death of an individual or for injury to a person or property, that the individual upon whose death or injury the action is based had an impaired ability to function due to the influence of intoxicating liquor or a controlled substance, and as a result of that impaired ability, the individual was 50% or more the cause of the accident or event that resulted in the death or injury. If the individual described in this sub-section was less than 50% of the cause of the accident or event, an award of damages must be reduced by that percentage. The term "event" was defined as "something that happens or is regarding as happening; an occurrence, especially one of some import" or "the outcome, issue or result of anything." Given this broad definition, it was believed that Plaintiff’s actions did cause the "event" which resulted in his injuries. Piccalo v Nix, Michigan Court of Appeals Published Decision dated August 30, 2002, Docket Number 212752.

Recommendation – If it appears that a claimant may have had an impaired ability to function due to the influence of intoxicating liquor or a controlled substance, all facts which might back up that conclusion should be well-documented. If necessary, the services of a toxicologist should be retained for a quick analysis.

Facts – Defendant testified that Plaintiff’s injuries were the result of Defendant "sliding" into third base while Plaintiff was in a position between second and third base. According to the Defendant , he "tagged up" and ran toward third, making a decision to slide when he was three feet from the Plaintiff and he saw Plaintiff catch the ball. Plaintiff testified to the contrary. Defendant did not slide into third base. Rather, Defendant deviated from the base path and ran into Plaintiff who was standing on the infield side of third base, and tackled him. Plaintiff sustained a broken ankle.

The Court of Appeals held that co-participants in a recreational activity owe each other a duty not to behave recklessly. A participant in a sporting event may be held liable for injuries resulting from his recklessness. A question of fact existed as to the manner in which this incident occurred. Leggert v Rewekant, Michigan Court of Appeals Unpublished Opinion dated September 10, 2002, Docket Number 233213.

Recommendation – Again, a thorough investigation will assist in determining whether "recklessness" is a legitimate issue. In a case such as this, however, it may be hard to find impartial witnesses. Begin your inquiry with the game officials.

Facts – Plaintiff was driving a motorcycle when she came upon a slow-moving van. Plaintiff drove at least partially into the oncoming lane on two occasions in order to peer around the van to determine whether traffic was clear to pass. Plaintiff claims that she did not seen any vehicle in front of the van. On her third attempt at passing, Plaintiff accelerated. When she came alongside the van she noticed for the first time that there was a farm tractor ahead, traveling in the same direction. Within seconds of that observation, the tractor suddenly veered to the left in front of the motorcyclist. There was no indication that such a maneuver was about to occur. Plaintiff had no room to move to the right and swerved left to avoid a collision. Unfortunately, Plaintiff did sustain injury which required medical treatment.

As part of her first-party claim, Plaintiff asserted that the van was "involved" in the accident because it had been "tailgating" the tractor. But for that fact (it was claimed) Plaintiff believed that she would have observed the tractor and would have been able to avoid the whole incident.

In upholding the Trial Court’s denial of Defendant’s Motion for Summary Disposition, the Court of Appeals indicated that although there must be an "active link" between an injury and the use of a motor vehicle as a motor vehicle for "involvement" to occur, physical contact is not required, nor is fault a relevant consideration. Even a parked vehicle can be involved in an accident. The Court held that, in this case, the van prevented Plaintiff from completing her traffic maneuver in a safe manner by blocking her view of the tractor. As such, benefits were deemed to be owing. Fryman v State Farm, Michigan Court of Appeals Unpublished Decision dated August 27, 2002, Docket Number 227423.

Recommendation – The Appellate Courts appear to be willing to determine entitlement to first-party benefits on a case-by-case basis. Do not let this decision affect the way a similar case may be handled by your office.

Facts – Plaintiff resided in a home leased from Defendants. Before executing the lease, Plaintiff examined the premises and noted the condition of a swinging door. The glass was visibly brittle and one pane was cracked but held together by a piece of duct tape. On the date in question, Plaintiff went to open the door and put her hand through one of the panes of glass.

In reversing the Trial Court’s grant of Summary Disposition, the Court of Appeals held that Plaintiff had alleged the existence of a statutory duty owed by Defendants as landlord to a tenant. There also existed a claim for breach of contract. Clark v Huckleberry, Michigan Court of Appeals Unpublished Decision dated September 3, 2002, Docket Number 231929.

Recommendation – Where a tenant asserts a claim for personal injury sustained by virtue of some defect on the premises, a copy of the lease or any other agreements executed by such individuals should be obtained and immediately reviewed. Oftentimes, a tenant will agree (as part of the lease) to be responsible for certain repairs or conditions.

Facts – The criminal episode began with an attempted theft of a salon customer’s truck or something in it. The salon owner heard a noise and went to investigate. Plaintiff’s decedent followed him outside. The thief did not pose an immediate danger to anyone. He was not known to be armed, did not attack or otherwise try to harm anyone. Plaintiff’s decedent did not engage in an altercation with him, and they had not previously been involved in a dispute. A disturbance arose after Defendant tried to capture the thief, but it was not foreseeable that Plaintiff’s decedent would be injured because the last Defendant knew, Plaintiff’s decedent had run back into the salon.

In upholding the Circuit Court’s grant of Summary Disposition on behalf of the defense, the Michigan Court of Appeals found that harm must be foreseeable to an identifiable invitee and preventable by the exercise of reasonable care. The duty of a merchant to use reasonable care to protect its invitees from the foreseeable criminal acts of third parties, is triggered by specific acts occurring on the premises that pose a risk of imminent and foreseeable harm to an identifiable invitee. There is no obligation to otherwise anticipate the criminal acts of third parties.

The Court also indicated that whether the invitee is foreseeably endangered is to be gauged not from past incidents of criminal activity on the merchant’s premises, but rather, whether a criminal act in general was foreseeable. Dawkins v Image of Beauty Hair Salon, Michigan Court of Appeals Unpublished Decision dated September 10, 2002, Docket Number 233181.

Recommendation – As illustrated above, when investigating a claim which arises by virtue of a criminal activity, one must determine whether the harm claimed to the business invitee was foreseeable as well as preventable by the exercise of reasonable care.

Facts – Plaintiff was injured while riding as a passenger on an ATV which was being driven on Defendant’s property. The Trial Court granted Defendant’s Motion for Summary Disposition on the grounds that Plaintiff’s suit was barred under the Recreational Land Use Act.

In reversing the Trial Court’s decision, the Court of Appeals held that although nothing in the statutory language indicates that the statute (MCL 324.73301, is not applicable to the backyards of residential property such as the Defendant’s, it has been construed to apply to large tracts of undeveloped land suitable for outdoor recreational uses and not to urban, suburban or subdivided lands.

Inasmuch as Defendant’s property was zoned as single family residential (and was both subdivided and improved), the property was classified as either urban or suburban land. Furthermore, while it could be argued that the wooded portions of Defendant’s 12-acre plot are covered by the RUA because of their undeveloped nature and the impracticability of keeping these areas safe for public use, it was undisputed that Plaintiff’s injuries were incurred while riding over an uneven area of Defendant’s lawn. Where an injury occurs on an improved portion of an otherwise relatively undeveloped tract, the RUA does not apply. Neal v Wilkes, Michigan Court of Appeals Unpublished Decision dated September 17, 2002, Docket Number 230494.

Recommendation – Where it is determined that Plaintiff’s injuries occurred on an undeveloped tract of land, one should attempt to determine whether the Recreational Use statute might act to bar the claim.

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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