Facts – Plaintiff filed a Complaint alleging liability pursuant to the Michigan Dog Bite Statute (MCL 287.351), or in the alternative, common law negligence. At Trial, the Defendant requested that the Court instruct the Jury that provocation was a complete defense under both of Plaintiff’s theories. The Trial Court refused to do so, noting that the case law which Defendants relied upon, was decided before Michigan became a comparative negligence State. The Trial Court concluded that while provocation was clearly an available defense under the Dog Bite Statute, it would not serve to bar Plaintiff’s common law negligence claim.

The Jury ultimately denied Plaintiff’s claim under the Dog Bite Statute because it determined that Defendant’s dog was provoked. However, the Jury granted Plaintiff’s common law negligence claim, finding that Defendant’s negligence was the proximate cause of Plaintiff’s injuries. The Jury did not find any negligence on the part of Plaintiff.

In affirming the lower Court’s actions, the Michigan Court of Appeals held that the Dog Bite Statute does not abrogate recovery under the common law comparative negligence doctrine. Defendants had relied upon the prior Michigan Supreme Court case of Grummel v Decker, 294 Mich 71 (1940), which held that under the common law, contributory negligence upon the part of the Plaintiff is a defense in a dog bite case. Grummel concluded that any provocation by the Plaintiff was therefore a complete defense for a common law negligence action. Since the Supreme Court decided Grummel, however, Michigan has replaced the doctrine of contributory negligence with the doctrine of comparative negligence. Comparative negligence only serves to reduce the amount of damages a Plaintiff may recover to the extent that the Plaintiff was negligent. Thus, the Trial Court properly refused to instruct the Jury that a finding of provocation would bar Plaintiff’s recovery under the common law. Hill v Hoig, 258 Mich App 538 (2003).

Recommendation – This was a 2-1 decision. In his dissenting opinion, Judge O’Connell pointed out that the Supreme Court had not reversed Grummel. In his view, contributory negligence and provocation are distinct defenses. Judge O’Connell felt that the provocation defense resembles the "open and obvious" doctrine and other duty-based defenses that remain unaltered by the adoption of comparative fault.

Stay tuned. This is a fairly significant decision and we anticipate that the Supreme Court will address this matter in more detail within the relatively near future.

Facts – Plaintiff claimed damages under a policy resulting from alleged Y2K problems. Defendant denied coverage based on an exclusion in the policy. The Trial Court granted Summary Disposition to Defendant.

This insurance policy was originally issued effective July 1, 1996. Thereafter, it was renewed annually. On August 16, 1999, Defendant sent Plaintiff an insurance renewal package which contained the renewal certificates and an invoice for payment. In the package, Defendant also included a Notice of Exclusion, which excluded coverage under the policy for any Y2K problems.

In affirming the Trial Court’s dismissal, the Court of Appeals found that Defendant’s agent had in fact sent a letter regarding the exclusion to Plaintiff’s Executive Director of Business Affairs. That letter specifically indicated an exclusion for computer failure related to year 2000 causes. As such, Plaintiff had noticed the policy changes. Plaintiff was obligated to read the insurance policy and raise questions concerning coverage within a reasonable time after the issuance of the policy. Exclusionary clauses are strictly construed in the insured’s favor. However, a clear and specific exclusion must be given effect. Royal Oak School District v MASB-SEG Property and Casualty, Michigan Court of Appeals Unpublished Decision dated September 16, 2003, Docket No. 235260.

Recommendation – When analyzing a claim for benefits, the existing insurance contract must be read as a whole. This means that all applicable endorsements should be reviewed so as to determine whether the basic policy has been modified in any fashion.

Facts – Plaintiff was driving his motorcycle when an oncoming car driven by Defendant turned left in front of him. As a result, Plaintiff sustained a "boxers fracture" of his hand, a 15 cm. laceration and permanent scarring to his left flank area, and a laceration to his right arm. Plaintiff also had extensive loss of skin due to his slide across the pavement. Plaintiff missed six weeks of work while recuperating. Initially, he was unable to perform any daily activities without the assistance of family members. Within two weeks, however, he was able to complete routine household chores. Following his recovery, Plaintiff experienced virtually no physical limitations.

In upholding the Trial Court’s grant of Summary Disposition as to the serious impairment of body function issue, the Court of Appeals found that Plaintiff’s record of treatment was not extraordinary, and the healing process lacked any substantial complications leading to a disruption of his normal life. Prognoses for recovery was excellent. The only maladies of which the Plaintiff complained were an occasional pain in the hand which he could "shake off’, and a decreased ability to sustain his grip while water tubing. Neither of those consequences rose to the level of impairing Plaintiff’s general ability to lead a normal life.

With respect to the scarring, however, the Court of Appeals found that it was indeed serious. The scar was approximately six inches long, raised and located on Plaintiff’s left abdomen above the waistline. The scar was drastically darker than the surrounding skin, making it immediately apparent and distinguishable. Even though the scar was in an area that would be covered, the Court of Appeals found that the proper inquiry related to the physical characteristics of the scar, not its ability to be covered. As such, the Court ordered that Summary Disposition be granted for Plaintiff on the issue of permanent serious disfigurement. Sanders v Cantin, Michigan Court of Appeals Unpublished Decision dated September 16, 2003, Docket No. 240065.

Recommendation – Although the Court appears to have based its decision upon photographs of the scar, it did not address the issue of whether Plaintiff felt any type of embarrassment, humiliation, etc., due to the presence of the scarring. That type of inquiry should always be made during initial investigation. If Plaintiff does not find scarring to be of a serious nature, then neither should the Trial Court.

Facts – Plaintiff was involved in a motor vehicle accident and allegedly suffered injuries to his neck, back, left shoulder and right leg. Defendant filed a Motion for Summary Disposition arguing that Plaintiff failed to prove an objectively manifested impairment of an important body function affecting Plaintiff’s general ability to lead his normal life. In particular, Defendant argued that an EMG of Plaintiff’s upper and lower extremities was normal, all x-ray studies were negative with the exception of minor degenerative changes in the lumbar spine and left shoulder, and that physical examinations revealed only cervical muscle spasms consistent with cervical muscle strain that was completely resolved within three months from the auto accident. Defendant further argued that these minor and pre-existing problems did not affect Plaintiff’s general ability to lead his normal life because he was able to return to work full-time in nine months from the accident, could take care of his personal needs and engage in recreational activities.

Plaintiff argued that he had been diagnosed with the requisite degree of injury inasmuch as he had sustained cervical and vertebral sprain with paravertebral muscle spasms and a left rotator cuff strain and impingement with associated limited range of motion.

In upholding the Trial Court’s grant of Summary Disposition, the Court of Appeals found that evidence of Plaintiff’s injuries consisted primarily of subjective complaints of discomfort. Because Plaintiff had not established an objectively manifested impairment of a body function, there was no need to address Plaintiff’s general ability to lead his normal life. Rosloniec v Brouilette, Michigan Court of Appeals Unpublished Decision dated September 16, 2003, Docket No. 240245.

Recommendation – In this particular case, the Court of Appeals found that the presence of muscle spasm and limited range of motion were insufficient to constitute a serious impairment of body function. As always, close examination of Plaintiff’s medical treatment should be made in order to determine whether a Motion for Summary Disposition is appropriate.

Facts – This appeal involves the issue of whether Plaintiff suffered a serious impairment of body function as defined by statute. The Michigan Supreme Court had vacated this Court’s previous decision Straub v Collette, 254 Mich App 454 (2002), and remanded the matter for consideration in light of its Order in Kreiner v Fischer, 468 Mich 884 (2003). After consideration of the Supreme Court’s remand Order, the Court of Appeals again reversed the Trial Court’s grant of Defendant’s Motion for Summary Disposition.

In so holding, the Court determined that the effect of an impairment on an injured person is measured by a subjective standard. The question is whether Plaintiff’s injuries affected his general ability to lead his normal life. Although a serious effect is not required, any effect does not suffice either. It is appropriate to compare the person’s lifestyle before and after the accident.

In this particular case, Plaintiff had worked full-time as a cable lineman. Plaintiff had also played the bass guitar in a band that performed almost every weekend and practiced 3-4 days per week. As a result of his injuries, Plaintiff completely lost the use of his left hand for three months. He was off work for approximately two months whereupon he returned part-time. Plaintiff could not play the guitar nor perform household tasks for approximately three months. His physical difficulties continued for at least four months. His injuries significantly affected his general ability to lead his normal life given the work and tasks which he performed before the accident "in his normal life." As such, the Court concluded as a matter of law that Plaintiff suffered a serious impairment of body function. Straub v Collette, 258 Mich App 456 (2003).

Recommendation – It is unknown at this point whether the Michigan Supreme Court will act in any further fashion regarding this particular decision, the Court’s rationale appears to be at odds with the fairly conservative nature of other serious impairment decisions which have come out of the Supreme Court and Court of Appeals. We will keep you advised as to any further developments with respect to this decision. In the meantime, it is suggested that Motions for Summary Disposition based upon lack of serious impairment of body function continue to be filed where appropriate.

Facts – Langenderfer was hired to pour gravel. As the trailer of his truck was raised, the trailer came into contact with overhead electrical wires. As Langenderfer attempted to re-enter the truck to lower the trailer, he was fatally electrocuted. Plaintiff (Tokarski) injured his back when he attempted to pull Langenderfer away from the truck.

Defendant Titan denied first-party benefits because the injury arose from the use of a parked vehicle and none of the statutory exceptions applied (MCL 500.3106). The Court agreed and upheld the Trial Court’s grant of Summary Disposition. Tokarski v Titan Insurance Company, Michigan Court of Appeals Unpublished Decision dated September 11, 2003, Docket No. 238715.

Recommendation – When analyzing a claim for first-party benefits, it is extremely important that all potentially applicable no-fault statutory sections be reviewed in their entirety so as to determine whether the claim is excluded.

Facts – Plaintiff’s vehicle was struck in the rear driven by the Defendant. Plaintiff sought treatment at the Emergency Room. X-rays of her cervical spine revealed degenerative changes, but no fractures or dislocations. Several months later, Plaintiff presented to the Emergency Room with complaints of neck pain. An examination revealed painful range of motion but no motor, sensory or reflex deficits. She was diagnosed with acute radicular pain involvement in the cervical spine. X-rays revealed degenerative changes with some spurring. Other examinations revealed muscle spasm and restricted range of motion. Plaintiff’s family physician ordered a two-month regimen of physical therapy. The physical therapists noted muscle spasms, decreased muscle strength and decreased functional usage.

In reversing the Court’s grant of Summary Disposition, the Court of Appeals held that muscle spasms are an objectively manifested injury. Furthermore, a physical medicine rehabilitation specialist had indicated that Plaintiff’s cervical osteoarthritis (an objectively manifested condition), was at a minimum, aggravated by the accident.

Plaintiff testified that as a result of her injuries, she could no longer lift objects of even moderate weight, perform household chores for any length of time, stand or sit for prolonged periods or garden. She claimed that she could no longer engage in various charitable activities or participate in some social activities at her church because she could not drive for an extended period and could not lift and move objects such as chairs. A question of fact existed as to whether Plaintiff’s injury affected her ability to lead her normal life. Alfaro v Beck, Michigan Court of Appeals Unpublished Decision dated September 9, 2003, Docket No. 239892.

Recommendation – It is difficult to reconcile this particular case with prior published decisions, especially considering the rather minor nature of Plaintiff’s complaints. Again, Motions for Summary Disposition based upon lack of serious impairment of body function should continue to be filed whenever circumstances warrant.

Facts – Plaintiff’s decedent was killed in an automobile accident during the course of his employment. Defendant Auto-Owners was the first in order of priority for payment of no-fault benefits. The issue presented in this case was how to properly calculate liability for payment of replacement service benefits under MCL 500.3108, in light of the statutory maximum benefit contained in that section, and the set off provision in MCL 500.3109.

Because neither Workers’ Compensation Survivor’s benefits nor Social Security Survivor’s benefits include, or are required to include, replacement services costs, sub-section 3109(1) set off benefits pertain only to economic loss benefits. The Court found that the first step is to determine the Survivor’s Loss benefit and then compare it to the statutory maximum ceiling. Only then is the MCL 500.3109 set off provision applied. Wood v Auto-Owners Insurance Company, Michigan Supreme Court Decision dated September 9, 2003, Docket No. 121970.

Recommendation – The Supreme Court in its discussion, set forth various formulas for making a precise determination regarding benefits owning. It is recommended that anyone attempting to make these calculations review this Opinion in its entirety and follow the Court’s specific guidelines.

Facts – Defendant leased a manufacturing facility to Plaintiff’s employer. The employer retained exclusive possession of the premises at all times. In fact, it had replaced the concrete floor in the facility.

Plaintiff sustained injury when a piece of equipment she was moving became caught in a crack in the floor and fell on her. She filed suit alleging that Defendant (property owner) knew or had reason to know of the dangerous condition of the floor and negligently failed to maintain the premises.

The Trial Court granted Defendant’s Motion for Summary Disposition, concluding that the Defendant did not owe a duty to maintain the floor. Pursuant to the terms of the original lease, the employer was responsible for maintenance and repair.

In affirming the lower Court’s ruling, the Court of Appeals held that liability depends upon actual possession of and control over the premises. Possession does not turn on a theoretical or impending right, but instead depends on the actual exercise of domain and control over the property. Under the lease agreement in effect, Defendant had no duty to repair or maintain the floor. Webb v Meca Associates, Michigan Court of Appeals Unpublished Decision dated September 18, 2003, Docket No. 240067.

Recommendation – When investigating a premises liability claim, one should always make a determination as to the identity of the party having both possession and control over the area at issue. As illustrated above, there may exist a lease agreement which requires that someone other than the owner of the property, perform maintenance. In this particular case, Plaintiff’s remedy appears to have been limited to a claim for Workers’ Compensation benefits.

Facts – Certain parking spots were specifically designated for handicap use. An asphalt ramp near these parking spots connected the parking lot to the front sidewalk. The edges of the ramp were outlined in yellow. Plaintiff had been a regular patron of the restaurant for many years, visiting that establishment approximately 1-2 times per week. On the morning in question, Plaintiff was exiting Defendant’s establishment and lost her footing on the edge of the ramp. The Court of Appeals found that the existence of a building code violation, even if established, does not necessarily mean that an unreasonably dangerous condition exists, since building codes may require stricter safety guidelines than those required by our State’s common law tort jurisprudence. An invitor may be liable to the city or state for a code violation, while at the same time remaining free from liability toward invitees. Telesz v Papageorgiou Investment Company, Inc., Michigan Court of Appeals Unpublished Decision dated September 16, 2003, Docket No. 241537.

Recommendation – Where a premises defect is alleged, contact with the local building inspector may in fact yield favorable results. Although violation of a local building code may not preclude a grant of Summary Disposition as illustrated above, compliance with the code can be used to bolster the Defendant’s argument that property was maintained in a reasonably safe condition.

Facts – Plaintiff’s vehicle was hit by Defendant’s vehicle during an accident which occurred at an icy intersection. Plaintiff contended that the Court erred in giving an instruction with regard to a "sudden emergency" defense based on the circumstances presented.

The Court found that an "unusual" situation would exist where there was a variance from the everyday traffic routine confronting a motorist such as a phenomenon of nature. The term "unsuspected" refers to a potential peril within everyday movement of traffic which is unexpected. In this particular case, the black ice encountered by Defendant could be considered unsuspected and thus warrant the giving of a sudden emergency instruction.

Defendant had testified that he checked the roads by pumping his brakes about three-quarters of a mile from the intersection. The roads were not slippery at that point. Defendant was traveling about 10 miles an hour below the speed limit when he started braking for a stop sign and lost control of his truck. A law enforcement vehicle responding to the scene (coming from the same direction as Defendant) also slid into the intersection. Therefore, Defendant presented sufficient evidence to negate an inference of negligence.

The Court also concluded that while knowledge of potentially icy conditions can weigh against giving the sudden emergency instruction in cases involving violation of the "assured clear distance" statute, the instant case involved the stop sign statute. In any event, the Court believed that an icy patch could be deemed "unsuspected" despite the generally slippery road conditions. In addition, the Court noted that the rule of assured clear distance does not come into being until there is a visible object in the road in front of the driver. Bills v Thorlund, Michigan Court of Appeals Unpublished Decision dated September 9, 2003, Docket No. 236825.

Recommendation – The "sudden emergency" defense is not limited to icy or slippery road conditions. When investigating a claim, great care should be taken to explore all possible defenses. If the insured driver encountered an unusual or unsuspected condition which varied from the everyday traffic routine a sudden emergency defense may well be a viable option.

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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