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 Unpublished Decisions (or those which have not been published as of the date of newsletter distribution) will be cited by Appellate Slip Opinion number.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 – Plaintiff and a friend went to a local bar, where they shared a pitcher of twelve beers over a period of approximately 2 ½ hours. They then decided to go see a waterfall. During the drive, Plaintiff agreed to go "four-wheeling". While doing so, Plaintiff’s driver drove the truck into a ditch. It subsequently flipped over. Plaintiff suffered a broken neck which required surgery to fuse the bones. Both individuals were found to have had blood alcohol levels above the legal limit.

Suit was filed against Plaintiff’s driver and the owner of the vehicle involved. The defense raised the issue of impairment based on MCL 600.2955(a)(1). The trial court granted summary disposition in favor of Defendants, finding that the Plaintiff had an impaired ability to function due to the influence of intoxicating liquor, and was 50% or more the cause of the accident or event giving rise to her injuries.

In affirming the lower court’s ruling, the Michigan Court of Appeals reiterated the fact that if a Plaintiff chooses to drink and become intoxicated, and chooses to ride with an intoxicated driver, the Plaintiff is 50% or more the cause of any accident that occurs, and the Defendant is entitled to the absolute defense provided by statute (See also Piccalo v. Nix [After Remand], 252 Mich App 675 [2002]). Mallison v. Scribner, et al., 269 Mich App 1 (2005).

Recommendation – Whenever the facts indicate that a Plaintiff voluntarily became intoxicated, voluntarily chose to ride with an intoxicated individual, and voluntarily chose to participate in the event which resulted in the accident, a motion for summary disposition should be filed based upon MCL 600.2955(a)(1).

Facts – Plaintiff was injured while a passenger in a car driven by his wife. They collided with a vehicle driven by Defendant Marin. Plaintiff complained of minor neck and back pain at the accident scene. Subsequent medical examination revealed that he was suffering from serious back conditions which had pre-dated the accident. His physician opined that the accident likely exacerbated the pre-existing problems. Plaintiff underwent back surgery, the need for which his surgeon attributed to the accident.

Defendants moved for summary disposition, claiming that Plaintiff’s injuries did not rise to the level of a serious impairment of body function. The trial court denied that motion. In reversing the lower court, the Court of Appeals held that the focus is not on the Plaintiff’s subjective pain and suffering, but on injuries that actually affect the functioning of the body. To be actionable, residual impairments based on perceived pain must be "physician-imposed restrictions", not "self-imposed restrictions".

In this case, Plaintiffs dwelled on post accident medical diagnosis and the need for surgery, but pointed to few limitations after Plaintiff recovered from his surgery. Plaintiff was under no medically imposed restrictions. Most of his current residuals pre-dated the accident. In summary, Plaintiff failed to satisfy the requirement that his accident related impairments affected his general ability to lead a normal life.  Przygocki v. Marin, Michigan Court of Appeals Unpublished Decision Dated August 23, 2005, Docket Number 261530.

Recommendation – The Court took specific note of the injuries suffered by Plaintiffs in Kreiner v. Fischer, 471 Mich 109 (2004). Such a comparison is a very good starting point in attempting to determine whether a particular claimant potentially suffered a serious impairment of body function.

Facts – Plaintiff asserted that the Trial Court erred in granting involuntary dismissal of Plaintiff’s claims, with prejudice, as a sanction for Plaintiff’s failure to comply with the Scheduling Order. Counsel argued that the failure to timely file an exhibit/witness list should not deprive Plaintiff of its day in court. The Michigan Court of Appeals noted that a written order scheduling a time for filing witness/exhibit lists clearly constitutes a "Court Order" within the meaning of MCR 2.504(B)(1) and (3). The Court held that Defendants had not been specifically informed as to the identity of Plaintiff’s witnesses or exhibits. The fact that they could perhaps conclude who and what they might be was not enough to allow the Court of Appeals to find that the Trial Court had abused its discretion.

Without the testimony of Plaintiff’s witnesses to authenticate certain documents and lay a proper foundation for them, Plaintiff could not meet its burden of proving liability or damages. Comerica Bank v. Alkhafaji, et al., Michigan Court of Appeals Unpublished Decision Dated August 18, 2005, Docket Number 252472.

Recommendation – In determining what sanction may be just and proper under the circumstances, the Court must look at various factors including whether the violation was willful or accidental; the party’s history of refusing to comply with discovery requests; prejudice to the other party, etc.  There should be no hesitancy in filing the appropriate motion for summary disposition in the event Plaintiff’s counsel does not fully cooperate with discovery, or in the event of refusal to disclose potential witnesses and exhibits on a timely basis.

Facts – Plaintiff appealed an Order Granting Defendant’s Summary Disposition on her claim for uninsured motorist benefits. The contract at issue contained a one year statute of limitations for bringing a legal action against the insurance company The Court of Appeals held that the general six (6) year statute of limitations which applies to contract actions, does not grant Plaintiff the right to file an action for breach of contract within six (6) years. Rather, it bars breach of contract actions not filed within six (6) years. As such, the contract did not conflict with the general statute of limitations provision regarding contract actions, because they would both bar actions not commenced within six (6) years.

Finally, the Court held that the one year limitation period was not unreasonable. (See also Rory, et al. v. Continental Insurance Company, 473 Mich 457 [2005]). Pickett-Holmes v. Farm Bureau Mutual Insurance Company of Michigan, Michigan Court of Appeals Unpublished Decision Dated August 23, 2005, Docket Number 253058.

Recommendation – As we have previously indicated, the Michigan Supreme Court has equivocally held that an unambiguous contractual provision providing for a shortened period of limitations, is to be enforced as written unless the provision would violate law or public policy. As such, motions for summary disposition should be filed immediately, where warranted.

Facts – Plaintiff, a pedestrian, was struck and injured by an automobile whose driver was never identified. Plaintiff had a No-Fault insurance policy with Defendant, which provided both No-Fault personal protection insurance coverage and uninsured motorist coverage.

Plaintiff submitted a claim for PIP benefits after the accident. Defendant provided benefits, but later concluded that Plaintiff had made several material misrepresentations in connection with her claim, involving her address, employment, health insurance, and the extent of the attendant care services her sister was providing. Plaintiff subsequently submitted a claim for uninsured motorist benefits. Defendant cited a concealment or fraud clause in the insurance policy, and denied the claim on the basis of the alleged misrepresentations made in connection with the PIP claim. Jones v. Auto Club Group Insurance Association, Michigan Court of Appeals Unpublished Decision Dated August 23, 2005, Docket Number 261089.

Recommendation – A motion for summary disposition should always be filed where claims are based on fraud, concealment, or misrepresentation. As shown by the above, the use of a concealment or fraud clause can have very significant effects on related uninsured motorist claims.

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