Van Til
v
Environmental
Resources Mgt
128283
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A judge admits that his conduct, which included an angry confrontation with a driver parked near the judges’ entrance to the courthouse, violated two of the ethical rules governing judges’ behavior. This is not the judge’s first violation. Should the judge be suspended for one year without pay, as recommended by the Judicial Tenure Commission (JTC)? Can the judge be compelled to undergo psychological counseling?

The Paternity Act gives circuit courts jurisdiction over proceedings about support payments for children born out of wedlock. The act defines a child born out of wedlock as a child born to a mother who was not married from the date of conception to birth, or a “child that the court has determined to be a child born or conceived during a marriage but not the issue of that marriage.” In this case, the child was conceived before the defendant’s divorce from her husband. The husband did not know that the defendant was pregnant, and the default divorce judgment states that it “appear[s] that no children were born of this marriage and none are expected.” The plaintiff, who allegedly had a sexual relationship with the defendant while she was still married, filed a paternity action, claiming to be the child’s biological father. Does the plaintiff lack standing to proceed under the Paternity Act, MCL 722.711 et seq., where the child’s mother was married at the time of the child’s conception? Does the default divorce judgment amount to a determination by a court that the child is “not the issue of [the defendant’s] marriage”?

Bierlein
v
Schneider
128913
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A personal injury action involving a minor plaintiff was settled, but not in compliance with MCR 2.420(3) and (4)(a): no conservator was appointed and no bond was approved by or filed with the probate court. More than one year passed before it was discovered that the minor child’s attorney embezzled the settlement funds; the Court of Appeals held that the case could not be reopened. Under these circumstances, did the circuit court have subject matter jurisdiction to approve the settlement and enter an order of dismissal? Should the settlement be reopened?

In this 2002 no-fault lawsuit, can the plaintiffs recover attendant care benefits that relate to care that their injured son received from 1996 through 1999? Or does MCL 500.3145(1), often referred to as the one-year-back rule, prevent the plaintiffs from recovering any attendant care benefits that were incurred more than one year before the date that their lawsuit was filed?

The two defendants made statements to police regarding the crime. At a hearing on their motions to sever the trial, both made an offer of proof indicating that they were going to testify. Based on those offers, the trial court determined that the defendants’ various statements could be admitted during a joint trial without violating either defendant’s constitutional rights, so long as the jury was instructed to consider each statement only against the person who made it. The statements were admitted into evidence, but the defendants ultimately decided not to testify. The Court of Appeals found that they were denied their right of confrontation by the admission, at their trial, of the nontestifying co-defendant’s statements. Are the defendants entitled to a new trial?

In Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004), the United States Supreme Court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt or admitted by the defendant. In this case, the sentencing guidelines would have called for a cap of twelve months in jail (an “intermediate sanction”) had the sentencing judge not made additional factual findings that had the effect of increasing the defendant’s sentencing guidelines and permitting the imposition of a term of imprisonment. Does the defendant’s sentence violate Blakely?

This case concerns the rules that apply to compulsory arbitration of labor disputes in municipal police and fire departments. MCL 423.238 states that: “At or before the conclusion of the hearing held pursuant to section 6, the arbitration panel shall identify the economic issues in dispute . . . . The determination of the arbitration panel as to the issues in dispute and as to which of these issues are economic shall be conclusive.” In this case, the arbitration panel refused to accept an additional issue presented to it by the plaintiff at the start of the final hearing. Did the arbitration panel’s refusal to accept the new issue violate MCL 423.238? Does a reviewing court have the authority to direct the arbitration panel to reconsider its determination of the issues involved in the dispute?

A premises owner owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition. Lugo v Ameritech Corp, Inc, 464 Mich 512, 516 (2001). However, a premises owner is not required to protect an invitee from an open and obvious condition unless special aspects of the condition make it unreasonably dangerous. In this case, the plaintiff slipped and fell on the defendant’s icy parking lot. Was the plaintiff an invitee? If so, was the danger posed by the icy parking lot open and obvious? Did any “special aspects” exist?

A governmental agency having jurisdiction over a highway has a duty to "maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel." MCL 691.1402(1). Is a highway shoulder part of the roadway designed for vehicular travel, thus making a road authority liable in tort for failing to maintain the shoulder portion of the roadway?

The defendant, a felon, had a gun when the car he was in was stopped by police; the gun was broken and missing several parts. In light of the fact that the gun did not work, was he properly convicted of felony-firearm and being a felon in possession of a firearm?

Carboxy THC is a natural byproduct of THC, which is the pharmacological component of marijuana. Is carboxy THC a schedule 1 controlled substance under the Michigan Motor Vehicle Code? And in prosecuting a driver for causing death while operating a motor vehicle with "any amount" of a schedule 1 controlled substance in the driver's body, must the prosecutor prove beyond a reasonable doubt that the defendant knew that ingesting the controlled substance may cause intoxication?

A putative father does not have standing under the Paternity Act to establish the paternity of a child born while the mother was legally married to another man, when there has been no prior determination that the mother's husband is not the child's father. In this case, the plaintiff filed a complaint seeking a filiation order to establish that he was the child's father. In his pleadings, the plaintiff represented that the mother was not married when the child was conceived or born, when in fact, the mother had been legally married to another man. The plaintiff did obtain a filiation order but, more than a year after it was issued, the mother moved to set it aside, arguing that the plaintiff did not have standing to obtain it and that the order was void . Under these circumstances, is the filiation order invalid because there was no prior determination that the child was not the product of the mother's marriage to another man? Was the mother required, under Michigan Court Rule (MCR) 2.612(C)(2), to challenge the order within one year of its issuance?

Opinion
05/31/06>>

To bring an action for noneconomic tort damages under the no-fault insurance act, MCL 500.3135(1), a plaintiff must establish a "serious impairment of body function." The act defines "serious impairment of body function" as "an objectively manifested impairment of an important body function that affects the person's general ability to lead his or her normal life." MCL 500.3135(7). Did the plaintiff suffer a serious impairment of body function?

Does an insurance agency that issues a certificate of insurance to its principal owe a duty of care to other entities that may ultimately rely on the certificate? Was liability properly allocated in this case?

The plaintiff Village of Lincoln filed a lawsuit seeking to enforce a local ordinance. Does "public policy" prohibit defendant Viking Energy from challenging the manner in which the ordinance was enacted? Is the issue of whether the ordinance was properly enacted moot? Has Viking Energy abandoned the procedural challenge to the ordinance by failing to raise it pursuant to MCL 125.585(11)?

A married couple made mutual wills providing that "all our property" would be disposed of according to the wills' terms. After the wife died, her widower transferred property to two people who were not named in the couple's wills. After the husband died, the beneficiaries of the wills sought to have the property returned to his estate. Was the husband free to revoke his will or to dispose of the property he inherited through his wife's will? Was the real property subject to the wills' terms?

The plaintiff was injured while skiing at the Mt. Brighton resort. Is his lawsuit barred by the "assumption of risk" provision of the Michigan Ski Area Safety Act?

Order
03/24/06>>

The defendant was driving his employer's car when he rear-ended another vehicle. Does the defendant's personal no-fault policy provide coverage for this accident?

The plaintiff, whose house and children were contaminated by mercury, sued the defendant, a county health department employee. The plaintiff claimed that the county employee was grossly negligent for, among other things, failing to tell her to immediately evacuate the house. Under a state statute, governmental immunity does not protect a government employee from liability if the employee's actions amount to "gross negligence" and if the gross negligence was the proximate cause of the plaintiff's injuries. Do the defendant's actions amount to gross negligence? Were his actions the proximate cause of the children's injuries?

The defendant, who was charged with a fatal drive-by shooting, at first claimed that he was not at the scene of the crime. Later, he admitted firing the shots, but told police that he did not intend to hit anyone. Did the trial court err by forcing the defendant to choose between his alibi defense and a jury instruction on lesser included offenses?

The plaintiff in this case retired from her job about a week after leaving on vacation. Three years after the effective date of her retirement, she sued her former employer for sex and age discrimination. Does the three-year statute of limitations for civil rights lawsuits bar her claims? Did the plaintiff show that there was an ongoing hostile work environment through her resignation date?

Is the disability policy in this case governed by contract law or by the Employee Retirement Income Security Act (ERISA), 29 USC § 101 et seq .? If the policy is not governed by ERISA, does policy language that requires the claimant to submit "satisfactory written proof of loss" permit a court reviewing the disability insurer's claim determination to apply a de novo standard of review? Or should the insurance company's disability determination be reviewed under the more deferential abuse of discretion standard?

The trial court granted the defendants' motion for summary disposition and then denied the plaintiff's motion for reconsideration, in which the plaintiff argued for the first time that there was an additional basis for imposing liability on the defendants. Did the Court of Appeals err when it determined that the trial court's denial of the motion for reconsideration was an abuse of discretion?

MCL 418.315(1) states that a magistrate may "prorate attorney fees at the contingent fee rate paid by the employee" in a worker's compensation case where medical expenses are awarded. Should an attorney fee come out of the medical award or be imposed in addition to it?

To bring an action for noneconomic tort damages under the no-fault insurance act, MCL 500.3135(1), a plaintiff must establish a "serious impairment of body function." The act defines "serious impairment of body function" as "an objectively manifested impairment of an important body function that affects the person's general ability to lead his or her normal life." MCL 500.3135(7). Did the plaintiff suffer a serious impairment of body function?

In a medical malpractice case, does the dismissal with prejudice of the plaintiffs' claim against the defendant physician require dismissal of the plaintiffs' vicarious liability claim against the hospital?

In sentencing criminal defendants, trial courts use statutory "offense variables," which assign a number of points based on various factors in the crime; the number of points is used to determine the length of the sentence. In this case, the defendant objects to the trial court's decision to assess 10 points under OV-10, for exploitation of a vulnerable victim, and 25 points under OV-11, for a second sexual penetration. Is the defendant entitled to a new trial or resentencing? Did the trial court err by allowing into evidence the defendant's prior felony convictions?

Is negligent nuisance an exception to governmental immunity? Does a fire that starts in the space between the inner and outer wall of a leased premises trespass when it burns the premises?

Emergency medical services personnel and city employees attended the plaintiff after he was seriously injured at work. Did their treatment of the plaintiff at the scene of the injury amount to gross negligence? Were these defendants the proximate cause of the plaintiff's injuries? Is the plaintiff's claim against the city employees one for medical malpractice? If so, were the city employees required to file a medical malpractice affidavit of meritorious defense pursuant to MCL 600.2912e?

This case concerns the meaning of a "cooperation clause" found in a commercial general liability insurance policy. When a default judgment is issued against an insured party, due to its failure to cooperate in litigation, must that party's insurance company pay the default judgment? Is the insurance company required to use reasonable diligence in securing the cooperation of its insured? Is it necessary for the insurance company to show that it was prejudiced by its insured's lack of cooperation?

The defendant unexpectedly grabbed and turned the steering wheel of a car in which he was a front seat passenger. Was the defendant "operating" a vehicle for the purposes of the felonious driving statute, MCL 257.626c?

This case involves a managed care option that Farmers Insurance Exchange and Mid-Century Insurance Company offer their no-fault policyholders. Under the option, a policyholder must seek medical care from members of a broad PPO network and must pay extra for out-of-network care. In exchange, policyholders receive a 40 percent premium discount. Does this managed care option limit the policyholder's choice of medical care in a way that is inconsistent with the principles of the state's No-Fault Act? Is the Court of Appeals correct that the managed care option policy endorsement is potentially misleading and deceptive?

Background>>
  
 

In Blakely v Washington , 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004), the United States Supreme Court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum (other than the fact of a prior conviction) must be submitted to a jury and proved beyond a reasonable doubt, or admitted by the defendant. In Michigan, a person convicted of a felony is not sentenced to a specific prison term. Rather, the trial court imposes a sentence that is a range of months or years, with a specific minimum and maximum term. The maximum term is generally fixed by statute. The minimum term, however, can be affected by the sentencing judge's determination of facts that were not proven beyond a reasonable doubt to the jury or admitted by the defendant. Does Blakely invalidate Michigan's sentencing system?

A construction contractor and the owners of the home under construction were in dispute about a construction project that exceeded the initial cost estimates. Did the contractor's cashing of a check from the homeowners with the words "final payment" constitute an accord and satisfaction, so that the contractor cannot seek to recover additional payment from the homeowners?

An employer is generally not liable for the wrongful actions of employees who acted outside the scope of their employment. Should the Supreme Court recognize the exception to that rule that is set forth in 1 Restatement Agency, 2d, § 219(2)(d), which would allow a suit against the employer if the employee was aided in accomplishing the tort by the agency relationship?

In Halbert v Michigan, 545 US __; 162 L Ed 2d 552; 125 S Ct 2582 (2005), the United States Supreme Court held that the due process and equal protection clauses require the appointment of counsel for defendants, convicted by way of a plea, who seek access to first-tier review in the Court of Appeals. In this case, the defendant appeals the trial court's denial of his motion for relief from judgment. The defendant argues that he is entitled to relief from judgment because the Kent County Circuit Court denied his timely request for appointment of appellate counsel to assist him in his appeal of right. Does Halbert entitle the defendant to relief from judgment and the appointment of counsel?

The Court of Appeals held that, once a road reaches a certain point of disrepair, the only reasonable repair a governing authority could do was to rip up and rebuild the road. Is this an accurate statement of the county road commission's obligation to maintain a road in a condition of "reasonable repair" so that it is reasonably safe and fit for travel?

Does a letter from a university vice president to a university regent, concerning a residence constructed for a university president, come under the "frank communications" exemption of the Freedom of Information Act, MCL 15.243(13)(1)(m)? Did the Court of Appeals correctly review the circuit judge's decision finding the letter exempt, in light of Federated Publications, Inc v Lansing , 467 Mich 98 (2002)?