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July 2016

Jul 2016
31
July 31, 2016

MSC to hear mini-oral argument on whether coach’s actions were a proximate cause of student’s injuries

In Ray v Swager, No. 152723, the Michigan Supreme Court granted mini-oral argument to address whether a reasonable jury could determine that Eric Swager’s conduct was “the proximate cause” of Kersch Ray’s injuries where Swager’s actions placed Ray in the dangerous situation that resulted in Ray’s injuries.  On September 2, 2011, Ray was severely injured when he was struck by an automobile driven by Scott Platt.  At the time of the accident, Ray was a member of Chelsea High School’s cross-country team. Swager was the team’s coach and a teacher at the high school.  While running along Freer Road in the early morning, the team and Swager approached an intersection where the pedestrian traffic signal showed a “red hand.”  Swager looked both ways and decided to cross, telling the team “let’s go.”  Swager and most of the team safely crossed, but Ray, who was in the back of the group, was struck by Platt’s car and was seriously injured.  Ray sued Swager, who moved for summary disposition based on governmental immunity.  The trial court denied Swager’s motion.  The Court of Appeals reversed, concluding that reasonable minds could not determine that Swager was the proximate cause of Ray’s injuries and that Swager was therefore entitled to immunity.

Jul 2016
30
July 30, 2016

MSC “draws the line” on the highway exception to governmental immunity

In Yono v. Department of Transportation, No. 150364, the Michigan Supreme Court held that a parallel parking area along a highway is not among the portions of a highway designed for vehicular travel.  Accordingly, parallel parking areas on public roads that are clearly designated as such do not fall within the statutory highway exception to governmental immunity. 

Jul 2016
28
Jul 2016
28
July 28, 2016

COA: Question of fact existed as to whether title insurer participated in a fraudulent scheme with bank’s funds

In the consolidated cases of Bank of America v. Fidelity National Title Insurance Co., Nos. 311798, 312426, 313797, 316538, the Michigan Court of Appeals reversed the order granting summary disposition to Fidelity National Title Insurance Co. (FNTIC) regarding Bank of America’s (BOA) breach of contract claims.  The cases arose from allegations of mortgage fraud against BOA, resulting in BOA filing breach of contract claims against its title insurer, FNTIC.  FNTIC had previously issued closing protection letters that promised to indemnify BOA for any actual losses arising from fraud or dishonesty in handling BOA’s funds or documents.  The trial court granted summary disposition to FNTIC on BOA’s breach of contract claims in each underlying action. 

Jul 2016
28
July 28, 2016

MSC: A lien claimant who succeeds on a breach of contract claim may be a “prevailing party” entitled to attorney fees under the Construction Lien Act

According to the the Michigan Supreme Court in Ronnisch Construction Group Inc. v. Lofts on the Nine, L.L.C., No. 150029, a lien foreclosure claim and a claim for breach of the underlying construction contract are “integrally related” as the lien is but a means for enforcing payment of the debt arising from a breach of the contract.  Thus, a plaintiff who succeeds on a breach of contract claim is a “prevailing party” under the Construction Lien Act (“CLA”) and may be entitled to recover attorney fees even when the lien claim is not fully adjudicated.

Jul 2016
28
July 28, 2016

MSC grants mini-oral argument for application regarding termination of parental rights of cognitively impaired parent

In In re Hicks/Brown Minors, the Court of Appeals reversed the trial court's termination of parental rights, finding that individualized accommodations were necessary where the parent at issue was cognitively impaired.  The Michigan Supreme Court has granted oral argument to determine whether to grant the application for leave to appeal that determination, and has ordered supplemental briefing regarding:  "(1) whether the respondent-mother made a timely request for accommodation of her disability in the service plan prepared by the Department of Health and Human Services; (2) whether the Department of Health and Human Services made “reasonable efforts to reunify the child and family,” as required by MCL 712A.19a(2), given the respondent-mother’s disability; and (3) whether the failure to provide a service plan that accommodates a respondent’s disability may be grounds for reversal of a termination of parental rights on appeal, under either the Americans with Disabilities Act or under the Probate Code, MCL 712A.19a(2), where there is no determination that the trial court erred in finding grounds for termination under MCL 712A.19b(3) or that termination was in the best interests of the children under MCL 712A.19b(5)."

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