COA: More evidence is required to determine whether complaint's allegations sound in medical malpractice or ordinary negligence

In Trowell v. Providence Hospital and Medical Centers, Inc., No. 327525, the Michigan Court of Appeals reversed summary disposition to allow further factual development to ascertain whether plaintiff’s claims sounded in medical malpractice or ordinary negligence. Read More

COA Panel disagrees with recent precedent that limits plaintiffs’ no-fault recovery options

The innocent third-party doctrine no longer applies in the context of an insurer’s responsibility for personal protection benefits, allowing an insurer to rescind its policy that was procured by fraud even as it relates to a third-party, says the Michigan Court of Appeals in Southeast Michigan Surgical Hospital v Allstate Insurance Co., No. 323425.  This panel of the Court of Appeals indicates this result is required by controlling precedent, but disagrees with that rule and declares a conflict with that prior opinion.  Read More

COA holds that a medical malpractice claim runs from when plaintiff “should have” discovered the claim, not when it “could have” discovered it

Under MCL 600.5838a, which governs claims based on medical malpractice, a medical malpractice claim must be commenced within 6 months after the plaintiff discovers or should have discovered the existence of a claim, not “could have” discovered a claim, held the Michigan Court of Appeals in Jendrusina v. Mishra, No. 325133.
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COA holds that a claim properly under the Court of Claims’ jurisdiction may be joined with a claim in a circuit court through the parties’ conduct

Matters within the Court of Claims’ jurisdiction may be joined without any formal approval and litigated in circuit court, if the parties continue to litigate in circuit court after the statutory right of removal becomes available, held the Michigan Court of Appeals in Baynesan v. Wayne State University, No. 326132. Read More

COA: Three year limitations period governs plaintiff's discrimination claims

In Major v. Village of Newberry, No. 322368, the Court of Appeals held that a three-year limitation period is applicable to recover damages for injury to a person, despite a shorter limitations period being set forth by the Equal Employment Opportunity Commission (EEOC) and Michigan’s Department of Civil Rights (MDCR).  Furthermore, the court held that evidence of direct statements and affidavits are sufficient for age and sex discrimination claims to survive summary disposition. Read More

COA – Boat seller is no longer an "owner" after delivery of title to a purchaser

In Williams v. Kennedy, No. 325267, the Michigan Court of Appeals held that the seller of a boat does not qualify as an “owner” during the period after the seller delivered the certificate of title to the purchaser but before transfer of title has been registered with the Secretary of State. Read More

COA: Michigan’s civil forfeiture scheme is unconstitutional as applied to a claimant could not afford to post bond to challenge forfeiture

In In re Forfeiture of 2000 GMC Denali and Contents, No. 328547, the Court of Appeals held a claimant’s due process rights were violated where she was unable to contest the government’s seizing and resulting forfeiture of her property because she could not afford to post the bond required by civil forfeiture statute.  While the Court held that the statute was not unconstitutional on its face, as applied to the claimant, the civil forfeiture scheme operated to deprive her of a significant property interest without first affording her the opportunity for a hearing. Read More

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. Read More

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. 
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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.  Read More
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