COA holds that insurer may rescind policy even after an accident, if it is determined that the insured made misrepresentations in obtaining the policy and insurer relied on the misrepresentations.

In  21st Century Premier Insurance Company v. Zufelt, et al.  No.  325657, the Court of Appeals held that an insurer may rescind an insured party’s policy if there are material misrepresentations made by the insured without consideration of the intent of the insured, if the insurance policy calls for such recession and the insurer relied on the misrepresentations in granting the policy.  Furthermore, a renewal of a policy, which was originally granted due to misrepresentations in the initial policy, will have no effect on ability of the insurer to rescind the policy even if the misrepresentations were cured in the renewal policy and accident occurred after the renewal policy.
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COA holds that power companies have an obligation to reasonably inspect and maintain power lines

In Estate of Catherine Skidmore v. Consumers Energy Company No. 323757, the Michigan Court of Appeals reaffirmed a Michigan Supreme Court holding that power companies have an obligation to reasonably inspect and repair wires, and that duty involves more than remedying defective conditions brought to their attention. Schultz v Consumers Power Co. 443 Mich 445; 506 NW2d 175 (1993). Moreover, the Court held that rescuers are foreseeable, and a reasonable rescue attempt will not make the rescuer comparatively negligent if they voluntarily put themselves at an increased risk of harm to save another.  Finally, the Court held that only the owner of a subject property may assert that their duty is limited by the open and obvious doctrine. Read More

COA holds that a spouse be must willfully and physical absent from her decedent spouse for at least a year before death to be disqualified from electing against the decedent's will

In Lovett v. Peterson, No. 326017, the Michigan Court of Appeals upheld a Houghton Probate Court decision that a wife who was physically separated from her husband for many years while he lived with his mistress was not “willfully absent” under the testate spousal election statute MCL 700.2801(2)(e)(i). Read More

COA holds that there can be statutory grounds for termination of parental rights because of abuse even if the parent has not been criminally convicted of that abuse

The Michigan Court of Appeals held in In re Schadler, minors, No. 327977 that parental rights may be terminated because the parent abused the child in violation of MCL 712A.19b(3) (k)(ii), even if the parent was never criminally convicted of the abuse.  Read More

Evidence of prior acts of criminal sexual conduct is not always admissible under MCL 768.27a

The Michigan Supreme Court held in People v. Uribe, No. 32112, that even though Michigan law permits the admissibility of evidence of the defendant’s past bad acts involving child sexual abuse, under certain circumstances, the admissibility of the evidence is not automatic.  There are several factors that should be considered in judging admissibility of this type of evidence, including differences between past acts and the current charged crime and the reliability of the evidence supporting the occurrence of the past acts.  Further any evidence of this type of prior bad act must still pass muster under MRE 403—it must be more probative than prejudicial. 
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Defendants beware: violation of bond condition may result in conviction and incarceration for criminal contempt

In People v. Mysliwiec, No. 326423, the Michigan Court of Appeals affirmed defendant’s conviction for criminal contempt as a result of a violation of a condition of his bond.  In so doing, the Court of Appeals held that a bond condition is a court order.  Further, the court clarified that a defendant may be convicted for criminal contempt for a bond violation even where the condition of bond was not necessary to protect a “named person”.  
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Trial counsel is not ineffective for failing to request self-defense jury instruction when defense is not viable

It is well established that an attorney who employs a legitimate trial strategy as a result of reasonable professional judgement is not ineffective.  Now, the Michigan Supreme Court has clarified that where testimony at trial establishes that defendant was the initial aggressor, it is a legitimate trial strategy to decide that self-defense is not a viable defense theory and therefore not request the self-defense jury instruction.  In People v. Kusk, No. 153315, trial counsel instead opted to argue that the defendant was innocent of the charges of felonious assault and felony-firearm. This strategy proved at least partially successful as the defendant was acquitted of felonious assault and felony firearm, and instead was only convicted of misdemeanor of domestic assault.  The Court of Appeals opinion was reversed and the case was remanded to the trial court for further proceedings. 
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MSC: Predatory conduct of a co-offender not considered during sentencing

In a unanimous opinion, the Michigan Supreme Court held in People v. Gloster that a trial court may not consider the conduct of a co-offender when assessing 15 points for “predatory conduct” under Offense Variable (OV) 10 (exploitation of a vulnerable victim), MCL 777.40.  In direct contrast to other OVs, MCL 777.40 does not contain language directing the court to assess a defendant points on the basis of conduct by that defendant’s co-offenders in multiple-offender situations.
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COA holds that governmental liability for failure to properly maintain a highway extends not only to physical injury but to other damages flowing from physical injury

In Streng v. Board of Mackinac County Road Commissioners, No.  323226, the Court of Appeals held that where a governmental agency is charged with tort liability for failure to keep a highway under repair under the Governmental Tort Liability Act (GTLA), the liability, procedure and remedy will be governed exclusively by MCL 224.21.  Furthermore, with regard to MCL 224.21, (1) substantial compliance with notice requirements is sufficient to bring a claim, (2) the term “the clerk” means the county clerk, and (3) a plaintiff is entitled to all damages flowing naturally from their physical injury. Read More

Swain will get a new trial in highly-publicized innocence case

Lorinda Swain will get a new trial after the Michigan Supreme Court held that the Court of Appeals erred in failing to give proper deference to the trial court’s findings that the defendant was entitled to a new trial.  In People v. Swain, No. 150994, the Michigan Supreme Court concluded that the defendant had properly filed her successive motion for relief from judgment based on her claim that there was “new evidence that was not discovered before the first such motion” as provided in MCR 6.502(G)(2).  In so doing, the Court held that People v Cress, 468 Mich 678 (2003) does not apply to the procedural threshold of MCR 6.502(G)(2).  The case was remanded to the Calhoun Circuit Court for a new trial.
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