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One Court of Justice Blog

Jun 2016
June 09, 2016

Incarceration alone does not justify removal of parental rights, says COA

A trial court cannot terminate an incarcerated person’s parental rights without clear and convincing evidence that (a) there is a reasonable likelihood the child will be harmed if returned to the parent or (b) the parent cannot provide proper care or custody for the child, under the recent decision in In re E.W. Pops, No. 328818.  The Court of Appeals' per curiam opinion followed the holding in In re Mason, 486 Mich 142, (2010), that under MCL 712A.19b(3)(g), “Michigan permits an incarcerated parent to achieve proper care and custody thought placement with a relative,” which in this case would be the child’s paternal grandmother.  According to the court, the grandmother’s criminal record did not preclude her from serving as a foster-care provider.

Jun 2016
June 09, 2016

MSC uses Smith v. Khouri as a uniform test for determining “reasonable” attorney fees and clarifies the Khouri analysis

“Reasonable” attorney fees means the same thing whether the phrase is used in the court rule for case evaluation sanctions or the statute penalizing insurers for unreasonably denying personal injury protection (PIP) benefits, said the Michigan Supreme Court in Pirgu v United Services Automobile Association, Docket No. 150834.  In either case, courts must apply the framework in Smith v Khouri, 481 Mich 519 (2008), which starts by multiplying the fee customarily charged in the locality for similar legal services by the reasonable number of hours expended.  For clarification, the Court consolidated the factors in Smith and MRPC 1.5(a) for determining whether an upward or downward departure is warranted.

Jun 2016
June 08, 2016

MSC clarifies the gate-keeper rules for allowing testimony of a board-certified medical expert

A medical malpractice expert must be board-certified in the same specialty as the defendant at the time of the occurrence, but not at the time of trial, according to the Michigan Supreme Court. Rock v. Crocker and Crocker D.O., P.C.No. 150719.  Furthermore, evidence of malpractice that does not result in injury but would be used to show inexpertise or incompetence must first be evaluated under MRE 404(b)’s “other acts” rule before determining whether it is more probative than prejudicial under MRE 403.  MRE 404 is a rule of legal relevance, excluding propensity evidence that may be logically relevant under MRE 401 and 402.

Jun 2016
June 06, 2016

MSC to decide whether medical providers have an independent claim against no-fault insurers for benefits

The Michigan Supreme Court has granted leave in Covenant Medical Center v. State Farm, No. 152758, to decide whether a healthcare provider has an independent or derivative claim against a no-fault insurer for no-fault benefits.  Our post on the now-superseded Court of Appeals decision is here.

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