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December 2013

Dec 2013
06
December 06, 2013

Motion for resentencing preserved defendant's ability to appeal scoring error which was not raised at sentencing

The Court of Appeals, on remand from the Michigan Supreme Court, found that a trial court improperly scored Offense Variables (“OV”) 16 and 19 because there was no evidence in the record to support either enhancement.  People v. Hershey involved two questions: 1) whether OV 16 and 19 were improperly applied; and, 2) if so, whether the defendant waived any scoring errors by failing to raise the issue at sentencing.  The Court of Appeals agreed with the defendant on both issues.  In particular, the Court held that because the defendant filed a motion for resentencing, which raised the arguments regarding OV 16 and 19, he had not forfeited or waived the arguement, even though the defendant failed to object to the sentencing guideline scoring at the sentencing hearing.  The Court of Appeals vacated the sentence and remanded the case for resentencing.
 

Dec 2013
06
December 06, 2013

The abbreviated procedure for abandoning a road cannot be used unless seven or more abutting freeholders seek abandonment

In Huron Mountain Club v. Marquette County Road Commission, the Michigan Court of Appeals held that the Marquette County Road Commission’s abandonment of a road was ineffective.  The Commission used the abbreviated abandonment procedure at the request of the only abutting freeholder, Huron Mountain Club (“HMC”).  The statute, however, requires that 7 or more abutting freeholders petition for abandonment, in order for the abbreviated procedure to be used.

Dec 2013
05
December 05, 2013

Special conflicts panel overrules 20-year-old standard for who qualifies as an "employee" under the worker's comp statute

In 1992, the Court of Appeals in Amerisure Insurance Cos. v. Time Auto Transportation, Inc., held that under the Worker's Disability Compensation Act, a person was an independent contractor, not an "employee," if any one of three criteria were met:  1. they maintained a separate business; 2. they served the public; 3. they qualified as an employer.  196 Mich App 569; 493 NW2d 482 (1992).  Earlier this year, a panel in Auto-Owners Ins Co v. All Star Lawn Specialists Plus, Inc. followed Amerisure but disagreed with its reasoning, stating that unless the person maintains a separate business, holds themselves out to the public, and is an employer, they should qualify as an "employee" under the WDCA.  A special 7-judge panel convened under MCR 7.215(J) to resolve the conflict.  In an opinion joined by 4 of the judges, the special panel overruled Amerisure and held that all three of Amerisure's criteria must be met before a person is "divested of 'employee' status."  

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