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July 2014

Jul 2014
July 30, 2014

MSC gives defendant opportunity to appeal where past untimeliness was the fault of trial court and/or appellate counsel

In People v. Anthony, Case No. 148687, the Michigan Supreme Court considered the application for leave to appeal the Court of Appeals’ December 17, 2013 order, and in lieu of granting leave to appeal, remanded the case to the Macomb Circuit Court for further proceedings.  The Court of Appeals denied the defendant’s leave to appeal for lack of merit on the ground presented.  Dissenting Court of Appeals Judge Gleicher would have remanded for reissuance of the judgment of sentence and for reconsideration of the defendant’s motion to withdraw his plea as timely filed.  The Supreme Court concluded that the defendant, through no fault of his own, was deprived of the opportunity to have appointed appellate counsel file a timely motion to withdraw the plea and application for leave to appeal, due to: the trial court’s failure to timely respond to the defendant’s March 3, 2012 request for counsel pursuant to MCR 6.425(G)(1)(a); clerical errors in the April 24, 2012 order appointing appellate counsel; and/or appellate counsel’s oversights. See Halbert v. Michigan, 545 U.S. 605 (2005); Roe v Flores-Ortega, 528 U.S. 470, 477 (2000); and Peguero v. United States, 526 U.S. 23, 28 (1999).

Jul 2014
July 30, 2014

MSC questions whether erroneous admission of improper identification testimony at trial constitutes reversible error

In People v. McCaskill, Case No. 149347,in lieu of granting leave to appeal, the Michigan Supreme Court vacated the judgment and remanded the case to the Court of Appeals to reconsider whether any error in admitting the police officer’s improper identification testimony was harmless.  The Court of Appeals found that the error was not harmless beyond a reasonable doubt. The Supreme Court noted that this standard applies to preserved constitutional questions.  People v. Carines, 460 Mich. 750 (1999).  For nonconstitutional preserved error, a defendant has the burden of establishing a miscarriage of justice under a “more probable than not” standard.  People v. Lukity, 460 Mich. 484 (1999).  The Supreme Court further instructed that, if the Court of Appeals determines that the error was harmless, it must consider the remaining issues presented by the defendant on appeal.  The Supreme Court denied the applications in all other respects, unpersuaded that the remaining questions presented should be reviewed at this time, and did not retain jurisdiction.

Jul 2014
July 27, 2014

COA says construction lien claimant may request attorney fees even when claim not fully adjudicated

In Ronnisch Construction Group Inc. v. Lofts on the Nine, L.L.C., No. 314195, the Court of Appeals held that a lien claimant under the Construction Lien Act may be entitled to recover attorney fees even when the lien claim is not fully adjudicated.  Further, a lien claimant may be entitled to attorney fees even though its related breach of contract claim is settled and the lienee reasonably disputes the amounts owed.

Jul 2014
July 25, 2014

COA explains how to allocate wage-loss benefits when a worker suffers multiple injuries and different insurers cover each injury

In Nichols v Howmet Corporation, No. 303783, the Michigan Court of Appeals held that liability for workers compensation wage-loss benefits should be allocated between two insurers when one injury (covered by one insurer) results in a partial disability and a later separate injury (covered by a different insurer) results in full disability.  This conclusion, the court explained, is consistent with disability principles of causation and reasonable employment principles.

Jul 2014
July 23, 2014

COA concludes that contractual exclusion in standard commercial general liability insurance policies only excludes the assumption of the liability of a third party

In Travelers Property Casualty Company of American v Peaker Services, Inc., No. 315070, the Court of Appeals addressed the scope of an exclusion found in a standard commercial general liability insurance policy.  This exclusion barred coverage for damages the insured must pay "by reason of the assumption of liability in a contract."  The insurance company argued that this exclusion applied to a claim against an insured for a breach of contract, resulting from machinery that had been improperly calibrated by the insured, causing property damage to a third party.  The insurer contended that, but virtue of the warranties that had allegedly been breached, the insured had contractually assumed its own liability and the exclusion applied.  The Court of Appeals disagreed, finding that the definition of "assumption" as well as the bulk of persuasive authority from other courts all weighed in favor of the conclusion that this exclusion is only triggered by the insured's assumption of the legal obligations or responsibilities of another party.  Thus, because the insured did not contractually assume the liabilities of another party, the exclusion did not apply. 

Jul 2014
July 17, 2014

MSC holds that there is no right to a jury trial in shareholder oppression cases

In Madugula v Taub, No 146298, the Michigan Supreme Court addressed the issue of whether there is a right to a jury trial for shareholder oppression claims brought under MCL 450.1489 (“§ 489”) of the Business Corporation Act. Ultimately, the court held that because a shareholder oppression claim is equitable in nature, there is no statutory or constitutional right to a jury trial.  Instead, it must be heard by a court of equity. Accordingly, the Michigan Supreme Court reversed the Court of Appeals’ decision and the trial court’s judgment in favor of Madugula and remanded the case for further proceedings.

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