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A Better Partnership

October 2016

Oct 2016
October 26, 2016

COA: Although not a “child”, a fetus is a “victim” for purposes of scoring OV 9 under Michigan Sentencing Guidelines

A court may count a fetus as a “victim” when scoring offense variable 9 (“OV 9”) of the Michigan Sentencing Guidelines, which accounts for the number of victims placed in danger of physical injury or death.  In People v. Ambrose, No. 327877, the Court of Appeals held that OV 9 allows a trial court to count as a “victim” “one that is acted on” by a defendant’s criminal conduct. Accordingly, a fetus may be counted as a “victim” for offense scoring purposes.  The court was careful to distinguish its decision from People v. Jones, which held that a fetus is not a “child” for purposes of the first-degree child abuse statute.  In this case, unlike in Jones, the court was not required to declare that a fetus is a “person” under the law.

Oct 2016
October 21, 2016

Good fences may make for good neighbors, but only if they aren’t built on the neighbor’s property, says COA

In the contentious easement dispute of Morse v. Colitti, No. 328212, the Court of Appeals reminds trial courts to keep in mind who owns the fee.  When Richard Morse complained that the Colittis had overburdened a lake access easement with a fence on his side of the easement, a dock on the lakeshore, and other structures, the trial court agreed that the dock must go, but left the fence in place only because it was “probably beneficial for the parties to keep that fence up.”  That may be so, said the Court of Appeals, but Mr. Morse owns the fee to the center of the walk, and the Colittis erected the fence on his side.  The court reversed for a determination of which portions of the fence violated that fee interest and whether the other structures overburdened the easement.  It also resurrected Mr. Morse's trespass and nuisance claims, clarifying that injunctive relief for trespass is not subject to a 3-year statute of limitation but remains viable for 15 years after the trespass occurs.

Oct 2016
October 21, 2016

COA: Dismissal of lawsuit for PIP benefits because of discovery violations bars related claims for insurance benefits brought by service providers

In Kevin Dawoud v State Farm Mutual Automobile Insurance Co, Nos. 327915 and 327927, the Court of Appeals affirmed the trial court's order granting summary disposition in favor of defendant, State Farm, and dismissed the consolidated appeal by Grace Transportation Inc. and Utica Physical Therapy (“the service providers”), on the grounds that their derivative claims were barred as a result of the fact that the injured insured's claim against State Farm had been dismissed because of the insured's discovery violations.

Oct 2016
October 20, 2016

COA: Bring more than $40 for a hearing on an abandoned vehicle

In a decision involving whether fees associated with towing and storage of an abandoned vehicle must be paid in addition to a $40 bond in order to obtain an abandoned vehicle hearing, the Court of Appeals relied on Legislative intent.  In Noll v Ritzer, No 328131, the Court of Appeals held the amendment of the statutory language by 2008 PA 539 indicated “the Legislature’s intent requiring the posting of a bond plus accrued towing and storage fees must accompany a request for a hearing under MCL 257.252a, unless the fees have already been paid (or bond posted).”

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