By Lee Dryden
BridgeTower Media Newswires
DETROIT — A premises liability case where the injured party was victorious in the lower courts will be among the matters argued Jan. 10 and Jan. 12 before the Michigan Supreme Court.
In Fowler v. Menard Inc., Virginia Rawluszki was struck by a pickup truck while she was walking on a yellow-striped crosswalk alongside a Menards store in Bay City. Rawluszki suffered a brain injury, from which she later died, according to a case summary from the Michigan Courts.
The driver was cutting across a parking space and did not see her in the crosswalk when he made his left-hand turn. The plaintiff, Rawluszki’s daughter, sued Menard for not putting a stop sign at the crosswalk.
Menard moved for summary disposition, arguing that the danger posed by cars in a parking lot is open and obvious. The trial court denied the motion and the Court of Appeals ultimately affirmed that result in a divided, unpublished opinion.
On April 29, the high court ordered oral argument on the application for leave to appeal, asking the parties to address whether the crosswalk installed by the defendant had a special aspect that could create liability for even an open and obvious hazard, and whether such a special aspect can exist if the condition is not unreasonably dangerous.
The Fowler case will be heard in the afternoon session Jan. 10.
Ten other matters set for oral arguments Jan. 10 and Jan. 12 are also summarized with information from a Michigan Courts news release.
Jan. 10 morning session
Graham v. Foster
Defendant Sharea Foster gave birth to a child in 2009, while married to Christopher Foster. Plaintiff Shae Graham claims that he is the child’s biological father, although Christopher is listed as the child’s father on the birth certificate. After the Legislature adopted the Revocation of Paternity Act, Graham filed a paternity suit, naming only Sharea as the defendant.
The high court ordered oral argument and asked for briefs addressing whether the Court of Appeals correctly held that a necessary-party defendant may be brought into a lawsuit after the expiration of the limitations period based on the relation-back doctrine.
People v. Steanhouse to be heard with People v. Masroor
These two cases pose questions about how to apply the Supreme Court’s decision in People v Lockridge, 498 Mich 358 (2015). There, the Supreme Court held that Michigan’s statutory sentencing guidelines scheme was unconstitutional, because it created mandatory sentence ranges based on facts that were found by a judge instead of a jury. Lockridge corrected the error by making the guidelines ranges non-mandatory.
The Supreme Court asked the parties to address: (1) whether MCL 769.34(2) and (3) (which made the guidelines mandatory) remain in effect even where a defendant’s sentencing guidelines range does not depend on judge-found facts; (2) whether the prosecutor is effectively asking to overrule the remedy in Lockridge, and, if so, how stare decisis should affect the analysis; (3) whether it is proper to remand a case to the circuit court for consideration under Lockridge where the trial court exceeded the defendant’s guidelines range; and (4) what standard applies to appellate review of sentences following the decision in Lockridge.
Nickola v. MIC General Ins. Co.
George and Thelma Nickola were injured in a car crash in 2004. The driver of the other car had insurance with policy limits of $20,000 per person, up to $40,000 per accident. The Nikolas advised their insurer, defendant GMAC Insurance, that they were also claiming underinsured motorist (UIM) benefits through their policy, which provided for UIM limits of $100,000 per person, up to $300,000 per accident. GMAC denied the claim, and the Nikolas demanded arbitration. GMAC refused to arbitrate, and the Nikolas filed suit, pointing out that the policy provided that either party could demand arbitration.
The parties will address whether an insured making a claim for underinsured motorist benefits may be considered to be a “third party tort claimant” under MCL 500.2006(4), thereby requiring the insurer to pay 12 percent interest for failing to pay the claim on a timely basis only if the claim “is not reasonably in dispute”; and whether the Court of Appeals decision in this case is consistent with Yaldo v North Pointe Ins Co, 457 Mich 341 (1998), and Griswold Properties, LLC v Lexington Ins Co, 276 Mich App 551 (2007).
In re Mardigian Estate
Attorney Mark Papazian prepared the will and trust documents that left the bulk of Robert D. Mardigian’s $16 million estate to Papazian and his children. After Mardigian’s death, Papazian sought a ruling from the probate court that the will and trust were valid and enforceable. The respondents — Mardigian’s family members and friends who are contingent beneficiaries under the will and trust documents — objected. They argued that the bequest to Papazian was void because Papazian violated the Michigan Rules of Professional Conduct when he drafted the documents. MRPC 1.8(c) prohibits a lawyer from drafting an instrument that gives the lawyer or the lawyer’s relatives any substantial gift.
The Supreme Court will consider whether it should overrule In re Powers Estate, 375 Mich 150 (1965), in which the Supreme Court held that the drafter of a will or trust is not disqualified from inheriting under that instrument, but that there is a presumption of undue influence.
Jan. 10 afternoon session
People v. Comer
This case concerns the statutory requirement of lifetime electronic monitoring for certain criminal sexual conduct offenses.
The defendant pleaded guilty to first-degree criminal sexual conduct and another felony, but he was not informed at the time of his plea of the mandatory statutory requirement for lifetime electronic monitoring upon release from prison. At a resentencing on an unrelated issue, lifetime electronic monitoring was again not raised.
Oral arguments will address whether the defendant’s original sentence for first-degree criminal sexual conduct was invalid because it did not include lifetime electronic monitoring, and, if so, whether the court rules authorized the trial court to amend the defendant’s judgment of sentence on its own initiative 20 months after the original sentencing, in the absence of a motion filed by any party.
Castro v. Goulet
A plaintiff filing a medical malpractice complaint shall file, with the complaint, an affidavit of merit signed by a health professional that supports the plaintiff’s malpractice claim. MCL 600.2912d(1). The court may grant a 28-day extension for filing the affidavit. MCL 600.2912d(2). In this case, the plaintiffs filed a medical malpractice complaint five days before the two-year statute of limitations expired. But they did not file an affidavit of merit with the complaint; they instead filed a motion for an extension of time in which to file their affidavit of merit, under MCL 600.2912d(2).
Oral arguments will address whether the filing of a motion for an extension of time to file an affidavit of merit, which is subsequently granted, is sufficient to toll the statute of limitations.
People v. Roark
This case also concerns the statutory requirement of lifetime electronic monitoring for certain criminal sexual conduct offenses.
The defendant pleaded guilty to first-degree criminal sexual conduct and engaging in sexually abusive activity with a child in exchange for the dismissal of other charges and a sentence agreement to serve specified prison terms. The judge also ordered that the defendant would be subject to mandatory registration as a sex offender and lifetime electronic monitoring upon release from prison.
Oral arguments will address whether the defendant was accurately advised of the direct consequences of his guilty plea, including lifetime electronic monitoring, whether the defendant has demonstrated actual prejudice, and, in particular, whether the defendant must demonstrate that he would not have pleaded guilty if he had known about the lifetime electronic monitoring requirement.
Jan. 12 afternoon session
In re Rasmer, Gorney, French & Ketchum Estates
The Medicaid Estate Recovery Program (MERP) allows state governments to recover certain medical expenses paid for by Medicaid upon the death of recipients age 55 or older. In these four cases, the plaintiff Michigan Department of Health and Human Services (DHHS) submitted claims in the probate courts against the defendant estates to collect a portion of the value of the decedents’ homes to recover the cost of Medicaid benefits received after July 1, 2010, which the DHHS contends was the effective date of the MERP. The defendant estates countered that the notice of the estate-recovery program provided by the DHHS in 2011 was inadequate and violated their right to due process.
The high court granted leave to appeal to address whether and to what extent the MERP permits the DHHS to seek estate recovery for Medicaid services provided to an individual before that individual received notification of the estate-recovery program from the DHHS, whether estate recovery for such pre-notification services constitutes a violation of the individual’s right to due process, and whether a challenge to the DHHS’s estate-recovery efforts under MCL 400.112g(4) is subject to judicial review.
Smith v. City of Flint
Plaintiff Kevin Smith, a City of Flint police officer, spoke out against the city’s alleged misuse of millage funds. Smith claims that the city retaliated against him by reassigning him to less desirable hours and job duties. He sued the city, and included a claim that the city violated the Whistleblowers’ Protection Act.
The Supreme Court will consider whether the Court of Appeals applied the correct legal standard, whether Smith alleged sufficient facts to establish that he suffered an adverse employment action under the WPA, and whether Smith alleged sufficient facts to establish that he engaged in a protected activity under the WPA.
People v. Franklin
The defendant was charged with possession with intent to deliver marijuana and related firearms offenses after police obtained a search warrant for his house and found marijuana and a loaded handgun.
The parties will address whether the Court of Appeals erred in concluding that Franks v. Delaware, 438 US 154 (1978) limited the trial court’s discretion to order a hearing on the sufficiency of the affidavit in support of the search warrant.
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