MICHIGAN DEFENSE Quarterly Volume 24, No. 2 October 2007
IN THIS ISSUE: • Alteration of Electronic Evidence • Court Rules Update • The Effect of Plaintiff’s Bankruptcy • Guest Column: Judicial Philosophies on the Claim • Amicus Committee Report • Defending Construction Injury Liability Cases • MDTC Schedule of Events • The Effect of Fultz on Third Party Claims • Practice Tips • Young Lawyers Section: Post-Trial Motions
THE STATEWIDE ASSOCIATION OF ATTORNEYS REPRESENTING THE DEFENSE IN CIVIL LITIGATION
MDTC OFFICERS Peter L. Dunlap, President Robert H S. Schaffer, Vice President J. Steven Johnston, Secretary Lori A. Ittner, Treasurer MICHIGAN DEFENSE TRIAL COUNSEL, INC.
MDTC BOARD OF DIRECTORS Jana M. Berger James H. Hughesian P.O. Box 66 • Grand Ledge, Michigan 48837 • Phone: 517-627-3745 • Fax: 517-627-3950 Karie Boylan Catherine D. Jasinski www.mdtc.org • [email protected] Hal O. Carroll Phillip C. Korovesis Alan J. Couture Thomas R. Meagher Timothy A. Diemer Todd W. Millar Michigan Defense Quarterly Norton T. Gappy Allison C. Reuter Vol. 24 No. 2 • October 2007 REGIONAL CHAIRPERSONS Jeffrey C. Collison, Saginaw/Bay City President’s Corner ...... 4 Tyren R. Cudney, Kalamazoo John Patrick Deegan, Traverse City/Petoskey Smoke and Mirrors: The Fabrication and Alteration of Electronic Evidence Phillip C. Korovesis, Southeast Michigan Ridly S. Nimmo II, Flint By: Sharon D. Nelson, Esq. and John W. Simek...... 6 Edward P. Perdue, Grand Rapids Erin J. Stovel, Lansing The Bankrupt Plaintiff And The Issue Of Standing Keith E. Swanson, Marquette By: Michael J. Rinkel And Susan J. Zbikowski ...... 10
DEFENSE RESEARCH INSTITUTE I-Beams And Hard Hats:Defending Construction Liability Cases REPRESENTATIVE By: Trevor J. Weston And Christopher S. Berry...... 15 José Brown MINISTER OF FUN Clear As Mud: Claims Brought By Third Parties Following The Decision James G. Gross PAST PRESIDENTS COMMITTEE In Fultz John P. Jacobs By: Todd W. Millar...... 19 QUARTERLY EDITOR Hal O. Carroll Young Lawyers Section VII. Post Trial Motions: Setting The Stage For Appeal
SECTION CHAIRPERSONS By: Timothy A. Diemer ...... 24 Christina A. Daskas, General Liability Michigan Court Rules and Michigan Civil Jury Instructions Proposed Hilary A. Dullinger, Co-chair/Appellate & Amicus Curiae Amendments Patrick F. Geary, Law Practice Management By: M. Sean Fosmire...... 28 Scott S. Holmes, Young Lawyers Dean F. Pacific, Labor & Employment Guest Column On Judicial Philosophies And Block Voting Michael J. Rinkel, Trial Practice Mary Massaron Ross, Co-chair/Appellate & By: William C. Whitbeck ...... 30 Amicus Curiae Richard J. Suhrheinrich, Professional Liability Amicus Section Report...... 33 Practice Tip ...... 35 EXECUTIVE DIRECTOR Madelyne C. Lawry Michigan Defense Quarterly is a publication of the Michigan Defense Trial Counsel, Inc. All inquiries should be directed to Madelyne Lawry, 517-627-3745.
EDITOR’S NOTES In this issue, Michael J. Rinkel and Susan J. Zbikowski of Siemion, Hucakbay, Bodary, Padilla Morganti & Bowerman explain how defense counsel may be able to make use of a plaintiff’s failure to list the claim in a bankruptcy petition as a defense. The Young Lawyers series resumes with part VII, in which Timothy A. Diemer of John P. Jacobs, P.C. explains the uses of post trial motions, in terms of their possible effect in the trial court and on a subsequent appeal. Todd W. Millar of Smith, Haughey, Rice & Roegge provides an analysis of how the decision in Fultz v Union-Commerce Associates affects claims brought by persons who are not parties to the contract that underlies the activity that gave rise to the accident. Sharon D. Nelson, Esq. and John W. Simek of Sensei Enterprises, Inc. provide an entertaining and informative explanation of how electronic evidence can be fabricated or altered and how to detect the tampering. Trevor J. Weston and Christopher S. Berry of Berry, Johnston, Sztykiel, Hunt and McCandless, P.C. provide us with an analysis of the liability for injuries on construction sites. In a Guest Column, Chief Judge William Whitbeck of the Court of Appeals offers his views on the role that judicial philosophies play in the process of making decisions. Sean Fosmire of Garan Lucow Miller once again brings us up to date on proposed changes to the court rules and to standard jury instructions. We also have two new Practice Tips, concerning responding to written discovery requests and drafting reports of depositions. As always, we are grateful to the broad range of authors who devote their time and energy to writing and sending articles. Be sure to check the Schedule of Events to keep up to date with what MDTC and DRI are up to. Also, take a look at this issue’s Member News section, and send us more information on yourself or your colleagues for the next issue. Opinion: We invite other members to send us personal opinions on topics of interest to our readers. A length of about 1000 to 2000 words would be ideal. Articles: We always welcome articles on any topic that will be of interest to our members in their practices. Although we are an association of lawyers who primarily practice on the defense side, the Quarterly always tries to emphasize analysis over advocacy, and favors the expression of a broad range of views, so articles from a plaintiff’s perspective are always welcome. Author’s Guidelines are available from the editor ([email protected]) or the assistant editor, Allison Reuter ([email protected]). Hal O. Carroll, Editor • [email protected]
Vol. 24 No. 2 • October 2007 3 PRESIDENT’S CORNER By: Peter L. Dunlap, President, MDTC Fraser, Trebilcock, Davis & Dunlap, P.C. 124 West Allegan, Suite 1000 • Lansing, MI 48933 Phone: 517-482-5800 • Fax: 517-482-0887 • Email: [email protected]
September 12, 2007 oped case law. While we are aware of the steady decline in medical mal- State Bar of Michigan practice filings in the circuit courts, 306 Townsend Street and it has been documented that mal- Lansing, Michigan 48933-2012 practice premiums for physicians remain disproportionately high, it is Re: Proposed Amendment to 1961 hard to imagine how this proposal PA 236 (MCL 600.101 to 600.9947) by would address the issue of insurance Adding a Chapter 51 company premium escalation. The first area of focus in the pro- Our Executive Director, Madelyne posal is the training of Circuit Court Lawry, has forwarded your e-mail on judges to help them become more this subject to our Executive competent in the handling of medical Committee. Thank you very much malpractice cases. The legislation for providing us with the opportuni- proposes to accomplish that objective ty to review this proposed legislation by having a “committee” develop a and contribute our input. “judicial training program.” That committee is to be “coordinated” by SCAO and is to include “equal repre- “Healthcare Courts” From our study of litigation sentation from the Michigan State In my initial “President’s Corner,” Medical Society and the State Bar of I stated that “The challenge for trends in Michigan, we are Michigan.” We have a number of MDTC…is to maintain [its] relevance unaware of any pressing or observations in this regard. and produce benefits for the mem- developing concern justifying First, an educational function with bership in the climate of 2007.” As this focus can easily be accomplished lawyers, we identify closely with the abandoning the current by the Michigan Judicial Institute interests of our clients. We also speak system expressed in which is under the direction of for them when they cannot speak for Michigan’s statutes and SCAO. I would, in fact, be surprised themselves. Looking after the inter- if some of their past curriculum did ests of our clients is so fundamental well developed case law. not include the very subjects and that we feel called upon to do it in the focus mentioned in the proposed leg- public forum as well as the courts. islation. Such is the case with a proposal that Michigan Defense Trial Counsel Secondly, the proposed legislation is not yet in the form of a legislative would urge that the State Bar of gives great influence to the Michigan bill introduced to institute “Health Michigan take a position in active State Medical Society. In fact, equal Courts” which would have exclusive opposition to this proposal. It would influence with that of the State Bar of jurisdiction over medical malpractice appear to us that this proposed legis- Michigan. It is difficult to imagine actions. The proposal can be reviewed lation focuses on two areas in creat- how this would not be perceived by on our website, www.mdtc.org. It is ing a “Healthcare Court” which will the public as unreasonably favoring not my purpose or understanding of have exclusive jurisdiction over all one side of the medical malpractice my duties as President to use this medical malpractice actions. disputes that are being handled by forum as a “soapbox” for my own As a preliminary matter, the pro- such courts. opinions. What follows should be posal does not reference or state a Third, Section 5107(4) even pro- viewed in that light. After conferring particular purpose. From our study vides the judge with the “opportuni- with our officers and other board of litigation trends in Michigan, we ty to follow a practicing physician members whose practice expertise is are unaware of any pressing or devel- and other healthcare professionals in in the medical malpractice area, I oping concern justifying abandoning different healthcare settings.” Why signed and sent the following letter the current system expressed in just the medical profession? to the State Bar of Michigan: Michigan’s statutes and well devel- Shouldn’t similar “internships” be
4 Michigan Defense Quarterly PRESIDENT’S CORNER
set up to allow judges to ride with Mich Const, art VI, § 1 creates “one For all of the above reasons, police officers during a typical trial court of general jurisdiction Michigan Defense Trial Counsel, evening, work with an engineer in a known as the circuit court, one pro- through its elected officers, would production facility, such as General bate court, and courts of limited juris- urge the State Bar of Michigan to Motors, or “intern” with a human diction that the Legislature may actively oppose this legislation. resources department of a large cor- establish by a two-thirds vote of the poration to familiarize themselves members elected to and serving in Very truly yours, with employment law? The list, of each house.” While this letter certain- course, goes on and on. ly is not meant to be a constitutional MICHIGAN DEFENSE TRIAL Certainly our organization is in opinion, it would appear that any COUNSEL favor of increased education on all such “Healthcare Court” would topics that may be germane to the require two-thirds vote of the /s/ better workings of the Court. As stat- Legislature. Creating a court to deal ed above, this is the mission of the with “healthcare” begs the question as Peter L. Dunlap, President State Court Administrative Office to why other courts of limited jurisdic- Members, I invite your comments through the Michigan Judicial and contributions. Our occupation as Institute. Nothing suggests that they The proposed legislation “Trial Lawyers” remains public fod- are doing a poor job in this area. der for politicians and other organi- The second focus of the proposed gives great influence to the zations who, in the inglorious tactics legislation is to provide a “list of Michigan State Medical of despotism, set up scapegoats for a qualified medical experts” who Society. In fact, equal variety of social and political ills and “may” be called upon by the health then publicly knock them down. court to provide independent expert influence with that of the YOU, as trial lawyers, have the opinions. Presumably, this panel of State Bar of Michigan. It is opportunity to expose this tactic with experts would not have contact with difficult to imagine how this letters to the editor of newspapers, either plaintiff or defense counsel phone calls to politicians, and the prior to testifying. Most certainly, would not be perceived by withholding of campaign contribu- such individuals would be given the public as unreasonably tions to politicians and DUES to organ- greater weight by a jury and, thereby, favoring one side of the izations that continue to abuse their be more influential in the proceeding influence by attacking “trial lawyers,” than the experts retained and uti- medical malpractice disputes an occupational specialty, for lized by counsel on either side. This that are being handled by Michigan’s problems. Don’t be silent. is certainly contrary to the theory such courts. and practice of an adversarial pro- Peter L. Dunlap, President. ceeding where the fact finder, usual- ly a jury, has the opportunity to tion should not be created to handle decide the truth upon hearing both matters such as products liability, sides of the issue rather than through employment law, elections, environ- a court-sanctioned “expert.” It mental law, etc. The list is endless. would also significantly increase the cost of the litigation for all parties and place the judge in a position to BUILDING & PREMISES EXPERT shape the lawsuit to suit his or her Review and research to render opinions on correct building code statutes perspective. & standards to included ADA & MIOSHA. Opinions on Parenthetically, I should add that a causation and foresee ability. Licensed builder with may years of system is currently in place for a subcontracting and general contracting (hands-on) experience. Plaintiff and court-appointed expert through MRE Defense attorney clients. Continuing education studies, never 706. Appropriate safeguards are in disqualified in court. Faulty Construction, Failure to Disclose, Personal Injury, place under that rule for both the Toxic Substance, Other Construction Issues. appointment of such an expert and how the expert is presented at trial; Ronald Tyson i.e., the expert may be “called to testi- 248-230-9561/[email protected] fy by the court or any party.”
Vol. 24 No. 2 • October 2007 5 SMOKE AND MIRRORS: THE FABRICATION AND ALTERATION OF ELECTRONIC EVIDENCE By: Sharon D. Nelson, Esq. and John W. Simek © 2007 Sensei Enterprises, Inc.
Sufficiently advanced technology is indistinguishable from magic. — Arthur C. Clarke
Welcome to the Digital Tech Fun what happened. But barring that, your There are harmless and even fun House of the next millennium. Does eyes would likely believe what they uses for digital alteration — a charm- some putz at NBC want Katie Couric see — and therein lies the great danger ing but fake photo of President to look 20 pounds slimmer? A wave of of accepting things electronic as real. Clinton in a pink tutu, which made his electronic wand, and it is so. Does the Internet rounds some years ago, a Reuters freelance photographer in comes immediately to mind. But Beirut want his photos of violent there are grave uses, many with crim- explosions to have a greater “shock inal complications. The most com- and awe” factor? No sweat —he just mon one, by a country mile, is e-mail uses a graphics program to darken spoofing. the explosions. Mad at your former lover and want to put her head on a E-mail Spoofing: Who Do porn queen’s body and post it on You Want to Be Today? your website? A quick cut and paste Stealing someone’s identity by … presto change-o … it is done. using their e-mail address is done all Nothing in the world is really new, the time — the average 13 year old so they say. In truth, the alteration of knows how to create and transmit fal- photos is an old story — remember sified e-mail. Look at all the spam all the UFO photos of the 50s that that we receive every day, where the turned out to be an aluminum messages appear to come from peo- wrapped, gussied up version of ple we know or from what appear to Mom’s dinner plate? If you don’t, be otherwise legitimate sources. shame on you for being so young! Viruses and worms are also known to The digital alterations of things can gather e-mail addresses from an be charming — witness the use of infected machine and send messages digital alteration in Forrest Gump to appearing to come from one of the make him a part of history. How do the pros spot digital alter- newly harvested addresses. Absolutely inspired. Then look again ation? Often, by blowing things up. Unfortunately, there is nothing you can — at Time magazine’s bizarre editorial When viewed at the pixel level, doc- do to stop someone else from sending decision to artificially darken O.J. tored photos don’t “fit.” Rarely does an e-mail appearing to come from you. Simpson’s face on its cover. anyone doctor photos with so much Even if you do succeed in tracking Dispiriting how far we, as a society, precision that the doctoring can’t be them down, they are often in foreign have not come. seen when enlarged. What is not countries where the incentive to coop- Someone, presumably not a Kerry apparent to the naked eye becomes erate with U.S. authorities is non-exis- fan, stitched together two separate readily apparent when looking at a tent. Imagine our embarrassment sev- photos to make a composite allegedly photo under the equivalent of a micro- eral years ago when pornographic showing him speaking with Jane scope. Today, there are even mathe- spammers were sending rather risqué Fonda at an anti-war rally. When you matical algorithms to help determine e-mail messages, complete with see the original photos, you can see whether a photo has been altered.
6 Michigan Defense Quarterly SMOKE AND MIRRORS
images, with made up addresses difficulties for several months, but a from our domain name. You can’t Unfortunately, there is Google search should show alternate imagine our relief when they moved locations to download the software. on to some other hapless victim. nothing you can do to stop You read e-mail message headers from Although you can’t directly stop someone else from sending the bottom up. Figure 1 shows a sample falsified transmissions, how do you an e-mail appearing to come of a recently received message. determine if the e-mail is authentic As you read from the bottom up, or spoofed? If you are involved in a from you. go until you reach the first case where e-mail is at issue, do not “Received:” information. In our accept the presentation of the mes- example (headers from a real mes- sage on paper. Anybody can use a Viewing the header information sage) the originating e-mail server is typical word processor package to varies depending on the e-mail client named “intern” and has an IP create a document that looks like a that is used. As an example, to view address of 68.236.214.31. This is the printed e-mail. Get the message in the header data in an open message first point to determine if the mes- electronic form so that you can inter- using Microsoft Outlook, select sage is spoofed. Spammers will nor- rogate the headers. Don’t know what ‘view’ and then ‘options,’ which will mally “bounce” their messages off of an e-mail header is? The message then show the information in the dia- an unsecured server. In those cases, header is electronically stored infor- log box. the transmitting server has no rela- mation that shows values such as How do you read a header or even tionship to the originating domain. sender, recipient, message ID num- understand it? Probably one of the As you can see, decoding headers can ber, routing information (the servers most popular software tools for get very complicated, but it is and devices that transmitted the decoding headers is a product called absolutely essential in determining message along its path), priority Sam Spade. The official web site for the authenticity of the message. Is level and other similar information. Sam Spade has been having technical this a do-it-yourself proposition?
Figure 1
Received: from mail126c25.carrierzone.com ([64.29.147.196]) by ffx3975.senseient.com with Microsoft SMTPSVC(6.0.3790.1830); Mon, 18 Dec 2006 15:02:23 -0500 MIME-Version: 1.0 Content-Type: multipart/alternative; boundary=”——_=_NextPart_001_01C722DF.6E7BB180” Received: from intern (static-68-236-214-31.nwrk.east.verizon.net [68.236.214.31]) (authenticated bits=0) by mail126c25.carrierzone.com (8.13.6.20060614/8.13.1) with ESMTP id kBIJo28u026412; Mon, 18 Dec 2006 19:50:04 GMT Return-Path:
Continued on page 8
Vol. 24 No. 2 • October 2007 7 SMOKE AND MIRRORS
Continued from page 7
Probably not, unless you are pretty your client, which is a contract sup- tech-savvy. In the typical case we see, posedly drafted by the president. In the typical case we see, angry angry ex-spouses or However, when you look at the meta- ex-spouses or significant others data it shows the author as being a spoof the e-mail of their former significant others spoof the competitor and further reveals that loved one to prove that they wrote e-mail of their former loved the document was created several hateful or threatening messages to one to prove that they wrote years earlier. Your radar should light them, usually for the purpose of up like a Christmas tree. gaining an advantage in a custody hateful or threatening How do you see the metadata? battle, but sometimes just to humili- messages to them, usually The simplest way is to go to ‘File’ ate them, or to try to cause them to for the purpose of gaining an and then ‘Properties.’ Using this lose their jobs. We’ve even seen an method doesn’t show all of the avail- angry supervisor pretend to be his advantage in a custody battle, able metadata, but is enough for own employee writing threatening but sometimes just to humiliate many purposes. Another alternative e-mails to the supervisor for the them, or to try to cause them is to use a product that removes purpose of laying the groundwork metadata (a good thing for you) but for firing him. It’s a wacky world to lose their jobs. also shows you metadata in docu- out there. ments received from someone else (often a bad thing for the other side). as these sites are shifted from server Several well known software appli- Fabrication That Pays to server in a matter of days, making Handsomely: Phishing cations for viewing and “scrubbing” these operations nearly impossible metadata are Metadata Assistant, We’ve all gotten them, those to track down and shut down. fraudulent e-mails that purport to be Workshare Protect and iScrub. We’ve had many a case where metadata from our bank or credit card compa- Metadata: Pay Very Close ny asking us to kindly verify our was important, but here’s one that financial information. The number Attention to the Man Behind lawyers should heed. An attorney of new phishing sites has spiked dra- the Curtain up on disciplinary charges for mis- matically from 4367 in October of More and more attorneys are handling a case suddenly produced 2005 to 37,444 in October of 2006, becoming familiar with metadata, a letter to his client which stated according to the Anti-Phishing especially as it relates to documents that, on her instructions, he would Working Group. Gone are the days and spreadsheets. Generally, metada- do nothing further in the case. The when the e-mail was clearly written ta refers to “data about data,” which problem? The metadata proved con- by someone for whom English was a isn’t a very helpful definition. When clusively that the letter had been cre- distant second language (“Please to referring to a Word document, meta- ated after the disciplinary proceed- come to our site to complete you’re data would be such information as ings had been filed. This brings to Citibank data securities form”). the author, last date printed, file cre- mind the old adage about going Gone are the clumsy attempts to ation, number of words, tracked from the pot directly into the fire. To replicate graphics. Now the phishing changes, etc. no one’s surprise, his license was e-mails are so clever that even the So how do you tell if an electroni- suspended. experts sometimes have trouble dis- cally produced document is authen- cerning the fakes. For those poor tic? Viewing the metadata can deter- Windows Metadata: Toying saps who are taken in, they click on mine if there may be suspicions that with the Fourth Dimension “their bank’s” link, only to find the document is falsified. Perhaps There is also metadata for the themselves in a clever imitation of you receive the Word document from operating system. We’ll address their bank’s website where they Microsoft Windows metadata since obligingly fill out the requested it is the most widely used operating financial data form and thereby The number of new phishing system. Windows metadata is the ensure that their real bank account information that a user can observe will soon be substantially lightened. sites has spiked dramatically by selecting ‘file’ and then the ‘prop- The best of these bogus sites are a from 4367 in October of 2005 erties’ function. The most common- real tribute to the ingenuity of the to 37,444 in October of 2006. ly known metadata values are criminal mind — and a continual known as MAC (modified, accessed, thorn in the side of law enforcement created) dates. These times/dates
8 Michigan Defense Quarterly SMOKE AND MIRRORS
ion, therefore the date and time entries should be consistently Clock manipulation is not How do you see the metadata? decreasing as you read down the normally seen in the “real The simplest way is to go to entries. There will be an obvious gap world” and those that attempt ‘File’ and then ‘Properties.’ or jump in the dates if the computer clock has been intentionally modi- it are usually caught. There Using this method doesn’t fied. There are other methods to are several ways to determine show all of the available determine clock manipulation, but if an intentional clock change metadata, but is enough for those are best left to forensic technol- ogists. The good news is that the has occurred. many purposes. Windows MAC values are typically what they purport to be. alter evidence aren’t the brightest Though we’ve rarely seen clock bulbs in the chandelier and are easy manipulation, there was a case in can be used to identify when files to catch. The bad news is that there is which a computer savvy wife planted were created, or perhaps accessed. a cadre of unprincipled criminals child pornography on her husband’s Internet searching activity on a com- who are doggone good at evidence computer changing the clock so the puter may have great significance alteration — and they are often one created dates would indicate only when dealing with child custody step (and sometimes light years) times when he was home and she cases and determining the fitness of ahead of the good guys. a parent, particularly where there was not. She obviously had not read are allegations of Net pornography the paragraph above. addiction or searching for child pornography. Law Enforcement’s Continual The authors are the President and Vice Authentication of the MAC values Black Eye: Stomping on the President of Sensei Enterprises, Inc., a assumes that the clock on the com- legal technology and computer forensics Evidence firm based in Fairfax, VA. 703-359-0700 puter was accurate at the time the Sometimes the alteration of evi- (phone) www.senseient.com files were created or accessed. This dence can be the answer to an attor- can be problematic since the comput- ney’s prayer. In spite of a concerted er clock is so easy to change. Before effort by law enforcement to teach you get paranoid about the file dates first responders how to properly on your client’s computer, clock seize electronic evidence, we still see manipulation is not normally seen in instances where the last access dates the “real world” and those that of files have been altered by officers attempt it are usually caught. There looking at the evidence post-seizure. are several ways to determine if an It appears to be particularly alluring intentional clock change has to “take a peek” at anything involv- occurred. The simplest way is to look ing sex, but trampling on the evi- at the system logs using the Event dence in their eagerness to see what Viewer application in Windows. The they have provides (for the ardent Event Viewer can be accessed from defense counsel) a happy result in Are there hundreds of other the ‘Administrative Tools’ group. which proper forensic procedures examples of digital alteration? When the Event Viewer is opened, were not followed and the dates of Sure…and stay tuned, observe the entries in the System and last access by the defendant are now Application logs. Entries in these unknown. because they are appearing logs are written in a sequential fash- Are there hundreds of other exam- more and more often in the ples of digital alteration? Sure…and courts. The good news is stay tuned, because they are appear- Windows metadata is the ing more and more often in the that we have gotten better information that a user can courts. The good news is that we and better at detecting the observe by selecting ‘file’ and have gotten better and better at alteration of electronic detecting the alteration of electronic then the ‘properties’ function. evidence. More good news is that evidence. most people who try to fabricate or
Vol. 24 No. 2 • October 2007 9 THE BANKRUPT PLAINTIFF AND THE ISSUE OF STANDING
By: Michael J. Rinkel and Susan J. Zbikowski Siemion, Hucakbay, Bodary, Padilla Morganti & Bowerman
Executive Summary
When a plaintiff files for bankruptcy before commencing a lawsuit, and fails to list the claim as an asset, the defense should assert two defenses. The first is lack of standing to sue, based upon the fact that the claim is an asset and belongs to the bankruptcy trustee. Michigan’s Supreme Court has applied this rule. The second argument is that the plaintiff is judicially estopped to assert the existence of a claim because the failure to list it, if not inadvertent, is a rep- resentation that no claim exists. This argument has been accepted in the federal courts, but has not yet been applied in state court. Defense counsel should regularly check for bankruptcy filings whenever civil litigation is filed, and be pre- pared to raise both defenses.
Most defense practitioners have property “wherever located and by referred to as a section 341 meeting. had the experience of discovering whomever held.”4 As part of the ini- This is essentially a creditor’s exam that a plaintiff either just prior to or tial filings, the debtor must file sched- where the debtor is questioned as to during the course of personal injury ules to disclose the assets and liabili- the types of assets and liabilities, or wrongful death litigation, has filed ties.5 Item 20 on the Chapter 7 sched- including specific inquiry as to the for bankruptcy protection. Personal ules includes potential causes of potential for any claims or litigation.9 bankruptcies sharply increased prior action. Equally, the list of “exempt Assuming no assets are discovered, to the 2006 amendment of 11 USC property” also applies to potential the trustee may issue a “No Asset 541. 52,872 Chapter 7 Bankruptcy fil- claims or causes of action. Debtors Report” and the debtor should ings were recorded in the United sign the schedules and certify them receive a discharge within a short States Bankruptcy Court, Eastern under penalty of perjury. period of time thereafter. District of Michigan.1 It is still not One portion of bankruptcy pro- unusual to find that plaintiffs have Where the difficulty arises, ceedings that virtually every defense filed for Chapter 7 protection attorney has encountered is the effect between the date of loss and filing the from the defense point of view, of the automatic stay under 11 USC state court litigation. Occasionally, is when you discover that a 362. This section permits any action plaintiffs will even file their petitions particular plaintiff has filed against the debtor to be stayed pend- after the state court litigation has ing further order of the court even if started, receiving a discharge before for Chapter 7 protection after the claim includes “the right to pay- final disposition. However, the recent a particular incident or an ment or equitable relief even if the 2 case of Miller v Chapman Contracting injury but before filing suit. same is contingent, unmatured, dis- has provided a method to bar claims puted or equitable.”10 Jurisdiction for by a plaintiff who has received a dis- all claims is then vested in the bank- charge but somehow failed to notify Case law has determined that ruptcy court. the bankruptcy trustee of the exis- these schedules definitely include Where the difficulty arises, from the tence of their lawsuit or claim. causes of actions and claims.6 Once a defense point of view, is when you dis- While a full description of the petition is filed, the trustee in bank- cover that a particular plaintiff has requirements for filing a petition ruptcy then acts as the representative filed for Chapter 7 protection after a under Chapter 7 of the United States of the estate and it is the trustee who particular incident or an injury but Bankruptcy Code3 is beyond the has the capacity to sue or be sued.7 before filing suit. Occasionally, defense scope of this article, the greatly sim- The debtors lose the standing to pursue counsel may discover that a plaintiff plified version begins with the filing causes of action that are otherwise may have actually filed a Chapter 7 of the petition and cover sheet as part of the estate.8 The trustee admin- petition during state court litigation. required by 11 USC 541 (A). This cre- isters the estate including holding the The significance of this discovery, ates an estate which includes specified creditors meeting or what is usually which frequently arises inadvertently,
10 Michigan Defense Quarterly THE BANKRUPT PLAINTIFF AND THE ISSUE OF STANDING
is that if the claim or suit is not sched- doctrine of judicial estoppel. This uled, it gives the defense two grounds When you discover your doctrine may be invoked where a for dispositive motion practice. plaintiff has elected not to plaintiff has previously taken a whol- ly inconsistent position in a prior share their anticipated 12 Standing to Sue after Filing lawsuit. The prior proceeding must the Petition recovery with their creditors, be “successful”; the court in the earli- When you discover your plaintiff the first question should be: er action must accept the parties’ position as true.13 The argument has elected not to share their antici- “did the plaintiff have pated recovery with their creditors, would be that plaintiff asserted the the first question should be: “did the standing to file suit?” absence of a claim during the course plaintiff have standing to file suit?” If of bankruptcy proceedings by failing to disclose the asset. Judicial estoppel the bankruptcy was filed before the confirm that a plaintiff has no stand- would bar a subsequent action on a state court litigation, all interest was ing to pursue an unscheduled claim in claim that plaintiff denied existed. vested in the trustee. This conclusion an individual litigation where the Unfortunately, Michigan courts was reached in Miller v Chapman, trustee has never had the opportunity have yet to apply this doctrine in con- supra. In Miller, a personal injury to formally “abandon” (choose not to nection with a plaintiff who has filed lawsuit was brought by an individ- pursue) the asset under the procedure for Chapter 7 bankruptcy. There is ual who had filed for bankruptcy described in 11 USC 554. Miller is also substantial federal law, especially in shortly after the injury occurred. the first authority within the state the 6th Circuit and Eastern and Defense counsel sought summary finding that the relation back doctrine Western Districts of the Federal disposition under MCR 2.116(C)(5) does not apply to the addition of District Court, that the doctrine of as plaintiff was not the real party in bankruptcy trustees who are new par- judicial estoppel should be applied interest since all rights had vested ties to the litigation. with the bankruptcy trustee. when a plaintiff has sought and Adopting the per curiam opinion of received a bankruptcy discharge with- Judicial Estoppel out disclosing the existence of the the Court of Appeals, the Supreme The second ground for a disposi- Court confirmed that MCR 2.201(B) claim. Under the federal test, judicial tive motion would be to allege that estoppel bars a party from asserting a required that an action be brought in the plaintiff’s claim is barred by the the name of the real party in interest. position that is contrary to the one the They also found that it was undis- party has asserted under oath in a puted that the bankruptcy trustee Under the federal test, judicial prior proceeding and where a prior after the petitions were filed became estoppel bars a party from court adopted the contrary position either as a preliminary matter or part the real party in interest. asserting a position that is In the Miller case, as frequently of a final disposition. This definitely occurs, plaintiff then attempted to add contrary to the one the party includes the purposeful non-disclo- the trustee as a new party into the liti- has asserted under oath in a sure of an asset in bankruptcy when a gation. The Michigan Supreme Court plaintiff intends to or has already pur- prior proceeding and where 14 held that while amendment under sued the claim in personal injury. MCR 2.118(A)(2) requires that leave be a prior court adopted the This doctrine does require more freely given, leave to amend may also contrary position either as a than inadvertence or mistake in omit- 11 ting the asset. However, when a be denied where it is futile. Futility in preliminary matter or part this instance arose because an amend- plaintiff fails to amend the schedules ment to add the trustee would not of a final disposition. This or notify the bankruptcy trustee, relate back to the filing of the com- definitely includes the sometimes for a period of years, until the defendant files a dispositive plaint. MCR 2.118(D) specifically finds purposeful non-disclosure of that the relation back doctrine does motion, the federal courts have been not apply to new parties. Thus, the an asset in bankruptcy when almost uniformly unsympathetic. statute of limitations would have a plaintiff intends to or has This is viewed as an attempt by a plaintiff to keep proceeds for them- already run at the time the trustee, the already pursued the claim in proper party, appeared in the suit. In selves rather than having it become 15 short, Miller is the first decision of the personal injury. part of the bankruptcy estate. This is Supreme Court, within this state, to particularly true as the schedules are Continued on page 12
Vol. 24 No. 2 • October 2007 11 THE BANKRUPT PLAINTIFF AND THE ISSUE OF STANDING
Continued from page 11 signed by debtors acknowledging that Morganti & Bowerman. He specializes 9. 11 USC 341 (A) through (C) any false statements constitute perjury. in medical malpractice defense. His 10. 11 USC 101 (5)(A) and (B). Defense counsel may anticipate that email address is mrinkel@siemion-huck- 11. Hakiri v Ski Brule, Inc, 230 Mich App 352, 355 (1998). plaintiff’s first action after learning of a abay.com. 12. Paschke v Retool Industries, 445 Mich 502, dispositive motion based on the failure Susan J. Zbikowski is a partner with 509-510, 519 NW 2d 441 (1994). to disclose in bankruptcy will be to the firm and specializes in insurance 13. Id. at 510 approach the bankruptcy court to defense. Her email address is szbikows- 14. For a full discussion of judicial estoppel reopen the estate and amend the sched- [email protected]. within the context of bankruptcy filings, see Browning v. Levy, 283 F3d 761, 776 (6th ules. In the alternative, plaintiffs have Cir); Eubanks v. CBSK Financial Group, 385 also been known to attempt to force the F3d 894, 897 (6th Cir 2004); Tyler v. Federal trustee to “abandon” the claim which Express Corporation, 420 F Supp 2d 849 would allow the individual plaintiffs to Endnotes (2005), aff’d 206 Fed Appx 500 (6th Cir. pursue the cause of action. Federal 2006) 1. Statistics, United States Bankruptcy Court court cases which have dealt with these 15. Barger v City of Cartersville, 348 F3d 1289, for the Eastern District of Michigan, 1296 (11th Cir 2003). issues do not look to whether plaintiff WWW.mieb.usacourts.gov/statis- 16. Lewis v Weyerhauser Co, 141 Fed Appx 420 has attempted to remedy the problem tics/2005.html (6th Cir. 2005); Eubanks, supra. after a motion is filed but examine 2. 477 Mich 102, 730 NW 2d 462 (2007) 17. Federal Home Loan Mortgage v Hulett, Slip plaintiff’s actions before the defendants 3. 11 USC 701, et seq. Op 2006 WL 36758 (ED Mich 2006). 4. 11 USCA 541(A)(1). discover the bankruptcy.16 5. 11 USC 521(1). In at least one case in the Eastern 6. Whitfield v Ford Motor Company, 1995 WL District of Michigan, the United States 871141 (ED SD Mich). District Court acknowledged that 7. 11 USC 323(B). Michigan’s definition of judicial estop- 8. Bower v Conners Union Bank, 859 F2d 438, pel is essentially the same as used in 440-41 (6 Cir. 1988). federal court.17 The court applied the doctrine of judicial estoppel even though the plaintiffs had reopened the bankruptcy estate, amended their schedules and presented the court with the documents during the course of oral arguments. While Michigan has not yet spoken to this issue, there is no persuasive reason why an inconsistent statement in a bankruptcy proceeding should be treated differently than a successful and consistent statement in any state court proceeding. From the above, it would be clear- ly productive for any defense practi- tioner to check PACER or the United States Case Party Index for prior bankruptcy. While occasionally dis- covery can reveal the presence of a prior Chapter 13 or Chapter 7 filing, it is not always true that debtors are more honest in responding to person- al injury discovery than in filling out their bankruptcy petitions.
Michael J Rinkel is a partner in Siemion, Hucakbay, Bodary, Padilla
12 Michigan Defense Quarterly
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By: Trevor J. Weston and Christopher S. Berry Berry, Johnston, Sztykiel, Hunt and McCandless, P.C.
Executive Summary
Common work area liability applies to general contractors and to premises owners whose retained control over the work-site is sufficient to put them in a position equivalent to that of a general contractor. Common work area liability cases are generally fact-specific; likewise, preparation of a defense must be fact-intensive. Defense counsel must close- ly examine each of the elements of a claim, particularly focusing on the degree of control that is exercised by a defen- dant premises owner, as well as the four elements of the common work area liability which are applicable to general contractors and premises owners who have retained an adequate amount of control over the construction project.
At any given time in Michigan, prevent mishaps from causing aggra- able, avoidable dangers in com- even in the face of a lackluster econo- vated injuries.”3 The question then mon work areas which create a my, somewhere in the neighborhood becomes, who should bear the bur- high degree of risk to a signifi- of 160,000 hard working men and den of ensuring a safe workplace? cant number of workmen.5 women pack a lunch, put on a hard This exception has become known hat and head to work in the commer- as the common work area doctrine or cial and residential construction Prior to the Funk era an retained control doctrine. To establish industries.1 As one might imagine, employee of a subcontractor liability against a general contractor the construction setting poses risks who had the unfortunate or owner under Funk, a plaintiff must and dangers which are unique and prove four elements: (1) that the con- far different from those presented to circumstance of being injured tractor or owner failed to take reason- invitees and licensees by typical on the job site had far less able steps within its supervisory and premises. Often simultaneously, con- recourse to remedy his or coordinating authority; (2) to guard struction workers must navigate against readily observable and avoid- through an ever changing physical her injuries. able dangers; (3) that created a high structure with numerous evolving degree of risk to a significant number open hazards in the face of a virtual of workers; (4) in a common work area. revolving door of other workers and The Funk Common Work A plaintiff’s failure to satisfy any their respective supplies and equip- Area Doctrine one of the four elements of the com- ment. As our Supreme Court has At common law, general contrac- mon work area doctrine is fatal to a noted, the hazards faced by construc- tors, property owners or construction Funk claim. Further, even if the four tion workers can come from any managers could not be held liable for prongs of the Funk test are met, a direction and the sheer pace at which injuries caused by the negligence of worker’s claim is still subject to his or workers are expected to work 4 subcontractors. However, an excep- her own comparative negligence.6 increases the risks associated with tion to this common law rule was first Prior to the Funk era an employee of a those hazards.2 Moreover, “[m]ishaps announced in Funk v General Motors. subcontractor who had the unfortu- and falls are likely occurrences in the In Funk, the Supreme Court held that nate circumstance of being injured on course of a construction project. To it falls to the general contractor or the job site had far less recourse to completely avoid their occurrence is owner to: remedy his or her injuries. an almost impossible task. However, assure that reasonable steps While the stated purpose of the relatively safe working conditions within its supervisory and coor- Funk decision was to promote work- may still be provided by implement- dinating authority are taken to place safety,7 the reality is that the ing reasonable safety measures to guard against readily observ- Continued on page 16
Vol. 24 No. 2 • October 2007 15 I-BEAMS AND HARD HATS
Continued from page 15 application of the doctrine in and of the common work area doctrine itself does little to prevent serious Under Ormsby, an injured would apply and the property owner and disabling injuries from occurring worker may sue the general has sufficiently retained control over on job sites. The implied hope is that the construction project, the owner the fear of monetary exposure will contractor for negligence only assumes the unique duties and obli- cause general contractors and prem- when the four-part common gations of a general contractor and is ises owners to take a more proactive work area test under Funk is held to the same degree of care as the approach to implementing safety pre- general contractor.12 The retained con- cautions on their job sites. satisfied and may sue the trol doctrine is merely a subordinate property owner only where doctrine serving as a conduit for Retained Control as the Basis the owner has retained imposing common work area liability for Common Work Area on property owners and has no appli- sufficient control over the Liability cation to general contractors. Under the Supreme Court’s interpretation, Subsequent to the Funk decision, construction project so as to retained control is considered a sub- considerable confusion arose as to the have stepped into the shoes of species of Funk-type liability and only application of the common work area the general contractor. applies when a project owner under- and retained control doctrines. takes to act as its own general con- However, in Ormsby v Capital tractor and all of the common work Welding, Inc,8 the Supreme Court clar- motion. The Court of Appeals area elements are proved. ified that the doctrines of common reversed the trial court in a published work area and retained control are opinion9, allowing Ormsby to pro- not two distinct and separate excep- ceed with his retained control and Preparing the Defense tions to the common law rule of non- common work area claims. The Court A litigator defending a personal liability. Under Ormsby, an injured of Appeals noted that “with respect injury action arising in a construction worker may sue the general contrac- to the retained control and common setting, should approach the pre-suit tor for negligence only when the work area exceptions, this Court has investigation and discovery stages four-part common work area test applied them as two separate excep- with these doctrines at the forefront. under Funk is satisfied and may sue tions, but also as a single exception.”10 The first determination that must be the property owner only where the This misapplication of the two doc- made is the nature of the client’s owner has retained sufficient control trines was in line with several other involvement in the construction proj- over the construction project so as to Court of Appeals decisions which ect. A subcontractor cannot be held have stepped into the shoes of the had treated the common work area liable under either the common work general contractor. and retained control doctrines as two area or retained control doctrines. Ormsby, who was employed by separate exceptions.11 However, a subcontractor could still Abray Steel Erectors, was injured The Supreme Court reversed the remain open to a general negligence when a structure he was working on Court of Appeals and clarified that action if it created the hazardous condi- 13 collapsed. Monarch Building Services the retained control doctrine merely tion which led to the plaintiff’s injury. was the general contractor on the stands for the proposition that, where If the client is the property owner, project, while Capital Welding was the attorney should immediately subcontracted to erect steel supports assess whether the owner has retained sufficient control so as to have stepped in the building. Capital subcontract- If the client is the property ed the work to Abray Steel. Ormsby in to the shoes of the general contractor sued Monarch and Capital. Ormsby owner, the attorney should and faces liability under the doctrine of argued that Monarch was liable immediately assess whether retained control. A general contractor is one that is because he was injured in a common the owner has retained work area used by employees of responsible for establishing and other subcontractors. He also argued sufficient control so as to have enforcing safety policies on the job that Capital was liable, despite hav- stepped in to the shoes of the site and coordinating and supervis- ing subcontracted its work to Abray ing the work and schedule of the var- general contractor and faces 14 Steel, because Capital had “retained ious subcontractors. Accordingly, if control” of the worksite. liability under the doctrine of the client is the general contractor or Capital moved to dismiss the case retained control. an owner that has retained control on and the trial court granted the the project, the focus should shift to
16 Michigan Defense Quarterly I-BEAMS AND HARD HATS
struction setting would thwart the “common work area” suggests a Unlike the typical premises goals of workplace safety advanced desired intent to limit the scope of the liability action where a by the decision in Funk. supervisory duties and liability of a Though general contractors may general contractor or owner. The property owner has no duty not hide behind the open and obvi- court explained that a common work to warn of dangers which are ous shield pursuant to Ghaffari, it is area is one where employees of a “open and obvious,” the implicit that contractors have no duty number of subcontractors are all sub- to guard against hazards and dangers ject to the same risk or hazard, and is common work area doctrine which are not readily observable and distinguishable from a situation in imposes an affirmative duty avoidable. Accordingly, if the danger which employees of a subcontractor to “guard against readily which resulted in the plaintiff’s were working on a unique project in injury was not readily observable isolation from other workers.21 observable and avoidable and avoidable, the plaintiff cannot Though not specifically stated, it is dangers.” establish the second element to the understood that the high degree of common work area doctrine thereby risk must be considered in light of the precluding recovery. numerous hazards construction the remaining elements of the com- The third and fourth elements workers face on a routine basis as mon work area doctrine to assess the under the common work area doc- opposed to other professions. While client’s exposure. trine intertwine two subjective con- someone who is unfamiliar with con- siderations. First, whether the readily struction settings may find obstacles “Readily Observable and observable and avoidable danger cre- which pose a high degree of risk vir- Avoidable Dangers” ated a “high degree of risk” that was tually everywhere, it is routine for Once it has been determined a threat to a “significant number” of the construction worker to encounter whether or not the common work workers. Second, whether the acci- open holes in floors, uneven ground, area or retained control doctrines are dent site was a common work area. exposed nails and staircases without applicable based upon the nature of railings. Thus, to determine whether the client’s role in the project, the next High Degree of Risk to a an alleged danger posed a high point of consideration is whether the Significant Number of degree of risk to a significant number subject danger is “readily observable Workers of workers, the attorney should spend and avoidable.” Unlike the typical considerable time interviewing and On the question whether a condi- premises liability action where a deposing other workers on the jobsite tion presents a high degree of risk to property owner has no duty to warn to gauge their impressions of the a significant number of workers, the of dangers which are “open and obvi- alleged hazard. Attorneys should also 15 post-Ormsby case law has yet to pro- ous,” the common work area doc- apprise the other workers of the “high vide any quantitative standards, and trine imposes an affirmative duty to degree of risk” element in order to numerosity continues to be a focal “guard against readily observable prevent an assertive plaintiff’s attor- point of litigation. However, there do and avoidable dangers.” In Ghaffari v ney from forcing that description of seem to be some parameters. In Turner Construction, the Supreme the hazard upon co-workers. Court held that a general contractor Ormsby, the court noted that the high degree of risk to a significant number confronted with potential liability for Summary a job-site injury suffered by the of workers must exist at the time of 18 Any action arising from a con- employee of a subcontractor may not the plaintiff’s injury. In Hughes v 19 struction site injury is extraordinarily avoid liability on the basis that the PMG Bldg, Inc, the plaintiff suffered condition giving rise to the injury an injury after falling from a porch was open and obvious.16 The court overhang. The court concluded that, pointed out that the legal analyses because the plaintiff was one of only In Ormsby, the court noted employed in the two contexts (the four men who would be working on that the high degree of risk the overhang, the general contractor open and obvious and common work to a significant number of area doctrines, respectively) are dis- did not breach its duty to guard tinct.17 The court concluded that against a danger posing a high workers must exist at the time allowing the open and obvious degree of risk to a significant number 20 of the plaintiff’s injury. defense provided to landowners to of workers. The Hughes court also apply to general contractors in a con- noted that the use of the phrase Continued on page 18
Vol. 24 No. 2 • October 2007 17 I-BEAMS AND HARD HATS
Continued from page 17 fact-sensitive. Attorneys defending Christopher S. Berry is an associate in 10. Ormsby, supra, 255 Mich App at 175-76. such actions must quickly and deci- the Zeeland Office of Berry, Johnston, 11. See Erickson v Pure Oil Corp., 72 Mich App. sively determine the nature of their Sztykiel, Hunt and McCandless, P.C. His 330 (1976); Signs v Detroit Edison Co,93 Mich App 626 (1979); Johnson v Turner client’s role in the project and assess email address is cberry@berryjohnston- Construction Co, 198 Mich App 478 (1993); potential liability. If there is even a law.com. Both attorneys specialize in all Phillips v Mazda Motor Mfg Corp, 204 Mich possibility that the common work areas of litigation involving Business, App 401 (1994); and Kubisz v Cadillac Gage area or retained control doctrines will Construction, No-Fault, and Worker’s Textron, Inc, 236 Mich App 629 (1999). apply, the investigative and discov- Compensation and are members of the 12. Ormsby, supra, 471 Mich at 49. 13. Johnson v A & M Custom Built Homes of Michigan Defense Trial Counsel. ery efforts should be focused on each West Bloomfield, LPC, 261 Mich App 719 of the four-elements announced in (2004). Funk and Ormsby. Because of the sub- 14. Funk, supra, 392 Mich at 104; Ormsby, jectivity of the third and fourth ele- Endnotes supra, 471 Mich at 54. 1. U.S. Census Bureau, 2002 15. Lugo v Ameritech Corp, Inc, 464 Mich 512, ments of the common work area doc- 2. Ghaffari v Turner Construction Co, 473 Mich 516 (2001). trine, aggressive investigation may 16, 28-29 (2005). 16. Ghaffari, supra, 473 Mich at 29-30. 3. Funk v GMC, 392 Mich 91,102-103; 220 prove to be the difference in mount- 17. Ghaffari, supra, 473 Mich 24. NW2d 641 (1974). ing a successful defense. 18. Ormsby, supra, 471 Mich at 59. 4. Restatement (Second) of Torts §409 at 370. 19. Hughes v PMG Bldg, Inc, 227 Mich App 1 5. Funk, supra, 392 Mich at 104 (1997). 6. Hardy v Monsanto, 414 Mich. 29 (1982). 20. Hughes, supra, 227 Mich App at 7-8. 7. Funk, supra, 392 Mich at 104. Trevor J. Weston is an associate in the 21. Hughes, supra, 227 Mich App at 8-9. Troy Office of Berry, Johnston, Sztykiel, 8. Ormsby v Capitol Welding, Inc, 471 Mich 45, 54 (2004). Hunt and McCandless, P.C. His email 9. Ormsby v Capitol Welding, Inc, 255 Mich address is [email protected]. App 165 (2003).
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18 Michigan Defense Quarterly CLEAR AS MUD: CLAIMS BROUGHT BY THIRD PARTIES FOLLOWING THE DECISION IN FULTZ
By: Todd W. Millar Smith, Haughey, Rice & Roegge
Executive Summary
In Fultz v Union-Commerce Associates, the Supreme Court held that a person who was not a party to a contract can- not sue in tort on the basis that the contract created a duty. The court suggested that a suit could be maintained when the performance of the contract created a new hazard. This left open the possibility that there could be a tort suit by a person not a party to a contract at least in some circumstances. However, subsequent experience indicates that there have been no successful applications of this “exception” to the Fultz doctrine. The published and unpublished opinions of the Court of Appeals are consistent in denying recovery under the Fultz exception. Whatever value the exception may have in theory, it appears to have none in practice, and defense counsel should always consider filing a motion for summary disposition.
On July 14, 2004, the Michigan distinct” from the contractual obliga- its obligations under the snow Supreme Court decided the case of tions. In Fultz, the plaintiff slipped removal contract in a reasonable Fultz v Union-Commerce Associates.1 and fell in an icy parking lot. The manner. The Supreme Court decision With this decision, the Supreme plaintiff sued both the landowner addressed the issue of “whether Court arguably clarified the rights of and the snow removal contractor for plaintiff can establish a duty owed a non-party to a contract to bring negligence. The contract called for her arising from a contract to which claims against a party to the contract the snow removal contractor to salt she was not a party.” for breach of that contract. In its deci- the parking lot if it became icy. A jury Fultz summarized the common sion, the Court set forth a fact pattern found that the contractor had not law regarding the duty that a con- that it stated would survive summary breached the contract, but that he had tracting party owes to a third person, disposition and allow a claim to pro- stating “our courts have drawn a dis- ceed. In the few years that have fol- tinction between misfeasance (action) lowed, however, the cases that have The Supreme Court called the and nonfeasance (inaction) for tort relied upon the Fultz decision lead misfeasance/nonfeasance dis- claims based on a defendant’s con- one to conclude that, absent a third tractual obligations. We have held party beneficiary relationship, third tinction “largely semantic,” that a tort action will not lie when party claims for breach of contract no “artificial,” and “slippery,” based solely on the nonperformance longer exist in the State of Michigan. and believed that it obscured of a contractual duty.”2 The Supreme Attorneys defending such cases Court called the misfeasance/nonfea- should focus their efforts on estab- the proper initial inquiry: Did sance distinction “largely semantic,” lishing the scope of the contract and the defendant owe any legal “artificial,” and “slippery,” and that the plaintiff is not a third party duty to the plaintiff? believed that it obscured the proper beneficiary. If such facts can be devel- initial inquiry: Did the defendant oped, summary disposition should owe any legal duty to the plaintiff? be within grasp. been negligent by failing to perform Instead of the misfeasance/nonfea- In Fultz, the Michigan Supreme his duty under the contract, and that sance analysis, the Supreme Court Court held that a plaintiff who was his negligence was the proximate stated that: not a party to a contract may only cause of the plaintiff’s injuries. The [L]ower courts should analyze recover from a defendant who was a Court of Appeals affirmed the jury tort actions based on a contract party to the contract if the defendant verdict, holding that the contractor breached a duty that is “separate and owed a common-law duty to perform Continued on page 20
Vol. 24 No. 2 • October 2007 19 CLAIMS BROUGHT BY THIRD PARTIES FOLLOWING FULTZ
Continued from page 19
and brought by a plaintiff who to provide protection for the floor is not a party to that contract by Although the Supreme Court openings, the removal of the perma- using a “separate and distinct” left open the door for liability, nent aluminum covers created a new mode of analysis. Specifically, hazard, giving rise to a separate and the threshold question is there does not appear to have distinct duty under the Fultz doctrine. whether the defendant owed a been any case wherein the In lieu of granting an appeal to Otis duty to the plaintiff that is sepa- plaintiff’s claims have Elevator, the Michigan Supreme Court rate and distinct from the defen- squarely rejected the Court of Appeals’ dant’ s contractual obligations. survived analysis under reasoning, holding instead that the cre- If no independent duty exists, Fultz. Even cases with fact ation and covering of the wellway was no tort action based on a con- patterns similar to those within the scope of the contract: tract will lie.3 … [W]e REVERSE the judgment discussed in Fultz as giving of the Court of Appeals and rise to tort liability have been REINSTATE the order of the Independent Duty in Theory dismissed. Wayne Circuit Court granting – New Hazard summary disposition to defen- The only example of an independ- dant Otis Elevator Company. ent tort duty described in the Fultz those discussed in Fultz as giving rise Otis entered into a contract to opinion was the creation of a new to tort liability have been dismissed. install moving walkways in a hazard. As an example, the Court dis- In Banaszak v Northwest Airlines,6 new airport terminal. As part cussed Osman v Summer Green Lawn Otis Elevator was hired as a subcon- of that contract, Otis was 4 Care, Inc, where the defendant snow tractor to construct the elevators, required to provide a cover removal company had created a new escalators, and moving walkways in over the “wellway,” an open- hazard by piling snow in a location the new terminal at the Detroit ing at the end of the moving where the snow would melt and then Metropolitan Airport.7 The construc- walkway that contains the freeze on a walkway. The Supreme tion of the moving walkways mechanical elements. The pur- Court distinguished the creation of a involved creating a wellway area to pose of the cover was to pro- new hazard (piling snow in a danger- contain the machinery that would tect persons using that area. ous location) in Osman from the fail- run the walkways. The final project The plaintiff was injured when ure to take any action (not salting the involved the installation of a sturdy she stepped on an inadequate lot) in Fultz. aluminum cover over the wellway. To piece of plywood covering the Fultz did not modify the law con- prevent damage to the aluminum “wellway.” This hazard was cerning the rights of third-party ben- covers, Otis Elevator removed the the subject of the Otis contract. eficiaries to a contract, as provided by covers and covered the wellway with As a result, Otis owed no duty MCL 600.1405. Thus, where a party to a thin sheet of plywood. The plaintiff to plaintiff that was “separate a contract undertakes “to give or to was an electrician on the project. and distinct” from its duties do or refrain from doing something” Apparently other workers were not under the contract.8 directly for a third person, that third informed that some of the wellways In an unpublished opinion, Murray person may sue for a breach of the were covered by plywood over the Aviation, Inc, v Grinnell Corp,9 the contract. However, members of the aluminum cover, which could sup- plaintiff attempted to sue the defen- public at large not specifically named port a human’s weight, and other dant for its negligent inspection and in the contract will be declared inci- wellways were covered only by ply- maintenance of a sprinkler system at dental beneficiaries, without contrac- wood. The sheet of plywood col- the Willow Run Airport. The sprin- tual rights, rather than third party lapsed as the plaintiff was walking 5 kler system apparently malfunc- beneficiaries. over it, causing the plaintiff to fall tioned a number of times, damaging into the wellway and sustain injury. plaintiff’s property. Noting that Independent Duty in Practice The trial court granted summary defendant’s contractual relationship Although the Supreme Court left disposition to Otis Elevator, finding was with the owner of the airport, open the door for liability, there does that the covering of the wellway was Wayne County, and that the plaintiff not appear to have been any case an act within the subject of Otis failed to plead the breach of a duty wherein the plaintiff’s claims have Elevator’s contract. The Court of separate and distinct from the con- survived analysis under Fultz. Even Appeals held that though Otis tractual obligations contained in the cases with fact patterns similar to Elevator had a contractual obligation
20 Michigan Defense Quarterly CLAIMS BROUGHT BY THIRD PARTIES FOLLOWING FULTZ
contract with Wayne County, the injured when the walls of the trench independent of the carport con- Court of Appeals upheld the lower caved in and buried him. Plaintiff struction contract. Rather, court’s dismissal of plaintiff’s com- alleged no independent cause of action plaintiff primarily alleged that plaint pursuant to Fultz. beyond the contract between defen- defendant L&A acted negli- In another unpublished opinion, dant and the City of Mason. Therefore, gently by “[f]ailing to properly Komara v Meridian Mall Ltd the Court of Appeals reversed the trial place, assemble, and inspect the Partnership,10 plaintiff sued a snow court’s refusal to grant summary dis- carport gutter downspouts….” removal contractor that had entered position, concluding that the plaintiff’s In other words, plaintiff into a contract with the Meridian allegations against defendant arose claimed defendant L&A did not Mall to remove snow. Plaintiff suf- entirely from its duties under its con- perform portions of the carport fered an injury when she slipped and tract with the city. construction properly. Because fell on snow and ice at the mall. Under plaintiff’s theory of the the installation of a gutter Plaintiff argued that the defendant case, defendant Elm owed downspout was part of the con- created a new hazard by allegedly plaintiff no “separate and dis- struction contract, plaintiff’s packing snow on top of already exist- claim is based on the contract ing ice which, at a minimum, created between the two defendants. a question of fact for the jury. In com- The cases thus far have been Therefore, plaintiff fails to meet paring this case to the Osman case, consistent in failing to find the threshold requirement of discussed in Fultz, the Court of establishing a duty that defen- Appeals concluded that separate and that the Fultz opinion’s dant L&A owed to her under distinct hazards had not been created. “independent duty” principle the “separate and distinct” The Fultz Court found that a actually provided a basis for approach. Fultz, supra at 467. separate and distinct duty was Accordingly, we conclude that owed to the plaintiff is Osman recovery by the plaintiff. the trial court properly granted based on the defendant’s cre- defendant L&A’s motion for ation of a “new hazard.” Here, summary disposition and dis- defendant did not create a tinct” duty. Rather, the sub- missed plaintiff’s complaint. “new hazard” when it alleged- stance of plaintiff’s allegations is ly plowed the snow in the mall defendant Elm’s failure to act in parking lot and packed it a variety of ways under the con- Conclusion down to form ice or placed the tract. “[N]o tort liability arises The cases thus far have been con- snow on existing patches of for failing to fulfill a promise in sistent in failing to find that the Fultz ice. Unlike the defendant in the absence of a duty to act that opinion’s “independent duty” princi- Osman, defendant did not cre- is separate and distinct from the ple actually provided a basis for ate a “new” hazard when it promise made.” recovery by the plaintiff. Analyzing moved the snow to a different these cases leads to the inescapable Finally, in Perry v L&A Mobile Home area. Rather, Pamela Komara conclusion that it will be extremely Repair, Inc,12 defendant L&A Mobile fell on the same hazard that difficult for a plaintiff who is not a Home Repair was hired by a co- defendant contracted with the party to the contract to establish a defendant to deliver and assemble a mall to remove. Therefore, the right to recover. Given the current carport for the plaintiff. The carport trial court did not err in finding makeup of the Supreme Court, was constructed in such a manner that defendant owed no com- defendants should seek summary that the water run-off was directed mon-law duty to plaintiffs to disposition in any case where there onto the driveway. The plaintiff sus- perform its contractual duties was an underlying contract for the tained injuries when she fell on ice with reasonable care, and its provision of services, where the that formed as a result of the water grants of summary disposition plaintiff is not a party to the contract. runoff from the carport downspout. to defendant was proper. Noting that plaintiff was not a party In Wallington v City of Mason,11 the to the contract to install the carport, Todd W. Millar is an attorney with plaintiff, who was an employee of a the court analyzed whether or not a Smith Haughey Rice & Roegge. He prac- subcontractor hired by the defendant separate and distinct duty existed. tices in the areas of insurance defense, to dig a trench and install a water As in Fultz, plaintiff has failed main for the City of Mason, was to allege a duty owed to her Continued on page 22
Vol. 24 No. 2 • October 2007 21 CLAIMS BROUGHT BY THIRD PARTIES FOLLOWING FULTZ
Continued from page 21 business and corporate litigation, and 8. Banaszak, 477 Mich at 895 (emphasis governmental law. He can be reached added). directly at [email protected]. 9. 2006 WL 781991 (unpublished Michigan Court of Appeals opinion #257298). 10. 2006 WL 932312 (unpublished Michigan Court of Appeals opinion #258617). 11. 2006 WL 3826761 (unpublished Michigan Endnotes Court of Appeals opinion #267919, 269884). 1. 470 Mich 460; 683 NW2d 587 (2004) 12. 2007 WL 914310 (unpublished Michigan 2. 470 Mich at 465-66. Court of Appeals opinion #272970). 3. 470 Mich at 467. 4. 209 Mich App 703; 532 NW2d 186 (1995) 5. Fultz, 470 Mich at 473-474. 6. 477 Mich 895; 722 NW2d 433 (2006) 7. For the facts of this case, see the unpub- lished decision of the Court of Appeals, #263305, February 28, 2006, 2006 WL 473848.
22 Michigan Defense Quarterly
Young Lawyers Section VII. POST TRIAL MOTIONS: SETTING THE STAGE FOR APPEAL By: Timothy A. Diemer John P. Jacobs, P.C. Chairperson of the Young Lawyers Section, Michigan Defense Trial Counsel
Editor’s Note: This article is the seventh installment in our series providing an introduction to the basics of litigation from a defense perspective. In the first article, we discussed pleading and responding to a cause of action. In the second article, we offered tips and tricks for raising cross claims, third party claims, and pursuing indemnity. In the third article, we addressed seeking dis- covery and responding to discovery-related issues. The fourth article focused on dispositive motions while the fifth article outlined trial preparation. Parts one and two of the sixth article provided tips, techniques, and strategies for trial advocacy, and the basics of each stage of trial. This article takes us to the next stage, post-trial.
The two previous installments of No matter how strong the defense ken, a defense lawyer has a much bet- this series focused on trial strategies, trial presentation may have been, if ter shot at post-trial relief based on including trial preparation as well as there was conflicting evidence on arguments limited to legal issues. tips for successfully trying a case to issues defense counsel feels the jury Before delving into the specific verdict. The final article in this series got wrong, judges are loath to invade rules pertaining to the various post- will focus on the appellate process. the province of the Jury and impose trial motions, one other concern com- This installment bridges the gap their view of the facts. “Assessing mon to all must first be pointed out. It between the two by focusing on post- credibility and weighing testimony is is nearly impossible to secure the trial motions designed to vacate or the prerogative of the trier of fact.”1 see entire trial transcripts within the time modify unfavorable jury verdicts as required to file a post-trial motion — well as mechanisms for setting the 21 days following entry of the judg- stage for an appeal. Note that the time [O]nce the jury has spoken, ment.3 Thus, while arguing that, for for filing a claim of appeal is tolled a defense lawyer has a much example, the evidence at trial was during the post-trial motion stage if insufficient to substantiate an ele- the post-trial motions, themselves, better shot at post-trial relief ment of a plaintiff’s tort claim or that were timely filed. MCR 7.204(A)(1)(b). based on arguments limited to the damages testimony presented at legal issues. trial did not support the jury’s award, Introduction the defense lawyer rarely has the Post-trial motions are not an benefit of the transcript from which opportunity to retry a case. If the jury also, “When the evidence presented to make such arguments. has awarded damages against your could lead reasonable jurors to dis- There are two ways, essentially, to client and in favor of the plaintiff, agree, the trial court may not substi- strategically handle this dilemma. don’t view post-trial motions as an tute its judgment for that of the jury.”2 First, the defense lawyer can rely on opportunity to re-try the case to the Assuming a directed verdict the Judge’s memory and recount the judge. Post-trial motions, aside from motion was made, or a pre-trial trial testimony hoping that the Trial the occasional remittitur order, usual- motion for summary disposition, the Judge agrees with your memory of ly fail to persuade the trial judge to trial court has already ruled that the facts at the motion hearing. The set aside or modify the verdict or questions of fact warrant a trial. It is other option is to file the brief attest- order a new trial. That said, while nearly impossible in these circum- ing to your recollection of the facts, well written and argued post-trial stances to convince a judge that the but promise the judge that the tran- motions may not afford your client court was wrong to submit the case to scripts had been ordered and that the relief in the trial court, post-trial the jury and that the jury’s considera- record references of your post-trial motions often set the stage for suc- tion of the evidence was equally motions will be validated once the cess in the appellate courts. wrong. Rather, once the jury has spo- transcripts are obtained. This latter
24 Michigan Defense Quarterly YOUNG LAWYERS SECTION: SETTING THE STAGE FOR APPEAL
option, while more expensive since prior “shock the judicial conscience” the transcripts are ordered on an A motion for judgment remittitur standard, the trial court is expedited basis where the court rules notwithstanding the verdict now required to make an objective do not actually require a production inquiry into the excessiveness of the of the transcripts at this time, is (JNOV) is roughly equivalent verdict by looking at several factors. preferable for two reasons (1) you to a motion for summary (1) whether the verdict was the result have the opportunity to substantiate disposition in that the movant of improper methods, prejudice, pas- your positions with a supplemental sion, partiality, sympathy, corruption brief once the transcripts come in and argues that the plaintiff failed or simply mistake of law or fact; (2) (2), you can preemptively prevent to sustain the burden of proof whether the verdict was within the your opposition from distorting the on a necessary element of limits of what reasonable minds record knowing that once the tran- would deem what the proper limits scripts arrive, any distortions will be his claim. are for just compensation for the undercut. injury sustained; and (3) whether the With these introductory remarks amount actually awarded is compa- out of the way, let’s look at a few of recast the evidence in a different light rable to other awards in similar cases the various post-trial motions at a hoping the trial judge weighs the tes- within the State of Michigan and in defense lawyer’s disposal. timony differently than the jury. This other jurisdictions.7 is not a successful strategy. A well- Arguing factors 1 and 2 is self- Judgment Notwithstanding argued JNOV motion will focus on explanatory, but factor 3 requires jury the legal issues that arose during trial the Verdict verdict research. Some online legal or, if JNOV is not a strong possibility research tools offer lawyers the abili- A motion for judgment notwith- in the trial court, a strategic JNOV standing the verdict (JNOV) is rough- ty to conduct this research, but if motion will develop and preserve these tools are not available, many ly equivalent to a motion for summa- key legal issues to set the stage for a ry disposition in that the movant private companies offer jury verdict consideration of the legal issues in research services for a reasonable fee. argues that the plaintiff failed to sus- the Court of Appeals. tain the burden of proof on a neces- Requesting a New Trial sary element of his claim. When mov- Remittitur and Additur ing for JNOV, keep in mind what was The court rules also give parties an Following the jury verdict, the par- mentioned above — if summary dis- opportunity to start all over and re- ties are also given an opportunity to position and directed verdict motions try the case based on a wide range of convince the Judge that the damages have already been denied, arguing a reasons identified in MCR should be lowered (remittitur) or factual insufficiency has little chance 2.611(A)(1), including: an irregularity increased (additur) under MCR of success. in the proceedings, jury misconduct, 2.611(E). This article will focus on A motion for JNOV should be prevailing party misconduct, exces- remittitur since it is not too often that granted only when there is insuffi- sive or inadequate damages due to a defense attorney asks the damages cient evidence presented to create an passion or prejudice, a verdict clearly to be increased. Quite simply, a remit- issue for the jury.4 Similar to summa- or grossly inadequate or excessive, a titur is warranted if the jury verdict ry disposition and directed verdict verdict against the great weight of the exceeds the highest amount the evi- motions, when deciding a motion for evidence or contrary to the law, dence will support. Instead of the JNOV, the trial court must view the newly discovered evidence, or an evidence and all reasonable inferences error of law or mistake of fact by the in the light most favorable to the non- Instead of the prior “shock the court. Not surprisingly, having sat through a long trial, trial judges are moving party and determine whether judicial conscience” remittitur the facts presented preclude judgment not inclined to order a new trial, and for the nonmoving party as a matter of standard, the trial court is lawyers will typically have better law.5 “When the evidence presented now required to make an luck impressing an appellate court of the need for a new trial. Trial judges could lead reasonable jurors to dis- objective inquiry into the agree, the trial court may not substi- would be more likely to order a tute its judgment for that of the jury.”6 excessiveness of the verdict by remittitur, which would not necessar- In light of these principles, do not looking at several factors. ily engender a new trial. use a JNOV as an opportunity to An order granting a new trial is likewise rare since litigants are only Continued on page 26 Vol. 24 No. 2 • October 2007 25 YOUNG LAWYERS SECTION: SETTING THE STAGE FOR APPEAL
Continued from page 25
the jury verdict could only be Not surprisingly, having sat explained through the chicanery of The court rules do not specify through a long trial, trial opposing counsel. One avenue of suc- the required amount of the cess would arise if one’s opponent judges are not inclined to intentionally withheld critical discov- appeal bond, merely requiring order a new trial, and lawyers ery only to ambush the defense at trial. that the bond be set “in an will typically have better luck A deliberate refusal to timely divulge amount adequate to protect discovery which will be central to the impressing an appellate court opposing party’s case or in testing the the opposite party.” The of the need for a new trial. opposing party’s expert can constitute custom is to secure a bond prejudicial error which reversibly justi- in the amount of 125% the fies the granting of a new trial for such guaranteed a “fair trial,” not neces- discovery wrongdoing.10 judgment, to take into 8 sarily a perfect one. This non-guar- Other examples of opposing party account the interest that antee of a perfect trial is further misconduct warranting a new trial will accumulate during the reflected in MCR 2.613(A) — an error include comparing the sexual harass- does not warrant post-trial relief ment plaintiff to a holocaust survivor appeal process. unless “refusal to take this action and the defendant to Nazis;11 reading an appears to the court inconsistent with inflammatory poem regarding organ wise faces a high hurdle as, a priori, substantial justice.” This burden is donation to inflame the passion of the the grant of a new trial on this basis is often difficult to meet. jury where organ donation had no rele- disfavored.16 Now that the depressing news is vance at trial;12 diverting the jurors from out of the way, let’s look at a couple the issue in this case by waging unsub- of the grounds which may warrant a stantiated attacks of corporate greed, Obtaining A Stay Of new trial. Given the many reasons dishonesty;13 repeated references to the Proceedings, Preparing For one can raise to request a new trial, defendant’s corporate status and the An Appeal however, only a few can be discussed fact that George Steinbrenner was on Assuming the plaintiff was suc- here. One of the more frequently the Board of Directors (whatever one’s cessful in obtaining a damages ver- raised grounds is that the jury verdict opinion of the Yankees may be, King dict against your client, the first mat- was against the great weight of the George is still entitled to a fair trial);14 ter to take care of is staying the execu- evidence. Following a trial, it is natu- “[W]here language is such as evinces a tion of that judgment to protect your ral for a defense lawyer to be studied purpose to enflame or preju- client’s assets during the appellate absolutely convinced in the justice of dice the jury, based upon facts not in the process. Unless one or more post-trial her cause and equally convinced that case, this Court has not hesitated to motions listed in MCR 2.614(A)(1) are the opponent’s witnesses were reverse.”15 timely filed, execution on the judg- untruthful and that the plaintiff’s A litigant seeking a new trial based ment and proceedings supplemen- experts were making things up, but on newly discovered evidence like- tary to execution (such as expensive, no matter how strong that belief may time consuming and potentially be, reversing a jury verdict on this embarrassing creditor’s exams) may ground is virtually impossible. If not not occur until 21 days after entry of to weigh the evidence and make cred- A deliberate refusal to timely the judgment. This means that if a ibility determinations, what is the divulge discovery which will post-trial motion is not filed within 21 point of impaneling a jury? In fact, it days of the judgment, the defense has been a full 70 years since the be central to the opposing lawyer must take action prior to filing Michigan Supreme Court last over- party’s case or in testing the a claim of appeal to protect the turned a jury verdict based on the opposing party’s expert can client’s assets from execution. After “great weight of the evidence” test in all, assuming the defendant success- a civil action.9 constitute prejudicial error fully overturns the verdict on appeal, Another tempting area to seek a which reversibly justifies the good luck getting your client’s new trial will be misconduct of the granting of a new trial for money back after the plaintiff has opposing party and attorney since, enjoyed it over the roughly 18 again believing in the justice of the such discovery wrongdoing. months it takes the Court of Appeals case, many defense lawyers feel that to decide a case.
26 Michigan Defense Quarterly YOUNG LAWYERS SECTION: SETTING THE STAGE FOR APPEAL
Furthermore, if a post-trial motion appellate attorney an opportunity to of appeal fast approaching, it is time listed under MCR 2.614(A)(1) is filed, clear up the record, as well as devel- to begin preparation of the claim of execution on the judgment may not op and preserve appellate issues. appeal documents. That topic, as well occur until 21 days after entry of an Appellate attorneys often see a as appellate brief writing and oral order denying or granting post-trial trial as a series of legal issues where- argument, will be addressed in the relief. So, at a minimum, the filing of as trial counsel is more likely to home next and final installment. a post-trial motion extends the auto- in on witness credibility, damages matic stay of execution period until assessments, testimonial disputes, 21 days after such motion is decided. and other critical trial battles played Endnotes Further assuming the post-trial out in front of the jury. This focus is 1. Kelly v Builders Square Inc, 465 Mich 29, 39- motions are denied, the defense often considerably different than an 40; 632 NW2d 912 (2001). lawyer has 21 days to effectuate a appellate attorney’s. If your firm has 2. Foreman v Foreman, 266 Mich App 132, stay of proceedings pending appeal. an appellate department or if an out- 136; 701 NW2d 167 (2005). 3. MCR 2.610; MCR 2.611; MCR 2.612. Stays pending appeal are governed 4. Merkur Steel Supply, Inc v Detroit, 261 Mich by MCR 7.209, i.e., within the court App 116, 123; 680 NW2d 485 (2004). rules chapter pertaining to appellate If an appellate specialist is 5. Id. at 123-124. 6. Foreman, supra, 266 Mich App 136. procedure, but the trial judge is brought in to handle the responsible for setting the amount of 7. Gilbert v DaimlerChrysler, Inc, 470 Mich appeal, allowing the appellate 749; 685 NW2d 391 (2004) (fn19). the appeal bond. And while the trial 8. Totman v School District of Royal Oak, 135 court’s authority to act is significant- specialist to draft the post- Mich App 121, 127; 352 NW2d 364 (1984). ly curtailed once the Court of trial briefs gives that attorney 9. See Davis v Belmont Creamery Co, 281 Mich Appeals is vested with jurisdiction, 165; 274 NW 749 (1937). one remaining power of the trial an opportunity to become 10. Rock Island Bank and Trust Company v Ford court is to modify the bond during Motor Company, 54 Mich App 278; 220 familiar with the file, the legal NW2d 799 (1974). the appellate process.17 The court issues and the facts giving the 11. Gilbert v DaimerlChrysler Corp, 470 Mich rules do not specify the required 749; 685 NW2d 391 (2004) amount of the appeal bond, merely appellate attorney an opportu- 12. Porter v Northeast Guidance Center, 467 requiring that the bond be set “in an nity to clear up the record, as Mich 901; 653 NW2d 183 (2002) 13. Badalamenti v William Beaumont Hospital- amount adequate to protect the oppo- well as develop and preserve site party.”18 The custom is to secure a Troy, 237 Mich App 278, 290-291; 602 appellate issues. NW2d 854 (1999) bond in the amount of 125% the judg- 14. Reetz v Kinsman Marine Transit Co, 416 ment, to take into account the interest Mich 97, 330 NW2d 638 (1982) that will accumulate during the 15. Firchau v Foster, 371 Mich 75, 78-79; 123 appeal process. Once the trial court side appellate specialist is brought in NW2d 151 (1963). approves the bond, a stay of execu- to look at your case, the “book 16. Kroll v Crest Plastics, Inc, 142 Mich App 284, 291; 369 NW2d 487 (1985). tion follows: “the trial court may lawyer” may find legal issues that are 17. MCR 7.209(C). order a stay of proceedings, with or often not addressed by trial counsel. 18. MCR 7.209(B)(1). without a bond as justice requires.”19 Post-trial motions give your client an 19. MCR 7.209(E). If the trial court declines to stay pro- opportunity to explore and develop 20. MCR 7.209(A)(2) ceedings, the defendant can seek a what ultimately might prove to be 21. See Napier v Jacobs, 429 Mich 222; 414 stay in the Court of Appeals.20 outcome determinative legal error. NW2d 862 (1987). This “new” legal issue can be advo- Conclusion cated to the judge on post-trial Despite the seeming bleak picture motion but also has the added benefit painted above, post-trial motions do or arguably preserving the issue for serve many useful functions. Perhaps consideration in the appellate courts. most importantly, if an appellate spe- A challenge to the sufficiency of the cialist is brought in to handle the evidence can be made via JNOV post- appeal, allowing the appellate spe- trial motion contesting the lack of cialist to draft the post-trial briefs proof of an element of the claim or a gives that attorney an opportunity to failure to prove damages.21 become familiar with the file, the With an appeal bond in place and legal issues and the facts giving the the 21 day window for filing a claim
Vol. 24 No. 2 • October 2007 27 MICHIGAN COURT RULES AND MICHIGAN CIVIL JURY INSTRUCTIONS PROPOSED AMENDMENTS By: M. Sean Fosmire Garan Lucow Miller, P.C. Marquette, Michigan
Further information on these and other proposals and orders may be found at the Supreme Court web site http://courts.michigan.gov/supremecourt/Resources/Administrative/index.htm and at the Michigan Lawyers Weekly subscribers-only web site http://www.milawyersweekly.com/subscriber/mi/mitreas.cfm
The Supreme Court page has been substantially improved. Proposed amendments and adopted amendments are now organized by subject matter, which greatly enhances the user’s ability to track them.
E-Filing proposal is much less ambitious. Its ice on other counsel. This will In our July issue, we included an essential provisions include: make it incumbent on counsel to item on Administrative File 2007-12, review filed papers online in dated April 10, 2007, a new proposal • Courts may adopt an electron- order to ensure that they are which would amend several rules to ic filing program; they are not aware of newly filed items. provide for voluntary service of filings required to do so. If a court Passive reliance on e-mail notifi- by e-mail in lieu of filing paper plead- does adopt e-filing, it must cation will be inadvisable. ings by mail. On the same date, the adopt guidelines consistent with the new rules. There have been a number of com- Court released another proposal using ments posted online. One of the most a very old file number, Administrative • The system will be limited to prominent is that filed by Attorney File 2002-37, regarding the related authorized users. A fee for General Michael Cox, who notes that issue of electronic filing - filing plead- using the system may be his office will encounter substantial ings with the court using online access charged. The rules anticipate difficulties in dealing with a system rather than by mail. Because the Court that the system will be admin- under which some counties adopt issued this new proposal using an old istered by a service provider. electronic filing while others do not. file number, we did not catch it and it • The court adopting a system He expresses general support for the was not included in the July issue. e-filing concept, but would prefer to The original 2002-37 item had pro- must make a terminal avail- able to the public for use by lit- see a system which applies across the posed to incorporate wholesale a set board in all cases in all counties. of proposed standards drafted by the igants who do not own or have access to a computer. A public hearing was scheduled Electronic Filing Subcommittee of the for September 26, 2007. National Consortium for State Court • Filing with the system is auto- Automation Standards. The new 2007 matically regarded as valid serv-
28 Michigan Defense Quarterly MICHIGAN COURT RULES — PROPOSED AMENDMENTS
Proposed Amendments to dence must persuade you that the clear and convincing, the evidence Model Civil Jury Instructions proposition is more likely true than not must be strong enough to cause you true. to have a clear and firm belief that the “Burden of Proof” proposition is true. In addition to proposed changes to “Clear and Convincing Evidence” the Michigan Court Rules as released The proposal would also amend The comment by the Committee by the Supreme Court, the the instruction as it defines “clear includes the following: The revised Committee on Model Civil Jury and convincing evidence”: instruction makes clearer that the evi- dence in support of a proposition Instructions publishes its proposed Current: When I say that a party has must have a qualitative, as well as a amendments from time to time. A the burden of proving a proposition quantitative character. In other proposal that was released this year by clear and convincing evidence, I words, the evidence must do more (the web site does not specify when) mean that the evidence must more than simply outweigh that against it. would amend MCJI 8.01, regarding than outweigh the evidence against A jury may disbelieve the evidence the definition of the term “burden of it. To be clear and convincing, the evi- proffered in support of a proposition proof.” Although other changes are dence must satisfy you that the even when that evidence is unop- included, the most significant would proposition has been established posed. In that situation, although the change the central language of the with a high degree of probability. instruction as follows: evidence quantitatively outweighs Proposed: I have just listed for you that opposed to it, qualitatively it Current: When I say that a party has the propositions on which the [plain- does not meet the burden of proof the burden of proof, I mean the evi- tiff/defendant] has the burden of because the jury must still be per- dence must satisfy you that the proof. In this case the suaded that the evidence supports a proposition on which that party has [plaintiff/defendant] must prove finding that the proposition is true. the burden of proof has been estab- those propositions by clear and con- This proposal can be viewed at lished by evidence which outweighs vincing evidence. This means that http://courts.mi.gov/mcji/propos- the evidence against it. [plaintiff/defendant] must do more als/2007/8.01.pdf Proposed: For the [plaintiff/defen- than merely persuade you that the dant] to satisfy this burden, the evi- proposition is probably true. To be
RESPECTED ADVOCATE AWARD
Every year MDTC and MAJ each present a “Respected Advocate Award.” The MDTC annually gives the award to a member of the plaintiff’s bar for the purpose of recognizing and honoring the individual’s history of successful representation of clients and adherence to the highest standards of ethics. The MAJ does the same annually for a defense practitioner. In so doing, we promote mutual respect and civility.
HISTORY MAJ Recipients MDTC Recipients 1. 1997 George Googaisan J. P. O’Leary 2. 1998 Paul Rosen Edmond M Brady 3. 1999 Dave Christensen Robert Siemion 4. 2000 Edwin Jakeway Richard G. Ward 5. 2001 Kathleen Bogas Walter P. Griffin 6. 2002 Loren Gray Daniel P. Makarski 7. 2003 Sherwin Schreier Roger Smith 8 2004 Timothy J. Donovan Donald Ducey 9. 2005 Elizabeth L. Gleicher Paula L. Cole 10. 2006 William N. Kritselis William Hurley (Left to right): 2007 Respected Advocate Award 11. 2007 Wayne J. Miller Peter L. Dunlap winners Wayne J. Miller & Peter L. Dunlap.
Vol. 24 No. 2 • October 2007 29 GUEST COLUMN ON JUDICIAL PHILOSOPHIES AND BLOCK VOTING
By: William C. Whitbeck
Chief Justice Clifford Taylor of the case, for example, than the fact that I tions and theories that the parties Michigan Supreme Court and I have have gray hair. themselves have not raised. All these for several months been engaging in Several of the reporters present at points concentrate on how we get to a a public dialogue over the future of the interview were enterprising result, not on the result itself. the Michigan Court of Appeals, of enough to contact Chief Justice Chief Justice Taylor is obviously which I am the Chief Judge. Justice Taylor for his take on the subject. The right that there are differing judicial Taylor has suggested a reduction of Chief Justice agreed that there is no philosophies on the Supreme Court. four Judges at our Court, but a major- Republican or Democratic position Some Justices take a conservative ity of Judges on our Court has sug- on most matters of civil law. But he approach and some do not. It is not gested that this would be most ill- surprising that this gives rise to dif- advised in a time of constant or rising fering interpretations of the law. But workloads when we need every [I]n a nutshell, judicial it is surprising that these differing Judge we have. interpretations are in the controver- Recently, however, the dialogue philosophies largely sial cases so often expressed in uni- turned to another subject entirely. In concentrate on process rather form voting patterns that follow a television interview on Tim than on result. party lines and that extend even to Skubick’s Off The Record, I was asked administrative matters—like the about the operations of the Supreme appropriate number of Judges on the Court. After some hesitation—it is Court of Appeals, to pick a conven- always easier to comment on some- then contended that voting patterns ient example one else’s operation rather than your at the Supreme Court derive from For outside observers—particular- own and I try to avoid that tempta- differing judicial philosophies rather ly those court watchers in the tion—I gave what I thought was a than partisan affiliation. media—who see these uniform vot- careful and reasoned answer. I said This is a legitimate and serious ing patterns, it is short step to con- that I was concerned that in high pro- position and one that deserves more clude that the process itself is prima- file cases at the Supreme Court, vot- exposition than I can give it here. But, rily a “political” one, in the broad ing is often along straight party lines. in a nutshell, judicial philosophies sense of the term, and one that is I then made the observation that largely concentrate on process rather result-oriented. If that perception there is no Democratic version of the than on result. A conservative judicial takes hold in the public mind, talk of law and no Republican version of the philosophy would, among other the nuances of judicial philosophies law. There is simply the law. In other things, contend that we should read will be lost on the general populace. forums, I have often added that it is the language of the documents in And we will all be the poorer for it. our job as Judges (and Justices) to question and find the plain meaning research the law, to articulate the law without extensive reference to out- in plain enough English that the side sources, such as legislative histo- interested layman can follow what ry and the like. Further, we should we say without difficulty, and to do give considerable deference to the these things in a prompt and timely other branches of government whose fashion. In the process, we check our job it is to make and carry out public political preferences at the door. The policy. Finally, we should confine fact that I am a Republican should ourselves to the cases, and the argu- have no more influence on the way I ments, before us and not seek or vote on a Freedom of Information Act invoke new and inventive legal solu-
30 Michigan Defense Quarterly Leading Tech Forensic YOUR LEADING SOURCE FOR TECHNICAL FORENSIC EXPERTS E xperts Qualified In: • Vehicles & Crash • Industrial & • Environmental & • Human Factors & Reconstruction Manufacturing Occupational Warnings • Premises Liability • Architecture & • Elevators & Escalators • Biomechanical Construction Medical & Nursing • Product Liability • Police, Criminal, & • Electrical & Controls Security • Accounting/Computers/ • Fires & Explosions Intellectual Property • Sports & Recreation CONTACT US FOR A FREE CONSULTATION fax 419.452.6992 • 419.452.6993 • [email protected] www.LTFexperts.com THAT’S WHAT WE DO, EVERY DAY.® Let Special Counsel, the leading provider of legal staffing services nationwide, ease the stress that staffing issues can cause. Whether you need attorneys, paralegals, or other resources, we provide the most (248) 524-9131 qualified professionals — from general workload management and litigation support to project management for e-discovery (800) 737-3436 and document review projects. Combined with our specialized services of medical document review, deposition digesting, specialcounsel.com and court reporting, Special Counsel is the single place for all of your legal staffing needs — whether on a contract or direct hire basis. Restore the focus to your core business. Call us today.
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32 Michigan Defense Quarterly AMICUS SECTION REPORT
Scope of Duty. On July 25, 2007, property from exposure to asbestos Accordingly, the Court held that the Michigan Supreme Court issued carried home on a household mem- under Michigan law, no such duty its decision in In Re Certified Question ber’s clothing” — was an issue of first could be imposed. The Miller deci- From the Fourteenth District Court of impression in Michigan. At the outset, sion is a victory for the Michigan Appeals of Texas (Miller). In Miller, the the Court noted that such a decision Defense Trial Counsel, which sub- Court was called upon to further involves considering competing poli- mitted an amicus curiae brief that define the boundaries of Michigan cy factors, including the nature of the advocated the position adopted by duty law. The negligence case com- risk presented, the burden that would the majority. Attorney Mary menced when plaintiffs filed suit in be imposed upon the defendant, the Massaron Ross of Plunkett Cooney Texas against defendant Ford Motor foreseeability of harm, and most authored the brief. Company, alleging that the decedent importantly, the relationship of the Governmental immunity and con- contracted mesothelioma by washing parties. Applying these factors, the sortium claims. In other matters, the the work clothes of her stepfather, Court found that any relationship Michigan Defense Trial Counsel has who worked for independent con- between the decedent and defendant recently submitted an amicus brief in tractors hired by Ford Motor was “highly tenuous, the resultant Kik v Sbraccia, et al. Kik involves Company to reline the interiors of harm was not foreseeable, and that the whether the motor vehicle exception to blast furnaces using asbestos-con- imposition of a duty in these circum- governmental immunity, MCL taining materials. stances would “expand traditional 691.1405, permits claims for loss of con- The issue — “whether property tort concepts beyond manageable sortium. The Kik brief was authored by owners owe a duty to protect people bounds and create an almost infinite Mary Massaron Ross and Hilary A. who have never been on or near their universe of potential plaintiffs.” Dullinger of Plunkett Cooney.
MEMBER NEWS — WORK, LIFE, AND ALL THAT MATTERS
Member News is a member-to member exchange of news of work (a good verdict, a promotion, or a move to a new firm), life (a new member of the family, an engagement, or a death) and all that matters (a ski trip to Colorado, a hole in one, or excellent food at a local restaurant). Send your member news item to the editor, Hal Carroll ([email protected]) or the Assistant Editor, Allison Reuter ([email protected]).
Peter L Dunlap has been selected Association for Justice”) does the London. Here is a photo of the two at by the Michigan Trial Lawyers to be same annually for a defense practi- the Versailles Garden. the 2007 recipient of the Respected tioner. In so doing, we promote The State Bar has given formal Advocate Award. He received his mutual respect and civility. approval for the new section, award at the State Bar of Michigan’s Insurance and Indemnity Law, Annual Awards Banquet on formed by members Hal Carroll of September 26, 2007. Every year Vandeveer Garzia, and Deborah MDTC and MTLA each present a Hebert of Collins, Einhorn, Farrell & “Respected Advocate Award.” Ulanoff. The organizational meeting MDTC annually gives the award to a will take place in November. member of the plaintiff’s bar for the John McSorley of Garan Lucow purpose of recognizing and honoring Miller has been elected to a three year the individual’s history of successful term on the firm’s Executive representation of clients and adher- Tim Diemer and his wife, Molly, Committee. John J. Gillooly has been ence to the highest standards of took a two week vacation in Europe elected to serve as chairperson of the ethics, and MTLA (a/k/a “Michigan this Summer, visiting Paris and firm’s Executive Committee.
Vol. 24 No. 2 • October 2007 33
Practice Tip: PREPARING DEPOSITION SUMMARIES FOR CLAIM REPRESENTATIVES By: Gretchen L. Olsen Plunkett & Cooney
The first rule of good writing is to overview of the deposition, so as to the case, and then emphasize the tes- remember the audience. The second understand its importance to the timony that relates to those issues. rule is having the courage to know case. A line by line summary is not And remember the journalism rule: what to leave out. A motion brief is what the claim representative wants who, what, when, where, why. different from a client letter for a rea- to read, or wants to pay for. son. The same is true of deposition So concentrate on what is impor- summaries for a claim representative. tant in the deposition. Start by think- The claim representative needs an ing of the issues that are important to
Practice Tip: RESPONDING TO WRITTEN DISCOVERY REQUESTS
By: Hal O. Carroll Vandeveer Garzia
It is tempting to try the “blockade” 1. Interpret first, object last. If the request. When that is the approach to written interrogatories your answer begins with a rea- case, you can begin with the or requests for production, i.e., object sonable statement of what you explanation for the objection first and give as little as possible. think the question means, you (if you can’t explain the objec- Often it becomes boilerplate, with may be able to steer it in a more tion, then you shouldn’t make every answer beginning with “defen- benign direction. This is espe- one). The explanation can then dant objects…,” followed by cially useful if the question or be followed by a statement “Notwithstanding this objection ….” request is vague. Vagueness saying that “to the extent” that The risk of this approach is that if may be better used as a reason the request seeks the informa- there is a motion to compel and the trial for steering than a reason for tion that the explanation judge sees a string of answers all begin- giving nothing at all. describes, it is overbroad or ning with “defendant objects,” the irrelevant, and conclude with 2. Explain first, object last. Often judge may sweep away all objections. a statement that if the plaintiff the interpretation is not Consider instead the following will define the request more enough, and there is still a techniques: specifically, defendant will need to object to some part of respond appropriately.
Vol. 24 No. 2 • October 2007 35 SEPTEMBER 7, 2007 11TH ANNUAL OPEN GOLF OUTING
Golf Champs: Mark Holowicki, James Golf Participants: Mike Rinkel, Victor MDTC Golf Sponsors: Grace Perky, Gross, Minnister of Fun, Mark Hypnar, Bowman, Mike Malloy Stacie Hall, Tara Flynn, Jim Gross, and Dave Hoard Connie Smock, Erick
GOLF SPONSORS
Berry, Johnston, Sztykiel, Hunt McCandless PC Bienenstock Court Reporting & Video Butzel Long Conway MacKenzie & Dunleavy Esquire Litigation Solutions Exponent Gleason & Associates Claim Service Inc Gross, Nemeth & Silverman P.L.C. Herndon & Associates Keith Sterley Keller Thoma PC L Squared Insurance Agency LLC Legal Copy Services, Inc. Pamela R. Harwood PLLC Paragon Underwriters Paul Goebel Group Professional Medical Services ProNational Insurance Company Record Copy Services Rutledge Facilitations Siemion Huckabay Bodary Padilla Morganti & Bowerman P.C.
PLEASE MARK YOUR CALENDAR TO ATTEND NEXT YEAR! FRIDAY, SEPTEMBER 12, 2008, MYSTIC, CREEK GOLF CLUB , MILFORD, MI
36 Michigan Defense Quarterly Vol. 24 No. 2 • October 2007 37 PROGRAM 8:00 am — 9:00 am. Registration 1:00 p.m. Cross-Examining Experts Economist: Frank Stafford, Ph.D. Independent Medical Examiner: Nathan Gross, M.D. 9:00 a.m. Opening Comments Moderator: Michael J. Rinkel MDTC President, Peter L. Dunlap, Fraser Trebilcock Davis & Dunlap P.C. 2:00 p.m. Nuts & Bolts - What Do Appellate Judges Want to See? 9:05 a.m. Program Overview Honorable Brian K. Zahra, Michigan Court of Appeals Committee Chairs Michael J. Rinkel, Siemion Huckabay Bodary Padilla Morganti & Bowerman PC 2:45 p.m. Break and John T. Schuring, Dickinson Wright PLLC
3:00 p.m. Legal Update 9:10 –10:00 a.m. Handling Arbitrations - Strategies & Mechanics From A Trial Attorney No-Fault Update William C. Schaefer, Daniel R. Siefer, Schoolmaster Horn Killeen Siefer Driggers, Schultz & Herbst P.C. Arene & Hoehn
Medical Malpractice Update 10:00 a.m. Break Raymond W. Morganti, Siemion, Huckabay Bodary Padilla Morganti & Bowerman PC
10:15 a.m. Trial Tactics — Fair or Foul? Workers’ Comp Update Francis R. Ortiz, Dickinson Wright, PLLC Detroit Kenneth P. Frankland, East Lansing
The politics and mechanics of getting a job 11:00 a.m. Ethics Update as an Administrative Law Judge Catherine M. O’Connell, Asst., Professional Standards Counsel, State Bar of Michigan 4:15 p.m. Meeting Adjourns
12:00 p.m. Luncheon and Annual Respected Advocate Award Recipients Wayne J. Miller, Miller & Tischler, PC Peter L. Dunlap, Fraser, Trebilcock, Davis, and MDTC Events qualify for CLE in Ohio, Indiana Dunlap, PC and Wisconsin and other upon request. We are pleased to congratulate Wayne J. Miller, Miller & Tischler, P.C. and Peter L. Dunlap, Fraser, Trebilcock, Davis, and Dunlap, P.C. These skilled attorneys were Who Should Attend: recently selected by MDTC/MAJ as the recipients of – Those practicing in law firms, corporations, the eleventh Annual Respected Advocate Award. This and insurance companies award, presented jointly by the MAJ and MDTC, recognizes counsel who have shown superb skills as a – Anyone involved in litigation or whose job is courtroom adversary and whose civility and ethics to manage litigation will benefit from these distinguish him/her as an outstanding advocate. presentations.
38 Michigan Defense Quarterly Vol. 24 No. 2 • October 2007 39 40 Michigan Defense Quarterly Vol. 24 No. 2 • October 2007 41 MICHIGAN DEFENSE TRIAL COUNSEL, INC. MDTC LEADER CONTACT INFORMATION
Board
Peter L. Dunlap Robert H S. Schaffer J. Steven Johnston Lori A. Ittner President Vice President Secretary Treasurer
Jana M. Berger Norton T. Gappy Thomas R. Meagher Foley & Mansfield, PLLC Norton T. Gappy, P.C. Foster, Swift, Collins & Smith, P.C. 24255 West 13 Mile Rd., Ste. 200 3525 Rochester Road 313 South Washington Square Bingham Farms, MI 48025 Troy, MI 48083 Lansing, MI 48933 248-540-9636 • 248-540-9639 248-524-1700 phone • 248-524-1702 fax 517-371-8161 • 517-371-8200 [email protected] email: [email protected] [email protected]
Karie H. Boylan James H. Hughesian Terrence J. Miglio Wayne County Corporate Counsel 50045 Standish Ct. Immediate Past President 600 Randolph 2nd Floor Plymouth, MI 48170 Keller Thoma P.C. Detroit, MI 48226 734-667-3051 • 734-667-3052 (fax) 440 E. Congress, 5th Floor 313-224-8577 • 313-967-3532 734-560-3262 (cell) Detroit, MI 48226 [email protected] [email protected] 313-965-7610 • 313-965-1531 [email protected] Hal O. Carroll Lori A. Ittner Vandeveer Garzia, P.C. Garan Lucow Miller, PC Todd W. Millar 1450 W Long Lake Rd, Ste 100 300 Ottawa Ave., NW, 8th Floor Smith, Haughey, Rice & Roegge, P.C. Troy, MI 48098 Grand Rapids, MI 49503 202 E State St, PO Box 848 248-312-2800 • 248-267-1242 616-742-5500 • 616-742-5566 Traverse City, MI 49685 [email protected] [email protected] 231-929-4878 • 231-929-4182 [email protected] Alan J. Couture Catherine D. Jasinski Sondee, Racine & Doren, P.L.C. Running Wise & Ford PLC Allison C. Reuter 139 West Main, Suite 301 326 E. State Street Varnum, Riddering, Gaylord, MI 49735 Traverse City, MI 49684 Schmidt & Howlett LLP 989-732-1152 • 989-732-4843 231-946-2700 • 231-946-0857 P.O. Box 352 [email protected] [email protected] Grand Rapids, MI 49501-0352 616-336-6816 • 616-336-7000 Timothy A. Diemer J. Steven Johnston [email protected] John P. Jacobs P.C. Berry, Johnston, Sztykiel, The Guardian Building Hunt & McCandless, P.C. Robert H S. Schaffer 500 Griswold St., Ste 600 1301 West Long Lake Rd Ste 250 Robert H S. Schaffer P.C. Detroit, MI 48226 Troy, MI 48098 2325 Stonebridge Drive 313-965-1900 • 313-965-1919 248-641-1800 • 248-641-3845 Flint, MI 48532 [email protected] [email protected] 810-230-9215 • 810-230-9225 [email protected] Peter L. Dunlap Phillip C. Korovesis Fraser, Trebilcock, Davis & Dunlap, P.C. Butzel Long 124 West Allegan, Suite 1000 150 W. Jefferson Ste 900 Lansing, MI 48933 Detroit, MI 48226 517-482-5800 • 517-482-0887 313-983-7458 • 313-225-7080 [email protected] [email protected] MICHIGAN DEFENSE TRIAL COUNSEL, INC. MDTC LEADER CONTACT INFORMATION
Section & Committee Chairs
Labor & Employment Law Practice Management Assistant Editor, MDTC Quarterly Dean Pacific Patrick F. Geary Allison Reuter Warner, Norcross & Judd LLP Smith, Haughey, Rice & Roegge, PC Varnum, Ridddering, Schmidt & Howlett LLP 111 Lyon St NW Ste 900 250 Monroe Avenue, NW PO Box 352 Grand Rapids, MI 49503 200 Calder Plaza Building Grand Rapids, MI 49501-0352 616-752-2424 • 616-752-2500 Grand Rapids, MI 49503 616-336-6816 • 616-336-7000 [email protected] 616-458-5358 • 616-774-2461 [email protected] [email protected] General Liability Young Lawyers Christina A. Daskas Trial Practice Scott S. Holmes Ford Motor Company Michael J. Rinkel Foley & Mansfield Three Parkland Blvd., 1500 Parklane Towers Siemion Huckabay Bodary Padilla Morganti 24255 West 13 Mile Rd. Dearborn, MI 48126 & Bowerman PC Bingham Farms, MI 48025 313-322-7358 • 313-322-6922 One Towne Square Ste 1400 248-540-9636 • 248-540-9639 [email protected] Southfield, MI 48086 [email protected] 248-357-1400 • 248-357-3343 Appellate & Amicus Curiae [email protected] Defense Research Institute, Michigan Co-Chair José Brown, DRI State Representative Hilary A. Dullinger Professional Liability Cline Cline & Griffin PC Plunkett & Cooney, P.C. Richard J. Suhrheinrich 503 S. Saginaw Ste 1000 535 Griswold Ste 2400 Kitch, Drutchas, Wagner, DeNardis & Flint, MI 48502 Detroit, MI 48226 Valitutti, P.C. 810-232-3141 • 810-232-1079 313-983-4419 2379 Woodlake Drive #4000 [email protected] [email protected] Okemos, MI 48864 517-381-4426 • 517-381-4427 Past Presidents Committee Co-Chair [email protected] John P. Jacobs Mary Massaron Ross John P. Jacobs PC Plunkett & Cooney, P.C. Editor, MDTC Quarterly The Dime Building Ste 600 535 Griswold Ste 2400 Hal O. Carroll 719 Griswold Street Detroit, MI 48226 Vandeveer Garzia, P.C. Detroit, MI 48232 313-983-4801 • 313-983-4350 1450 W Long Lake Rd, Ste 100 313-965-1900 • 313-965-1919 [email protected] Troy, MI 48098 [email protected] 248-312-2800 • 248-267-1242 Minister of Fun [email protected] James G. Gross Gross, Nemeth & Silverman P.L.C. 615 Griswold Ste 1305 Detroit, MI 48226 313-963-8200 • 313-963-9169 [email protected]
Regional Chairs
Jeffrey C. Collison Phillip C. Korovesis Edward P. Perdue Keith E. Swanson Collison & Collison P.C. Butzel Long Dickinson Wright P.L.L.C. Swanson & Dettmann, P.C. 5811 Colony Drive North, 150 W. Jefferson Ste 900 200 Ottawa Ave NW Ste 900 148 West Washington Street PO Box 6010 Detroit, MI 48226 Grand Rapids, MI 49503 Marquette, MI 49855 Saginaw, MI 48608 313-983-7458 • 313-225-7080 616-458-1300 • 616-458-6753 906-228-7355 • 906-228-7357 989-799-3033 • 989-799-2969 [email protected] [email protected] [email protected] [email protected] Ridley S. Nimmo, II Erin J. Stovel Tyren R. Cudney John Patrick Deegan Plunkett & Cooney Dickinson Wright PLLC Early, Lennon, Crocker, & Plunkett & Conney, P.C. 111 E. Court St. Ste 1B 215 S. Washington Sq. Ste 200 Bartosiewicz PLC 303 Howard Street Flint, MI 48502 Lansing, MI 48933 900 Comerica Bldg. Petosky, MI 49770 810-342-7010 • 810-232-3159 Phone: 517-371-1730 Kalamazoo, MI 49007 231-348-6435 • 231-348-6435 [email protected] Fax: 517-487-4700 269-381-8844 • 269-381-8822 [email protected] [email protected] [email protected] MDTC SCHEDULE OF EVENTS 2007–2008
October 4 Civil Defense Basic Training Seminar, Troy Marriott
October 10–14 DRI Annual Meeting, Washington DC
November 1, 4:00–6:00 pm Board Meeting, Troy Marriott
November 1, 6:00–9:00 pm Past Presidents’ Dinner, Troy Marriott
November 2 Winter Meeting, Troy Marriott
January 14, 2008 Excellence In Defense Nomination Deadline
January 25, 2008 Future Planning Meeting, Inn at Bay Harbor
January 26, 2008 Board Meeting, Inn at Bay Harbor
March 13 & 14, 2008 DRI Leadership Meeting, Chicago
March 31, 2008 Young Lawyers Golden Gavel Award Nomination Deadline
April, 2008 Board Meeting, Lansing
May 16 & 17, 2008 Summer Meeting, Marriot Ann Arbor Ypsilanti
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