Volume 34, No. 2 - 2017

IN THIS ISSUE:

ARTICLES • Medical Malpractice Report • MDTC – The First Year(s) • No-Fault Report • The Marine Corps Leadership Principles • Supreme Court Update • Third-Party-Beneficiary Theory Is A Pickle for • Amicus Report Medical Providers PLUS • GPS Trackers: Legal? • Member to Member Services REPORTS • Member News • Appellate Practice Report • Schedule of Events • Legal Malpractice Update • Welcome New Members • Legislative Report

PROMOTING EXCELLENCE IN CIVIL LITIGATION MICHIGAN CHAPTER

The following attorneys are recognized for Excellence in the field of Alternative Dispute Resolution

Larry Fred DILLEY Gene ESSHAKI Amy GLASS Kevin HENDRICK Lee HORNBERGER Hon. Barry HOWARD ABRAMCZYK Grand Rapids Detroit Kalamazoo Detroit Traverse City Bloomfield Hills

Richard HURFORD William JACK, Jr. Alan KANTER Paula MANIS Jon MARCH Paul MONICATTI Bruce NECKERS Troy Grand Rapids Bloomfield Hills Lansing Grand Rapids Troy Grand Rapids

Ed PAPPAS Robert RILEY Sheldon STARK Martin WEISMAN Robert WRIGHT Troy Dearborn Ann Arbor Bingham Farms Grand Rapids Check available dates or schedule appointments online directly with Academy Members - for free. Visit www.MichiganMediators.org/dateselector

NADN is proud creator of the DRI Neutrals Database www.DRI.org/neutrals

The National Academy of Distinguished Neutrals is an invitation-only association of the top-rated mediators & arbitrators throughout the US, and proud partner of the national defense and trial bar associations. For more info, visit www.NADN.org/about MDTC Promoting Excellence in Civil Litigation P.O. Box 66 Grand Ledge, Michigan 48837 Phone: 517-627-3745 • Fax: 517-627-3950 www.mdtc.org • [email protected] Volume 34, No. 2 - 2017 MDTC Officers: Richard W. Paul, President Cite this publication as 34-2 Mich Defense Quarterly Joshua K. Richardson, Vice President Hilary A. Ballentine, Immediate Past President President’s Corner...... 4 Irene Bruce Hathaway, Treasurer Terence P. Durkin, Secretary Articles Madelyne C. Lawry, Executive Director MDTC – The First Year(s) MDTC Board of Directors: Deborah L. Brouwer Jim Kohl...... 6 Michael I. Conlon The Marine Corps Leadership Principles – Mustering Your Inner Talent to Conor B. Dugan Gary S. Eller Lead in Today’s Workplace Angela Emmerling Shapiro Edward Perdue, Esq., Dickinson Wright PLLC...... 10 Michael J. Jolet Richard J. Joppich Third-Party-Beneficiary Theory Is A Pickle For Medical Providers Vanessa F. McCamant John Hohmeier, Scarfone & Geen, P.C...... 16 John Mucha, III Dale A. Robinson GPS Trackers: Legal? Its Applications and Implications Carson J. Tucker S.A. De Visser, Great Lakes Investigation, LLC...... 21 R. Paul Vance Reports Appellate Practice Report Editor’s Notes Phillip J. DeRosier and Trent B. Collier...... 26 Editor: Legal Malpractice Update Michael James Cook [email protected] Michael J. Sullivan and David C. Anderson...... 29 Legislative Report Graham K. Crabtree...... 32 Associate Editors: Medical Malpractice Report Thomas D. Isaacs Kevin M. Lesperance and Andrea S. Nester...... 35 thomas.isaacs@ bowmanandbrooke.com No-Fault Report Ronald M. Sangster, Jr...... 39 Supreme Court Update Matthew A. Brooks Mikyia S. Aaron...... 42 [email protected] Amicus Report Kimberlee A. Hillock...... 44 PLUS Katharine Gostek Member to Member Services...... 47 [email protected] Member News...... 46 Schedule of Events...... 25 Welcome New Members...... 51 Victoria L. Convertino Michigan Defense Quarterly is a publication of the MDTC. All inquiries should be directed to [email protected] Madelyne Lawry, (517) 627-3745.

All articles published in the Michigan Defense Quarterly reflect the views of the individual authors. The Quarterly always welcomes articles and opinions on any topic that will be of interest to MDTC members in their practices. Although MDTC is an association of lawyers who primarily practice on the defense side, the Quarterly always emphasizes 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 Michael Cook ([email protected]).

Vol. 34 No. 2 • 2017 3 President’s Corner

By: Richard W. Paul, Dickinson Wright PLLC [email protected] (248) 433-7200

From the President “The future depends on what you do today.” --Mahatma Gandhi

Thanks to the vision of our founding members, and the continued commitment of our past presidents and membership today, the MDTC remains strong and well positioned for the future. Founded in 1979, the MDTC has been served by 37 past presidents, each of whom has contributed to the growth and success of the MDTC. I have been honored to know and work with many of the past presidents, each of whom has brought invaluable insights, guidance, and leadership to the organization. In his article in this edition of Michigan Defense Quarterly, “MDTC—The First Years,” Jim Kohl, the MDTC’s third president from 1982-1983, offers a unique historical perspective on the founding of the MDTC and its early years. MDTC would not be the viable organization it is today without the determination and enthusiasm of our founding members and past presidents like Jim. Today, the MDTC recognizes the contributions and ongoing Richard W. Paul is a member of Dickinson support of our past presidents through the efforts of our Past Presidents Committee, Wright PLLC who focuses his practice on ADR, accountant liability litigation, automotive currently chaired by Ed Kronk, MDTC’s twenty-second president from 2001-2002, litigation, class actions, commercial and and the annual Past Presidents Dinner, which will be held this year on November 9, business litigation and product liability litigation. 2017 at the Sheraton in Novi. Seeing our past presidents reconnecting and reflecting Mr. Paul has served as an officer and Board on the MDTC’s accomplishments at our yearly gathering reminds me of Andy Bernard member of the MDTC, Chair of the MDTC’s of the TV show “The Office,” who said, “I wish there was a way to know you’re in the Commercial Litigation Section, Chair of the MDTC’s Annual and Winter Meetings, and was good old days before you’ve actually left them.” Thanks, Jim for such an informative and the 2013 recipient of the MDTC President’s heartfelt retrospective. Special Recognition Award. He.is a former Ed Perdue’s article in this edition of Michigan Defense Quarterly—“The Marine Corps Chairperson of the State Bar of Michigan Litigation Section, is a Michigan State Court Leadership Principles—Mustering Your Inner Talent to Lead in Today’s Workplace”— Administrative Office Approved Mediator exemplifies the talents and commitment of the MDTC’s officers, Board of Directors and serves as a Case Evaluator in Wayne and Regional Chairs, Section Chairs, Committee Chairs. and Committee members, all of Oakland Counties. whom zealously contribute to the continuing success of our organization. A few recent Mr. Paul is admitted to practice in Michigan, examples: the U.S. District Courts for the Eastern and Western Districts of Michigan and the District • Thanks to our Golf Committee—Terry Durkin, Mike Jolet and Dale Robinson- of Columbia, the U.S. Sixth Circuit Court of -MDTC’s Annual Golf Outing on September 8, 2017 at the Mystic Creek Golf Appeals, the U.S. Supreme Court and the U.S. Club in Milford was our most successful golf outing ever with a record number Court of International Trade. Mr. Paul has also appeared pro hac vice in state courts throughout of 114 golfers (the highest number since the event started in 1996) and over 25 the country. supporting sponsors. Mr. Paul is recognized in business and products • Thanks to our Amicus Committee member Dan Beyer who stepped in for Amicus liability litigation by Michigan Super Lawyers, Committee brief writer Carson Tucker and appeared on behalf of the MDTC as dbusiness Top Lawyers, Leading Lawyers-- Michigan and is rated A/V Preeminent by amicus curiae at the August 31, 2017 oral argument before Judge Arthur Tarnow Martindale-Hubbell. in the Johnson v. Wolverine Human Services, Inc. et. al. case pending in federal Mr. Paul received his A.B. degree magna cum court in Detroit. The issue presented in the Johnson case, in which the Michigan laude from Dartmouth College and his J.D. Association for Justice also appeared as amicus curiae, centered on whether a degree from Boston College Law School. private, non-profit organization can be considered a “state actor” and/or “acting under color of state law” for purposes of liability in a 42 U.S.C. § 1983 claim. • Thanks to our 2017 Winter Meeting Committee—Drew Jordan, Nick Ayoub, Deborah Brouwer, Mike Conlon and Randy Juip—the 2017 Winter Meeting on November 10, 2017 at the Sheraton in Novi promises to be exceptionally

4 Michigan Defense Quarterly This

informative and enlightening practical tools to help you succeed success of the MDTC. Bob joined the for the both seasoned and newer in today’s constantly changing legal MDTC in its formative years and actively practitioners alike. Entitled “Law environment. served the MDTC as a longtime Board Practice—The Next Generation— • Thanks to Josh Richardson and member, officer, and regular participant Navigating Emerging Trends Mike Jolet of our Firm Sponsorship in the MDTC’s events. A lawyer’s lawyer Changing the Practice of Law,” Committee for a successful and and avid golfer, Bob received the MDTC the conference will present record setting 2017-2018 firm Excellence in Defense Award in 2001 and panels of noted attorneys, judges sponsorship campaign, enabling was on the winning team of the MDTC and consultants, as well as the the MDTC to continue to deliver Annual Golf Outing three separate times Administrator of the Michigan value to our members. in 1989, 1996 and 2007. Bob served on Attorney Grievance Commission, the Michigan Supreme Court Standard who will address these timely Jury Instructions Committee, taught Trial topics: (a) Cybersecurity— I have been honored to know Advocacy at the University of Michigan Protecting Your Practice and and work with many of the Law School, and was a faculty member Your Clients; (b) Bridging the past presidents, each of whom for the IADC Trial Academy. For nearly Gap Between New and Seasoned 43 years, Bob was also an active DRI Attorneys; (c) Preserving Civility has brought invaluable member, serving on the DRI Board from and Collegiality Among Members insights, guidance, and 1996 through 1998, and in 2006 was of the Bar; (d) Leadership leadership to the awarded DRI’s Louis Potter Lifetime Principles for Lawyers to Lead in organization. Achievement Award. Bob will be missed. Today’s Workplace; (e) Technology My favorite philosopher Yogi Berra said, in Today’s Practice of Law; (f ) “the future ain’t what it used to be.” For Legal Malpractice and Ethical the MDTC, the future remains bright and Issues Facing Today’s Lawyers; and Before closing, I must mention the passing of my Dickinson Wright promising, thanks to our solid foundation, (g) A Judicial Perspective on Court our rich and enduring traditions, and the Management and Courtroom colleague and mentor and the MDTC’s fourteenth President, Bob Krause, who continuing commitment, leadership and Practices. You won’t want to miss engagement of our members. the latest updates, strategies, and worked tirelessly to ensure the future

MDTC E-Newsletter Michigan Defense Quarterly Publication Schedule Publication Schedule

Publication Date Copy Deadline Publication Date Copy Deadline December November 1 January December 1 March February 1 April March 1 July June 1 June May 1 October September 1 September August 1 For information on article requirements, For information on article requirements, please contact: please contact: Michael Cook Alan Couture [email protected] [email protected], or Scott Holmes [email protected]

Vol. 34 No. 2 • 2017 5 MDTC – THE FIRST YEAR(S) By: Jim Kohl

The 1970’s were a time of active, judicial liberalism in Michigan. Each appellate decision seemed more biased toward the plaintiffs than the one before. The plaintiffs’ bar (then ATLA) had a Michigan chapter. It was quite influential as it was active in keeping track of experts, filingamicus briefs, occupying seats on the standard jury instruction and the court rule committees. The defense bar had the DRI nationally and an organization in Detroit; but, nothing statewide in Michigan. My involvement began slowly with two events that should have put me on notice; but, for some reason they did not. I had just been elected a shareholder at Plunkett, Cooney, Rutt, Watters, Stanczyk and Pedersen when Jerry Watters came into my office. My being summoned into his office was normal. His coming into my office was unusual. He told me that for a number of years he had been DRI’s state membership chair. It did not involve much. Once a year DRI would call him to see what he was doing. He would then write to several of his friends to ask them to join. That was it. He asked that I succeed him as, “it will look good on your resume.” I remember pointing out that I had just been elected a shareholder and had no desire to go anywhere else; so what difference would it make as to what looked good on my resume? He said, “look, just do it, OK?” Some number of weeks later I received an invitation to attend the annual meeting of DRI’s state and local leaders. It was being held in Kansas City, Missouri. DRI would pay my way. At that time I did not know the executive director or his well-earned reputation for being skinflint tight with the group’s funds. So I accepted, bought a plane ticket, made a room reservation and attended. Once there I did not know anyone. I went to the luncheon where the awards were being given and was surprised (quite surprised) to hear the president ask me to stand and be recognized as the nice young lawyer who had agreed to start a state organization in Michigan! What to do? I knew that Ohio had an active chapter, so I contacted DRI’s regional vice-president, Ted Sawyer, in Columbus. He invited my wife and me to OACTA’s Jim Kohl spent most of his (Ohio Association of Civil Trial Attorneys) Fall meeting at Salt Fork Lodge in professional life at Plunkett Cooney. During his career, southeastern Ohio. I learned they had a state-wide meeting at the beginning of the he was elected an Advocate summer and one in the fall. The summer meeting was more social, the fall meeting in the American Board of Trial more business oriented. They also sent a copy of their by-laws. Advocates and a Fellow of the American College of Trial I was a trial lawyer and did not practice any business law. Michigan Law and Practice Lawyers. He is now retired therefore became my guidance. If anyone wonders why MDTC is a corporation, it is and spends his time receiving service of process. because I knew that I did not know what I was doing and wanted to protect my firm

6 Michigan Defense Quarterly MDTC – THE FIRST YEAR(S)

and myself from any personal liability. the public. Now viable, a letter was written to the What that may lack in intellectual (c) To promote the interests of the legal Michigan Supreme Court notifying it of elegance, it hopefully makes up for in community. MDTC’s existence. Application was also straight forward honesty. made to the State Bar to be recognized (d) To develop, maintain and advance Being in my early 30’s, no one around and listed in its Journal as a “special the rights of civil defendants in purpose organization.” the state knew me. Everyone knew my Michigan litigation. senior partner, Mr. Bob Rutt. I made a By operation of law, the pre- deal with him. If he let me use his name, (e) To support and work for incorporators of the organization became I would do all the work to get the group improvement of the adversary its first board of directors. In the three started. system of jurisprudence in the months between filing the articles and operation of the courts. Bob had a good friend in Grand the first board meeting, March 29, 1980, Rapids, Dick Baxter. He was also DRI’s (f ) To encourage the prompt, fair and three amicus briefs had been filed in the membership chair for the west side of the just disposition of tort claims. Michigan Supreme Court: state and renowned all over Michigan. (g) To enhance the knowledge and • Sexton v Ryder Truck (doctrine I made the same deal with him – if he improve the skills of defense lawyers. of lex loci delicti – brief by Bill would lend his name, I would do the (h) To work for the elimination of Wolfram) work. The three of us then began thinking court congestion and delays in civil of prominent defense lawyers we knew • Owens v Allis Chalmers – litigation. in each geographic area of the state. (consideration of expert testimony If we were to be successful, potential (i) To develop a program to assure and of the crashworthiness members would have to recognize those that expert witnesses adhere to the doctrine – brief by Bill Wolfram) starting the group. I called each proposed highest standards of their respective incorporator and asked if they would be professions. • Fredericks v General Motors – willing to serve. They all agreed. (consideration of whether the owner of a set of dies used by an Using a form book, pre-incorporation I went to the luncheon where independent contractor could be articles and by-laws were prepared. They the awards were being given liable for the contractor’s failure were sent to Ohio, DRI, and the pre- and was surprised (quite to guard – brief by John E.S. incorporators for review before they were surprised) to hear the Scott and Rich Glaser) filed. president ask me to stand and The authors volunteered their time. The pre-incorporators were: be recognized as the nice MDTC had to pay the printing costs. We Dick Baxter, Grand Rapids were broke, again. Mike Fordney, Saginaw young lawyer who had agreed Jack Carpenter, Petoskey to start a state organization in The state bar refused our application Jim Kohl, Detroit Michigan! as a special purpose organization because John Collins, Lansing our membership was limited to defense John Peacock, Sault Ste. Marie lawyers. The state bar required that Bob Rutt, Detroit membership be open to all. The board, 1 We began with a letterhead that Jim Daoust, Mt. Clemens therefore, made the necessary change. The listed our pre-incorporators. It was state bar accepted us. We did add a line Our first meeting of pre-incorporators not professionally prepared nor was to our application for membership asking was held in Detroit sometime in it engraved; rather, it was typed and what percentage of the applicant’s practice September 1979. The name, “Michigan then mimeographed. DRI gave us their was devoted to representing defendants in Defense Trial Counsel,” was selected. mailing list of Michigan members. On civil litigation. The proposed articles and by-laws were our mimeographed letterhead, a short adopted and filed with the state that letter under Rutt’s signature was sent The March 1980 board meeting also December. asking for $25 as their first year’s dues in established standing committees: A. Nominating The reasons for starting the group were order to get the organization going. We B. Legislative Liaison stated in Article II and bear repeating: had no money. DRI paid the postage. There were then about 225 DRI members C. Judicial Liaison (a) To promote improvement in the in Michigan. As evidence of how bad D. Newsletter administration of justice and things were for defense lawyers at that E. Education advancements of jurisprudence. time, it took but a few weeks for 175 to F. Information (b) To promote improved relations send us their money. G. Finance between the legal profession and H. Liaison with other groups

Vol. 34 No. 2 • 2017 7 MDTC – THE FIRST YEAR(S)

Finally, we set our first annual members’ • serve as a vehicle for keeping track As the Detroit area was limited to meeting for June 1980 at The Homestead of expert witness testimony. A form three director positions, it was decided in Glen Arbor, Michigan. There were to was distributed to those present that the seat provided to the president be no substantive topics of discussion and mailed to the others with a of the Detroit association would not as we wanted the members to consider, request that the form be filled out automatically roll-over into a three-year debate, and adopt our working articles and returned to MDTC after each term for that individual. That is, they and by-laws. The only speaker was to be expert deposition; would hold their seat only for the year newly appointed US Federal District • provide yearly seminars on topics of they were president of the association. Judge Doug Hillman. He was a great concern to the membership; At the September 1980 board meeting speaker, and as Dick Baxter’s former law Mr. Kohl and Mr. Fordney were tasked partner, he did not charge us anything. • be of assistance to candidates campaigning for public office where with investigating the viability of a their views coincided with those of mid-year meeting. Board members were assigned to each of the permanent The state bar refused our MDTC; committees. With $2,700 in the bank we application as a special • publish a newsletter on a regular felt rich. Real letterhead stationary was purpose organization because basis; purchased. our membership was limited • provide a “defense hotline” whereby The second annual meeting took place to defense lawyers. members could determine whether at Shanty Creek in June 1981. The theme any other member had a brief of law was, “Defending Catastrophic Injury on the same or similar issue as that Cases.” Leaders of the renowned Craig confronting the requesting member. Institute in Denver, Colorado spoke. The At the June 1980 meeting, the A final note on the first membership membership was in excess of 300 and the members nominated and elected their meeting. Anticipating a need for adult treasury had almost $9,000. first board of directors and officers. Those beverages during the evening hours and elected as directors were: Dick Baxter, what a hotel would charge to provide Jack Carpenter, John Collins, Mike them, we purchased half gallon bottles of The issue of whether to Fordney, George Gotshall (Farmington the most popular spirits and hosted our extend membership to house Hills), Walt Griffin (Flint), Jim Kohl, own parties. What was left over was taken John Peacock, and Bob Rutt. The last seat counsel was decided in favor home and brought back for the next year’s was held by Ed Brady (Detroit) as the of accepting them. meeting. Have I mentioned that finances president of the Detroit group. The officers were tight? were: Bob Rutt- president; Dick Baxter- vice-president; Jim Kohl-secretary, and During this time several precedents MDTC not only continued to apply 2 Mike Fordney-treasurer. were consciously established: we attended to file amicus briefs, but the Supreme national DRI meetings; Mr. Kohl was Court began asking us to file them. The Insurance companies were just asked to be the DRI representative; Michigan Legislature was considering a beginning to use house counsel in lieu of Amicus brief writers would continue to bill to require defendants to make advance retained counsel. Our initial membership be unpaid volunteers; MDTC would payments to claimants. Our legislative was composed entirely of retained pay all the attendant costs, and, if no one liaison, Jules Hanslovsky, appeared in lawyers. The issue of whether to extend volunteered, we would discuss a fee; and opposition. MDTC was being solicited membership to house counsel was decided membership and board meetings were to fill positions on the court rule and in favor of accepting them. rotated geographically around the state. standard jury instruction committees. A The membership discussed and set the letter was written to the Supreme Court Our initial membership was entirely goals of MDTC. They were to: requesting “discovery only” depositions of firms that specialized in litigation. Many • assist the Michigan Supreme experts. We continued to build the expert of the state’s largest law firms dealt in Court by serving on standard jury witness bank and to publish a quarterly all types of legal matters and had only a instruction committees, court newsletter. litigation department. They were viewed rule drafting committees, filing as “business firms.” A conscious effort was The annual meeting had become amicus briefs and by responding to made to contact them to attain members established as a three-day affair held whatever requests the Court might from their litigation departments. at a resort in early summer. A mid-year make of us; Dickinson, Wright, McKean and Cudlip meeting was started to be held in Detroit • assist the Michigan Legislature stepped up and has remained prominent as a one day event in early December. by providing information and to this day. The first newsletter was We started a program of regional chair testimony; published in July 1980. persons.

8 Michigan Defense Quarterly MDTC – THE FIRST YEAR(S)

2 The law firms of our early leaders were: Rutt Our third annual meeting took place in afford. Jean Smit, of Publicom was hired. and Kohl – Plunkett, Cooney, Rutt, Watters, June 1982, at The Homestead. Nationally The annual meeting was held at the Grand Stanczyk & Petersen; Baxter – Hillman, Baxter renowned jury consultant Dr. Don Hotel where somehow Mr. Fordney & Hammond; Fordney – J. Michael Fordney, P.C.; Carpenter – Carpenter, Fenner, Barney Vincent of Litigation Sciences was the ended up in the presidential suite. At that & Hoffman; Collins – Foster, Swift, Collins lead speaker. Although only two and a point the group seemed secure. & Coey; Peacock – Platt, Peacock & Van Wiegen; Dauost – Glime, Daoust & Wilds; half years old, the group voted to apply to I thank Madelyne for asking me to be the host for the next annual meeting Gotshall – Davidson, Gotshall, Kohl, Secrest, write this. It has brought back many great Wardle, Lynch & Clark; Griffin – Cline, Cline of DRI’s state and local leaders. Our memories. I know I speak for all that were and Griffin; Brady – Vanderveer, Garzia, Tonkin, Kerr and Heaphy; John E.S.Scott and application was successful. The meeting involved then, that what the group has was held in Detroit in May 1984. Rich Glaser – Dickinson Wright; Bill Wolfram become under the leaders that followed – Faintuck, Shwedel, Wolfram, McDonald By June of 1983, the group had reached us has been beyond our dreams. Keep up & Zipser; Hanslovsky – Willingham, Cote, Hanslovsky, Griffith & Foresman. the point where the post of an executive the good work. director seemed viable. Mike Fordney was aware of companies in Lansing that Endnotes 1 By virtue of being president of the Detroit had employees who served as executive group. It was our intent to provide a position director for more than one organization. on our board to each year’s president of the That kept the cost to something we could Detroit organization.

Vol. 34 No. 2 • 2017 9 The Marine Corps Leadership Principles – Mustering Your Inner Talent to Lead in Today’s Workplace By Edward Perdue, Esq., Dickinson Wright PLLC

Introduction Leadership is intangible, hard to measure, and difficult to describe. Its quality would seem to stem from many factors. But certainly they must include a measure of inherent ability to control and direct, self-confidence based on expert knowledge, initiative, loyalty, pride and sense of responsibility. Inherent ability cannot be instilled, but that which is latent or dormant can be developed. Other ingredients can be acquired. They are not easily learned. But leaders can be and are made. -General C. B. Cates, 19th Commandant of the Marine Corps1 Just as Marines engage in programs of education and training to foster their innate leadership talents, we too can embark on a journey of self-discovery and development to improve our performance as leaders in our professional lives. The Marine Corps’ Leadership Principles, employed in conjunction with the Leadership Traits (which are the subject of a separate discussion), are guides to progress in this area. Marines do their best to live these principles when leading other Marines and sailors, and these same principles can be applied to our positions in business, law, medicine and any other civilian endeavor that provides us the opportunity to exercise command and supervision over a group of individuals. Our discussion here will describe the eleven principles, consider how they are utilized and understood by Marines, and suggest potential applications of those to our professional lives. Edward Perdue is a member at Dickinson Wright PLLC’s The USMC Leadership Principles Grand Rapids, Michigan office. He is a service-disabled 1. Know Yourself and Seek Self Improvement veteran and served as an The Marine Corps instructs that this principle can be exercised through constant artillery officer in the United States Marine Corps, including self-evaluation with reference to the leadership traits. Essentially, Marines try to service as a forward observer and forward air develop a realistic and candid understanding of their own character and tendencies, controller in Northern Iraq with the 2nd Battalion, and seek to improve any shortcomings. 8th Marine Regiment during the Persian Gulf War. Ed practices in the areas of complex commercial Marines suggest the following specific methods of self-improvement: litigation, creditors’ rights, real estate litigation, - Make an honest evaluation of yourself to determine your strong and weak product liability and insurance defense. A former personal qualities municipal prosecutor, Ed has extensive first chair - Seek the honest opinions of your friends or superiors trial experience and acts as lead counsel on matters pending throughout the nation. Dickinson Wright - Learn by studying the causes for the success and failures of others has six offices throughout Michigan, as well as - Develop a genuine interest in people offices in Washington D.C., Nashville, Phoenix, - Master the art of effective writing and speech Toronto, Las Vegas/Reno, Lexington, Ft. Lauderdale, - Have a definite plan to achieve your goal.2 Austin, and Columbus, OH. Ed can be reached at [email protected] or 616-336-1038.

10 Michigan Defense Quarterly THE MARINE CORPS LEADERSHIP PRINCIPLES

We can see that this program of capable leaders mission, the welfare of his or her people is a self-improvement is not limited to the - Spend time with those people Marine leader’s highest priority. Looking military context. The very exercise of who are recognized as technically again to our sample squad leader, he or she evaluating one’s own leadership qualities and tactically proficient at those is going to make sure that their Marines is likely to produce immediate benefits. things have operable weapons and tools, that In fact, this one principle can be viewed - Prepare yourself for the job of they are well supplied with ammunition, as a microcosm of the larger program the leader at the next higher rank food and water, and that they have time to of development in this area that is the - Seek feedback from superiors, eat, sleep and attend to any medical issues. subject of our treatment here. In short, peers and subordinates.3 It is not just about a performance review we should endeavor to make a searching, at the end of the year – a Marine leader brave and honest assessment of ourselves Team success requires ensures that her Marines are cared for and and then commit ourselves to a campaign team training. protected, and those Marines appreciate of education and improvement where knowing that their superior has their there are areas of need. back. On the chow line, Marine leaders 2. Be Technically and Tactically Again, these suggestions are directly eat last after their Marines have been fed. Proficient applicable to our professional lives. We The Marines remind us that practicing The bottom line here is that in order to should be committed to continuing this principle involves the following: lead you must be able to “do.” Marines education, even when it is not “required” - Put your Marines’ welfare before respect those leaders who demonstrate by our employer or licensing bodies. If your own a high degree of proficiency in their our staff all had the flu and did not make - Be approachable particular Military Occupation Specialty it in to work, could we perform every - Encourage individual (“MOS”). For example, an artillery officer action that is necessary to make a filing or development needs to be capable of doing all those generate a presentation on short notice? - Know your unit’s mental things the Marines under him in the When was the last time we sought attitude; keep in touch with their gun battery are expected to do including: feedback from our subordinates, peers thoughts safely transport powder and ammunition, and superiors? To live this principle we - Ensure fair and equal distribution lay the guns, set fuses on shells, calculate may have to spend some time getting of rewards the fire direction data, place elevation and down in the trenches and learning what - Provide sufficient recreational deflection (direction) on the guns, and fire all of our team members are doing and time and insist on participation.4 the weapons. Similarly, infantry platoon how to do those things properly. That leaders are expected to be proficient in the process will itself garner respect from So too in our civilian roles can we be use of all of the small arms used in their subordinates and provide team leaders astutely aware of the unique gifts and platoon and in the company as a whole. with additional insight when planning shortcomings of our team members. They know how to breakdown, clean and making decisions. As on a football team, not every team member has the speed and agility to run and operate not only their own pistol or 3. Know Your People and Look rifle, but each squad automatic weapon the ball. But they may be well suited to Out for their Welfare block on the line, play safety or kick the and crew served machinegun used in Not all Marines perform the same way the company. Marine officers must ball. Knowing our team members helps under stress. Nor are all Marines blessed us accomplish our goals and also avoids also be physically fit, capable of using with the same physical or mental gifts. A communication and encryption devices, frustrating team members by assigning good squad leader, for example, knows them tasks for which they are ill-suited. and competent with logistics/tactics, as which Marines have the most endurance, well as a myriad of other skills that are By the same token, looking out for their which can be trusted to communicate welfare may mean providing them with employed in the course of undertaking a a message accurately, which are strong mission. the training and counseling they need enough to be assigned a machine gun, and to improve their performance in certain Here is what the Marine Corps suggests which are best at land navigation. When areas. We need to ensure our team has for improvement in this area: assigning responsibilities on a patrol or the tools it needs to get the job done, - Know what is expected of you in an attack, he or she knows who is best and that they are rewarded (as a team then expend time and energy suited for the tasks at hand and how to and as individuals) when they have on becoming proficient at those best distribute the workload to ensure performed well. As leaders, we must also things the mission is accomplished in a timely be the champion of our team members - Form an attitude early on of manner. – doing our best to advocate for their seeking to learn more than is In addition, there is a second component compensation and advancement, pushing necessary to this principle. It almost goes without back when they are unfairly blamed or - Observe and study the actions of saying that next to accomplishment of the attacked, and generally taking the heat for

Vol. 34 No. 2 • 2017 11 LEADERSHIP TRAITS OF UNITED STATES MARINES

poor team performance and dealing with they are contributing to its resolution. pettiness. To a certain extent we must the repercussions of that internally among Sharing that success among team elevate our thinking and our game if our own team. Finally, we must avoid members and encouraging independent we expect others to follow us into the benefitting ourselves at the expense of our thinking also go a long way in building trenches of our profession. We can think team. True leaders share success amongst comradery and unit morale. our way into setting the example. This their team, but as to those outside the 5. Set the Example often involves taking a moment before team, bear the burden of failure alone. Marines place a great deal of emphasis acting or reacting, and thinking about 4. Keep Your Personnel Informed on the professional competence, integrity appearances and how our words or actions The Marine Corps believe that well- and attitude of their leaders. Marines will reflect upon us and those in our team. informed Marines perform better. and sailors in a unit reflect the image Again, if we expect others to follow us we Keeping them informed is related to their set by their leadership. Marine leaders must exhibit a concern for the team over morale and efficiency. When Marines are are expected to personally demonstrate the individual and we have to live the part. kept in the loop they feel more invested courage, skill, and aptitude for the job at 6. Ensure that the Task is in the team effort and less like a pawn hand, physical fitness and military bearing Understood, Supervised and in someone else’s game. Marines with of the highest order. Accomplished knowledge of a commander’s intent can The Marine Corps mentions Supervision is the most important step also take initiative and work towards consideration of the following factors in executing a plan and accomplishing accomplishment of the mission even in when applying this principle: a mission. Accordingly, mastering the absence of direct supervision by that this principle will have the most direct leader. - Show your subordinates that you impact on the degree to which Marine are willing to do the same things The Marines suggest the following leaders harness their human resources to you ask them to do accomplish their missions. techniques when acting on this principle: - Maintain an optimistic outlook - Whenever possible, explain why - Conduct yourself so that your Give thought to the following when tasks must be done and the plan personal habits are not open to practicing this principle: to accomplish a task criticism - Issue every order as if it were - Be alert to detect the spread of - Avoid showing favoritism to any your own rumors. Stop rumors by replacing subordinate - Use the established chain of them with the truth - Delegate authority and avoid command - Build morale and espirit de over supervision, in order to - Encourage subordinates to ask corps by publicizing information develop leadership among questions concerning any point concerning successes of your unit subordinates.6 in your orders or directives they - Keep your unit informed do not understand about current legislation and We should be committed to - Question subordinates to regulations affecting their pay, determine if there is any doubt promotion, privileges, and other continuing education, even or misunderstanding in regard to benefits.5 when it is not “required” by the task to be accomplished The two concepts that stand out our employer or licensing - Supervise the execution of your when applying these techniques to our bodies. orders professions are 1) the importance for - Exercise care and thought in subordinates in understanding the leader’s supervision; over supervision intent and mission; and 2) the relationship We can probably all recall at least will hurt initiative and create between knowledge of the surrounding one mentor or similar figure in our resentment, while under supervision will not get the job circumstances and a team’s cohesiveness, professional lives who set the bar high 7 morale, and initiative. Knowing where and met our early expectations of what done. a leader is going and what is being a successful leader was. That person Before they can perform, subordinates attempted allows for subordinates to fill likely had their act together, looked the need to understand what it is they are in the gaps when direct supervision is not part, brought home the wins and shared expected to do. A leader must effectively present. They should be encouraged to some spotlight with us. As we mature communicate his or her instructions show such initiative, even if attempts to in our professional lives it is our duty to by means which are clear, concise and do so fall short or miss the mark. ascend to that role. When we suit up not easily misunderstood. Having Secondly, enthusiasm and buy-in are in the morning, we should endeavor to given succinct and easily understood more likely among team members when have a day where we look sharp, exude instructions, leaders must then supervise they understand the problem and feel like confidence, act professionally, and avoid the performance of those tasks by their

12 Michigan Defense Quarterly LEADERSHIP TRAITS OF UNITED STATES MARINES

subordinates. That does not mean that These concepts are antithetical to the available, is infinitely more advisable tasks should be done for their subordinates lone-wolf professional. He knows what than an exhaustively analyzed decision or micromanaged, but attention must be he is doing and does it well, but he is out executed much later. Marines seek to avoid paid to the means by and timing within for number one and does not have the “analysis paralysis” for reasons related to which the tasks are being performed. time or inclination to train those around the advantages of tempo and maintaining Adjustments and comments can be made him. In his mind, subordinates should be the initiative in combat operations. Of by the leader without over stepping one’s grateful to have the opportunity to bask late there has been a movement toward bounds. At the end of the day however, in his presence and will pick up some the “70% solution,” which advocates goals and objectives need to be met by pointers by watching him do his thing making the decision when approximately whatever means necessary. There is likely along the way. The important thing is that percentage of the total available to be a fine balance here between the that he looks good and gets the credit. information is at hand. An extreme proper level of supervision and the need to We all likely know someone who fits example is the thought process which is provide autonomy to one’s subordinates. this profile. While that person may be engaged in by fighter pilots in a dog fight Achieving the right levels of each will successful, however, that success has – they must make critical decisions very likely require some practice and fine limitations and cannot occur in his or her quickly, in split seconds, which decide life tuning, and team members should be kept absence. Of course, real leaders do not or death for themselves, their crew and informed of the need for both supervision think or behave in this fashion. Team their opponents. They do not have the and autonomy/initiative, the paramount success requires team training. Whatever luxury of hand-wringing over what the importance of meeting goals, and the our field, we should practice working right call is or whether the decision made process being undertaken to find the right together under realistic conditions. We a moment ago was perfectly analyzed. supervisory balance. used to say in the Marines that the more They must make decision after decision 7. Train Your Marines and we sweat in peace, the less we bleed in based on the observations they are making Sailors as a Team war. The same is true in our professions in and the tactics they want to employ, one Marines believe that teamwork is that real world training will pay dividends after another, until they or the enemy is critical to the success of the mission. when the actual evolution is undertaken. defeated (or the engagement is broken They are encouraged to operate, train and Ensure that your team members know off ). play as a team. Marines also ensure that their roles and responsibilities, and cross- Here are some methods the Marines each member of a unit knows his job and train your team members so they can suggest for developing your skills in this responsibilities. And when they train perform the functions of those above area: as a team, Marines strive to do so under and below them on the team hierarchy. - Developing a logical and orderly realistic conditions. Have fun and enjoy each other’s company thought process by practicing Here are factors the Corps suggests outside the professional setting from time objective estimates of the we keep in mind when practicing this to time. Team members who know and situation principle: like each other, and who are aware of each - When time and situation permit other’s strengths and weaknesses, perform planning for every possible event - Stay sharp by continuously at a higher level when it is crunch time. studying and training that can reasonably be foreseen - Encourage unit participation in - Considering the advice and recreational and military events We need to ensure our team suggestions of your subordinates - Do not publicly blame an has the tools it needs to get before making decisions individual for the team’s failure - Considering the effects of your the job done, and that they decisions on all members of your or praise just an individual for 9 the team’s success are rewarded (as a team and unit. - Ensure that training is as individuals) when they 9. Develop a Sense of meaningful, and that the purpose have performed well. Responsibility among your is clear to all members of the Associates command When Marines train they regularly - Train your team based on realistic place junior Marines in positions of conditions 8. Make Sound and Timely authority and train them to perform - Insist that every person Decisions one or more levels higher than their understands the functions of the This concept overlaps with the regular position. It is also engrained in other members of the team and leadership trait of “decisiveness.” It was Marine Corps philosophy that micro- the function of the team as part driven home to me on many occasions in management should be avoided. The of the unit.8 the field that a well-considered but timely old saying goes that sergeants are the decision, based on the best information ones that really run the Marine Corps.

Vol. 34 No. 2 • 2017 13 THE MARINE CORPS LEADERSHIP PRINCIPLES

There is more than a kernel of truth to take ownership of both success and example, Napoleon was well known in the adage that if officers want to get failure, leaders both show the way and for his encyclopedic mind. He knew, something done, and have it done right, increase the team members’ appreciation and demanded, constantly updated they should tell an enlisted Marine to do and desire for increased responsibility. information on the numerical strengths, it and get out of the way. The delegation 10. Employ Your Command within weapons, equipment, average marching of authority in the Marine Corps is the its Capabilities speeds, and commanding leadership styles regular course of business, and any level While it may seem counter-intuitive, for each of his many units on any given of over-management is immediately Marines are not mindless automatons campaign. With this knowledge he would identified and properly resented by the who engage in frontal assaults against spread voluminous maps across the floor Marines who know they should be doing all odds. In fact, Marines appreciate of his campaign tent and be at work hour the work and accomplishing the mission the need to assign missions to units that after hour with a compass and a protractor, without being told how to do it. can achieve success. For example, when calculating exactly how to maneuver and Here are suggestions from the Corps planning an attack, the rule of thumb employ his units in a manner which best on how to develop this principle: for the ratio of attackers to defenders is utilized their capabilities and took account three to one. Marines would not expect a of their shortcomings. As professional - Operate through the chain of leaders we must also have command of command squad of thirteen to go against a company of 200 (although such mismatches have the realistic capabilities and best uses of - Provide clear, well thought out our teams. While we should also seek directions been overcome in the long history of our Corps). Marine leaders must engage in out responsibility and opportunities to - Give your subordinates frequent help achieve our organization’s goals, we opportunities to perform duties that type of analysis and should not ask for more than can realistically be delivered should also be wary of biting off more normally performed by senior than our team can realistically chew. personnel on the battlefield. In addition, while - Be quick to recognize your aggressiveness is always encouraged, and 11. Seek Responsibilities and Take subordinates’ accomplishments a “can do” attitude is expected among Responsibility when they demonstrate initiative gung-ho Marines, missions must be Marine leaders are encouraged to seek and resourcefulness realistically tailored to a unit’s capabilities. out increasing levels of responsibility and - Correct errors in judgment and Vainglorious attempts by leaders for their more and more challenging assignments. initiative in a way which will units to achieve impossible goals are They are also taught to accept encourage the individual to try detrimental to unit morale. Failures which responsibility for the performance of their harder could have been avoided through a candid unit. While it is commonplace for victory - Give advice and assistance freely assessment of unit capabilities set back to have a thousand fathers and defeat to when your subordinates request a leader’s credibility and do significant be an orphan, leaders with integrity will it damage to a leader’s relationship with own their unit’s failures and share their - Resist the urge to micro manage team members. unit’s successes. Finally, Marine leaders - Be prompt and fair in backing Work on the development of this are taught to stick with their gut and to subordinates leadership skill may include: stand by their convictions. - Accept responsibility willingly - Avoid volunteering your unit Here is what Marines recommend for and insist that your subordinates professional development in this area: 10 for tasks that are beyond their live by the same standard. capabilities - Learn the duties of your One way that civilian leaders - Be sure that tasks assigned to immediate senior, and be demonstrate loyalty to their team subordinates are reasonable prepared to accept the members is to show a keen interest - Assign tasks equally among your responsibilities of these duties in their professional development. subordinates - Seek a variety of leadership Delegating authority and assigning tasks - Use the full capabilities of positions that will give you to subordinates builds trust, respect and your unit before requesting experience in accepting confidence between a commander and assistance.11 responsibility in different fields his or her team members. This in turn Clint Eastwood’s character, Dirty - Take every opportunity that fosters buy-in from team members in Harry, once said in a film: “A man’s got to offers increased responsibility the mission and increases their initiative. know his limitations.”12 The same is true - Perform every task, no matter By delegating tasks a leader not only for a leader and his or her team. Civilian whether it is top secret or demonstrates faith in the team members, leaders must be intimately familiar seemingly trivial, to the best of but also increases, rather than diminishes, with the capabilities and limitations of your ability his or her authority. Standing by ones their groups. To use another military - Stand up for what you think subordinates and demonstrating how is right. Have courage in your

14 Michigan Defense Quarterly THE MARINE CORPS LEADERSHIP PRINCIPLES

convictions CLOSING THOUGHTS quality such that your team members - Carefully evaluate a subordinate’s At the close of this humble effort to will see the beauty in the systems or failure before taking action codify and explain those intangibles which methods which you are training them to against that subordinate we loosely call “leadership,” keep in mind employ. Finally, winning is fun, and never - In the absence of orders, take the underestimate the power of having fun these final thoughts. Leadership is really while working on how to win more often. initiative to perform the actions a combination of a group’s ethos (or group you believe your senior would values) and those more tangible elements direct you to perform if present.13 Endnotes of its leadership philosophy. Successful 1 Quoted in Official USMC Pub. RP 0103, These concepts are easily applicable leaders understand their group dynamics Principles of Marine Corps Leadership, hereafter and integrate that understanding with (“RP 0103”). This work has also been influenced to our civilian professional lives. As by the discussion of the application of 11 mentioned above, as leaders we should be the tools in their leadership toolbox. By principles to Marine officers on Marines.com. on the lookout for opportunities for our doing so, they strive to fashion the most www.marines.com/being-a-marine/leadership- people to shine and grow. Part of being a effective and compelling plans to achieve principles. 2 RP 0103 at § 3. leader also involves taking ownership of particular goals. From the start, Marines 3 Id. are expected to be students of the concepts failures and shortcomings in your team’s 4 Id. performance. When you win, let the which have been discussed here. That is 5 Id. group bask in the glow of that victory. only part of their education in what more 6 Id. You did not accomplish that yourself and globally is considered the art and science 7 Id. your team will very much appreciate being of war. But you too can be a student 8 Id. recognized. Finally, do not be a wilting and master teacher of your craft. Think 9 Id. flower – stand by your convictions when about approaching team development as 10 Id. necessary. When a decision is made, an opportunity to pass along hard won 11 Id. however, even if you do not agree with it, secrets or understandings – all for the 12 Magnum Force (Warner Bros 1973). set your ego aside and get on board for the good of the group’s success. Imbue your 13 Id. effort to accomplish the mission. work with an almost mystical and artistic

Vol. 34 No. 2 • 2017 15 Third-Party-Beneficiary Theory Is A Pickle For Medical Providers By: John Hohmeier, Scarfone & Geen, P.C.

Executive Summary Michigan no-fault litigation has (once again) been turned on its head with the recent The recent Covenant v State Farm decision release of the Michigan Supreme Court decision: Covenant Medical Center, Inc v State 1 telegraphed a couple potential avenues for Farm Mutual Automobile Ins. Co. In ruling that medical providers have no “statutory” medical providers to continue suing no-fault right to sue no-fault carriers, the Supreme Court surreptitiously left open a dead end 2 insurance carriers. One of those potential for providers: third-party beneficiaries. avenues is the theory that medical providers are third-party beneficiaries to insurance What Is A Third-Party Beneficiary? contracts. However, while medical providers may incidentally benefit from a no-fault While we are the frontier of no-fault law given the Covenant decision, third-party- policy, there is virtually no way they can beneficiary law has not changed in Michigan for over 50 years. Originally, Michigan successfully argue that they are intended followed the common law rule that third-parties could not sue on a contract. That third-party beneficiaries with the right to sue. rule was modified somewhat in 1963 when the Legislature enacted the third-party- beneficiary statute,3 but the statute did not change the law relating to incidental beneficiaries.

In 1954, the Michigan Supreme Court summarized that law as follows:

A third person cannot maintain an action upon a simple contract merely because he would receive a benefit from its performance or because he is injured by the breach thereof. Where the contract is primarily for the benefit of the parties thereto, the mere fact that a third person would be incidentally benefited does 4 not give him a right to sue for its breach.[ ] Almost forty years later, the Michigan Supreme Court reaffirmed the holding in John Hohmeier joined 5 Scarfone & Geen, P.C. in Greenlees by quoting the exact same paragraph presented above. In any event, footnote 2012 to litigate first- and 39 in Covenant appears to be an afterthought to the whole discussion and certainly is third-party no-fault cases. He not a statement of law or an affirmation that third-party beneficiary is a viable cause of was both trial and appellate Counsel in Dawoud v action for medical providers. State Farm Mut Auto Ins, It remains true that while any particular provider may incidentally benefit from any 6 where the Court of Appeals given insurance policy, this does not give medical providers a cause of action directly issued a published opinion further limiting 7 and clarifying the derivative nature of medical against any given insurance carrier. As has been the case for more than 50 years in provider’s rights in the no-fault arena. Michigan: only intended third-party beneficiaries – directly referred to in the contract 8 – may sue to enforce the contract. Mr. Hohmeier is also a Chair for the Insurance Law section of the Michigan Defense Trial Counsel. A person or entity is an intended third-party beneficiary of a contract only when the While still in school at Thomas M. Cooley Law promisor undertakes an obligation directly to or for that person or entity. Where the School, his commentary on the interaction of contract is primarily for the benefit of the contracting parties (like any particular no- emotion and brain chemistry with a person’s ability fault policy is) the mere fact that a third party would be incidentally benefitted does to recall veridical memories was published in the not give the third party a right to sue for an alleged breach. Incidental beneficiaries Thomas M. Cooley Law Review. may not sue to enforce a contract – only intended third parties may sue to enforce a 9 contract. 16 Michigan Defense Quarterly THIRD-PARTY-BENEFICIARY THEORY

A person or party injured or damaged something directly to or for There is likely no provision in any given by another is not an intended third- said person. policy that the insured must go to any party beneficiary of a contract of liability The words “directly” and “said person” specific provider for treatment, so the insurance between the person who caused carrier does not undertake an obligation are crucial to the legislative intent of 15 the injury and that person’s liability the statute and also to the statute’s for any specific provider. Because any insurer. In this situation, the injured application. The Supreme Court has given carrier does not undertake an person has no right of direct action held that in order to be a third-party obligation directly to or for any specific against the liability insurer even though beneficiary under MCL 600.1405, the medical provider, medical providers are the insurance contract may contemplate promisor (the insurance carrier) must not intended third-party beneficiaries to the payment of money to someone other the contract of insurance and cannot use 10 undertake an obligation directly to or for than the insured. a specific person or party (in this case, any this theory to sue the carrier directly. The Court of Appeals in Allstate Ins Co specific medical provider): Certainly providers will argue (as they 11 v Keillor, concluded that the “plaintiff ’s have been doing) that either the policy policy did not establish a promise or duty In describing the conditions under or the No-Fault Act itself creates a class to benefit the defendant as an injured which a contractual promise is to of intended third-party beneficiaries who third party. Plaintiff ’s policy created a be construed as for the benefit of possess the right to sue on the contract. contractual promise to indemnify the a third party to the contract in § But this logic creates an undefined class insured, not directly benefit the injured 1405, the Legislature utilized the and ignores the fact that virtually any party.” The Michigan Supreme Court modifier “directly.” Simply stated, medical provider in the country (or had no problem with the reasoning of the section 1405 does not empower “service” provider for that matter) would Court of Appeals on this issue as it agreed just any person who benefits from then be considered an intended third- with the Court of Appeals’ analysis that a contract to enforce it. Rather, party beneficiary. 12 Keillor was not a third-party beneficiary. it states that a person is a third party beneficiary of a contract only Somewhat recently in Shay v Aldrich, the Supreme Court held that: Medical Providers Are when the promisor undertakes an obligation “directly” to or for the Not Intended Third-Party [13] …the standard for determining Beneficiaries person. (emphasis added). whether a person is a third-party beneficiary is an objective standard There is no Michigan case law and must be determined from the indicating that a medical provider is an Whether a provider actually language of the contract only. A intended third-party beneficiary of an provided treatment is majority of this Court has affirmed insurance or liability contract. There is irrelevant - the analysis of this rule in recent cases and further also no legal authority that would allow emphasized that the promise a medical provider to sue the insurer MCL 600.1405 begins and must be made directly for the directly as a third-party beneficiary to an ends with the policy of person and, thus, that incidental insurance contract. insurance. beneficiaries of contracts could not The only statute in Michigan governing recover. the rights of third-party beneficiaries is MCL 600.1405, which states in pertinent So in order for any particular medical This rule reflects “the Legislature’s part: provider to be a third-party beneficiary intent to ensure that contracting of the insurance contract between parties are clearly aware that Any person for whose benefit any insurance carrier and its insured, the scope of their contractual a promise is made by way of the carrier must have undertaken an undertakings encompasses a third contract, as hereinafter defined, obligation directly to or for the specific party, directly referred to in the has the same right to enforce said 14 contract, before the third party medical provider asserting the claim. promise that he would have had if Given the nature of any particular no- is able to enforce the contract.” the said promise had been made fault policy, there is likely no mention of Although if taken out of context directly to him as the promise. any specific medical provider. As a result, this sentence could be read to mean that the important inquiry (1) A promise shall be construed nowhere does any carrier undertake an is the subjective understanding to have been made for the obligation directly to any specific medical of the contracting parties, when benefit of a person whenever provider. read in context, it is clear that the promisor of said promise Moreover, any specific medical provider contracting parties’ “intent” with had undertaken to give or is one of millions of medical providers regard to third-party beneficiaries to do or refrain from doing who the insured could go to for services.

Vol. 34 No. 2 • 2017 17 THIRD-PARTY-BENEFICIARY THEORY

is to be determined solely from We affirm the decision of the primarily for the benefit of the the “form and meaning” of the Court of Appeals because the parties thereto, the mere fact that a 16 contract.[ ] contract contains no promise to third person would be incidentally directly benefit Schmalfeldt within benefited does not give him a right As stated, there is (likely) no language 24 in a no-fault policy mentioning a specific the meaning of 1405. Nothing in to sue for its breach. medical provider, so any specific provider the insurance policy specifically As the Supreme Court recognized is certainly not “directly referred to in designates Schmalfeldt, or the in Koenig v City of S Haven, it is easy to the contract.” If the “contracting parties’ class of business patrons of the blur the distinction between intended 25 ‘intent’ with regard to third-party insured of which he was one, as an and incidental beneficiaries. But when beneficiaries is to be determined solely intended third-party beneficiary enacting MCL 600.1405, the Legislature from the ‘form and meaning’ of the of the medical benefits provision. must have been aware of contracting contract” as instructed recently by the At best, the policy recognizes parties’ potential fear of unanticipated 17 Supreme Court, then the mere fact that the possibility of some incidental third-party claims because the there is no mention of any specific medical benefit to members of the public Legislature chose to change the law with 26 provider in any given policy precludes the at large, but such a class is too great caution. The Michigan Supreme broad to qualify for third-party carrier from ever “intending” to undertake 20 Court has repeatedly acknowledged an obligation specifically to or for a status under the statute. and mandated this cautious approach 21 specific medical provider. Any particular provider is, at best, an to analyzing the third-party-beneficiary 27 Schmalfeldt v N Pointe Ins Co, cited incidental beneficiary to any insurance issue. by the Michigan Supreme Court in policy. Any provider, however, is one In any particular case, a specific provider Covenant, is very similar to the situation of hundreds of thousands of potential is likely to argue that because it is the 18 involving medical providers. In “providers” in Michigan, and one of actual provider of services in this instance, Schmalfeldt, a person was injured in a millions across the country that an insured it (or its class) is sufficiently described bar and the bar had liability insurance could go to for services. Incidentally, the in the policy so as to create third-party- with defendant which provided medical insured just happened to go to “insert beneficiary status. The providers argue 19 payments coverage. The plaintiff was provider name here.” This alone does not that if the above analysis is to be accepted, injured in the bar and tried to sue the make the provider an intended third- then essentially nobody could qualify as party beneficiary with rights to enforce insurance company directly for his 22 an intended third-party beneficiary under medical expenses. the contract. the policy. Answer: so what? North Pointe Insurance moved for How many medical providers are there The Supreme Court has already frowned summary disposition arguing that in Michigan alone that could potentially upon this approach to MCL 600.1405, Schmalfeldt was not an intended third- qualify for payment of PIP benefits under indicating that “this reasoning would, of party beneficiary of the insurance any particular no-fault policy? Literally course, mean that virtually every contract agreement. The Court agreed that hundreds of thousands and this does not could be viewed as impliedly creating a Schmalfeldt was merely an incidental include the hundreds of thousands (maybe class of third-party beneficiaries because millions) of additional attendant care or beneficiary and was not entitled to bring 23 the inquiry would proceed backward an action directly against the insurance household service providers. How many from an injury to create a class. Such an 28 company to enforce the contract: potential medical providers are there in analysis robs the statute of all meaning.” the country that could potentially provide Whether a provider actually provided The focus of the inquiry, however, services to an injured person? Millions. treatment is irrelevant - the analysis of should be whether North Pointe, Do all the millions of potential medical MCL 600.1405 begins and ends with the by its agreement to cover medical providers qualify as intended third-party policy of insurance. expenses for bodily injuries caused beneficiaries to any particular injured by accidents, had undertaken In the situation involving medical person’s insurance policy? Considering providers, any particular provider is to give or to do or refrain from the Michigan Supreme Court’s narrow doing something directly to or merely one of potentially millions of interpretation of MCL 600.1405, people or entities across the nation who for Schmalfeldt pursuant to the certainly not: third-party beneficiary statute, may incidentally benefit from an injured person’s policy with the carrier or be MCL 600.1405(1). Thus, as A third person cannot maintain 29 Brunsell clarifies, we must turn to an action upon a simple contract injured by its breach. This alone does the contract itself to see whether merely because he would receive not render the provider an intended it granted Schmalfeldt third-party a benefit from its performance or third-party beneficiary in order to bestow beneficiary status. because he is injured by the breach upon the provider a direct cause of action thereof. Where the contract is against an insurance carrier.

18 Michigan Defense Quarterly THIRD-PARTY-BENEFICIARY THEORY

Afterthought 1405(2)(b) would rob subsection Endnotes 1 Covenant Med Ctr, Inc v State Farm Mut Auto Ins Some advocates still attempt to rely 1405(1) of any narrowing effect. Co, ___ Mich ___; 895 NW2d 490 (2017). on (then) Judge Taylor’s 20-year-old The rationale would appear to 2 Id. at 505, n 39: comment in LaMothe v Auto Club Ins be that a contracting party can We conclude today only that a healthcare only be held to have knowingly provider possesses no statutory right to sue a Ass’n. Verbatim, Judge Taylor’s comment no-fault insurer. While defendant argues that is as follows: “Thus, we can anticipate that undertaken an obligation directly a provider likewise possesses no contractual health care services providers, as practical for the benefit of a class of persons right to sue a no-fault insurer given that if the class is reasonably identified. healthcare providers are incidental rather litigants, would bypass the insured and than intended beneficiaries of a contract directly sue, pursuant to third-party- Furthermore, in undertaking this between the insured and the insurer, this Court beneficiary theories, the entity with analysis, an objective standard is to declines to make such a blanket assertion. That prospects identical to their own for be used in determining from the determination rests on the specific terms of 30 the contract between the relevant parties. See engendering jury sympathy-the insurer.” contract itself where the promisor Schmalfeldt v N Pointe Ins Co, 469 Mich 422, undertook “to give or to do or to 428; 670 NW2d 651 (2003) (“A person is a After LaMothe, Judge Taylor went on refrain from doing something third-party beneficiary of a contract only when to become Justice Taylor of the Michigan that contract establishes that a promisor has directly to or for” the putative undertaken a promise ‘directly’ to or for that Supreme Court. When he was presented [33] third- party beneficiary. person.”) (citations omitted; emphasis added). with the third-party-beneficiary issue This Court need not consider whether plaintiff four years after Lamothe, he had a different possesses a contractual right to sue defendant view because he completely refuted in the instant case because plaintiff did not 31 It remains true that while any allege any contractual basis for relief in its this passing comment. In essence, his complaint. educated opinion completely contradicts particular provider may 3 MCL 600.1405. the proposition that no-fault providers incidentally benefit from any 4 Greenlees v Owens Ames Kimball Co, 340 Mich 670, 676; 66 NW2d 227 (1954) (emphasis are intended third-party beneficiaries of a given insurance policy, this no-fault insurance contract.32 added). does not give medical 5 Kammer Asphault Paving Co, Inc v East China Justice Taylor authored the Koenig Township Schools, 443 Mich 176, 190; 504 opinion, which held that only intended providers a cause of action NW2d 635 (1993). directly against any given 6 This article does not address the issue of an injured third-party beneficiaries, not incidental person claiming benefits under the Michigan beneficiaries, may enforce a contract. insurance carrier. Assigned Claims Plan. Clearly in situations such More importantly, however, he indicated as these, there is no contractual rights to benefits; rather, the injured person may be entitled to that while a third-party beneficiary may benefits by operation of law. As a result, because be one of a class of persons if the class is The rulings in Koenig and Brunsell there is no “contract” in an assigned claims case, there can be no third-party beneficiary theory sufficiently described or designated, “the certainly seem to apply to medical class must be less than the entire universe, presented by a provider. providers because under Michigan no- 7 See Allstate Ins Co v Keillor, 190 Mich App e.g., ‘the public.’” fault law virtually everyone is a potential 499, 502; 476 NW2d 453 (1991) (ruling that provider. As stated above, there are even though the insurer may have to step in and Three years after Justice Taylor’s Koenig indemnify its insured, the plaintiff was not a third- decision was released – and more than nearly 200,000 healthcare providers party beneficiary; therefore, the plaintiff could seven years after his comment in LaMothe in Michigan, and there are millions of NOT sue the insurer directly under that theory), healthcare providers in the United States rev’d on other grounds, Allstate Ins Co v Hayes, – the Michigan Supreme Court majority, 442 Mich 56; 499 NW2d 743 (1993) (stating that including Justice Taylor, reaffirmed the – all of which are potential providers for 34 the Court of Appeals correctly concluded that opinion from Koenig and quoted the any given Michigan no-fault claim. Keillor was not a third-party beneficiary, however, following passage: clarifying that “the fact that the injured party is not Since this universe of potential medical a third-party beneficiary of the insurance contract is not determinative of his ‘standing’ to continue [A] third-party beneficiary may be providers is equivalent to the “public,” the action.”). a member of a class, but the class these potential providers are only incidental beneficiaries of the no-fault 8 Only intended third parties may enforce a contract; must be sufficiently described. incidental beneficiaries may not. See Koenig v This follows ineluctably from contract and not intended third-party City of South Haven, 460 Mich 667; 597 NW2d 99 (1999). subsection 1405(1)’s requirement beneficiaries – as a result, they have no 9 Id. that an obligation may be right of direct action and recovery against a no-fault carrier.35 There is virtually no 10 Keillor, 190 Mich App 499. undertaken directly for a person 11 Id. at 502. to confer third-party beneficiary way that any given medical provider can successfully argue that it is an intended 12 Allstate Ins Co v Hayes, 442 Mich 56, 63; 499 status. As can be seen then, this NW2d 743 (1993). third party-beneficiary of any given of course means that the class 13 Koenig, 460 Mich at 676-677 (emphasis must be something less than insurance policy. added). 14 Rather than to have undertaken an obligation the entire universe, e.g., “the for medical providers in general. public”; otherwise, subsection

Vol. 34 No. 2 • 2017 19 THIRD-PARTY-BENEFICIARY THEORY

15 Again, the fact that any specific provider (or 25 Koenig, 460 Mich 667 at 678. class of providers) is not mentioned in any 26 Id. given policy precludes the argument that 27 See e.g. Shay, 487 Mich at 664-665; Koenig, the carrier obligated itself from the outset to 460 Mich 667; Kammer Asphalt Paving, 443 do anything for the benefit of any provider Mich 176; and Greenlees, 340 Mich 670. specifically. 28 Id. at 683 (emphasis added). 16 Shay v Aldrich, 487 Mich 648, 664-665; 790 NW2d 629 (2010) (citations omitted) 29 So while providers may be correct in that no one could qualify as a third-party beneficiary (emphasis added). in the situation presented here, this does not 17 Id. at 665. mean that this Court must create a class that 18 Schmalfeldt v North Pointe Ins Co, 469 Mich 422; does qualify. 670 NW2d 651 (2003). 30 LaMothe v Auto Club Ins Ass’n, 214 Mich App 19 The policy provided coverage of $5,000 for 577, 586; 543 NW2d 42 (1995). medical expenses for bodily injury caused 31 Koenig, 460 Mich at 678. by an accident on or next to the insured’s 32 It is somewhat ironic that Plaintiff claims a premises. right to sue under a no-fault insurance contract 20 Schmalfeldt, 469 Mich at 429. It is unclear when for thousands of no-fault claimants there why the Michigan Supreme Court made the is no contract; rather, benefits are allowed by comments it did in footnote 39. operation of law. See e.g. Harris v Auto Club 21 Not providers as a whole; there is a meaningful Ins Ass’n, 494 Mich 462, 471-472; 835 NW2d difference. 356 (2013); MCL 500.3114(5); similarly, MCL 22 Schmalfeldt, 469 Mich 422; see also Elsner 500.3172 and the Michigan Assigned Claims v Farmers Ins Grp, Inc, 364 Ark 393; 220 Plan. SW3d 633 (2005) (ruling that the plaintiff 33 Brunsell v City of Zeeland, 467 Mich 293, 297; “was a member of a large class of health 651 NW2d 388 (2002) (emphasis added). care providers who could provide services to 34 Additionally, since lay people can provide [the injured person]. There is nothing in the transportation, replacement services, and contract to indicate that he was an intended attendant care services, virtually the hundreds third-party beneficiary, and, if anything, he was of millions of US residents are potential merely an incidental beneficiary who does not providers as well. possess the right to bring a direct action against 35 See generally Keilor, 190 Mich App at 501- [the insurer].”). 501, rev’d on other grounds, Allstate v Hayes, 422 Mich 56, 63 (1993) (an injured person 23 Based on the 2010 abstract from the United is not a third-party beneficiary of a liability States Census Bureau, there are approximately insurance contract and cannot sue the liability 170,000 medical providers in Michigan and insurer – even though the contract took place this does NOT include family members and paying someone for the benefit of the insured); friends who are potential household service Schmalfeltt, 469 Mich 422 (an injured person and attendant care providers, or the multitude is not a third-party beneficiary of a premise of providers that came into being after 2010 owner’s insurance contract which provides (which we know are significant). See http:// medical payments coverage and cannot www.census.gov/compendia/statab/2010/. directly sue the insurer – even though the 24 Kammer Asphalt Paving, 443 Mich at 190, contract contemplates paying someone for the quoting Greenlees, 340 Mich at 676 (emphasis benefit of the insured). added).

20 Michigan Defense Quarterly GPS Trackers: Legal? Its applications and implications By: S.A. De Visser, Great Lakes Investigation, LLC

Executive Summary A brief history of the private investigator industry shows a long-standing field of Since the introduction of GPS trackers to the “old school” surveillance—one to two vehicles going mobile, chasing plaintiffs and marketplace, court cases and lawsuits claimants, hiding inside tinted window surveillance vans; grown men in shrubberies addressing the legal uses and ethical uses of with high-powered cameras taking close-ups of presumed nefarious fellows. trackers have been inconsistent from the Old-school surveillance entailed setting up a suitable surveillance position in a federal level down to the state level. Likewise, neighborhood and taking copious close-up photos and videos of plaintiffs or claimants to date, there is no definitive Michigan case (hereinafter referred to as “subjects”) doing things contrary to what they alleged in law. No lower courts have addressed the usage of trackers by professional investigators their depositions, facilitations, or answers to interrogatories. Times change, however, for the purpose of surveillance in civil and so do surveillance tools and technologies. insurance claims. The State of Michigan, In the last decade, there has been an increase in use of GPS tracking technology however, addresses the use of GPS trackers in for surveillance. GPS tracking devices have become an invaluable tool for private the Michigan Penal Code, MCL 750.539l. In investigators. In fact, insurers, third-party administrators, and some self-insured essence—it is legal. Professional Investigators companies are even quietly endorsing professional investigative firms to use tracking (PIs) are exempted from criminal prosecution for the placement of trackers on personal devices. properties (i.e. vehicles) for the purpose of GPS tracking data delivers concrete evidence in a safe and cost-effective way. GPS information gathering and surveillance in civil tracking technology allows investigators to conduct casual surveillance, removing any insurance matters. threat of following a subject at high speeds down Gratiot or Van Dyke during rush A key issue, however, is one of perception hour. The risk of accidents, incidental road rage events, or losing the subject altogether, narrated by plaintiff attorneys to taint juries, is avoided. Yet, the legal-defense industry, understandably, may have concerns about the even in the face of incriminating video use of these tracking devices, such as legality and privacy concerns. documentation of their clients, and that, albeit legal, placing trackers on plaintiffs’ So, what do these devices look like? How do they function? What type of concrete vehicles is “sneaky” and should be seen as evidence do they give defense attorneys? such. Overview of GPS Tracking Devices A GPS tracking device is defined as any electronic device that is designed or intended to be used to track the location of a motor vehicle regardless of whether that information is recorded. The tracking devices are relatively small, about the size of a deck of playing Mr. De Visser is sole owner cards, or an Altoid container. They are generally flat black and can be encased in a black of a professional investigative water resistant (pelican case) covering with a strong magnet. Trackers transmit their agency with more than 25 years of investigative location in any given time period to a host (laptop or smart phone) via satellite in real experience for insurance time. Once attached, the trackers are difficult to detect unless, for example, the owner companies, corporations, of the vehicle goes to a Midas or Belle Tire and the vehicle is hoisted. Even then the third-party administrators, tracker is difficult to spot if it is attached high up on the frame or around the muffler. It and defense law firms. While is best to attach a tracker to the rear portion of the vehicle, and never in the front of the possessing a broad range of skill sets within fraud and the investigative industry, he has successfully vehicle or to the engine block, because those specific placements heighten a consistent brought to conclusion for his clients hundreds signal returning to the host. of investigations and surveillance, saving clients Tracking data provides detailed vehicular stopping and starting reports, as well as millions of dollars. movements and address history. The tracking data is quite accurate and specific. Data Vol. 34 No. 2 • 2017 21 GPS TRACKERS: LEGAL?

mined can show a subject’s activity for as (a) Installs or places a tracking professional investigators hide the fact long as 45 days (battery life). While the device, or causes a tracking device they use tracking devices. The motive use of GPS trackers is safer in today’s to be installed or placed, in or for non-disclosure could simply be trade road-rage society, the devices also provide on a motor vehicle without the secret, sort of akin to the rationale of a economical alternatives for long term knowledge and consent of the magician not sharing magic-trick secrets. surveillances. For example, in larger cities owner of that motor vehicle or, There is nothing to hide; one must just be or heavy traffic areas, several investigators if the motor vehicle is leased, the prepared to righteously defend the right would be needed to conduct a surveillance lessee of that motor vehicle. to use this technology. effectively and safely. This results in much (b) Tracks the location of a motor higher fees than the daily or weekly rate vehicle with a tracking device What Happens When a Subject for monitoring a GPS device. The rate for without the knowledge and Finds the GPS Devices surveillance using trackers ranges from consent of either the owner or the In 2015, this author was deposed on the $25-$65 per day plus $100 for attachment authorized operator of that motor issue of placing a tracker on a plaintiff ’s and $100 for removal, compared to $65- vehicle or, if the motor vehicle vehicle in an auto PIP claim. It had come $100 per hour for an investigator, plus is leased, either the lessee or the to light, literally, due to an electronic glitch, mileage over a period of several days. authorized operator of that motor when the tracker battery ran low and a vehicle. Legality of the Use of GPS tiny LED blue light blinked as the battery * * * ran down. This would not have been a Trackers in Personal Injury Cases problem except that the plaintiff ’s vehicle, Since the introduction of GPS trackers (2) Subsection (1) does not apply parked over a shiny black, rain enhanced, to the marketplace, court opinions to any of the following asphalt driveway, reflecting noticeably as addressing the legal and ethical issues the plaintiff exited his dwelling and was of trackers have been inconsistent from * * * about to depart for generic whereabouts. the federal level down to the state level. (j) Except as provided in subsection The plaintiff noticed the blinking light In 2012, the United States Supreme (3), the installation or use of a and brought the tracker to his attorney, Court ruled that government and law tracking device by a professional who in turn angrily contacted the insurer’s enforcement agents in criminal matters investigator or an employee of a defense counsel. are precluded from placing trackers to professional investigator lawfully Defense counsel had no knowledge of monitor movements without a warrant. performing his or her duties the tracker since it was the client who The dialog on this topic remains ongoing as a professional investigator authorized the use of a tracker. Defense as technology advances and applications or employee of a professional counsel was presented with a copy of of trackers increase; however, federal law investigator for the purpose the Penal Code and subsequently sent has not specifically addressed whether it of obtaining information with it to the plaintiff ’s attorney. Once the is legal or ethical to use GPS trackers in reference to any of the following: plaintiff ’s attorney was presented with civil matters. (i) Securing evidence to be used the statute all would be in full compliance To date, there is no definitive Michigan before a court, board, officer, or with the world. Right? The Penal Code case law regarding the usage of trackers investigating committee. was specific, was it not? by professional investigators for the (ii) Crimes or wrongs done, threatened, or suspected against Incidentally, this investigator would purpose of surveillance in civil insurance have wished the manner in which the claims. The Michigan Legislature, the United States or a state or territory of the United States or tracker was removed had been addressed however, addressed the use of GPS by defense counsel. Would it not have trackers in the Michigan Penal Code. The any other person or legal entity. . . . (emphasis added). been better to force plaintiff ’s attorney Michigan Penal Code, MCL 750.539l, to admit or deny that his client took the exempts professional investigators and In essence—it is legal. Professional tracker off despite his recorded testimony their employees and agents from being Investigators (PIs) are exempted from that he was incapable of bending over? precluded in applying tracking devices on criminal prosecution for the placement motor vehicles: of trackers on personal properties (i.e. This author was then surprised when vehicles) for the purpose of information summoned for a deposition. What (1) A person who does any gathering and surveillance in civil could there be to discuss…to depose? of the following is guilty of a insurance matters. Both investigator and defense attorney misdemeanor punishable by reasoned, based on the Penal Code, this imprisonment for not more than Defense lawyers, however, need to be was clear cut, a lawful action. 1 year or a fine of not more than aware when hiring private investigators for surveillance, that it is likely some The investigator had a legal right to use $1,000.00, or both: a tracking device under the circumstances

22 Michigan Defense Quarterly GPS TRACKERS: LEGAL?

described. This author had been given duties as a professional investigator Q: Okay. clear approval by the client to place a or employee of a professional A: Or that was going to be my tracker on the plaintiff ’s vehicle. The investigator for the purpose assumption as I go out there in insured had sued the insurance company. of obtaining information with preparation of a future event, Litigation was looming. The vehicle, a reference to any of the following. litigation. blue Ford Fusion, had been in several Q: Are you saying that (j.) (i.), securing minor vehicular accidents, and a key issue Q: So, you’re telling me that you’re evidence to be used before a court, going to tell a jury later that if in the case was whether the vehicle was a board, officer, or investigative drivable and operable by the plaintiff, as the assignment would have gone committee is where you find from [the Insurer] versus [defense the plaintiff had alleged to the insurance yourself? company that the vehicle was “totaled.” counsel] a lawyer you would not A: Yes. have placed a GPS device on this At the onset of the surveillance, the vehicle. Fusion was parked in the plaintiff ’s Q: Now, the truth of the matter is, as driveway, with the rear portion butting we know today, there was a court A: Probably correct. Definitely. up to a public sidewalk. The tracker was proceeding at that time; correct? Q: Am I correct? placed in the rear bumper as the Fusion A: Correct. A: Yes. sat in the driveway, as described above. Q: Okay? There wasn’t a board or officer Throughout the deposition, the that was involved; correct? Deposition, page 62, plaintiff ’s attorney did not attempt to A: Correct. Reexamination by the Plaintiff define the act of placing the tracker on Attorney: his client’s vehicle as trespassing, or a Q: Or an investigating committee; violation of privacy. He did get on record correct? Q: I’m just confused about something. A guy with your experience, did you that the tracker was placed on the Fusion A: Correct. while parked in the plaintiff ’s driveway. think [the plaintiff ] was a terrorist A direct attack of trespassing or invasion Q: You -- it would seem to me – or something? How does (j.) (ii.) -- of privacy, however, never materialized, securing evidence to be used before how does (j.) (ii.), crimes or wrongs with the exception of describing this a court that is why you were securing done, threaten or suspected against investigator as, “sneaking around and it. the United States – stuff.” A: Correct. Because it’s – The issue at deposition was whether this Q: You -- it would seem to me -- Q. Well, let me finish. -- or the state or investigator was knowingly in compliance securing evidence to be use before territory of a state or other persons with MCL 750.539l(2)(j)(i) and (ii) of the a court that isn’t why you were or… Penal Code. Plaintiff ’s attorney inquired securing it, wasn’t it? A. I looked at wrongs done any other as to whether this investigator understood A: Well, there’s two. The securing the person or legal entity. his “duty” as a professional investigator evidence to be used before a court. It Q. Okay. Cool. You actually looked at for the purpose of obtaining information was in -- while, the assumption was that. and securing evidence to be used before eventually is going to be litigated. a court. Plaintiff ’s counsel reasoned that A: We had -- applying a tracker on his client’s vehicle Q: You did know that, did you Sir? Q: Did you actually look at that? was not in compliance with the Penal A: Well, once [Defense Counsel] has it Code because it could not be foreseeable eventually it’s going to be litigated. A: Yes. that the PIP claim was “going to court.” Q: And I’m going to ask you that again Q: Okay. Fine. Therefore, this investigator had no legal and I’m going to be very kind about right to place a tracker on the vehicle A: Can I add or -- it. You did not know that, did you? under MCL 750.539l(2)(j): Q: No. I just wanted to make sure you ...could have settled this case with looked at it, that’s all. Okay. I have me before it ever got to court. Deposition, Pages 22 through no further questions. 25: A: …when defense counsel is retained by an insurance company, they Q: Except as provided in Subsection 3, Conclusion are foreseeing litigation. So, based the installation or use of a tracking Is it prudent then, based upon on that…I was going to obtain device by a professional investigator, foreknowledge of being discovered and a information [with the placement of which you are; correct? looming trial, that GPS trackers should a GPS tracker]. be used. The insurance industry generally A: Yes, lawfully performing his or her

Vol. 34 No. 2 • 2017 23 GPS TRACKERS: LEGAL?

does not have a problem with GPS it. A good attorney will hone in on the the “other side” more or less will be tracking even before a claim is litigated. PIs understanding of that statute and on a fishing expedition. Professional Can the threat of discovery taint the video test whether that PI not only believed investigators and defense attorneys can documentation attained through the use the PI complied with the statute but get ahead of this “perception” issue, by of tracking devices be worthwhile? As the PI understood the specific statute’s shaping the narrative in our clients’ favor. with new technology there is an upside subsections and what specific part of the It is imperative to impress a narrative to and downside. GPS trackers are cost statute the PI believed he or she complied juries that placement of GPS trackers, effective and increase the likelihood of with to legally invade privacy rights. The and the manner in which they are placed, obtaining great incriminating video. But PI better be ready. is for safety reasons. In actuality, it does what will the jury perceive? A plaintiff Before giving approval for a PI to protect the long term privacy rights of the attorney easily can paint the narrative of use a GPS tracker, make certain that PI subject. No longer does a PI have to “sneak the professional investigator as a “sneaky” is well versed in the statute and equally around” the subject’s neighborhood; fellow. This can taint any jury, whether or well versed in the placement of this instead, it allows the subject to go out into not GPS tracking is legal. technology as seen under the statute. public places to be monitored. As defense counsel, do not assume Otherwise under oath, in a deposition, or This calls for non-dubious that a professional investigator knows in court, an unprepared PI could damage gamesmanship on the investigator’s part, all the legal nuances of the statute as he the chances of an otherwise winnable with assistance from defense counsel, or she applies that small black box to a case, despite excellent hi-definition video which will balance out the vexing subject’s vehicle in the dead of night. A documentation. A possible no cause or showmanship that the other side will plaintiff ’s attorney, a good one, will not small award could blow up into a six- surely muster. A good investigator should be impressed with the knowledge of this figure hit for your client. relish that challenge and should have the statute even if it is time he or she has read It appears, from personal experience, acumen for it.

Researching and providing correct building code and life safety statutes and standards as they may affect personal injury claims, construction, and causation. Specializing in theories of OSHA and MIOSHA claims. Member of numerous building code and standard authorities, including but not limited to IBC [BOCA, UBC] NFPA, etc. A licensed builder with many years of tradesman, subcontractor, and general contractor (hands-on) experience. Never disqualified in court.

Ronald K. Tyson (248) 230-9561 (248) 230-8476 [email protected]

24 Michigan Defense Quarterly MDTC Schedule of Events 2017 November 9 Past Presidents Dinner – Sheraton, Novi November 10 Winter Conference – Sheraton, Novi

2018 March 8 Legal Excellence Awards - Gem Theatre, Detroit May 10-11 Annual Meeting & Conference – Soaring Eagle, Mt. Pleasant September 7 Golf Outing – Mystic Creek October 4 Meet the Judges - Sheraton Detroit Novi, Novi October 17-21 DRI Annual Meeting - Marriott, San Francisco November 8 Past Presidents Dinner – Sheraton, Novi November 9 Winter Conference – Sheraton, Novi

2019 June 20-22 Annual Meeting & Conference – Shanty Creek, Bellaire September TBA Golf Outing September 24-26 SBM Annual Meeting October TBA DRI Annual Meeting March Legal Excellence Awards – TBA

2020 June 18-19, 2020 Annual Meeting & Conference – Treetops Resort, Gaylord September Golf Outing September Board Meeting September TBA SBM Annual Meeting October TBA DRI Annual Meeting March Legal Excellence Awards - TBA

Vol. 34 No. 2 • 2017 25 Appellate Practice Report

By: Phillip J. DeRosier, Dickinson Wright PLLC, and Trent B. Collier, Collins Einhorn Farrell P.C. [email protected]; [email protected]

A Primer on the Michigan Supreme Court’s “Mini Oral Argument On the Application” (MOAA)

While the procedure has been in use since 2003, many practitioners have not yet had occasion to participate in a Michigan Supreme Court “mini oral argument on the application,” or MOAA (pronounced “mō-ah”).

Overview of the MOAA Process MCR 7.305(H)(1) provides that in response to an application for leave to appeal, the Supreme Court may “grant or deny the application for leave to appeal, enter a final decision, direct argument on the application, or issue a peremptory order.” Of course, in the vast majority of cases the Court will deny the application. While the Court will sometimes grant relief by peremptory order, in only a handful of cases does the Court grant leave to appeal and order full briefing and argument. In some cases, the Court needs additional assistance from the parties before making its determination, and will direct the court clerk “to schedule oral argument on whether to grant the application or take other action.” As explained in the Supreme Court’s Internal Operating Procedures, a MOAA “allows the Court to explore the issues in a case without the full briefing and submission that apply to a grant of leave to appeal.” MSC IOP 7.305(G)[1]. The granting of a MOAA requires a majority vote, just like granting leave to appeal. Id.

Supplemental Briefs When the Court orders a MOAA, it typically directs the filing of supplemental briefs, usually due 42 days after entry of the MOAA order. Oftentimes the order will Phillip J. DeRosier is a identify specific issues that the Court wants the parties to address. MSC IOP member in the Detroit office of Dickinson Wright PLLC, 7.305(G)[1][a]. Supplemental briefs are subject to the same requirements as merit and specializes in the area briefs, and “should address the issues specified by the Court in its order.” Id. of appellate litigation. The Court’s “Guide for Counsel In Cases To Be Argued in the Michigan Prior to joining Dickinson Supreme Court” advises practitioners to “keep in mind that if the Court has ordered Wright, he served as a law clerk for Michigan a MOAA, it is likely interested in a specific issue that it considers important, but it is Supreme Court Justice Robert P. Young, Jr. He unsure whether that issue warrants a full grant.” Thus, any such issues should be fully is a past chair of the State Bar of Michigan’s addressed, as they will “likely be regarded as controlling by the Court.” Appellate Practice Section. He can be reached at [email protected] or (313) 223-3866. Because MOAAs are “usually scheduled relatively soon after the briefing period ends,” the Court discourages motions to extend time to file supplemental briefs. Trent Collier is a member of MSC IOP 7.305(G)[1][b]. And because the Court contemplates the parties’ the appellate department at supplemental briefs being filed at the same time, “[i]f one party moves to extend the Collins Einhorn Farrell P.C., filing date and it is granted, the Court’s order will sua sponte provide the same in Southfield. His practice focuses on the defense of extension to the other party, keeping with the mutual due date specified in the legal malpractice, insurance, MOAA order.” Id. Reply briefs are “rarely permitted,” and are accepted “only upon and general liability claims at order of the Court.” Id. the appellate level. His email address is [email protected]. 26 Michigan Defense Quarterly Amicus Briefs peremptory order, it is important to “tell in question.”3 While the court rules only address the the Justices precisely what the order The statute at issue in Salas applied filing of amicus briefs in calendar cases, should accomplish.” Id. On other hand, to plaintiffs who were injured by an the Supreme Court does permit them to “[i]f your goal is to convince the Court intoxicated dram-shop patron. For a be filed at the MOAA stage. MSC IOP to grant leave to appeal, tell the Court plaintiff to sue a dram shop for selling 7.305(G)[1][c]. The Court applies the why denying leave or issuing a alcohol to an intoxicated patron who same deadlines as in calendar cases: peremptory order is insufficient.” Id. injured the plaintiff, the plaintiff had to name the intoxicated patron in the “That is, an amicus brief, along with a lawsuit. She also had to keep that patron motion to accept the brief if required by The Absurd-Results in the lawsuit until the conclusion of MCR 7.312(H), is due within 21 days Doctrine in Michigan litigation.4 The plaintiffs in Salas couldn’t after the last timely filed supplemental The absurd-results doctrine provides find the intoxicated patron who injured brief is submitted or the time for filing them and therefore couldn’t satisfy the that a court may depart from a statute’s the supplemental briefs has expired, “name and retain” requirement. plain language if following it would lead whichever is earlier.” Id. to an outcome the court views as The Michigan Supreme Court Oral Argument ridiculous and inconsistent with the concluded that applying the “name and statute’s overall purpose. For detractors, retain” requirement to a plaintiff who MOAA cases are scheduled and couldn’t identify the patron would be applying the absurd-results doctrine is 5 argued alongside calendar cases, but silly. It based this conclusion on the nothing short of judicial mutiny against there are important differences in how belief that the statute was designed to arguments in MOAAs are conducted, as the Legislature. For the rule’s prevent plaintiffs from entering into explained in the Supreme Court’s proponents, it’s an act of judicial mercy, collusive settlements with the intoxicated “Guide for Counsel”: to be dispensed when legislators patron, and then suing the dram shop inadvertently enact language contrary to First, each side is limited to 15 with the patron’s paid-for assistance. The minutes of argument. Second, their intent. Court wrote, “To suggest that an injured counsel is given only two minutes The debate over this doctrine has plaintiff ‘name and retain’ as defendant an of uninterrupted argument. taken place in judicial conference rooms intoxicated person whose identity he does and in the pages of reporters for decades. not know in order to prevent collusion … As a practical matter, however, 6 the Justices frequently begin Michigan’s judiciary has included both is patently absurd.” The Court therefore questioning counsel prior to the proponents and detractors of the absurd- limited the “name and retain” requirement to plaintiffs who knew the identity of the expiration of the two minutes. In results rule. And, as a result, the doctrine intoxicated patron. addition, while it is possible to has waxed and waned in Michigan reserve time for rebuttal, it will jurisprudence over the years. McIntire likely be a practical impossibility. Calls the Doctrine into Given the limited time for Doubt argument, it is imperative to be Because MOAAs are “usually Salas represented the general state clear and concise when making scheduled relatively soon of the absurd-results doctrine until your arguments and answering People v McIntire, a 1999 opinion from questions. after the briefing period the Michigan Supreme Court.7 The ends,” the Court discourages defendant was granted immunity in Decision motions to extend time to file exchange for testimony before a grand After the MOAA, the Court will supplemental briefs. jury in a murder investigation. Later, the consider “a range of options to address prosecutor determined that the defendant was actually the murderer.8 He charged the case, including granting or denying the defendant with murder, arguing that leave to appeal, issuing a peremptory The Absurd-Results Doctrine Before McIntire the defendant’s immunity was “void” order, or issuing an opinion.” See “Guide because the defendant lied to the grand for Counsel,” p 11. The Court’s “Guide The doctrine was apparently in favor jury.9 for Counsel” explains that it is for much of Michigan’s history. In Salas 1 Over a dissent from then-Judge Robert “important to recognize that, in MOAA v Clements (1976), for example, the Young, the Court of Appeals held that cases, the Court is less likely to issue a Michigan Supreme Court called the the prosecution could proceed despite full opinion following argument.” Id. doctrine a “fundamental rule of statutory construction[.]”2 It explained “that the defendant’s immunity. The Court of Thus, practitioners should “[t]hink departure from the literal construction of a Appeals majority opined that it wouldn’t carefully about what you would like the statute is justified when such construction make sense to apply immunity when the Court to do” and be prepared to “discuss would produce an absurd and unjust defendant gave untruthful testimony: and defend” that position at oral result and would be clearly inconsistent “In our judgment, … a requirement of argument. Id. If the goal is to obtain a with the purposes and policies of the act truthful testimony is compelled by the

Vol. 34 No. 2 • 2017 27 language of this statute when viewed in that the Detroit International court was a Court majority gives us another McIntire, its obvious context.”10 bit too enthusiastic about Cameron.14) But the absurd-results doctrine can be used— Then-Judge Young rejected thethe Michigan Supreme Court seemed to but it should be used sparingly. majority’s decision as an improper give the doctrine a renewed thumbs-up in People v Tennyson (2010),15 where Justice Endnotes interference with the legislature’s 1 Salas v Clements, 399 Mich 103; 247 NW2d 889 lawmaking authority. Although the Markman’s majority opinion stated that (1976). “statutes must be construed to prevent 2 Id. at 109. majority didn’t actually claim to apply the 16 absurd-results doctrine, Judge Young took absurd results.” 3 Id. at 109. that doctrine (and the majority) to task Since Tennyson, the goal of avoiding 4 Id. at 106, citing MCL 436.22 (repealed). 5 Salas, 399 Mich at 109. in an extended footnote. He rejected the absurd results seems to be an accepted 6 Id. doctrine as “’nothing but an invitation to part of statutory interpretation.17 That 11 7 People v McIntire, 461 Mich 147, 155-162 n2; judicial lawmaking.’” said, the doctrine has a second-class status 599 NW2d 102 (1999). By the time the Michigan Supreme at times; the suggestion that a court tacitly 8 Id. at 148. relied on the doctrine is not likely to be 9 Id. Court considered McIntire, Judge Young 18 taken as a compliment by most judges. 10 People v McIntire, 232 Mich App 71, 92; 591 was Justice Young. He recused himself, NW2d 231 (1998). and the Supreme Court adopted his 11 McIntire, 461 Mich at 156, n 8, quoting Scalia, Court of Appeals dissent. A Matter of Interpretation: Federal Courts and In some cases, the Court the Law (New Jersey: Princeton University For Michigan jurists, McIntire was a needs additional assistance Press, 1997), p 21. fatal blow to the absurd-results doctrine. 12 Cameron v Auto Club Insurance Association, from the parties before 476 Mich 55, 110-112; 718 NW2d 784 (2006). Return of the Doctrine making its determination, and 13 Detroit International Bridge Company v Commodities Export Co, 279 Mich App 662; 760 Yet McIntire didn’t quite spell the will direct the court clerk “to NW2d 565 (2008). end of the absurd-results doctrine. In schedule oral argument on 14 Progressive Michigan Insurance Co v Smith, 287 Mich App 537; 791 NW2d 480 (2010). Cameron v Auto Club Insurance Association whether to grant the (2006),12 three dissenting justices and one 15 People v Tennyson, 487 Mich 730; 790 NW2d application or take other 354 (2010). concurring justice spoke favorably of the 16 Id. at 742 (cleaned up). doctrine. To be fair, Justice Markman’s action.” 17 See, e.g., Elahham v Al-Jabban, 319 Mich App concurrence made it clear that he didn’t 112; 899 NW2d 768 (2017), citing Rogers v think the doctrine would apply to the Wcisel, 312 Mich App 79, 87; 877 NW2d 169 Strategy for Advocates (2015) majority’s conclusion in Cameron. That 18 Ray v Swager, __ Mich __, *23; __ NW2d __ left three justices who rejected the absurd- What all this means for appellate (July 31, 2017) (Wilder, J. dissenting). results doctrine entirely, three who would advocates in Michigan is that the absurd- have applied the doctrine in Cameron, and results doctrine is a possible but not one who accepted the doctrine in general especially attractive line of argument. but wouldn’t apply it to Cameron. Invoking the doctrine is essentially an Two years later, in Detroit International admission that the statute at issue is Bridge Company v Commodities Export Co contrary to your client’s position. It’s an (2008),13 the Court of Appeals concluded act of throwing yourself on the mercy of that Cameron’s three-dissents-and-a- the court. And some judges are deeply concurrence consensus represented the convinced that they lack the power to re-adoption of the absurd-results rule. exercise that kind of mercy. ( Judge Murray observed in March 2010 Until a future Michigan Supreme

28 Michigan Defense Quarterly Legal Malpractice Update

By: Michael J. Sullivan and David C. Anderson, Collins Einhorn Farrell, P.C. [email protected]; [email protected]

Statute of Limitations & Accrual of Claims Kovacs v Attorney Defendants, unpublished opinion per curiam of the Court of Appeals, issued June 20, 2017 (Docket No. 331448). Facts: The plaintiff hired the attorney defendants to negotiate an employment contract on his behalf. The plaintiff had been in negotiations with North American Bancard (“NAB”) for eight years before hiring the defendants to represent him in the final phase of negotiations. The contract was fully negotiated and executed by April 2010. In 2012, the CEO of NAB engaged in the recapitalization of the company and withdrew $175 million from the company. The plaintiff believed that his employment agreement should have included recapitalization of the company by the CEO as a triggering event causing the plaintiff’s incentive bonus to be paid. The plaintiff contacted the defendants and explained that it was his understanding that when the CEO received a cash out from the business, so would the plaintiff. But the defendants informed the plaintiff that recapitalization wasn’t a triggering event that would cause the plaintiff’s bonus to be paid. Then, in 2013, the plaintiff discovered that NAB created a new regulatory fee charged to merchants. The plaintiff believed that his employment agreement included the new merchant fees in the calculation of his commission. But his employment agreement didn’t cover the newly created merchant fees either. The plaintiff filed a legal-malpractice complaint on July 31, 2014, alleging that the defendants failed to include certain terms in his employment contract, which caused him harm. The defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(7) and (C)(10). The trial court denied the defendants’ motion. The Court of Appeals reversed the trial court’s decision, holding that the statute of limitations barred the plaintiff’s legal-malpractice claim. Ruling: The Court of Appeals determined that the plaintiff’s claim was barred by the two-year statute of limitations governing malpractice actions (MCL 600.5805(6)) and was not saved by the six-month discovery exception to the statute of limitations (MCL 600.5838(2)). The statute of limitations for an action charging malpractice is two years after the claim accrues. MCL 600.5838(1) provides that a claim for professional malpractice accrues when the professional discontinues serving the plaintiff in a professional capacity as to the matters out of which the claim for malpractice arose, regardless of when the plaintiff discovers or has knowledge of his or her claim. Relying on Gebhardt Michael J. Sullivan and David C. Anderson are partners at v O’Rourke, 444 Mich 535; 510 NW2d 900 (1994), and Maddox v Burlingame, 205 Collins Einhorn Farrell, P.C. Mich App 446; 517 NW2d 816 (1994), the court employed a two-step analysis to in Southfield. They specialize determine when plaintiff’s claim accrued. First, the court considered what legal service in the defense of professional attorney defendants performed that allegedly caused plaintiff’s claim to arise. Then, liability claims against the court determined when the defendants completed that legal service. lawyers, insurance brokers, real estate professionals, Referencing plaintiff’s own deposition testimony, the court determined that attorney accountants, architects and defendants were hired specifically to negotiate the employment contract. Because other professionals. They also attorney defendants completed their job when negotiations concluded and the parties have substantial experience in product and premises signed the employment agreement, the plaintiff’s claim accrued by April 1, 2010. So, liability litigation. Their the two-year statute of limitations period expired on April 1, 2012—more than two email addresses are Michael. years before the plaintiff filed his complaint. [email protected] and David.Anderson@ceflawyers. The court also rejected plaintiff’s contention that the six-month discovery exception com. in MCL 600.5838(2) saved his claim. Under that section, a malpractice claim may Vol. 34 No. 2 • 2017 29 be commenced within six-months after of an injury, not the discovery of a later or, at the latest, 2013 (new merchant fee), a plaintiff discovers or should have realized consequence of the injury. Moll the six-month period lapsed by the time discovered the existence of the claim. v Abbott Laboratories, 444 Mich 1; 506 he filed his complaint in July 2014. The court noted that, under Gebhardt, NW2d 816 (1993). Practice Note: Consider sending the discovery period begins to run when Because the plaintiff realized that disengagement letters to your clients the plaintiff discovers he has a possible the omission of certain terms from the when your representation ends. While cause of action (as opposed to knowledge employment contract caused him harm in they are not necessary to establish when of a likely cause of action). And, the 2012 (recapitalization of the company), representation ends, they can be helpful. discovery rule applies to the discovery

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Vol. 34 No. 2 • 2017 31 MDTC Legislative Report

By: Graham K. Crabtree, Fraser, Trebilcock, Davis & Dunlap PC [email protected]

As I prepare this report in the last week of August, the Michigan summer is coming to its end. The mornings are cooler, the kids are going back to school, and we are looking forward to the Legislature’s return to the Capitol after Labor Day. Things have been fairly quiet at the Capitol this summer. The public demonstrations on the front lawn have been relatively few and orderly - for the most part. But I have recently found myself distracted by the noise of heavy construction across the street as the grounds and parking lots on the north, south and west sides of the Capitol building have been torn up in the first phase of the Capitol Committee’s two-year, $70 million, infrastructure improvement project. Our legislators have not yet been bothered much by that disruption, as they have had a nice break this summer. Although many of them are perpetually running for re- election, none of them are facing the voters’ judgment this fall, and there were only two relatively brief session days in July and August. There has been time for planning and meetings with constituents in the home districts, and there will now be a full schedule of legislative sessions in the fall. Thus, I assume that our legislators will return next week tanned and rested and full of new ideas, and I will be expecting to have significant accomplishments to summarize in my next report.

New Public Acts In the last weeks of its sessions before the summer recess in June, the Legislature completed its work on the budget for the next fiscal year and produced a flurry of legislation. As of this writing on August 30th, there are 117 Public Acts of 2017 – 76 more than when I last reported on June 1st. The few that may be of interest to our members as civil litigators include the following: 2017 PA 101 – Senate Bill 333 ( Jones – R) will amend the Revised Judicature Act, MCL 600.8031, to refine the statutory definition of “business or commercial disputes” included within the jurisdiction of the business courts. The amendments will clarify that the existing reference to “members” of a business enterprise is limited to members of a limited liability company or similar business organization, and that the list of parties included in a “business or commercial dispute” will also include guarantors of a commercial loan. The list of specifically excluded actions under subsection 8031(3) will be expanded to include supplementary hearings for enforcement of judgments, actions for foreclosure of construction and condominium liens, and actions for enforcement of condominium and homeowners association governing documents. The legislation will also amend MCL 600.8035 to clarify that the business court has jurisdiction over business and commercial disputes in which equitable or declaratory relief is sought. This amendatory act will take effect on October 11, 2017, and will apply to cases filed on and after that date. Graham K. Crabtree is a 2017 PA 96 – Senate Bill 245 ( Jones – R) will repeal MCL 750.226a, which provides Shareholder and appellate a criminal penalty of imprisonment for up to a year and/or a fine of up to $300 for specialist in the Lansing office of Fraser Trebilcock Davis & possession of a switchblade. This act will take effect on October 11, 2017. Dunlap, P.C. Before joining 2017 PA 95 – Senate Bill 219 (Green – R) will amend several sections of 1927 PA the Fraser firm, he served as 372, to effect numerous refinements of the statutory provisions governing application Majority Counsel and Policy Advisor to the Judiciary for concealed-pistol licenses, the processing of such applications, and the issuance, Committee of the Michigan Senate from 1991 to suspension, revocation, and suspension of concealed-pistol licenses. This amendatory 1996, and as an Assistant Prosecuting Attorney act will also take effect on October 11, 2017. in the Appellate Division of the Oakland County Prosecutor’s Office from 1980 to 1991. He can be 2017 PA 89 – House Bill 4213 (Lucido – R) will amend the Michigan Liquor reached at [email protected] or (517) Control Act, MCL 436.1703 – the “minor in possession” statute – to specify that a 377-0895. preliminary chemical breath analysis cannot be administered to a minor without the 32 Michigan Defense Quarterly minor’s consent or a court order, which a necessary to effect the recommended danger of death or serious physical injury peace officer may seek if consent cannot changes; and file a final report with the requiring access to the information be obtained. This amendatory act will take Governor and the legislative leaders obtained. This bill was introduced on effect on October 10, 2017. within 2 years. July 12, 2017, and referred to the House 2017 PA 85 – House Bill 4427 Judiciary Committee. Old Business and New Initiatives (Runestad – R) has created a new “law of Interest enforcement body-worn camera privacy Things have been fairly quiet act.” This new act, which will take effect House Bill 4416 (Hoitenga – R) would at the Capitol this summer. on January 8, 2018, will provide safeguards amend the Penal Code, MCL 750.227, against disclosure of video records of to eliminate the existing prohibition of events recorded by body cameras worn carrying a pistol concealed on or about by law enforcement officers in private one’s person, or in a vehicle, without a House Joint Resolution S settings, and in circumstances where license for carrying a concealed weapon. (Wittenberg – D) proposes an amendment disclosure would run afoul of the Crime Approval of this change would effectively to Const 1963, art 2, § 9, which reserves Victim’s Rights Act. Although the new eliminate the present requirement that the authority of the voters to challenge act will not require use of body cameras, a concealed pistol license be obtained legislative enactments by referendum. The it will also establish new requirements in order to carry a pistol concealed or proposed amendment would modify the for preservation of body camera in a vehicle within Michigan, although language which currently provides that recordings and require law enforcement the current prohibition would be the power of referendum “does not extend agencies utilizing body-worn cameras maintained with respect to persons who to acts making appropriations for state to develop policies for their use, and for are prohibited by state or federal law institutions or to meet deficiencies in state the maintenance and disclosure of the from possessing a firearm. And with the funds.” Over the years, this limitation has recordings produced, consistent with the elimination of the licensing requirement, often been abused by the political party act’s requirements. the firearm training required for issuance in control to immunize legislation from of a concealed pistol license would no challenge by voter-initiated referendum longer be required as a prerequisite for by including a small appropriation for an The proposed constitutional concealed carrying. A Bill Substitute H-1 insignificant purpose. This abuse has been amendments would create an was passed by the House on June 7, 2017, sanctioned by our Supreme Court based Independent Citizens and has now been referred to the Senate upon its finding that the language is clear Committee on Government Operations. and must therefore be applied as written. Redistricting Commission for The amendment proposed by this Joint House Bill 4312 (LaFave – R) would establishment of state Resolution would prevent future abuses by amend the Revised Judicature Act’s limiting the application of this exception legislative and congressional provisions addressing admission to the to “general appropriation acts making districts as a permanent State Bar to allow attorneys licensed to appropriations that substantially fund 1 or practice in other states to be admitted Commission in the legislative more state departments or to acts making to the Michigan Bar without satisfying branch. appropriations to meet deficiencies in the established educational requirements state funds.” This proposed constitutional under specified circumstances. This bill amendment will be submitted to the was reported by the House Judiciary voters for approval at the next general 2017 PA 65 – House Bill 4613 Committee on June 7, 2017 with a Bill election if approved by the requisite two- (VerHeulen – R) has created a new “trial Substitute H-1, which now awaits further thirds vote in both houses. This writer is court funding act,” which will create a consideration by the full House on the unwilling to bet any of his own money new Trial Court Funding Commission Third Reading Calendar. The same bill that this will occur unless the amendment within the Department of Treasury. The has been introduced as Senate Bill 195 is separately proposed by a petition of the 14-member Commission will review and (Casperson – R) and referred to the voters. recommend changes to the trial court Senate Judiciary Committee. funding system in light of the Supreme And while speaking of issues that House Bill 4848 (Lucido – R) would Court’s holding, in People v Cunningham, the Legislature is unlikely to act upon, amend 1966 PA 189, regarding issuance 496 Mich 145 (2014), that a provision it is worth noting that House Joint and execution of search warrants, to add of the Code of Criminal Procedure did Resolution G (Barrett – R), proposing a new section MCL 780.651A. The new not provide independent authority for a part-time Legislature, has not been section would establish new procedures assessment of costs in criminal matters. scheduled for consideration since its for issuance of search warrants to compel The Commission will also be required to introduction was noted in my last report, access to, or production of, electronic review and recommend changes to the trial and that the petition drive sponsored by communication information, and for court funding system in general; review Lieutenant Governor Calley proposing obtaining approval after-the-fact in and recommend changes to the methods the establishment of a part-time situations where such information has by which the courts impose and allocate Legislature in a slightly different manner been obtained without a warrant in fees and costs; suggest statutory changes is now collecting signatures in the face of an emergency involving an imminent Vol. 34 No. 2 • 2017 33 stiff opposition from parties who prefer a Petition that addresses this issue by guidelines to be applied in its drawing of the status quo. proposed amendments to Articles IV and the legislative and congressional districts. V of the State Constitution. The form The Supreme Court, in the exercise of of the Petition was recently approved by original jurisdiction, could direct the This new act, which will take the Board of State Canvassers, and the Commission in the exercise of its duties effect on January 8, 2018, will collection of signatures is now underway. to review a challenge to an adopted plan, provide safeguards against The proposed constitutionaland remand a plan to the Commission disclosure of video records of amendments would create an Independent for further action if it does not comply Citizens Redistricting Commission for with state or federal constitutional events recorded by body requirements or applicable federal law, but cameras worn by law establishment of state legislative and congressional districts as a permanent the proposed language emphasizes that, enforcement officers in private Commission in the legislative branch, “in no event” shall any body, other than settings, and in circumstances to be assisted in the performance of its the Commission, “promulgate or adopt a redistricting plan or plans for this state.” where disclosure would run administrative duties by the Secretary of State. The new provisions establish detailed afoul of the Crime Victim’s What Do You Think? qualifications for membership on the Rights Act. 13-member Commission, and procedures Our members are again reminded that for selection of its members, designed to the MDTC Board regularly discusses produce a diversity of political viewpoints pending legislation and positions to be The touchy subject of legislative and ensure that the Commission’s actions taken on bills and resolutions of interest. redistricting is another issue that the voters and decisions will not be directed or Your comments and suggestions are may ultimately be given an opportunity unduly influenced by any one political appreciated, and may be submitted to the to decide in the absence of legislative party. The new provisions also include board through any officer, board member, action. It should be noted, in this regard, detailed procedures to be followed by regional chairperson or committee chair. that a Ballot Proposal Committee known the Commission in the performance as “Voters Not Politicians” has drafted of its duties, and detailed criteria and

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34 Michigan Defense Quarterly Medical Malpractice Report

By: Kevin M. Lesperance and David J. Busscher, Henn Lesperance PLC

What Time Is It? Mitchell v Kalamazoo Anesthesiology and Medical Record Timestamps in Medical Malpractice Cases

In a medical-malpractice action, the medical records often make or break the case. For the medical-malpractice defense bar in particular, it is difficult to understate how important these records are. Pre-suit reviews and recommendations are made based on the medical records. Initial pleadings are drafted in large part based on the information available in the medical records. An important component of initial discovery in medical-malpractice defense includes obtaining authorizations from treatment providers and facilities so that additional records can be obtained. Many hours are spent reviewing the voluminous pages of medical records relevant to a single case. At trial, key medical records are blown up as exhibits, and witness testimony is compared to, and impeached by, the significant medical records in the case. The federal mandate of electronic medical record keeping has changed the way that medical records are created, stored, and used. In the past, records would be handwritten, regularly illegible, and sometimes quite limited. However, the records that did exist were made when somebody took the time to intentionally create them, and the information written in them would normally be pertinent to the subject of that record. Although it sounds ridiculous to say, those old paper records looked essentially the same when the healthcare provider wrote them as they did when they were entered into evidence at trial. Electronic medical records share none of those qualities. Electronic medical records commonly include quite a bit of automated information—rather than re- entering old information, that information is auto-filled and can be updated as needed. Information including current medications, prior treaters, and past test results can be Kevin M. Lesperance is a partner at Henn Lesperance available at the click of a button. The idea of a document being signed and dated takes PLC, in Grand Rapids, and on new meaning as providers click bubbles that auto-fill the date, time, and an electric has 20 years of experience image of a signature. handling complex civil litigation, including As every medical-malpractice attorney has discovered, even when an electronic record successfully trying several was specifically and intentionally created by a provider, it can look wildly different on medical malpractice cases paper than it does on the computer, and it can even contain different information to defense verdicts. He is in different places. Whether during a meeting, a deposition, or even in an effort to a 1997 graduate of Valparaiso University School of Law and 1994 graduate of the University of impeach testimony at trial, providers confronted with their own words and signature Michigan. will still assert that they have never seen that record before—and they are telling the truth. The printouts provided to the attorneys just do not look anything like the records David J. Busscher is an associate attorney at Henn on the computer used in the day-to-day practice of medicine. Lesperance PLC, where he This is not meant to encourage some kind of nostalgia for paper record keeping— has successfully represented a variety of firm clients electronic medical records are convenient, they are easier to store, copy, and share, they in all stages of litigation. can include images and dictations, they can be easily searched, and they can encourage His primary practice areas thorough record keeping. However, electronic medical records can and do present include medical malpractice unique litigation challenges for medical-malpractice attorneys, and those challenges defense, health law, and civil need to be anticipated and addressed to ensure the successful defense of any given case. litigation. He is a 2015 graduate of the University of Illinois College of Law and a 2011 graduate of A recent published opinion by the Michigan Court of Appeals, released for publication Calvin College in Grand Rapids. on August 24, 2017, Mitchell v Kalamazoo Anesthesiology PC, ___ Mich App ___; Vol. 34 No. 2 • 2017 35 ___ NW2d ___; 2017 WL 3642673 chart was 15:32 (i.e., 3:32 p.m.), which proper treatment and the defendants (2017) (Docket No. 331959), provides a suggested “that the ultrasound image was obtained a judgment of no cause of action. good example of both the importance of taken 45 minutes after the notes indicated The plaintiff appealed, claiming that the medical records in medical-malpractice that plaintiff had his procedure.”4 trial court erred by authenticating the cases and the ways that information in ultrasound image for admission and erred those records can provide fodder for by excluding evidence and argument challenges to their authenticity. [T]he defense attorney should attacking the genuineness and reliability 7 In Mitchell, the plaintiff brought a figure out why the timestamps of the image. medical-malpractice action against are wrong/inconsistent, or On appeal, the Court of Appeals an anesthesiologist and his practice appear wrong and should found that the trial court did not err by asserting that the anesthesiologist investigate to determine a authenticating the contested image, but negligently performed a procedure and did err by prohibiting the plaintiff from caused permanent injury to the plaintiff. reasonable explanation. In challenging the authenticity of the image. Specifically, the plaintiff alleged that almost every case, there is a The Court noted that there are two the anesthesiologist improperly placed a perfectly innocuous related but distinct questions regarding needle or catheter in his shoulder in a way explanation which will head the authenticity of evidence: that directly impacted the phrenic nerve in his shoulder, resulting in permanent off questions about the The first question is whether the shortness of breath and trouble breathing. authenticity of the document. evidence has been authenticated— The defendants, however, asserted that the whether there is sufficient reason needle and catheter were correctly placed, to believe that the evidence is what and that the plaintiff unfortunately Despite these concerns, the document its proponent claims for purposes suffered from a known complication of imaging supervisor testified she did not of admission into evidence. The the procedure that could occur in the see a problem with the sticker, and she also second question is whether the absence of any negligence.1 did not think that there was an issue with evidence is actually authentic or genuine—whether the evidence is, One of the key issues at trial was the timestamp difference, suggesting that the difference “could have resulted from in fact, what its proponent claims whether a copy of an ultrasound image for purposes of evidentiary weight some kind of incongruence between the [8] that the defense sought to admit was an 5 and reliability. accurate scan of the original ultrasound system’s time and daylight savings time.” image. The image purported to show Based on this testimony, the defendants The first question is reserved solely for proper placement of a needle and catheter successfully argued that the image was the trial judge “in the role as evidentiary by the anesthesiologist while performing authentic and should be admitted. Beyond gatekeeper,” to determine whether the a nerve block.2 The plaintiff challenged that, the defendants argued that the proponent of the evidence can “make the authenticity of the ultrasound image plaintiff should not be allowed to present a prima facie showing that a reasonable for several reasons. evidence about the delay in production of juror might conclude that the proffered the image or to argue that the image copy evidence is what the proponent claims it To begin, the defendant anesthesiologist contained in the electronic medical record to be.”9 The second question, regarding testified that he printed an image of was not authentic, because there was no the weight and reliability of the evidence, the ultrasound scan taken during the evidence that anything “nefarious” or “is reserved solely to the fact-finder, here procedure, but he did not know what “dishonest” happened, and any “innuendo the jury.”10 happened to the image. As a result, the and supposition” by the plaintiff about the This means that even after a piece of image was not produced for quite some image would prejudice the defense. The evidence is authenticated such that it is time during discovery, but eventually plaintiff, though, argued that the image found to be admissible, the parties may was produced. A document-imaging should be excluded from evidence, or still submit evidence and argument to supervisor testified that a scanned copy alternatively, that he should be allowed the jury regarding whether that piece of of the image was found in the medical to attack the image’s genuineness and evidence is, in fact, genuine and reliable. center records, but that the original record reliability at trial.6 had been destroyed, and that human error Because there was sufficient evidence caused the delay in disclosure of the The trial court agreed with defense for a reasonable juror to conclude the record.3 counsel and determined that the evidence image was genuine, the Court found that of the image was sufficiently authenticated the trial court did not err by ruling the The image showed that a sticker with to be admissible, and also held that image was admissible. However, because the plaintiff ’s identifying information on allowing testimony challenging the there was a bona fide dispute regarding it had been placed over another sticker, authenticity of the image would invite a the genuineness of the ultrasound image, and that the new sticker was different “trial within a trial,” and so prohibited the the Court of Appeals found that the trial from other such stickers used on the day plaintiff from offering any such testimony. court did err by preventing the plaintiff of the plaintiff ’s procedure. In addition, At trial, the image was a key piece of from presenting argument and evidence the time listed on the ultrasound image evidence in the case. Even Plaintiff ’s own about the weight and reliability that timestamp was 4:16:27 p.m., but the time expert admitted that the image showed should be attached to the image.11 of the procedure listed in the plaintiff ’s 36 Michigan Defense Quarterly Even so, the Court noted that watch or cell phone someone uses for drug. Although the timestamp issue could evidentiary error is not ordinarily grounds reference in manually entering time. The eventually be explained, those records for appellate relief. In this case, though, electronic timestamps can be the time formed an initial basis for the patient’s the Court found that the ultrasound a record is created or completed and lawsuit, and the defendant was stuck on image was “a (arguably the) crucial piece not when the actual care was provided. its heels trying to explain how the time of evidence.”12 For that reason, the Court Often, it seems, the timestamp present in systems were the problem, rather than the determined that evidence regarding the the records is just an accident of when a care actually provided. This situation is image’s reliability and genuineness, such provider happened to look back through just one example of many. as the issues with the sticker, the way it was a chart, or happened to leave a computer stored, and the timestamp discrepancy, dialog box open without saving a note. All “would have been quite relevant as to the of these reasonable explanations can make On appeal, the Court of weight (if any) the jury should have placed the automatic timestamp enter a time Appeals found that the trial 13 on the image.” Therefore, it held that other than when the service or treatment court did not err by substantial justice required that the trial was actually provided. authenticating the contested court judgment be reversed and vacated. Sometimes, these time discrepancies are image. There are several different lessons small, with only a few minutes’ difference. that can be gleaned from this published Other times, the discrepancies are large— opinion. A refresher on the Court’s gate- one of the authors recently came across Generally, because medical records are keeping role in the admission of evidence a note in an electronic medical record extremely important to the defense of a is always helpful. Similarly, the distinction that had a timestamp over two years after medical-malpractice case, it is important between baseline authenticity for the the treatment had been provided. The for medical-malpractice defense attorneys purposes of admission and whether the note did not matter to the case, but the to get ahead of discrepancies in timestamps weight of the evidence supports that some health provider defendant indicated that from the electronic medical record. Of piece of evidence is what a party claims it it was written contemporaneously, and course, the best solution would be for all to be is also an important distinction to obviously not two years later. He could of the clocks to be in sync and for events keep in mind. not explain why the time was so far off. to be recorded at the time they happen. However, one important point that Even small discrepancies, though, can This is something worth addressing with this case highlighted for the authors make a big difference. institutional clients, and it is possible that of this article was the issue of the some kind of information technology best practices or update schedules could help timestamp discrepancy. Apparently, the However, electronic medical timestamp for the ultrasound image was alleviate these problems. approximately 45 minutes different than records can and do present Even so, that could only solve part of the time that the procedure was recorded unique litigation challenges the problem. to have taken place. for medical-malpractice Providers very regularly access records The Court found time discrepancy to attorneys, and those and enter information about what be one of the significant possible pieces challenges need to be happened in the care of a patient at times of evidence that the plaintiff should have other than when the care is actually anticipated and addressed to been allowed to present to the jury in being provided. The provider may not an attempt to argue the image was not ensure the successful defense intentionally input a timestamp along authentic. The Court even took the time of any given case. with a note or a record, but the electronic to mention that it found the daylight system might assign it a time anyway. savings time explanation of the document Then, when the record is printed, that imaging supervisor to be unconvincing. timestamp will show up and have to be In the end, unfortunately, the Court of These authors were involved in a explained. In light of Mitchell, we should Appeals found that the exclusion of that different case in which the various be prepared to give those explanations. electronic medical records were subject and other evidence tending to challenge Specific to medical-malpractice the authenticity of the image copy was so to several different time systems. Each of the systems recorded information on defense, there are two parts to getting significant that it warranted a completely ahead of a challenge to a time discrepancy: new trial. a time schedule different from the others. The patient in that case was supposed 1) recognizing it exists, and 2) explaining In the authors’ experience, time to receive a certain dose of a powerful how it got there. Of course, it would not discrepancies of this sort are common, and narcotic every four hours. However, be reasonable or necessary to pay attention they have a variety of causes. Sometimes, review of the records and the automatic to all of the timestamps on all of the there are two different electronic medical timestamps supplied by each of the electronic medical records being reviewed record systems being used, and their different systems made it seem as though for a case. However, with key records, the clocks are not synced. Sometimes, the the patient was receiving that four-hour ones that might be blown up and shown time in the electronic medical record is dosage as often as every half hour, which to a jury because they could make or break different from the computer it is being would have been a fatal amount of the the case, it would be best practice to assure used on, or is different from a personal that the various timestamps make sense. Vol. 34 No. 2 • 2017 37 If they do, great, one less thing to worry key provider witness to be challenged Endnotes 1 Mitchell, ___ Mich App at ___; slip op at 1-2. about. If not, then the defense attorney with an odd timestamp on a key record 2 Id. at 2. should figure out why the timestamps for the first time while sitting in front of 3 Id. at 3. are wrong/inconsistent, or appear wrong a jury, particularly if the provider has not 4 Id. and should investigate to determine a had time to carefully look into the matter. 5 Mitchell, ___ Mich App at ___; slip op at 3. reasonable explanation. In almost every Instead, the issue must be considered and 6 Id. at 4. case, there is a perfectly innocuous addressed ahead of time. 7 Id. explanation which will head off questions In the end, this timestamp issue is 8 Mitchell, ___ Mich App at ___; slip op at 5. 9 . about the authenticity of the document. just one among many we all face. In Id 10 Id. Witnesses, particularly the providers Mitchell, there were other challenges to 11 Id. at 6. themselves, also need to be aware of any the authenticity of the document, and it 12 Id. (emphasis in the original) such discrepancies and be prepared to is possible that the timestamp discrepancy 13 Id. at 7 explain their existence in a deposition. alone would not have been enough for the As mentioned above, when a healthcare Court of Appeals to find error and order provider gets a paper copy of the a new trial. Nonetheless, because of the electronic medical record, it often looks primacy of medical records in the defense nothing like what is seen on a computer of medical-malpractice claims, even the screen, and some things, like timestamps, small issue of inconsistent timestamps could be invisible or part of an automated in the records is an issue that should be process on the computer that the provider considered by every attorney defending did not even realize was being recorded. such a case. It certainly would not be helpful for a

38 Michigan Defense Quarterly No-Fault Report

Ronald M. Sangster, Jr., The Law Offices of Ronald M. Sangster PLLC [email protected]

Fallout From Covenant Medical Center v State Farm and Other Supreme Court Issues For those of us who practice in the no-fault insurance arena, the past few months could best be characterized as the “Summer of Covenant” or “Covenant 24/7.” The courts have been inundated with motions for summary disposition, motions to amend complaints, motions to strike assignments and countless other motions – all stemming from the Michigan Supreme Court’s landmark decision in Covenant Med Ctr v State Farm, __ Mich __; 895 NW2d 490 (May 25, 2017) (Docket No. 152758). Not surprisingly, there has also been a flurry of appellate court activity applying the Supreme Court’s holding in Covenant, to the effect that while medical providers no longer have a statutory cause of action to recover payment of medical expenses from a no-fault insurer, the medical provider might be able to pursue alternative theories of recovery. The most significant decision handed down in the post-Covenant era thus far is WA Foote Mem’l Hosp v Michigan Assigned Claims Plan, __ Mich App __; __ NW2d __ (August 31, 2017) (Docket No. 333360). This case was one of the first cases to be considered by the Michigan Court of Appeals after Covenant, as oral argument had already been scheduled to occur before the release of the Supreme Court’s decision in Covenant. As a result, the primary issue in WA Foote Mem’l Hosp was whether or not Covenant was to be applied retroactively or prospectively, only. The importance of the Court of Appeals’ opinion was underscored by the fact that certain district court judges were applying Covenant on a prospective basis, only, thereby preserving the medical provider’s right to sue no-fault insurers under pre-Covenant case law. In its published opinion, though, the Court of Appeals put a swift end to those decisions, and ruled that the Michigan Supreme Court’s decision in Covenant is to be given full retroactive effect, regardless of whether the insurer had actually raised a “Covenant” defense, based upon the provider’s purported lack of standing to commence litigation. TheWA Foote Mem’l Hosp decision was initially brought before the Court of Appeals because the hospital had initiated a claim for no-fault benefits with the Michigan Assigned Claims Plan without conducting a thorough investigation as to whether there might be a higher priority insurer in the picture. After suit was filed against the MACP, it was discovered that there was, in fact, a higher priority insurer in the picture but, because the insurer had not received notice within one year of the date of loss, the hospital could not initiate a claim against that insurer. The lower court had granted summary disposition in favor of the MACP, noting that the hospital could have identified a higher priority insurer if it had filed suit directly against the patient for the unpaid medical bills, if it had obtained the information from the patient at the time of the treatment, if it had obtained the police report regarding the accident, or had followed up on information that it had regarding actual ownership of the vehicle occupied by the patient. While the appeal was pending, the Michigan Supreme Court released its decision Ron Sangster concentrates in Covenant, at which time the parties briefed the issue as to whether or not Covenant his practice on insurance law, should be applied retroactively. In a rather lengthy opinion, the Court of Appeals issued with a focus on Michigan No- the following key rulings: Fault Insurance. In addition to teaching Michigan No-Fault • First, the court ruled that, in light of the U.S. Supreme Court’s decision in Harper law at Thomas J. Cooley Law v Virginia Dept of Taxation, 509 US 86; 113 SCt 2510; 125 L.Ed.2d 74 (1993) School, Ron is a highly sought and the Michigan Supreme Court’s decision in Spectrum Health v Farm Bureau, after speaker on Michigan insurance law topics. His email address is [email protected]. 492 Mich 503; 821 NW2d 117 (2012), Covenant was to be given full retroactive effect; Vol. 34 No. 2 • 2017 39 • The court rejected the provider’s Parked Vehicle Exclusion set forth Perkovic v Zurich American Ins argument that the insurer had failed in MCL 500.3106(1)(1)); and Co, 500 Mich 44; 893 NW2d to properly preserve the issue, noting • Bronson Methodist Hosp v Michigan 322 (2017) that the Court Rules, specifically, Assigned Claims Facility, docket no. In order to initiate a claim for no- MCR 2.111(F)(2), indicate that the 151343 (Court of Appeals’ decision fault benefits, most, if not all, no-fault defense of a “failure to state a claim pertained to whether or not the insurers require that an application for upon which relief can be granted” is Michigan Assigned Claims Plan benefits be filed. These applications not waived even if not asserted in a could be forced to assign an insurer usually provide information regarding the responsive pleading or motion; in a situation where the underlying accident itself, as well as a description of • Regarding the provider’s argument patient was injured in an automobile the injuries, the places where the injured that it should be allowed to accident while driving his own claimant received any hospital or medical amend its Complaint to assert motor vehicle) treatment, and information regarding an alternative theory of recovery, In perhaps an indication of what is to any claims for work-loss benefits. The including the pursuit of benefits come, the Court of Appeals recently issued information included in an application under an assignment theory, the an opinion instructing the lower court to for benefits is designed to comply with Court of Appeals noted that “the dismiss the lawsuit where the provider MCL 500.3145(1), which contains a most prudent and appropriate had failed to secure an assignment before strict one-year notice provision: course for us to take at this time is filing suit. In Standard Rehab Inc v Grange to remand this case to the trial court An action for recovery of personal Ins Co of Michigan, unpublished opinion protection insurance benefits with discretion that it allow Plaintiff per curaim of the Court of Appeals, to move to amend its Complaint, payable under this chapter for issued September 5, 2017 (Docket No. accidental bodily injury may not be so that the trial court may address 331734), the Court of Appeals had the attendant issues in the first commenced later than 1 year after granted leave to appeal “to determine the date of the accident causing instance.” W A Foote Mem’l Hosp, slip whether reports prepared for non-party op at 20. the injury unless written notice independent medical examinations of injury as provided herein has Now that the issue of Covenant’s (IMEs) may be obtained during discovery been given to the insurer within retroactivity has been resolved, the for the purpose of establishing bias by 1 year after the accident or unless author anticipates that the next round of the physician retained by Defendant the insurer has previously made appellate court activity will concern the insurer to prepare an IME report in a payment of personal protection validity of the various assignments that the instant case.” During the pendency insurance benefits for the injury. . are being obtained by medical providers. of the appeal, the Michigan Supreme . The notice of injury required by Since Covenant was released, the Court issued its decision in Covenant, this subsection may be given to Supreme Court has vacated a number and the matter was brought up during the insurer or any of its authorized of prior decisions from the Court of oral argument. At oral argument, counsel agents by a person claiming to be Appeals, with instructions to the Court representing Standard Rehabilitation entitled to benefits therefor, or by of Appeals to reconsider the case in light conceded that the underlying patient had someone in his behalf. The notice of Covenant. These decisions, along with a not made an assignment of their claims shall give the name and address brief statement of what the case initially to Standard Rehabilitation before the of the claimant and indicate in involved, include the following: lawsuit being filed. Therefore, the matter ordinary language the name of the was “remanded with direction to dismiss • Detroit Med Ctr v MPCGA, Supreme person injured and the time, place this case.” This order is actually in keeping and nature of his injury. Court Docket No. 154363 (Court with the trends in the circuit courts and of Appeals had reversed a summary district courts, which have been regularly Many insurers have been denying disposition decision concerning an dismissing lawsuits filed by medical claims for benefits if the injured claimant “unlawful taking” issue); providers where the provider has failed to fails to complete and submit a timely • VHS Huron Valley Sinai Hosp v obtain an assignment. application for benefits. In Perkovic, Sentinel Ins Co, Docket No. 154978 though, the Michigan Supreme Court (Court of Appeals’ decision dealt Other Supreme Court Action made it clear that by virtue of the plain language of MCL 500.3145(1), the notice with whether a release of an Lost in the Covenant aftermath was the requirement can be satisfied by a medical uninsured motorist claim barred a fact that the Michigan Supreme Court provider who submits medical records, provider’s suit for payment of PIP issued two other decisions that impact billing records, and in appropriate cases, medical expenses); no-fault jurisprudence. One of these cases the police report, because taken together, discusses what constitutes proper notice • Spectrum Health Hosp v Westfield these documents provide: Ins Co, Docket No. 151419 of a claim under MCL 500.3145(1). The (Court of Appeals refused to second deals with the compensability of • The name and address of the consider two lower court decisions injuries arising out of a parked motor claimant (set forth on the billing regarding the compensability of vehicle. These two cases are analyzed statement from the medical maintenance injuries under the below. provider); 40 Michigan Defense Quarterly • The name of the person injured Ironically, when seen in light of must show that the injury arose out of (which appears in both the medical Covenant, a medical provider has the the ownership, operation, maintenance and billing records); right to file a claim with a no-fault insurer or use of the parked motor vehicle as a • The nature of his injury (contained “in behalf of the injured party,” but does motor vehicle. Finally, the claimant had to within the medical records not have the right to enforce payment of demonstrate that the injury had a causal themselves); and medical expenses incurred by that same relationship to the parked motor vehicle party in whose behalf the notice was that was more than incidental, fortuitous, • The time and place of the injury given, against that same no-fault insurer. or “but for.” (contained in the police report or in With regard to the first issue, the the medical records). Kemp v Farm Bureau, __ Mich Supreme Court noted that there existed a Perkovic initially involved a dispute __; __ NW2d __ (June 15, 2017) genuine issue of material fact as to whether among three insurers – Perkovic’s personal (docket no. 151719) or not the injury was the “direct result” of no-fault insurer (Citizens), his trucking In a 4-3 decision authored by Justice physical contact with the property that fleet insurer (Zurich) and his bobtail Viviano, the Michigan Supreme Court Mr. Kemp had just removed from his insurer (Hudson) – over which insurer reversed the judgment of the Michigan pickup truck. In so ruling, the Supreme would be responsible for payment of his Court of Appeals and determined that Court rejected Farm Bureau’s argument no-fault benefits, arising out of a trucking there existed a genuine issue of material that the injury must be “due to” physical accident. In an earlier proceeding, the fact as to whether or not injuries suffered contact with the property. Instead, all Court of Appeals determined that the by an injured claimant while unloading his that was required was that the injury fleet insurer, Zurich, occupied the highest personal belongings out of a parked motor was caused by contact with the property order of priority for payment of Perkovic’s vehicle were compensable under the no- being loaded or unloaded. Second, the no-fault benefits. After a remand to the fault insurance act. In Kemp, the plaintiff court determined that the unloading of circuit court, Zurich filed a motion for opened the rear door of his extended one’s personal belonging out of one’s summary disposition, claiming that it did cab pickup truck and reached into the vehicle satisfied the “transportational not receive proper notice of the loss, even vehicle to grab his belongings, including function” requirement of McKenzie v though it had received medical records his briefcase, an overnight bag, a thermos, ACIA, 458 Mich 214; 580 NW2d 424 and billings from the Nebraska Medical and a lunchbox. As he was lowering them (1998), as a matter of law. Finally, the Center within one year. Both the circuit from the vehicle, he suffered an injury to court ruled that there existed a genuine court and the Court of Appeals had his calf muscle. He filed suit against his issue of material fact as to whether or granted summary disposition in favor of insurer, Farm Bureau, to recover no-fault not the causal relationship between the the insurer, determining that even if there benefits arising out of the incident. Farm injury and the motor vehicle accident was had been technical compliance with the Bureau denied the claim and argued that more than incidental, fortuitous, or “but requirements of MCL 500.3145(1), the (1) Kemp’s injury did not arise out of for,” as required by its earlier decision in “purposes” behind the statutory provision the ownership, operation, maintenance Thornton v Allstate Ins Co, 425 Mich 643; were not satisfied because there was or use of the parked motor vehicle as a 391 NW2d 320 (1986). nothing in the claim submissions that motor vehicle, (2) the injury did not arise would have put the insurer on notice that Justice Zahra, joined by Chief Justice as a direct result of physical contact with the provider was submitting a claim for Markman and Justice Wilder, dissented property being lifted onto or lowered from Michigan no-fault insurance benefits. from the majority’s opinion. Justice Zahra the vehicle in the loading or unloading and his colleagues concluded that the On appeal, the Supreme Court, in process, as required by MCL 500.3106(1) plaintiff had failed to establish a genuine a 6-1 decision authored by Justice (b), and (3) his injury did not have a causal factual basis from which to conclude that Bernstein, rejected any such reliance relationship to the motor vehicle that was “the injury was a direct result of physical on the “purposes” behind the one-year more than incidental, fortuitous, or “but contact with . . . property being lifted notice provision. Instead, adopting a for.” The circuit court granted summary onto or lowered from the vehicle in the classic textualist argument, the Supreme disposition in favor of Farm Bureau and loading or unloading process,” as required Court determined that, “the documents in a 2-1 decision, the Court of Appeals by MCL 500.3106(1)(b). Justice Zahra transmitted to Defendant contained affirmed. also invited his colleagues to reexamine all of the information required by In its opinion, the Supreme Court the causation element of the Putkamer MCL 500.3145(1) and were sent in affirmed the three-step analyticalanalytical framework – an invitation that behalf of Plaintiff by the Nebraska framework initially enunciated by was declined by the majority. Medical Center.” the Supreme Court in Putkamer v Although perhaps these cases do not Former Justice Young agreed with the Transamerica Ins Corp of America, 454 have the significance that the Covenant reasoning of the majority opinion, but Mich 626; 563 NW2d 683 (1997). First, decision had, both Perkovic and Kemp dissented from the results reached by the injured claimant must demonstrate clarify the proper type of notice that must the majority. Justice Young opined that that the circumstances surrounding the be given under the No-fault Insurance the notice had to be given by “a person loss falls within one of the three exceptions Act, and under what circumstances claiming to be entitled to benefits” at the to the parked-vehicle exclusion set forth claimants can recover for injuries arising time the notice was given. in MCL 500.3106(1). Next, the claimant out of parked motor vehicles. Vol. 34 No. 2 • 2017 41 Supreme Court Update

By: Mikyia S. Aaron, Clark Hill, PLC [email protected]

The Supreme Court Declines to Review Whether Municipalities Have the Right to Choose When to Enforce Zoning Ordinances On June 9, 2017, the Michigan Supreme Court denied leave to appeal the Court of Appeals’ ruling that, notwithstanding decades of unlawful and improper use of zoned areas, municipalities have the right to choose whether to enforce zoning ordinances. Charter Township of Lyon v. Petty and Charter Township of Lyon v. Hoskins, __ Mich __; 896 NW2d 11 ( June 9, 2017) (Docket Nos. 155024 & 155025). Facts: The defendants were two separate families who owned property in the Charter Township of Lyon. Each family owned businesses that were run from their primary residences. After several neighbors began to complain about excessive, early-morning noise coming from the Hoskins and Petty family residences, the township cited both families for zoning violations on the grounds that both families were unlawfully using residential property for commercial use. However, the families opposed the violations on the basis that they had been using their residential property for commercial use for decades before the cited violation. The trial court upheld the township’s cited zoning violations on the grounds that MCL 125.3101 et seq., gave the township the right to enforce all zoning ordinances, regardless of any delay in past enforcement and any inconvenience to parties affected by such enforcement. Ruling: The Michigan Supreme Court denied leave to consider whether municipalities have the right to choose when to enforce zoning ordinances. Pursuant to MCR 7.305(H)(1), the Court also vacated the following language from the Court of Appeals’ judgment acknowledging the township’s right to enforce zoning ordinances: • “[m]oreover, as a matter of law, $7,000 worth of additions to a storage barn falls Mikyia S. Aaron is an associate with the Labor & short of the ‘substantial change in position’ or ‘extensive obligations and expenses’ Employment Practice Group necessary for equity to overcome a township’s zoning authority[,] 83 Am Jur 2d in Clark Hill’s Detroit Office. § 937, p 984;” and Mikyia counsels employers, management, and human • “[c]ourts have also held that the property owner must establish ‘a financial loss . . . resource personnel regarding so great as practically to destroy or greatly to decrease the value of the . . . premises labor and employment best for any permitted use[,]’ Carini v Zoning Bd of Appeals, 164 Conn 169, 173; 319 practices. Prior to joining Clark Hill, Mikyia gained A2d 390 (1972).” substantial experience with labor and employment relations while assisting plaintiffs’ counsel with The court vacated the above language “because neither statement is necessary to various collective-bargaining employment matters. the disposition of this case or well-grounded in Michigan jurisprudence.” (Emphasis Mikyia graduated from the University of Detroit added.) Mercy School of Law, where she attended as a recipient of the Dean’s scholarship. While at Practice Note: Under MCR 7.305(H)(1), the Michigan Supreme Court may either UDM, Mikyia served as the Editor-in-Chief of grant or deny an application for leave to appeal, enter a final decision, direct argument UDM’s Law Review, and was an active member on the application, or issue a peremptory order. of UDM’s Moot Court Board of Advocates. Mikyia has been the recipient of several awards and scholarships, including the Women Lawyers The Supreme Court Expands the Exception to the Michigan No- Association of Michigan Foundation’s 2015 Fault Insurance Act Relating to Injuries Resulting from Loading and Outstanding Woman Law Student Award. She has Unloading Property from a Parked Motor Vehicle also been featured as a “Young Progressive Leader on the Rise” by Progressive Leaders Magazine On June 15, 2017, the Michigan Supreme Court held that loading and unloading (Metro Detroit edition). Mikyia is also very active property from a parked motor vehicle can, in fact, result from the motor vehicle’s in the Southeastern Michigan legal community transportational function. and serves on the University of Detroit Mercy School of Law Alumni Board of Directors and Kemp v Farm Bureau Gen Ins Co of Michigan, __ Mich __; __ NW2d __; 2017 WL the D. Augustus Straker Bar Association Board of 2622670 ( June 15, 2017) (Docket No. 151719). Directors. 42 Michigan Defense Quarterly Facts: The plaintiff sustained an injury of the parked-car exception in MCL determination that the plaintiff ’s injuries to his lower back and right calf while 500.3106(1)(b). The parked-car exception did not result from the transportational retrieving personal property from his requires that the injury sustained directly function of his motor vehicle because parked motor vehicle. Following the result from physical contact with property similar movements “routinely occur in injury, the plaintiff filed suit against his being loaded or unloaded from the parked other places.” auto insurer, defendant Farm Bureau motor vehicle. Ruling: The Michigan Supreme Court General Insurance Company of Michigan After the plaintiff filed suit seeking reversed the ruling of the Michigan Court (“Farm Bureau”) seeking no-fault benefits no-fault benefits, defendant Farmof Appeals. The Court ruled that Farm under MCL 500.3106(1). Bureau moved for summary disposition, Bureau was not entitled to summary pursuant to MCR 2.116(C)(10), arguing disposition because the plaintiff had, [G]ave the township the right that the plaintiff was not entitled to no- in fact, satisfied the transportational fault benefits because: (1) the injuries he function requirement as a matter of to enforce all zoning sustained did not arise out of the normal law. Specifically, the plaintiff was able ordinances, regardless of any use of the parked motor vehicle as a motor to show that his injury arose as he was delay in past enforcement vehicle, (2) the injuries did not meet the unloading his personal property from his and any inconvenience to requirements of the parked-car exception parked motor vehicle. The plaintiff was in MCL 500.3106(1)(b), and the injury also able to show that he was in physical parties affected by such did not have a causal relationship to the contact with his personal property at the enforcement. parked car that was more than “incidental, time he sustained the injuries at issue. fortuitous or but for” as required by the Accordingly, the Court held that the relevant statute. plaintiff created a genuine issue of material The Michigan No-fault Insurance Act, The trial court granted the defendant’s fact concerning whether his injury was MCL 500.3101 et seq., requires no-fault motion for summary disposition, and the the direct result of his physical contact insurers to pay personal injury protection plaintiff appealed to the Michigan Court with his personal property. Consequently, (“PIP”) benefits to an insured for any and of Appeals. The Court of Appeals affirmed the Court reversed the judgment of the all injuries sustained from the “ownership, the trial court’s judgment in a split Court of Appeals and remanded the case operation, maintenance, or use of a decision. The Court of Appeals majority in order for the appropriate fact finder motor vehicle.” See MCL 500.3105(1). held that the plaintiff ’s vehicle was used to determine whether the plaintiff ’s However, PIP benefits are not usually as a “storage space for his personal items” property was of sufficient weight to have paid to insureds for injuries involving and was “merely the site” of the injury. caused the injuries he sustained. parked motor vehicles, unless the insured The majority based its ruling on the can successfully meet the requirements

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Vol. 34 No. 2 • 2017 43 Amicus Report

By: Anita Comorski, Tanoury, Nauts, McKinney & Garbarino, PLLC

The MDTC amicus writers have been busy since our last update, submitting briefs in both the state and federal courts. Three of the recent cases in which the MDTC has participated as amicus are summarized below. Responding to a request for amicus briefing from the Supreme Court inMartin v Milham Meadows I Limited Partnership, the MDTC submitted a brief authored by Jonathan B. Koch of Collins Einhorn Farrell, PC.1 The Supreme Court’s order granted oral argument on the application and requested briefing as to “whether genuine issues of material fact preclude summary disposition on the plaintiff ’s claim that the stairs at issue were not ‘fit for the use intended by the parties’ and that the defendants did not keep the stairs in ‘reasonable repair.’ MCL 554.139(1)(a) and (b).” The Martin case involved the plaintiff ’s slip and fall on the basement stairs in his rented townhouse. The MDTC’s brief noted that “fit for the use intended by the parties” means that the stairs must provide reasonable access to the different levels of the building. The statute does not require perfection, or that the stairs be as safe and accessible as possible, or that the defendant implement additional safety measures. The stairs in question provided “reasonable access” where the plaintiff had indisputably used the stairs on a daily basis without incident for over three years. It is anticipated that the Martin case will be argued before the Supreme Court sometime in the Court’s next term, which begins in the fall. The MDTC filed a brief in the Michigan Court of Appeals in support of the defendant in Henry v Dow Chemical Co, authored by Joseph E. Richotte and Haley A. Jonna of Butzel Long, P.C.2 While this case has an extensive appellate history, the current issue is whether the plaintiffs’ claims are barred by the statute of limitations. The Henry case involves allegations of environmental contamination, with the plaintiffs claiming that the defendant’s discharge of dioxin into the Tittabawassee River from the late 1890’s through the mid-1970’s exposed them to adverse health risks. The plaintiffs sued Dow in 2003. The MDTC’s amicus brief argued that the plaintiff ’s claims are untimely where Michigan’s common law discovery rule was abrogated by the Legislature in 1963. Thus, the plaintiffs’ claims accrued when their property was contaminated, not when the plaintiffs later learned of the contamination or when their property values declined. Addressing the plaintiffs’ alternative argument that the federal discovery rule contained in the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) should operate to preserve their claim, the MDTC’s brief explained that the rule did not save the plaintiffs’ untimely claims. Retroactively resurrecting the plaintiffs’ claims would violate state sovereignty under the Tenth Amendment. Further, even if this discovery rule applied, the plaintiffs were on notice from the late 1970’s of Anita Comorski is a principal the contamination and had a duty to investigate their claims. in the appellate department at Tanoury, Nauts, McKinney The Court of Appeals issued a 2-1 published opinion in this case on June 1, 2017, & Garbarino, PLLC. She affirming the trial court’s denial of summary disposition. The matter is currently is currently a member of pending before the Supreme Court on the defendant’s application for leave to appeal. the State Bar of Michigan Appellate Practice Section, The MDTC took an unusually active role as amicus in a pending federal court Michigan Defense Trial case. Responding to a request for amicus briefing from Judge Arthur J. Tarnow of Counsel, the Michigan Supreme Court Historical the Eastern District of Michigan, relative to a motion for summary judgment. The Society, and the Advocate’s Guild. Ms. Comorski has MDTC submitted a brief in Johnson v Wolverine Human Services, Inc, authored by represented clients in appeals before the Michigan 3 Court of Appeals, the Michigan Supreme Court, and Carson J. Tucker of the Law Offices of Carson J. Tucker. In this case arising under the Sixth Circuit Court of Appeals. 42 USC 1983, at issue was whether a private, non-profit charitable organization and its employees, contracted by the State of Michigan to provide a shelter program to 44 Michigan Defense Quarterly troubled youths, could be considered state the doctrine generally and the possible issues addressed in these cases, members actors for purposes of § 1983. exposure of health care providers licensed are encouraged to visit the brief bank to by the State of Michigan. Daniel Beyer of review the complete briefs filed on behalf Kerr, Russell and Weber, PLC, the newest of this organization. The MDTC’s brief noted that member of MDTC’s amicus committee, “fit for the use intended by contributed to the oral argument on Endnotes the parties” means that the August 31, 2017 before Judge Tarnow. 1 Michigan Supreme Court Docket No. 154360. 2 Michigan Court of Appeals Docket No. stairs must provide reasonable Judge Tarnow took the matter under 328716. access to the different levels advisement and is expected to issue a 3 United States District Court Docket No. 2:15- cv-13856. of the building. written opinion and order. This update is only intended to provide a brief summary of the complex issues addressed in the amicus briefs filed on The MDTC’s brief detailed the latest behalf of the MDTC. The MDTC does Supreme Court jurisprudence on § 1983 maintain an amicus brief bank on its claims. Particular concerns addressed by website accessible to its members. For the MDTC included the expansion of a more thorough understanding of the

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Vol. 34 No. 2 • 2017 45 In Memory of Our Friend and Leader Robert (“Bob”) Krause

Father, Husband, Friend, Lawyer, Leader - Robert (Bob) S. Krause was an outstanding human being, gentleman, and superb lawyer who passed away on July 13, 2017. As a lawyer’s lawyer, Bob was a master with a jury and a major rainmaker at the firm of Dickinson Wright PLLC, where he was a long-time chairperson of Dickinson Wright’s product-liability practice group. During his long and illustrious career, Bob represented the Big 3 automakers in all forms of products liability litigation, including, but not limited to, asbestos matters, as well as representing corporate powerhouses, such as Johnson & Johnson, Bristol Meyers Squibb, and DuPont. Beyond being an outstanding trial lawyer and litigator, Bob also served as a mentor to many attorneys who turned out to be some of the leading trial attorneys, litigators, and judges in and beyond the State of Michigan. Bob was one of the driving forces in establishing the Michigan Defense Trial Counsel in which he served as a long-time board member, officer, and eventually its president. He also received MDTC’s Excellence in Defense Award, which is the most prominently celebrated award of the organization. For nearly 43 years, Bob was also a very active DRI member with his serving as a DRI board member from 1996 through 1998. The very prestigious DRI Louis Potter Lifetime Achievement Award was, in 2006, bestowed upon Bob. Besides his love for the practice of law, Bob was an ardent supporter of his law school alma mater Notre Dame and enjoyed fishing and golf throughout different parts of the world. Needless to say, Bob had a full life, but his greatest enjoyment and pride lied with the times he spent with his wife of 50 years, Terri, and three sons, Kevin, Sean and Jeff, daughters-in-law Paula, Helen, and Robin, and grandchildren Jonathan, Katie, Vivian, Therese, and Alexandria. He is dearly missed by not just his family members, but colleagues and friends whose lives he touched and are left with the many fond memories of his humor, kindness, and warmth.

MEMBER NEWS Work, Life, and All that Matters

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46 Michigan Defense Quarterly Michigan Defense Trial Counsel, Inc. The Statewide Association of Attorneys Representing the Defense in Civil Litigation MEMBER-TO-MEMBER SERVICES

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Vol. 34 No. 2 • 2017 47 MEMBER TO MEMBER SERVICES This section is reserved for the use of MDTC members who wish to make services available to other members. The cost is $75 for one entry or $200 for four entries. To advertise, call (517) 627-3745 or email [email protected].

ALTERNATIVE DISPUTE ADR RESOLUTION ARBITRATION/MEDIATION JOHN J. LYNCH has over 30 years experience in all types of civil litigation. • Negligence He has served as a mediator, evaluator and • Professional Liability arbitrator in hundreds of cases, is certified on the SCAO list of approved mediators • Commercial and has extensive experience with • Contract Disputes • Complex Multi-Party Actions • Negligence and Product Liability • Construction Peter Dunlap, PC • Commercial & Contract Disputes 68 N. Plymouth Street John J. Lynch Pentwater, MI 49449 Vandeveer Garzia, P.C. Phone: 517-230-5014 1450 West Long Lake Road Fax: 517-282-0087 Troy, MI 48098 (248) 312-2800 [email protected] [email protected]

ADR - ARBITRATION/ MEDIATION/FACILITATION Thomas M. Peters has the experience, background and ability to assist you in the arbitration, mediation and resolution of your litigation or claim disputes. • Indemnity and insurance • Construction • Trucking • Commercial and contract disputes • Employment

Thomas M. Peters Vandeveer Garzia, P.C. 840 West Long Lake Road, Suite 600 Troy, MI 48098 (248) 312-2800 [email protected]

MUNICIPAL & APPELLATE PRACTICE EMPLOYMENT LITIGATION: I am one of six Michigan members of the ZONING; LAND USE American Academy of Appellate Lawyers, and have litigated more than 500 appeals. I am available to consult (formally or Over 20 years litigation experience. informally) or to participate in appeals in Employment: ELCRA, Title VII, Michigan and federal courts. Whistleblower, PWDCRA. James G. Gross Land Use Litigation: Zoning; Takings; James G. Gross, P.L.C. Section 1983 Claims. 615 Griswold, Suite 723 Thomas R. Meagher Detroit, MI 48226 Foster, Swift, Collins & Smith, PC 313 S. Washington Square (313) 963-8200 Lansing MI 48933 [email protected] (517) 371-8100 [email protected]

48 Michigan Defense Quarterly MDTC LEADER CONTACT INFORMATION

Officers Board

Richard W. Paul Deborah L. Brouwer Richard J. Joppich President Nemeth Law PC Kitch Drutchas Wagner Valitutti & Sher- Dickinson Wright PLLC 200 Talon Centre Drive, Ste 200 brook 2600 W. Big Beaver Road, Suite 300 Detroit, MI 48207-5199 2379 Woodlake Drive, Ste 400 Troy, MI 48084 313-567-5921 • 313-567-5928 Okemos, MI 48864 248-433-7532 • 248-433-7274 [email protected] 517-381-7182 • 517-381-4427 [email protected] [email protected] Michael I. Conlon Joshua K. Richardson Running, Wise & Ford PLC Vanessa F. McCamant Vice President 326 E. State Street P.O. Box 606 Aardema Whitelaw PLLC Foster Swift Collins & Smith PC Traverse City, MI 49684 5360 Cascade Rd SE 313 S. Washington Square 231-946-2700 •231-946-0857 Grand Rapids, MI 49546 Lansing, MI 48933 [email protected] 616-575-2060 • 616-575-2080 517-371-8303 • 517-371-8200 [email protected] [email protected] Conor B. Dugan Warner Norcross & Judd LLP John Mucha, III Irene Bruce Hathaway 111 Lyon Street NW, Suite 900 Dawda, Mann, Mulcahy & Sadler PLC Treasurer Grand Rapids, MI 49503 39533 Woodward Avenue, Suite 200 Miller Canfield Paddock & Stone, PLC 616-752-2127 • 616-222-2127 Bloomfield Hills, MI 48304 150 West Jefferson Ste 2500 [email protected] 248-642-3700 • 248-642-7791 Detroit, MI 48226 [email protected] 313- 963-6420 • 313- 496-8453 Gary S. Eller [email protected] Smith Haughey Rice & Roegge PC Dale A. Robinson 213 S. Ashley Street Suite 400 Rutledge Manion Rabaut Terry & Thomas Terence P. Durkin Ann Arbor, MI 48104 PC Secretary 734-213-8000 • 734-332-0971 333 W. Fort Street, Suite 1600 Kitch Drutchas Wagner Valitutti & Sher- [email protected] Detroit, MI 48226 brook 313-965-6100 • 313-965-6558 1 Woodward Ave., Ste. 2400 Angela Emmerling Shapiro [email protected] Detroit, MI 48226 Butzel Long PC 313-965-6971 • 313-965-7403 301 East Liberty Street, Suite 500 Carson J. Tucker, JD, MSEL [email protected] Ann Arbor, MI 48104 Law Offices of Carson J. Tucker 248-258-2504 • 248-258-1439 117 N. First Street, Suite 111 Hilary A. Ballentine [email protected] Ann Arbor, MI 48104 Immediate Past President 734-629-5870 • 734-629-5871 Plunkett Cooney Michael J. Jolet [email protected] 38505 Woodward Ave Ste 100 Hewson & Van Hellemont PC Bloomfield Hills, MI 48304 25900 Greenfield Rd Ste 650 R. Paul Vance 313-983-4419 • 248-901-4040 Oak Park, MI 48237 Fraser Treiblock Davis & Dunlap PC [email protected] 248-968-5200 • 248-968-5270 124 W. Allegan Street, Suite 1000 [email protected] Lansing, MI 48933 Madelyne C. Lawry 517-377-0843 • 517-482-0887 Executive Director [email protected] MDTC P.O. Box 66 Grand Ledge, MI 48837 517-627-3745 • 517-627-3950 [email protected]

Vol. 34 No. 2 • 2017 49 MDTC LEADER CONTACT INFORMATION

Regional Chairs Flint: Barbara J. Hunyady Marquette: Jeremy S. Pickens Traverse City: Matthew W. Cross Cline, Cline & Griffin, P.C. O’Dea Nordeen and Burink PC Cummings McClorey Davis & Acho PLC Mott Foundation Building 122 W. Spring Street 400 W. Front Street Ste 200 503 S. Saginaw Street, Suite 1000 Marquette, MI 48955 Traverse City, MI 49684 Flint, MI 48502 906-225-1770 • 906-225-1764 231-922-1888 • 231-922-9888 810-232-3141 • 810-232-1079 [email protected] [email protected] [email protected] Saginaw: Robert Andrew Jordan Grand Rapids: Charles J. Pike O’Neill, Wallace & Doyle P.C. Smith Haughey Rice & Roegge PC 300 Street Andrews Road, Suite 302 100 Monroe Center Street NW Saginaw, MI 48638 Grand Rapdis, MI 49503 989-790-0960 616-458-5456 • 616-774-2461 [email protected] [email protected]’ Southeast Michigan: Joseph E. Richotte Lansing: Michael J. Pattwell Butzel Long PC Clark Hill PLC 41000 Woodward Avenue 212 East Grand River Avenue Bloomfield Hills, MI 48304 Lansing, MI 48906 248-258-1407 • 248-258-1439 517-318-3043 • 517-318-3082 [email protected] [email protected]

MDTC 2017–2018 Committees Nominating Committee: Minister of Fun Quarterly: Future Planning: Hilary A Ballentine James G. Gross Michael J. Cook, Editor Joshua Richardson Matthew A. Brooks Supreme Court Update: Website Committee: Victoria Convertino Social Media: Mikyia S. Aaron Robert Paul Vance Thomas Issac Kari Melkonian Katherine W. Gostek Angela Shapiro Section Chairs: Awards: Scott Pawlak R. Paul Vance Thaddeus E. Morgan, Chair Legal Excellence Awards: Ridley S. Nimmo, II John Mucha, III Hilary A. Ballentine Law Schools: David M. Ottenwess John Mucha, III Catherine M. Hart Regional Chairs: Brian Moore Beth Wittman R. Paul Vance Conor B. Dugan Vanessa McCamant Deborah L. Brouwer Joe Richotte Winter Meeting 2017: Charles Pike Robert Drew Jordan, Chair Angela Shapiro Amicus Committee: Government Relations: Randall A. Juip Carson J. Tucker Graham K. Crabtree Nicholas Ayoub Relationship Committee: Kimberlee A. Hillock Deborah Brouwer John Mucha, III, Chair Nicholas S. Ayoub DRI State Representative: Mike Conlon Jeremy S. Pickens Anita L. Comorski D. Lee Khachaturian Angela Shapiro Irene Bruce Hathaway Annual Meeting 2018: Jeremiach Fanslau Grant O. Jaskulski Past Presidents Society: Gary Eller , Co-Chair Daniel Beyer Edward M. Kronk Mike Pattwell, Co-Chair Firm Sponsorship: Peter J. Tomasek Hilary A. Ballentine Kevin Lesperance Joshua Richardson Richard Paul Nathan Scherbarth Mike Jolet Samantha Pattwell Membership: E-Newsletter Committee: Richard J. Joppich Golf Outing: Barbara Hunyady, Chair Catherine M. Hart Terence P. Durkin, Chair Jeremy S. Pickens Clifford Hammond Dale A. Robinson Robert Drew Jordan Robyn Brooks Michael J. Jolet

50 Michigan Defense Quarterly MDTC LEADER CONTACT INFORMATION

Section Chairs Appellate Practice Insurance Law Professional Liability & Health Care Nathan Scherbarth John C.W. Hohmeier Kevin Lesperance Jacobs & Diemer, PC Scarfone & Geen PC Henn Lesperance PLC 500 Griswold Street Suite 2825 241 E. 11 Mile Road 40 Pearl Street NW Ste 1040 Detroit, MI 48226 Madison Heights, MI 48071 Grand Rapids, MI 49503 313-965-1900 • 313-965-1919 248-291-6184 • 248-291-6487 616-551-1611 • 616-323-3658 [email protected] [email protected] [email protected]

Appellate Practice Insurance Law Professional Liability & Health Care Beth Wittmann Olivia Paglia Daniel John Ferris The Kitch Firm Plunkett Cooney Kerr, Russell and Weber, PLC One Woodward Ave, Ste. 2400 38505 Woodward Ave Ste 2000 500 Woodward Ave Ste 2500 Detroit, MI 48226 Bloomfield Hills, MI 48304 Detroit, MI 48226 313-965-7405 • 313-965-7403 248-901-4058 • 248-901-4040 313-961-0200 • 313-961-0388 [email protected] [email protected] [email protected]

Commercial Litigation Labor and Employment Trial Practice Brian M. Moore Nicholas Huguelet David Ottenwess Dykema Gossett PLLC Nemeth Law PC Ottenwess, Taweel & Schenk, PLC 39577 Woodward Ave Ste 300 200 Talon Centre Drive, Suite 200 535 Griswold St., Ste 850 Bloomfield Hills, MI 48304 Detroit, MI 48207 Detroit, MI 48226 248-203-0772 • 248-203-0763 313-567-5921 • 313-567-5928 313-965-2121 • 313-965-7680 [email protected] [email protected] [email protected]

Commercial Litigation Labor and Employment Trial Practice Samantha Pattwell Clifford Hammond A. Tony Taweel Dickinson Wright PLLC Foster Swift Collins & Smith PC Ottenwess, Taweel & Schenk, PLC 215 S. Washington Square Ste 200 28411 Northwestern Hwy Ste 500 535 Griswold St., Ste 850 Lansing, MI 48933 Southfield, MI 48034 Detroit, MI 48226 517-487-4776 • 517-487-4700 248-538-6324 • 248-200-0252 313-965-2121 • 313-965-7680 [email protected] [email protected] [email protected]

General Liability Law Practice Management Young Lawyers Daniel Cortez Fred Fresard Jeremiah Fanslau Foley Baron Metzer & Juip PLLC Dykema Gossett PLLC Magdich & Associates 38777 6 Mile Road Ste 300 39577 Woodward Ave., Suite 300 17177 N. Laurel Park Drive Ste 401 Livonia, MI 48152-2660 Bloomfield Hills, MI 48304 Livonia, MI 48152 734-742-1800 • 734-521-2379 248-203-0593 • 248-203-0763 248-344-0013 • 248-344-0133 [email protected] [email protected] [email protected]

General Liability Law Practice Management Young Lawyers Anthony Pignotti Thaddeus Morgan Amber Girbach Foley Baron Metzger & Juip PLLC Fraser Trebilcock Davis & Dunlap, P.C. Hewson & Van Hellemont PC 38777 6 Mile Road Ste 300 124 W. Allegan Suite 1000 25900 Greenfield Road Suite 650 Livonia, MI 48152 Lansing, MI 48933 Oak Park, MI 48237 734-742-1800 • 734-521-2379 517-377-0877 • 517-482-0887 248-968-5200 • 248-968-5270 [email protected] [email protected] [email protected]

In House Counsel Municipal & Government Liability Young Lawyers Lee Khachaturian Robyn Brooks Robert Murkowski The Hartford Financial Services Group, Inc City of Detroit Law Dept Miller Canfield Paddock & Stone, PLC 5445 Corporate Drive Suite 360 2 Woodward Ave Ste 500 150 W. Jefferson Ave., Suite 2500 Troy, MI 48098 Detroit, MI 48226 Detroit, MI 48226 248-822-6461 • 248-822-6470 313-237-3049 • 313-224-5505 313-496-8423 • 313-496-8451 [email protected] [email protected] [email protected]

Municipal & Government Liability Ridley Nimmo, II Plunkett Cooney Flint, MI 48502 810-342-7010 • 810-232-3159 [email protected] MDTC Welcomes New Members!

Michael A. Cassar Matthew S. LaBeau Aaron L. Vorce Foster Swift Collins & Smith PC Collins Einhorn Farrell PC Consumers Energy Company

Karen R. Geibel James R. Poll Collins Einhorn Farrell PC Rhoades McKee PC

Lindsey R. Johnson Peter J. Tomasek Maddin Hauser Roth & Heller PC Collins Einhorn Farrell PC

Vol. 34 No. 2 • 2017 51 PRST STD MDTC US POSTAGE PAID P.O. Box 66 LANSING, MI Grand Ledge, MI 48837 PERMIT NO. 1096

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MDTC is an association of the leading lawyers in the State of Michigan dedicated to representing individuals and corporations in civil litigation. As the State’s premier organization of civil litigators, the impact of MDTC Members is felt through its Amicus Briefs, often filed by express invitation of the Supreme Court, through its far-reaching and well-respected Quarterly publication and through its timely and well received seminars. Membership in MDTC not only provides exceptional opportunities for networking with fellow lawyers, but also with potential clients and members of the judiciary.