Negligence Law Section Quarterly Spring 2010

negligence NEGLIGENCE lawLAW sectionSECTION quarterly QUARTERLY WINTERSpring 2010

State Bar of Michigan Negligence LawLaw SectionSection QUARTERLYQUARTERLY

The OfficialOfﬁ cial NewsletterNewsletter ofof thethe StateState BarBar ofof MichiganMichigan NegligenceNegligence LawLaw SectionSection

reRECENTcent evenEVENTSts Spring Meeting, April 29- May 2 Is“You There Need a Difference to Play the Between Game Between Ignorance Las Vegas, Aria Hotel andthe WhiteApathy? Lines”

“TheA fair,difference objective, between hold no grudges ignorance • andAffidavits of apathy.judge frequently I don’t utteredknow and these I simpledon’t care.”Merit must words motion day after motion day. I reasonably could tell by—Samuel the tilt of hisLanghorne head, here itClemens inform op- Jose’ Brown, Representative John Walsh, David comes: “Mr. Brown you must play the p o s i n g Christensen—November 12, 2009 Council Meeting game between the white lines.” Judge counsel of ThomasAging C. lawyers Yeotis wouldmay follow repeat this this time man-- state.the Drug allega- im- Walt Griffin, Ven Johnson & Steve Galbraith linetra to of both ignorance plaintiff to and apathy. defense My counsel career munitytions is of goodmal- trackat motions included for summary another Twaindisposition. gem: The “It for business.practice, not In isquote better has to stuck keep with your me mouth but theshut virtue and the medicalnece s sarily field José T. Brown appearis often stupidlost, especially than to with open the it anddog reeat- therevia is utterpending pre- movedog mentality all doubt.” of Shamethe economy on me. and the statecision legislation and definiteness, to tax doctors. but ratherNational the decline in the legal “profession” but the substance of the malpractice. Negligence law in Michigan has Health Insurance Reform diminishes upswing in personalities and voices due • A physician would be able to sign beento the substantiallylegal “business.” reduced Motions to are a non- fre- Medicaid reimbursement. Michigan’s entity by several forces: FDA approval reimbursementand file their for own physician Affidavit specialties of Meri- Vernon Johnson, Richard Primus, Mark Bernstein quently filed and argued, not because of torious Defense in support of their December 17, 2009 Council Meeting resulting in immunity for drug compa- is not competitive. The Monroe pedia- their merit, but for a multitude of other defense. Sean Carter & Barry Goodman nies,reasons. significant This needs burdens to change. to file product trician makes far less than the Toledo liabilityThere cases, have tort been reform attempts in medical by the counterpart.• Defense counsel Few like would to admit be given this, a malpractice,section board legalto “play decisions the game regarding between but medicinereasonable is timeframealso a “business.” and opportu- These nity to provide an Affidavit of Meri- openthe white and lines.”obvious, In autothe summer accident and injury fall are the reasons for the flight of doc- of 2009, amendments to the Court Rules torious Defense by an independent thresholds, and the “…tion” factors: tors witness.from Michigan. Yet the politicians caseand evalua statutestion were, facilita enactedtion , witharbitra Boardtion, continue to flog the lawyers for driving input to correct the Affidavit of Merit alternative dispute resolution. Two- up the cost of business through exces- difficulties in medical malpractice cas- There have been ongoing motions thirds of civil cases in the state of Mich- sive litigation. The real problem is the es. Most recently during the Christmas filed by both sides of the V up to the 11th iganseason, are the in Section domestic has relations.filed an Amicus These healthhour attacking care/insurance the sufficiency reform of model the no- is Gerry Padilla & Jennifer Grieco observationsBrief in the mandateMcCormick our case section requesting to act nottices sustainable.of intent, the Lawyers lack of precision are the “easyof an December 17, 2009 Council Meeting Todd & Terri Stern tocorrection address the of thepillage Kreiner of negligence decision. Orallaw. wayaffidavit out,” of andmerit, the the public physician buys signing into this an arguments During were heldthe decade Wednesday, of the Janu-‘90s, attack.affidavit in support of their own defense… Iary mostly 13, 2010 listened on McCormick and did .not act. I was gamesMy outsidementor, theEarl white Cline, lines. would Many often of ignorant, too afraid to bite the hand tellthese me, motions “Be careful were craftedwhat you at ask the for; 11th thatAfﬁ davit feeds of me.Merit Tort reform morphed youhour, just after might much get time, it.” cost,As I lookand expenseback at throughProposed several changes revisions, which and our many Sec- thishad past been decade, exhausted. have doctors House been Bill kept 2169 lawyerstion supported failed topublically act or speak and byout meeting on the insponsored the state? by HaveRepresentative drug manufacturers Mark Mead- with Representative Meadows testimony ows addressed these improvements. It is specifics of the reform. The public and been kept in this state? Has tort reform were as follows: hoped these changes will be forthcoming lawyers• Objections were told to tortfaulty reform notices was of neces intent- beento play good the gamefor lawyers between on the both white sides lines. of sary to keep medical malpractice premi- the V? Rhetorical, rhetorical, rhetorical. Steve Galbraith & Todd Tennis must be made on a timely basis. DeniseDecember Janes, 17, 2009 Bethany Council G riffinMeeting and Walt Griffin ums down, to keep the doctors in the ContinuedContinued on on page page 2 2

www.MICHBAR.ORGWWW.MICHBAR.ORG PAGE 1 negligence law section quarterly Spring 2010

State Bar of Michigan Is There a Difference . . . Continued from page 1

Negligence I was criticized by several of my col- Court requesting permanent impair- leagues for my OP-Ed page in the Lan- ment become a jury question in most Council sing State Journal for referencing the instances. The amicus brief addresses public perception of lawyers as “bottom the right to jury trial in light of Kreiner. feeders.” (A copy of this article is pub- Some cases will still require a summary Chairperson lished in full in this publication). I wel- disposition decision. José T. Brown come criticism; it promotes discourse. 503 S. Saginaw, Ste 1000 February/March 2010 Flint, MI 48502 The trial lawyers, both sides of the V, (810) 232-3141 are frequently criticized for frivolous Changes in MCR 2.112 & 2.118 [email protected] litigation. How many times have you regard “fairness” with new time frames heard “the lawyers have to eat, too” or to file objections to NOI’s and the Af- Vice Chair “he who sues my client is my friend”? fidavit of Merit. David E. Christensen, Southfield Frivolous litigation happens, but not on the magnitude that any one lawyer is April 2010 Secretary putting food on the table by collecting Treasurer Tom Waun testifies be- Paul J. Manion, Detroit fees from frivolous lawsuits. I truly before legislature on the “open and obvi- lieve what is good for both sides of the ous” doctrine HB5744. The substance Treasurer of his testimony was to allow access to Thomas W. Waun, Grand Blanc V is good for the public. I cherish an inanimate object: my the jury on factual questions. Ongoing Council desk. I speak with it when troubled. It invitations are regularly extended to Jody L. Aaron, Detroit was Earl Cline’s desk. I have a life estate testify before the legislature on select Mark Bernstein, Farmington Hills with permission of Earl’s three daugh- negligence issues. Without the efforts Ronald F. DeNardis, Mt. Clemens ters. Earl’s desk tells me to be civil; get- of a lobbyist, it’s nearly impossible to Steven B. Galbraith, Detroit ting dirty doesn’t mean wallowing with keep track of legislative sausage in Lan- Jennifer M. Grieco, Southfield the pigs. Earl’s desk tells me to have fun sing. Our efforts should be extended Michael R. Janes, Mt. Clemens to include providing Law School for Vernon R. Johnson, Southfield outside of the practice of law, to pur- sue a hobby with passion; it will make Legislators. After all, over 50 percent David Mittleman, Lansing of the House and Senate will be “new” Gerald V. Padilla, Southfield me a better lawyer. Earl’s desk also tells after November 2010. The State Bar of Michael J. Sullivan, Southfield me, “Don’t get old, don’t get cynical, Michigan will invite our section to be and don’t get apathetic.” “To get some- involved in teaching legislators. Ex Officio thing done, you must act, not react. If Jules B. Olsman, Berkley you don’t get involved you’re part of the May 2010 problem. Rational discourse results in Commissioner Liaison • Negligence Law Section Annual solutions.” Bernhardt D. Christenson III Meeting in Las Vegas, April 29 to This requires an analysis of offer- May 2 Lobbyist ing solutions to very difficult legal con- Todd N. Tennis, Lansing cerns. It is my belief the “Chairperson’s • Second amicus brief in Colianni Agenda” offers an opportunity for dis- and Trentadue at the request of the Editors Michigan Supreme Court. The is- Mark Bernstein, Farmington Hills course and proposes solutions. sue concerns the common law Jody L. Aaron, Detroit I will highlight my “Chairperson’s Agenda” from January 2010 through statute of limitations due to “dis- Executive Director October 2010. The Negligence Law covery” of the murderer in a civil Madelyne Lawry, Grand Ledge Section Board has worked toward solu- action after forensic DNA analysis, [email protected] tions based on rational discourse. several years later.

The views expressed in this newsletter do not • May 26 Medicare Lien II Educa- necessarily reflect the views of the Council or the Holidays 09 and January 2010 tion Seminar. Although the re- Section. This publication does not represent an endorsement of any comments, views, or opinions McCormick amicus brief was drafted porting requirements were recently expressed herein. Any opinions published herein are and filed with the Michigan Supreme extended, this issue is a significant

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Author biographical text formatted here. Author biographical text formatted here. Author biographical text formatted here. Author biographical text formatted here. negligence law section quarterly Spring 2010

problem. Super liens now impact ficacy of a public proposal before the Court to invite us with amicus requests. the defense bar. Michigan Supreme Court. The cost of Although honored by the recent Co- educating younger associates is now the lainni request for an amicus from the June 2010 burden of the firm. Are there any car- Michigan Supreme Court, our section

Thomas M. Cooley Law School riers that will pay for a second chair as- has an obligation to search and file re- invitation to provide a seminar to law sociate? quests for amicus briefs. Justice Marilyn students. Kelly recently discussed the inability of October 2010 the poor and the public to “access the July 26, 2010 Annual Meeting at Amway Hotel, courts” in her State of the Judiciary Ad- Summer Learning Seminar II in Grand Rapids. Fourth learning semi- dress before a joint session of the legisla- nar this calendar year. Query: why is Traverse City. Justice Michael Cavana- ture. Pro bono work, although necessary Michigan only one of four states in the ugh will be honored as a special men- and laudable, doesn’t cut the mustard. Union without MCLE? tor for negligence law attorneys and as a What will our section do to aid in the steadfast defender of the right to a jury access to the courts? Limited access is trial in Michigan. The Negligence Law Section council has the responsibility of acting for its not simply an indigent prisoner request, October 2009–October 2010 members. It is by far SBM’s most active but applies to negligence law. Ongoing proposal for mandatory section. We should not wait for legis- Might I suggest…talk to your desk. continuing legal education. Meetings lators to call us for advice on pending Don’t be a complainer, a whiner, a bel- have been held with Justices Kelly and legislation; most legislators are young, lyacher; this only results in apathy. Be ac- Hathaway of the Michigan Supreme term limited, and don’t look at the big tive, get involved, provide candid, hon- Court; Lynn Chard, director of ICLE; picture. The House and Senate can both est discourse with your colleagues; this and Steve Johnston, head of MDTC, to use our help, not to be political but to promotes solutions. Or do you want the solicit support for MCLE. Janet Welch be fair. We should write the proposed alternative? Some would believe that wis- will attend a Negligence Law Section bills. We should not wait for the Court dom has two parts: having a lot to say board meeting to determine the ef- of Appeals and the Michigan Supreme and not saying it. This invites apathy. Pictures from Las Vegas

May 2010

Ray Horenstein, Mark Bernstein & Mrs. Horenstein Right to Left Brian Koncius and his wife, Pamela Miller, Barry Goodman, Donna McKenzie & Brandon McKenzie.

Paul Manion, Jacqueline Siemion and Ven Mike & Denise Janes Madelyne Lawry, Jacqueline Siemion, and Janette Yano Johnson

www.MICHBAR.ORG PAGE 3 negligence law section quarterly Spring 2010

Kreiner/McCormick Update

By David E. Christensen and Alison F. Tomak Gursten Koltonow Gursten Christensen & Raitt PC

In the months following the Mc- tion, and the Court reversed itself and Cormick v. Allied oral arguments, granted McCormick leave to appeal in many questions have arisen regarding an Order dated August 20, 2009. the Michigan Supreme Court’s forth- During oral arguments held on coming opinion. Will Kreiner be over- January 14, 2010, in Lansing, Mc- turned? If it’s not outright overturned, Cormick’s counsel urged the Court to what can we expect in the McCormick reverse the lower court’s ruling, as Mr. decision? Will Justice Cavanagh’s McCormick had suffered a serious im- Kreiner dissent be adopted? How will pairment of body function. Further, he David E. Alison Faith lower courts apply this new decision? argued, the Court should overrule the Christensen Tomak Kreiner The MSC is expected to issue its deci- decision, as it is a clear example David E. Christensen is a partner at sion in McCormick v. Allied by the end of judicial activism. McCormick’s ar- Gursten, Koltonow, Gursten, Christensen & of the term, which ends in July 2010. guments yielded a variety of questions Raitt, PC and a graduate of the University of Anticipating the answers to these ques- from most of the justices. Justice Rob- Michigan Law School. tions involves looking at the judicial ert Young, who signed on to the Kreiner Alison Faith Tomak is an associate at and legislative events leading up to Mc- majority decision, was perhaps the most Gursten, Koltonow, Gursten, Christensen & Cormick. active, pressing McCormick’s counsel Raitt, PC and a graduate of the University of Detroit Mercy School of Law. Rodney McCormick suffered a se- for a standard he would have imposed You can contact the authors at (248) rious ankle injury when a co-worker if Kreiner were overruled. McCormick 353-7598 or by e-mail at dechristensen@ backed his truck over his ankle. It re- argued that the standard is clearly laid gurstenlaw.com and [email protected] quired two surgeries to repair the in- out in the statute and it needs no fur- jury, and he was restricted from work ther definition from the Court. Justice are required to view the evidence in a for one year. McCormick sued for Elizabeth Weaver, who is known to be light most favorable to the non-moving non-economic damages under MCL a swing vote on the MSC, characterized party, and are prohibited from assessing 500.3135(1). McCormick’s employer the majority opinion in Kreiner as “ju- credibility and resolving questions of moved for summary disposition, claim- dicial activism” in her questioning. fact. These limitations are in place pre- ing that McCormick did not suffer a Recognizing the great importance cisely to protect the venerable right to a serious impairment of body function of McCormick, 12 amicus briefs have jury trial. Section 3135(2)(a) of the No- under Kreiner v. Fischer. The trial court been filed in this case, including a brief Fault Act effectively usurps this right agreed, and McCormick appealed. In supporting McCormick filed by the by requiring the judge to decide cases as a split decision, the Court of Appeals Negligence Section. The Negligence a matter of law even where factual and affirmed the trial court’s decision. The Section’s brief focused on the section credibility issues exist. dissenting judge opined that there was of the no-fault statute that mandates Second, the section’s amicus brief evidence from McCormick’s treating that the judge decide the issue of seri- physicians that McCormick’s life was ous impairment of body function, as argued that Section 3135(2) violates the not “normal” and that he faced the pos- a matter of law. MCL 500.3135. This separation of powers clause of the Con- sibility of future problems. is nearly always a fact-intensive analy- stitution. Summary disposition proce- McCormick appealed the appellate sis, as the Kreiner majority opinion dures contained in MCR 2.116(C)(10), court’s decision. The Supreme Court acknowledged. The Negligence Sec- and the cases decided thereunder, sets initially denied the application for leave tion challenged the constitutionality forth how cases may be disposed of by to appeal in an Order dated October of this statute on a number of grounds. a judge. For example, a (C)(10) motion 22, 2008. Then the composition of the First, the section’s brief argued that the may not be granted if there are mate- Court changed with Justice Hathaway transfer of fact-finding authority from rial questions of fact remaining, or if a defeating Chief Justice Taylor in the jury to judge under MCL 500.3135(2) reasonable juror could rule in favor of election of November, 2008. McCor- (A) is unconstitutional. Judges faced the plaintiff. Section 3135 contradicts mick filed a Motion for Reconsidera- with summary disposition motions with this court rule by relegating to the

PAGE 4 www.MICHBAR.ORG negligence law section quarterly Spring 2010 judge the intensely credible and factual jured persons to satisfy the threshold. special “rocket” docket to handle the questions concerning person’s ability to Kreiner led to a tidal wave of appeals immense number of these appeals. It live his/her normal life. of summary disposition decisions. Un- has since been discontinued due to bud- Finally, the Negligence Section ar- der the previous DiFranco regime, where get constraints. gued that the Kreiner decision should threshold was decided under standard Even a cursory review of post-Kreiner be corrected to eliminate the extra- summary disposition procedures, there plaintiffs shows the unworkability of statutory requirements inserted by the were only forty appeals filed over a ten this decision and the arbitrary results of majority’s opinion. In attempting to in- year period. The threshold was ordinar- having the judge replace the jury. terpret MCL 500.3135(7), the Kreiner ily a jury question. Since Kreiner was Luther v Morris, unpublished opin- Court injected requirements above and decided, the changes have been stag- ion per curiam of the Court of Appeals, beyond those outlined by the statute gering: an examination of 250 unpub- issued January 18, 2005 (Docket No. by requiring that the “course and tra- lished appellate court decisions revealed 244483). Plaintiff missed 52 days from jectory” of a person’s life must be af- 51 decisions in favor of plaintiffs, and work following fractured dominant fected to satisfy the serious impairment 198 in favor of defendants, a whopping arm. She testified that her arm was in threshold. The Court simply added 79 percent favoring defendants. (Am- a sling and she required assistance with (among other factors) a temporal/dura- icus Curiae Brief of the Negligence Sec- most activities for about two months. tional requirement to assist lower courts tion of the State Bar of Michigan at 4). Her left arm was previously weakened. in determining whether a plaintiff has This resulted in the Court of Appeals She recovered in two months. There met the threshold. These stringent judi- being the ultimate fact finder in most of was no evidence of ongoing restrictions. cially-created requirements have made these cases. Many attorneys will recall it exceedingly difficult for seriously -in that the Court of Appeals instituted a Continued on next page

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Kreiner/McCormick Update Continued from page 5

Plaintiff prevailed. with a knee brace eventually, according ion per curiam of the Court of Ap- Guevara v Martinez, unpublished to a doctor. Defendant prevailed. peals, issued July 27, 2006 (Docket No. opinion per curiam of the Court of Ap- Welch v Yuhl, unpublished opin- 268316). Plaintiff suffered a fractured peals, issued May 24, 2005 (Docket ion per curiam of the Court of Ap- back at T-12 and required a back brace No. 260387). Plaintiff, a dishwasher, peals, issued April 18, 2006 (Docket for six months to restrict movement. He suffered a torn rotator cuff and dislocat- No. 266637). This 14-year-old boy missed approximately nine and a half ed shoulder. Plaintiff required a shoul- had a deeply lacerated hand which months of work. Plaintiff could not play der immobilizer of the dominant arm damaged several tendons, a blood ves- football or hunt. Defendant prevailed. and five months of physical therapy. He sel and nerve. Reconstructive surgery Turk and Stoner v Dula, unpub- was off work for five months with ther- was performed on his hand. Medical lished opinion per curiam of the Court apy. No serious impairment was found. restrictions were in place for only two of Appeals, issued April 10, 2007 Defendant prevailed. months, and physical therapy was com- (Docket No. 273424). Defendant pre- Cook v Hardy, unpublished opinion pleted in four months. There was tes- vailed. Stoner, an 81-year-old plaintiff, per curiam of the Court of Appeals, is- timony of residual pain and weakness underwent a knee replacement and sued February 24, 2005 (Docket No. in his hand, but there were no ongoing shoulder surgery. Plaintiff quit her job 250727). This student suffered a frac- physician-imposed restrictions. Plain- due to the pain, but she did not obtain tured fibula, which was casted six to tiff prevailed. a doctor’s note, so it was not considered eight weeks. She missed a vacation and Jones v Wheelock, unpublished opin- by the Court. was medically restricted on carrying ion per curiam of the Court of Appeals, These cases appear irreconcilable. items while recovering. She could not issued April 25, 2006 (Docket No. They demonstrate the arbitrary nature resume some activities, such as com- 258974). Pedestrian high school stu- of the Kreiner and 3135(2)(a) procedure, pleting an independent study course, dent was stuck by car resulting in torn and reaffirm the wisdom of the Found- for six months. Plaintiff prevailed. knee ligaments. Reconstructive surgery ing Fathers’ firm belief in the jury sys- Swick v Okorn, unpublished opinion was required. She was unable to walk tem. It is the best way to determine per curiam of the Court of Appeals, is- without assistance for one month. Phys- credibility and facts, bar none. sued November 1, 2005 (Docket No. ical therapy was required for 10 weeks. The status of Michigan no-fault 263478) . Plaintiff injured his cervical She was disabled from work for three law is dire. A review of the Michigan spine and required neck surgery by a months. She had residual pain when neurosurgeon. Plaintiff was off work standing or walking, and occasional Constitution and court rules reveals from December 2003 to August 2004. swelling. She dropped out of marching an equally troubling reality: MCL The plaintiff had ongoing restrictions band and basketball due to the injury. 500.3135 is an unconstitutional affront from working on ladders or roofs, an Defendant prevailed. to the venerable right to jury trial. If the integral part of his job as a masonry Hill v Keller, unpublished opinion arguments seem esoteric, the numbers estimator. Plaintiff was also medically per curiam of the Court of Appeals, are not: Kreiner has resulted in the dis- restricted from “strenuous” activities. issued January 23, 2007 (Docket No. missal of 79 percent of victims’ lawsuits. Defendant prevailed. 269084). Plaintiff suffered a fractured It is one of the primary missions Gagne v Schulte, unpublished opin- fibula, fractured pinky finger, concus- of the Negligence Section to preserve ion per curiam of the Court of Appeals, sion, lacerations and deep vein throm- the public’s right to a jury trial: both issued February 28, 2006 (Docket No. bosis, a life-threatening condition. plaintiffs and defendants. We respect 264788). Plaintiff lost one year of work Plaintiff was off work for three months. Michigan’s tri-partite governmental due to her torn anterior cruciate liga- There was residual pain and numbness system. We believe that judges should ment and medial meniscus, which was in plaintiff’s right leg, which was objec- not be permitted to legislate from the surgically reconstructed. She had re- tively confirmed by an electromyogram bench, and the legislature must respect sidual instability in the knee. Plaintiff (EMG). Consequently, the plaintiff the Constitution when making law. It was restricted from recreational activi- could not water ski or play pool, per is our hope that the decision handed ties such as gymnastics, roller blading, self-restrictions. Defendant prevailed. down by the McCormick Court this ice skating. She possibly could perform Conklin v Shack, unpublished opin- summer will comport with these values.

PAGE 6 www.MICHBAR.ORG negligence law section quarterly Spring 2010

Question No. 1 in ERISA Analysis: Do You Have a “Plan” That Falls Under the Act?

By Troy W. Haney Haney Law Firm

In recent articles, I have addressed After most broadly defining the cri- Troy W. Haney, Haney the substantive issues surrounding both teria for a qualifying plan, ERISA then Law Firm Grand a participant’s claim to benefits under immediately turns via its Section 3, 29 Rapids, Michigan. He an ERISA-governed employee benefit U.S.C. § 1003(b), to listing five specific is a graduate of Cal- plan, and an insurer’s opposing claim exceptions where the act does not apply: vin College and the seeking to be reimbursed for benefits (b) The provisions of this University of Detroit tendered out of any third-party recov- subchapter shall not apply to any Law School. He is an ery that the participant/insured might employee benefit plan if— Executive Board mem- obtain. Based on inquiries that these ber of the Michgian Troy W. Haney articles have prompted, I appear to have (1) such plan is a govern- Association for Justice begun the discussion a bridge or two mental plan; and has been featured in the Best Law- downstream, and should now specifi- (2) such plan is a church yers in America, 12th ed. He practices in cally paddle back and address the initial plan; the areas of employee benefit law; short- “gatekeeping” inquiry as to whether a (3) such plan is maintained term and long-term disability insurance particular benefits plan and its funding solely for the purpose of litigation; ERISA-governed long-term insurance policy are, in fact, governed complying with appli- disability, health care and pension plan by ERISA, and, therefore, entitled to cable workers ‘compen- litigation; serious and catastrophic au- the statute’s broad preemption of oth- sation laws or unem- tomobile negligence; wrongful death, erwise potentially applicable state law. ployment compensation complex civil litigation in state and In its Section 2, 29 U.S.C. § 1002, or disability insurance federal courts. Contact information: ERISA broadly states the act’s intention laws; Haney Law Office, PC, 330 East Ful- to apply to each and any “employee wel- (4) such plan is maintained ton, Grand Rapids, MI 49503, (616) fare benefit plan” which is “established outside of the United 235-2300. E-mail: thaney@troyhaney- or maintained” by “an employer…or States primarily for the law.com. employee organization” or both, “to the benefit of persons sub- stantially all of whom extent” that the plan is maintained for from ERISA those “payroll practices” are nonresident aliens; the “purpose of providing for its par- whereby an employer self-funds out of or ticipants or their beneficiaries, through its general assets certain benefits that (5) such plan is an excess the purchase of insurance or otherwise” otherwise would fall under the broad benefit plan…and is benefits in the form of “medical, surgi- foregoing definition. Most typical by unfunded. cal or hospital care” arising out of “sick- far in this regard is a prescribed period ness, accident, disability [or] death….” Section 3(b), with its listing of these of “short-term” disability, usually six As a comprehensive and reticulated act five exceptions, is typically referred to months, which is designed to coincide expressly designed to protect Ameri- by the courts as the ERISA “safe har- with the “elimination period” of the cans’ retirement income, the statute bor” provision. Obviously, government employer’s insurer, whose “long-term” indisputably covers pensions, annui- plans and church plans are the most disability coverage then kicks in under ties, and deferred compensation ves- significant docking bays in the safe har- the terms of the applicable policy and is sels almost without exception, but also bor, while the other three exceptions, controlled by ERISA. has been applied with virtually equal although much less frequently encoun- Relative to the above-cited defini- breadth by every federal circuit to long- tered, at least bear noting. tion of “employee welfare benefit plan,” term disability, health insurance and Moreover, in addition to the act the seminal opinion of the federal life insurance benefit claims, which, al- itself, an administrative regulation courts on point was the en banc opin- though not “retirement” vessels express- adopted by the Department of La- ion of the Eleventh Circuit in Donovan ly, fall equally within the above-recited bor pursuant to the act’s authority, 29 v. Dillingham, 688 F.2d 1367 (11th Cir. statutory definition. C.F.R. § 2510.3, specifically excludes Continued on next page

www.MICHBAR.ORG PAGE 7 negligence law section quarterly Spring 2010

Question No. 1 . . . Continued from page 7

1982), in which the court laid down the attorneys should resist falling prey to (b) intending to benefit employ- required ingredients for an ERISA plan, labeling, as employers and insurers have ees? including: (1) identification of intended broadly undertaken to weave the “plan” benefits, (2) identification of intended and “policy” into one document, and If all answers are “yes,” ERISA ap- beneficiaries, (3) a source of funding, use the two labels interchangeably. plies and controls; if any answer is and (4) a procedure for obtaining bene- In short summary, combining the “no,,ERISA does not apply. fits. TheDonovan court went on to state statutory definition with the Donovan Now, if the above seems arcane, at- that while the mere purchase of insur- formulation yields what may be written tenuated, or just plain too boring to ance by the employer does not itself cre- as an equation: follow, I offer the following shortcut to ate a plan, it is evidence of the existence ERISA described benefits + quickly determine whether or not an of a plan, and that while a mere decision “established or maintained” + insurance “policy” or “plan” falls under to extend benefits does not constitute a ongoing maintenance = Plan. ERISA. The website freeerisa.com is a plan, the implementation of that deci- terrific resource. With only the name of sion is what typically becomes the plan. In Meredith v. Time Ins. Co., 980 the employer, you can go to this website th The Donovan test was subsequently ad- F.2d 352, 355 (5 Cir. 1993), the court and search for all ERISA filings. If the opted in every circuit (see, e.g., Brown characterized the analysis via a decision plan you are looking for is not listed, v. Ampco-Pittsburgh Corp., 876 F.2d 46 tree: you should be immediately suspicious (6th Cir. 1989)), and the federal courts (1) Does a plan exist? about whether you are looking at an have almost universally ruled that the (2) Does it fall outside the “safe har- ERISA plan or simply a state governed failure to follow all formalities will bor” [and, I add, outside “payroll insurance contract. Of course, the gen- not itself prevent a plan from being a practice”]? eral rule is that if the insured does not plan under ERISA, and as long as the (3) Was it “established or main- work for a governmental entity or reli- Donovan elements are met, a plan ex- tained” gious organization, it’s likely an ERISA ists. In this regard, claimants and their (a) by an “employer” plan.

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PAGE 8 www.MICHBAR.ORG negligence law section quarterly Spring 2010

If It’s Broken It Needs Fixing No Fault Insurance Threshold Needs to be Repaired By José T. Brown, Chairperson of the Negligence Law Section

The Negligence Section of State Bar Law Section believes charging the judge constitution’s guarantee of a right to of Michigan is a practice section com- with finding facts and judging cred- trial by jury. prised of an equal number of plaintiff ibility concerning serious impairment Beware; while this section advo- and defense attorneys practicing neg- of body function violate the Constitu- cates the right to jury trial, every de- ligence law. The Negligence Law Sec- tion, and Kreiner’s interpretation of the fendant would still have the right to tion strives to protect the public’s right serious impairment threshold greatly seek summary disposition or dismissal to jury trials, to enhance the practice exceeds what the legislature intended. of the case where there is no material of negligence law among its members These factors combine to threaten the dispute as to facts and when reasonable and the greater Bar, and conducts edu- integrity of the jury system and judicia- minds cannot determine that the injury cational functions for its members and ry. The issues raised in the McCormick threshold has not been met. The frivo- the public. case have dire concerns for our system lous cases deserve dismissal. Judges will Although trial lawyers maintain of civil justice among practitioners of continue to dismiss frivolous cases. The the public’s perception as being “bot- automobile negligence, no-fault law, changes requested in McCormick will tom feeders,” our section represents and most importantly the citizens of not promote frivolous cases for the bot- both injured parties and defendants. the state of Michigan. tom feeders. As such, the Negligence Section is very It is the position of the Negligence The Kreiner decision has altered the directly concerned with the outcome of Law Section that in 1995, the Michigan statutory definition of serious impair- the McCormick case, a recent Michigan legislature passed MCL 500.3135(2)(a), ment of body function found at MCLA Supreme Court case. McCormick most amending the 1972 act which trans- 500.3135(7); it injected a temporal/ importantly affects the public’s right to ferred the primary fact-finding function durational requirement that is not in jury trial under the Michigan constitu- of the jury to the judge in a case of de- the statute. Kreiner also added an extra tion. termining serious impairment of body statutory requirement that a person’s The No-Fault Act contains provi- function. In the whole of Michigan impairment “affects the person’s gener- sions that, as interpreted by the Krein- jurisprudence the Negligence Law Sec- al ability to lead his or her normal life” er case, seriously threaten the right to tion has been unable to find other in- to require that the persons impairment jury trial and have resulted in a system stances of the abrogation of the primary completely prevent him/her from lead- of justice that is producing arbitrary jury function in favor of the judge, in ing his/her normal life. “Affecting” and results. Judges are now charged with non-governmental cases, where there “preventing” are very different terms. performing the functions traditionally are material questions of fact on an ul- Kreiner needs to be fixed. reserved for the jury. The Negligence timate issue. This violates the Michigan

Outstanding Achievement Award Will be Presented to Justice Michael F. Cavanagh

The Negligence Law Section of the State Bar of Michigan proudly confers this Out- standing Achievement Award upon Justice Michael F. Cavanagh for his long and distinguished service on the Michigan Supreme Court. The Award will be presented on July 25, 2010, at the Annual Summer Meeting at Turtle Creek Casino in Williamsburg, Michigan.

Justice Michael F. Cavanagh

www.MICHBAR.ORG PAGE 9 negligence law section quarterly Spring 2010

Negligence Law Section Northern Michigan Council Events

Barbeque – Sunday, July 25, 2010 Turtle Creek Casino & Hotel 7741 M-72 East Williamsburg MI 49690 231-534-8880 6:00 p.m. – 7:30 p.m. $126/room

Golf *Arcadia Bluffs Golf Club – Monday, July 26, 2010 3224 Bischoff Road Arcadia, MI 49613 800-494-8666 Tee Times Start at 9:00 a.m. Golf is limited to 55 players. $155/person, includes range balls, green fees --18 holes, and cart

Date______

First Name______Last Name______

Guest______

Firm______

Address______

Phone______Fax______

Email______

❑ Please register me for the Barbeque on Sunday, July 25, 2010 @ Turtle Creek Casino & Hotel. For room reservations call 231-534-8880.

❑ Please register me to play golf on Monday, July 26, 2010 @ Arcadia Bluffs.

*All golfers must provide a valid credit card to use in the event of a late cancellation or no-show. All credit card numbers will be secured and only used if the golfer does not cancel prior to July 14, 2010 or does not show up on July 26, 2010. Please sign and complete the following information and return to the Negligence Council office to confirm your registration. The Negligence Council is authorized to process my credit card if I do not cancel my golf reservation by July 14, 2010, or do not appear on July 26, 2010.

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Please return form to: Negligence Council, PO Box 66, Grand Ledge, MI 48837 or fax to 517-627-3950. For questions, call 517-622-8106, or send an email to [email protected] Revised 1-26-10

PAGE 10 www.MICHBAR.ORG negligence law section quarterly Spring 2010

Congratulations to Kathleen L. Bogas Earl J. Cline Award 2010 Earl J. Cline Award Winner This award is presented in recognition of his/her superb skills Kathleen L. Bogas is a past president of the Michi- as a judge/attorney in the field of gan Association for Justice and immediate past president negligence law and dispute resolution. of the National Employment Lawyers Association. She It shall be the purpose of this organization: served as chairperson of the Negligence Council in 1991- To PRESERVE THE JURY SYSTEM AND promote the fair and just 1992, is current co-chair of the Judicial Qualifications administration of negligence law. Committee of the State Bar of Michigan, a member of To advance professional and ethical Kathleen L. Bogas the Judicial Crossroads Task Force Business Impact Com- standards on the part of negligence law practitioners. mittee, and a member of the Judicial Advisory Commit- To preserve and promote trial tee for Senators Stabenow and Levin. advocacy skills in the practice of negligence law. Kathy has been inducted into the American College of Trial Lawyers and To ENCOURAGE ATTORNEYS is also a member of the College of Labor and Employment Lawyers and the TO ENTER THE FIELD OF American Board of Trial Advocates. In 2001 she was awarded the Respected NEGLIGENCE LAW. Advocate Award from the Michigan Defense Trial Counsel. She has been To Recognize by way of awards and scholarships excellence in tort law listed in the Best Lawyers in America since 1989, being named the Top Labor and outstanding contribution to the practice of the profession. and Employment Lawyer in the Detroit Area for 2010 and one of the Top Ten Prior Recipients: Lawyers in Michigan in Super Lawyers since 2006. Kathy is one of the edi- 2003—Honorable Michael L. Stacey tors of Federal Employment Litigation and Employment Litigation in Michigan, 2004—Samuel A. Garzia 2005—Frank W. Brochert a contributing author to Introducing Evidence, and she has written numerous 2006—George J. Bedrosian 2007—Honorable Pat Donofrio articles and given presentations on many areas of law throughout the country 2008—Honorable Robert J. Colombo, Jr. as well as teaching trial advocacy in trial institutes. Ms. Bogas can be contacted 2009—George Googasian 2010—Kathleen L. Bogas at (248) 502-5000 and [email protected].

Invite someone to join the section

http://www.michbar.org/sections/pdfs/app_03v2_exst.pdf

www.MICHBAR.ORG PAGE 11 negligence law section quarterly Spring 2010

CELEBRATING THE 55TH YEAR OF THE NEGLIGENCE COUNCIL WE SALUTE OUR PAST CHAIRPERSONS 2008-2009 Jules B. Olsman 1981-1982 Clifford H. Hart 2007-2008 Thomas M. Peters 1980-1981 David M. Tyler 2006-2007 Barry J. Goodman 1979-1980 Sherwin Schreier 2005-2006 Robert P. Siemion 1978-1979 Robert G. Chaklos, Sr. 2004-2005 Cynthia E. Merry 1977-1978 Arnold M. Gordon 2003-2004 Judith A. Susskind 1976-1977 William D. Booth 2002-2003 Timothy H. Knecht 1975-1976 George J. Bedrosian 2001-2002 David R. Getto 1974-1975 John A. Kruse 2000-2001 Victor L. Bowman 1973-1974 James W. Baker 1999-2000 Timothy J. Donovan 1972-1973 Kenneth S. Halsey 1998-1999 Linda M. Galbraith 1971-1972 Richard B. Baxter 1997-1998 Carol A. McNeilage 1970-1971 David V. Martin 1996-1997 Lamont E. Bufﬁ ngton 1969-1970 Eugene D. Mossner 1995-1996 Janet M. Brandon 1968-1969 Richard A. Harvey 1994-1995 Joseph G. Lujan 1967-1968 Saul M. Leach 1993-1994 Paul A. Rosen 1966-1967 Thompson Bennett 1992-1993 Walter P. Grifﬁ n 1965-1966 Charles R. MacLean 1991-1992 Kathleen L. Bogas 1964-1965 Robert E. Rutt 1990-1991 J. Michael Fordney 1963-1964 The Hon. Cornelia G. Kennedy 1989-1990 George T. Sinas 1962-1963 Ivin E. Kerr 1988-1989 Robert G. Russell 1961-1962 William J. Weinstein 1987-1988 Thomas D. Geil 1960-1961 Marcus L. Plant 1986-1987 Robert N. Hammond 1959-1960 A.D. Ruegsegger 1985-1986 Charles J. Barr 1958-1959 Thomas W. Finucan 1984-1985 Richard J. McClear 1957-1958 Kenneth J. Stommel 1983-1984 James A. Tuck 1956-1957 Carl Gussin 1982-1983 Ronald E. Westen 1955-1956 Leroy G. Vandeveer

PAGE 12 www.MICHBAR.ORG negligence law section quarterly Spring 2010

INSURANCE COVERAGE ADVISOR: Finding Insurance Coverage: Reading the Policy

By Hal O. Carroll Vandeveer Garzia, PC

The area of insurance coverage is have to look further, in the section of Hal O. Carroll is a long on theory and a lot of it is abstract, the policy entitled “Who Is an Insured” founder and the chair- but finding and proving coverage is an or something like that. Don’t forget the person of the Insurance intensely practical exercise that comes endorsements. There may be a “Blanket and Indemnity Law down to some basics. Here are some Additional Insured Endorsement,” or a Section of the State Bar steps and suggestions to guide plaintiff’s “Vendor’s Endorsement,” or some varia- of Michigan. He is a counsel in assisting in the search for tion on that theme. chapter author of Michi- coverage. Is the risk a covered risk? The next gan Insurance Law and Hal O. Carroll step is to read the policy’s “insuring Practice, published by Getting the documents agreement” to see if the claim falls with- ICLE, and has lectured Get the whole policy, and get it in the language. Like the first question, and written many articles in the areas certified. Don’t rely on the defendant- this is usually an easy one to answer. Li- of insurance coverage and indemnity. insured’s file copy (if the defendant even ability policies are obviously different He can be reached at hcarroll@VGp- has one). And don’t ever rely on a copy from property policies, although it is cLAW.com or hcarroll@chartermi. from the insurer unless it is certified. possible to confuse them. There was a net, or (248) 312-2909. Even then, be skeptical. case where a defendant-insured claimed Get the underwriting file. The un- he was covered under a property dam- earth and explain what it is really about. derwriting file may contain informa- age policy because, he argued, money is Read the conditions. Liability poli- tion about the insured’s activities that property, and if I lose the lawsuit and cies all have conditions, things that the might cast some light on what risks the pay the judgment, I’ll have less money, insured must do or must avoid doing insurer knew its insured was facing, and therefore I’ll suffer property dam- that can affect coverage. These are pretty and that knowledge might help estab- age. Maybe a clever argument, but not straightforward items, and don’t usually lish coverage. a good one. create a problem. They include things Get the claim file. Of course, the Does an exclusion apply? A liabil- like giving notice to the insurer and co- claim file will be redacted to take out ity policy makes a broad, general grant operating in the defense. discussions of the insured’s liability ex- of coverage and then carves out certain Looking for pay dirt. So much for posure, but what you want are any com- risks through the exclusions. So once the basics. There are several principles ments such as “the claim appears to be you know that the defendant is an in- that should guide you when you are covered.” sured and that the particular risk is going through these steps. Your goal is within the policy’s insuring agreement, to find coverage, so you should keep in Reading the policy the next step is to go through the ex- mind some basic ideas. Separate the questions. Evaluating clusions. It helps, when you are reading Don’t assume that a policy is tightly coverage under a policy can be confus-  exclusions, to try to understand more written. The standard forms, such as ing, but you can reduce the confusion than just the words themselves. What is those from the Insurance Services Of- by asking the right questions, one at a the real-world intent of the exclusion? fice, are carefully written, but many time and in order. Don’t ask, “Is there What kinds of events is the insurer try- are not. The peculiar way that policies insurance for the claim?” That just mix- ing to remove from coverage? This is are written may make them appear to es separate questions together. Reading where textualism falls short and “con- be impregnable just because they are a policy is tedious, so pour yourself a textualism” should rule. Ultimately, the impenetrable. But they may well have cup of coffee and start plodding. specific words will control, but it helps flaws. This is especially true for manu- Is the defendant an insured? Does to be able to explain (to the opposition, script forms. this defendant meet the policy’s descrip- and ultimately to the judge) what the Manuscript forms. A “manuscript tion or definition of someone who is purpose of the exclusion is. Precisely be- form” is just a form that the insurer covered? This might be a simple ques- cause insurance policies are so intricate itself wrote. Writing insurance forms tion, because the answer may be right and so strangely written, it helps to be on the declaration pages. Or you might able to bring the language back down to Continued on next page

www.MICHBAR.ORG PAGE 13 negligence law section quarterly Spring 2010

2010 Michigan Supreme Court Election to be Pivotal

By Todd Tennis Captiol Services, Inc.

In 2008, in an unprecedented elec- Democratic nominees on many legal is- Todd N. Tennis has tion, Chief Justice Clifford Taylor was sues. Even more notably, she sided with been a lobbyist with defeated in his bid for another eight- them in the selection of current Chief Capitol Services, year term on the Michigan Supreme Justice Marilyn Jean Kelly. Therefore, Inc., a multi-client Court. Taylor lost to challenger Diane despite the fact that Republican nomi- lobbying firm that Hathaway (at the time a Wayne County nated justices are still in the majority on represents nonprofit Circuit Court Judge) by garnering over the high court, the election of Justice 1.85 million votes against Justice Tay- Hathaway created a philosophical sea organizations, since Todd Tennis lor’s 1.48 million. It has been exceed- change. 1995. Before becom- ingly rare for an incumbent Michigan The independence of Justice Weaver ing a lobbyist, Todd earned a degree in Supreme Court justice to be defeated at has set the stage for what promises to political science from the University of the ballot box, so rare that few thought be another unprecedented race for the Michigan and worked as a staff repre- it even possible. Justice Hathaway’s Michigan Supreme Court. She and fel- sentative for former State Senator Fred victory has caused a wholesale reexami- low Republican-nominated Justice Rob- Dillingham. He has represented the nation of the politics surrounding the ert Young both stand for reelection this Negligence Law Section of the State highest court in Michigan. year. Justice Young will most certainly Bar since 1999. Todd lives in Lansing. Though the races are technically garner one of the Republican nomina- non-partisan, candidates for the court tions for the Supreme Court. However, preme Court justice) is Wayne County are typically nominated by the Demo- due to Justice Weaver’s well-publicized Circuit Judge Mary Beth Kelly. Judge cratic and Republican parties at their rift between herself and her fellow Re- Kelly was initially appointed to the Cir- conventions. publican justices, it is highly unlikely cuit Court in 1999 by Governor John The defeat of Chief Justice Taylor that her party will again nominate her. Engler, and she was re-elected in 2002. sent shockwaves through Michigan’s As an incumbent, Justice Weaver has She was the center of some controversy legal and political framework. The bal- the ability to self-nominate. Therefore, in 2007 after she supported privatizing ance of power on the court shifted per- she will likely be on the ballot regardless Friend of the Court operations. How- ceptibly. The loss reduced the majority of what takes place at the State Republi- ever, controversy or not, her stance on of Republican nominees from 5-2 to can Convention in August. the management of public employees 4-3. However, one of those Republican The name Republicans are floating will likely only bolster her conservative nominees—Justice Elizabeth Weaver— around to take her place as a Republi- credentials, which will help her at the has shown a tendency to side with the can nominee (and, they hope, as a Su- Republican convention in August.

Insurance Coverage Advisor Continued from page 13

(policies and endorsements) is a tedious riod. Failure to report timely can defeat until 2003. The insurer said the claim and difficult process, and insurers who coverage without the insurer having to was not reported as required. The in- write their forms in-house can some- show prejudice. The policy in question sured responded that when it reported times make serious errors. Here is an said on page 2 that the insured “must the claim in 2003, that was when the example from experience. The insurer report the claim in the year in which the claim was “made” as defined in the pol- issued a claims-made policy. A basic claim was made.” Nothing remarkable icy. Of course this meant that all claims requirement of claims-made coverage, there. But on page 7, back in the defini- were timely under the policy, which is a and the main thing that distinguishes tions section, it said “A claim shall be pretty silly way to write a policy. But the it from occurrence-based coverage, is deemed to be ‘made’ when the insured insurer caved in and accepted coverage. that the insured has to report the claim reports it to the Company.” The insured in the policy year, or a short grace pe- was sued in 2001, and did not report it

PAGE 14 www.MICHBAR.ORG negligence law section quarterly Spring 2010

2010 Michigan Supreme . . . New Trust Account Overdraft Notice Rule Takes Effect Continued from page 14 September 15, 2010

On the Democratic side, several in- New Rule 1.15A of the Michigan Rules of Professional Conduct, also dividuals have expressed an interest in known as the Trust Account Overdraft Notice Rule (TAON), takes running, though only a few have made effect on September 15, 2010. To review Rule 1.15A in its entirety, visit that interest public. The large number MRPC 1.15A (http://www.michbar.org/opinions/ethics/TAON.pdf) of potential applicants is a stark contrast to recent years when running against an A brief summary of the requirements of the TAON Rule is provided below: incumbent Supreme Court justice was • Before the effective date of the TAON Rule, financial institutions doing business in Michigan must submit a signed agreement to the generally considered a lost cause. Justice State Bar of Michigan to obtain approval to maintain lawyer trust Hathaway’s victory in 2008 has changed accounts as defined by MRPC 1.15(a). the calculus and sparked much broader enthusiasm for the task. There have even • Lawyers must confirm that their financial institutions are on the list been reports that the Democratic Party of approved financial institutions posted on the State Bar’s website. leadership is speaking with some Repub- • No further action is required by lawyers for their preexisting IOLTA lican judges who have expressed an inter- accounts; these accounts have already been identified as lawyer trust est in running as a Democratic nominee. accounts by financial institutions when opened by lawyers. Of the multiple potential Demo- • After confirming that their financial institution is on the State Bar’s cratic challengers, two have been most list, lawyers must contact their financial institutions to change the public in their desires to run. Ironically, name on their non-IOLTA accounts to include the term “trust” or similar to Justice Hathaway and poten- “escrow” if not already included in the account name. tial Republican nominee Mary Beth • After confirming that their financial institution is on the State Bar’s Kelly, they would both be running from list, lawyers may download a form (Non-IOLTA Lawyer Trust Ac- their positions as Wayne County Circuit count Notice to Financial Institution) from the State Bar’s website Court judges. Judge Deborah Thomas and submit the completed form to their approved financial institu- and Judge Robert Colombo have both tions for each non-IOLTA trust account and must send a copy to the expressed a desire to be nominated by State Bar. the Democratic Party, and have actively • Lawyers must continue to safeguard client and third-party funds been seeking support of Democratic in- held in trust to avoid all overdrafts to their IOLTA and non-IOLTA terest groups. accounts. What may make their task more dif- • Approved financial institutions maintaining lawyer trust accounts ficult is the possibility that the Demo- must submit overdraft reports within five banking days of any crats will only nominate one person to overdrafts to the grievance administrator of the Attorney Grievance run for Supreme Court this year, rather Commission. than two. If they were to do so, not only • The State Bar is in the process of communicating with financial would it be a tacit nod to Justice Weaver, institutions to invite their participation in the TAON program. The it would also allow the Democrats to fo- State Bar expects to begin receiving signed TAON agreements from cus all their efforts on unseating Justice financial institutions in May and will begin posting its list of approved Young. Moreover, there is a chance that financial institutions at that time. The State Bar will update the list the Democrats may choose to endorse of approved financial institutions as signed TAON agreements are a Supreme Court candidate as early as received from financial institutions. Lawyers should wait until the April, which would be yet another un- name of their financial institution appears on the State Bar’s list of precedented development in what is approved financial institutions before submitting a completed non- shaping up to be a highly unusual race. IOLTA notice form.

www.MICHBAR.ORG PAGE 15 SBM non-profit State Bar of Michigan u.s. postage paid lansing, mi Michael Franck Building Permit no. 191 306 townsend street Lansing, MI 48933-2012

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IN THIS ISSUE Is There a Difference Between Ignorance and Apathy?...... 1 Kreiner/McCormick Update...... 4 Question No. 1 in ERISA Analysis: Do You Have a “Plan” That Falls Under the Act?...7 If It’s Broken It Needs Fixing: No Fault Insurance Threshold Needs to be Repaired...... 9 Outstanding Achievement Award...... 9 Congratulations to Kathleen L. Bogas 2010 Earl J. Cline Award Winner...... 11 Finding Insurance Coverage: Reading the Policy...... 13 2010 Michigan Supreme Court Election to be Pivotal...... 14

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