No-fault mini-tort limit increased

At-fault drivers face increased liability in small claims court for damages not covered by the other driver’s no-fault insurance policy.

The no-fault act’s so-called mini-tort limit will increase from $500 to $1,000 under PA 158 of 2012, MCL 500. 3135(3)(e), signed into law yesterday by Gov. Rick Snyder.

The law also provides that mini-tort damages cannot be assessed if the damaged vehicle was being operated without the required insurance coverage.

Under MCL 500.3135(4), in a mini-tort action for damages:

(a) Damages shall be assessed on the basis of comparative fault, except that damages shall not be assessed in favor of a party who is more than 50% at fault.

(b) Liability is not a component of residual liability, as prescribed in section 3131, for which maintenance of security is required by this act.

(c) The action shall be commenced, whenever legally possible, in the small claims division of the district court or the municipal court. If the defendant or plaintiff removes the action to a higher court and does not prevail, the judge may assess costs.

(d) A decision of the court is not res judicata in any proceeding to determine any other liability arising from the same circumstances that gave rise to the action.

(e) Damages shall not be assessed if the damaged motor vehicle was being operated at the time of the damage without the security required by section 3101.

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In their opinions

“To now raise, as a last ditch argument, unsubstantiated and generalized notions of racial animosity into an otherwise unremarkable trial is both improper and unwarranted, and hopefully will not be presented to this Court again.”

– Michigan Court of Appeals Judge Christopher M. Murray, concurring in the unpublished per curiam decision of McMillan v. Davis.

John McMillan fell down the basement stairs of property he rented from Dwayne L. Davis. At the resulting trial, just about everything except the medical bills was an issue.

There was a dispute about the origin and extent of McMillan’s shoulder problems. The evidence suggested a prior shoulder injury unrelated to the fall.

McMillan’s claimed wage loss was thrown into question when he testified about his hourly rate and hours worked. He fell in May 2006 but did not file a 2006 tax return because he had no income. A medical leave request to his employer indicated he was able to work.

A hospital record from before the fall indicated that McMillan wanted to relocate to Tennessee. Davis testified that McMillan told him the same thing. McMillan denied making the statement and said he left the state because he couldn’t find work after his accident.

McMillan testified that his shoulder hurt him constantly, especially during the winter and that he had difficulty sleeping on his shoulder because it ached.

The jury listened to all of this and came back with a verdict that equaled McMillan’s medical bills. No pain and suffering. No lost wages.

No way, said McMillan, who moved for JNOV or a new trial on the theory that if there were medical bills, there must have been pain and suffering to go along with them. The verdict is inconsistent, he said.

Not so, said the Court of Appeals. In the lead opinion, Judge Patrick M. Meter, citing Kelly v Builders Square, Inc., 465 Mich. 29 (2001), explained that

the jury may have concluded that [McMillan’s] “subjective experience[ ]” was insufficient “to prove pain and suffering,” … or may have found that his testimony on the issue lacked credibility.

Well, what about those lost wages? That’s also a matter of credibility, said Meter.

As with the prior assertion of error … the jury could have discredited plaintiff’s testimony on the issue of wage loss and concluded that, in light of countervailing evidence, he had not adequately established an evidentiary basis for such an award.

Something was going on the jury room, McMillan insisted.

McMillan provided two affidavits from one of his trial-court attorneys. From Murray’s concurring opinion:

The first affidavit indicates that the affiant and defense counsel spoke to three members of the jury and, in response to a question about why non-economic damages were not awarded to the plaintiff, the three jurors stated something to the effect that they did not believe any party or any of the witnesses. Based on this, the affiant concluded that “the jurors were clearly biased against both parties and all witnesses in this case and showed definite animus.”

That affidavit was followed by an affidavit from co-counsel for plaintiff, who simply stated that, to the best of his recollection, all of the impaneled jurors were white, and that all but one of the witnesses and parties were black.

So let’s get to the punchline, said Murray.

[W]hat is presented is an argument that because a black plaintiff did not get all the damages he requested at trial from an all-white jury, the jury must have acted with racial animus.

However, an argument premised upon post-verdict conversations with several jurors about their thought processes is precluded by the law … while this specific and unsubstantiated argument can only detract from the public’s respect for our bedrock system of trial by jury … .

There is no argument made, and therefore no evidence presented, to suggest that the jurors acted in any manner other than how they were instructed to decide this case by the trial court. And, as noted by the majority opinion, the law squarely rejects the other arguments plaintiff has made in an attempt to overturn the verdict.

To now raise, as a last ditch argument, unsubstantiated and generalized notions of racial animosity into an otherwise unremarkable trial is both improper and unwarranted, and hopefully will not be presented to this Court again.

Judge Jane M. Beckering concurred in the result. The case, she said, was a “hotly contested” credibility contest from start to finish.

While the jury ultimately found that defendant’s negligence proximately caused plaintiff damages, there was much dispute over both the origin and extent of plaintiff’s shoulder problems … .

Paying due deference to the jury’s role in assessing credibility and weighing the evidence with respect to plaintiff’s pain and suffering associated with the fall at issue … I cannot find that the trial court abused its discretion in denying a new trial under the particular facts of this case.

MSC reinstates defamation award against pastor and church

“You shall not bear false witness against your neighbor.”
The Bible
Exodus 20:16 (New King James Version)

David R. Williams is the pastor of Mount Hope Church and International Outreach Ministries in Lansing.

It’s what some would call a megachurch: a large, architecturally impressive building with an ample parking lot; flags representing almost every nation on the planet flapping beside a main entrance; a congregation numbering in the thousands and an ambitious outreach ministry.

Williams and his church have had their share of controversy.

A few years back, the church bought the same time slot on the same day on all of Lansing’s major television stations. This was done so Williams could preach to a presumably wide audience about “end time.” This strategy was well-received by some and not by others, who were upset that Williams had pre-empted the game shows and situation comedy reruns they usually watched.

In 2008, backers of gay and lesbian marriages, angered by the church’s stance on such matters, protested during a Sunday service. This prompted a pair of Lansing lawmakers, including one who represents the district where the church is located, to introduce legislation dealing with disrupting church services.

More recently, the legal aftermath of a religious practice involving a member of the congregation played itself out in the courts.

From the Michigan Court of Appeals in Dadd v. Mount Hope Church:

In July 2002, plaintiff was a member of Mount Hope … .

During religious gatherings at Mount Hope, Williams sometimes asks congregants “if they would like to give their lives to Jesus and they come down [to the altar]. You’ve seen it in the Billy Graham crusades … . That’s an altar call.” During altar calls, Williams and other assigned ministers of Mount Hope pray over the congregants who approach the altar. Sometimes, congregants who answer the altar call fall to the ground, a phenomenon referred to as “slain in the spirit.” …

Williams testified that congregants do not regularly fall during an altar call, but plaintiff testified that she may have been “slain in the spirit” over 100 times. Sometimes plaintiff would fall to the ground and other times she would not fall.

Evidence was presented “that ushers were regularly provided during altar calls to catch congregants that fell while being prayed over.”

Dadd took part in a leadership rally at the church. There was an altar call. Dadd answered it.

While being prayed over by an assistant minister, she was “slain in the spirit,” fell backward and struck her head on the floor. Plaintiff sustained a head injury, the seriousness of which was in dispute.

Dadd’s medical bills began to add up and she asked the church for help.

Sir Thomas Browne once observed that charity begins at home. But insurance coverage, a Mount Hope representative told Dadd, ends at $5,000. Dadd sued for negligence. Where was the usher who was supposed to catch me?, she asked.

After the suit was filed, Dadd heard some interesting hearsay. A friend said that her sister-in-law said that Williams said “some things that weren’t very nice” about Dadd at another leadership rally. From the COA’s opinion in Dadd:

After summarizing the events surrounding plaintiff’s fall and noting that plaintiff refused to fill out insurance forms, Williams indicated that “it almost makes you want to think that this was a design. That this, this was a premeditated design – but I can’t say for sure, and I don’t know… .”

Plaintiff testified that she felt hurt by Williams’ comments. [Later], Williams wrote a letter and sent it to the members of the “120-prayer group.” The 120-prayer group is a group of 50 Mount Hope members that pray daily for Williams. In the 120-prayer group letter Williams explained, “what I believe,” and without mentioning plaintiff’s name, (though he admitted at trial the 120-prayer group letter was about plaintiff) he indicated that the church had received warnings about plaintiff being “trouble,” implied plaintiff was malingering, and that she was attempting to commit insurance fraud.

When Dadd got wind of this, she amended her complaint to add counts for intentional infliction of emotional distress, false light, slander and libel.

Before trial, Williams argued that his comments about Dadd were protected by a qualified privilege — the “shared interest” privilege, which “extends to all bona fide communications concerning any subject matter in which a party has an interest or a duty owed to a person sharing a corresponding interest or duty. The privilege embraces not only legal duties but also moral and social obligations.” See, Rosenboom v. Vanek, 182 Mich. App. 113 (1989).

The trial court declined to so instruct the jury. The jury specifically found that Williams had “knowledge that the statement was false or … act[ed] with reckless disregard as to whether the statement was false.” The jury assessed damages for Dadd: $40,000 for her negligence claim; $23,750 for her false-light claim; $200,000 for her libel claim and $50,000 for her slander claim. The trial court tacked on $3,505.68 in various taxes, costs and fees.

The COA reversed in part. As to the negligence claim, an usher should have been standing by for Dadd, the COA ruled.

Williams made it clear to the congregants that ushers were trained to catch persons who fall during an altar call. Significantly, plaintiff alleges that an usher specifically solicited her participation in the altar call. This usher then directed her to a specific place before the altar where a specific minister would pray over her. A person in plaintiff’s position could reasonably conclude that the usher who positioned her for this altar call would also guard her through the process.

But as to the intentional tort claims, the COA said all of those must be retried because the court should have instructed about qualified privilege.

Last week, the MSC reinstated the entire judgment on a 5-2 vote.

The trial court properly instructed the jury on false light invasion of privacy, which included an instruction that “plaintiff must prove by a preponderance of the evidence that the defendant must have known or acted in reckless disregard of the falsity of the information and the false light in which the plaintiff would be perceived.”

The jury found that the defendant acted with malice in making the statements which were the same ones alleged to have been defamatory. Because this finding of malice negates the qualified privilege that may exist in the context of the plaintiff’s claims for libel and slander, any error by the trial court in failing to instruct the jury on a qualified privilege for plaintiff’s libel and slander claims is harmless.

Justice Stephen Markman, joined by Justice Maura Corrigan, dissented.

Malpractice damage caps touted in health care reform debate

Medical malpractice costs are getting more attention in the health care debate, despite studies that show capping jury awards in malpractice cases would do little to lower health care spending, according to a story by Maureen Groppe of Gannett’s Washington Bureau, published in this morning’s Lansing State Journal.

Thirty-six states – including Michigan – already limit the compensation patients can get for medical errors.

But the issue is popular with doctors and Republicans and has been cited as a way to bring Democrats and Republicans closer on health care reform.

“I have a real difficult time understanding why liability reform is not on the table,” said Dr. Kenneth Elmassian, an anesthesiologist from the East Lansing area who is on the board of the Michigan State Medical Society. “As a practitioner, I know people do practice defensive medicine … just to kind of cover yourself.”

Republican lawmakers have long touted federal tort reform as way to bring down health care costs.

“For too long, trial attorneys have looked at doctors as ATM machines and have filed countless frivolous lawsuits,” said Rep. Candice Miller, R-Harrison Township. …

Studies show that limiting such awards slows growth in the cost of medical malpractice insurance for doctors.

But lower malpractice insurance rates would have a “very modest” impact on doctors’ fees and would reduce total health care spending by less than 0.2 percent, according to the nonpartisan Congressional Budget Office.

State gets child-murderer’s pension

The Muskegon Chronicle reports that a Muskegon judge has awarded most of child-murderer Dean Catlin Metcalfe’s pension money to the state, to reimburse taxpayers for some of the cost of keeping Metcalfe in prison until he dies.

The order from 14th Circuit Judge James M. Graves Jr. earlier this month

ends a lawsuit by the state treasurer seeking the bulk of the killer’s past and future pension checks from CMS Energy. Metcalfe gets a $263 monthly check deposited into his prison account from CMS, formerly Consumers Power, where he worked as a mechanical repairman. …

Earlier, Graves ruled that the estate of Metcalfe’s murder victim, Andre Bosse, has no legal right to the pension money. That ruling was not disputed by the victim’s mother, Linda Bosse, whose attorney conceded the state’s argument that a December 1997 judgment awarding all of Metcalfe’s assets to the victim’s estate was no longer in effect because more than 10 years had passed without its being enforced.

What’s in a number?

One million (1,000,000). This a delusion-based figure representing the number of dollars in a “Pray (sic) For Damages” included in a pro se prisoner’s civil rights complaint that crossed my desk during my clerkship with U.S. Magistrate Judge Hugh W. Brenneman, Jr. in the Western District of Michigan. The inmate’s gripe, as I recall, had something to do with the quality of the bedding in his cell.

One billion, gagillion, fafillion, shabolubalu million illion yillion (numeric symbols unknown). This is a gag-based figure representing the number of yen contained in Dr. Evil’s ransom demand to the world in the movie “Austin Powers in Goldmember.” Quick side note for the uninitiated: Dr. Evil is frozen in the 1960s and thawed out in the late 90s. The movie characters zip between the two decades via time travel. Dr. Evil is bent on destroying the world unless his demands for cash are satisfied. Dr. Evil’s first ransom demand after he is defrosted is $1 million (laughably small by 1997 standards). In a later movie, he time-travels to the 60s and demands $100 billion (that kind of money simply wasn’t around back then).

Five trillion, eight hundred seventy eight billion, four hundred ninety nine million, eight hundred fourteen thousand, one hundred eighty six and one-half (5,878,499,814,186.5). This is a reality-based figure representing the number of miles a beam of light travels in a year – the light-year. Astronomers use this number to measure unfathomable interstellar distances. Proxima Centauri, the star closest to Earth, is 4.3 light-years away.

Three quadrillion, fourteen trillion, one hundred seventy billion, three hundred eighty nine million, one hundred seventy six thousand, four hundred ten (3,014,170,389,176,410). This is a frustration-based figure representing the amount of a claim filed against the U.S. Army Corps of Engineers for the failure of flood walls and levees following Hurricane Katrina on Aug. 29, 2005.

The Associated Press reports that

Of roughly 489,000 total claims, the U.S. Army Corps of Engineers said it has received 247 for at least $1 billion apiece, including the one for $3 quadrillion. …

Some residents may have grossly exaggerated their claims to send a message to the corps, which has accepted blame for poorly designing the failed levees. …

Little is known about the person who claimed $3 quadrillion. It was filed in Baker, 93 miles northwest of New Orleans. Baker is far from the epicenter of Katrina’s destruction, but the city has a trailer park where hundreds of evacuees have lived since the storm.

And it’s not just residents who are seeking astronomical figures. The Big Easy itself has a claim pending for $77 billion. Area-wide, insured losses are estimated at $60 billion and Gulf Coast states are looking at a $125 billion bill.

The claims cut-off was Aug. 29, 2007 but the Corps says claims are still being filed – 100 or so in the last three weeks.

Some of the numbers may be fanciful but they sure don’t lie.

They’re still hurting out there, folks.