One Court of Justice

After their house was severely damaged by fire, policyholders hired an insurance adjuster to assist in presenting their claim to the insurance company.  The adjuster was to be paid ten percent of the total insurance payment.  When a dispute developed with the insurer, the policyholder demanded an appraisal under MCL 500.2833(1)(m).  The policyholder selected the adjuster as its “competent and independent” appraiser under the statute.  The insurance company objected, saying the contingency fee contract prevented the adjuster from being “independent.”  In White v. State Farm Fire & Cas. Co., No. 298083, the Court of Appeals disagreed, holding that a contingency-fee agreement does not prohibit an appraiser from being independent.  To be independent, the appraiser must be free of actual control by either party, but the appraiser need not be disinterested.  The court also concluded that the statute does not violate the insurance company’s due-process rights, because appraisers and are not required to be impartial and are not considered to be quasi-judges.  Judge Shapiro concurred to emphasize that each party expects an appraiser to support and advocate its client’s position during the appraisal process, and a requirement that an appraiser be disinterested would bring the appraisal mechanism to a “screeching halt.”

In People v. Strickland, No. 298707 (July 28, 2011), the Michigan Court of Appeals affirmed the defendant’s convictions of first-degree home invasion, assault with intent to do great bodily harm less than murder, felon in possession of a firearm, felonious assault, and possession of a firearm during the commission of a felony.  The defendant had sought reversal on three grounds: improper refusal to appoint new counsel, insufficient evidence, and violation of double jeopardy.  The Court rejected the defendant’s arguments. Read more »

In an opinion authored by Justice Markman, the Supreme Court held, in People v Huston, No. 141312 (July 26, 2011), that the trial court properly assessed 15 points under OV 10, which is appropriate when a defendant has “engaged in predatory conduct to exploit a vulnerable victim.”  Predatory conduct is defined by statute to mean “preoffense conduct directed at a victim.”  In this case the defendant was armed, concealed and lying in wait at night in an empty parking lot.  The majority reasoned that the defendant’s preoffense conduct does not need to be aimed toward a specific victim in order to be predatory, and a victim can be made vulnerable by the very nature of the defendant’s conduct alone.  Justice Hathaway authored an opinion concurring in part and dissenting in part.  Justice Hathaway agreed that a victim’s vulnerability should not be limited to inherent or personal characteristics, but dissented on the ground that 15 points should be assessed only when preoffense conduct was directed at one or more specific victims.  Justice Cavanagh also authored a dissent.  Justice Cavanagh would require a victim’s vulnerability to be based on the victim’s personal characteristics, and would require that the preoffense conduct be directed at a specific victim.

In People v. Kowalski, No. 141695 (July 26, 2011), the Michigan Supreme Court reviewed Edward Kowalski’s convictions for accosting a minor for immoral purposes or encouraging a minor to commit an immoral act, under MCL 750.1451, and using a computer and internet to accomplish the same, under MCL 750.145d.  The Court held that although the trial court failed to properly instruct the jury as to the actus reus of the accosting a minor statute, this error was not outcome-determinative.  After further holding that defendant was not denied the effective assistance of counsel and that sufficient evidence was produced at trial to support the jury’s verdict, the Court reversed the judgment of the Court of Appeals and reinstated defendant’s convictions. Read more »

In People v Bonilla-Machado, No. 140510, the Michigan Supreme Court addressed three issues on appeal, reversed the judgment of the Court of Appeals in part, and remanded for resentencing.  First, the Court held that the defendant was not coerced into foregoing his right to testify.  Second the Court held that for the purpose of calculating sentencing variable OV 13, a felony statutorily designated as “a crime against public safety” cannot also be considered a “crime against a person.”  Third, the Court held that the trial court erred by stating that it was “bound by law” to enhance defendant’s maximum sentences because enhancement is discretionary.  Justice Hathaway authored the majority opinion.  Justice Markman authored a concurring opinion in order to address the dissent, and Chief Justice Young authored an opinion concurring in part and dissenting to the scoring of OV 13. Read more »

On July 26, 2011, the Court of Appeals released its opinion in People v Zajaczkowski, No. 295240.  The Court affirmed defendant’s conviction for first-degree criminal sexual conduct under MCL 750.520b(1)(b)(ii), finding that the defendant was related by blood to the victim as a matter of law.  The victim was the daughter of defendant’s mother’s ex-husband, a man long believed to be defendant’s biological father until genetic testing revealed otherwise.  The court further held that defendant lacked standing to challenge the legal presumption that he was the legitimate son of his mother’s ex-husband, which arose because he was conceived and born during their marriage. Read more »

Through Judge Gleicher’s published opinion in Karmol v Encompass Property and Casualty Co, No. 298366, the Court of Appeals unanimously concluded that a plaintiff was not entitled recover statutory attorney fees and interest in a claim against a no-fault insurer where that plaintiff had not incurred any covered expense.  In this case, plaintiff’s son was injured in an auto accident.  Initially, the relevant expenses were covered by plaintiff’s ERISA health plan.  However, the health plan ultimately sought subrogation from the applicable no-fault insurer.  Eventually, based on the clauses in the ERISA Plan and the no-fault policy, in conjunction with applicable law on the priority of payments, the no-fault insurer recognized it was primarily responsible for the expenses and settled with the ERISA plan.  In the meantime, plaintiff also brought suit against the no-fault insurer seeking a declaration of responsibility and statutory interest and attorney fees.  The insurer moved for summary disposition on the grounds that plaintiff was never obligated to pay any of her son’s expenses, and thus was not damaged.  The trial court denied the motion, but the Court of Appeals disagreed, finding that as there was no record evidence to suggest that plaintiff was responsible for a single covered expense, her claim against the insurer could not be sustained.

On Monday, July 25, 2011, the Michigan Supreme Court denied 119 applications for leave to appeal and 12 motions for reconsideration.

In In re Application of Michigan Consolidated Gas Company, Nos. 298830, 298887, the Michigan Public Service Commission (“PSC”) had decided to allow the Michigan Consolidated Gas Company (“Mich Con”) to use an uncollectable expense true-up mechanism (“UETM”) and to charge ratepayers over $5 million to support the Low-Income and Energy Efficiency Fund (“LIEEF”).  The Court of Appeals affirmed the use of the UETM, but held that the PSC did not have authority to approve the collection of funds for the LIEEF.

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In Redmond v Van Buren County, No. 297349, the Court of Appeals reversed a lower court order dismissing the plaintiffs’ claim of an easement by prescription or private dedication, holding that both the plaintiffs and defendants were entitled to access the disputed land under a common law rule recognizing private dedication.

The plaintiffs were property owners in a subdivision on Lake Michigan.  The subdivision was broken up into multiple blocks, with each block divided into lots.  The only access to the entire subdivision was through a locked gate located on four lots at the south end of the subdivision (the “Gate Lots”).  The plaintiffs’ property was located within the subdivision and required the plaintiffs to travel through the Gated Lots to access their property. In 1956, the Gated Lots were conveyed to the Sand Haven Voluntary Association (“Association”).  Only Association members had a key to the gate, and thus membership in the Association was required in order to access any of the properties in the subdivision.  A property owner could become a member of the Association by purchasing property from an Association member, or by paying an initiation fee.  When the plaintiffs purchased their property, they were given a key to the gate, but were never asked to become Association members and never paid any Association dues.  Eventually an electronic gate was installed, but plaintiffs did not receive the code or a remote to open it.

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