The Michigan Supreme Court has scheduled oral arguments to be heard in 12 cases on Wednesday and Thursday, January 12 and 13, remotely via Zoom. All oral arguments will be livestreamed from the MSC YouTube Channel at www.youtube.com/user/MichiganCourts.
The schedule of arguments is posted on the Supreme Court’s oral arguments web page (www.courts.michigan.gov/ courts/supreme-court/schedule-of-oral-arguments).
The brief accounts below may not reflect the way that some or all of the court’s seven justices view the case. The attorneys may also disagree about the facts, issues, procedural history, and significance of this case.
For further details, contact the attorneys.
Wednesday, January 12
Morning Session – 9:30 a.m.
161836
Pennie Marie Davis (attorney, Mark Granzotto)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Jackson - McBain, J)
Jackson Public Schools (attorney, Timothy Mullins)
Defendant-Appellant.
The plaintiff, a school teacher, reported to the police that she had been assaulted by a student and obtained a personal protection order (PPO) against the student. The plaintiff filed a lawsuit against the defendant for violation of the Whistleblowers’ Protection Act (WPA), alleging that the defendant unlawfully retaliated against her for reporting the assault to the police and obtaining the PPO. Following a trial in Jackson Circuit Court, a jury returned a verdict in favor of the plaintiff. Under the WPA, MCL 15.362, an employer shall not discharge, threaten, or discriminate against an employee “because of” protected activity. At trial, the defendant asked the trial court to instruct the jury that “because of” means that the plaintiff would not have been retaliated against but for her protected activity. But the trial court instructed the jury that “because of” means that protected activity must be one of the motives or reasons the defendant threatened or retaliated against the plaintiff. On appeal, the defendant argued that the trial court erred in using the motivating-factor causation standard instead of a but-for causation standard. The Court of Appeals affirmed the trial court in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether causation, in cases brought under Section 2 of the Whistleblowers’ Protection Act, MCL 15.362, is determined using a motivating-factor standard or instead a but-for standard.
162076
Dean McMaster (attorney, Sima Patel)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Oakland CC - Matthews - C.)
DTE Energy Company and Ferrous Processing and Trading Company, d/b/a Ferrous Processing & Trading Co., Defendants, and DTE Electric Company (attorney, Timothy Diemer)
Defendant-Appellee.
The plaintiff sustained an injury to his leg during the course of his employment as a truck driver when a large pipe rolled out of a container of scrap materials that had been loaded at the defendant’s facility. The plaintiff sued the defendant, alleging negligence in the loading of the scrap container and in failing to warn him of the improperly loaded container. The trial court granted the defendant’s motion for summary disposition, and the Court of Appeals affirmed in an unpublished opinion, holding that the defendant did not have a duty to warn or protect the plaintiff from a known danger. The Supreme Court vacated the part of the Court of Appeals opinion addressing the defendant’s common law duty on the basis that the Court of Appeals erred in applying the open and obvious doctrine to an ordinary negligence case. On remand, the Court of Appeals, in an unpublished opinion, once again affirmed the grant of summary disposition in favor of the defendant, holding that the enactment of MCL 480.11a abrogated the defendant’s common law duty of ordinary care to the plaintiff. The Court of Appeals alternatively held that the defendant did not owe a duty to the plaintiff under the “shipper’s exception.” The Supreme Court has granted leave to appeal to address: (1) whether the enactment of MCL 480.11a abrogated the defendant’s common law duty of ordinary care with respect to loading cargo for transport by a commercial motor vehicle operated by the plaintiff; and (2) whether the defendant owed a duty to the plaintiff under the “shipper’s exception.” See United States v Savage Truck Line, Inc, 209 F2d 442, 445 (CA 4, 1953).
157738
People of the State of Michigan (attorney, James Benison)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Kent CC – Leiber, D.)
Demariol Dontaye Boykin (attorney, Randall Karfonta)
Defendant-Appellant.
In 2003, a jury convicted the defendant of first-degree premeditated murder and felony-firearm for a homicide that he committed when he was 17 years old. The trial court sentenced the defendant to life without parole (LWOP) for the murder conviction and a consecutive 2-year term for the felony-firearm conviction. In 2016, the defendant was resentenced on the murder conviction to 40 to 60 years under MCL 769.25a after the prosecutor declined to seek a LWOP sentence. In People v Wines, 323 Mich App 343 (2016), rev’d in nonrelevant part 506 Mich 954 (Mich, 2020), the Court of Appeals held that sentencing judges should consider attributes of youth accounted for in Miller v Alabama, 567 US 460, 477-478 (2012), when imposing a term of years sentence for a defendant who committed a homicide as a juvenile. Wines had not been decided at the time of the defendant’s resentencing. The Court of Appeals affirmed the defendant’s sentence in a 2-1 unpublished opinion, with the dissenting judge opining that the sentencing judge had not applied Miller and had not had the opportunity to apply Wines. The Supreme Court has ordered oral argument on the application to address: (1) whether the Court of Appeals correctly held in People v Wines, 323 Mich App 343 (2018), rev’d in nonrelevant part 506 Mich 954 (2020), that trial courts must consider the distinctive attributes of youth, such as those discussed in Miller v Alabama, 567 US 460 (2012), when sentencing a minor to a term of years pursuant to MCL 769.25a; (2) if Wines was correctly decided, whether sentencing judges have an obligation to explicitly set forth their analysis of how the defendant’s age impacted their sentencing discretion when proceeding under MCL 769.25a or MCL 769.25; and (3) if Wines applies to this case, whether the trial court complied with its requirements, and if it did not, what more the court was required to do.
158695
People of the State of Michigan (attorney, Amanda Smith)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Wayne CC – Cox, K.)
Tyler Maurice Tate (attorney, Andrew Clopton)
Defendant-Appellant.
In 2017, a jury convicted the defendant of first-degree premeditated murder and other offenses. Because the defendant was 16 years old at the time of the shooting and the prosecutor did not seek to have him sentenced to life without parole (LWOP), he was subject to a maximum prison term of not less than 60 years and a minimum term of not less than 25 years or more than 40 years for the murder conviction. MCL 769.25(4), (9). The trial court sentenced the defendant to 40 to 60 years. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the Court of Appeals correctly held in People v Wines, 323 Mich App 343 (2018), rev’d in nonrelevant part 506 Mich 954 (2020), that trial courts must consider the distinctive attributes of youth, such as those discussed in Miller v Alabama, 567 US 460 (2012), when sentencing a minor to a term of years pursuant to MCL 769.25a; (2) if Wines was correctly decided, whether sentencing judges have an obligation to explicitly set forth their analysis of how the defendant’s age impacted their sentencing discretion when proceeding under MCL 769.25a or MCL 769.25; and (3) if Wines applies to this case, whether the trial court complied with its requirements, and if it did not, what more the court was required to do.
162094
Lesley Meyers, PR of the Estate of Samuel Corrado (attorney, Mark Granzotto)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Macomb - Maceroni, J.)
Karen Rieck, Radi Gerbi, R.N., Jessica Johnson,
L.P.N., Beaumont Nursing Home Services, Inc., and Pinehurst East, Inc.,
Defendants,
and
Shelby Nursing Centerjoint Venture, d/b/a Shelby Nursing Center (attorney, Alyssa Dechow)
Defendant-Appellee.
Samuel Corrado was admitted to the defendant nursing home. The plaintiff (Samuel Corrado’s estate) alleges that a nurse was negligent in failing to comply with a standing order that directs nurses to immediately report to a physician if a patient experiences more than one episode of emesis (vomiting) within 24 hours. The plaintiff moved to amend the complaint to add the nurse’s noncompliance with the standing order to an existing ordinary negligence claim. The defendant moved for summary disposition, arguing that the claim sounded in medical malpractice. The trial court ruled in the plaintiff’s favor, concluding that the claim sounded in ordinary negligence because the standing order created a mandatory requirement that did not involve medical judgment. In a published opinion, the Court of Appeals held that the claim sounded in medical malpractice and that the standing order could not be relied on as evidence of the standard of care. Therefore, the Court of Appeals reversed the trial court’s order denying the defendant’s motion for summary disposition and remanded the case to the trial court for further proceedings. The Supreme Court has ordered oral argument on the application to address: (1) whether the proposed claim based on a violation of the standing order sounds in medical malpractice or ordinary negligence; and (2) whether evidence of the standing order is admissible at trial.
Wednesday, January 12, 2022
Afternoon Session – 12:30 p.m.
162692
Buddy A. Lewis, Sr., Deceased, (attorney, Nathan Miller)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(WCAC - Magistrate)
Lexamar Corp, Zurich American Insurance Co.and Gallagher Bassett Services (attorney, Leonard Hickey)
Defendants-Appellees.
At the time of his death, Buddy Lewis was employed by defendant LexaMar Corp., an automotive trim factory in Boyne City. LexaMar offers its employees an education assistance/tuition reimbursement benefit. In 2013, Lewis enrolled in Kirtland Community College’s Magnatronics program, and LexaMar agreed to pay the entire tuition for the program. Lewis completed three semesters in the Magnatronics program, but then switched to the college’s Welding and Fabrication program. On September 9, 2015, while driving from LexaMar to his class, Lewis collided with a tractor-trailer. Lewis was killed and his wife filed a petition for workers’ compensation benefits. LexaMar opposed the benefits. At trial, the primary issue was whether Lewis’s death arose out of and in the course of his employment. At the hearing before the magistrate, Lewis’s wife testified that LexaMar wanted Lewis to attend the college classes and that LexaMar promised Lewis a pay raise upon completion of the college program. LexaMar presented testimony that it did not promise Lewis a pay raise or a promotion upon completion of the college program, and that Lewis was only encouraged to enroll in the Magnatronics program. The magistrate issued an opinion granting workers’ compensation benefits to Lewis’s estate, concluding that Lewis’s death arose out of and in the course of his employment with LexaMar. The Michigan Compensation Appellate Commission affirmed, but the Court of Appeals reversed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether Lewis’s injuries arose out of and in the course of his employment with LexaMar such that LexaMar is required to pay compensation under MCL 418.301(1). See Smith v Chrysler Group, LLC, 331 Mich App 492, 497-498 (2020); Larson,
162332-3
Denise Doster, (attorney, Kevin Kelly)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Saginaw - Trice, M)
Covenant Medical Center, Inc., (attorney, Timothy Cary)
Defendant-Appellee.
The plaintiff had been employed in the defendant’s human resources department for many years and was more than 60 years old when she applied for a different position in that department. The defendant hired a younger person for the job, and the plaintiff sued the defendant for age discrimination in violation of the Elliott-Larsen Civil Rights Act. The trial court denied the defendant’s motion for summary disposition and, following a jury trial, the trial court entered a judgment in favor of the plaintiff for $540,269 and subsequently awarded the plaintiff $83,057 in attorney fees. The Court of Appeals, in an unpublished opinion, reversed the judgment, vacated the attorney fee award, and remanded the case to the trial court for entry of a judgment in favor of the defendant, holding that the trial court should have granted the defendant’s motion for summary disposition. The Supreme Court has ordered oral argument on the application to address whether, when reviewing the record existing at the time the trial court ruled on the defendant’s motion for summary disposition and when that record is construed in the plaintiff’s favor, the evidence was sufficient to permit a reasonable trier of fact to conclude that age discrimination was a motivating factor in the defendant’s hiring decision and that its stated explanation was mere pretext for unlawful discrimination. See generally Hazle v Ford Motor Co, 464 Mich 456 (2001). In particular, the Court ordered the plaintiff to address any inferences arising from evidence that the hiring manager may have focused on job candidates’ respective ages, that there were irregularities in the candidate scoring system, and that the defendant’s stated rationale for its hiring decision varied from its originally-posted job description. See, e.g., Krohn v Sedgwick James of Mich, Inc, 244 Mich App 289, 298 (2001) (considering the probative value of “stray remarks”); George v Youngstown State Univ, 966 F3d 446, 466 (CA 6, 2020) (recognizing that “evidence suggest[ing] irregularities with the search process ... can raise a genuine issue of fact as to whether an employer’s asserted reason is pretextual”).
Thursday, January 13
Morning Session – 9:30 a.m.
162419
Willie Griffin (attorney, Steven Hicks)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Wayne CC - Hubbard S.)
Trumball Insurance Company, and Michigan Assigned Claims Plan (attorneys, Sidney Klingler, Mark Nawrocki)
Defendants-Appellees,
and
Allstate Insurance Company, Esurance Property & Casualty Insurance Company, and John Doe Insurance Company,
Defendants.
The plaintiff crashed his motorcycle while attempting to avoid a truck that merged into his lane. The plaintiff informed his insurer, Trumbull Insurance Company, of the accident, but Trumbull refused to pay the plaintiff personal protection insurance (PIP) benefits under the no-fault act. The plaintiff sued Trumbull, and during the course of discovery the parties learned that the truck driver was insured by Harleysville Insurance Company. But the plaintiff could not recover PIP benefits from Harleysville because the one-year statutory notice period under MCL 500.3145(1) had expired. Trumbull filed a motion for summary disposition, arguing that it was not required to pay PIP benefits to the plaintiff because Harleysville was the higher-priority insurer under the no-fault act. The trial court granted Trumbull’s motion for summary disposition, and the Court of Appeals affirmed in a 2-1 published opinion. The Court of Appeals majority held that Trumbull was not required to pay PIP benefits to the plaintiff because Harleysville was the higher-priority insurer and could have been identified. The Court of Appeals dissent concluded that a lower-priority insurer (Trumbull), who was provided timely notice under MCL 500.3145(1), can be held liable for PIP benefits if the higher-priority insurer was not identified until after the one-year statutory notice period expired, as long as the insured exercised due diligence in searching for the higher-priority insurer. The Supreme Court has ordered oral argument on the application to address: (1) whether a lower-priority insurer, who was provided timely notice under MCL 500.3145(1), can be held liable for PIP benefits under the no-fault act if the higher-priority insurer was not identified until after the one-year statutory notice period under MCL 500.3145(1) expired; if so, (2) whether the insured must prove that he or she exercised reasonable, due, or some other degree of, diligence in searching for the higher-priority insurer; and, if so, (3) whether the plaintiff exercised the requisite degree of diligence in searching for the higher-priority insurer.
161911
Gregory Wells, PR of the Estate of Michael Wells, (attorneys, Todd Weglarz, Sima Patel)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Macomb - Servitto, E.)
State Farm Fire & Casualty Company (attorney, Michael Simoni)
Defendant-Appellee,
and
Joseph Narra,
Defendant.
Seventeen-year-old Michael Wells was riding in a friend’s car when the allegedly intoxicated driver crashed, killing Wells and two other passengers. Plaintiff Gregory Wells, personal representative of the estate, sued Gregory and Dawn Bobchick, who owned the home where the teens allegedly had been drinking. The plaintiff alleged that the Bobchicks were liable as social hosts for serving alcohol to minors. The Bobchicks had a homeowners insurance policy, but State Farm denied that its policy covered the social host liability claim. The social host liability lawsuit was resolved with a consent judgment in favor of the plaintiff against the Bobchicks for $475,000. The plaintiff filed a second lawsuit, seeking a declaration that the State Farm policy provides coverage for the social host liability claim and that State Farm is obligated to pay the consent judgment. State Farm filed a motion for summary disposition under MCR 2.116(C)(8), arguing that the plaintiff failed to state a claim on which relief can be granted because there was no “occurrence” within the meaning of the policy, which defines “occurrence” as an “accident” that “results in bodily injury.” State Farm argued that serving alcohol to a minor is not an accident, but is a deliberate act that carries an obvious risk of harm (intoxicated driving). The trial court agreed, and granted summary disposition. The Court of Appeals, in a 2-1 unpublished opinion, affirmed. The Supreme Court has ordered oral argument on the application to address: (1) whether the plaintiff’s underlying complaint in its action against the insureds is a “written instrument” under MCR 2.113(C)(1) (formerly MCR 2.113(F)(1)), a “pertinent part” of a written instrument under MCR 2.113(C)(1), or is otherwise part of “the pleadings” in this case such that the lower courts could properly consider it in the MCR 2.116(C)(8) analysis; (2) whether the Court of Appeals correctly concluded that the plaintiff’s pleadings showed the insureds knowingly provided alcohol to minors and that this knowing act was a proximate cause of the plaintiff’s damages; (3) whether pleading proximate causation is the equivalent of pleading that an act “created a direct risk of harm from which the consequences should reasonably have been expected by the insured,” Allstate Ins Co v McCarn, 466 Mich 277, 283 (2002); and (4) whether the Court of Appeals erred in affirming the Macomb Circuit Court’s grant of summary disposition to State Farm under MCR 2.116(C)(8). See Frankenmuth Mut Ins Co v Masters, 460 Mich 105 (1999); Nabozny v Burkhardt, 461 Mich 471 (2000); Allstate, supra.
161324
People of the State of Michigan (attorney, Molly Schikora)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Allegan CC - Kengis, R)
Derek Jeffrey Meshkin (attorney, David Dodge)
Defendant-Appellant.
The defendant was convicted of two counts of second-degree criminal sexual conduct and one count each of accosting a child for immoral purposes and indecent exposure for sexually molesting his adopted daughter when she was between the ages of 8 and 12. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the defendant was denied his constitutional right to present a defense by the exclusion of expert testimony that the complainant suffered from Reactive Attachment Disorder (RAD); and (2) whether the defendant was denied a fair trial by the prosecutor’s cross-examination of Albert Meshkin insinuating that the defendant had sexually assaulted his sister or sister-in-law, see People v Whitfield, 425 Mich 116, 128-134 (1986), and People v Dorrikas, 354 Mich 303 (1958).
162092
Wayne Filizetti, PR of the Estate of Amarah Filizetti and Next Friend of Laila Filizetti and Melissa Filizetti, and Stacy Filizetti (attorney, Paul Janes)
Plaintiffs-Appellants,
v
(Appeal from Ct of Appeals)
(Marquette - Mazzuchi, J.)
Gwinn Area Community Schools (attorney, Timothy Mullins)
Defendant/Cross-Plaintiff/
Cross-Defendant-Appellee,
and
West Educational Leasing, Inc., d/b/a Professional Contract Management,
Defendant,
and
Tracy Belusar, Anthony Filizetti, and Robert Soyring,
Defendants-Appellees,
and
Gwinn Area Cleaning and Maintenence, Inc.,
Defendant/Cross-Defendant/Cross-Plaintiff.
A cheerleading coach’s four-year-old daughter was fatally injured when a large panel that had been placed against a wall in the Gwinn High School gymnasium fell on her. The plaintiffs filed suit against Gwinn Area Community Schools and other defendants. The plaintiffs allege that Gwinn Area Community Schools is liable under the public building exception to governmental immunity, MCL 691.1406, because the panels were fixtures. The trial court granted the plaintiffs partial summary disposition on the question of whether the panels were fixtures. The Court of Appeals reversed in an unpublished opinion, holding that the trial court erred by denying Gwinn Area Community Schools summary disposition because, although the panels were fixtures, leaning the panels against the gym wall did not constitute a failure to repair or maintain a public building. The Supreme Court has ordered oral argument on the application to address whether Gwinn Area Community Schools was entitled to summary disposition on the plaintiffs’ claim under the public building exception to the Governmental Tort Liability Act, MCL 691.1401 et seq.
161948, 161952
Audrey West and Randy West (attorney, Jonathan Marco)
Plaintiffs-Appellees,
v
(Appeal from Ct of Appeals)
(Ct of Claims - Borrello, S.)
Department of Natural Resources, Andrea Albert, and Steve Butzin (attorney, Andrew Jurgensen)
Defendants-Appellants.
—————
Mark Goss (attorney, Christopher Desmond)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Ct of Claims - Kelly, M)
Department of Natural Resources (attorney, Adam DeBear)
Defendant-Appellant.
In West v Dep’t of Natural Resources (DNR), the plaintiffs were injured when a snowmobile they were riding was allegedly forced off a snowmobile trail by two conservation officers who were operating snowmobiles during the course of their employment with the DNR. In Goss v DNR, the plaintiff was injured when the snowmobile he was operating collided with a 2015 John Deere Gator XUV 4x4 625i model crossover utility vehicle operated by Roy Pederson during the course of his employment with the DNR. The plaintiffs in both cases sued the DNR in the Court of Claims under MCL 691.1405, the motor vehicle exception to governmental immunity. In West, the DNR filed a motion for summary disposition on the basis of governmental immunity, arguing that a snowmobile is not a motor vehicle for purposes of MCL 691.1405. Likewise, in Goss, the DNR filed a motion for summary disposition, arguing that the Gator was not a motor vehicle for purposes of MCL 691.1405. The Court of Claims denied the DNR’s motions in both cases, finding in West that a snowmobile is a motor vehicle for purposes of MCL 691.1405 and finding in Goss that the Gator was a motor vehicle. In West, the Court of Appeals affirmed the Court of Claims in a 2-1 published opinion. In Goss, the Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application in both cases to address whether snowmobiles and John Deere Gator crossover utility vehicles are motor vehicles for purposes of MCL 691.1405, the motor vehicle exception to governmental immunity.
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