Anthony Kostello and Melissa Mezin recently received a favorable ruling from the Court of Appeals, which affirmed the trial court’s grant of summary disposition in favor of their clients, a restaurant and its owner. The Court of Appeals reversed dismissal of claims against the co-defendant. The matter involved claims of intentional infliction of emotional distress, civil conspiracy, and premises liability against their clients in connection with allegations of alleged sexual assault and battery that took place at the defendant restaurant. The appellate court agreed that Plaintiff had not established a claim for civil conspiracy because the conduct alleged was not unlawful. The appellate court further agreed that the conduct alleged by the owner did not constitute extreme and outrageous behavior to set forth a prima facie claim for intentional infliction of emotional distress. The Court of Appeals opinion was featured in Michigan Lawyer’s Weekly:

Anthony Kostello and Melissa Mezin successfully obtained Summary Judgment in favor of their client, dismissing Plaintiff’s claims in their entirety. The case involved a slip and fall incident that occurred in a department store where their client provided janitorial services. Their Motion for Summary Judgment successfully argued that their client had no duty to Plaintiff separate and distinct from its contractual duties to the department store defendant, i.e. to perform janitorial tasks pursuant to the contract. Because the Plaintiff failed to identify a separate and distinct duty that our client had to her, summary judgment was granted.

Vandeveer Garzia congratulates seven of our attorneys who were recently selected as “Leading Lawyers” by Leading Lawyers Magazine. The list of “Leading Lawyers” is the result of thousands of contacts with Michigan lawyers asking them which of their peers they believe comprise the top lawyers. Only the lawyers who are most often recommended qualify as “Leading Lawyers.” “Leading Lawyers” are selected by the Advisory Board based on their extensive legal experience, their knowledge of the law in their area of practice and their ethical standing in the community. Of the 42,000 attorneys licensed to practice in the State of Michigan, only 5% are selected as “Leading Lawyers.”

“Leading Lawyers Magazine” selected William L. Kiriazis, David B. Timmis, Donald C. Brownell, Anthony J. Kostello, Adam K. Gordon, Timothy J. Connaughton and Roger A. Smith as “Leading Lawyers” in the following categories: Commercial Litigation; Construction Law; Insurance, Insurance Coverage and Reinsurance; Personal Injury – Defense; Products Liability – Defense; Professional Malpractice – Defense; and Transportation Defense.

Roger Smith was recently the subject of a Netflix documentary series entitled “The Innocence Files.” Episode 9 focused on a case handled by Roger in Macomb County Circuit Court. He represented the Clinton Township Police Department and one of its officers in the first DNA based criminal conviction reversal case in the State of Michigan. The plaintiff had been convicted of a brutal rape, exhausted all of his appeals, state and federal, and after spending ten years in prison was freed when the then Cooley Law School (now Western Michigan University) Innocence Project clinic caused the plaintiff’s still remaining biological evidence associated with the crime to be subjected to DNA analysis which ended up exonerating him.

Roger ended up taking numerous depositions (many of which were video-taped and cleverly utilized by the production crew to recreate the then remote criminal trial circumstances) before his Motion For Summary Disposition was denied at the trial court . He appealed based upon the application of Qualified Immunity and the case resolved under the auspices of the 6th Circuit Mediation Office during a session in Cincinnati, Ohio.

About a year ago, Roger was interviewed in our office by a production crew in anticipation of the Netflix documentary. In viewing Episode 9, Roger reports that there were many fascinating aspects of the case which were not featured in the program but overall the segment was a reasonably fair portrayal.

Diagnostic Solutions v Citizens Insurance Company

Kristine Rizzo and Massimo Badalamenti successfully obtained a dismissal of Plaintiff’s claims against their client, Citizens Insurance Company. Plaintiff, a provider of the underlying claimant, filed its Complaint the day after the underlying claimant had settled its claims at facilitation. Kristine and Massimo filed a Motion for Summary Disposition based upon the good-faith payment made by Citizens relative to the facilitation resolution. The Plaintiff responded by claiming that it had provided notice of the claims to Defendant prior to the resolution at the underlying claimant’s facilitation. At oral arguments, Massimo argued that Plaintiff failed to attach any documentation to its Response to Defendant’s Motion for Summary Disposition in compliance with MCR 2.119; nor any documentation to support the assertion that Citizens had notice of its claims prior to making its good-faith payment to underlying claimant pursuant to MCL 500.3112. The Court granted Plaintiff two-weeks to produce a date of denial to Citizens.

Having not received the Court ordered information, Kristine filed a Motion to Dismiss for failure to comply with Court’s order. The Plaintiff responded to said Motion with an improperly executed affidavit of its biller. At the virtually conducted oral arguments Kristine argued that the affidavit was to be stricken as it did not comply with MCR 2.116 nor MCR 2.119. The Court agreed that Plaintiff had not complied with its Order dismissed Plaintiff’s claim with prejudice.

Zaiya v Encompass Indemnity Company

Sajid Islam obtained summary disposition of Plaintiff’s claims for Uninsured and Underinsured Motorist benefits, and First-Party No-Fault benefits against his client, Encompass Indemnity Company. Sajid drafted a Motion for Summary Disposition pursuant to MCR 2.116(C)(6), (C)(7), (C)(8), and (C)(10) arguing that Plaintiff’s claims for Uninsured and Underinsured Motorist benefits should be dismissed in light of a separate action for such benefits that was pending in another Court. As it related to Plaintiff’s claim for PIP benefits, Sajid argued that it had previously been determined that Plaintiff was domiciled with the insured of another No-Fault insurer, and that therefore, Plaintiff could not claim No-Fault benefits from Encompass. Further, it was also argued that Plaintiff had no claim under the terms of the Encompass policy. Finally, it was argued that the Encompass policy prohibited duplicate payments, and that any payment by Encompass would be a duplicate payment in light of a settlement agreement that Plaintiff entered into with another No-Fault carrier. Ultimately, the Court agreed with the arguments, granted the Motion for Summary Disposition and dismissed Plaintiff’s claims with prejudice.

Deborah Bricely, an attorney and registered nurse, has safely returned home after treating ill patients in Wuhan, China. Deborah Bricely came home from Travis Air Force Base (AFB) in Fairfield, CA, after providing medical support for individuals who the U.S. government evacuated from Wuhan during the the ongoing outbreak of a novel coronavirus known as CODIV-19. Read more

Anthony Kostello recently obtained summary disposition in favor of his client. The matter involved a wrongful death action arising out of the death of Plaintiff’s decedent, who was killed when he exited the basket of a man lift without using appropriate fall protection. At the time of his death, the decedent was on the job performing welding work. Plaintiff brought this action against the decedent’s employer and its subsidiaries. In his Motion for Summary Disposition, Mr. Kostello successfully argued that because the death occurred in the course of the decedent’s employment, the Worker’s Disability Compensation Act provided the exclusive remedy, absent a showing of intentional conduct on the part of the employer and its subsidiaries. The Court agreed, dismissing Plaintiff’s claims in their entirety.

Ashley Slaght was successful in obtaining Plaintiff’s voluntarily dismissal of its suit following filing a motion for summary disposition arguing Plaintiff’s claims were extinguished based on the dismissal with prejudice of the underlying claimant’s claims.

Desilva v Relerford, Lowe and Lowe

Sajid Islam successfully obtained summary disposition of Plaintiff’s claim for third-party damages against his clients. Sajid prepared, filed and argued a Motion for Summary Disposition arguing that there was no genuine issue of material fact that Plaintiff had not sustained a serious impairment of an important body function as a result of the motor vehicle accident at issue. Specifically, it was argued that there was no evidence to suggest that Plaintiff had suffered an objectively manifested impairment, and that Plaintiff’s own treating physicians noted no injury associated with the motor vehicle accident. It was further argued that Plaintiff failed to rebut his Motion for Summary Disposition as required under MCR 2.116(C)(10). Ultimately, the Court granted Sajid’s Motion for Summary Disposition, dismissing Plaintiff’s claims against all three of his clients with prejudice.