Donald Brownell and Sajid Islam successfully obtained an Order from the Court of Appeals affirming the trial court’s Order granting their Motion for Summary Disposition. The underlying suit involved Plaintiff’s request for a declaratory judgment stating that “diminished value damages” were recoverable under the Michigan No-Fault Act’s mini-tort provision, MCL 500.3135(3)(e), from the Defendant insurers as a result of damage to vehicles owned by GM resulting from motor vehicle accidents caused by the Defendants’ insureds. Don and Sajid filed a motion for summary disposition and argued that there were several issues with Plaintiff’s claims, each of which required summary disposition. The circuit court granted Don and Sajid’s Motion for Summary Disposition and declined to exercise its jurisdiction to enter a declaratory judgment as permitted by MCR 2.605 in light of the multiple deficiencies in Plaintiff’s claims.

Plaintiff appealed the trial court’s decision declining to exercise its jurisdiction to enter a declaratory judgment, and asserted that the trial court abused its discretion. Don and Sajid, along with the counsel for the other Defendant insurers, filed an appellate brief arguing that the trial court did not abuse its discretion, as it extensively considered the multiple issues with Plaintiff’s claims in reaching its decision and lacked subject matter jurisdiction to enter a declaratory judgment in the first place. After oral arguments in the Court of Appeals, the Court issued an Opinion and Order finding that the trial court lacked subject matter jurisdiction to enter a declaratory judgment, as mini-tort claims were capped at $1,000 and district courts have exclusive jurisdiction over claims that do not exceed $25,000. As such, the Court entered an Opinion and Order affirming the trial court’s decision.

Sajid Islam and Massimo Badalamenti obtained partial summary disposition of Plaintiff’s first-party claim for wage loss benefits against their client. Specifically, Plaintiff claimed entitlement to wage loss benefits she would have earned as a professional flute player in a symphony orchestra but for the motor vehicle accident at issue. However, through the course of discovery Sajid and Massimo obtained evidence that Plaintiff was still in school to become a professional flute player at the time of the accident, she had never been offered employment as a professional flute player at the time of the accident, she had never earned any income as a professional flute player at the time of the accident and that she had never been employed as a professional flute player. Sajid and Massimo prepared a Motion for Partial Summary Disposition arguing that Plaintiff’s claim was entirely speculative, and the wage loss she sought was not for wages she would have earned but for the accident. As such, Sajid and Massimo argued that the wage loss claim was based on potential earnings and was not compensable under the Michigan No-Fault Act. The Court granted the Motion based upon the parties’ briefs.

Sajid Islam successfully obtained partial summary disposition of certain claims for first-party No-Fault benefits. Specifically, Plaintiff claimed entitlement to the balance of certain bills from a provider despite partial payments by the insurer. Sajid drafted a Motion for Summary Disposition and argued to the Court that there was no genuine issue of material fact that the insurer complied with its duty under the Michigan No-Fault Act to pay a reasonable charge, Plaintiff suffered no harm from the partial payments made by the insurer, there was no suit against or threat to sue Plaintiff by the provider, and that Plaintiff’s loss was merely hypothetical. Plaintiff also claimed entitlement to other medical expenses, which Sajid successfully argued were barred by prior Release or statute of limitations. After oral arguments, the Court agreed with Sajid and granted the Motion for Partial Summary Disposition, disposing of a bulk of the Plaintiff’s claims.

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