Saar v. Johns

April Malak was granted summary disposition in Oakland County Circuit Court on Plaintiff’s claim for damages stemming from an automobile accident. Defendant alleged the accident was minor in nature, occurring while both parties were in line for gas at a gas station. Plaintiff alleged injuries including those to his neck and shoulder, and also alleged dizziness and lack of concentration, that in turn affected his ability to lead his normal life. During the course of discovery, Defendant obtained medical records and conducted surveillance on Plaintiff. Defendant argued the medical records failed to support an objective injury to the extent claimed by Plaintiff. Further, Defendant obtained surveillance of Plaintiff, which showed Plaintiff participating in hours-long bike rides, and doing outdoor chores, in addition to other activities. In turn, Defendant argued Plaintiff has failed to satisfy the “serious impairment” threshold. The Court agreed and dismissed Plaintiff’s claims.

Estate of Dani Homrich v Selective Insurance Company et al

Roger Smith and Beth Andrews succeeded in obtaining summary disposition in the Oakland County Circuit Court on claims by the estate of a deceased pedestrian who was struck and killed while crossing a darkened street on a moonless morning more than one hour before dawn. Mrs. Homrich was an exceptionally small 68 year old adult who rose very early each morning for her daily walk. Except for her green shoes and red hat, she was otherwise dressed in very dark, non‑reflective clothing (including black gloves) and carried no flashlight or other item which would have rendered her visible to drivers. Roger represented a defendant driver who was on his way to work. A slight rise in the road and large trash bins placed at the curb apparently obscured the vision of both driver and pedestrian and prevented them from seeing each other until the last moment. The driver testified that he was unable to see her until she suddenly darted out from his right side to cross the road and was struck by his vehicle. Another driver traveling behind him also failed to see her as she lay on the road, and struck her again in what was probably the fatal blow. Plaintiff responded to our motion by presenting an extensive affidavit by expert Daniel Lee detailing the many ways that, in his opinion, our client driver had been negligent in the operation of his vehicle, however eyewitnesses as well as the Oakland County Sheriff deputy who investigated the accident all opined that there was no way that the first driver had time to avoid the collision. Oakland County Circuit Judge Phyllis McMillen granted Roger and Beth’s motion for summary disposition, holding as a matter of law that the pedestrian plaintiff had been more than 50% at fault in causing this accident and her injuries.

Perkins v Encompass Indemnity Company

Guy Silvasi obtained summary disposition in Montcalm County Circuit Court in a uninsured/underinsured motorist claim brought against Encompass Indemnity Company. The Motion was argued before Judge Suzanne Hoseth Creeger by Guy Silvasi. Plaintiff claimed he sustained a serious impairment of body function following an accident in which a truck carrying a horse trailer struck Plaintiff’s motor vehicle at a high rate of speed. Plaintiff alleged injuries primarily to his neck and back. Defendants contested that Plaintiff did not sustain a serious impairment of body function, and that Plaintiff failed to present any objective evidence of injury as required under the first prong of McCormick v Carrier. The Court agreed, and granted our Motion for Summary Disposition dismissing the uninsured and underinsured motorists claims against Encompass with prejudice.

Carol Masse, Personal Representative of the Estate of Deborah Klapp v Patsy Lou Chevrolet, Inc.

Lead trial attorney Adam Gordon along with Peter O’Toole and Ashley Slaght prevailed in a case by obtaining a no cause of action from a Genesee County jury after a lengthy trial. The matter arose out of a motor vehicle accident that occurred on December 21, 2011, in which Mark Alan Bono, while operating a 2012 Chevrolet Malibu, owned by Defendant Patsy Lou Chevrolet, Inc., struck a motor vehicle that was parked in the roadway and recently operated by Deborah Klapp. Unfortunately, as a result of this collision, Deborah Klapp passed away. Plaintiff Carol Masse, as personal representative, sought damages as to Defendant Patsy Lou Chevrolet, Inc., pursuant to the Michigan Civil Liability Act (MCL 257.401) as the owner of the 2012 Chevrolet Malibu.

The case had numerous legal issues, factual issues and disputes relating to all aspects of the claim. The trial began on September 5, 2018, with the Estate requesting $15 million in damages. In closing argument, it was successfully argued that Mark Alan Bono, and by extension Defendant Patsy Lou Chevrolet, Inc., was not negligent on the date of loss. This result was achieved despite the fact that Mark Alan Bono was dismissed from the case after entering into a negotiated resolution with the decedent’s Estate prior to trial.

Tina Battle and Brian Boehne obtained summary disposition, with prejudice, in the Wayne County Circuit Court, on Plaintiff’s claims for negligence and gross negligence for personal injuries allegedly sustained during a personal training session at Defendants’ fitness facility. The Motion for Summary Disposition argued that Plaintiff’s claims for negligence were barred by a Release of Liability signed by Plaintiff. The Court found that the language of the Release of Liability was prominently displayed and determined that the intention of Defendants to disclaim liability was clearly expressed. Further, the Court found that there was no genuine issue of material fact that Plaintiff had signed the Release of Liability and that it was fairly and knowingly made. With respect to the Plaintiff’s claims for gross negligence, the Court found that there was no genuine issue of material fact that Plaintiff failed to establish a cause of action for gross negligence in that Defendants did not engage in conduct so reckless as to demonstrate a substantial lack of concern for whether an injury resulted. Plaintiff alleged a claim for damages in excess of $300,000.

Tony Kostello has had a grant of summary judgment by the United States District Court affirmed in the 6th Circuit Court of Appeals. The minor Plaintiff was injured when his mother, who was carrying him, tripped and fell in the parking lot of the defendant’s health club. Judge David Lawson of the United States District Court – E.D. of Michigan granted summary judgment to the defendant on open and obvious grounds, holding that the mother could have seen and avoided the alleged defect in the defendant’s parking lot. Plaintiff appealed, arguing that the 3 year old child that was injured should not be subjected to the application of the open and obvious doctrine as he was too young to have perceived and avoided the alleged defect. The issue of whether a child could be subject to the open and obvious doctrine under these circumstances had come up in Michigan law on only one prior (albeit somewhat different) situation. That unpublished case involved a child who was injured while being pushed in a shopping cart by his father. The 6th Circuit agreed that the relevant inquiry was whether or not the mother was able to perceive and avoid the danger and therefore affirmed Judge Lawson’s granting of summary judgment.

Galloway v. Allstate

Sajid Islam obtained a partial dismissal with prejudice of Plaintiff’s claim for attendant care benefits. Plaintiff alleged that he was receiving attendant care services from four care providers. To evaluate Plaintiff’s claim, Mr. Islam obtained an Order compelling Plaintiff to produce attendant care documents and more specific responses to his client’s Interrogatories regarding each of the care providers. After Plaintiff failed to comply with the Court’s Order, Mr. Islam filed a Motion to Dismiss Plaintiff’s Claim for Attendant Care Benefits arguing that Plaintiff failed to comply with the Court’s Order and that no attendant care documents or information had been provided with regard to the alleged care providers. In response to the Motion to Dismiss, Plaintiff produced documents and discovery responses as to one of the care providers.

After hearing oral arguments on the Motion to Dismiss, the Court granted Plaintiff one additional week to produce documents and discovery responses relating to the remaining three alleged providers. The Court further held that if said documents and responses were not provided within one week, Plaintiff’s claim as to the remaining alleged providers would be dismissed with prejudice. After Plaintiff failed to produce documents and discovery responses, the Court dismissed Plaintiff’s attendant care claim as to the remaining three alleged providers with prejudice.

Holland v Citizens

Sarah Gordon and Tina Battle obtained a dismissal, with prejudice, on behalf of their clients, Citizens Insurance Company of America and Citizens Insurance Company of the Midwest, on a cause of action for uninsured/underinsured motorist benefits under a personal auto policy and uninsured/underinsured motorist benefits under a separate umbrella policy in a wrongful death action pending in the Wayne County Circuit Court. The cause of action arose out of a motor vehicle vs. motorcycle accident in which the owner and operator of the motorcycle died when struck by the defendant driver who turned left in front of the motorcycle. The potential exposure to their clients was 1.5 million dollars.

Ms. Gordon and Ms. Battle filed a Motion for Summary Disposition arguing that uninsured/underinsured motorist benefits were excluded under the personal auto policy because coverage was not provided to an insured who was occupying a motor vehicle owned by that insured which was not insured for coverage under the personal auto policy. The term motor vehicle was not defined within the UM/UIM portion of the policy and accordingly Defense counsel argued that the dictionary or common meaning of the term applied which included a motorcycle. Plaintiff’s counsel argued that the policy was ambiguous because it contained definitions of a motor vehicle which excluded motorcycles in other portions of the policy, specifically in the Accidental Death portion of the Policy and the Personal Injury Protection portion of the Policy. The Honorable Annette J. Berry agreed with the argument that the policy was not ambiguous and when given its commonly used meaning, the term motor vehicle included a motorcycle. Accordingly, UIM benefits were excluded. Ms. Gordon and Ms. Battle also successfully argued that the umbrella policy excluded any claim for uninsured/underinsured motorist benefits unless a special endorsement was added to the policy.

Ikle v Fritts, et al

Sajid Islam obtained a favorable result arguing against a plaintiff’s motion for preliminary injunction in a property dispute involving lot owners in a neighborhood. With respect to a park, waterfront and lake located within the neighborhood, the plaintiff was seeking a preliminary injunction to prevent defendants from erecting docks, mooring devices, or other semi-permanent or permanent structures; maintaining picnic tables; hosting large gatherings, parties, or bonfires; or driving or parking motor vehicles, golf carts or ATVs. Sajid and Co-Counsel argued that the plaintiff had not demonstrated any ownership of the park or any riparian rights with respect to the waterfront and lake. In addition, Sajid and Co-Counsel argued that the plaintiff had not demonstrated a likelihood to prevail on the merits or that the plaintiff would suffer irreparable harm without the entry of a preliminary injunction. It was also argued that the harm to the public interest was great because the plat dedication expressly stated that all lot owners could use the parks and canals in the neighborhood and the relief being requested by the plaintiff was contrary to that express intent. After extensive arguments, the court stated that it would not grant the plaintiff’s motion. However, in order to maintain the status quo until a final decision on the merits, the court entered an order preventing loud music or fireworks on the park area, and preventing the use of golf carts and ATVs on the park area in such a way as would disturb the peace.

Ames v Allstate Insurance Company

Sajid Islam obtained a dismissal with prejudice of Allstate Insurance Company in a lawsuit for First-Party No-Fault benefits. Sajid filed a Motion for Summary Disposition and a Supplemental Brief in Support of the Motion arguing that the plaintiff was not entitled to First-Party benefits from Allstate because she was not domiciled in the same household as her mother, the Allstate named insured, on the date of the accident at issue. Prior to the filing, Sajid obtained deposition testimony and admissions from the plaintiff and her mother indicating that the plaintiff did not reside with her mother or intend to live with her mother on the date of the accident. In addition, Sajid obtained testimony and admissions that the plaintiff did not have a bedroom or belongings at her mother’s home, and that the plaintiff was not financially dependent on her mother on the date of the accident. The plaintiff and opposing insurance company stipulated to the dismissal of Allstate with prejudice prior to the hearing on the Motion for Summary Disposition.