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January 2013 Edition
From the Law Offices of Garan Lucow Miller, P.C.
From the Co-Editors
John J. Gillooly & Jami E. Leach
We are pleased to introduce a new and improved version of our firm’s Gov Law publication. Rather than adhering to a rigid quarterly or monthly schedule, our goal for 2013 will be to provide our readers with practice pointers, important case summaries and changes in the law as often as necessary to keep each of you well informed. In furtherance of this goal, should anyone reading this publication have a suggestion, idea, or request for a particular topic of discussion, we welcome your input.
This year will mark Garan Lucow Miller’s 65th Anniversary. We are proud of our long history of representing the interests of municipalities and their employees across the State of Michigan in a wide variety of legal matters. With over 80 attorneys and 10 offices across the State of Michigan and into Indiana, Garan Lucow Miller is uniquely suited to handle any of your legal issues, whether they involve litigation, appeals, tax, environment, property rights, or elections. We are comprised of pre-eminent attorneys with nationally recognized expertise, and are well-known by judges, lawyers and our clients as remarkably dedicated, respected and ethical attorneys.
We are fortunate to have been involved in many of the most complex and important appellate decisions involving municipalities in both state and federal courts, from Ross v Consumers Power to Robinson v City of Detroit to Pohutski v City of Allen Park. We take great pride in our representation of over 200 public entities across the state and we continue to expand our client base and our areas of expertise.
We look forward to working with you and hope to see you at one of our complimentary breakfast or in-house seminars. In the meantime, we are happy to answer any questions you may have and provide any further information that might assist your municipal leaders or attorneys. Feel free to call us directly at 313.446.5501 (John Gillooly) or 313.446.5538 (Jami Leach). To add or remove a name from this email list, please write to email@example.com
Proprietary Function Exception to Governmental Immunity
On October 2, 2012, the Michigan Court of Appeals issued its opinion in Kielb v Wayne State University. After finding that the proprietary function exception to governmental immunity applied, it considered the defendant’s contention that the plaintiff had not complied with the notice of claim provisions, but found that it had been waived. It is important to note that many of the exceptions to Governmental Immunity have notice requirements. It would be prudent to plead failure to provide statutory notice as an affirmative defense, in addition to general affirmative defenses such as “Governmental Immunity” and “Statute of Limitations”. Unpublished COA No. 305927.
Governmental Immunity in Shooting Case
The Michigan Court of Appeals issued an opinion analyzing an officer’s entitlement to governmental immunity under Odom for an intentional shooting. The opinion contains a good discussion of the distinction between whether the officer’s use of force was objectively reasonable (the inquiry under 42 USC 1983) and the officer’s entitlement to state immunity in the absence of any showing of malice. The opinion also provides a helpful analysis in rejecting the plaintiff’s attempt to plead a claim of gross negligence in order to avoid statutory immunity for the shooting. Finally, there is excellent language regarding the propriety of relying upon police reports in support of a motion for summary disposition. We recommend that anyone handling these types of cases take a moment to read the entire opinion. Latits ex rel. Latits v Phillips, — N.W.2d —-, 2012 WL 3590055 (Mich.App. Aug 21, 2012) (COA No. 304236).
Warning Regarding Potential Forfeiture of Defenses
A recent 6th Circuit Court of Appeals Opinion is a cautionary tale which discusses the potential waiver/forfeiture of defenses (in this case improper service) which were properly included in the reservation of affirmative defenses, but which were not timely asserted in an appropriate motion before engaging in defense of the litigation. In this case, the defense was properly asserted in defendant’s answer. However, the defendant waited a significant period of time to press his improper service defense in a motion and, in the meantime, took substantial steps to defend the case on the merits. In so doing, the Court held that the defendant forfeited that defense.
The opinion is both cautionary and instructive as to the assertion of defenses such as personal jurisdiction and improper service — and potentially could apply to other affirmative defenses, such as the statute of limitations. While it was the plaintiff’s burden to pay attention to the affirmative defenses and take appropriate action, ultimately the defendant simply waited too long to seek dismissal of the complaint. King v. Taylor, 694 F.3d 650 (6th Cir. 2012).
Grand Rapids Breakfast Seminar — Thursday, April 18, 2013
This seminar will take place at the Frederik Meijer Gardens & Sculpture Park. Please mark your calendars and reserve the date to attend this complimentary event. The agenda has not yet been finalized, however, the focus will be on both first and third party auto, premises liability, ERISA and Medicare/Medicaid. John Gillooly is planning to present the latest advancements in courtroom trial technology. To Register for this seminar please contact Lynn Beatty at firstname.lastname@example.org or (616) 742-5500.
Deposition and Trial Boot Camp
Garan Lucow Miller, P.C., is offering a traveling Deposition and Trial Boot Camp. The Deposition/Trial Boot Camp would be presented to a group of 10 or more in your office, two half day sessions. If you are interested in scheduling this informative in-house seminar, please contact Eileen Carty at email@example.com or (248) 641-7600.
Garan Lucow Miller, P.C. has ten offices throughout the State of Michigan and in Indiana to serve all of your municipal needs:
*Please visit our website for more information regarding our offices, attorneys, practice areas and other helpful publications at www.garanlucow.com