Author(s): Laura Iacona, Thomas G. Herman

NO RIPARIAN RIGHTS FOR MAN MADE WATERWAY

Good fences apparently do not always make good neighbors. In Persell v Wertz, a published decision from Eaton County (Docket No. 288858), the Court of Appeals reversed a jury verdict involving a fence built across an artificial pond on the property line between plaintiff’s and defendant’s property. The Court noted the pond was constructed several years earlier when the parties had “a very amicable relationship.” The Court also noted that relationship “seems to have deteriorated in recent years.” Defendant eventually constructed a two strand wire fence across the pond along the boundary line for the properties. Plaintiff filed suit alleging interference with his right to boat or swim across the entire waterway. A jury awarded damages of $2,200 plus $15,000 for emotional distress. Plaintiff was also awarded $3,000 for herbicide damages to plaintiff’s lawn along the pond. With the addition of costs and case evaluation sanctions, plaintiff originally received almost $43,000.

The Court of Appeals threw out the riparian rights claim involving the fence across the pond. Michigan case law has historically recognized riparian rights only for natural waterways. The Court also threw out the treble damages claim for the herbicide damages as the plaintiff’s grass had only been killed. The triple damages trespass statute applies to one who “cuts down or carries away any grass, hay, or any kind of grain from another’s land.” {MCLA 600.2919(1)}

The Court of Appeals remanded the $15,000 emotional distress damages for a new trial. The jury had not been required to specify whether the emotional distress was for the fence or the lawn. Damages would not be permitted for the fence.

Man made lakes or waterways in Michigan will not confer common law riparian rights for swimming, boating and fishing. Property owners may, however, have joint easements as specified in their written contracts or recorded deeds. Those agreements should be examined closely if access to the waterway is important. Without a written agreement, any property owner is free to fence or otherwise restrict access to his property, even if the property is covered with water.

AN INVITATION FOR FRAUD? EVEN WITHOUT DOCUMENTATION OF ANY EARNINGS, WAGE LOSS BENEFITS MAY STILL BE AVAILABLE UNDER THE NO-FAULT ACT

In Ward v Titan Insurance Company, the Michigan Court of Appeals issued a published decision3 that allowed the claimant to obtain wage loss benefits, despite having no documentation of earnings before his motor vehicle accident.

Timothy Ward brought suit against Titan for wage loss benefits, housing costs, attendant care, and other benefits under the No-Fault Act. The trial court granted summary disposition in favor of Titan as to the wage loss claim, but awarded the plaintiff the full cost of his housing expenses. Plaintiff appealed the denial of wage loss benefits, and Titan cross-appealed the award of the housing costs.

Ward claimed he had been working as a bouncer at Club Tequila at the time the accident.

However, Ward also admitted in his deposition that he had been “working under the table” and failed to file any income tax returns. His employer was also unable to provide any documentation of Ward’s income. However, Ward did submit corroborating evidence from two of his fellow employees, establishing that he regularly worked at the night club.

It appeared that the employer and Ward were in agreement that Ward would not have to file any state or federal tax returns. Judge Markey, in her dissent, pointed out that this was a joint decision, obviously made to relieve either party of having to pay any taxes.

Titan pointed out that there was contradictory testimony as to how many hours Ward actually worked. The co-workers’ testimony indicated that Ward did not work as often as he claimed. Moreover, it was further noted that Ward likely would not have been able to continue working as a bouncer due to his “marijuana use.” (The opinion does not make clear what the circumstances were with regard to Ward’s drug use, i.e., whether there were criminal charges against him, or whether he was terminated due to his use of marijuana).

Titan took the position was that because the language of MCL 500.3158(1) requires an employer to furnish a sworn statement regarding the claimant’s earnings, the claimant loses the right to work loss benefits if such documentation is not provided. However, the majority opinion concluded that, despite the lack of any income tax returns, there were still factual disputes regarding the plaintiff’s employment at the time of the accident. The Court stated:

How often Plaintiff worked, what he earned, his prospects for continued employment, whether he was an employee or an independent contractor, and related questions are best left to the fact finder; they were not properly resolved against Plaintiff through a summary disposition order.

The Court also found that even though Ward clearly did not file his tax returns, his claim for wage loss benefits would not be barred under the “wrongful conduct” rule. This rule bars a claim brought by a plaintiff who “founded his cause of action on his own illegal conduct.” The Court noted that Ward brought his claims based on an auto accident in which he suffered injuries. His claim was not based on his failure to properly file income tax returns. The Court also noted that Ward’s failure to file income taxes was only “incidentally or collaterally connected” to his wage loss claim.

Consistent with the Supreme Court’s holding in Griffith v State Farm, the Court did, however, reverse the trial court’s award of full housing costs, based on the fact that the plaintiff failed to show that his housing expenses were greater than they would have ordinarily been because of the car accident. Ward did not show, for example, that he had any incurred any costs for making his housing handicapped accessible.

In a well reasoned dissenting opinion, Judge Markey had an entirely different interpretation of the language of MCL 500.3138(1). She opined that the language of MCL 500.3138(1) is actually quite clear, and it is an absolute requirement that an employer furnish a sworn statement regarding the claimant’s earnings before wage loss benefits can be paid.

Judge Markey also observed that there would be no injustice done to a claimant who failed to provide documentation of his or her income, and that the injustice in that instance would be perpetrated on the insurer. The majority’s opinion makes it extremely difficult for an insurance company to decipher what amount the injured person earned at the time of the accident.

The majority opinion makes clear that a no-fault carrier cannot simply deny wage loss benefits just because the injured party was “working under the table.” However, it should be noted that even the majority’s opinion concedes that a lack of documentation of earnings is something that the fact finder would need to consider in determining whether the plaintiff could prove his wage loss claim.

What is clear from the majority’s opinion is this: If a plaintiff puts forth some evidence, such as affidavits or deposition testimony of former co-workers regarding the number of hours he worked, what his earnings were, etc., that plaintiff at least has a right to have a fact finder consider the claim for wage loss benefits. However, as Judge Markey so rightly pointed out in her dissent, the majority’s decision creates “a situation rife with the potential for fraud.”