Author(s): James L. Borin, Simeon R. Orlowski, Dennis P. Partridge, Todd D. Barry

Dennis Partridge is a Partner in the Firm’s Detroit office and can be reached at (313) 446-5510 or dpartridge@garanlucow.com. Todd Barry is an Associate in the Firm’s Detroit office and can be reached at (313) 446-5563 or tbarry@garanlucow.com

FROM THE LAW OFFICES OF GARAN LUCOW MILLER, P.C.

Volume XXII, No. 25 October 11, 2010 LAW FAX

MICHIGAN LAW – BLUE | INDIANA LAW – RED www.garanlucow.com Garan Lucow Miller, P.C. 1111 West Long Lake Road, Suite 300 Troy, Michigan 48098 248.641.7600 From the Co-Editors

James L. Borin & Simeon R. Orlowski

Workers’ Compensation Appellate Commission Provides Guidance

As to Disability Proofs Required Under Stokes

Gallup v. Jackson County Road Commission, 2010 ACO #102 CO-CONTRIBUTORS – DENNIS P. PARTRIDGE AND TODD D. BARRY1 At trial, the Magistrate granted an open award of benefits for left knee and right shoulder injuries. On appeal, the defendant argued that the Magistrate erred in finding the plaintiff disabled under Stokes v Chrysler, LLC, 481 Mich 266 (2008). While the Appellate Commission affirmed the Magistrate’s findings as to a work-related injury, the award of wage loss benefits was reversed because the plaintiff failed to establish disability. Rather than remanding for Beth Andrews is a Partner in the Firm’s Troy Office and can be reached at (248)641-7600 or bandrews@garanlucow.com

additional analysis, the Commission determined that the plaintiff failed to present enough evidence to meet the Stokes disability standard.

The only proofs presented by plaintiff at trial consisted of the Voluntary Form 105A, which outlined some of plaintiff’s qualifications and training. The Appellate Commission noted that while the voluntary disclosure form is a good aid for the exchange of information, it does not provide, nor was it intended to provide, the proofs necessary to establish disability.

While Stokes does not mandate vocational testimony be obtained, the Appellate Commission in Gallup found plaintiff’s proofs completely failed to establish “what jobs, if any, he is qualified and trained to perform within the same salary range as his maximum earning capacity at the time of the injury,” as required by Stokes. The Appellate Commission went on to note that the plaintiff failed to consider jobs that he had not performed in the past, including jobs he might be qualified and trained to perform, even though he had not performed them in the past. Whereas plaintiff’s proofs focused on his ability to perform his past jobs instead of focusing on his transferable skills, the Appellate Commission ruled that he needed either vocational testimony or additional lay testimony to establish the universe of jobs that he is qualified and trained to perform. Because the plaintiff failed to prove the universe of jobs he is qualified and trained to perform, the Appellate Commission concluded that he necessarily also failed to prove his work-related injury prevented him from performing those jobs.

As an alternative to formal vocational testimony, the plaintiff could have established disability by conducting job search efforts; however, no such proofs were established in the trial records. What is clear in Gallup is that the plaintiff has to do more than testify as to inability to perform past jobs, and may be hard pressed to establish disability in accordance with Stokes without formal vocational testimony, despite Stokes not mandating same. However, whether plaintiff’s attempt to establish disability under Stokes with formal vocational testimony or lay testimony, defendants will from a practical standpoint require a vocational evaluation/testimony to rebut plaintiff’s claim of disability

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COMPARATIVE FAULT, IMMUNITY AND MULTIPLE OR SUCCESSIVE TORTFEASORS: A NEW WRINKLE? CONTRIBUTOR – BETH ANDREWS

The Michigan Court of Appeals has issued a new published opinion which forces all of us to re-think our understandings of comparative fault and nonparties and also limits the universe of those who may be identified as nonparties at fault.

3 Both the majority and dissenting opinions in this case assume that the doctor’s opinion is undisputed. (See fn 2 in the dissenting opinion.) But, in fact, the doctor never TESTIFIED to this. The substance of this opinion was introduced only by way of an attorney’s affidavit in support of the defendant’s motion to identify the parents as nonparties at fault.

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In Slager v Kid’s kourt, LLC, ___ Mich App ___ (2010), issued September 30, 2010 (Docket No. 292856), a daycare center was sued after six-year old Chad sustained finger injuries which required surgery and then follow-up physical therapy. The child’s parents took him for only one of the 8 to 12 prescribed therapy sessions. After the doctor opined that this substantially affected his ultimate recovery, the defendant daycare center moved to identify the parents as nonparties at fault.3 The trial judge refused, holding that the parents’ immunity from liability to the child negated any duty owed by them and that under Romain v Frankenmuth Mut Ins Co, 483 Mich 18, proof of a duty owed by the nonparty is required before fault can be apportioned under the comparative fault statutes. (Slager slip op at 4, citing Romain at 20-22 and Jones v Enertel, Inc, 254 Mich App 432, 437 (2002)).

Everyone agreed that the parents were immune from civil liability to the child under the doctrine of parental immunity, which immunizes parents against liability for, among other things, the negligent exercise of reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services. See Plumley v Klein, 388 Mich 1, 8 (1972). The trial judge, however, went further and held that because of this immunity, the parents owed the child no duty. It was this issue which the parties apparently believed to be the crux of the case and which they briefed and argued to the Court of Appeals.

In a 2 to 1 decision, the Court of Appeals affirmed the lower court’s decision and also refused to allow the parents to be identified as nonparties at fault, although on different grounds. The majority disagreed with the trial judge on the impact of the decision in Romain: The Romain Court … did not address whether the existence of immunity abolishes a duty per se (and therefore precludes an assessment of percentage of fault under the comparative fault statutes as the trial court found), or whether an immunity serves only to protect the nonparty from being personally subject to liability where a duty otherwise exists. In fact, Romain did not discuss immunity at all, but instead focused on whether a duty was required to be proven before a person could be named a nonparty at fault. (Slip op at 14)

But the majority in Slager found it “unnecessary” to decide this issue or the issue of whether the parents had a legal duty to obtain the prescribed medical care. Instead, they considered the decisive issue to be whether comparative fault statutes even apply to situations where pre-tort reform law would not have imposed joint and several liability in the first place.

The majority summarized the pre-comparative fault law as imposing joint and several liability only where more than one tortfeasor was actively at fault and the tortfeasors either (1) shared a common duty or common design or (2) acted in concert or (3) produced a single indivisible injury. See Markley v Oak Health Care Investors of Coldwater, Inc, 255 Mich App 245, 252 (2003).

4 In Kaiser v Allen, 480 Mich 31, 37 (2008), the Michigan Supreme Court stated that the “tort-reform statutes … abolished joint and several liability in cases in which there is more than one tortfeasor actively at fault.”

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Here, the majority believed there was no common duty or concert of action between the daycare center and the parents. Nor was there any “single indivisible injury,” apparently because the doctor was able to articulate how much better Chad’s finger would have healed had the parents followed through with the prescribed therapy. Thus, the court concluded, under pre-tort reform law, the parents would not have been joint and several tortfeasors with the daycare center. The majority then noted that the purpose of Michigan’s comparative fault statutes,

MCL 600.2956, 2957 and 6304, was to eliminate joint and several liability in situations where such liability otherwise existed.4 In their opinion, because this case is not one in which there would have been joint and several liability before 1995 when the comparative fault statutes were enacted, those statutes did not apply. In reaching this conclusion, they noted the following statutory language:

MCL 600.2956 (“[I]n an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each defendant for damages is several only and is not joint.”)

MCL 600.2957 (1) (“In an action based on tort or another legal theory … the liability of each person shall be allocated under this section by the trier of fact and, subject to section 6304, in direct proportion to the person’s percentage of fault. … [T]he trier of fact shall consider the fault of each person, regardless of whether person is, or could have been, named as a party to the action.” MCL 600.6304

(1)(b) (requiring the trier of fact to make “findings” on, among other things, “[t]he percentage of the total fault of all persons that contributed to the death or injury …”)

(2) considering “both the nature of the conduct of each person at fault and the extent of the causal relation between the conduct and the damages claimed.”

(4) “Liability in an action to which this section applies is several only and not joint.”

(8) “As used in this section, “fault” includes an act, an omission, conduct … that is a proximate cause of damage sustained by a party.”) The court concluded that the reference to “fault” in the above statutes was to the fault mentioned in § 6304(1)(b) and (2), i.e., the fault “that contributed to the death or injury” and which proximately caused the damages. If conduct was not part of the “causal chain” causing the original injury, it should not be considered by the trier of fact. Here, the conduct or inaction of Chad’s parents played no role in causing the original injury to Chad’s finger, and so MCL 600.6304 would GARAN LUCOW MILLER, P.C.

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not permit the trier of fact to consider any damages that the parents may have caused Chad to suffer:

[I]n regard to Chad’s medical treatment after the injuries occurred at the daycare center did not trigger the need to assess their fault for purposes of the comparative fault statutes, given that such negligence was not part of the causal chain in regard to Chad’s finger becoming crushed and lacerated in the first place. Rather, any negligent conduct by the parents constituted a subsequent, separate tort that initiated a new causal chain leading to its own set of damages. However, on remand, and under general principles of tort law, plaintiff will have to prove by a preponderance of the evidence that any claimed damages were caused solely by defendants’ negligence. [Emphasis added.]

Thus, it would be improper to allow the jury to allocate fault to the parents, and also improper for the jury to award damages for any injuries attributable to the parents’ failure to follow through with proper treatment.

Judge Christopher Murray dissented. He would have reversed the trial judge and allowed the trier of fact to allocate fault to the parents even though they were immune from liability to their child. He believed that the majority erred by addressing issues of joint and several liability which had been neither raised nor briefed by the parties. He would have instead forthrightly address the issue of the very nature of immunity and whether it affects the existence of their duty. He agreed with the majority that the Michigan Supreme Court sidestepped this issue in Romain but would have held that “the availability of an immunity has no bearing on whether a duty exists, but rather focuses on redressability.” In his opinion, the immunity these parents enjoyed did not abolish their duty to seek appropriate medical care in the first place:

[I]t is well-established that parents have a duty to provide for the support and maintenance of their minor children, including for the provision of medical care. Speaking directly to this point, this Court has stated that a “parent’s duty to support a minor child requires the parent to furnish all necessaries essential to the health and comfort of the child, including, for example, medical care.” Manley v Detroit Automobile Inter-Insurance Exchange, 127 Mich App 444, 453; 339 NW2d 205 (1983), aff’d in part and rev’d in part on other grounds 425 Mich 140 (1986). That this duty is legal as well as moral is universally recognized in jurisdictions throughout this county, and Michigan is no exception. Plumley v Klein, 388 Mich 1, 8, n 6; 199 NW2d 169 (1972) (referring to the rule that a minor child may sue his parent in tort, and therefore in negligence, as the “original common law rule”); 59 Am Jur 2d, Parent and Child, §§ 45, p 213 (“A [parent’s] duty to support and maintain minor children is universally recognized . . . [e]ven in the absence of statute …”) [then citing cases from other jurisdictions to the same effect]. (Dissent at 4) Judge Murray also disagreed with the majority’s statutory analysis. He noted that MCL 600.2957(3) specifically states that the comparative negligence provisions “do not eliminate or diminish a defense or immunity that currently exists…”. From this, he concludes that the defense of immunity would not abrogate a duty.

FINAL RULE: The fault of a parent in failing to secure proper treatment for a child’s injuries cannot be considered in the child’s claim against the original tortfeasor(s), but … The plaintiff child has the obligation to prove as part of his prima facie case the extent of any damages proximately caused by the original tortfeasor(s), and … Even though such a parent may not be identified as a nonparty at fault, any damages attributable to the parent’s negligence are not recoverable from either the original tortfeasor or the parent. The majority opinion also implies that the result here would have been different if: ! The parents’ fault occurred BEFORE and/or CONCURRENT with the defendant daycare center’s fault and had been part of the “causal chain” that contributed to the original injury, and not just to its healing. For instance, the majority opinion suggests that the parents’ fault would be considered if their negligent supervision of their child contributed toward causing the original accident.

! There had been a “single indivisible injury”, i.e., the damages attributable to the parents’ fault had not been ascertainable.

It is impossible to predict if this decision will be appealed since the “losing” defendant is now actually in a better position than if it had won. The plaintiff may not recover for damages attributable to the parents, and the plaintiff now has the burden of proving that Chad’s injuries are attributable only to the defendant instead of the defendants having the burden of proving the parents’ fault (and the impact of that fault on damages), which is what MCL 600.2960 would otherwise have required had the parents been identified as nonparties at fault. At least for the moment, however, this published opinion will constitute authority which is binding on the lower courts.

One further note: Notably absent from either opinion are these two old shibboleths, which may now be at least arguably less applicable given comparative fault: ! The comparative negligence of the parent may not be imputed so as to reduce recovery attributable to the child’s damages. See Byrne v Schneider’s Iron & Metal, Inc, 190 Mich App 176(1991) and Restatement Second, Torts § 488(1).

! A tortfeasor is liable for the results of even negligent treatment of the injured victim. Prosser & Keeton, Torts (5th ed), § 44, p 309.

STATUTORY MAXIMUM THE ANNUAL COLA ADJUSTMENT INCREASES THE STATUTORY MAXIMUM TO $4,929 AS OF OCTOBER 1, 2010. THIS REPRESENTS A 1.05% INCREASE OVER THE 2009 STATUTORY MAXIMUM.

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Upcoming Seminars BUCKEYE SEMINAR

Wednesday, October 13, 2010 at the Greater Columbus Convention Center in Columbus, Ohio. Agenda as follows:

8:30 – 9:00 a.m. CONTINENTAL BREAKFAST / REGISTRATION

9:00 – 9:10 a.m. WELCOME AND INTRODUCTION

Speaker: SUSAN M. WILLIAMS

9:10 – 10:00 a.m. 2010 NOTEWORTHY NO-FAULT DECISIONS

Speaker: CARYN GORDON

*McCormick v. Carrier

*U of M v. Titan

*Overview of important Court of Appeals’ decisions

10:00 – 11:00 a.m. MICHIGAN AUTOMOBILE NO-FAULT – PIP UPDATE Speaker: STACEY KING

*Test of the Employment Relationship

*PIP Causation

*Partial or Total Reimbursement of Incurred Allowable Expenses

*Stolen Vehicle Exclusion – MCLA §500.3113(A)

*Uninsured Motor Vehicle Exclusion – MCLA §500.3113(B)

*Avoiding Attorney Fees – MCLA § 500.3148(1)

11:00 – 11:15 a.m. BREAK 11:15a.m. – 12:00 p.m. CATASTROPHIC INJURIES Speaker: SUSAN M. WILLIAMS

*Home modifications

*Transportation purchase/agreements

*Attendant Care

12:00 – 1:30 p.m. LUNCH 1:30 – 2:15 p.m. MEDICAL MARIJUANA AND OTHER NON-STANDARD TREATMENTS UNDER THE NO-FAULT ACT

Speaker: MATTHEW LaBEAU 2:15 – 3:00 p.m. 3RD PARTY AUTO/TORT LIABILITY

Speaker: JOHN WHITMAN 3:00 – 3:30 p.m. QUESTION AND ANSWER SESSION

RETURN EVALUATION FORMS

Comprehensive written materials will be distributed to all program attendees. To register please contact Eileen Carty at Ecarty@garanlucow.com.

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WINDY CITY SEMINAR Thursday, November 4, 2010 at the DoubleTree Hotel in Arlington Heights, Illinois. Agenda as follows:

8:30 – 8:55 a.m. CONTINENTAL BREAKFAST / REGISTRATION

8:55 – 9:00 a.m. WELCOME AND INTRODUCTION

Speaker: DAVID A. COUCH

9:00 – 9:25 a.m. MICHIGAN THIRD PARTY AUTOMOBILE NEGLIGENCE UPDATES

Speaker: DAVID A. COUCH

*The Michigan Supreme Court’s controversial opinion in McCormick v. Carrier

and recent Court of Appeals opinions since the overruling of Kreiner v Fischer.

What does it mean for auto insurers in Michigan?

9:25 – 9:45 a.m. USING SOCIAL NETWORKING SITES AS A DISCOVERY TOOL

Speaker: DAVID A. COUCH *Where to discover impeachment material and how to best use it to the advantage of your case. 9:45 – 10:30 a.m. MICHIGAN FIRST PARTY NO FAULT (PIP) – THE YEAR IN REVIEW

Speaker: EDWARD M. FREELAND

*Recent cases involving the Statute of Limitations, Medical Causation, Attendant Care, Wage Loss and the Parked Vehicle Exclusion.

10:30 – 10:40 a.m. BREAK

10:40 – 11:25 a.m. HANDLING OF MI AUTO NO FAULT CATASTROPHIC CLAIMS

Speaker: DAVID N. CAMPOS

11:25 – 12:10 p.m. INDIANA LAW AND ILLINOIS LAW UPDATES

Speaker: GREGORY M. BOKOTA

12:10 – 12:30 P.M. QUESTION AND ANSWER SESSION

RETURN EVALUATION FORMS Comprehensive written materials will be distributed to all program attendees. To register please contact Eileen Carty at Ecarty@garanlucow.com.