October 22, 2015
Plaintiff Michael Francescutti was the co-owner of a condominium unit in defendant Fox Chase Condominium Association’s development in Macomb County. In February 2013 at approximately 11 p.m., while he was walking his dog, Francescutti slipped and fell on an icy, snow-covered sidewalk located in a common area of the development and was injured. Francescutti sued the Fox Chase Condominium Association, alleging negligence and breach of contract.
Regarding his negligence claim, Francescutti maintained that Fox Chase owed him a duty under MCL 554.139 to maintain the property in reasonable repair. But the Court of Appeals disagreed. The Court pointed out that the statute imposes a duty on lessors of land to lessees, but that Fox Chase did not lease the common areas of the development to Francescutti, and that therefore it was not a lessor and Francescutti was not a lessee.
Next, Francescutti argued that the trial court improperly dismissed his negligence claim by treating it as a claim of premises liability rather than a claim of general negligence. Again, the Court of Appeals disagreed. The Court stated that the substance of Francescutti’s allegations sounded in premises liability, even though he called his claim one of general negligence. The trial court had granted Fox Chase’s motion for summary disposition on the basis that the doctrine of open and obvious danger barred Francescutti’s negligence claim, and the Court of Appeals did not disturb that result on appeal. Moreover, the Court of Appeals stated that since condominium owners, such as Francescutti, are co-owners as tenants in common of the common areas in a condominium development, condominium associations do not owe a duty to condominium owners under premises liability. Instead, the Court stated, any such duty owed by a condominium association to a condominium owner would have to arise from principles of general negligence or breach of contract.
Regarding Francescutti’s claim of breach of contract, the Court concluded that Francescutti’s complaint simply failed to plead a claim of breach of contract, because it failed to identify any specific contractual language that created a contractual duty that was breached.
The published opinion of the Court of Appeals is Francescutti v Fox Chase Condominium Association, __ Mich App __ (10-15-2015), and is available at the following weblink: http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20151015_C323111_36_323111.OPN.PDF
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COURT OF APPEALS REAFFIRMS STRICT ENFORCEMENT OF AUTO POLICY’S
UNAMBIGUOUSNOTICE REQUIREMENT FOR UNINSURED MOTORIST CLAIMS
By Eric J. Smith
In Grimmett v Farmers Insurance Exchange, (Unpub, COA No. 321492, 10/6/15), the Court of Appeals was asked to review the trial court’s order granting summary disposition to the insurance defendant. Defendant had moved for dismissal arguing the person claiming coverage failed to satisfy the policy’s UM provision requirement of providing notice to the police within 24 hours of an accident andthe insurer within 30 days of the accident.
The Court of Appeals found a factual question whether notice was given to the carrier within 30 days. However, there was no dispute that plaintiff did not make a police report until nearly two months after the accident. In upholding the trial court’s grant of summary disposition to Farmers, the Court of Appeals noted that the strict notice requirement was not unduly harsh nor was it simply a procedural formality. Rather, the purpose of such provisions is to allow a carrier an adequate opportunity to investigate a claim, to prevent fraud and to assess its potential liability. Grimmett is significant in that it shows the higher courts of Michigan will continue to enforce a policy’s notice provision to the letter.
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JEFFERY S. MATIS
APPOINTED TO OAKLAND COUNTY CIRCUIT COURT
Garan Lucow Miller, P.C., is proud to announce that Jeffery Matis of our Troy office has been appointed by Governor Rick Snyder as a Judge on the Oakland County Bench.
Jeff has also served as an adjunct professor at the Western Michigan University Thomas Cooley Law School, Vice Chairman of the Oakland County Board of Commissioners, and previously served as a Rochester City Councilman from 2007 to 2010. Jeff earned his bachelor’s degree in business from Oakland University and his law degree from the University of Detroit.
Congratulations to Judge Jeffery S. Matis!