CASES PENDING BEFORE THE COURT
October 2001 - May 2002 Session

ALLSTATE INSURANCE v McCARN (118266) -At issue: While living with his grandparents, a 16-year-old shot and killed his friend in the grandparents' house. The teens were apparently playing with the gun and believed it was unloaded. Is the incident an "accident" under the grandparents homeowner's policy -- and is their insurance company obligated to defend them in a lawsuit brought by the dead teenager's estate? Background: Robert McCarn, the 16-year-old grandson of Ernest and Patricia McCarn, was living with his grandparents when he shot his 16-year-old friend Kevin LaBelle. Robert and Kevin had been playing with Robert's gun, which they thought was unloaded. Nancy LaBelle, the dead teen's mother, brought a wrongful death lawsuit against Robert, Ernest and Patricia McCarn. The McCarns had a homeowners insurance policy with the plaintiff, Allstate Insurance. The policy provided coverage for "an occurrence" and defined occurrence in part as "an accident ... resulting in bodily injury or property damage." Allstate filed a lawsuit against the McCarns, seeking a declaratory judgment that it had no duty to defend Robert, Ernest or Patricia in the wrongful death action. Allstate argued that the shooting was not an "occurrence" covered by the policy. Shiawasee Circuit Court Judge Gerald D. Lostracco found that Allstate owed the McCarns a duty to defend and indemnify them in the wrongful death action. The Court of Appeals disagreed and reversed in an unpublished decision. Because Robert should have expected harmful consequences from pointing a gun at another person and pulling the trigger, the incident was not an "accident," the Court of Appeals stated. The McCarns appeal.

ARCHAMBO v LAWYERS TITLE INSURANCE (118508) - At issue:  When the plaintiff bought back property he had owned five years earlier, he did not reveal that there was a tax lien on the property. The title commitment document, which served as an application for title insurance, provided that there would be no coverage if there were any undisclosed liens on the property, whether or not they were recorded. By contrast, the title insurance policy itself stated that there would be coverage for known liens if the liens were recorded. Which document controls the dispute? The answer will determine whether the title insurance company has to reimburse the plaintiff for payments he made to settle the lien and clear the title. Background: In 1992, Clarence J. Archambo III bought back property he had sold in 1987. While there was a tax lien of $100,000 on the property prior to 1987, Archambo said he believed the lien had dropped off by the time he bought it back in 1992. First of America Bank financed the 1992 purchase, and asked for title insurance for its mortgage protection. Lawyers Title Insurance provided the title commitment, which also served as an application for owner's protection insurance for Archambo. The title commitment document stated that coverage was conditioned on there not being any undisclosed liens on the property, whether recorded or not. The commitment document also provided that the failure to disclose liens would invalidate the commitment and title insurance policy. When the policy was issued, it stated that there was no coverage for liens that were known to Archambo but not recorded. The policy further stated that the policy itself was the complete contract between the parties. An initial search of records did not turn up the tax lien because the bank had given the plaintiff's name as Clarence Archambo rather than Clarence G. Archambo, III. When another record check was made with the right name, Lawyers Title Insurance did not search all the way back in the deed records, but started from March 1992, when it committed to provide title insurance. When Archambo sold the property in October 1993, the tax lien showed up. Archambo had to borrow more than $19,000 to settle with the IRS in order to clear the title to the property. He eventually sued Lawyers Title to recover the money he spent to clear title. Cheboygan Circuit Judge Robert C. Livo ruled in favor of Archambo, stating that the policy, not the title commitment, governed the dispute. Because the lien was recorded, the insurance company could not deny coverage, the judge found. Ultimately, a 2-1 majority of a Court of Appeals panel stated that the policy never took effect because Archambo did not disclose the lien, as required by the title commitment. Archambo appeals.

BARAGA COUNTY v. STATE TAX COMMISSION (118922) - At issue: Can local governments settle tax disputes with property owners by agreeing to take property off the tax rolls - without the consent of the State Tax Commission? The answer could affect many parcels of land in Michigan. Background: Plaintiffs Rosemary Haataja and Amy St. Arnold are members of the Keweenaw Bay Indian Community (KBIC), a federally recognized Indian tribe with a reservation located in Baraga County. Haataja resides in L'anse Township; St. Arnold resides in Baraga Township. In 1992, Haataja and St. Arnold, along with many other tribal members who owned property in those two townships, objected to the proposed sale of their land at the annual tax sale. They claimed that Michigan lacked jurisdiction to tax land located within the reservation. In 1994, the townships and KBIC members settled the dispute through a consent judgment entered by the Tax Tribunal. Under the consent judgment, the townships agreed to remove the tribal members' property from the tax rolls. A second "tribal" roll was created; properties on the tribal roll were assessed as any other properties in the townships, except that the bills were sent to the KBIC instead of the individual property owners. The KBIC would then make a payment in lieu of taxes for the full amount of tax that would be due if the property were owned by a non-tribal member and placed on the tax rolls. In 1999, however, the Michigan State Tax Commission ordered the townships' tax assessor to place the tribal properties back on the tax rolls. The Commission asserted that property located on Indian reservations and owned by Indian tribes or their members was subject to taxation by the State of Michigan - regardless of any agreements between Indian tribes and local units of government. The plaintiffs filed suit in Baraga Circuit Court in February 1999 to enforce the 1994 agreement. The Tax Commission argued that the 1994 consent judgment could not be enforced because neither the Tax Commission nor the State of Michigan was a party to the 1992 suit. But Baraga Circuit Court Judge John D. Payant ruled that the State Tax Commission was bound by the 1994 consent judgment. The Court of Appeals affirmed. The State Tax Commission appeals.

BYKER v MANNES (116380) - At issue: Where the plaintiff and defendant shared a number of business ventures over several years, did their actions create a partnership between them? Background: The plaintiff, David Byker, entered into a number of business enterprises with defendant Thomas Mannes. While they did not enter into a written contract, they agreed to split profits and losses from any enterprise that was developed on an equal basis. Byker claims there is a general agreement or "super partnership" underlying his business dealings with Mannes, while Mannes asserts that he merely invested in separate business adventures with Byker. Byker argues, among other things, that Mannes owes him for half of the money that Byker expended on one of their business ventures. The parties agree that the alleged "super partnership" has no formal name, no tax identification number, and no formal partnership agreement, and that it has never filed income tax returns. Kent County Circuit Judge H. David Soet found that the parties could create a partnership by their acts and conduct, without a formal agreement. He entered judgment in favor of Byker. The Court of Appeals, in an unpublished opinion, vacated Judge Soet's ruling and remanded the case, instructing the trial judge to dismiss Byker's claim. Byker appeals.

CAIN v WASTE MANAGEMENT INC (116389, 116945, 116573) - At issue: Is a worker "totally and permanently disabled" where he can walk and function at work - but only by using a prosthesis? Should his condition be evaluated with the prosthesis - or without it? Background: Scott Cain, a 26-year-old truck driver and trash collector for Waste Management, was at work when a car crashed into the back of his truck, crushing him between the two vehicles. Cain's right leg had to be amputated and his left leg was seriously injured. Following the accident, he suffered a stress fracture in the left leg, requiring surgery and a leg brace. After extensive physical therapy, he learned how to walk with a prosthetic leg and eventually returned to work with Waste Management as a salesman. Ultimately, Cain became a salesman at a car dealership. filed a petition with the Bureau of Workers' Compensation, seeking total and permanent disability benefits. A magistrate awarded benefits for the loss of both legs, finding that Cain was totally and permanently disabled. The magistrate stated that Cain lost the use of his left leg when he suffered the stress fracture because the leg was useless from then on without the leg brace. On appeal, the Workers' Compensation Appellate Commission reversed, saying in part that Cain's condition had to be evaluated in its "corrected" state with the prosthesis and that, when "corrected," Cain's left leg functioned well. The Court of Appeals disagreed, saying that the "corrected" test has only been applied in Michigan to cases involving vision and not to other disabilities. The defendants appeal.

CAM CONSTRUCTION v LAKE EDGEWOOD CONDO ASSOCIATION (116751) – At issue: Where the fourth count of a four-count complaint was dismissed before the remaining counts were mediated, can the plaintiff proceed to appeal on the fourth count - or was the claim resolved in mediation? Background: The plaintiff, a construction company, sued the defendant condominium association. Three counts of the plaintiff's complaint related to warranty inspection services the plaintiff said it had performed for the defendant. The fourth count related to breach of contract for a roofing project. Livingston County Circuit Judge Daniel A. Burress dismissed Count IV of the complaint. The other three counts went to mediation and the mediation award was accepted by both parties. When the trial judge prepared to dismiss the case, the defendant argued that all claims, including Count IV, were resolved by the mediation. The plaintiff argued that Count IV was not included in the mediation and that it could appeal the fourth count to the Court of Appeals. The Court of Appeals declined to hear the case, saying that there was no jurisdiction because there was no final order entered pertaining to the trial court's dismissal of Count IV. The plaintiff appeals.

IN RE CERTIFIED QUESTION (WAYNE COUNTY v PHILIP MORRIS) (118261) – At issue: Can Wayne County sue tobacco manufacturers that the State already sued and released from future claims by the State and its counties? The answer could affect how much the State can recover from tobacco manufacturers. In addition, other Michigan counties could sue the tobacco industry if Wayne County is allowed to sue. Background: In 1996, the Attorney General, on behalf of the People of Michigan, sued numerous tobacco industry entities. The Attorney General sought comprehensive injunctive relief and money damages, arguing that the tobacco industry had harmed the public health, safety, and welfare. That case was settled in December 1998 as part of a Master Settlement Agreement between the tobacco industry and the Attorneys General of 46 states. Michigan's share of the national tobacco settlement is expected to be about $8.5 billion over the initial 25 years and $348 million, adjusted for inflation and other factors, each year thereafter in perpetuity. In the Master Settlement Agreement, Michigan and other settling states agreed not to sue the tobacco industry for a broad range of claims. The settlement agreement covered each settling state and its subdivisions, including counties. The settlement also included a related "offset" provision. Under the "offset" provision, if any subdivision of the State sues the tobacco defendants and recovers damages in spite of the release, Michigan's award will be reduced. In 1999, Wayne County sued tobacco industry entities, naming as defendants parties the State of Michigan had already sued and settled with. In December 1999, the defendants removed the case to the U.S. District Court for the Eastern District of Michigan, based on diversity of citizenship. The tobacco industry defendants moved to dismiss the county's complaint. After hearing oral argument in June 2000, U.S. District Judge Paul D. Borman stayed proceedings and certified the following question to the Supreme Court: "Does the Michigan Attorney General have the authority to bind/release claims of a Michigan county as part of a settlement agreement in an action that the Attorney General brought on behalf of the State of Michigan?" More recently, the Attorney General moved to intervene. Wayne County argues that the Attorney General did not have the authority to release Wayne County's claims against the tobacco industry, so the Settlement Agreement should not prevent Wayne County's suit. The Attorney General argues that, if Wayne County's argument prevails, any political subdivision of the State could block the State's settlement of statewide litigation.

IN RE HON. SUSAN R. CHRZANOWSKI (116721) – At issue: Should Judge Susan Chrzanowski be suspended from serving as a judge? Background: Judge Chrzanowski (37th district Court, Warren) had an intimate relationship with attorney Michael J. Fletcher while he was married to another woman. Judge Chrzanowski appointed Fletcher to represent indigent criminal defendants in approximately 64 matters in her court. When Fletcher appeared before her in those cases, neither she nor he disclosed the nature of their relationship. Eventually, Mr. Fletcher murdered his pregnant wife. He was convicted of second-degree murder. The Judicial Tenure Commission argues that Judge Chrzanowski "has exposed the legal system to ridicule and scorn" and that her conduct "evidences a lack of judicial fitness." Judge Chrzanowski argues that her conduct did not violate the Michigan Code of Judicial Conduct.

CRUZ v STATE FARM (117505) - At issue: The plaintiff's auto insurance contract stated that he must submit to an examination under oath (EUO) in making an insurance claim. Should his claims for coverage be dismissed because he refused to submit to an EUO?  Background: The plaintiff, Peter Cruz Jr., was in an automobile accident with an uninsured driver and claimed he was seriously injured in the accident. Cruz had auto insurance through defendant State Farm. The policy provided uninsured motorist coverage and first-party coverage, which is required by law. The policy also included an "examination under oath" (EUO) provision. The provision stated that, in making an insurance claim, the insured person "shall answer questions under oath when asked by anyone [the insurance company] name[s], as often as we reasonably ask, and sign copies of the answers." After Cruz made his claim, State Farm repeatedly asked him to submit to an EUO. Cruz refused, arguing that Michigan's no-fault law did not require him to do so. He did provide releases for his employment and medical records, and he also attended the independent medical examinations State Farm requested. State Farm denied plaintiff's claims because he had refused to answer questions under oath. Cruz sued State Farm. Kent County Circuit Judge Paul J. Sullivan dismissed one count of Cruz's complaint, which sought uninsured motorist benefits. The judge ordered Cruz to submit to an EUO as a condition of proceeding with the second count, which was for first-party benefits. After Cruz refused to submit to the EUO, Judge Sullivan dismissed the second count. In an unpublished opinion, the Michigan Court of Appeals affirmed the trial judge's decision on the first count, but reversed as to the second count. The EUO provision in State Farm's insurance contract was contrary to the no-fault law, the Court of Appeals stated, because first-party accident insurance is required by Michigan's no-fault act, and because the no-fault law does not provide for EUOs. State Farm appeals.

FEDERATED PUBLICATIONS v. CITY OF LANSING (118184 & 118186) - At issue: Should the City of Lansing disclose files related to internal Police Department investigations in response to a newspaper's Freedom of Information Act request? Background: Federated Publications, which publishes the Lansing State Journal, made a request under the Freedom of Information Act (FOIA) to the City of Lansing in January 1998. The Journal sought "any reports or other documents regarding complaints investigated by the Lansing Police Department Internal Affairs Bureau" for 1997. The City denied most of the request, stating that the documents were exempt from disclosure under FOIA. The newspaper sued. Ingham County Circuit Judge Peter Houk ruled that the city would be required to disclose files regarding citizen-initiated investigations. However, the City of Lansing did not have to disclose documents concerning internally generated investigations by the Police Department, the judge stated. Ultimately, the Court of Appeals held, in an unpublished opinion, that the newspaper was also entitled to records of internally generated investigations. On appeal to the Supreme Court, the City of Lansing argues that the internal investigation documents are "personnel files" that should be exempt from disclosure. Making that information public would discourage citizens and city employees from cooperating with internal investigations, the City contends. The newspaper argues that the public has an interest in the records since they bear on how well the City's investigation process works. The public's interest in disclosure outweighs any interest in non-disclosure, the newspaper claims. The police union, which has intervened as a defendant in the case, points out that Michigan's Employee Right to Know Act prevents an employee who is the subject of an internal investigation from gaining access to investigation records. It makes no sense to interpret FOIA to allow newspapers to obtain access to this information, when even the employee who was the target of the investigation could not get the information, the union argues. The union also contends that the records are internal communications of a government agency, and are therefore exempt from disclosure. The union further argues that disclosing the documents would violate individual police officers' privacy.

GENERAL MOTORS v DEPARTMENT OF TREASURY (116984) - At issue: General Motors and its dealers, under a "Goodwill Adjustments Policy" program, provides free vehicle parts to GM customers after express warranties on the vehicles expire. The Michigan Department of Treasury argues that GM must pay a use tax on the free parts, including millions of dollars in back taxes. GM argues in part that the use tax is really an unconstitutional "double tax" because the cost of the replacement parts is included in the purchase price and is taxed at the time of sale. The Court's decision in this case could have a wide impact, affecting other auto and durable goods manufacturers who have similar programs.  Background: GM sells motor vehicles to dealerships throughout Michigan. Because these sales are not retail sales, they are not subject to the General Sales Tax Act. General Motors does pay a sales tax on each sale by its dealers, based on the "gross proceeds" its dealers receives from customers. Under GM's post-warranty Goodwill Policy Adjustment Program, GM permits its dealers to perform certain repairs after the warranty has expired. GM pays the dealers for their labor as well as the cost of the part. In 1989, the Michigan Department of Treasury audited GM for the period of 1986-1992. As a result of that audit, the Department of Treasury said GM must pay a use tax on the "goodwill" repairs. In 1997, the Department assessed $5.5 million in use taxes against GM for 1986-1992. GM paid $744,555 under protest, for the use taxes and interest claimed by the Treasury Department for 1990-1992. GM then filed suit in the Court of Claims and in the Michigan Tax Tribunal. In its complaint, GM claimed 1) that the Department lacked statutory authority to impose the use tax; 2) that the Department violated the equal protection and uniformity clauses of the federal and Michigan constitutions because it did not impose the tax on other similarly situated taxpayers; 3) that the Treasury Department violated GM's right to due process because the Department revoked its own earlier rulings regarding the use tax; and 4) that the tax constituted double-taxation in violation of the Commerce Clause of the federal constitution. The fifth count of GM's complaint called for declaratory relief. The Department of Treasury responded in part that the use tax was not a "double tax" on GM because GM is not a party to the initial retail sale, the transaction that generates a sales tax.   Ultimately, the Court of Claims dismissed GM's suit. In an unpublished per curiam opinion dated May 9, 2000, the Court of Appeals affirmed in part and reversed in part. The Court of Appeals said that GM had shown that Ford Motor Company might have been treated differently by the Department of Treasury, so the Court of Claims should not have dismissed the second count of GM's complaint. GM appeals.

JONES v CITY of FARMINGTON HILLS (117935) (To be argued with POHUTSKI v CITY OF ALLEN PARK) – At issue: Is the City of Farmington Hills liable for flooding damage to some residents' homes? Background: Twenty-eight plaintiffs representing 19 homes brought sued the City of Farmington Hills. Their homes were flooded by raw sewage and water after a heavy rainfall in August 1998. The trial judge granted summary disposition on liability in favor of the plaintiffs. The Court of Appeals initially agree to hear the case, but later ordered the trial court to rehear the case instead. Defendants argue that Michigan's governmental immunity statute bars the residents' lawsuit.

KITCHEN v KITCHEN (116459) – At issue: Can a property owner give a permanent license to use the land to another - by making an oral promise? Background: William and Robert Kitchen are two brothers who were 50/50 owners of Kitchen Farms, one of the largest potato farming businesses in Michigan. After business disputes, they agreed to hold a private auction to determine which brother would buy out the other. William Kitchen was the high bidder at the auction and purchased all of Robert Kitchen's interest in the business. Later, Robert refused to let William to use irrigation equipment that ran over Robert's property, which abutted the corporate farm property. William argues that he is permitted to use the irrigation equipment because Robert earlier gave an oral promise that a part of the irrigation system would be allowed to travel across his land "in perpetuity," giving William a permanent license by estoppel. Judge Thomas Power of Antrim County Circuit Court dismissed William's complaint. The Court of Appeals affirmed, holding that an interest in land cannot rest upon an oral promise or estoppel. William appeals.

KOONTZ V AMERITECH (116366) - At issue: The plaintiff became eligible for a pension after Ameritech eliminated her position. Instead of a monthly pension, she opted for a lump-sum transfer to an IRA account. Later, the plaintiff applied for unemployment benefits. Should her unemployment benefits be reduced by the amount of the pension payments that she could have received? Background: The plaintiff, Nancy Koontz, worked in Ameritech's Traverse City office from early 1965 until Ameritech closed that office on August 4, 1995. Instead of continuing employment at another Ameritech office, Koontz accepted a pension enhancement package that increased by three years her credits for both "age" and "years of service." Because of the additional years of service, Koontz could have begun immediately to draw a $1,052.95 per month pension. Instead, she opted to have the $185,711.55 present value of her pension entitlement transferred directly into an IRA account. Koontz filed for unemployment benefits. Ameritech argued that the Michigan Employment Security Act requires that any unemployment benefits the plaintiff receives should be reduced by the amount of pension payments that plaintiff would have been entitled to, if she had not chosen the lump-sum transfer instead. Ultimately, Grand Traverse County Circuit Judge Philip E. Rodgers ruled that unemployment benefits should be reduced by the monthly pension amount. In a published opinion, the Court of Appeals reversed. Ameritech appeals.

LAPEER CITY CLERK ET AL v LAPEER CIRCUIT JUDGES (118091, 118102) – At issue: This case presents a conflict over responsibility for records, filings, and other clerical matters in the family division of circuit court. The answer will affect Michigan's family courts. Background: Michigan's family division of circuit court was created by a 1996 statute. Under a local administrative rule, the Lapeer Circuit Court designated employees of that county's former probate court to perform certain clerical functions of the family division of the circuit court. The local rule stated in part that probate court employees were responsible for records, scheduling and filings in juvenile, child protection, and adoption proceedings. The County Clerk sued, arguing that the rule assigned to others duties that belonged to her office. The Court of Appeals agreed and struck down parts of the local rule that directed family court staff, rather than the County Clerk, to perform the duties assigned to the Clerk by statute or court rule. The Court of Appeals declared lawful the remaining portions of the local rule. The Lapeer Circuit Judges and Lapeer County appeal.

LEROUX v SECRETARY OF STATE (120338) - At issue: The redistricting of Michigan's 15 seats in the U.S. House of Representatives.  Background: On September 11, 2001, Governor John Engler signed 2001 PA 115, providing for the redistricting of Michigan's fifteen seats in the U.S. House of Representatives. The plaintiffs, who are described in the complaint as voters from Bay and Calhoun counties, brought their suit before the Michigan Supreme Court on November 6, 2001. The named defendants are the Secretary of State and the Director of Elections. Under Public Act 222 of 1999, the Michigan Supreme Court has "original and exclusive state jurisdiction" over state claims regarding congressional redistricting. The statute allows any voter to bring suit challenging a redistricting plan. A companion statute, 1999 PA 221, sets out standards for drawing congressional districts The plaintiffs argue that those standards apply to the redistricting plan. One of the criteria for drawing districts directs that "Congressional district lines shall break as few county boundaries as is reasonably possible." The plaintiffs claim that the plan violates that provision and that the plan confers an advantage on Republican candidates. The plaintiffs ask that the Michigan Supreme Court come up with its own redistricting plan. A federal lawsuit challenging the redistricting plan was also filed in the Eastern District of Michigan (Case No. 01-72584). Judge Boyce Martin, Chief Judge of the U.S. Court of Appeals for the Sixth Circuit, and Eastern District Judges Julian Abele Cook and David M. Lawson have been assigned to that case. The plaintiffs in the federal suit ask the federal court to act if the Michigan Supreme Court fails to adopt a valid congressional redistricting plan by the April 1, 2002.

LESNER v LIQUID DISPOSAL (116205) – At issue: Where a disabled man was partially dependent on his son for financial support, what is the correct way to calculate worker's compensation death benefits for the father after the son dies? Should the amount of benefits be based on the deceased's son's total after-tax earnings - or only on the amount he contributed to support his father? Background: Randy Lee Lesner lived with his mother, brother and 72-year-old father, Robert C. Lesner, who is disabled. Randy Lee, his mother and brother all contributed part of their earnings to support Robert Lesner. In 1992, Randy Lee Lesner died of work-related exposure to toxic gases. Ultimately, the Worker's Compensation Appellate Commission based its calculation of death benefits to Robert on the $5,544 that Randy Lee contributed toward his father's support. The Michigan Court of Appeals reversed, saying that the amount of death benefits should have been based on Randy Lee's after-tax annual earnings of $27,831. Defendants appeal.

MACK v CITY OF DETROIT (118468) - At issue: Does an anti-discrimination provision in the City of Detroit charter give the plaintiff, a lesbian police lieutenant, the ability to sue for discrimination based on sexual orientation? The answer could determine whether local human rights ordinances forbidding discrimination based on sexual orientation create a right to sue. Michigan's state civil rights law, the Elliott-Larsen Act, does not cover discrimination against gays and lesbians.
Background: Linda Mack, a lieutenant with the Detroit Police Department, sued the City of Detroit in Wayne County Circuit Court. Mack claimed that male supervisors discriminated against her for being a woman and a lesbian. She stated that, after she rebuffed male co-workers' advances, they continued to harass her and changed her work assignments. As a result, Mack said, she suffered severe emotional distress, as well as damage to her reputation and career. Mack brought her anti-discrimination claim under a provision of the Detroit Home Rule Charter. A section of the Charter entitled "Declaration of Rights" states that "The City has an affirmative duty to secure the equal protection of the law for each person and to ensure equality of opportunity for all persons. No person shall be denied the enjoyment of civil or political rights or be discriminated against in the exercise thereof because of race, color, creed, national origin, age, handicap, sex, or sexual orientation." The Charter also states that the City's Human Rights Department has the duty to "[i]nvestigate complaints of unlawful discrimination against any person because of race, color, creed, national origin, age, handicap, sex, or sexual orientation in violation of any ordinance or any law within the city's jurisdiction to enforce, and secure equal protection of civil rights without discrimination." The City moved to dismiss the case, arguing that Mack's intentional infliction of emotional distress claim was barred by governmental immunity. The City also contended that the City Charter only allowed Mack to file a complaint with the Human Rights Department and did not provide for a cause of action in court. Wayne County Circuit Judge John A. Murphy agreed and dismissed the case. In a published decision, decided October 27, 2000, a divided Court of Appeals reversed, finding that the City Charter did create a private cause of action for discrimination based on sexual orientation. The City of Detroit appeals.

MOLLOY v. MOLLOY (120096) - At issue: A judge interviewed a child alone off the record, and relied on the interview in making the custody decision. Should the judge have relied on the interview only to establish the child's preference about custody? Background: Under Michigan law, judges making child custody decisions must consider the "best interests of the child," using a 12-factor analysis. One of the factors is "[t]he reasonable preference of the child, if the court considers the child t be of sufficient age to express preference...." The statute does not state how a judge should determine a child's preference. Michigan case law has established an in camera approach, with the judge interviewing the child alone off the record about the child's preference.   Peter and Wendy Molloy separated after nine years of marriage. Plaintiff Peter Molloy sued for divorce and sought custody of the couple's son, Casey. Casey spent some time living with defendant Wendy Molloy. Ultimately, Wayne County Circuit Judge Sheila Gibson Manning ruled that, even though Casey had an established custodial environment with his mother, Casey's best interests required changing custody to Peter Molly. In an in camera interview, Casey told the judge that he missed his father helping him with schoolwork. Casey also told the judge about an incident in which Casey threatened to commit suicide if his mother did not stop talking about his father. The judge indicated that the incident played a part in the decision to change custody. On appeal, Wendy Molloy claimed that the judge erred in using what Casey said during the interview to decide factors other than preference. Ultimately, the Court of Appeals agreed, adding that in camera interviews could violate parents' due process rights. The court stated that in camera interviews must be limited to the issue of child preference and that, in the future, all such interviews must be recorded and sealed for appellate review. Peter Molloy appeals.

NOWELL v. TITAN INSURANCE (119013)  - At issue: This dispute concerns whether a driver received notice that his auto insurance policy was going to be cancelled. The driver testified that he did not receive the notice until after an auto accident in which his passenger was injured, which took place about 16 hours after the policy was cancelled. Where the insurance company could not prove that the driver did see the notice before the accident, did the judge properly enter a judgment that the insurer had to provide coverage for the accident? Should the issue of the driver's credibility have been left for a jury to decide? Background: On December 4, 1996, Duane Isley purchased automobile insurance from Titan Insurance for his 1987 Ford pick-up. When Isley failed to pay the full amount of the premium, Titan sent by regular mail a notice of cancellation on February 20, 1997. The notice was mailed to Isley's parents' home, where he lived. The cancellation was effective March 5, 1997 at 12:01 a.m. standard time. On March 5, 1997, at approximately 8:30 p.m., Isley was involved in a single car roll-over accident in Ohio. His passenger, Martin Nowell, was injured. Isley was arrested and jailed for failing to have a valid driver's license. After he was released from jail, Isley went to his insurance agency on March 11 to change his policy, removing the pick-up and adding another vehicle. He did not tell the agency of the accident, but submitted a check for the balance of the premium. The insurance agent made the requested changes and noted on the change request form that the policy was reinstated as of that date. When Nowell sued for his injuries, Titan moved to dismiss the lawsuit. Titan argued that it was not liable to Nowell because Isley's policy had lapsed. But Nowell cited a deposition Isley gave in another lawsuit, in which Isley testified that he did not receive a cancellation notice until "at least two weeks" after his release from jail. Under Michigan law, an insurer is required to mail a cancellation notice not less than 10 days before the cancellation. Michigan case law also states that the insured person must receive actual notice before the cancellation becomes effective. Oakland County Circuit Judge Alice L. Gilbert stated that Titan had not shown that Isley did receive the cancellation notice before the accident. Accordingly, the judge denied Titan's motion and entered judgment in Nowell's favor. Titan moved for reconsideration, presenting affidavits from Isley and his parents that indicated that Isley might have received the notice but ignored it. The Court of Appeals affirmed. Titan appeals.

PEOPLE v CORNELL (115833) (To be argued with PEOPLE v SILVER) – At issue: Where the defendant was convicted of breaking and entering with intent to commit larceny - but argued that he did not intend to steal - was he entitled to a jury instruction that he could be convicted of a lesser offense, "breaking and entering without permission"? Should the defendant's conviction be reversed on that basis? Background: On the evening of February 14, 1996, the defendant and two companions broke into an unoccupied house (the childhood home of actor Charlton Heston) in St. Helen, Michigan. Before they left, one or more of the group started a fire that completely destroyed the house. The defendant was charged with arson and with breaking and entering with intent to commit larceny. At trial in Roscommon County Circuit Court, the defendant argued that he broke into the house intending only to look around, not to steal anything. The jury convicted the defendant on the breaking and entering charge, but acquitted him of arson. The breaking and entering felony conviction was the defendant's third. He was sentenced to 8-20 years in prison. In a 2-1 decision, the Michigan Court of Appeals upheld the defendant's conviction. The defendant argues that the trial judge should have instructed the jury that the defendant could be convicted of a less serious offense - breaking and entering without permission - if the jury found that the defendant did not break into the house intending to steal. The prosecution argues that the defendant did not present enough evidence at trial to support the judge giving that instruction.

PEOPLE v. KRUEGER (117375) - At issue: Where the defendant was charged with sexually assaulting his four-year-old daughter, were his constitutional rights violated when the trial judge excluded him from the courtroom - after the child indicated that she was afraid to testify with the defendant in the room? Background: Four-year-old Bradie Krueger told her babysitter that Bradie's sister's boyfriend got in the shower with Bradie and sexually molested her. Later, Bradie told a state trooper that Bradie's father, defendant Thomas Krueger, was the one who had molested her. The defendant was charged with first-degree criminal sexual conduct (sexual penetration of a child under 13)and attempted second-degree criminal sexual conduct (other sexual contact with a child under 13). At a preliminary examination attended by the defendant, Bradie became upset and stopped testifying when she was questioned about what she called "icky stuff." Bradie indicated that she was afraid to testify with her father in the courtroom, which the defendant denied. Judge Wiley adjourned the hearing and held a second hearing, at which Bradie testified in the judge's chamber without the defendant present, although his attorney attended and cross-examined Bradie. At trial, Judge Wiley ruled that, due to Bradie's age, the nature of the offense, and her unwillingness to testify in front of her father, the defendant would not be in the courtroom during Bradie's testimony. The defendant was able to view Bradie's testimony by video camera. After a two-day trial, a jury found the defendant guilty of both charges. He was sentenced to concurrent terms of 18 to 80 years and 2 years to 5 years. In an unpublished decision, the Court of Appeals affirmed the defendant's conviction. The defendant appeals. He argues that the trial judge violated his constitutional right to confront witnesses and to be present at his trial. The defendant maintains that the trial judge improperly applied MCL 600.2163a, a Michigan statute governing protection of witnesses. Defendant also argues that the judge erred by allowing the state trooper to testify about what Bradie told her.

PEOPLE v LETT (117041) – At issue: Does double jeopardy mean that the defendant's murder conviction must be overturned? Background: On August 29, 1996, Adesoji Latona was shot and killed at a party store in Detroit. The defendant was charged with first-degree murder in Latona's death, and with felony firearm. At the defendant's first trial in Wayne County Circuit Court, Judge Helen Brown granted a mistrial after about four hours of jury deliberation. At his second jury trial, defendant was convicted of second-degree murder and felony firearm. He was sentenced to 16 to 40 years for the murder, plus 2 years for the firearm offense. The defendant had not argued at his second trial that double jeopardy barred his being tried a second time. On appeal, the defendant raised the double jeopardy issue. He argued in part that the trial judge declared a mistrial too soon and without the defendant's consent, and without any manifest need to do so. The Court of Appeals, in an unpublished per curiam opinion, ruled that the retrial violated defendant's double jeopardy rights and that he was entitled to have his conviction reversed. The prosecution argues that the defendant did not object to his second trial, so double jeopardy does not apply. The prosecution also argues that, even if the trial judge erred by declaring the mistrial, her error did not prejudice the outcome of the defendant's second trial.

PEOPLE v RANDOLPH ( 117750; 118078) - At issue: The defendant, who took items from a store without paying, resisted security guards who tried to stop him after he left the store. In the struggle, one of the guards suffered a facial fracture and broken teeth. Was the defendant properly convicted of unarmed robbery? The defendant argues that his conviction should be overturned, because he did not use force in stealing the items, and force or violence are elements of the unarmed robbery offense. The prosecution argues that the defendant's attempt to fight off store security supplies the element of force. Background: The defendant, Kalvin Randolph, left a Meijer store in Taylor with a cordless drill and thermostat hidden in his jacket. He was followed by two security guards. As Randolph tried to run away, one of the guards grabbed his arm. A struggle ensued, with Randolph taking hold of one of the guards and pulling her under him as he fell to the ground. Others arrived and handcuffed Randolph, who continued to resist. Although Randolph was asked to let the guard up, he did not, and she was pinned to the ground for several minutes. The guard suffered facial abrasions, a facial fracture, and two broken teeth. In a trial in Wayne County Circuit before Judge Sean Cix, Randolph was convicted of unarmed robbery. The Court of Appeals reversed, stating that there was insufficient evidence to support a showing of force or violence, an essential element of the unarmed robbery offense. A struggle to escape may be enough to supply the element of force if the defendant successfully escapes by using force, the appellate panel said. However, because Randolph did not escape, there was not enough evidence of force to support the unarmed robbery conviction, the Court of Appeals stated. The prosecution appeals, arguing that it does not matter that Randolph's attempts to escape failed. According to the prosecution, Randolph's actions show that he was fighting to keep the items he had taken from the store, not just to escape. Because Randolph's struggle was part of the effort to steal the items, his actions satisfy the element of force, the prosecution contends.

PEOPLE v REESE (117891) - At issue: The defendant was convicted of armed robbery; a judge refused to instruct the jury that they could find the defendant guilty of the lesser offense of unarmed robbery. Is a defendant in a criminal case automatically entitled to an instruction on lesser included offenses? Background: A gas station was robbed by a man wearing a stocking cap over his face and carrying a knife. The station's video camera showed that the man had a knife. Two people working at the gas station identified the defendant, Clinton Wayne Reese, as the robber. When the defendant fled from the store, he was pursued, first by another witness, and then by police, who caught and arrested Reese. A knife, money, and items taken from the store were found outside the store. Reese was charged with armed robbery. Reese maintained that he himself had been robbed at knife point and that he had been wrongly identified as the robber. At trial, he asked for a jury instruction on the lesser offense of unarmed robbery. Kent County Circuit Judge Denis C. Kolenda denied the request. The jury found Reese guilty of armed robbery. As a fourth-time habitual offender, Reese was sentenced to life in prison. The Court of Appeals affirmed the conviction. Judge Kolenda erred by refusing to give the jury instruction, the appellate court stated. However, the judge's error was harmless because the evidence did not support the lesser offense, the Court of Appeals ruled. Reese appeals. He maintains that a jury should automatically be instructed on lesser included offenses. The prosecution argues that the jury should get the instruction only if the evidence supports the lesser offense. Reese also argues that the trial judge erred by sentencing him to life in prison, where the sentencing guidelines recommend four to 20 years for armed robbery. The prosecution responds that the life sentence was proper because of the defendant's prior offenses, which include eight felonies.

PEOPLE v ROSEBERRY (115184) – At issue: Can a defendant convicted of third-time drunk driving - a felony - challenge his conviction by arguing that his two earlier drunk driving convictions were invalid, even though he pled guilty to the earlier offenses? Background: The defendant, Robert Roseberry, pled guilty to third-offense drunk driving, a felony. He also pled guilty to falsely applying for a driver's license and operating on a suspended license. Livingston County Circuit Judge Stanley J. Latreille sentenced the defendant to 6 years, 8 months to 10 years in prison for the felony drunk driving conviction and to two 90-day jail sentences for the misdemeanor convictions. The defendant later filed a motion to vacate his felony drunk driving conviction. He argued that his two prior misdemeanor drunk driving convictions - to which he pled guilty - were invalid because he was not represented by counsel and was not informed about his right to counsel in one case. He also claimed that his attorney in his third case had provided ineffective assistance of counsel. Accordingly, the plaintiff argued, his third-time drunk driving conviction was invalid because his two prior convictions, the basis for his felony conviction, were obtained in violation of his constitutional rights. Judge Latreille and the Michigan Court of Appeals both denied the defendant's attempt to set aside his drunk driving felony conviction. The defendant appeals.

PEOPLE v SHEPARD (115615) - At issue: The neighbors who accused the defendant of stealing from them said nothing about the theft the first time police officers called at the scene, waiting ten hours before reporting the robbery to another set of officers. The trial judge refused to adjourn the trial so that the defendant's attorney could contact the first group of officers and call them as witnesses. Was the defendant denied the right to a fair trial? Background: The defendant, Terry Rae Shepard, and his mother lived next door to an elderly neighbor and her mentally ill son. On August 23, 1994, at about 2:30 a.m., police responded to a 911 call made by the defendant's mother, who feared that the mentally ill son was bullying his mother for money, as he had done before. When the police arrived, the defendant claimed he was trying to collect a debt. The officers told the defendant that he would have to go to court to collect a debt and left. The neighbors said nothing about being robbed. Ten hours later, police were again summoned to the scene. This time, the neighbor and her son told police that the defendant had robbed them at about 3 a.m. that morning, taking the money just before the first police visit. The defendant was arrested and charged with unarmed robbery. At a preliminary hearing, the elderly neighbor was unable to identify the defendant as the man who took her money. The neighbor's son testified that he paid the defendant $6 for a "picture packet" and that the defendant threatened to beat him up if he did not come up with more money. The son also testified that, as police arrived on the scene, the defendant reached into his mother's dress pocket and took the money that she had there. By the time of trial, the elderly neighbor had died, and her son had problems recalling what had happened. When one of the officers who responded to the second call testified, the defendant's lawyer learned for the first time that officers were on the scene at the time the defendant was supposed to have robbed his neighbors. Recorder's Court Judge Maggie W. Drake denied the defense attorney's request to find out who those responding officers were. Ultimately, the defendant was convicted of unarmed robbery, following a bench trial. He was sentenced as a fourth felony offender to 8 to 20 years. In an unpublished opinion, the Court of Appeals affirmed. The defendant appeals. In part, he argues that he was denied effective assistance of counsel because the officers who were initially on the scene were never called to testify.

PEOPLE v SHERMAN-HUFFMAN (117468) – At issue: To be convicted of third-degree child abuse, must the prosecution show that the defendant intended to or knew that she would harm her daughter - as opposed to hurting the child through negligent or reckless acts? Background: Defendant Bonnie June Sherman-Huffman is the mother of Shajnett Huffman. When Shajnett was eight years old, the defendant struck the child, who suffered bruises and a bloody nose. After a two-day bench trial, Kalamazoo Circuit Judge J. Richardson Johnson found the defendant guilty of third-degree child abuse. He concluded that defendant "knowingly and intentionally" caused physical harm to her daughter. The Court of Appeals affirmed, but stated that conviction required sufficient evidence to establish that "defendant subjectively desired or knew that the prohibited result would occur." The prosecution appeals, arguing that the Court of Appeals opinion sets a dangerous standard. To convict, a prosecutor would have to show what the defendant expected to happen, instead of showing only the defendant's abusive actions and the resulting harm, the prosecution contends. The defendant also appeals, arguing that her daughter's bruises were an unintended result and that, because she never intended to bruise the child, she did not "knowingly or intentionally" cause physical harm to her daughter.

PEOPLE v SILVER (117024) (to be argued with PEOPLE v CORNELL) – At issue: Where the defendant was convicted of home invasion, should the jury have been instructed that they could find him guilty of the lesser offense of "entering without permission"? Also, did the trial judge err by ordering the defendant to wear handcuffs and leg shackles during trial? Should the defendant's conviction be reversed on either of these grounds? Background: On October 12, 1997, a woman returned from a brief shopping trip to find the defendant in her home. He said he had come in to use the bathroom and denied planning to steal anything. At trial in St. Clair County Circuit Court, defense counsel asked the judge to instruct the jury on the lesser offense of entering without permission (CJI2d 25.4) because there was a dispute over whether the defendant entered the house intending to steal. The trial court rejected the request. The trial judge also ordered that the defendant must be shackled during trial "to provide security, and minimize flight risk based on his past behavior." Defendant was convicted of first-degree home invasion; as a fourth offender, he was sentenced to 20 to 40 years. In a 2-1 decision, the Court of Appeals held that the jury should have been given an instruction on the misdemeanor offense of entering without permission. All three Court of Appeals judges agreed that the trial court did not abuse its discretion in ordering that defendant would be required to wear handcuffs and leg shackles during trial. The defendant argues that the restraints interfered with his right to a fair trial, and that he was entitled to a jury instruction on the lesser offense of entering without permission.

POHUTSKI v CITY of ALLEN PARK (116949) (To be argued with JONES v CITY OF FARMINGTON HILLS) – At issue: When sewer systems back up into homeowners' basements, must city governments pay for the damage? The answer could affect a large number of Michigan cities and homeowners. Background: The plaintiffs are a group of Allen Park residents who brought a class action lawsuit in Wayne County Circuit Court against the City of Allen Park. In February 1998, sewage backed up into the plaintiffs' basements after 2.45 to 3.3 inches of rain fell in the area over a 24-hour period. The plaintiffs argue that the City of Allen Park must pay for the damage to their basements. The City of Allen Park argues that Michigan's governmental immunity statute (MCL 691.1407(1)) bars the plaintiffs' lawsuit. But Wayne County Circuit Judge Edward M. Thomas said that earlier Michigan cases recognize a trespass-nuisance exception to governmental immunity -- in other words, the judge found that the city, as owner of the sewer system, had a duty to prevent sewage from invading private property. The City asked the Michigan Court of Appeals to review the Circuit Court decision, but the Court of Appeals issued an order on May 4, 2000, stating that the City had not persuaded the Court of Appeals "of the need for immediate appellate review." Now, the Michigan Supreme Court is being asked to decide whether MCL 691.1407(1) bars the plaintiffs' claims.

ROBERTS v MECOSTA COUNTY GENERAL HOSPITAL (116563, 116570, 116573) – At issue: Under Michigan's medical malpractice law, the plaintiff was required to file a presuit notice describing how the defendants breached the standard of medical care. After the suit was filed and the statute of limitations expired, the defendants argued that the presuit notice was inadequate and that the plaintiff's suit should be dismissed. The plaintiff argues that the defendants should have raised their objections during the six-month period after she filed her notice and before the lawsuit started. Background: Lisa Roberts was pregnant with her first child when she went to Mecosta County General Hospital on October 4, 1994, complaining of severe pain. She was seen by Dr. Michael Atkins, an emergency room physician, Dr. Gail Desnoyers, an obstetrician, and Barb Davis, a physician's assistant. They diagnosed that she had suffered a spontaneous abortion. A D&C was performed and Roberts was sent home. Ultimately, doctors discovered that Roberts had been suffering from an ectopic pregnancy, not a spontaneous abortion, and that her left fallopian tube had burst. The left fallopian tube was removed during emergency surgery, leaving Roberts unable to have children, because her right fallopian tube had been removed some years earlier. Roberts sued the hospital, Atkins, Desnoyers and Davis for malpractice in Mecosta County Circuit Court. Six months before filing suit, as required under Michigan law, Roberts sent a presuit notice to each defendant. In the presuit notice, Roberts described her treatment. She also stated the defendants had a duty to "render competent advice and assistance in the care and treatment of her" and that they "failed to provide her with the applicable standard of practice." After the lawsuit started and the statute of limitations had run out, the defendants moved to dismiss the case, arguing that the notice was incomplete. The defendants claimed that the notice did not adequately describe the standard of medical practice, how it was breached, what the defendants should have done, and whether the defendants' actions were the proximate cause of Roberts' injuries. The trial judge dismissed Roberts' lawsuit. The Court of Appeals reversed, finding that the defendants waived the insufficient presuit notice defense by failing to object during the presuit notice period. The defendants appeal.

ROBERTSON v DAIMLER-CHRYSLER (116276) – At issue: Where a worker suffered a mental breakdown because he believed his supervisor was trying to retaliate against him, is his mental disability covered by worker's compensation? Is a mental disability triggered by an actual employment event compensable even if the worker's perceptions of the event are unfounded? Background: Plaintiff Warren Robertson suffered a mental breakdown and left work after Chrysler transferred him from a job he loved to one he did not want. At the worker's compensation hearing, Robertson testified he "lost it" because he believed his supervisor had arranged the transfer to retaliate for Robertson's refusal to do personal work for the supervisor on company time. A worker's compensation magistrate denied benefits. He found that, although Robertson's mental disability coincided with the transfer, it was Robertson's "unfounded perception" of retaliation that caused his breakdown. The Worker's Compensation Appellate Commission affirmed. The Michigan Court of Appeals vacated the magistrate's decision and sent the case back to the magistrate for reconsideration. The Court of Appeals directed the magistrate to "determine whether the reassignment contributed to or aggravated plaintiff's mental disability in a significant manner, without regard to plaintiff's misperception and the reasons for the reassignment." Daimlerchrysler appeals.

ROGERS v. J.B. HUNT TRANSPORT (118766) - At issue: Under Michigan law, an employer is responsible for its employee's negligence if the employee committed the negligent act within the scope of employment. In this case, a truck driver who is a defendant in a wrongful death suit failed to cooperate with discovery; a default judgment, including a finding that the driver was negligent, was entered against him. Can the plaintiff use that default judgment to establish the employer's liability - and financial responsibility - for the accident?  Background: In 1996, J.B. Hunt, a trucking company, employed Wesley Howard Crenshaw as a truck driver. On June 17, 1996, Crenshaw parked a tractor-trailer owned by Hunt on the north shoulder of westbound I-96. Daimon Ja'von Rogers died when his vehicle left the paved highway and collided with the tractor-trailer on the shoulder. Plaintiff Alfonso Rogers, as personal representative of Daimon Rogers' estate, sued Hunt and Crenshaw in Eaton County Circuit Court. Rogers claimed that Crenshaw was negligent, that his negligence was the proximate cause of Daimon's death, and that Hunt was vicariously liable for Crenshaw's negligence. In their answers to the complaint, Hunt and Crenshaw admitted that Crenshaw was employed by Hunt and that he was acting within the scope of his employment when the accident occurred. Hunt also terminated Crenshaw's employment. Crenshaw did not appear for his deposition, failed to cooperate with discovery in the case, and did not respond to attempts to contact him. The plaintiff moved for a default judgment against Crenshaw, which was granted by Eaton County Circuit Judge Calvin T. Osterhaven. Ultimately, the judge ruled that the default had the effect of establishing Crenshaw's negligence. Because both Hunt and Crenshaw admitted that Crenshaw was employed by Hunt and acting within the scope of his employment during the accident, Hunt was liable for Crenshaw's negligence, the judge stated. Moreover, because of the default judgment, Hunt could not argue that Crenshaw was not negligent, the judge concluded. The Court of Appeals affirmed. Hunt appeals.

ROSE v NATIONAL AUCTION GROUP, INC., and HALL (116600) – At issue: Does a written contract bar the plaintiffs' claims for fraud and misrepresentation - or does an alleged oral agreement allow them to sue? Background: Plaintiffs George and Frances Rose owned a 73-acre island in Lake Huron, about one mile from Alpena. They entered into a written agreement with defendant National Auction Group for defendant to auction off the island. The contract stated in part that the island "will be sold to the highest bidder(s) regardless of the bid price" and that National Auction had not made any representations to the plaintiffs about the price their property would bring. The contract also stated that it could only be modified in writing, and that there were no oral agreements between the plaintiffs and National Auction. The plaintiffs allegedly were led to believe that there would be no problem getting a bid for over $850,000, which they considered to be their bottom line. The winning bid at the auction was only $175,000. The plaintiffs sued National Auction Group, its principals, and Randall R. Hall, who bought the island. The plaintiffs claimed in part that the National Auction defendants made false promises to get the plaintiffs to proceed with the auction, and that the defendants said they would use a "false bidder" to remove the property from auction if the plaintiffs' price was not met. Instead, the defendants proceeded with the auction and sold the property. Alpena County Circuit Judge John F. Kowalski ruled in favor of the defendants, finding that the contract barred their claims. In a 2-1 unpublished decision, the Court of Appeals affirmed in part, but said that the plaintiffs could pursue fraud and misrepresentation claims against the Auction Group defendants. The defendants appeal.

STANTON v CITY OF BATTLE CREEK (115909) - At issue: Is a forklift a "motor vehicle" for the purposes of Michigan's governmental immunity statute? While the statute bars most suits against governmental entities, it does allow suits for injuries caused by the "negligent operation" of a governmental-owned motor vehicle by a government employee. The answer will determine whether the plaintiff - who was injured by a city-owned forklift - can sue for his injuries. Background: Plaintiff Michael Stanton, then a truck driver for Hover Trucking Company, was hit by a forklift and injured on April 28, 1995. The forklift was driven by an employee of the City of Battle Creek and was owned by the City. Stanton and his wife Joy sued the City and the employee who drove the forklift. The plaintiffs asserted that the City was negligent in maintaing and operating the forklift, and that the forklift driver was also negligent or grossly negligent. Calhoun County Circuit Judge Allen L. Garbrecht dismissed the case, finding that governmental immunity shielded both the city and the forklift driver from being sued. The Court of Appeals affirmed Judge Garbrecht's ruling in a published opinion dated August 31, 1999. Stanton appeals. Stanton argues that his case falls under the motor vehicle exception to Michigan's governmental immunity statute. The statute provides that "[g]overnmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation of any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner." A separate statute, found in the Michigan Vehicle Code (MVC), states that forklifts are not "motor vehicles" as that term is used in a specific MVC statute that does not involve governmental immunity. Stanton argues that the MVC definition was never intended to apply to the governmental immunity statute.

STATE FARM FIRE & CASUALTY v. OLD REPUBLIC INSURANCE (117470) - At issue: Where a business owner had an accident with a rented vehicle that resulted in thousands of dollars in damage to his own property, which insurance company must cover the damage - the insurer for the business property, or the company that provided no-fault auto insurance to the rental company? Background: Ibrahim Mroue, while operating a rented truck, had an accident that caused $61,879.81 worth of damage to real and personal property at Mroue's business. State Farm, the insurance company for Mroue's business, paid for the damage. State Farm then sued Old Republic Insurance, the rental company's no-fault auto insurer. State Farm argued that Old Republic should reimburse State Farm for the money paid to Mroue. Old Republic moved to dismiss the suit, citing Michigan's no-fault insurance law's "household exclusion." The household exclusion provides that, where an individual owning, registering, or operating a motor vehicle damages property which that same individual owns, a no-fault insurer will not be responsible to pay for the damage. The Legislature intended to shift the burden for such a loss to the household or general liability carrier rather than to the no-fault carrier, Old Republic argued. Wayne County Circuit Judge Paul S. Teranes agreed that the household exclusion applied and dismissed State Farm's suit. The Court of Appeals reversed, stating that the household exclusion did not apply because Mroue was not a named insured on the rental company's no-fault policy. In a later opinion in the same case, the Court of Appeals rejected Old Republic's argument that, because Mroue was "a person named in a property protection insurance policy," the household exclusion barred him from seeking coverage from the no-fault insurer. Old Republic appeals.

TERRIEN v SWIT (115924) – At issue: Should the defendants be allowed to operate a "family day care center" in their homes in a residential subdivision - when a restrictive covenant for the subdivision bars "commercial enterprises"? Is the restriction against public policy? The ruling could affect those who have home businesses. Background: Defendants Laurel Zwit and Nicci Clark operate a licensed "family day care center" in the Spring Valley Estates subdivision, located in Fruitland Township, Muskegon County. Restrictive covenants for the subdivision include provisions that subdivision properties can be used only for "residential purposes" and cannot be used for "commercial, industrial or business enterprises." The plaintiffs, who are also residents of the subdivision, argue that the day care center violates the restrictive covenants. Muskegon Circuit Judge James M. Graves, Jr. ruled in favor of the defendants, finding that family day care was a residential use not barred by the restrictive covenant. The Michigan Court of Appeals affirmed, finding that the day care center did not violate the restrictive covenant. The plaintiffs appeal.

VEENSTRA v WASHTENAW COUNTY CLUB (117985) - At issue: Does the Michigan civil rights act's ban on discrimination based on marital status protect a married man who has engaged in an extramarital affair? Background: The plaintiff, Brent Veenstra, was the golf pro for defendant Washtenaw Country Club. He was married. In 1996, he moved out of the home he shared with his wife and began living with another woman. His wife sued for divorce in September 1996. The country club's board of directors told the plaintiff in November 1996 that it was not going to renew his employment contract for 1997. The plaintiff sued, claiming in part that he was discriminated against because of his marital status in violation of Michigan's civil rights act. Washtenaw County Circuit Judge David S. Swartz dismissed the plaintiff's complaint, stating that any discrimination against the plaintiff "was not based on his pending divorce but on his cohabitation with his mistress." The Court of Appeals reversed. The defendant appeals.

WPW ACQUISITIONS v CITY OF TROY (118750) - At issue: Should real property's taxable value go up based on increased occupancy? This dispute, which concerns a 1994 amendment to the Michigan Constitution, could affect commercial real estate throughout Michigan. Background: The Michigan Constitution addresses taxation of real property. Before 1994, Const 1963, art 9, § 3, the property taxation clause, placed no limit on annual increases in the taxable value of real estate and said nothing about adjusting the taxable value for "additions and losses" before it was compared with the previous year. In 1994, Michigan voters ratified Proposal A, an amendment to the Michigan Constitution. Proposal A amended the Constitution to state that the taxable value of each parcel could not be increased from the previous year by more than the corresponding increase in the general price level or 5%, whichever was less. The amendment also stated, for the first time, that the taxable value of real property could be "adjusted for additions and losses." "Additions" and "losses" were defined in the General Property Tax Act. When Proposal A was ratified, "additions" were limited to "increases in value caused by new construction or a physical addition of equipment or furnishings," and the inclusion of previously tax-exempt property. After Proposal A took effect, the Legislature amended the definition of "additions." That amendment (MCL 211.34d(1)(b)) stated that "additions" include "[a]n increase in the value attributable to the property's occupancy rate if either a loss, as that term is defined in this section, had been previously allowed because of a decrease in the property's occupancy rate or if the value of new construction was reduced because of a below-market occupancy rate . . . ."  In 1991, WPW Acquisition Company, which owns an office building in the City of Troy, requested a reduction in the taxable value of the building, based in part on a decrease in occupancy. In response to the request, the City's assessor reduced the taxable value of the building by 23 percent. Over the next several years, however, the demand for office space in Troy increased, and the occupancy in WPW's building grew. In 1996, the City of Troy's assessor increased the taxable value of WPW's building by approximately 14 percent. WPW challenged the assessment, objecting that it far exceeded the constitutional limitation of 2.8%, which was the increase in the general price level that had occurred in 1995. The City responded that it was entitled to adjust the taxable value of the building for the "addition" of increased occupancy without having that factor included in the comparison with the previous year's taxable value.  WPW responded that the City was bound by the statutory definition of "additions" that was in force when the 1994 Proposal A amendment to the Constitution took effect. That definition did not permit an adjustment of taxable value to reflect an increase in occupancy, WPW argued.  The dispute went to the Michigan Tax Tribunal, which ruled in favor of the City. WPW then sued in Oakland Circuit Court, asking that MCL 211.34d(1)(b), the post-Proposal A amendment to the statutory definition of "additions," be declared unconstitutional and that the City be compelled to pay a partial refund of the 1996 property taxes paid by WPW for its office building in Troy. Oakland County Circuit Judge Joan E. Young ruled in favor of WPW. In a November 14, 2000 opinion, the Court of Appeals reversed. The Court of Appeals held that MCL 211.34d(1)(b) as amended is not unconstitutional because it reflects the broad use and plain meaning of the term "additions" in the Constitution. WPW appeals. In addition, the Michigan Chamber of Commerce, the Michigan Insurance Federation, and the National Association of Real Estate Investment Trusts have filed briefs in the case as amicus curiae.