“[I]n its subject-matter jurisdiction inquiry, a district court determines the amount in controversy using the prayer for relief set forth in the plaintiff’s pleadings, calculated exclusive of fees, costs, and interest.” Hodge v State Farm Mut Auto Ins Co, ___ Mich ___, ___ (2016), rev’g Moody v Home Owners Ins Co, 304 Mich App 415 (2014) (citation omitted). In the absence of bad faith in the pleadings, even if a plaintiff’s proofs exceed the $25,000 jurisdictional limit of the district court under MCL 600.8301(1), “the prayer for relief controls when determining the amount in controversy, and the limit of awardable damages.” Hodge, ___ Mich at ___ (concluding that “in adopting MCL 600.8301, the Legislature intended to continue the longstanding practice of determining the jurisdictional amount based on the amount prayed for in the complaint[]”) (citations omitted).
Applicability of Conflicting Notice Provisions of GTLA and Highway Code. “[T]he time limit, substantive requirements, and service procedures applicable to notice under MCL 224.21(3) [of the highway code apply] when the responsible body is a county road commission[,] . . . [d]espite the precedent of applying [the notice provisions of MCL 691.1404 under] the GTLA to the exclusion of MCL 224.21[.]” Streng v Bd of Mackinac Co Rd Comm’rs, ___ Mich App ___, ___ (2016) (citations omitted). “The language of MCL 224.21(2)[] . . . dictates that only the GTLA’s provisions of law that deal with ‘liability’ apply to counties and that under MCL 691.1402(1), procedural and remedial provisions should be those of [the more specific] MCL 224.21.” Streng, ___ Mich App at ___ (holding that MCL 224.21(3), requiring that the written notice “‘set forth substantially the time when and place where the injury took place[,]’” applied in a highway defect action against a county road commission, rather than the requirement of MCL 691.1404(1) that the notice “‘specify the exact location and nature of the defect[]’”) (emphasis added).
Recovery of Noneconomic Damages Under Highway Exception. A plaintiff may recover “all damages naturally flowing from [his or] her injury[,]” including noneconomic damages, under MCL 691.1402(1), which “permit[s] a plaintiff to ‘recover the damages’ flowing from the ‘bodily injury or damage to his or her property.’” Streng v Bd of Mackinac Co Rd Comm’rs, ___ Mich App ___, ___ (2016), applying Hannay v Dep’t of Transp, 497 Mich 45, 60-65 (2014) (additional citations omitted).
Service of Notice on the Clerk. MCL 224.21(3), which requires that notice be served “‘upon the clerk and upon the chairperson of the board of county road commissioners[,]’” refers to the county clerk rather than to the clerk of the board of county road commissioners. Streng v Bd of Mackinac Co Rd Comm’rs, ___ Mich App ___, ___ (2016) (applying “the ‘last antecedent’ rule of statutory construction[]” and noting that, “[r]egardless, [the] defendant was properly served[]” where “[the] plaintiff served her notice of intent on both the chairperson of the county board of road commissioners and the county clerk[]”) (emphasis added; citations omitted).
Sufficiency of Notice Under MCL 224.21(3). Although the plaintiff’s written notice “placed the location [of an alleged highway defect] about a mile south of where the accident actually occurred[,]” the notice complied with the requirement of MCL 224.21(3) that it “‘set forth substantially the time when and place where the injury took place[;]’” “the description [the] plaintiff provided[,]” including a “drawing in the police report show[ing that] the accident occurred on the [only] curve of the road[,]” “was sufficient to put [the] defendant on notice of the claim and to investigate possible sources of further information from witnesses.” Streng v Bd of Mackinac Co Rd Comm’rs, ___ Mich App ___, ___ (2016) (noting that “there [was] no evidence that the ‘interested parties’ were unable to identify the location from the notice that was provided[]”) (citations omitted).
Construction of Ambiguous Contractual Provision and Rule of Reasonable Expectations. Although the rule of reasonable expectations “has no application to interpreting unambiguous contracts[,]” “in the context of interpreting ambiguous contracts, [the rule of reasonable expectations] is merely a different name for the contra proferentem doctrine[,]” under which an ambiguous provision in an insurance contract “must be interpreted against [the insurer].” Atlantic Cas Ins Co v Gustafson, ___ Mich App ___, ___ (2016), citing Wilkie v Auto-Owners Ins Co, 469 Mich 41, 60-63 (2003).
Exclusion for Injury to Contractor. Where a CGL policy contained an exclusion entitled “‘Exclusion of Injury to Employees, Contractors and Employees of Contractors’” and defined contractor to include a contractor, subcontractor, developer, or “‘any property owner,’” the ambiguous term “‘any property owner,’ given that it [was] included in a list that otherwise only include[d] those that [had] a commercial interest (or their employees),” was interpreted, under the doctrine of noscitur a sociis, as not including “those without a commercial interest in the project, [such as] . . . [a] residential homeowner.” Atlantic Cas Ins Co v Gustafson, ___ Mich App ___, ___ (2016) (holding that a residential homeowner, who was injured while observing work being performed on his property by the insured’s employee, was not excluded from coverage as any property owner under the applicable CGL policy).
“[A] proposed expert’s board-certification qualification [under MCL 600.2169(1)(a)] is based on the expert’s board-certification status at the time of the alleged malpractice rather than at the time of the testimony.” Rock v Crocker, ___ Mich ___, ___ (2016), affirming in part 308 Mich App 155 (2014) (citations omitted). “On the basis of the plain language of [MCL 600.2169] and contextual clues from the surrounding provisions, . . . both the specialty and board-certification requirements [of MCL 600.2169(1)(a)] apply at the time of the occurrence that is the basis for the claim or action.” Rock, ___ Mich at ___ (additionally noting, however, that “[w]ith respect to the licensure requirement[ of MCL 600.2169(1)], the parties [did] not dispute that the expert must be licensed at the time of the testimony[]”) (emphasis added).
General Test for Admissibility of MRE 404(b)(1) Evidence. “[E]vidence that is logically relevant under MRE 401 and MRE 402 may be excluded under MRE 404(b)(1) for lacking legal relevance if it does not have a proper purpose[;]” therefore, “[b]efore applying MRE 403[ to determine if the evidence may be excluded because its probative value is substantially outweighed by other considerations], the trial court must consider . . . whether there [is] a proper purpose for admitting other-acts evidence as specified in the second sentence of MRE 404(b)[1].” Rock v Crocker, ___ Mich ___, ___ (2016), vacating “that portion of the Court of Appeals’ judgment[, 308 Mich App 155 (2014),] ruling on the admissibility of [proposed other-acts evidence]” without “first consider[ing] whether the evidence was legally relevant under MRE 404(b).” (Citations omitted.)
Standard-of-Care Evidence Demonstrating Physician’s General Incompetence. Evidence that a treating physician breached the standard of care in a manner that did not constitute the proximate cause of the plaintiff’s injury “passe[d] the logical-relevance test under MRE 401 and [MRE] 402 because it tend[ed] to demonstrate that [the] defendant had a propensity for negligence in treating [the] plaintiff’s injuries, albeit in incidents that were causally unrelated to [the] plaintiff’s injury[; t]he evidence of [the] defendant’s shortcomings in other acts over the course of the [plaintiff’s] surgery and postsurgical care tend[ed] to paint a picture of [the] defendant’s general incompetence, making it appear more probable than not that [the] defendant was negligent when providing the care that caused [the] plaintiff’s injury.” Rock v Crocker, ___ Mich ___, ___ (2016), vacating in part 308 Mich App 155 (2014). “However, this [did] not immediately call for the application of MRE 403[; rather, b]efore applying MRE 403, the trial court [was required to] consider whether the evidence was legally relevant and admissible under MRE 404(b)[.]” Rock, ___ Mich at ___.
“[W]hen calculating a reasonable attorney fee award under [MCL 500.3148(1)], a trial court must follow the Smith [v Khouri, 481 Mich 519 (2008),] framework, as outlined by Justice [Corrigan’s] concurring opinion [in Smith] and as modified by this opinion.” Pirgu v United Servs Auto Ass’n, ___ Mich ___, ___ (2016), overruling University Rehab Alliance, Inc v Farm Bureau Gen Ins Co of Mich, 279 Mich App 691, (2008), “to the extent that it is inconsistent[.]” “[W]hen determining the reasonableness of attorney fees awarded under [MCL 500.3148(1)], a trial court must begin its analysis by determining the reasonable hourly rate customarily charged in the locality for similar services[; t]he trial court must then multiply that rate by the reasonable number of hours expended in the case to arrive at a baseline figure[,]” and “must [thereafter] consider all of the remaining [factors under] Wood [v Detroit Auto Inter-Ins Exch, 413 Mich 573 (1982),] and MRPC 1.5(a) . . . to determine whether an up or down adjustment is appropriate.” Pirgu, ___ Mich at ___ (citations omitted). These factors, “distill[ed] . . . into one list to assist trial courts[,]” are:
“(1) the experience, reputation, and ability of the lawyer or lawyers performing the services,
(2) the difficulty of the case, i.e., the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly,
(3) the amount in question and the results obtained,
(4) the expenses incurred,
(5) the nature and length of the professional relationship with the client,
(6) the likelihood, if apparent to the client, that acceptance of the particular employment will preclude other employment by the lawyer,
(7) the time limitations imposed by the client or by the circumstances, and
(8) whether the fee is fixed or contingent.”
Pirgu, ___ Mich at ___. “These factors are not exclusive, and the trial court may consider any additional relevant factors.” Id. at ___ (citation omitted). Finally, “[i]n order to facilitate appellate review, the trial court should briefly discuss its view of each of the factors above on the record and justify the relevance and use of any additional factors.” Pirgu, ___ Mich at ___ (holding that “[t]he trial court erred by not starting its analysis by multiplying a reasonable hourly rate by the reasonable number of hours expended[ and] . . . by primarily relying on only one factor—the amount sought and results achieved—and failing to briefly discuss its view of the other factors[]”) (citations omitted).
Insurer’s Right to Rescind Based on Misrepresentation in Application. An insurer “had the right to rescind [no-fault] coverage[]” following the insured’s automobile accident where the insured “failed to disclose [a prior] accident that made him ineligible under the terms of the policy[;]” the policy “allowed [the insurer] to rescind the contract based on a false statement, misstatement of a material fact, or a failure to disclose[,]” and if the insured had “disclosed the . . . accident, he would have been unable to obtain the insurance policy.” 21st Century Premier Ins Co v Zufelt, ___ Mich App ___, ___ (2016) (citations omitted).
Renewal of Policy, Cure by Subsequent Eligibility, and Equitable Estoppel. An insurer was entitled to rescind a no-fault automobile insurance contract based on the insured’s misrepresentations about his eligibility for coverage in his application for insurance; even though a renewal was automatically issued, and even though the insured was eligible for coverage at the time of the renewal, “the renewal did not cure the initial misrepresentation[]” because “there was nothing in the renewal agreement that indicated that the parties intended to alter the terms governing eligibility and [the insurer’s] right to rescission as set forth in the original agreement.” 21st Century Premier Ins Co v Zufelt, ___ Mich App ___, ___ (2016) (additionally noting that “[t]here was no evidence that [the insurer] was aware of the misrepresentation at the time the renewal issued and [the insurer] was not under an obligation to continue to check [the insured’s driving] record[]” to determine his eligibility for coverage) (citations omitted). Additionally, the insurer “was [not] barred by the doctrine of equitable estoppel from denying coverage[]” following the renewal; “there [was] no evidence to support that [the insurer] intentionally or negligently induced [the insured] to believe facts that it later denied or to support that [the insured] justifiably relied on [the insurer’s] representations[,]” and the insured “was precluded from relying on the original policy and the renewal when his misrepresentation tainted both agreements and rescission was permissible.” Id. at ___ (citations omitted).
Breach of Duty of Fair Representation and Primary Jurisdiction of Michigan Employment Relations Commission (MERC). The trial court properly concluded that a public employee’s “claims of breach of duty of fair representation should be heard by [the] MERC pursuant to the doctrine of primary jurisdiction[.]” Bank v Mich Ed Ass’n-NEA, ___ Mich App ___, ___ (2016) (citations omitted). The “three-part test for courts to consider in determining the question of primary jurisdiction[]” under Rinaldo’s Constr Corp v Mich Bell Tel Co, 454 Mich 65, 71 (1997), “weigh[ed] in favor of deferring to [the] MERC[;] . . . “[f]irst, [the] MERC has specialized expertise in ruling on the provisions of the PERA[;] . . . [s]econd, there is a need for uniform and consistent application of labor practices[, and] . . . [the] matter of [the defendant unions’] duty to inform [their] members of the effects of changes in the law has statewide implications[; and] . . . [t]hird, . . . judicial resolution of [the] issue could adversely affect the agency’s performance of its regulatory responsibilities.” Bank, ___ Mich App at ___ (citations omitted).
Unfair Labor Practices Under “Right to Work” Amendments and Exclusive Jurisdiction of Michigan Employment Relations Commission (MERC). A public employee’s claims that the defendant unions violated the prohibition against requiring membership in a collective bargaining association under MCL 423.209(2)(a), as amended by the “Right to Work” law, constituted allegations of “an ‘unfair labor practice[]’ pursuant to MCL 423.216[,]” over which “the MERC has exclusive jurisdiction[.]” Bank v Mich Ed Ass’n-NEA, ___ Mich App ___, ___ (2016) (holding that the trial court properly dismissed the employee’s claims on jurisdictional grounds) (citations omitted).
Under MCR 2.622(B)(1), if a party nominates a receiver, and the nonmoving party does not file an objection within 14 days, the trial court may not appoint a different receiver without “first find[ing] that the nominated receiver, as to whom there has been no objection, is not qualified to serve as a receiver or should not be appointed for some other grounds articulated with specificity and supported by record evidence.” Casa Bella Landscaping, LLC v Lee, ___ Mich App ___, ___ (2016) (holding that the trial court erred by “fail[ing] to follow the mandates of MCR 2.622[]” when, in granting the plaintiff’s unopposed motion to appoint a receiver, the court declined to appoint the nominee and instead appointed someone else without making any “findings that [the nominee] was not qualified to serve as a receiver[]”). Additionally, the trial court erred in appointing a different receiver without making any “reference to any of the factors set forth in [MCR 2.622(B)(5)] and [without] ‘stat[ing] its rationale for selecting a particular receiver[.]’” Casa Bella, ___ Mich App at ___, quoting MCR 2.622(B)(5).
“[T]he open and obvious doctrine ha[d] no applicability” in a case “involv[ing] the question whether [a utility] breached its duty to reasonably maintain its power lines and that as a result of that breach, a line fell to the ground, thereby creating a new and distinct potential for electrocution[;]” the utility “had neither ownership nor control of the property its power line fell onto and it [could] not assert the legal privileges of that owner[]” in arguing that the decedent “failed to take reasonable care to avoid its wire that had fallen in [her neighbor’s] yard.” In re Skidmore Estate (On Reconsideration), ___ Mich App ___, ___ (2016), vacating ___ Mich App ___ (2016). “It is axiomatic that only a party that owns or controls the subject property may assert that its duty was limited by the open and obvious doctrine[,]” and “[t]he mere fact that the injury occurred on a third-party’s premises [did] not transform a case about proper maintenance of elevated high power lines into a premises liability case.” Id. at ___.
Effective May 23, 2016, the following acts amended the definition of employer in several statutes to provide that, except as otherwise specifically provided in a franchise agreement, as between a franchisee and franchisor, the franchisee is considered the sole employer of workers for whom the franchisee provides a benefit plan or pays wages: