Thank you for visiting my blog.  I am Carson J. Tucker, an appellate and insurance law attorney.  I use this blog to communicate with my clients and colleagues about important court opinions and legal news.

Please check out my linked in biography, Carson J. Tucker, MSEL, JD on LinkedIn

I intend this blog to generally cover issues of appellate law, with some more targeted and detailed analysis of cases that are important to my clients.

There is a “File Room” drop down on the right, which contains specific subject-matter blogs that I hope to be updating.  For example, “May It Please the Court” part of the familiar introductory phrase in oral arguments before appellate tribunals will contain more general blogs about appellate law . . . the idea being that the “Court” in this case is the court of the viewing public’s opinion; “Starry Dices” a spin on the sacrosanct common-law principle of stare decisis should contain posts about the “lighter” moments of practicing law, but don’t hesitate to engage in more philosophical discussions here, either.  You can read more about me in the Background section.

Here are some of the cases I have handled: Carson J. Tucker’s Recent Appellate Cases

Thanks, please tune in and share your comments.

There is no legal advice intended or imparted by this blog.

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Appellate Court Explains Governmental Entity Responsibility for Compensation for Property Condemnation

In Welgosh v. City of Novi, et al.03.19.2015.unpub, the Michigan Court of Appeals provides a good explanation and outline of when a governmental entity (and individual governmental employees) might be liable to a property owner for condemnation through encroachments or other indirect actions that lead to property encroachment or other invasion of property rights.

Here, the alleged event that led to claims against the city was basement flooding.  The property owners sued the builders and the city inspectors, including the city itself, when it was discovered that the foundation of their home was built below the recommended level to prevent water seepage and flooding.

The property owners alleged inverse condemnation against the city, and gross negligence against the city inspectors who allegedly approved the building project despite the deficiencies.  The property owners sought compensation from the government for alleged “taking” of their property.

As the Court explains, the only way compensation can be awarded against the government for an invasion (or indirect (inverse) condemnation) of property rights is if the government action at issue was directly intended to cause the said invasion.  The Court provides this rationale in explaining a previous case in which a roadbed ditching and culvert project led to runoff waters spilling over onto the property owner’s land.  The spillage was incidental and no act on the part of the government or its individual employees was purposefully designed to have actually caused the diversion of water to be transferred to the property owner’s land.

The second aspect of this particular case that is of interest to anyone practicing in the area of municipal liability law in Michigan is the Court’s citation to the principle that in order to hold an individual governmental employee “grossly negligent” in avoidance of governmental immunity under Michigan’s governmental tort liability act, is to prove that the actor’s conduct was the, not just a, proximate cause of the injury complained of.  Here, the proximate cause of the property owner’s damages was the building company’s construction of the foundation in an unsuitable area.

Finally, the Court cites to the decision I secured in the Michigan Supreme Court Odom v. Wayne County, explaining the “intentional tort” exception and the “good faith” test implicated in that decision was not properly before the court because the property owners failed to adequately allege the intentional tort.

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Appellate Commission Resolves Insurance Benefits Coverage Dispute Between Auto Insurers and Self-Insured Employer

In Salenbien, et al. v. Arrown Uniform Rental Ltd., Self Insured, the Michigan Compensation Appellate Commission applies two important principles in this dispute between an auto insurer and the self-insured employer in a claim concerning which of the two is responsible for medical and wage-loss benefits owed to an employee injured in an automobile accident while on his way back from an end-of-day client call.

The facts are not remarkable.  The employee was involved in an auto accident after making a sales call.  It was the end of the day and it was not clear whether the employee was returning to the office.  In any event, the magistrate ruled the injury arose out of an in the course of his employment.

The Appellate Commission reverses.  It establishes (or clarifies) two important principles under the workers’ compensation statute.  First, the Commission clarifies that a workers’ compensation claimant bears the burden of proving that an injury both “arose out of” and “in the course of” employment.  Both section 301 and 315 of the act require proof that both of these elements be established by the claimant seeking benefits from his or her employer.

The second aspect of this case that it is important is that the Commission has ruled that the auto insurer, rather than the workers compensation insurer (here the self-insured employer) is responsible first and foremost for injuries incurred in an automobile accident.  Auto insurers are allowed to seek indemnity coverage for medical expenses and other benefits paid to one injured in an accident arising out of the operation, ownership, maintenance, or use of a motor vehicle as a motor vehicle under Michigan’s No-Fault Automobile Insurance Liability Act (the No-Fault Act).  See mcl 500.3109.  But to do so, the auto insurer bears the same burden of proof as the employee seeking workers’ compensation benefits.  In other words, the auto insurer steps into the shoes of the employee and must prove that an injury incurred in an auto accident both arose out of and in the course of employment.  Otherwise, the auto insurer remains primarily and solely responsible for benefits payable to the injured claimant.

This is an important case in the complex tapestry of law under two “no-fault” insurance systems:  auto insurance and workers’ compensation insurance.  Any insurance coverage question must include consideration of the jurisdiction’s laws and appellate decisions assigning primary coverage responsibilities to one insurer over another.

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Former Employee’s Alleged Criminal Activities Relevant to Determine “Wage Earning Capacity” for Purposes of Assessing Entitlement to Workers Compensation Benefits

In a case I brought to the Michigan Supreme Court, which remanded in Omian v Chrysler, 495 Mich. 859 (2013), to the Court of Appeals for consideration of my appeal, the Michigan Court of Appeals has now reversed the decision … Continue reading

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Employee’s Reporting of Potential Future Violation of Law, Regulation or Rule Sufficient to Trigger “Protected Activity” Element in Whistleblower’s Protection Act Claim

In Pace v. Jessica Edel-Harrelson, et al, issued on February 24, 2015, the Michigan Court of Appeals addressed a Whistleblowers Protection Act claim. There are two remarkable points to the case.  The first is that the COA panel (Shapiro, Gleicher and Roynayne-Krause) holds that … Continue reading

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Insurance Coverage Not Available to Employer Mistakenly Listed as Insured on State-Required Workers Compensation Forms

The Michigan Court of Appeals ruled on Tuesday, February 17, 2015, that insurance coverage was not available to an employer (Delphi) merely because the insurers had errantly listed the employer on forms required to be filed with the state to notify … Continue reading

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Court of Appeals Issues Ruling On Independent Contractor Case

The Michigan Court of Appeals issued its opinion in a case I briefed (92675_Moore_Appellant’s_Brief_313440.12.26.2013.1838)  and argued in the Court of Appeals last summer, ruling consistent with the Supreme Court’s recent disposition of workers compensation insurance coverage for subcontractors holding themselves out … Continue reading

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