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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Court Holds “Bodily Injury” Damages Include “Pain and Suffering” and “Non-economic Damages” In “Motor Vehicle” Accident Claims Against Government

In a much awaited opinion, the Michigan Supreme Court has held that a claimant may recover “nonecconomic damages” such as “pain and suffering” and “emotional distress” damages and excess “economic damages” in actions against the government under the “motor vehicle” … Continue reading

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Surveillance Recordings Created by Private Entity “Public Records” Subject to FOIA Disclosure Where Law Enforcement Takes Possession of Such Records in Pending Investigation

In Amberg v. City of Dearborn, released on December 16, 2014, the Michigan Supreme Court has held that video surveillance created by a private entity but handed over to law enforcement officials for a pending misdemeanor investigation were public records … Continue reading

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Employee’s Electrocution Death Falls Within Exclusive Remedy Provision of Workers Compensation and Not in Circuit Court Intentional Tort Action

Yesterday, the Court of Appeal released its published opinion after remand as on leave granted from the Supreme Court in the case of Bagby v. Detroit Edison.12.16.2014, holding that the estate of an employee electrocuted while working for the public utility company could not plead around the exclusive remedy provisions of Michigan’s Workers Disability Compensation Act.  Workers compensation benefits are the exclusive remedy under Michigan law for employees injured “arising out of” and “in the course of” their employment.  MCL 418.131(1), the so-called “intentional tort” exception allows a circuit court, rather than the workers compensation agency (and the attendant administrative apparatus that processes workers compensation claims and litigation) to exercise jurisdiction where an employee, or, as in this case, his or her estate, can show that an employer committed an “intentional tort” that injured the employee.

This is an important provision because it provides a jurisdictional bar to the filing of most claims in circuit courts for remedies due to work injuries.

As explained by the Court of Appeals in this opinion, there are two ways for a plaintiff to show that an employer specifically intended an injury. The plaintiff can provide direct evidence that the employer “had the particular purpose of inflicting an injury upon his employee.”  In the alternative, an employer’s intent can be proven by circumstantial evidence, i.e., that the employer “has actual knowledge that an injury is certain to occur, yet disregards that knowledge.”  Citing Travis v Dreis & Krump Mfg Co, 453 Mich. 149, 168, 180 (1996).

Here, the employee was electrocuted while he was repairing leads.  While the leads were not energized, his ladder was placed next to an energized “bus”.  No evidence was available to determine if the ladder actually came into contact with the bus.

The Court holds that neither the employer, nor any of the employer’s supervisors had actual knowledge that an injury was certain to occur, and disregarded that knowledge.

This is a brief summary of the case.  It is an important decision, especially since the Court of Appeals originally denied leave to appeal the trial court’s decision which would have allowed the suit to proceed in circuit court, rather than in the workers’ compensation agency.

This case comes out after a remand order by the Supreme Court directing the Court of Appeals to grant the previously denied application filed by the defendant, and on the heels of another important enunciation of the proper standard when applying the “intentional tort” exception to the exclusive remedy provision of workers’ compensation.

In June, the Michigan Supreme Court issued an order summarily reversing the published decision of the Court of Appeals in Thomai.v.MIBA Hydramechanica Corp., et al, 303 Mich. App. 196 (2013), a case in which the Court of Appeals actually allowed a circuit court suit to proceed against a manufacturer on the basis that the employee had sufficient basis to proceed under the intentional tort exception to the exclusive remedy provisions of the Michigan Workers’ Disability Compensation Act (WDCA), MCL 418.101 et seq.

The plaintiff was injured while operating a machine at work.  The machine leaked oil onto the floor and workers were constantly required to wipe up the oil with rags to keep the floor and work area dry.  While cleaning up the oil, the plaintiff’s arm became trapped in the machine.  He filed suit in circuit court, which dismissed the action, citing MCL 418.131(1) (the “intentional tort” exception to the exclusive remedy provisions of the WDCA).  The exclusive remedy in Michigan for workplace injuries is under the provisions of the WDCA.

In its published opinion, the Court of Appeals reversed, holding the statute, as well as prior Supreme Court precedent, allows this exception to apply to “deliberate acts” by the employer that are shown to have occurred over a period of time. Here, the allegation is that the machine that injured the plaintiff was in disrepair and needed constant maintenance.  Since the employer knew about this, but did nothing about it, the act of the employer being deliberate could constitute the “intentional” act needed to bring the case out of the exclusive remedy provision of the WDCA.

In its order, thomai.v.MIBA.order.reverse.coa, the Supreme Court notes the trial court gave the plaintiff sufficient time to prove the necessary elements of the intentional tort exception, and, after properly applying those elements to the facts that were in the record, properly dismissed the claim.  The Court therefore reverses the Court of Appeals’ decision noting:  “There is simply no evidence in the record to establish that the defendants wilfully disregarded knowledge that an injury was certain to occur to the plaintiff from his operation of the grooving machine.”

It is also worth noting, although the trial court did not dismiss on these grounds, that the Michigan Workers’ Compensation Agency has primary and exclusive jurisdiction over claims that should be filed under the WDCA, at least at the commencement of an action. On the basis of Michigan Constitutional authority of administrative agencies, as well as on the statutory jurisdiction of circuit courts, the question of compensation for injuries sustained by employees while at work resides exclusively within the purview of the workers’ compensation agency and the automatic benefits and remedies available under the WDCA.  If, during the course of discovery, it is determined that the “intentional tort” exception may apply, then, and only then, should a circuit court exercise jurisdiction over the claim.

If anyone has questions about the impact of these recent decisions on the issues of workers’ compensation claims, please call Carson J. Tucker at (734) 218-3605.

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Employee Driving Company Truck to Job Site Not “In the Course and Scope of Employment” Under Workers Disability Compensation Act

The Court of Appeals (in a 2-1 majority opinion) issued a significant case yesterday, albeit unpublished, holding that an employee driving a company vehicle to a job site location in another part of the state was not “in the course … Continue reading

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Michigan Supreme Court Remands to Appellate Commission Directing Assessment of Post-Injury Retirement and Effect on Wage Loss

In a case I brought to the Michigan Supreme Court on application from a Court of Appeals denial and Michigan Compensation Appellate Commission decision, the Court agrees with my argument the Commission did not address whether the claimant’s wage loss was attributable to her work-related injury, or rather due to her acceptance of a retirement / severance package.

MCL 418.301(4) of the Workers Disability Compensation Act requires in order for an individual to be entitled to wage loss benefits, the disability occasioned by the work-related injury must be the true cause of the wage loss, not some other reason wholly (or even partially) unrelated to the work.

This stems from the underlying principles behind workers compensation “wage loss” benefits.  Employers are only responsible to the extent the employee is unable to earn wages due to the injury and not for other reasons beyond the employer’s control.  Thus, downturns in the economy, a worker’s choice to do something else for less pay, or to move to a geographical location with less opportunities, seasonal employment situations, etc., all are situations over which employers do not have control.  Therefore, employers are not responsible for the wage loss benefits for such circumstances.

This remand by the Michigan Supreme Court confirms that in those cases where the facts support the legal argument, it must be considered whether the employer is truly responsible for all, or even a portion of the claimed “wage loss”.

Read the Supreme Court’s order here:  Williamson v. GM

If anyone has questions regarding this decision, or the wage loss principle in general, please contact Carson J. Tucker, JD, MSEL at (734) 218-3605.

Posted in Administrative Law, Appeals, Appeals and Legal Research, Appellate Lawyer, Construction Law, Insurance and Indemnity, Insurance Coverage, Insurance Law, Insurance Lawyer, Labor and Employment Law, May It Please the Court, Michigan Court of Appeals Orders | Tagged , , , , | Leave a comment

Equitable Tolling of Medical Malpractice Claim Waiting Period on Supreme Court’s Mini-Oral Argument Calendar

The Michigan Supreme Court has ordered mini-oral argument to be held in two cases addressing a very significant issue dealing with whether trial courts can disregard the notice waiting period required before filing a complaint in a medical malpractice action, … Continue reading

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Michigan Supreme Court Overrules Court of Appeals Decision Defining “Employee” and “Independent Contractor” Under Pre-2011 Workers Compensation Claims


Blog Post from Earlier

Originally posted on Amicus Curious:

In an opinion without oral argument being held, the Supreme Court in a 6 to 1 decision reversed the Court of Appeals’ interpretation of MCL 418.161, ruling that an individual must only satisfy one of the three criteria to be considered an independent contractor and not covered by workers compensation.  As explained by the Court, each criterion of MCL 418.161(1)(n) must be satisfied for an individual to be considered an employee; conversely, failure to satisfy any one of the three criteria will exclude an individual from employee status. By requiring that all three statutory criteria be met for an individual to be divested of employee status, the special panel majority’s interpretation ignored the word “not” contained in each criterion.

Read the opinion here:  Auto Owners v. All Star Lawn

Below is also a summary I previously prepared of the Court of Appeals ruling.

In  a published decision, Auto Owners Ins Co v. All Star…

View original 836 more words

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