Carson J. Tucker Defends Appeal of Victory for Governmental Entity in Michigan Supreme Court

I have filed a complex answer to an appeal in the Michigan Supreme Court addressing several key governmental immunity issues being litigated and addressed in Michigan. The Court of Appeals ruled in our favor and dismissed the suit against my client, but made several questionable statements in dicta in its opinion that we still may have to challenge if the Supreme Court gets past the fact that the Court of Appeals was correct on the lack of causation in plaintiff’s claim against the government.

Here is the brief filed last week.

Answer to Appeal in Menard v Imig, et al.

This is especially important in light of two other cases pending in the Supreme Court.

We are closely monitoring outcomes in the Michigan Supreme Court in WA Foote Memorial v Michigan Assigned Claim Plan and Wigfall v Detroit; those two cases will respectively address whether the 60-day provision in MCL 224.21 applies retroactively and whether there is to be strict or substantial compliance with the notice provision’s contents requirement under Rowland, or Plunkett. Obviously, we contend Streng and the 60-day provision would apply retroactively and jurisdictionally erase the plaintiff’s suit against Macomb. There is at least one other case being held in abeyance (a road commission case) waiting on the outcome of the WA Foote decision. We also contend Rowland applies and there must be strict compliance with the notice provision’s timing and content requirements (exact location of defect, exact nature of defect, nature of injuries, and all witnesses disclosed at the time of the notice). We argued that plaintiff failed to identify exact location, exact nature of defect, and all witnesses. We also challenged the amendment which essentially allowed plaintiff to add a defect three years after the accident and nearly three years after the notice. The COA followed the Plunkett standard in a footnote saying that the notice was sufficient under that standard. It ruled our argument concerning amendment was moot. Of course, we won on the issue of causation, but if the Supreme Court were to grant Plaintiff’s application, we have the right to treatment on appeal of all issues we raised. We also continue to raise the application by the trial court and the COA’s acquiescence in the “hybrid” (C)(7) / (C)(10) standard of review. Per Mack v Detroit, the government’s immunity is preexisting and jurisdictional and if the plaintiff fails to plead and prove in avoidance of immunity (which includes satisfaction of the notice requirements) then that should be it. The burden is not on the government to first prove it is entitled to immunity. The COA also disagreed with us on this in dicta, but the issue has never been fully addressed by the Supreme Court. At my suggestion, by way of an amicus brief, they had asked the parties to brief it up in the Yono case, but the Court ended up ruling there was no defect so they never really answered the standard of review question.

 

It is still and outstanding issue and the lower courts continue to apply the “hybrid” standard of review which is taken from cases that did not involve governmental immunity.r

About cjtucker06

Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs. Board of Directors, Michigan Defense Trial Counsel Amicus Committee Co-Chair, Michigan Defense Trial Counsel Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia. United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003 Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
Gallery | This entry was posted in Appeals, Appeals and Legal Research, Appellate Lawyer, Governmental Immunity, Highway Defect Claims, Insurance and Indemnity, Insurance Coverage, Insurance Coverage Disputes, May It Please the Court, Michigan Supreme Court Opinions, Michigan Supreme Court Orders, Recent Judicial Dispositions. Bookmark the permalink.

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