Arbitration agreement; Whether a nonsignatory could be compelled to arbitrate; American Fed’n of State, Cnty & Mun Employees Council 25 v Wayne Cnty; Agency principles; Distinguishing Altobelli v Hartmann & Steward v Flint Sch Dist; DK Joint Venture 1 v Weyand (5th Cir); Bel-Ray Co, Inc v Chemrite (Pty) Ltd (3d Cir); Claims brought against a party in their individual capacity; Piercing the corporate veil

Addressing for the first time in a published decision whether a resisting nonsignatory may be compelled to arbitrate, the court held that agency principles could not be applied to compel plaintiff, a resisting nonsignatory, to arbitrate the claims defendant “brought against him in his individual capacity.” It also concluded that defendant failed to show it was entitled to summary disposition based on piercing the corporate veil. Thus, the court reversed summary disposition for defendant and remanded. Plaintiff was the sole member, owner, officer, director, and manager of a pharmacy that signed a services agreement with defendant. Plaintiff signed the agreement “on behalf of the Pharmacy in his capacity as its sole member.” He did not sign it in his individual capacity. The agreement contained the arbitration provision. Plaintiff later filed this declaratory judgment action, “arguing that, because he was not a party to the Agreement, defendant’s claims against him in his individual capacity were not subject to its arbitration provision.” Based on agency principles, the trial court ruled in defendant’s favor. On plaintiff’s appeal, defendant asserted that Altobelli and Steward governed “when agency principles bind a nonsignatory to an arbitration agreement.” But the court found that the fact this case addressed “a signatory attempting to enforce arbitration against a nonsignatory . . . materially, factually distinguishes the present case from Altobelli, and likewise Steward.” Further, the parties did not “cite any published Michigan caselaw holding that the principle that ‘nonsignatories of arbitration agreements can . . . be bound by an agreement pursuant to . . . agency,’ includes a situation in which the party resisting the arbitration is a nonsignatory.” Thus, the court reviewed case law from other jurisdiction, including two federal decisions cited by plaintiff, DK Joint Venture 1 and Bel-Ray. It concluded that this case law underscored “the contract principle that ‘a party cannot be required to arbitrate when it is not legally or factually a party to the agreement.’” As a result, it held that the trial court erred in granting defendant summary disposition on the basis of agency principles. As to defendant’s alternative basis, it “came far short of carrying its burden to” show there was no genuine issue of material fact as to “the requisites for piercing the corporate veil.”

Attorney fees; Appointed appellate counsel; Reasonable compensation; MCL 775.16; In re Foster Attorney Fees; Individualized determination; In re Recorder’s Court Bar Ass’n; In re Jamnik; Fee reduction; Evidentiary basis; Michigan Appellate Assigned Counsel System (MAACS)

The court held that remand was required because the trial court did not adequately explain the evidentiary and legal basis for reducing appointed appellate counsel’s requested fees. Appellant was appointed to represent a defendant in a plea appeal and sought MAACS compensation for work on a motion to withdraw the plea and an application for leave to appeal. The trial court reduced both requests, finding the hours unreasonable and noting that the matter did not involve “novel or complex issues.” On appeal, the court recognized that appointed counsel are entitled to “reasonable compensation,” and that under In re Foster Attorney Fees and In re Recorder’s Court Bar Ass’n, the trial court must make an “individualized determination of reasonable compensation.” Although the trial court purported to do so, and although its conclusion that the case lacked novel or complex issues was relevant, the court held that this did not eliminate the need for “a transparent and evidence-based methodology.” The trial court failed to identify any factual or legal basis for its views about how many hours were reasonable for the motion, client visits, or leave application. Without “empirical data,” such as analogous billing records, expert testimony, or relevant fee standards, the record did not permit meaningful appellate review. Remanded for a comprehensive explanation “of the evidentiary and legal foundations” for any reasonable-fee findings.

Breach of contract; Sales agent agreements; Contract interpretation; Unambiguous exclusivity provision; “Carry”; Commission reduction provision; Whether a liquidated damages clause constituted an unenforceable penalty; Commission-related damages; Statutory damages & attorney fees under the Michigan Sales Representative Commissions Act (SRCA); MCL 600.2961; In re Certified Question; “Prevailing party”; Peters v Gunnell, Inc

The court held that there was an unambiguous exclusivity provision in the parties’ 2021 sales agent agreement, and the trial court erred in not enforcing it as written. It further erred in denying plaintiff’s request to recover unearned commissions because the commission-reduction aspect of that provision was not an unenforceable penalty. The court rejected defendants’ argument as to the calculation of commission-related damages, but agreed with them that they should have been awarded “statutory damages and attorney fees under the SRCA.” Defendants had sold and promoted plaintiff’s medical products as independent commissioned sales agents. Plaintiff sued “for breach of contract, alleging that defendants impermissibly and covertly sold” nonparty-I’s medical products. Defendants filed a counterclaim alleging wrongful termination of the agreement and violation of the SRCA. On appeal, the court concluded defendants breached the agreement by selling I’s products through a separate company owned by defendant-Buck (who also owned defendant-Patriot Medicals). “The plain language of the sales agreement does not limit the exclusivity provision to Buck’s role as a sales agent of” Patriot Medicals. Rather, it also applied to him personally. Thus, he breached the provision “as it was written by selling” I’s products through another of his companies. The trial court further erred in “interpreting the commission-reduction provision as an unenforceable penalty.” Thus, plaintiff was “entitled to recoup the unearned commissions that it paid to defendants from the date of the first breach.” And because plaintiff was entitled to terminate the agreement in 8/21 based on “defendants’ breach of the exclusivity provision,” the court was not definitely and firmly convinced the trial court erred as to the calculation of commission-related damages as to defendants’ counterclaims. But plaintiff “was not entitled to withhold the remaining amount of the earned commissions owed directly to defendants” and the trial court abused its discretion in ruling that they “were not entitled to statutory damages under the SRCA.” And because the court found “plaintiff violated the SRCA requirement to pay defendants earned commissions within 45 days of terminating the” agreement, they were prevailing parties under the SCRA entitled to attorney fees. Vacated and remanded.

Arbitration agreement; Whether a nonsignatory could be compelled to arbitrate; American Fed’n of State, Cnty & Mun Employees Council 25 v Wayne Cnty; Agency principles; Distinguishing Altobelli v Hartmann & Steward v Flint Sch Dist; DK Joint Venture 1 v Weyand (5th Cir); Bel-Ray Co, Inc v Chemrite (Pty) Ltd (3d Cir); Claims brought against a party in their individual capacity; Piercing the corporate veil

Addressing for the first time in a published decision whether a resisting nonsignatory may be compelled to arbitrate, the court held that agency principles could not be applied to compel plaintiff, a resisting nonsignatory, to arbitrate the claims defendant “brought against him in his individual capacity.” It also concluded that defendant failed to show it was entitled to summary disposition based on piercing the corporate veil. Thus, the court reversed summary disposition for defendant and remanded. Plaintiff was the sole member, owner, officer, director, and manager of a pharmacy that signed a services agreement with defendant. Plaintiff signed the agreement “on behalf of the Pharmacy in his capacity as its sole member.” He did not sign it in his individual capacity. The agreement contained the arbitration provision. Plaintiff later filed this declaratory judgment action, “arguing that, because he was not a party to the Agreement, defendant’s claims against him in his individual capacity were not subject to its arbitration provision.” Based on agency principles, the trial court ruled in defendant’s favor. On plaintiff’s appeal, defendant asserted that Altobelli and Steward governed “when agency principles bind a nonsignatory to an arbitration agreement.” But the court found that the fact this case addressed “a signatory attempting to enforce arbitration against a nonsignatory . . . materially, factually distinguishes the present case from Altobelli, and likewise Steward.” Further, the parties did not “cite any published Michigan caselaw holding that the principle that ‘nonsignatories of arbitration agreements can . . . be bound by an agreement pursuant to . . . agency,’ includes a situation in which the party resisting the arbitration is a nonsignatory.” Thus, the court reviewed case law from other jurisdiction, including two federal decisions cited by plaintiff, DK Joint Venture 1 and Bel-Ray. It concluded that this case law underscored “the contract principle that ‘a party cannot be required to arbitrate when it is not legally or factually a party to the agreement.’” As a result, it held that the trial court erred in granting defendant summary disposition on the basis of agency principles. As to defendant’s alternative basis, it “came far short of carrying its burden to” show there was no genuine issue of material fact as to “the requisites for piercing the corporate veil.”

Breach of contract; Sales agent agreements; Contract interpretation; Unambiguous exclusivity provision; “Carry”; Commission reduction provision; Whether a liquidated damages clause constituted an unenforceable penalty; Commission-related damages; Statutory damages & attorney fees under the Michigan Sales Representative Commissions Act (SRCA); MCL 600.2961; In re Certified Question; “Prevailing party”; Peters v Gunnell, Inc

The court held that there was an unambiguous exclusivity provision in the parties’ 2021 sales agent agreement, and the trial court erred in not enforcing it as written. It further erred in denying plaintiff’s request to recover unearned commissions because the commission-reduction aspect of that provision was not an unenforceable penalty. The court rejected defendants’ argument as to the calculation of commission-related damages, but agreed with them that they should have been awarded “statutory damages and attorney fees under the SRCA.” Defendants had sold and promoted plaintiff’s medical products as independent commissioned sales agents. Plaintiff sued “for breach of contract, alleging that defendants impermissibly and covertly sold” nonparty-I’s medical products. Defendants filed a counterclaim alleging wrongful termination of the agreement and violation of the SRCA. On appeal, the court concluded defendants breached the agreement by selling I’s products through a separate company owned by defendant-Buck (who also owned defendant-Patriot Medicals). “The plain language of the sales agreement does not limit the exclusivity provision to Buck’s role as a sales agent of” Patriot Medicals. Rather, it also applied to him personally. Thus, he breached the provision “as it was written by selling” I’s products through another of his companies. The trial court further erred in “interpreting the commission-reduction provision as an unenforceable penalty.” Thus, plaintiff was “entitled to recoup the unearned commissions that it paid to defendants from the date of the first breach.” And because plaintiff was entitled to terminate the agreement in 8/21 based on “defendants’ breach of the exclusivity provision,” the court was not definitely and firmly convinced the trial court erred as to the calculation of commission-related damages as to defendants’ counterclaims. But plaintiff “was not entitled to withhold the remaining amount of the earned commissions owed directly to defendants” and the trial court abused its discretion in ruling that they “were not entitled to statutory damages under the SRCA.” And because the court found “plaintiff violated the SRCA requirement to pay defendants earned commissions within 45 days of terminating the” agreement, they were prevailing parties under the SCRA entitled to attorney fees. Vacated and remanded.

Motion to adjourn; Forensic expert unavailability; MCR 2.503(C)(2); People v Jackson; MCR 2.506(G)(3); MCR 2.503(D)(1)

In an order in lieu of granting leave to appeal, the court reversed a Court of Appeals order, holding that, contrary to the Court of Appeals’ ruling, the trial court did not abuse its discretion in denying the prosecution’s motion to adjourn trial due to a forensic expert’s unavailability. The court concluded that the trial court reasonably determined the prosecution “failed to act with the requisite diligence after the witness failed to acknowledge receipt of the subpoena that plaintiff attempted to serve electronically.” The court noted that MCR 2.506(G)(3) directs “that when ‘no confirmation correspondence is provided within 2 business days after email or facsimile transmission,’ the subpoena ‘must be served’ in the traditional manner.” The prosecution failed to “take this mandatory step” and also did not “reach out to the witness to inquire into her availability to testify at defendant’s trial. Months passed before [it] discovered that the witness was unavailable. By that point, jury selection was already underway.” The court further concluded that the trial court “reasonably declined to invoke MCR 2.503(D)(1), which confers discretion to grant an adjournment ‘to promote the cause of justice.’” The trial court found that adjourning the trial would add several “months of delay to a case that has already been pending for more than two years.” The court held that the Court of Appeals erred to the extent “it suggested that the trial court was required to grant plaintiff’s motion to adjourn so long as it did not result in a violation of defendant’s constitutional right to a speedy trial. In short, nothing in MCR 2.503(C)(2) or MCR 2.503(D)(1) required the trial court to adjourn a trial that was already underway.” Remanded to the trial court for further proceedings.

Lesser offense jury instructions; Voluntary manslaughter instruction; People v Mendoza; “Heat of passion” killing; Maher v People; People v Yeager; People v Pouncey; Harmless error; People v Cornell

In an order in lieu of granting leave to appeal, the court reversed Part II of the Court of Appeals judgment (see eJournal # 82205 in the 9/11/24 edition), holding that the trial court erred in refusing to give a voluntary-manslaughter instruction and that the error was not harmless. It also vacated the remainder of the Court of Appeals’ opinion because the instructional error was dispositive, vacated defendant’s second-degree murder conviction, and remanded to the trial court for further proceedings. The court concluded “there was evidence to support each prong of voluntary manslaughter. The Court of Appeals majority erred by discounting the provocation presented here based on defendant’s role as an initial aggressor. Michigan caselaw does not per se bar an instruction on voluntary manslaughter in cases where the defendant is the initial aggressor or where there is mixed evidence regarding who initiated the circumstances that led to the provocation.” The court noted that “viewing the entire transaction—including defendant’s role in the affray at the bar and his aggressive acts of tire slashing—may ultimately not be beneficial to [him]. But as a matter of law, a rational view of the evidence supports providing the voluntary-manslaughter instruction and allowing the jury to make this determination.” The court also concluded that it could not say the error was harmless. The “fact that the jury chose to convict defendant of second-degree murder” did not necessarily indicate what it would have done if it had been properly instructed on voluntary manslaughter. And while it “was given information about the existence of voluntary manslaughter” the jury was not “given the opportunity to adopt that charge.”

Justice Welch agreed with the majority that a rational view of the evidence supported a voluntary manslaughter instruction and that the trial court erred in failing to give it, but believed that the error was harmless. Thus, she joined Part III of Justice Bernstein’s dissent (concerning harmless error) and would not reverse defendant’s conviction.

Justice Bernstein, joined by Justice Zahra, found that the facts showed “defendant was not objectively provoked by a minor shove and that any heat of passion on [his] part clearly existed long before his encounter with” the victim. Thus, “considering the factual circumstances as a whole, a rational view of the evidence does not support a voluntary-manslaughter instruction.” He further concluded that, even “if the trial court erred, any error is harmless in this case.”

Motion for relief from judgment; Successive motion; MCR 6.502(G); MCR 6.508(D); Sentencing; Youthful offender; Second-degree murder; MCL 750.317; Proportionality; People v Milbourn; People v Stovall; People v Taylor; People v Boykin; MCR 6.429; Invalid sentence

The court held that the trial court abused its discretion by granting defendant’s successive motion for relief from judgment and ordering resentencing. Defendant was 18 when he committed second-degree murder and felony-firearm, and he received a 25-to-50-year murder sentence, which was within the guidelines range of 180 to 300 months, or life. The court first held that the trial court legally erred by failing to analyze whether defendant was entitled to relief under MCR 6.508(D). Although a retroactive change in law may satisfy the successive-motion gateway in MCR 6.502(G)(2), Stovall makes clear that this is only “a threshold for overcoming the procedural bar,” and the trial court improperly conflated that threshold with entitlement to relief. The court also held that MCR 6.429 did not independently authorize resentencing because MCR 6.429(B)(4) requires a defendant who exhausted appellate remedies to proceed under MCR 6.500 et seq. The court next held that the trial court committed factual and legal errors by misunderstanding the sentence. It erroneously treated defendant as though he had to serve 50 years before parole eligibility, while he actually received a 25-year minimum, and it relied on the maximum term even though the guidelines “prescribe only the minimum sentence ranges.” The court further held that neither Stovall nor Taylor supported relief because Stovall involved a juvenile sentenced to parolable life, and Taylor involved mandatory life without parole for 19- and 20-year-old offenders, while defendant received a term-of-years sentence with parole eligibility at age 45. Finally, the court held that defendant failed to show actual prejudice or an invalid sentence because the original sentencing judge considered defendant’s youth and juvenile record, Boykin does not require detailed on-the-record findings about youth, and the within-guidelines sentence remained presumptively proportionate. Reversed.

Ineffective assistance of counsel; Plea bargaining; People v Douglas; Sentencing guidelines estimate; CSC III; MCL 750.520d(1)(b); OV 3; Bodily injury requiring medical treatment; MCL 777.33(1)(d); People v Lampe; Sex Offenders Registration Act (SORA); Cruel or unusual punishment; People v Kardasz

The court held that defendant was not denied the effective assistance of counsel during plea negotiations, that OV 3 was properly scored, and that lifetime SORA registration was not cruel or unusual punishment. Defendant rejected a plea offer, proceeded to trial, and was convicted of two counts of CSC III. On appeal, the court first held that counsel was not ineffective for failing to correct the prosecutor’s and trial court’s sentencing-guidelines estimate because the record showed the guidelines were only estimates, not guarantees. The trial court asked the prosecutor for an “idea” of the expected guidelines, and later asked defendant whether he understood he would “potentially” face higher guidelines and consecutive sentences if convicted. Because words like “potential” and “idea” were understandable to a layperson, counsel’s failure to correct the estimate was not objectively unreasonable. The court next held that OV 3 was properly scored at 10 points because the victim’s nausea qualified as bodily injury under Lampe, which broadly defines bodily injury as an “unwanted physically damaging consequence,” and the nausea required medical treatment because she was prescribed Zofran. Finally, the court rejected defendant’s facial challenge to lifetime SORA registration. Relying on Kardasz, the court held that the 2021 SORA is punishment but is not cruel or unusual as applied to Tier III offenders, and CSC III is a Tier III offense. Affirmed.

Sufficiency of the evidence for a maintaining a drug house conviction; MCL 333.7405(1)(d); “Keep or maintain”; People v Thompson; Fourth Amendment; Consent; Reasonable suspicion for a brief detention; Whether the pre-detention investigation constituted a search & seizure; Const 1963, art 1, § 11; Ineffective assistance of counsel; Objection to expert testimony; Lack of a rebuttal expert or motion to suppress; Allocution; People v Dixon-Bey

The court held that there was sufficient evidence to support defendant’s maintaining a drug house conviction. It also rejected his Fourth Amendment challenges to the search of a safe, his brief detention while officers investigated, and the pre-detention investigation. Further, it found that he was not denied the effective assistance of counsel or a meaningful opportunity to allocute. Thus, it affirmed his convictions (he was also convicted of meth delivery) and sentences, as a fourth-offense habitual offender, to 8 to 50 years for the delivery conviction and 6 to 15 years for the maintaining a drug house conviction. While conducting surveillance at a hotel, an officer “saw defendant repeatedly walk between the hotel and a car occupied by” another individual (D). Officers later “recovered approximately one gram of meth[] from the driver’s side of the car, pipes from inside the car, and a safe from the trunk. The safe contained approximately 7.3 grams of meth[], a scale, and packaging material.” The court noted that to “establish that defendant maintained a drug house on the basis of [D’s] car, the prosecution had to prove that defendant knowingly kept or maintained the car and made it available for the purpose of using, keeping, or selling” meth. The court concluded that “the evidence permitted the jury to find the required degree of continuity. [D] owned the car, but she testified that defendant regularly drove it and that both of them kept belongings in it. [D] also testified that defendant had access to the safe, brought it into the hotel room, and supplied meth[] from it.” The safe was found in the car trunk. Defendant “testified that he intended to drive [D] to Washington, supporting a reasonable inference that the car was not merely an incidental or momentary storage location, but was being used to transport” him, D, their things, and the safe containing meth. Thus, a rational juror could find he “knowingly kept or maintained the car for keeping” meth. The court also found that there was record evidence “supporting the remaining statutory theories.” Further, it concluded that trial counsel was not ineffective for failing “to properly challenge the prosecution’s expert testimony,” not calling a rebuttal expert, or not making a meritless motion to suppress evidence obtained in the vehicle search.

Resisting or obstructing a police officer; MCL 750.81d; Lawfulness of police conduct; People v Prude; Arrest warrant; Payton v New York; MCL 764.21; Ineffective assistance of counsel; Failure to request an instruction on the common-law right to resist unlawful arrest; People v Moreno; Sentencing; OV 1; People v McGraw; Sentencing Information Report (SIR)

The court held that sufficient evidence supported defendant’s resisting-or-obstructing conviction, that counsel was not ineffective, and that remand was required only to correct the SIR. Defendant was convicted after a police chief entered her mobile home while a process server was carrying out an eviction and while an active arrest warrant existed. On appeal, the court first held that the evidence supported the lawfulness element because, under Prude, a conviction is overturned only when the officer’s conduct “cannot be reasonably perceived as lawful” viewing the facts favorably to the prosecution. MCL 764.21 did not help defendant because “[a]ll witnesses agree the entry door was open,” and the evidence showed the inside door was merely pushed open while defendant resisted. The court also held that the arrest warrant authorized entry under Payton, which permits entry into a suspect’s dwelling when there is reason to believe the suspect is inside, and the jury could credit the chief’s testimony that he was told of the warrant. The court next rejected defendant’s ineffective-assistance claim because the common-law right to resist an unlawful arrest did not fit the evidence, and counsel reasonably focused on whether defendant struck or knowingly resisted the officer rather than on lawfulness. Finally, the court agreed OV 1 was improperly scored because defendant’s alleged threat to shoot the process server was not part of the sentencing offense under McGraw, and a change made to PRV 5 should have been to PRV 6. Because defendant had already served her sentence, resentencing was moot. Affirmed in part and remanded for correction of the SIR.

Custody change; Established custodial environment (ECE); MCL 722.27(1)(c); Sabatine v Sabatine; Baker v Baker; Statutory best-interest factors (MCL 722.23); Factors (b), (f), (j), (k), & (l); Interference with the other party’s parenting time; In camera interview of the children; Factor (i); Inquiry into the rationale of a preference; Molloy v Molloy

The court held that the trial court did not clearly err in determining that the parties’ children had an ECE with both parties at the time of the referee hearing, and rejected plaintiff-father’s arguments as to the trial court’s findings on the best-interest factors. He also failed to establish that the referee erred in conducting the in camera interview of the children. Thus, the court affirmed the award of primary physical custody to defendant-mother. The court concluded that the facts presented to the trial court supported its finding that the children’s ECE as of the hearing date was with both parties, “and that defendant had proven by clear and convincing evidence that a change was in” the children’s best interests. While they “were primarily living with plaintiff in the marital home at the time of the referee hearing, this is not determinative.” The Supreme Court cautioned in Sabatine “against placing ‘too much or too little emphasis on the child’s physical environment’ in determining whether an” ECE exists. Further, “the trial court applied the correct legal standard even if it had found the [ECE] was with plaintiff.” Because it found an ECE “with both parties, it applied the clear-and-convincing standard to defendant’s motion for a change in custody as instructed” in Sabatine. Next, the court disagreed with plaintiff’s assertion “the trial court committed clear legal error by deciding to modify child custody ‘based almost exclusively’ on plaintiff’s ‘parenting time denials.’” Although visitation and contempt disputes “‘are not a proper basis for changing custody,’” the court found “no clear error in the trial court’s reference to plaintiff’s behavior and actions toward defendant with respect to the parenting time as applied to the factors that” it ultimately determined favored her – (b), (f), (j), (k), and (l). It “cited plaintiff’s interference with defendant’s parenting time as directly implicating Factors (f) and (j). Neither finding is against the great weight of the evidence.” As to (b), it “affirmed the referee’s finding that plaintiff ‘lacks the disposition to give appropriate guidance regarding the children’s ongoing contact’ with defendant[,]” citing his actions. “The bottom line is that the trial court’s analysis of Factors (b), (f), (j), (k), and (l), was not limited to plaintiff’s violation of the court orders or his denial of parenting time, but properly considered specific behaviors and actions by [him] that implicated each” factor.

Nursing malpractice; Danhoff v Fahim; MRE 702; MCL 600.2955; Principle that a medical malpractice claim may not be supported solely by a defendant’s failure to maintain proper documentation; Adequacy of an expert witness’s opinion

The court held that the trial court did not err in ruling that the opinion offered by plaintiff’s expert (M) was insufficient to sustain plaintiff’s nursing malpractice claims against defendants and thus, that defendants were entitled to summary disposition. The trial court was correct that a medical malpractice “claim may not be supported solely by a defendant’s failure to maintain proper documentation.” Plaintiff asserted that the main thrust of M’s opinion “was not simply that either defendant failed to maintain accurate records of his treatment, but that the treatment he actually received was inconsistent with those records and below the standard of care” (SOC). But the court agreed with the trial court that M’s “opinion to that effect was inadequate. [M] testified that the course of treatment documented in plaintiff’s medical records was consistent with the [SOC]. This was sufficient to articulate her opinion on the applicable [SOC]. But where her opinion falls short, and plaintiff’s claim falls apart, is at the next step of the inquiry—establishing a breach of that [SOC]. The only support plaintiff offered for the notion that he received treatment inconsistent with defendants’ documentation or the” SOC was M’s opinion as to “the progression of his wounds—in particular, the deterioration of his coccyx wound. Merely describing an injury or bad outcome, however, is not sufficient in itself to establish the breach of a” SOC. M agreed that skin breakdowns can still occur where nurses perform within their abilities; “that sometimes, ‘despite the appropriate interventions[,] wounds continue[] to progress’; and that, ‘just because [a wound] progresses[,] that does not equate to medical negligence.’” While she opined she did not believe that was the case here, the only support offered for her “opinion was a general and undeveloped reference to her ‘education . . . and experience, that when wound care orders are followed through and provided the way that they should be provided, . . . the wound should be able to progress towards healing versus degrading.’ Such bare reliance on an expert’s experience and background, without more, is typically inadequate to establish the admissibility of their opinion, and plaintiff has failed to explain how it may have been sufficient here.” Affirmed.

Medical malpractice; Proximate causation; MCL 600.2912a(2); Expert testimony; Craig ex rel Craig v Oakwood Hosp; Death certificate; Use of metal staples; Metal allergy

The court held that defendants were entitled to summary disposition because plaintiff failed to establish a genuine issue of material fact as to proximate causation in this medical-malpractice action. Plaintiff alleged that defendant-doctor breached the standard of care by using metal staples after decedent’s knee replacement surgery. The court first noted that plaintiff’s only standard-of-care issue was whether the doctor “breached the standard of care by utilizing metal staples,” but plaintiff still had to prove that the alleged breach more probably than not proximately caused the death. The court held that plaintiff’s expert did not supply that proof because he “‘pointed to nothing in the record’” showing that the staples were the actual cause of the infection. The court also relied on the expert’s concessions that decedent was never diagnosed with a metal allergy, her records did not appear to show a metal-allergy notation, she had prior metal implants without problems, metal-allergy symptoms would likely have arisen within 72 hours while her symptoms appeared weeks later, and her “entire post-surgical course could be explained without reference to a metal allergy.” The court further held that neither the death certificate’s reference to sepsis secondary to an infected knee prosthesis nor later records noting reported metal and suture allergies established that, but for the use of metal staples, decedent would not have died. Because plaintiff failed to present evidence creating a reasonable basis to find causation more likely than not, summary disposition was proper. Affirmed.

Negligence claim against an insurer based on an insurance agency’s conduct; Whether the agency acted as a “dual agent”; Comparing Hajjaj v Hartford Accident & Indem Co; Genesee Foods Servs, Inc v Meadowbrook, Inc; Distinguishing Opera Block Props, Inc v Auto-Owners Ins Co

Concluding that Al-Hajjaj and Genesee Foods governed here, the court held that plaintiffs-insureds did not state a viable negligence claim against defendant-insurer based on alleged improper conduct by an insurance agent. Thus, it affirmed summary disposition for defendant. The court previously decided plaintiffs’ action against the agent (S) and his agency (JLS), who were not parties to this case. Plaintiffs contended here that S’s conduct could be imputed to defendant because S “acted as a ‘dual agent’ of plaintiffs and defendant.” Pursuant to Al-Hajjaj and Genesee Foods, the court held that JLS and S’s “primary fiduciary duty of loyalty was to plaintiffs as the insureds, and plaintiffs failed to establish that the agency agreement between defendant and JLS was materially distinct so as to invest JLS or [S] with the authority to set policy limits or permit the imputation of any alleged misconduct to defendant.” The court noted the “agency agreement granted JLS and its agents the authority to solicit and secure applications and to bind coverage for insurance contracts. [It] did not expressly empower the independent insurance agency or its agents to perform risk assessments, property inspections, calculations of the relevant premium rates, or a determination of the specific” policy terms and conditions. This case was distinguishable from Opera Block, “which concerned whether an independent insurance agency had the authority to bind the defendant insurer to a policy[.]” This case concerned “the actual policy limits set forth in the” policy. While “agreements between insurers and independent insurance agencies commonly authorize such agencies to bind insurers to policies, they generally do not permit [them] to determine the” policy’s terms and conditions, including limits. “Thus, such binding authority does not, without more, render the insurance agency an agent of the insurer for purposes of establishing or altering policy limits.” The court added that in its prior decision, it held that the conduct of JLS and S—their alleged assurances about “the adequacy of coverage—was irrelevant in light of the absence of any policy language guaranteeing that the actual cash value would be sufficient to rebuild according to plaintiffs’ specifications.” It further “ruled that the general no-duty-to-advise rule remained applicable because plaintiff did not establish the existence of a special relationship between the parties.”

Nursing malpractice; Danhoff v Fahim; MRE 702; MCL 600.2955; Principle that a medical malpractice claim may not be supported solely by a defendant’s failure to maintain proper documentation; Adequacy of an expert witness’s opinion

The court held that the trial court did not err in ruling that the opinion offered by plaintiff’s expert (M) was insufficient to sustain plaintiff’s nursing malpractice claims against defendants and thus, that defendants were entitled to summary disposition. The trial court was correct that a medical malpractice “claim may not be supported solely by a defendant’s failure to maintain proper documentation.” Plaintiff asserted that the main thrust of M’s opinion “was not simply that either defendant failed to maintain accurate records of his treatment, but that the treatment he actually received was inconsistent with those records and below the standard of care” (SOC). But the court agreed with the trial court that M’s “opinion to that effect was inadequate. [M] testified that the course of treatment documented in plaintiff’s medical records was consistent with the [SOC]. This was sufficient to articulate her opinion on the applicable [SOC]. But where her opinion falls short, and plaintiff’s claim falls apart, is at the next step of the inquiry—establishing a breach of that [SOC]. The only support plaintiff offered for the notion that he received treatment inconsistent with defendants’ documentation or the” SOC was M’s opinion as to “the progression of his wounds—in particular, the deterioration of his coccyx wound. Merely describing an injury or bad outcome, however, is not sufficient in itself to establish the breach of a” SOC. M agreed that skin breakdowns can still occur where nurses perform within their abilities; “that sometimes, ‘despite the appropriate interventions[,] wounds continue[] to progress’; and that, ‘just because [a wound] progresses[,] that does not equate to medical negligence.’” While she opined she did not believe that was the case here, the only support offered for her “opinion was a general and undeveloped reference to her ‘education . . . and experience, that when wound care orders are followed through and provided the way that they should be provided, . . . the wound should be able to progress towards healing versus degrading.’ Such bare reliance on an expert’s experience and background, without more, is typically inadequate to establish the admissibility of their opinion, and plaintiff has failed to explain how it may have been sufficient here.” Affirmed.

Medical malpractice; Proximate causation; MCL 600.2912a(2); Expert testimony; Craig ex rel Craig v Oakwood Hosp; Death certificate; Use of metal staples; Metal allergy

The court held that defendants were entitled to summary disposition because plaintiff failed to establish a genuine issue of material fact as to proximate causation in this medical-malpractice action. Plaintiff alleged that defendant-doctor breached the standard of care by using metal staples after decedent’s knee replacement surgery. The court first noted that plaintiff’s only standard-of-care issue was whether the doctor “breached the standard of care by utilizing metal staples,” but plaintiff still had to prove that the alleged breach more probably than not proximately caused the death. The court held that plaintiff’s expert did not supply that proof because he “‘pointed to nothing in the record’” showing that the staples were the actual cause of the infection. The court also relied on the expert’s concessions that decedent was never diagnosed with a metal allergy, her records did not appear to show a metal-allergy notation, she had prior metal implants without problems, metal-allergy symptoms would likely have arisen within 72 hours while her symptoms appeared weeks later, and her “entire post-surgical course could be explained without reference to a metal allergy.” The court further held that neither the death certificate’s reference to sepsis secondary to an infected knee prosthesis nor later records noting reported metal and suture allergies established that, but for the use of metal staples, decedent would not have died. Because plaintiff failed to present evidence creating a reasonable basis to find causation more likely than not, summary disposition was proper. Affirmed.

Negligence claim against an insurer based on an insurance agency’s conduct; Whether the agency acted as a “dual agent”; Comparing Hajjaj v Hartford Accident & Indem Co; Genesee Foods Servs, Inc v Meadowbrook, Inc; Distinguishing Opera Block Props, Inc v Auto-Owners Ins Co

Concluding that Al-Hajjaj and Genesee Foods governed here, the court held that plaintiffs-insureds did not state a viable negligence claim against defendant-insurer based on alleged improper conduct by an insurance agent. Thus, it affirmed summary disposition for defendant. The court previously decided plaintiffs’ action against the agent (S) and his agency (JLS), who were not parties to this case. Plaintiffs contended here that S’s conduct could be imputed to defendant because S “acted as a ‘dual agent’ of plaintiffs and defendant.” Pursuant to Al-Hajjaj and Genesee Foods, the court held that JLS and S’s “primary fiduciary duty of loyalty was to plaintiffs as the insureds, and plaintiffs failed to establish that the agency agreement between defendant and JLS was materially distinct so as to invest JLS or [S] with the authority to set policy limits or permit the imputation of any alleged misconduct to defendant.” The court noted the “agency agreement granted JLS and its agents the authority to solicit and secure applications and to bind coverage for insurance contracts. [It] did not expressly empower the independent insurance agency or its agents to perform risk assessments, property inspections, calculations of the relevant premium rates, or a determination of the specific” policy terms and conditions. This case was distinguishable from Opera Block, “which concerned whether an independent insurance agency had the authority to bind the defendant insurer to a policy[.]” This case concerned “the actual policy limits set forth in the” policy. While “agreements between insurers and independent insurance agencies commonly authorize such agencies to bind insurers to policies, they generally do not permit [them] to determine the” policy’s terms and conditions, including limits. “Thus, such binding authority does not, without more, render the insurance agency an agent of the insurer for purposes of establishing or altering policy limits.” The court added that in its prior decision, it held that the conduct of JLS and S—their alleged assurances about “the adequacy of coverage—was irrelevant in light of the absence of any policy language guaranteeing that the actual cash value would be sufficient to rebuild according to plaintiffs’ specifications.” It further “ruled that the general no-duty-to-advise rule remained applicable because plaintiff did not establish the existence of a special relationship between the parties.”

Termination under §§ 19b(3)(c)(i), (c)(ii), & (j); Distinguishing In re Newman; Child’s best interests; In re Olive/Metts; Guardianship; MCL 712A.19a(9)(c)

Holding that terminating respondent-mother’s parental rights was proper under §§ (c)(i), (c)(ii), and (j), and that doing so was in the child’s (D) best interests, the court affirmed the termination order. While she relied on Newman, the court found that unlike in that case, “respondent was given a full and fair opportunity to rectify the conditions that led to adjudication and failed to do so.” Here, the termination trial began 576 days after the initial disposition order was filed. And the record supported the trial court’s findings “that the primary condition that led to removal was respondent being unable to provide a proper home for [D] and that respondent still could not do so at the time of trial. [It] acknowledged that respondent was no longer homeless but found that she could not provide a safe or clean home for” D. Just before the “trial, the caseworker visited respondent’s home and observed ‘a pretty significant hole in the ceiling’ of her living room that was ‘a third of the size of the ceiling.’ The caseworker also expressed concerns that respondent was violating her lease by having other individuals stay in the home, which raised concerns about her being able to maintain housing.” The record further supported the trial court’s findings as “to respondent’s emotional instability and its impact on” D. Among other things, “near the time of trial, respondent’s behavior in leaving a threatening note at the police department and questioning [D] about her foster home raised serious concerns about” her mental health and D’s safety if returned to her. The court concluded the record contained “a plethora of evidence that respondent made little progress in addressing her mental health and in fact her behavior worsened over time.” There was no evidence that she would address “her mental health barriers” within a reasonable time to be able to effectively parent D. The court also found that the “trial court did not clearly err by finding that [D] would be harmed if returned to respondent’s care.” As to D’s best interests, given her “young age, the length of time she had been removed from respondent’s care, the lack of progress made by respondent, the bond between [D] and her foster parents, and [D’s] need for permanency and stability, the trial court did not clearly err by finding that” her best interests were served by termination. The court found no merit in respondent's argument that the trial court should have instead established a guardianship.

Termination under § 19b(3)(b)(i); Sexual abuse; Sexual contact; MCL 750.520a; In re HRC; Reasonable likelihood of future harm; In re Mota; Children’s best interests; Relative placement; In re CJM; MCR 3.977(I)(1)

The court held that § (b)(i) supported termination of respondent-father’s parental rights, but that the trial court’s best-interest findings were inadequate because it failed to address the child’s relative placement. The DHHS alleged respondent sexually abused his four-year-old child, who was placed with her mother. The court first held that clear and convincing evidence supported termination under § (b)(i) because respondent did not dispute touching the child’s genital area with bare fingers while bathing her, and the trial court was entitled to find the touching was sexual rather than for hygiene. The court relied on the child’s report that respondent bathed her “every day,” focused “right around the clitoris,” and went “wiggle, wiggle, wiggle with his finger,” along with testimony that she rarely had accidents and respondent only recently began bathing her. The court next held that a reasonable likelihood of future injury or abuse was shown because repeated sexual abuse alone supported that risk, and respondent’s admitted sexual attraction to the child’s half-sister was “probative of how respondent may treat [the child] in the future.” The court emphasized the trial court’s concern that respondent could develop similar feelings toward the child as she got older, especially because he had already touched her “in ‘a sexual area.’” But the court vacated the best-interest ruling because the trial court’s findings consisted only of “safety and security,” while the child’s placement with her mother had to be expressly considered as weighing against termination. Under CJM, the court explained that failure to address relative placement renders the record “inadequate to make a best-interest determination and requires reversal.” Affirmed in part, vacated in part, and remanded. The court retained jurisdiction.