Anne V. McArdle

Representative Matters

• (FIVE RELATED CASES DECIDED 2020) Ida Smith v Amerisure Insurance Co, Makram Haddoun, and Motown Transportation, LLC., Wayne County Circuit Court, case no. 18-014213-NI, Hon. Susan L. Hubbard; Mobile Anesthesiologists of Motor City (Ida Smith) v Amerisure Insurance Co, Wayne County Circuit Court, case no. 18-014213-NI, Hon. Susan L. Hubbard; Affectrix, LLC (Ida Smith) v Amerisure Insurance Co, 15^th District Court Washtenaw County, case no. 19-4979-GC, Hon. Joseph F. Burke; Focus Imaging, LLC (Ida Smith)  v Amerisure Insurance Co, 15^th District Court Washtenaw County, case no. 19-0370-GC, Hon. Joseph F. Burke; Advanced Surgery Center (Ida Smith) v Amerisure Insurance Co, Oakland County Circuit Court, case no. 19-174088-NF, Hon. D. Langford Morris. The plaintiff Ida Smith filed No-Fault PIP and Auto Negligence claims, where several medical providers filed their own lawsuits for PIP medical benefits in various Michigan courts.  Our office filed a Motion for Summary Disposition in the Ida Smith case seeking dismissal of her PIP action, the intervening medical provider case, and the third-party auto negligence lawsuit.  The court granted this motion in its entirety, dismissing the case and all counts with prejudice.  In rendering this ruling, the court reviewed a security video obtained by defense counsel that captured the occurrence of the accident.  In this video, Ms. Smith exited the medical transportation vehicle she was riding within, and she walked behind the vehicle, which then very slowly backed up making a slight contact with her left arm.  Ms. Smith went into the hospital and complained of the accident, and of having pain to her left arm, but no other injuries were identified on exam.  Later though, she asserted a rather serious low back injury including disc herniation, where Ms. Smith engaged in various forms of therapy, and she then had surgery to the lumbar spine.  The court additionally reviewed evidence presented of the medical records and history of Ms. Smith, showing she had longstanding low back pain, and various other health conditions, where she was already receiving Social Security Disability benefits as of the happening of the accident.  The trial court therefore found that Ms. Smith could not establish proximate causation of any injuries, to satisfy the requisite no-fault standards for first and third-party cases.  Plaintiff Smith did not appeal.  Defendant then asked all no-fault medical providers to dismiss their PIP cases, where upon refusal, defendant filed motions for summary disposition, asserting no causation of injuries, and also, res judicata based on the Circuit Court ruling in the Smith case.  The 15^th District Court granted two of the motions, with prejudice, and no appeal has been taken.  The remaining provider in the case of Advanced Surgery Center, voluntarily agreed to dismiss its case with prejudice without a hearing.   
• Eric Antilla v CBOCS Properties, Inc., aka Cracker Barrel, Michigan Court of Appeals, Appeal Case No. 342924, before the Hon. Boonstra, P.J., Meter, and Fort Hood, JJ, decided May 9, 2019. This was a premises liability action involving a slip and fall on black ice on a sidewalk/ramp leading into the front entrance of the restaurant. The Bay County Circuit Court granted the defendant’s Motion for Summary Disposition, holding that dismissal was proper based on a finding the black ice condition was open and obvious, and that there was a lack of notice of the condition. The plaintiff filed an  appeal of this decision to the Michigan Court of Appeals and Oral Argument was heard on May 1, 2019. Thereafter, an Unpublished Opinion was entered on May 9, 2019, where the court AFFIRMED the DISMISSAL of the trial court action.
• Eric Antilla v CBOCS Properties, Inc., aka Cracker Barrel, Bay County Circuit Court, Case No. 17- 3073-NO-JS, Hon. Sheeran. The plaintiff filed this premises liability suit against the Cracker Barrel in Bay City, after he slipped and fell on black ice on a sidewalk leading into the restaurant in March  2015. Defendant filed a Motion for Summary Disposition seeking dismissal based on the open and obvious doctrine, and lack of notice. The plaintiff was riding as a passenger in his girlfriend’s vehicle when they arrived at Cracker Barrel in the early morning hours. He exited the vehicle after they parked near the front doors, took a few steps, then fell. While Mr. Antilla denies a recollection of the fall, his girlfriend testified she saw what happened, and that as she walked toward Mr. Antilla to assist, she could see there was a covering of thin black ice around plaintiff, which she noticed because it was “shiny”. She saw ice in other areas as well, describing it as “everywhere”. All persons who responded after the fall, observed there was ice around where the plaintiff was laying, who included the store manager, another employee, the EMS, and the Fire Department. As for lack of notice, the weather reporting demonstrated it had recently started to rain and temperatures were hovering at or below freezing. Cracker Barrel performed at least three inspections of the premises before the fall, and did not notice any ice formation, nor were there any reports of ice or injuries. While one employee saw ice forming on the premises on his way into work that morning, he had not yet punched-in for work, and did not have time to salt before the fall. The court ultimately ruled there was no notice to the defendant of the ice condition, thereby granting summary disposition and dismissing the entire action.
• Yvonne Corbat v Midland County Agricultural and Horticultural Society, et al, Michigan Court of Appeals, Appeal Case No. 338753, before the Hon. Stevens, P.J., Sharpiro, Gadola, JJ, decided July 19, 2018. This was an alleged Bylaw violations and breach of fiduciary duty case brought by a former member of the Board of Directors of the Midland County Fair, when she was not re-elected to her position on the Board. The Defendants filed a Motion for Summary Disposition as to Counts I-III of the Complaint that were dismissed, and another Motion for Summary Disposition as to Count IV of the Complaint, heard after discovery, that was also dismissed. The plaintiff filed  an appeal of this  decision to the Michigan Court of Appeals and Oral Argument was heard on July 12, 2018.  Thereafter, an Unpublished Opinion was entered on July 19, 2018, where the court AFFIRMED the DISMISSAL of the trial court action.
• Yvonne Corbat v Midland County Agricultural and Horticultural Society, Margaret Wegner, Tammi Myers, Don Anger, and Roxanne Wheeler, Midland County Circuit Court. Plaintiff filed a four- count lawsuit asserting that the defendant Midland County enacted and relied upon bylaws that were in violation of state statutes, specifically the Michigan Local Agricultural or Horticultural Societies Act and the Michigan Nonprofit Corporations Act. She sought declaratory and injunctive relief to force Midland County to stop operating under the existing bylaws, and to revise the bylaws. We filed a motion for partial summary disposition, arguing that the bylaws and applicable statutes do not conflict and the bylaws are lawful. The trial court agreed, and dismissed counts I – III of the complaint, leaving only count IV. After the court dismissed counts I – III, the plaintiff focused on count IV and took 14 depositions and requested the production of voluminous records. The court then dismissed count IV, pursuant to our motion for summary disposition, which was a final order dismissing the entire action.
• Jennifer Jochheim v. GEICO, Ingham County Circuit Court. Plaintiff Jennifer Jochheim was a student at MSU, who was struck by a vehicle in a pedestrian cross-walk. She sustained injuries to her right side, but most significantly, she alleged permanent serious disfigurement from gravel that was imbedded in her face, and had to undergo multiple dermatological procedures. Ms. Jochheim was not a Michigan resident, as she resided in Chicago, and her vehicle was insured under a policy issued in Illinois through GEICO, an out-of-state insurer. We filed a motion for summary disposition regarding PIP, asserting that the GEICO policy was not a Michigan PIP policy, and was not subject to the exceptions stated under MCL 500.3163 for PIP to apply. The court agreed, stating that since plaintiff was a pedestrian, her injuries in Michigan did not arise from her own ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle, thereby defeating application of MCL 500.3163 per the specific statutory language. Regarding the third-party claims, we filed a concurrence to the motion for summary disposition filed by the third-party tortfeasor, stating that if the tortfeasor does not have liability, then there is no liability for UM/UIM benefits. The court ruled that plaintiff did not establish a serious impairment because she testified there was no effect on her general ability to lead a normal life. The court ruled that plaintiff did not establish permanent serious disfigurement, because plaintiff testified that the scarring was not permanent, and through treatment, she had essentially corrected any facial scarring.
• Dale and Connie Freeborg vs. MIC General Insurance Corporation, Genesee County Circuit Court. Plaintiffs were involved in a motor vehicle accident and claimed injuries to their back, neck, and  knees. We filed motions for summary disposition as to each plaintiff. As to Mr. Freeborg, we argued that his claimed impairments have not objectively manifested themselves in any fashion. When reviewing the medical record compilations and objective studies, all opinions and conclusions merely indicated subjective complaints of pain, degenerative conditions, and osteoarthritis, and no treating physician found any traumatic related impairment. As to Connie Freeborg, we first asked the court to rule that the plaintiff’s knee injury was not “caused by” the motor vehicle accident as four healthcare experts, including plaintiff’s own primary care physician and orthopedic surgeon, all testified or specifically noted in their medical records that plaintiff’s right knee condition was not related to the motor vehicle accident. When the court agreed, we then argued that plaintiff’s general ability to lead her normal life had not been affected by any injuries she allegedly sustained in the accident as all her noted activities that have been affected pertained to her knee, which was not related. The court agreed and granted summary disposition as to both plaintiffs.
• Lloyd Wilkerson vs. Midland County Agricultural and Horticultural Society d/b/a Midland County Fairgrounds, Midland County Circuit Court. Plaintiff was employed as the head of maintenance at the Midland County Fairgrounds and filed an age discrimination claim for violations of the ELCRA after he was terminated. Upon the close of discovery, we filed a motion for summary disposition arguing that plaintiff could not establish a prima facie case of discrimination because he was not “replaced” within the meaning of the law. The court agreed, dismissing plaintiff’s complaint. The court first held that there was no direct evidence of discrimination. The court next held that plaintiff was not “replaced” as plaintiff’s job was “redefined” and plaintiff’s “replacement” did not perform all of the same duties as the plaintiff. Some of plaintiff’s duties were outsourced, and the remaining duties were absorbed by the three remaining crew members. Because no employee performed the same tasks as plaintiff, the court held that a younger employee did not replace the plaintiff and he could not establish a prima facie case of age discrimination. The court also held that even if plaintiff could establish a prima facie case of age discrimination, plaintiff could not show that defendant’s reasoning for his termination was pretextual.
• Sarah Perkins vs. Sean Loewen and Fabiano Brothers, Case No.: 14-102289-NI, Genesee County Circuit Court, Honorable Archie Hayman presiding. The plaintiff, Sarah Perkins, filed an  automobile negligence suit against the defendant, Sean Loewen, and claiming respondeat superior liability against Mr. Loewen’s employer, Fabiano Brothers, pertaining to an accident occurring on June 5, 2011. Ms. Perkins claimed injuries to her lumbar spine, consisting of findings on a lumbar spine MRI, taken after the accident, of a bulging disc at L4-L5, and a disc herniation at L5-S1, with left  sided radiculopathy. While there were prior complaints of low back and left sided pain by this plaintiff in years past, she did not have a prior lumbar MRI for comparison, and the medical records showed infrequent follow-up or treatment for any pre-existing back pain. The plaintiff’s position at trial was that before our accident, while she had some prior medical problems, she was able to fully function  and live a happy life in her capacity as a working single mother. At trial, defendants shattered this clean-cut, allegedly honest presentation by plaintiff. Ms. Perkins was presented on cross-examination with a photograph of her and her daughter at Disney World in May 2015, at the end of the day, smiling ear to ear. She was then questioned as to why she did not disclose during discovery the fact that in the year 2001, she ran into a tree and a carport and was backboarded and taken by ambulance to the hospital complaining of left leg injuries. Before that, in 2000, she was in an automobile accident  where she injured her neck and upper back, and she engaged in about seven to eight years of various treatment. Another trial highlight was when plaintiff’s employer testified that she had been taking time off to be in physical therapy, where there was no standing prescription for any physical therapy. Ms. Perkins had not treated from our accident since 2012. Of course, there were many other defense highlights, where the cumulative inconsistencies demonstrated the manipulative nature of this plaintiff. The jury found this plaintiff did not sustain a serious impairment, and rendered a no cause of action verdict.
• Scott Stevens v MIC Insurance, case no. 14-102171-NI, Genesee County Circuit Court, the Hon. Joseph J. Farah presiding. This was a UM/UIM lawsuit filed by the plaintiff against his automobile insurer following a severe roll-over accident, caused by an uninsured drunk driver, where there was a fatality involved. The plaintiff was in the course and scope of his employment when the accident occurred. The UM/UIM policy of insurance contained an exclusion for the business use of a vehicle, and after receipt of a detailed legal analysis prepared by defense counsel, the plaintiff voluntarily agreed to dismiss the Complaint with prejudice, without having to engage in depositions or filing a Motion for Summary Disposition.
• Angela Frazier v Tanger Properties Limited Partnership, case no. 14-27826-NO, Livingston County Circuit Court, the Hon. Michael Hatty presiding. This is a premises liability action where the  plaintiff claims that while shopping with her children she tripped over raised asphalt and broke her ankle, requiring surgery and the placement of four screws, which remain within her ankle. She  claimed a disability for six months following the accident. Subsequent to plaintiff’s deposition, and a Limited amount of discovery, defense counsel advised plaintiff of the intention to file a Motion for Summary Disposition, and in response, plaintiff settled the case for a rather nominal amount.
• McLeod v City of Flint, David Bender, U.S. District Court, Eastern District of Michigan, Case No. 13-CV-1287. The plaintiff, Curtis McLeod, was arrested and held in jail for 18 months surrounding  the murder and robbery of an African American male in Flint. Mr. McLeod was later released from  jail when it was determined there was not enough evidence to prosecute. Plaintiff sued the arresting police officer defendant, David Bender, the detective who conducted the murder investigation, Lieutenant Marcus Mahan, The City of Flint, and the Genesee County Prosecutor’s office. The City of Flint and the prosecutor’s office were dismissed on the basis of governmental immunity. Defendants Bender and Mahan then filed the instant Motion for Summary Judgment asserting there was probable cause for the arrest and detainment of Mr. McLeod. The District Court agreed, explaining that there was at least “arguable probable cause to arrest and detain McLeod”. Thus, qualified immunity applied, warranting the dismissal of allegations of false imprisonment and violations of 42 USC § 1983. Plaintiff filed an appeal to the U.S. Sixth Circuit Court of Appeals, and he filed a state court action in the Genesee County Circuit Court. Through the process of early mediation within the sixth circuit, the cases were all resolved for a nominal sum. Another good result for the City of Flint.
• Jane and Mark Sisk v Officer Brian Osier, case no. 13-659052 – NI, Ogemaw County Circuit Court, the Hon. Michael J. Baumgartner presiding. This was an action filed against the defendant police officer asserting gross negligence, false imprisonment, and assault and battery concerning the officer’s handling of a single vehicle roll-over accident, and medical care provided to the plaintiff following the accident. The plaintiff asserted she was denied the right to refuse medical treatment, and that the officer’s conduct in standing by while the EMS crew allegedly forced medical care upon the plaintiff, subjected the officer to liability. The trial court granted defendant’s Motion for Summary Disposition on the state law claims. The trial court told plaintiff she could amend her complaint to add a federal cause of action under 42 USC § 1983, but cautioned plaintiff that unless she had additional evidence to support such a cause of action, that filing an amended complaint could be considered frivolous. Thus far, plaintiff has not filed an amended complaint or an appeal of the trial court’s decision.
• Brenda Woodworth v Murphy Oil, Inc., case no. 12-3664-NO, Shiawassee County Circuit Court, the Hon. Gerald Lostracco presiding. The trial court granted defendant Murphy Oil’s Motion for Summary Disposition in this premises liability case on the basis of the defenses of Open and Obvious, Lack of Notice, and Lack of Proximate Cause. The plaintiff alleged to have “slipped” and fell down  on black ice, in the evening hours, after purchasing items in the convenience store. She claims that the premises were darkly lit, and that the overhead canopy and drains were defectively maintained by the defendant. The court held that there was no notice, as plaintiff presented no evidence of improperly maintained drains, or of the condition in question having been reported to defendant, or existing a sufficient length of time to impart constructive notice. The open and obvious doctrine applied, as there were “other indicia” of the alleged black ice that included the weather, piled snow, plaintiff’s familiarity with Michigan winters, and the fact that the plaintiff could see moisture and dampness on the concrete before her fall. As for lack of proximate cause, the plaintiff did not see ice, even after she fell, and her clothing was not wet, making her assertions of black ice speculatory. The plaintiff did not appeal.