Category: Volume 56 No. 3

Introduction: Annual Survey of Michigan Law 2011

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The Wayne Law Review presents the fifty-third Annual Survey of Michigan Law. This Survey edition covers Michigan Supreme Court and Court of Appeals decisions in twenty areas of law from June 1, 2009, to May 31, 2010. We thank all the authors for their contributions and support for this edition, especially given this year’s earlier deadlines. We extend a very special thank you to Professor Alan Gershel for writing the lead article on developments in criminal procedure. Read More …

Criminal Procedure

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During this Survey period, the U.S. Supreme Court, Michigan Supreme Court and the Michigan Court of Appeals decided cases that will have a significant impact on Michigan criminal procedure jurisprudence. The decisions run the gamut from the scope of a search of an automobile following a lawful arrest; application of the good-faith exception to the exclusionary rule; post-arrest, post-Miranda interrogation issues; joinder of offenses; right-to-counsel claims; as well as several significant sentencing decisions. Read More …

Foreward

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It is with great honor and privilege that I have been asked to announce the publication of The Wayne Law Review, 2010 Annual Survey of Michigan Law. In its fifty-second edition, the Annual Survey of Michigan Law compiles and charts the development of the law in Michigan. Covering twenty areas of law, the publication serves as a big- picture view of the law for students, practitioners, jurists and scholars alike, affording the reader concise, insightful and relevant analysis. Unique to the Survey is its reliance on contributions from both academics and practitioners, presenting the widest possible perspective and examination of the state of the law. Read More …

Contracts and Commercial Law

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This article addresses recent developments in contract and commercial law in the state of Michigan for the Survey period of June 1, 2009, through May 31, 2010. The purpose of this article is to provide a survey of commercial and contract law for Michigan practitioners; however, this article does not address every change in these areas of law during this time period. Part II of this article discusses significant developments in the area of commercial law, and Part III addresses significant developments in the area of contract law. Read More …

Civil Rights

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The Survey period produced four appellate decisions under the Elliott-Larsen Civil Rights Act and five appellate decisions under the Whistle-blowers’ Protection Act, counting separately the court of appeals and supreme court’s decisions in Debano-Griffin v. Lake County. The court of appeals’ decision in Weishuhn v. Catholic Diocese of Lansing actually involved claims under both the Elliott-Larsen Civil Rights Act, supra, and the Whistle-blowers’ Protection Act, supra, but other decisions like Mortimer v. Alpena County Probate Court also have implications for claims under both statutes. Read More …

Workers’ Disability Compensation

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There are five exceptions to the law establishing the Workers’ Disability Compensation Act (WDCA) as the only law to apply to an employer when an employee is injured at work. Three of the exceptions expand the law’s application. The WDCA and all other laws can apply to an employer that intentionally injures an employee, deliberately has an employee pose as a contractor to avoid the WDCA, or who fails to have insurance for workers’ compensation. The other two exceptions displace the WDCA with other law. Only the law other than the WDCA may apply to an employer when an employee is injured during recreational activity or outside of Michigan unless particular circumstances are demonstrated. Read More …

Insurance Law

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Most Michigan Court of Appeals decisions regarding insurance law continue to be unpublished and therefore, do not constitute binding precedent. As such, unpublished opinions are excluded from this review. A number of the Michigan Court of Appeals cases decided issues of first impression. Further, the changing makeup of the Michigan Supreme Court has apparently played a role in case outcomes, as a case was reversed on rehearing shortly after Justice Hathaway replaced former Chief Justice Taylor. Read More …

Property

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Andrew and Gail Wallbank were married in St. John the Baptist Church, Aston Cantlow, Warwickshire, England, in September 1973. It is a historic stone parish church, listed as Grade 1, built in the 1200’s, and “nestled in a leafy churchyard.” In 1990, the couple inherited Glebe Farm, located a quarter mile from St. John’s, from Gail’s father. The name of the farm was pregnant with meaning, for the land had formerly belonged to the parish church as “glebe land.” Little did they suspect that within the year, their inheritance would burden them with unlimited financial obligations to St. Johns, and that over the next 19 years, they would be embroiled in a legal battle that would turn on concepts that were as old as the parish church itself, and that would not end until the land was no longer theirs. Read More …

Health Law

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“Timing is everything” is true in many things in life, not the least of which (as lest in Michigan) is compliance with the timing requirements related to medical malpractice litigation. In Bush v. Shabahang, the Michigan Supreme Court considered (1) whether a defective notice of intent tolled the running of the statute of limitations; (2) whether dismissal was an appropriate action if the notice of intent (NOI) was defective; and (3) whether, and under what circumstances, a plaintiff can file a complaint during the authorized 154-day waiting period when defendants fail to respond, rather than waiting for the running of the entire 182-day NOI period. The court held that, following amendments to the statute, a defective NOI is sufficient to toll the statute of limitations, so long as a plaintiff makes a “good faith effort” to comply with the notice requirements. Further, the court held that permitting amendments to defective notices, rather than dismissing the case, best served public policy. Finally, the court held that where a defendant fails to make a good faith effort to reply to the NOI, the complaint may be filed in the shorter 154-day period. Read More …

Government Law

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Very few of the reported opinions issued by the Michigan Court of Appeals or the Michigan Supreme Court in the 2009-2010 Survey period pertaining to local, county or state government operations and policies resulted in major changes in the law. Most of the reported opinions had direct application to only specific fact situations. Except for the demise of the trespass-nuisance exception to government immunity, there were no landmark shifts in any particular topic area. The weak State of Michigan economy, which has persisted for years, may have had an impact on the number of cases filed and the number of claims eventually reaching the appellate courts. This trend may continue as local, county and state governments struggle for revenues for basic services, and the private sector has fewer resources to engage with government at all levels. Read More …