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Personal Injury Cases in the News

Personal Injury Cases in the News

The Chicago Tribune recently reported that the Estate of NHL player Derek Boogaard has filed a suit against the NHL attributing his personal injury to its unlawful practices. Specifically, it is alleged that Boogaard regarded as a hockey “enforcer” took up to 10 oxycodone pain killers a day, and that the league knew or should have known, that players with brain damage are at higher risk for drug addiction.

In Michigan, the usual remedy for an injury to a worker is under the Workers’ Compensation Act, MCL 418.131. Under this statute for a work related injury the general rule is that it is the worker’s exclusive remedy. Under the statute there is a trade off in that the worker’s rights to compensation are limited but are insured in that employers defenses of worker’s comparative fault are eliminated. This is true with respect to employer negligence. However, where the employee is able to establish much more than negligence, there is the intentional tort exception to the exclusive remedy rule.

For instance, in McNees v. Cedar Stampings, Co., 184 Mich App 101 (1990) allegations that an employee was injured by a defective foot pedal while operating a stamping press was sufficient to state a claim for intentional tort. That is because the employer was aware of the defect but still ordered the employee to operate the press while knowing that an injury was likely to occur under the circumstances.

If you or a loved one have been injured at work and need legal advice, please feel free to call Guy Vining. All initial consolations are free of charge and all injury cases are handled on a contingency fee basis so that you have no obligation unless you prevail in the case.

Guy Vining practices personal injury law from his Metro-Detroit office in Taylor, Michigan. He has represented clients in personal injury actions for over 25 years in such areas as: car, boat, motorcycle, and truck accidents; slip, trip, and falls including black ice and defective design; medical and dental malpractice, denial of insurance benefits for wages, medical and home assistance to automobile accident victims.

Bankruptcy Cases in the News

Bankruptcy Cases in the News

             The 6th Circuit Court of Appeals (which covers Michigan) issued a very important decision in Richardson v. Schafer, 689 F.3d 601 (6th Cir., 2012). The case is noteworthy because it is of assistance to debtors in their bankruptcy case by allowing them to retain more property.

In this case, the debtor elected to exempt property under the Michigan State Bankruptcy Exemptions instead of the Federal Exemptions. The selection was probably because the debtor had a great deal of home equity protectable as tennants by the entireties (marital home) laws and little joint debt. The trustee, to unlock value for unsecured creditors argued that the Michigan Bankruptcy Exemptions were unconstitutional and that the debtor was only allowed the lesser exemptions provided by the general exemptions statute in Michigan.

The 6th Circuit Court of Appeals disagreed. It held that Michigan debtors were allowed to use either set, i.e., the general exemptions under MCL 600.6023 or the Bankruptcy Exemptions under MCL 600.5451. Generally speaking the latter is more generous to debtors. This allows the debtor to retain more property for his/her fresh start. The bottom line was that the Michigan Legislature did not violate the Constitution by intruding in a Federal law.

Proper exemption planning is critical to a successful outcome in a bankruptcy case. If you or a loved one would like information concerning protection from creditors and obtaining a fresh start, just call Guy Vining. Guy Vining is pleased to discuss your situation confidentially, and without initial charge.

Guy Vining, a bankruptcy attorney, in metro-Detroit, maintains his office in Taylor, Michigan where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member of friend would like a no-obligation no cost consultation/financial analysis, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]

Bankruptcy Cases in the News: Federal and State Exemptions

Bankruptcy Cases in the News

Federal and State Exemptions

     Under the Bankruptcy Court, a debtor may elected between two sets of exemptions in a Chapter 7 case, the Federal exemptions, or (in Michigan) the Michigan exemptions. Generally, the Federal exemptions give the greatest coverage of property to the debtor. Exempt property is property that the debtor gets to keep from creditors and the trustee, which forms the basis of his or her fresh start going forward.

     In certain interesting circumstances, however, the Michigan exemptions are more favorable to the Chapter 7 debtor and should be elected. For instance, under the Federal exemptions, exemptions about $42,000.00 in home equity can be exempted by a married couple. However, if the home is jointly owned as entireties property (husband and wife) either may file individually a bankruptcy and exempt their entire equity, no matter how great, from all individual creditors.

     That is because the historical purposes of the state law favors protecting an innocent spouse from the debts of his or her spouse to preserve their primary residence. This concepts has been explored and defined in several published court decisions. For instance, see: In re: Trickett, 14 Br 85 (Bank W.D. Michigan) 1981; and, In re: Grosslight, 757 F2d 773 (6th Cir. 1985).

     One of the keys to this relief is the absence of joint indebtedness. So, if the non-filing debtor is jointly responsible on some of the incurred debt, the trustee may argue that it should be allowed to administer the estate (sell the martital home) to the extent of the joint obligations. Still, this type of harsh relief must be examined on a case-by-case basis as noted by Judge McIvor in In re: Edwin Harlin, 325 BR 184, 189 (Bank E.D. Mich) 2005:

“As a general rule, courts have been very reluctant to apply 11 USC §363 (h) to allow the sale of entireties property owned by the debtor, and a non-debtor spouse. The case law is well summarized in Collier on Bankruptcy as follows: Disputes over the applicability of a section (h) to tenancies by the entireties have created the largest number of reported cases under section, perhaps because of the unique nature of the ownership interest, the variations among the states as to the nature of the interest and the rather draconian remedy that section 363(h) gives the trustee, contrary to the deep historical roots of the form of title, which is supposed to protect each spouse from the unilateral action of the other… Thus, although generally speaking property held by the debtor as tenant by entirety is subject to sale under section 363(h), courts have erected various obstacles to such sale.”

     This suggests, of course, that married couples should strongly consider never co-signing for the other and avoid all joint debt. Also, they might consider making sure to concentrate payments to reduce and eliminate joint debt as a priority over individual debt, in the ordinary of their payments.

     If you or a loved one are considering whether bankruptcy relief would be helpful for you, please make sure to consult a qualified debt relief agency/attorney. Guy Vining is available for a no-charge initial bankruptcy consultation and would be pleased to meet with you.

Guy Vining, a bankruptcy attorney, in metro-Detroit, maintains his office in Taylor, Michigan where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member of friend would like a no-obligation no cost consultation/financial analysis, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]

Negligence Cases in the News: Hospital Malpractice Cases

Negligence Cases in the News:

Hospital Malpractice Cases

The Buffalo News reported recently a distressing story. It has been alleged by several citizens that a local hospital caused them to become infected with hepatitis. Specifically, in a suit filed each alleges that the source of the disease was the hospital staff inappropriately reusing surgical needles that had been used on other patients, a definite cause of hospital malpractice.

Generally speaking, it is well known that hospitals, because of ill patients, can be a dirty environment from which a patient can contract a generalized infection. Its a risk, in other words, that can not be eliminated. For this reason, the usual medical negligence or hospital malpractice case will be dismissed, so long as, the hospital is able to establish that it implements industry approved sanitation and sterilization processes.

On the other hand, where a discrete source of infections can be established based upon a violation of industry standards, and then an injured patient may have a cause of action. Certainly if it was proven or admitted that needles were reused without sterilization, that could be a discrete cause of an infection. Another common scenario for either hospital negligence, or even hospital malpractice, is the failure to remove all instruments, bandages, or gauze after a surgery. These foreign objects are many times the source of post surgical failure to heal, pain, and infection.

Guy Vining, an experienced personal injury attorney, in metro-Detroit, maintains his office in Taylor, Michigan where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member or friend would like a no-obligation, no cost, consultation/financial analysis, just call or Email Guy Vining of Vining Law Group, P.L.C. to schedule a meeting.

Negligence Cases in the News: Consumer Protection Actions

Negligence Cases in the News:

Consumer Protection Actions

On a “lighter note” Bloomberg has recently reported that lawsuits have been filed against Anheuser-Busch by consumers in several states via the Consumer Protection Actions. Yep, it is alleged that the old “King of Beers” is ripping off consumers because it adds water to the finished product which diminishes the alcohol content. Say it ain’t so!

     In Michigan, the State Legislature enacted the so-called Consumer Protection Act years ago. See MCL 445.901. This act provides for damages and injunctive relief to protect consumers from various types of bait-and-switch, misrepresentations and consumer scams.

     If you or a loved one have any questions about the Michigan Consumer Protection Act, please fee free to call Guy Vining of the Vining Law Group, PLC, for a free consultation.

[Guy Vining practices personal injury law from his Metro-Detroit office in Taylor, Michigan. He has represented clients in personal injury actions for over 25 years in such areas as: car, boat, motorcycle, and truck accidents; slip, trip, and falls including black ice and defective design; medical and dental malpractice, denial of insurance benefits for wages, medical and home assistance to automobile accident victims.]

Personal Injury Cases in the News: Medical Malpractice

Personal Injury in the News:
Medical Malpractice

 

The Toledo Blade recently reported a suit by an Ohio resident against a hospital which allegedly failed to diagnose bleeding in the patient’s skull. The allegation is that the undiagnosed condition resulted in stroke and physical disability.

 

A common type of medical malpractice case is the “failure to diagnose,” or the “failure to monitor” case. The pattern is that illnesses have various abnormal presenting signs which need to be considered through a process of differential diagnosis to determine and treat the cause. The medical professionals are supposed to be acquainted with the various abnormal signs and develop a differential diagnosis of what the cause possibly is and then perform tests to rule them in or out. A missed diagnosis is a very serious matter, and can result in serious injury or death.

 

As an example, consider the condition of ectopic pregnancy. In years past, Guy Vining represnted several victims of this conditions. An ectopic pregnancy is the development of a fetus outside of the uterus, usually into a fallopian tube. The warning signs include swelling and extreme pain in the patient. The risk is extreme, too, because if the fetus is not timely removed, the falliopian tube may rupture leading to the patient’s death by bleeding. The practitioners therefore must have a high index of suspicion for ectopic pregnancy when presented with a young woman and these symptoms. Appropriate care would include taking a history of sexual activity, last menses, ordering a pregnancy test and an ultrasound.

 

As earlier mentioned, if the diagnosis is not made, the rupture can lead to loss of the fallopian tube or even death. If you or a loved one have suffered the loss of a fallopian tube or another serious personal injury because of the failure to make a medical diagnosis, you may have have a compensible loss. Be sure to promptly get advice from a qualified attorney in regard to your personal injury.

 

[Guy Vining practices personal injury law from his Metro-Detroit office in Taylor, Michigan. He has represented clients in personal injury actions for over 25 years in such areas as: car, boat, motorcycle, and truck accidents; slip, trip, and falls including black ice and defective design; medical and dental malpractice, denial of insurance benefits for wages, medical and home assistance to automobile accident victims.]

Personal Injury Cases in the News: Defective Road Injuries

Personal Injury Cases in the News:
Defective Road Injuries.

 

     Guy Vining was recently able to enter into a significant settlement, for a client, with a governmental agency involving a defective highway. The client-victim was a motorcyclist who, although operating his bike appropriately, was caused to fall due to wavy and defective pavement.

 

     Guy Vining was able to establish that the governmental agency was on notice of the defective condition and pursuant to MCL 691.1402 that liability should be imposed for failure to maintain the road in reasonable repair.

 

     If you or a loved one are injured due to defective roads, you must take action quickly. The law requires that you provide a statutory notice within 120 days (about 4 months) from the accident. This notice is required by MCL 691.1404 and if notice is not timely and properly given it will bar your legal actions. You will also need to move quickly to obtain measurements and photographic evidence and an expert witness knowledgeable of road defects such as longitudinal cracking, traverse cracking, alligator cracking, deep and long wheel rutts in black top and other irregularities.

 

     These conditions are particularly dangerous to bicyclists and motorcyclists. Please feel free to call for a no-cost consultation if you or a loved one were injured on a defective road or highway. You need to speak to a personal injury attorney immediately. At the Vining Law Group all telephone conferences and initial meets are free. Also, most personal injury representation is on a contingency fee basis, so that you do not need to pay out of pocked for legal fees to get the help you need.

 

Guy Vining, an experienced personal injury attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member or friend would like a no-obligation, no cost, consultation/financial analysis, just call or Email Guy Vining of Vining Law Group, P.L.C. to schedule a meeting.

Discrimination Cases in the News: Whistleblowers

Discrimination Cases in the News:
Whistleblowers

Reuters recently reported that a former employee of Infosys filed a whistleblower case against it. The employee alleges that he was discharged after being harassed for reporting illegal activity at work. Specifically, the employee claimed concerns that he was discharged for reporting visa, tax, and billing fraud.

In a recent blog we addressed the Michigan Whisleblower statute. See: MCL 15.362. The statute makes it illegal to discipline or discriminate against or discharge an employee because the employee reports or is about to report to a public body a suspected violation of laws.

In Michigan there is another interesting employee cause of action called discharge in violation of public policy. Here’s what it is. In Michigan, as is most, if not all, other states, non-union employees are considered employees at will. That means that aside from statutory protections they are subjected to discharge even without good cause. However, even an at-will employee is protected if his or her discharge is predicated upon a violation of a public policy. For instance, it would be illegal to discharge an employee who refused to participate in creating false pollution control records, assisting in tax fraud and so on. In a future blog we will examine some interesting cases of employer liability for discharges in violation of public policy.

Guy Vining of the Vining Law Group has been privileged to have represented employees in such cases, as well as, employers. He was represented employers and employees in the trial and appellate courts in these areas. If you or a loved one feels as though you were discharged as a violation of public policy, feel free to call Guy Vining today for a no-charge consultation.

Guy Vining has practiced law throughout the state of Michigan. His office is located in the city of Taylor, Michigan, where he primarily serves the Metro-Detroit area. He has represented employers and employees in employment litigation in the trial court and the appellate courts in the following areas: whistleblower, breach of contract, public policy, discrimination, wage and hour violation, covenants not to compete, Americans with disabilities action and retaliation

Negligence Cases in the News: Construction Accident Cases

Negligence Cases in the News:
Construction Accident Cases

In Michigan a general building contractor may be held liable for damages for personal injuries under certain circumstances. The very nature of construction work lends itself to the necessity of maintaining the safest work environment possible because of the propensity for crippling injuries and death. In a recent case, Guy Vining of the Vining Law Group was able to recover a significant settlement for an individual who was constructing her own home though the service of a general contractor.

In the case the home owner fell from a considerable height from an area that was left unguarded even though it was open to trade people and general laborers.

Specifically, it was alleged that a certain sub-contractor removed safety railings to perform its task but failed to reinstall it leaving a froseeably dangerous condition to exist. The evidence showed that the general contractor had retained control over the project but failed to inspect, discover and ameliorate hazardous conditions.

If you would like more information on construction injury cases call Guy Vining of the Vining Law Group. All injured workers are welcome for reliable and free consultations. These types of cases are normally prosecuted on a contingency basis so that you will pay no attorney fees unless settled to your satisfaction.

Guy Vining, an experienced negligence attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member or friend would like a no-obligation, no cost, consultation/financial analysis, just call or Email Guy Vining of Vining Law Group, P.L.C. to schedule a meeting.

Bankruptcy Cases in the News: 11 USC § 522: The Residence Exemption

Bankruptcy Cases in the News

11 USC § 522: Residence Exemption

    This past August has had a bumper crop of interesting cases. In re Demeter, Case no.: 12-44593 local Bankruptcy Court Judge, (Easter District of Michigan) Thomas J. Tucker, decided a very interesting and helpful case to individual debtors. In this case, he was called upon to decide because of a trustee’s objection to the debtor’s exemptions whether a second home could qualify as a residence under the federal exemption, giving this debtor couple, up to $53,250.00 in exempt property or whether the exemption could only be applied to a so-called “primary” residence. Although, this other home was in foreclosure and had no equity, whatsoever.

 

In the end, Judge Tucker over ruled the trustee’s objection because the statute did not have a requirement that the residence exemption had to apply to a “primary” residence. In the blog which follows, we will look at some of the rules of statutory construction, employed by Judge Tucker. For our purposes here it is sufficient to say that Judge Tucker found that the debtors did have a significant connection with both houses, used both year round and never rented out. In addition, he reasoned that because 11 USC § 522 (d)(1)(d) did not use the word “primary” that he would not read it into the statute, as the statute only spoke of “real property…that the debtor uses as a residence…”

 

Also, in reaching his decision the Judge noted that his construction of the statute was also consistent with major purposes of the Bankruptcy Court. In doing so, the Court noted:

 

    “Under the Bankruptcy Code, there is an overriding federal interest in providing Debtors with “a fresh start.” See, e.g., In re W.R. Grace & Co., No. 11-199, 2012 WL 2130991, at *72 (D. Del. June 11, 2012)(listing a “fresh start” for a debtor as one of the important countervailing federal interests that could override state contract law); In re Buckley, 404 B.R. 877, 887 (Bankr. S.D. Ohio 2009)(citations and internal quotation marks omitted)(stating that “the overriding goal of the Bankruptcy Code [is] to provide a “fresh start” for the debtor”); In re Spears, 308 B.R. 793, 825 (Bankr. W.D. Mich. 2004) rev’d on other grounds, 313 B.R. 212 (W.D. Mich. 2004)(“Providing an individual debtor with a “fresh start” is a fundamental objective of the Bankruptcy Code.”) By providing debtors with the right to exempt certain property from the claims of creditors so that debtors have basic necessities to begin again, the exemption scheme under § 522 (d) is crucial to, and an integral part of a debtor’s “fresh start.” Schwab v. Reilly, 130 S. Ct. 2652, 2667 (2010)(“We agree that ‘exemption in bankruptcy cases are part and parcel of the fundamental bankruptcy concept of a “fresh start.”); Spears, 308 B.R. at 825 (“Congress enacted the exemption scheme set forth in Section 522 in order to provide an individual debtor with the fresh start it contemplated.”); 4 Collier on Bankruptcy ¶522.01[5], at 522-14 (Alan N. Resnick & Henry J. Sommer, eds., 16th ed. 2012) (“A fundamental component of an individual debtor’s fresh start in bankruptcy is the debtor’s ability to set aside certain property as exempt form the claims of creditors.”).

 

This determination is therefore good news for debtors looking to get their fresh start and retain as much property as is provided by the federal exemption. As Judge Tucker stated in Demeter: “Thus, §522(d)(1) permits a debtor to exempt a residence that is not the principal residence. And this interpretation is consistent with the requirement that bankruptcy courts must construe exemption liberally in favor of the debtor.”

 

If you have any questions about bankruptcy law or exemption planning please feel free to call bankruptcy attorney Guy Vining of the Vining Law Group. All initial telephone conference and office meetings are free of charge.


[Guy Vining, a bankruptcy attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member of friend would like a no-obligation no cost consultation/financial analysis, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]