Contract Law

By Brian Frasier, Esq.

A law professor’s tenure sta-tus didn’t override the termina-tion process in her employmentcontract, the 6th U.S. CircuitCourt of Appeals ruled in Bran-ham v. The Thomas M. CooleyLaw School (Lawyers WeeklyNo. 01-79282, 11 pages).

Longtime criminal law profes-sor Lynn Branham was fired bythe school at the end of the fall2006 semester for refusing toteach constitutional law duringthat semester.

She had taught the class inthe previous semester despite“citing health reasons and her

preference for, and greater expe-rience with, teaching criminallaw-related courses,” accordingto the opinion.

The decision is “total vindica-tion” for the school’s termina-tion, said Cooley Associate DeanJames Robb.

“The Sixth Circuit’s decision isvery important to institutions of

higherlearning be-cause it con-firms that‘tenure’ is acontractualconceptwhich takesits meaningonly fromthe lan-

guage of the particular employ-ment contract and from nothingelse,” Robb said in a statement.“The word ‘tenure’ itself adds nogloss, contrary to what Branhamhad urged.”

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August 20, 2012

Vol. 26, No. 42

MICHIGAN

MOST IMPORTANT OPINIONS — Summaries of this week’s notable decisions. See page 7Defendant’s convictions of making false statements during an attemptedfirearm purchase from a licensed dealer are affirmed. ................Page 8

The trial court erred by dismissing plaintiff’s slip-and-fall claim on thebasis of the open and obvious doctrine. ...................................Page 14

FULL DISCLOSUREFrom illogical stallers to conspiring suspects;from bridge tycoons to alleged hit men,these guys are called out. .................. Page 4

SHADOW JURIESShadow juries, chosen for similarities to areal jury, can be expensive, but also can beinsightful. ....................................... Page 2

CAN YOU COLLECT?With an estimated 10 percent of personal injuryverdicts fully collected, there are steps to take tomazimize collectability. .......................... Page 3

Immigration Law

By Douglas J. Levy

In 2011, it took close to eightmonths for the foreign workervisa process known as H-1B —which allows for highly skilledforeign nationals to apply for asix-year work permit — to reachits limit of 85,000 grants.

But 2012 threw immigrationattorneys and their businessclients for a loop when the quo-ta was reached 2½ months afterthe April 2 application processlaunched.

As a result, counsel has beenlooking for other options to getthose coveted foreign nationalsworking for the companies thatneed them. In addition, those at-torneys are fearful that pent-updemand from this year will carryover to 2013 by companies thatwere denied H-1Bs.

“A lot of employers don’t wantto deal with this because they’reexpensive,” said Fran Stacey ofButzel Long’s Ann Arbor branch.“Employers are required to basi-cally pay all of the H-1B petitionfees, including attorney fees, andyou can’t really charge that backto the employees. So there’s re-luctance among employers. Buton the other hand, for some em-ployers, the most qualified peoplecome from other countries.”

In the 1990s, the filing fees forH-1Bs were about 10 percent ofwhat they are today, and the an-nual quota was three times itscurrent limit before U.S. Citizen-ship and Immigration Services(USCIS) put restrictions in place.

Firing of tenuredprofessor upheldUn-‘quota’-ble

Attorneys doing their best to work around H-1B cap

N. Peter Antone of Antone, Casagrande & Adwers PC inFarmington Hills is among immigration lawyers havingto come up with solutions to get skilled foreignnationals to work for their U.S. employer clients.

LW photo by Douglas J. Levy

See “H-1B” page 18

“It’s a discouraging aspectof immigration law. Whywould someone who’stalented come here andwait 10 years, when hecan go to Canada,Germany or Europe,where there’s no quota?”

– N. PETER ANTONE

6th Circuit sayscontract trumpedtenure status

No means no goMSC dumps family joyriding, ‘chain of permissive use’ doctrinesMichigan No-Fault Auto Law

By Brian Frasier, Esq.

A person “unlawfully takes”an automobile when he “takes oruses [it] without authority,” theMichigan Supreme Court ruledin Spectrum Health v. Farm Bu-reau Mutual Insurance Co. andits companion case, ProgressiveMarathon Insurance Co. v. DeY-oung (Lawyers Weekly No. 06-79212, 51 pages).

The court overturned twolong-recognized theories that al-lowed claimants to collect per-sonal injury protection (PIP)benefits under a no-fault autoinsurance policy: the familyjoyriding exception and the“chain of permissive use” theory.

A 4-3 majority lifted languagefrom the Michigan Penal Code todefine the phrase “unlawful tak-

ing” from MCL 500.3113(a) of theMichigan No-Fault Act, whilecriticizing a previous court’sopinion that used language fromthe owner’s liability statute.

The majority ruled that a per-son who takes a vehicle in viola-tion of any section of the Michi-gan Penal Code has taken thevehicle in violation of 3113.

The court’s reasoning is basedon the purpose of each of thestatutes in relation to section3113(a), said Willingham & CotéPC attorney Kimberlee Hillock.She said the owner’s liabilitystatute is one of inclusion, where3113 is a statute of exclusion.

“The owners liability statutefocuses on the knowledge andthe consent of the owner,whereas the exception under3113, focuses on the knowledgeof the person taking the vehi-cle,” Hillock said. “I think it was

See “Joyriding” page 5

See “Professor” page 20

ROBB

accurate to distinguish the statutes.”The court interpreted 3113 and

stripped away any presumptions that theperson driving the car did so with per-mission, Hillock said.

“I don’t know that there are any pre-sumptions that can be drawn from thestatute,” she said. “Obviously if a personhas the permission of the owner, the per-son should be covered. One of the thingswe argued in the Supreme Court was thatif a third person down on the chain does-n’t have permission, but doesn’t know thathe doesn’t have permission, then he mayfall into the exception in 3113 regardingwhether he reasonably believed that hewas entitled to use the vehicle.”

Hillock represented the insurance com-panies for their efforts before theSupreme Court.

Future cases involving so-called joyrid-ers will hinge on evidence of whether theperson driving the car had permission,she said.

In both Spectrum Health and DeYoung,the owners testified that they specificallytold the drivers that they didn’t have per-mission to use the vehicles.

“I think the question has always been didthey have permission. If they had permis-sion to drive, then their taking would belawful,” Hillock said. “Craig Smith, in [Spec-trum Health], if he had testified that he hadpermission, it would have made a strongercase for his chain-of-permission argumentthan for him to admit that he didn’t.”

Miller, Johnson, Snell & CummiskeyPLC attorney Richard Hillary II said thecourt tossed away years of policy thatclaimants relied upon.

“For almost 15 years, our courts haverepeatedly held that law of this state isone thing,” he said. “But now, a bare ma-jority of the justices of our Supreme Court— without any legislative intervention —are willing to interject themselves andchange that law with the stroke of a pen.

“Even worse, the Court has made thatchange fully retroactive, making it impos-sible for businesses in this state and theirattorneys to know what the law really is

today or what the law might be tomorrow.”Hillary said the instability caused by

the decision “makes it difficult for Michi-gan to retain existing businesses and at-tract new ones.” He represented SpectrumHealth, a medical facility seeking to be re-imbursed for treatment administered tothe drivers, in both cases.

He said that, for “chain of permissiveuse” cases, the decision leaves it unclearhow the courts will handle cases wherethe driver wasn’t specifically told not touse the car.

It may turn on whether the person hadbeen told he couldn’t drive the car,Hillary said.

“Under these two cases, I really thinkthe question for the court faced with thiswill be whether the operator of the vehicleis violating the law in driving the car,” heexplained. “Is it unlawful for him to be do-ing so? A lot of times, that could turn onwhether he has knowledge that the own-er has restricted his ability to use the car.”

He said the majority framed the questionto be asked by court to be: “Is it unlawful forthe end user to be driving the car?”

The facts in Spectrum Health and DeY-oung are similar in that each case fea-tured a claimant who was driving a vehi-cle with express knowledge that therespective owner didn’t want him to do so.

The driver in Spectrum Health, Smith,argued that that he should be eligible forPIP benefits under a “chain-of-permissive-use” theory originally adopted by the Michi-gan Court of Appeals in its 1993 BronsonMethodist Hospital v. Forshee opinion.

Under this theory, if the owner gaveone person permission to use the car, andthat person gave a second person permis-sion to use the car, permission to use thecar is transferred from the first driver tothe second.

The owner in Spectrum Health gaveSmith’s girlfriend permission to use thevehicle but told her that Smith couldn’tdrive. The girlfriend later gave Smith thekeys and allowed him to drive.

In DeYoung, Ryan DeYoung took one ofhis wife’s vehicles even though he was anamed excluded driver under her insur-ance policies and was expressly prohibitedfrom using the vehicles. DeYoung arguedthat he should still be eligible for PIP ben-

efits under the “family joyriding” exceptionoriginally adopted in the 1992 MichiganSupreme Court plurality opinion in Pries-man v. Meridian Mutual Insurance Co.

The majority, in an opinion penned byJustice Brian Zahra, said neither doctrinewas based upon a plain language interpre-tation of 3113. The court overruled Bronsonand overturned Priesman. Zahra wrote thatwhat matters is whether the driver did so“without authority.” If he did, then he did sounlawfully and he would be precluded fromreceiving PIP benefits under 3113.

In a dissent for DeYoung, JusticeMichael Cavanagh wrote accused the ma-jority of being inconsistent for, on onehand, criticizing the Priesman court forusing the Uniform Motor Vehicle AccidentReparations Act (UMVARA) to control the3113 definition of “unlawful taking”; whileon the other hand using the Michigan Pe-

nal Code to define the same phrase. Ca-vanagh said that 3113 was modeled afteran UMVARA provision.

Justice Diane Hathaway wrote a sepa-rate dissent for Spectrum Health, arguingthat the majority’s interpretation “pre-cludes a class of injured parties from re-covering PIP benefits even when a partywas given permission to take a car by anintermediate user.”

If you would like to comment on this story, please con-tact Brian Frasier at (248) 865-3113 or brian.frasi-er@mi.lawyersweekly.com.

Michigan Lawyers Weekly • 5August 20, 2012Cite 26 Mich.L.W. 997

[ People in the Law ]AppointmentsMichael Kramer of Dickinson Wright

PLLC was named chair of the OaklandUniversity Board of Trustees.

Cary McGehee of Pitt, McGehee,Palmer, Rivers & Golden PC was namedchair of the board of directors of theMichigan Coalition for Human Rights.

ElectionsPaul Hage of Jaffe Raitt Heuer &

Weiss PC was elected president-elect ofthe Michigan Chapter of the TurnaroundManagement Association.

Clarence Pozza Jr. of Miller, Canfield,Paddock and Stone PLC was elected chair-man of the board of directors of GoodwillIndustries of Greater Detroit Inc.

James Wascha of James J. WaschaPC was elected president of the GeneseeCounty Bar Association.

HonorsJanice Cunningham of Mallory,

Cunningham, Lapka, Scott & SelinPLLC was selected for the 2012 editionof the Martindale-Hubbell Bar Registerof Preeminent Women Lawyers.

Patrick Karbowski of Butzel Longreceived the Real Property Law Sectionof the State Bar of Michigan’s C. Robert

Wartell Distinguished Service Award.

Vanessa Miller of Foley & LardnerLLP received the DMBA Barristers Sec-tion’s 2012 “One to Watch” award.

Plunkett Cooney PCwas designateda “Gold Fit-Friendly Company” by theAmerican Heart Association.

PresentationsFernando Alberdi and Kelly Mur-

phy of Honigman Miller Schwartz andCohn LLP were participants on the“America Invents Act Comes to Campus:

The Impact on Commercialization andTechnology Transfer Offices” panel dis-cussion at the 2012 BIO (Biological In-dustry Organization) International Con-vention in Boston.

Steven Sallen of Maddin, Hauser,Wartell, Roth & Heller PC spoke in the“Revitalization and Brownfields” panelpresentation at the Michigan Local Gov-ernment Management Association’s An-nual Summer Workshop in Traverse City.

Professional MovesBill Panagos has joined Butzel Long.

fee agreement, the lawyer charging itis within the Rules of ProfessionalConduct.

Even so, the fact is that any lawyer issafer, whatever billing methodology isemployed, when keeping track of timeexpended. Where billings may come intoquestion, particularly in a fee disputeneeding to go before an arbitration pan-el, the tried and true method of demon-strating what was done usually comesback to hourly metrics.

One might ask, if a client agrees tovalue billing, why should it matterwhether we keep track of time? The an-swer comes back to defining a “reason-able” fee. If a client wants to disputewhether a value charge for a service wasreasonable, a time record can provideuseful backup documentation.

But no lawyer should ever let it cometo that. Good client relations and effec-tive, frequent communication betweenattorney and client will make sure suchdisputes don’t arise and/or are settledquickly, such that value is expressed ina way that is clear to the client andmakes a convincing case about the rea-sonableness of the fee.

Ed Poll, J.D., M.B.A., CMC, is theprincipal of LawBiz Manage-ment, a national law firm prac-tice management consultancybased in Venice, Calif. He coacheslawyers, consults with law firmson strategy and profitability,

speaks at bar associations and law firm retreats,and has written 11 books. Contact him at ed-poll@lawbiz.com or visit www.lawbiz.com.

Continued from page 4

Fixed fee

ALBERDI CUNNINGHAM HAGE KARBOWSKI

KRAMER MURPHY POZZA JR. SALLEN

Continued from page 1

Joyriding Decision in a NutshellThe Case: Spectrum Health v. Farm Bu-reau Mutual Insurance Co. (LawyersWeekly No. 06-79212, 51 pages).

The Facts: Medical providers sought torecover from PIP insurers for treatmentprovided to drivers who used vehicleswithout the owners’ permission.

The Decision: Any person driving a car inviolation of the Michigan Penal Code has“unlawfully taken” a vehicle under MCL500.3113.

From the Decision: “We overrule [Bron-son Methodist Hospital v. Forshee’s]‘chain of permissive use’ theory, which in-corporated concepts from the owner’s lia-bility statute, as inconsistent with MCL500.3113(a). The owner’s liability statuteestablishes an owner’s civil liability for in-jury caused by the negligent operation ofhis or her vehicle whenever the vehiclewas ‘being driven’ with the owner’s ‘ex-press or implied knowledge or consent.’Because its focus on the unlawful natureof the taking involves the driver’s authorityto take the vehicle, MCL 500.3113(a) isnot analogous to the owner’s liability

statute. Because the legality of the takingdoes not turn on whether the driver in-tended to steal the car, MCL 500.3113(a)applies equally to joyriders. Moreover, be-cause MCL 500.3113 refers to ‘a person,’the Legislature clearly and plainly intend-ed to exclude from receiving PIP benefitseven a relative who took a vehicle unlaw-fully. Therefore, we disavow Justice Levin’splurality opinion in Priesman [v. MeridianMutual Insurance Co.] and overrule itsCourt of Appeals progeny as inconsistentwith MCL 500.3113(a).”

— JUSTICE BRIAN ZAHRA

From the Dissent: “The majority also ar-gues that it is proper to consider theMichigan Penal Code, MCL 750.1 et seq.,to give meaning to the phrase ‘taken un-lawfully.’ Ironically, this approach runsafoul of the majority’s conclusion thatPriesman erred because it consideredsources other than the statutory text at is-sue. Other than the majority’s strained ex-aggeration of its carefully selected diction-ary definitions, there is no indication thatit is proper to resort to the Penal Code togive meaning to a specific phrase in theno-fault act.”

— JUSTICE MICHAEL CAVANAGH

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