Surefire Way to Avoid Civil Cause of Action for Damages
Minors, alcohol and underage drinking
As we approach the season of high-school proms, graduations and graduation open houses and parties, it is important to remember the basics concerning alcohol, minors and underage drinking. What may seem like a harmless or innocent circumstance in providing a minor with an alcoholic beverage can result in negative consequences lasting a lifetime to both the adult and the minor child.
Zero tolerance by police officers
The laws are simple. First, it is against the law for a person under the age of 21 to consume any alcoholic beverage or have any bodily alcohol content period. If a minor child is determined to have consumed an alcoholic beverage or have any bodily alcohol content, they can be charged with a misdemeanor leading to fines, court-ordered substance abuse counseling, and in the case of multiple violations or offenses, up to 90 days in jail. You may have heard that many police agencies have made enforcement of the “minor in possession laws” (”MIP”) a top priority. There is typically a zero tolerance by police officers who have reason to believe a minor has consumed or is in possession of alcohol.
Civil cause of action for damages
Next, it is against the law to sell or furnish alcohol to a minor. What some individuals don’t realize is that someone who furnishes alcohol to a minor, who is then involved in an accident causing bodily injury or death to another individual, is guilty of a felony punishable with imprisonment of up to 10 years. Finally, in addition to criminal penalties, Michigan law provides the ability for an individual who is injured by a person under 21 years of age who is under the influence of alcohol in an automobile accident or any other occurrence to pursue a civil cause of action for damages against a “social host” who provided the alcohol to that individual. It is also important to note that several homeowner insurance policies have, over the past few years, become much more stringent in excluding such occurrences from insurance coverage in the event a civil cause of action is filed and pursued against a social host who provided alcohol to a person under the age of 21.
Think twice before you pour
The rules are simple. The consequences are clear. Underage individuals who drink alcohol, and the persons who provide them with the alcohol, will face severe consequences. It is important to keep these important facts in mind when planning your upcoming graduation celebrations.
Dan A. Penning
After seventeen years practicing law, I find that most business clients appreciate the services I have to offer and are willing to pay a fair fee for them. But I have yet to meet a client who feels at all inclined to pay the legal bill of a competitor who has just sued. That’s like being thirteen and kissing your sister. Yet when corporations sue each other over the alleged theft of a valuable employee, the dispute can quickly become a fight over attorney fees.
If the competitor goes to the trouble of suing you, it will probably bring every plausible claim available against you. In non-compete cases, this usually involves a claim that the employee and you have conspired to steal the competitor’s trade secrets and proprietary information. In most lawsuits between business competitors, each side pays its own legal expenses – win, lose or draw. But under Michigan’s version of the Uniform Trade Secrets Act, a prevailing plaintiff can recover attorney fees if it shows that the defendant willfully and maliciously stole a trade secret.
Obviously, the judge’s decision on the injunction will either strengthen or weaken the suing party’s claim that you acted maliciously. Either way, both sides will need to consider carefully how much more legal expense they are willing to incur solely to fight over who should pay the fees to date. If the case appears ready for settlement even before the judge rules on the request for an injunction, you still may face a fight over attorney fees. I have seen plaintiffs with no real damages become all the more insistent that they recover attorney fees as a matter of principle to ensure that the perceived misconduct does not go unpunished. If you are defending, do you buckle and pay some portion of the other side’s fees, or do you hold ground as a matter of principle? If you hold fast, you may end up paying far more money in the long run, albeit to your own attorney rather than to your competitor’s. As a colleague once told me, “It is perfectly appropriate to stand on principle, once you have acknowledged that principle is expensive.”
Launching a boat in Michigan waters during the month of April is not very common. Boat insurance policies, however, generally begin to provide coverage on April 15. If you’ve not given much thought to your boat insurance policy, this spring might be a good time to review your policy and determine if you need more protection as you navigate the Great Lakes or Michigan’s inland lakes.
The valuation clause in the policy is what determines the calculation the insurance company uses to arrive at the amount to pay in the event of a loss. Actual cash value policies take into account depreciation, where other policies are written on the basis of “agreed value.” If the boat is a total loss, the policy holder of an “agreed value” policy receives the amount as provided in the policy, rather than the actual cash value. This coverage is not available from every insurance company.
Consider liability and bodily injury coverage that provides you with liability insurance coverage when there is damage to something owned by someone else or injury to someone else. Medical payments coverage pays for bills that may arise from an accident on a boat. Additional coverages may be available: uninsured boater’s insurance, roadside assistance (when towing your boat), trailer insurance, and coverage if you travel to Canada.
As weather in Michigan becomes warmer signaling the approach of summer, waterfront property owners begin thinking about boats, docks, jet skis, etc. Every summer, unfortunate accidents occur that are related to water and recreational activities: swimmers make a wrong judgment regarding the depth of the water and dive into shallow water resulting in severe neck injuries, boaters and those driving personal watercraft can be blinded by the sun and fail to see someone skiing or tubing behind a boat resulting in a catastrophic accident, a “slip and fall” during a game of volleyball played on the beach or in shallow water can cause unexpected and long-lasting injuries.
The RUA, Michigan Compiled Law 324.73301(1) states: “[A] cause of action shall not arise for injuries to a person who is on the land of another without paying the owner . . . for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use . . . unless the injuries were caused by gross negligence [i.e., intentional misconduct] or willful and wanton misconduct of the owner.” In 2004, the Michigan Supreme Court reversed itself and determined that the RUA will, in fact, operate pursuant to its plain language. Therefore, unless a property owner acts with the intent to harm another, the RUA can protect a property owner from liability for injuries sustained by a third party who is performing recreational activities on the land irrespective of whether the land is undeveloped, developed, vacant, occupied, urban, suburban, rural, subdivided or unsubdivided.
The Michigan General Property Tax Act (the Act) requires real property in Michigan be assessed yearly and taxed at one-half (1/2) of its true cash value (true cash value is the same as market value). However, with the passage of the Headlee Amendment to the Michigan Constitution in 1994, limitations were placed on how much assessments and taxes could go up each year. Since 1994-1995, annual property tax increases have been “capped” at levels specified in the Act and remain capped until a “transfer of ownership” occurs. Once a transfer of ownership occurs, the property is reassessed at one-half (1/2) of the “true cash value” as of that date and the taxes, in most cases, go up substantially. The property tax is capped at the new, higher amount until the next transfer of ownership takes place (Michigan property tax bills show a “Taxable Value” and a “State Equalized Value.” The Taxable Value is the capped value upon which the property tax is assessed. The State Equalized Value approximates one-half (1/2) of the true cash value/market value of the property. Once the property tax is uncapped, the State Equalized Value and the Taxable Value become the same for the year in which the uncapping occurred and the cap goes back into effect at that amount).
In 2006, the assessor for the City of Charlevoix determined that the death of James in 2005 constituted a conveyance to Nathan and uncapped the property taxes, resulting in a new taxable value that was almost double the previous taxable value. Nathan appealed the assessor’s determination to the local board of review which upheld the decision of the assessor. Nathan appealed that decision to the Michigan Tax Tribunal which upheld the decision of the board of review. Nathan appealed that decision to the Michigan Court of Appeals.
Welcome to Holland
It’s just a different place. It’s slower-paced than Italy, less flashy than Italy. But after you’ve been there for a while and you catch your breath, you look around…. and you begin to notice that Holland has windmills…. and Holland has tulips. Holland even has Rembrandts.
Over the last several years, Michigan has experienced extraordinary job loss. One fruit of those job losses has been an unusual number of business start-ups. All over the state, laid off workers have “reinvented” themselves, sometimes going back to school to pursue a different or more advanced degree, and sometimes going into business for themselves doing either the kind of work they have always done or something entirely new.
These online tools don’t replace the need for tax or legal counsel, but they can help you make better and more efficient use of both your time and our office, which in turn can save you money. If you are considering a new business venture or you need our assistance with a legal matter affecting your ongoing business, please contact any of the attorneys at Wright Penning & Beamer. We would be pleased to help you!
Unpaid receivables cost your business money. Late paying customers may force you to resort to your business’ line of credit in order to satisfy your own cash flow obligations. You are, of course, paying interest on that line of credit.
If there is no written agreement underlying your company’s claim, interest on any judgment you obtain will be limited to a variable amount, calculated at six month intervals, at a rate equal to 1% plus the average interest rate paid on five year United States Treasury Notes. As of January 5, 2010, that amount equals 3.48%. Obviously, a written agreement allows you to recover a much higher rate of interest.
In 2008, the Michigan Court of Appeals held that a child’s ability to sue for a personal injury is not impaired despite any pre-injury waivers signed by the child’s parent. The case of Woodman v. Kera, L.L.C., 280 Mich. App. 125 (2008), involved a 5-year-old boy who was injured at an indoor recreation facility. The boy’s father had signed a pre-injury waiver, purporting to hold the recreation facility harmless if any injuries occurred to the child. According to the Court, the waiver could not prevent the child from pursuing a lawsuit against the facility. This conclusion was based on the common law rule that a parent lacks authority to waive, release, or compromise his or her child’s claims merely by virtue of the parental-child relationship. A parent, absent a specific exception created by the Michigan Legislature, cannot authorize an act that is detrimental to the child.
