The arena had a rule against slide tackles, which the defendant violated, causing the plaintiff’s injury. The Court of Appeals ruled that there was no basis for a lawsuit. A participant in a sporting event accepts the risk of injuries that are inherent in the activity. Violation of a rule of the sport does not by itself create liability.

A player is liable for injuring another player during a game only if the defendant engaged in “reckless misconduct.” The defendant’s conduct must “exceed the normal bounds of conduct associated with the activity,” and “demonstrate a willingness or indifference to the injury” of the other player.

This article was written by Mark S. Demorest, Managing Member of Demorest Law Firm.

In addition to the lawsuit, various members of Congress from the affected states have been working to find a solution.  Michigan and Illinois lawmakers agree that it is necessary to permanently separate the Mississippi River watershed from the Great Lakes watershed, but have not yet reached an agreement on the specific methodology, or even on short-term solutions to be implemented before the permanent solution is put in place.  Illinois lawmakers seem to be more concerned about protecting the shipping industry in Chicago than in protecting Lake Michigan from ecological destruction.

Even this action could be too late to fully protect Lake Michigan, as a 20-pound Asian carp was found in Lake Calumet, south of Chicago, in June.  Lake Calumet is 6 miles beyond an electronic barrier that was set up in Chicago waterways to prevent Asian carp from getting to Lake Michigan.

Besides the threat to Lake Michigan, there is now a concern that Asian carp could also enter Lake Erie, through rivers in Indiana and Ohio.  Asian carp are already present in the Wabash River in Indiana, which connects via marshlands and floodwaters with the Maumee River in Ohio.  The Maumee River connects to Lake Erie.   Earlier this month, Indiana placed mesh fences in marshes between the two rivers to attempt to keep Asian carp out of the Maumee River.

Stay tuned for further updates.  Also, see these articles in The Detroit News for more information: http://bit.ly/bPaiaA, http://bit.ly/bqt8dU, http://bit.ly/brspfu, http://bit.ly/amEzQb, and http://bit.ly/bVObfQ.

Click on the following for links to the first article on the dispute, the second article, and the third article.

This article was written by Melissa L. Demorest, Associate at Demorest Law Firm.

In order to avoid situations similar to the one above, employers should do one of the following: (1) Allow the employee to work through the resignation date; (2) Continue to pay the employee through the resignation date, but tell them that they do not need to actively work during this period; or (3) Add provisions to employment contracts or the employee handbook stating that after receiving an employee’s notice of resignation with a future effective date, the employer may  accept that resignation effective immediately.

This article was written by Mark S. Demorest, Managing Member of Demorest Law Firm.

In the 2008 case of Int’l Transmission v. Pine View Estates Subdivision Ass’n, the Michigan Court of Appeals (click for PDF of case) was asked to determine whether an easement agreement from the late 1940’s and early 1950’s giving Detroit Edison, and assignee International Transmission Company, the right to “construct, operate, and maintain” electrical power lines, “including the necessary H-frames, towers, fixtures, wires and equipment”, allowed for an upgrade replacement of wooden H-frame poles with single steel poles over fifty years later.

The landowners opposed the expansion of the easement.  They argued that the original easement agreement didn’t grant the utility company the right to erect steel poles based on the fact that the technology didn’t even exist in the 1940’s and 1950’s.

The Court of Appeals determined that the language in the original easement agreement comprehended the replacement of wooden H-frames with steel poles, even if the technology didn’t exist at the time the agreement was executed. The Court found that the steel monopoles and high voltage wires constitute “necessary … towers … wires and equipment.”

The bottom line is that property owners should be very specific as to what rights they are granting in an easement agreement.  Otherwise, they may end up giving away more than they bargained for.

This article was written by Natalie C. Najarian, Associate at Demorest Law Firm.

There are several exceptions to this general rule. Specifically, an insurance agent can form a “special relationship” with the insured when the agent does one or more of the following:

(1) the agent misrepresents the nature or extent of the coverage offered or provided;

(2) an ambiguous request is made that requires a clarification;

(3) an inquiry is made that may require advice and the agent, though he need not, gives advice that is inaccurate; or

(4) the agent assumes an additional duty by either express agreement or promise to the insured.

In the above-mentioned case, the insured claimed that the insurance premiums they were charged were too high and that the insurance agent did not seek enough competitive bids. The insured claimed that the insurance agent had “represented that it would work diligently to obtain the best appropriate insurance coverage for the best premium reasonably available in the market.” The Court of Appeals ruled that this was insufficient to warrant a legal action against the agent by the insured. The Court of Appeals affirmed a ruling on this issue in favor of the insurance agent without a trial.

This case shows the importance of researching insurance rates and premiums on your own, or seeking competitive bids from more than one insurance agent. The agent’s first goal is to sell the insurance and it is not necessarily a top priority to find the best or least expensive insurance coverage for the insured. Furthermore, the insured will have no recourse if it later decides that it got a bad deal on the insurance coverage.

This article was written by Mark S. Demorest, Managing Member of Demorest Law Firm.

When will a Court treat two separate written contracts as a single agreement? In

The buyer defaulted and failed to complete the purchase, and the seller then filed a lawsuit. The purchase agreement provided that the seller could retain the earnest money deposit as liquidated damages. In addition to keeping the deposit, the seller sought damages for the buyer’s failure to complete the purchase of the personal property. The Court of Appeals held that because the two contracts were really a single agreement, the seller was limited to keeping the deposit. The Court stated:

Because the two contract were intended to operate together to spell out a single transaction, the trial court did not err in concluding that the provision in the one for personal property tying its closing to the closing on the contract for real property indicated that there was requirements to close on the former if there was no closing of the latter.

The Court of Appeals looked at several factors to conclude that there really a single agreement between the seller and the buyer: (1) The contracts were drafted simultaneously. (2) The sale of the real estate and personal property were supposed to occur simultaneously. (3) Much of the personal property being sold consisted of fixtures or large equipment that was intended to remain with the house, such as kitchen appliances, a washer and dryer and a hot tub. Based on these factors, the Court of Appeals ruled that, “The structuring of the transaction into separate contracts for the sale of certain real property and related personal property resulted in a single agreement composed of two complementary components.”

It is common to have multiple related agreements as part of a business or real estate transaction. The lesson of this case is that the contracts must not only be read separately, but they must be read together as a whole. The contracts should specify how a default under one agreement affects the other agreements.

This article was written by Mark S. Demorest, Managing Member of Demorest Law Firm.

Traditionally, interest has been calculated on judgments by using the date of the filing of the Complaint as the starting date. Each January 1^st and July 1^st, the interest rate is recalculated by the State Court Administrator’s Office, and is raised or lowered at that time based on prevailing interest rates.

In Chelsea Investment Group, LLC v. City of Chelsea and Michael Steklac (Click here for a PDF copy), the Court of Appeals ruled that the traditional method of interest calculations was incorrect. The Court ruled that interest is still to be calculated starting at the date of filing of the Complaint, but the interest rate is to be adjusted every 6 months from the date of filing. In other words, every January 1^st and July 1^st the judgment interest rate will be recalculated, but the adjusted rate will not apply to a particular case until the next six-month anniversary of the filing of the Complaint. It may seem like a minor tweak, but in many cases this delay in the interest rate change will drastically affect the total amount of the Judgment. Who is benefited or harmed will depend on whether the Judgment interest rate goes up or goes down.

The Court of Appeals did not address whether this change is retroactive, and it is unclear how this ruling will apply to a case previously filed or a Judgment previously entered.

This article was written by Mark S. Demorest, Managing Member of Demorest Law Firm.

In order for a right of first refusal to be enforceable, those specific words should be used, and the requirements for the tenant to exercise the right of first refusal must be clearly spelled out.

In Gerstenberger Farms, Inc. v Grimes (April 22, 2010), the Michigan Court of Appeals considered the effect of a lease that contained a provision that “[i]f the lessor decides to sell the property, the lessee will be given an opportunity to purchase the property.”  The Court of Appeals ruled that this language was not sufficient to create a right of first refusal, because the lease did not contain those words or provide any more specific conditions for the tenant’s right to purchase the property.

The Court of Appeals ruled that the landlord did not breach the lease by selling the property to someone else.  The tenant had in fact been given the opportunity to purchase the property before the sale.  Several months before the sale, the landlord told the tenant of his plan to sell the property.  The tenant replied that he could not afford the landlord’s asking price.  Because the tenant had been given the opportunity to purchase the property, the tenant did not have a right of first refusal when the landlord received an offer to purchase the property from a third party.

This article was written by Mark S. Demorest, Managing Member of Demorest Law Firm.