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.

Employers will be required to report the value of your health insurance coverage on your W-2.

What does this mean to you?

Well technically nothing since insurance coverage won’t be subject to an excise tax until 2018. Furthermore the excise tax of 40% would only apply to the employer-sponsored health insurance coverage amount that exceeds $10,200 for individuals and $27,500 for family coverage.

However once politicians start to see how much revenue could be generated from employer sponsored health insurance coverage, they may decide to apply the excise tax sooner rather than later to help pay for the deficit.

Effective January 1, 2011 only doctor prescribed medicines and insulin will be eligible for tax free reimbursement from one of the following plans.

Under current law insulin, prescribed and over the counter medicinal expenses qualify for tax free reimbursement from Flexible Spending Accounts (FSA), Health Reimbursement Accounts (HRA), Health Savings Accounts (HSA) and Archer Medical Savings Accounts (MSA)

If you are enrolled in one of the preceding plans you may want to consider stocking up on over the counter medicines this year.

This article was written by Jay Kossen, CPA at Numerico, PC. Click here to view Numerico’s website.

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.

This ruling does not mean that a business will automatically be found negligent in a court of law when a child is injured. Rather, it means that when a lawsuit is filed on behalf of an injured minor, the case will not be summarily dismissed based on a pre-injury waiver. A parent does not have the authority to waive his or her child’s right to sue in court.

A parent may not personally sue a business in his or her own name for injuries sustained by their child. Michigan requires that a parent or guardian be named “next friend” or “guardian” by the Probate Court in order to sue for damages on behalf of the child. Because a child may not bring a lawsuit, the parent or guardian steps into the shoes of the child in bringing the action. The added supervision ensures that the best interests of the child are protected.

Despite the unenforceability of the pre-injury waiver as to the child, waivers are still important. The ruling does not affect the use of waivers that foreclose a parent’s ability to bring a suit for the parent’s own damages as result of the defendant’s negligence towards a child. In the absence of an enforceable waiver, a parent or guardian might sue the negligent party for damages that the parent or guardian suffered as a result of seeing the injury.

Because pre-injury waivers for children are unenforceable, it is important that businesses be very careful in preventing negligent injuries from occurring. Risk assessments should be completed in order to determine if there are areas or equipment that are not properly maintained that may lead to an injury. It would also be prudent to update and revise your release language.  Insurance should also be purchased, both to provide a defense against a lawsuit, and to protect against a judgment.

This article was written by Michael K. Hayes, Legal Clerk at Demorest Law Firm.

Texting while driving is considered a primary offense by law enforcement officers; which means drivers can be pulled over for that offense alone.

The only exception to this rule allows an employee to recover damages from the employer if the employee can prove that the employer committed an intentional tort. In order to prevail, the employee must prove the employer acted deliberately, and with intent to cause an injury. Intent to injure will be imputed to the employer if the employer (1) had actual knowledge that an injury was certain to occur and  (2) disregards that knowledge.

In a recent Michigan Court of Appeals decision (Click Here to See a Copy of the Court’s Decision), the court ruled that liability for an intentional tort may exist where “the employer subjects an employee to a continuously operative dangerous condition that the employer knows will cause an injury, that it knows employees are taking insufficient precautions to protect themselves, and that the employer takes no action to remedy the situation.” This case presented a unique situation where multiple injuries occurred, management knew of the injuries, solutions to preventing injuries were discussed, and no changes were made. This created a “certainty of harm” because the employees had no effective means of protecting themselves from injury.

The Court of Appeals, in noting that the employers could have prevented the injuries by adopting some remedial safety equipment, seemed to adopt a negligence standard. Had the employer taken certain safety precautions it would not be open to liability. Only time will tell whether this case  is the first step toward judicial erosion of the prior strict interpretation of the exclusive remedy provision.

This article was written by Michael K. Hayes, Legal Clerk at Demorest Law Firm.

The United States Supreme Court has again refused to hear the arguments of Michigan Attorney General Mike Cox regarding the invasion of the Asian Carp into the Great Lakes.  It is widely believed that the Asian Carp will have a catastrophic impact on the ecology and economy of the Great Lakes.

The Detroit News posted an article yesterday summarizing the recent decision and the planned next steps in this important battle to save the fishing industry in Michigan.  Click here to read the article.

Key provisions of the CARD Act include:

• Interest rates on existing balances cannot be changed unless (1) your payment is 60 or more days late; or (2) you have an introductory rate that expires.
• If a payment is more then 60 days late, but your payments for the next 6 months are all on-time, the credit card company must reduce your interest rate back to the original rate.
• Interest rates on new purchases can be changed, but the credit card company must give you 45 days notice before raising your rate.  You can opt out of the rate change, but that means your account will be closed and you will have five years to pay off the existing balance at the existing interest rate.  There are some exceptions to this rule, however.  For example, if you have a variable rate card tied to the prime rate, this provision does not apply.
• Credit card companies can no longer use the “universal default” provision that some were using.  If you pay late or default on any account (credit card, utility, etc.), other card issuers can no longer raise your interest rate on your existing balance on those cards.
• Credit card companies can no longer approve a charge that exceeds your limit and then charge you an over-limit fee and penalty interest rate.  Beware of “opt-in” offers to avoid over-limit fees, as this is a scam.
• You cannot be charged for paying online, by mail, or over the phone, unless you speak to a live operator and then they must disclose the fee before you pay.
• Payment due dates must be the same every month, and if the due date falls on a holiday or weekend, the payment is due the next business day.
• Your bill must now disclose how long it will take to pay off the current balance if you only pay the minimum amount each month, as well as the total amount of principal and interest you would pay over that time period.
• Anyone under 21 cannot get a credit card without either (1) proof of income to pay the bills or (2) an adult co-signer.

One problem with the CARD Act, however, is that it was signed into law in May 2009, but did not become effective until this week.  This gave credit card companies significant time to find ways around the new laws, including cutting credit limits and raising interest rates before the restrictions on such practices went into effect.  Some other new negative practices include:

• Closing accounts or charging fees for inactivity or even for “low activity”
• The return of annual fees to many cards – even if you have never had an annual fee on a particular card, there is nothing to stop the card issuer from charging one now
• Converting fixed rate cards to variable rate cards, and setting these rates with a floor that they will never fall below
• Redefining terms of certain fees, such as what is considered an “international transaction”
• Increasing balance transfer fees and cash advance fees
• Adding fees for paper statements
• Changing the terms of rewards programs or eliminating such programs altogether
• Stricter review of who is issued credit
• Reducing credit limits without warning

Pay attention to all correspondence from your credit card company, and if they are acting in a way that should be covered by the CARD Act, call and complain.  If that doesn’t work, contact your US Senator or Representative.

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

A tax is solely to raise revenue.   A permissible fee (typically a permit or license fee) has three characteristics: (a) the fee serves a regulatory purpose; (b) the amount of the fee is proportionate to the necessary costs for the municipality to provide that service, and (c) payment of the fee is voluntary.

Several years ago, we were involved in litigation that resulted in the Wayne County Circuit Court declaring a license fee imposed by Sumpter Township illegal.  The Court decided that the fee for a sand excavation license was really being used by the Township to discourage additional landfills from being located in the Township, and that the amount of the fee was excessive in relationship to the Township’s costs to regulate and inspect sand excavation sites.  The Ordinance was set aside.

On January 21, 2010, the Michigan Court of Appeals issued its decision in Wolf v City of Detroit.    The plaintiff claimed that a new Solid Waste Inspection Fee adopted by the City of Detroit was really just a disguised tax.  The inspection fee was imposed on properties that did not use the City’s Department of Public Works for solid waste pick-up.  The Court of Appeals analyzed the three criteria for a fee and decided that the fee was permissible.   A copy of the Court of Appeals’ decision is attached.

Whenever a municipality imposes a new fee, or dramatically increases the amount of a fee, then one should analyze whether the three criteria for a fee are met.  If not, the fee may be challenged as a hidden tax.

Click here to download a PDF copy of the Court of Appeals Decision.

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

Corporations previously used political action committees (PAC’s) to get involved in political activities.  Based on the Supreme Court’s decision, the use of PAC’s may no longer be necessary.

Click here to download a PDF copy of the Supreme Court Decision.

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