classifieds - michigan · 2017-09-21 · teresa killeen official notice items for publication and...

Res Ipsa July/August 2017 1 March/April 2017 6

Thank you Silent Auction Donors!

100% of the auction proceeds benefited theWashtenaw County Bar Association Law

& Justice Fund.

Auction DonorsAnn Arbor Symphony Orchestra

Best Way Carpet CleaningChuck E. Cheese’s

Eagle Crest Golf ClubEdible Arrangements

Goodrich Theater ‐ Quality 16Haab’sKilwinsKnight’s

Michigan TheaterMOVE Fitness & Wellness

Paesano’sRelaxStation Massage

Sally RutzkySiri Gottlieb

The ArkWCBA Board of Directors

We hope you will patronize these businesses and thank individuals

for their support!

2ND ANNUAL TRIVIA NIGHT AND SILENT AUCTION

PHOTOS COURTESY OF THE WASHTENAW COUNTY LEGAL NEWS

March/April 2017Volume 46, Number 2

Published by theWashtenaw County Bar Association

Please visit our website at www.washbar.org

In This Issue . . . Committing to Change: Revisions to the ALTA Commitment for Title Insurance . . .4

President’s Message . . . . . . . . . . . . . . . . . . . .5

Finding a Voice, Making a Difference . . . . . . .9

Across the Great Divide . . . . . . . . . . . . . . . . .11

Tips for the Virtual Lawyer . . . . . . . . . . . . . .13

Circular 230 and IRS Standards for Providing Tax Advice to Clients . . . . . . . .15

The 2nd Annual Trivia Night Event was held at the Zal GazGrotto Club on February 23rd. The event was a huge

success! Camaraderie, delicious food, generousdonations and interesting trivia questions ruled the night.Cate and Doug McClure made a very generous donationfor the Philanthropy Trophy. All proceeds from the Silent

Auction went to the WCBA’s Law and Justice Fund.

Additional photos from this event are available at www.washbar.org in our photo gallery.

www.washbar.org


WCBA Trivia Night &Silent Auction

March/April 2017Volume 46, Number 2

Published by theWashtenaw County Bar Association

Please visit our website at www.washbar.org

In This Issue . . . Committing to Change: Revisions to the ALTA Commitment for Title Insurance . . .4

President’s Message . . . . . . . . . . . . . . . . . . . .5

Finding a Voice, Making a Difference . . . . . . .9

Across the Great Divide . . . . . . . . . . . . . . . . .11

Tips for the Virtual Lawyer . . . . . . . . . . . . . .13

Circular 230 and IRS Standards for Providing Tax Advice to Clients . . . . . . . .15

The 2nd Annual Trivia Night Event was held at the Zal GazGrotto Club on February 23rd. The event was a huge

success! Camaraderie, delicious food, generousdonations and interesting trivia questions ruled the night.Cate and Doug McClure made a very generous donationfor the Philanthropy Trophy. All proceeds from the Silent

Auction went to the WCBA’s Law and Justice Fund.

Additional photos from this event are available at www.washbar.org in our photo gallery.

www.washbar.org


WCBA Trivia Night &Silent Auction

In This Issue....

Easy Marketing Ideas for

New and Experienced Lawyers Alike ..................... 4

When “You’re Too Old” is Discrimination,

and When It’s Not ................................................ 9

Covenant Medical Center v. State Farm:

What Happens Next? ........................................... 10

Facilitating Divorce Valuation of a

Business or Professional Practice .......................... 13

Municipal Corporation Sidewalk Liability,

Iron Clad Defense ................................................ 14

July/August 2017 Volume 46, Number 4

Published by the Washtenaw County Bar Association


WCBA & WLAM members did not let a little rain and cool temperatures deter the evening festivities. Attendees enjoyed the camaraderie, food and their families at the picnic held in Ann Arbor on June 20th. Judge Joseph Burke, Judge Karen

Quinlan Valvo and John Reiser served as Grill Masters.

Additional photos can be found at www.washbar.org

2nd Annual Joint WCBA/WLAM Family Picnic

www.washbar.org

2 Res Ipsa July/August 2017March/April 20176



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March/April 201710

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Accounting l Audit l Business Consulting Entrepreneurial and Family Business

Fraud Detection and PreventionIT Consulting l Political Campaign Finance Reporting Retirement Plan Administration l Retirement Planning

Tax Planning and Preparation

Formerly known as Miller & Associates, P.C.

2864 Carpenter Rd, Suite 100 l Ann Arbor, MI 48108734.971.3900 l www.ahpplc.com

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Res Ipsa July/August 2017 3 3Res Ipsa Loquitur

Volume 46, Number 2 March/April 2017

FeaturesCommitting to Change: Revisions to the ALTA Commitment for Title Insurance . . . . .4Finding a Voice, Making a Difference . . . . . . . . .9Across the Great Divide . . . . . . . . . . . . . . . . . .11Tips for the Virtual Lawyer . . . . . . . . . . . . . . . .13Circular 230 and IRS Standards for Providing Tax Advice to Clients . . . . . . . . . .15

DepartmentsPresident’s Message . . . . . . . . . . . . . . . . . . . . . . . . . . 5Asked & Answered . . . . . . . . . . . . . . . . . . . . . . . . . . . .7New Members & Changes . . . . . . . . . . . . . . . . . . . . . . 8Classifieds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Advertiser IndexAlex Milshteyn Real Estate Associates . . . . . . . . . . . . .10Andrews Hooper Pavlik PLC (formerly Miller & Associates, P.C.) . . . . . . . . . . . . . . . . 2Bell Tower Hotel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Law & Mediation Office of Veronique Liem . . . . . . . . .14Washtenaw County Treasurer Office . . . . . . . . . . . . . .12Weber’s Inn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Yeo & Yeo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Officers and Directors of the Bar AssociationElizabeth A. Kitchen-Troop

PresidentK. Orlando Simón

President ElectElizabeth C. Jolliffe

Vice PresidentMark W. Jane

TreasurerPaul C. Fessler

SecretaryGregory L. Dodd

Immediate Past PresidentSamuel J. Bernstein & Alexander W. Hermanowski

Co-Presidents, New Lawyers SectionJustin M. Altman, Katherine M. Sharkey, Rebecca E. Shiemke,& W. Daniel Troyka

Directors at LargeKyeena Slater

Executive Director

Local Members of the State Bar of MichiganBoard of Commissioners

Andrew F. Fink, III - Commissioner at LargeMark W. Jane – Young Lawyers Section ChairErane C. Washington - District G

Local Members of the State Bar of MichiganRepresentative Assembly - 22nd Circuit

Peter M. FalkensteinElizabeth C. JolliffeAshish S. JoshiElizabeth A. Kitchen-Troop

Res Ipsa EditorTeresa Killeen

Official NoticeItems for publication and questions concerning editorial content should be di-rected to the Editor, Teresa Killeen, WCBA, 101 E. Huron, P.O. Box 8645, AnnArbor, MI 48107, [email protected] Inquiries concerning advertisingshould be directed to Kyeena G. Slater, Executive Director, 101 E. Huron, 1stFloor, P.O. Box 8645, Ann Arbor, MI 48107, Phone: 734-994-4912, fax 734-663-2430, email: [email protected] magazine Res Ipsa Loquitur is published bi-monthly by the WashtenawCounty Bar Association, 101 E. Huron, 1st Floor, P.O. Box 8645, Ann Arbor,MI 48107. Teresa Killeen, Editor.Articles, letters and advertisements that appear in the Res Ipsa Loquitur do notnecessarily reflect the official opinion of the Washtenaw County Bar Associa-tion unless otherwise stated.Annual dues of $70-$170 include subscriptions of $15.00 for the magazine. POSTMASTER SEND ADDRESS CHANGES TO Res Ipsa Loquitur, WashtenawCounty Bar Association, 160 S. Main St., Brooklyn, MI 49230.

© 2017 Washtenaw County Bar Association. All Rights Reserved.

The Res Ipsa Loquitur is designed by the Brooklyn Printing Company, 160 S. Main St., Brooklyn, MI • 517-592-2122

Email [email protected] for more information.

Volume 46, Number 4 July/August 2017

FeaturesEasy Marketing Ideas for

New and Experienced Lawyers Alike ..................... 4

When “You’re Too Old” is Discrimination,

and When It’s Not ................................................ 9


What Happens Next? ........................................... 10

Facilitating Divorce Valuation of a

Business or Professional Practice .......................... 13

Municipal Corporation Sidewalk Liability,

Iron Clad Defense ................................................ 14

DepartmentsPresident’s Message .............................................. 5

New Members and Changes ................................... 6

Asked & Answered ................................................. 7

Classifieds ............................................................. 15

Member Notes ...................................................... 11

Advertiser IndexAlex Milshteyn Real Estate Associates ..................... 2

Andrews Hooper Pavlik PLC .................................... 2

Bell Tower Hotel ..................................................... 16

Weber’s Inn ........................................................... 8 Yeo & Yeo ............................................................... 15

K. Orlando Simón PresidentElizabeth C. Jolliffe President ElectMark W. Jane Vice President Paul C. Fessler TreasurerJennifer L. Lawrence SecretaryElizabeth A. Kitchen-Troop Immediate Past President Jinan M. Hamood & Alexander W. Hermanowski Co-Presidents,NewLawyersSectionJustin M. Altman, Rosemary Frenza Chudnof, S. Joy Gaines & Nicole E. Mackmiller Directors at LargeKyeena Slater ExecutiveDirector

www.washbar.org




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The legal job market can be challenging for both new and seasoned lawyers. As a new lawyer, there are some things you can do to help your marketability other than having good grades or attending a top law school. Here are some ways to make yourself more marketable by becoming visible in the legal community and learning a few things along the way.

To make yourself more visible and market-able, you should become involved in your

community or the community where you plan on practicing. Someone you meet may be your next great client or might put you in contact with a new and exciting job opportunity.

Getting involved could mean joining the local bar associ-ations, becoming active in local non-profit agencies, volun-teering for organizations you believe in, meeting and build-ing relationships with other new lawyers, and just becoming a productive part of the community. There a lot of thing you can do, but this is a good start.

Bar associations (like the WCBA) are valuable because you gain access to hundreds of lawyers across all practice areas. Many are willing to share their experiences and knowledge. You also have opportunities to meet the judges in the jurisdiction and build relationships that make court ap-pearances less stressful. These relationships can lead to new business or an opportunity to join a firm. It’s important that you attend and become a part of the local bar as opposed to paying your dues and forgetting about it.

Be active in local organizations. This will help you meet non-lawyers. Most clients are non-lawyers, so this is a good way to build your network outside of the law. Most people will hire a lawyer at some point in their life and the biggest source of business for many lawyers is through referrals. If people know who you are, then you are more likely to get hired. It’s not unusual to get a client based on a friend or neighbor’s recommendation. Being active in local organiza-tions lets you build your friendship network.

Volunteering for organizations you believe in is another way to get to know more non-lawyers, while helping fulfill a community need. If you want to help those who struggle for food, there are foodbanks and similar organizations that help with that issue. If you feel strongly about fighting a disease, there are organizations that always need volunteers for walks and fundraising. The point is to go do something you believe in that helps others. Your passion will show and you will be getting your name known in the community.

Meeting and building relationships with other new lawyers is one of the most overlooked areas of marketing when you’re just starting out. Even if you have a job that you like, it doesn’t mean you shouldn’t get to know other new lawyers. The more lawyers you know the better. By build-

ing your network you may find yourself on the other end of a case, but against a familiar face. You may end up finding a compromise more quickly when you know the opposing counsel. Knowing the other attorney can make litigation a more peaceful experience. These new lawyers you are getting to know are also the ones you will be practicing with and against for most of your career, so the more people you know and have good relationships with, the better off you will be.

The point of this article is to show you that focusing solely on your current work or sending out your resumes will only get you so far. You need to put in the time and effort to become a part of the community in order to become a part of the legal community. You also need to be creative. The above ideas are basic, but very few people take full advantage of them. Those who do, and do them well, put themselves into a situation where they have multiple career options.

Lastly, once you become visible and marketable, you need to walk the walk. Be a lifelong student. Try to do something every day that you can learn from: read an inter-esting article, go to a CLE, watch a trial, explore a new area of law. There are many things you can do to be a productive part of the community, but it’s up to you where your career goes.

Alexander W. Hermanowski is a staff attorney for the Uni-versity of Michigan Student Legal Services where he helps students with various legal issues including criminal defense and consumer protections. Mr. Hermanowski also runs his own practice called Hermanowski Law focusing on criminal defense, plaintiff’s personal injury litigation, and estate plan-ning. Mr. Hermanowski is the Co-Chair of the New Lawyers and Criminal Law Sections of the WCBA. He can be reached at [email protected] or (734) 763-9920.

Easy Marketing Ideas for

New and Experienced Lawyers Alike

Alexander W. Hermanowski

January/February 20174

In May of 2016, the United States SupremeCourt decided the case of Husky Interna‐tional Electronics, Inc. v. Ritz, 136 S.Ct.1581; 194 L.Ed. 2nd 655 (2016). This caseresolved a split in the Circuit Courts regard‐ing whether a false representation is neces‐sary for a debt to be determinednon‐dischargeable pursuant to 11 U.S.C.§523(a)(2)(A). The court held that a fraudu‐lent conveyance scheme constitutes “actualfraud” even where there is no false repre‐sentation.

In Husky v. Ritz, the facts were fairlysimple. The debtor, Ritz, was a primaryowner of a business, Chrysalis Manufactur‐

ing Corp., which incurred a debt of approximately $164,000.00to Husky. The debtor then transferred significant Chrysalis as‐sets to other businesses he owned. As a result, Husky was un‐able to collect its debt from Chrysalis Manufacturing. UnderTexas law, Ritz was personally liable for the debt. The transferof the business assets to other businesses constituted fraudu‐lent conveyances in Texas.

11 U.S.C. §523(a)(2)(A) provides that debts are not discharge‐able where they are incurred by false pretenses, a false repre‐sentation, or actual fraud. In Husky, the transfers were madeafter the obligation was incurred, therefore Chrysalis did notmake misrepresentations to Husky prior to incurring the obliga‐tion. The Supreme Court held that a fraudulent conveyancescheme constituted fraud at common law. 1 The use of theword “actual” in §523(a)(2)(A) describes acts which are donewith bad faith or wrongful intent. This definition would permitdischarge of obligations based on “implied fraud” or “fraud atlaw.”

For debtors this holding means that acts done after becomingobligated to a creditor can become controlling in determiningwhether a debt may be discharged in bankruptcy. This problemmost likely will arise when a creditor obtains a judgment againsta debtor. In that situation, the debtor must be conscious oftheir actions after the judgment is granted. Any effort to delayor hinder the collection of the debt (other than the filing of abankruptcy case itself) could be used by the creditor to seeknondischargeability of the obligation.

For the debtor’s attorney, particular care must be taken re‐garding any actions their client takes that may be deemed an in‐tent to hinder or delay a creditor. Situations where a clienttransfers property to another, but retains it; transfers propertyfor little or no value (particularly to an insider); or secret trans‐fers all pose a risk to the client’s ability to discharge an obliga‐tion. Certainly, these inquiries are always made in thebankruptcy context. The transferee may lose the item they re‐ceived (or its value), and the debtor may continue to be obli‐gated on an underlying debt. Debtor’s counsel must informtheir client of this possibility.

The Husky decision also provides new avenues for creditors.Creditor attorneys should look more closely at the debtor’s con‐duct ‐ particularly where their client has a judgment against the

debtor. This analysis is warranted even in normal credit trans‐actions. If the debtor has taken efforts to hide assets or other‐wise hinder the creditor, the bankruptcy code may not affordthe debtor relief. In these situations, an Adversary Proceeding2

may provide the creditor with a judgment of nondischargeabil‐ity.

Husky v. Ritz makes clear that a misrepresentation is not re‐quired to have a debt determined to be nondischargeable pur‐suant to 11 U.S.C. §523(a)(2)(A). A fraudulent scheme donewith the intent to hinder or delay a creditor is non‐discharge‐able under the bankruptcy code. Care should be taken by bothdebtor and creditor attorneys in their advice to their clients.

1 Statute of 13 Elizabeth, enacted in 1571, covered fraudulentconveyances where the intent was to delay or hinder creditors.2 Adversary Proceedings are required in this circuit to determinethe dischargeability of obligations based on 11 U.S.C.§523(2),(4) and (6).

Jeffrey Bennett primarily represents debtors in Chapter 7, 11,and 13 cases. He also practices in the areas of family law, pro‐bate, estate planning, criminal defense, and civil litigation. Hisoffices are located in Ann Arbor, and he can be reached [email protected].

NEW PITFALL FOR DEBTORS IN BANKRUPTCY:ACTUAL FRAUD DOES NOT REQUIRE A FALSE REPRESENTATION

ab

Jeffrey G.Bennett

In MemoriamWe were sad to learn of the deaths of several

of our members’ loved ones:

Angie Martell’s mother, Iris Theresa Bleck, 83, passedaway on November 4, 2016.

Hon. Carol Kuhnke and Elizabeth Janovic’s son, JohnKuhnke, 16, passed away on November 28, 2016.

Our deepest sympathies are with their families.




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5Res Ipsa Loquitur

President’s Message

As I sit down to write my sec‐ond‐to‐last Res Ipsa Presi‐dent’s Message (where did thetime go?!), and look out overmy again snow‐covered lawn,it occurs to me that the prac‐tice of law is a bit like theweather in Michigan. Younever know what to expectfrom day‐to‐day. Last week‐

end, it was in the high 60’s and sunny. I was able to spendthe entire weekend outside with my kids, soaking up the sunand fresh air. This weekend, it is cold and grey and snowy(and the kids are bouncing off the walls). In the law, like theweather, no one day is like the next. Every client presentsnew and interesting challenges with varied fact patterns andunique legal issues. Add to that a mix of personalities andoft‐present mental health issues, and you have a career thatkeeps you on your toes.

Despite being only a couple of months into the new year,2017 has brought a lot of changes. Those changes have en‐gaged attorneys across the country as we attempt to adviseand provide guidance related to the many executive orderswe have seen from the White House. In a rather refreshingturn‐of‐events, public perception of attorneys seems to haveimproved as we see attorneys spending their nights andweekends (and, for many, days) flocking to airports to pro‐vide legal advice to immigrants arriving to the United Statesfrom one of the seven banned countries. While I don’t ex‐pect this new‐found public perception shift to sustain, rightnow it is heartening to see what we all know: Lawyers arehelpers.

The New Year has also offered a number of entertaining andengaging activities for members of the Washtenaw CountyBar Association. On January 19, 2017, the Family Law & NewLawyers Sections hosted a joint ‘Meet and Greet’ Event atConor O’Neill’s, allowing attorneys to mingle with the Washt‐enaw County family court bench, including the HonorableArchie Brown, the Honorable Patrick Conlin, Jr., and the Hon‐orable Darlene O’Brien. This was a very well attended eventand served as a nice opportunity to network with judges andother attorneys. Thanks to Jessica Pospiech, Parisa Ghazaeri,Sam Bernstein and Alex Hermanowski for putting togetherthis fun event.

On February 23, 2017, the WCBA hosted the 2nd AnnualTrivia Night and Silent Auction at Zal Gaz Grotto. This hasquickly become one of my favorite WCBA events as it allowsour membership to kick‐back and show off their varied anduseless knowledge, and have some laughs while doing it.This year, the Simon Says team (comprised of the Honorable

Patrick Conlin, Jr., Kelly Roberts, John Reiser, John Kline, Or‐lando Simón, Ashwin Patel, Frank Weir, Tom Bourque, JoyGaines and Kathleen Brown) clinched the win with their cor‐rect answer to the query about Elizabeth Taylor’s last role ina major motion picture prior to her death (1994’s “Flint‐stones,” for those interested). Like last year, there were anumber of great items to bid on in the silent auction.Thanks again to Jennifer Lawrence for organizing the silentauction. The funds were donated to the Ann Arbor AreaCommunity Foundation WCBA Law and Justice Fund. Thisyear’s Philanthropy Trophy was awarded to Cate and DougMcClure for their very generous donation—thanks Cate andDoug!

In March, the Washtenaw County Big Brothers Big SistersBowl for Kids’ Sake event will take place at Revel and Roll.The proceeds from this event will support the Big BrothersBig Sisters program in Washtenaw County and $70 of the$80 registration expense is tax deductible! Double bonus!Please contact Kyeena Slater if you are interested in partici‐pating in this great event.

On April 13, 2017 we will hold our Annual Award Dinner andElection at the Ann Arbor City Club. Please join us as wehonor the Washtenaw Association for Community Advocacyas they receive the WCBA Liberty Bell Award for their effortsin promoting a better understanding of our Constitution andBill of Rights; encouraging greater respect for law and thecourts; stimulating a deeper sense of individual responsibil‐ity so that citizens recognize their duties as well as theirrights; contributing to the effective functioning of our insti‐tutions of government; and fostering a better understandingand appreciation of the rule of law. We will also swear in theupcoming 2017/2018 board members and hear from our in‐coming President Orlando Simón.

Finally, on May 5th we will hold the annual Bench‐Bar Eventat Travis Pointe Country Club. In addition to hearing fromour local bench, we will also hear from our distinguishedspeakers Michigan Supreme Court Justices Bridget McCor‐mack and Joan Larsen. This promises to be a well‐attendedevent, as always, so please be sure to RSVP early and contactKyeena Slater for sponsorship opportunities.

Until next time, my friends.

Elizabeth Elizabeth Kitchen-Troop

[email protected]

As I step into my new role as President of the WCBA for the 2017-18 year, I feel energized and excited about continuing the great tradition that is our local bar. Having had the opportunity to attend the State Bar Leadership Forum as a kick-off to next year, not only did I come away with a greater appreciation for how many people volunteer their time

at both the state and local bar level, but I also gained some perspective about how great a leadership team our own local bar has assembled. I am humbled and privileged to work alongside so many wonderful, smart and caring folks who truly want the best for the members of the Washtenaw County legal community. One might think that having the responsibility of heading any organization automatically comes with a fair amount of trepidation, i.e., what if I mess it up? But given how diligently our Executive Director and Board work, I feel more like I am taking my turn at the helm of a ship already charted on an excellent course and running smoothly. As I begin my tenure as your new captain, I want to also recognize the many people who have come before me. Over the years as I have become involved in WCBA activities, I have gotten to know quite a few of our past presidents and am proud to call many of them friends. They have been great models for good leadership and strong stewardship. But perhaps the best example of the kind of leadership and involvement they represent is the fact that so many of our past presidents continue to be involved in bar activities, whether it be taking on additional roles, mentoring younger members, or continuing to be a strong presence at events throughout the year. I especially want to thank Elizabeth Kitchen-Troop, our immediate Past President, for her turn at the helm. She invited input, listened well, expedited meetings and guided us with such a direct hand and kind, joyous spirit- what a great inspiration! I look forward to Liz’s great counsel and support throughout the coming year. I also look forward to continuing in everyone’s footsteps. Perhaps the number one take-away from the Bar Leadership Forum seems obvious: the importance of membership. For us, that means first and foremost not taking it for granted. In keeping with our mission the WCBA Board of Directors will be continuing its commitment to provide value-based services and opportunities. Bar associations throughout Michigan are all trying to stay current with the times and figure out how best to serve their members as the legal profession continues to grow, change and redefine itself. Here in Washtenaw County we will continue with our fine tradition of having key events for our members throughout the year, each with a different focus. We will also continue to add new ideas to existing events and explore new platforms for reaching members by offering some exciting alternative ways to get together as attorneys, both substantively and socially. We also invite you to contact us and let us know your thoughts, suggestions, and ideas for additional

ways to serve you the members. Stop by our Bar office (located on the first floor of the Washtenaw County Trial Court building), call or email us. And of course, visit our website on a regular basis for news, the calendar, court information and many other membership offerings: https://www.washbar.org/. The other thought I have as I step into my new position comes from the perspective that only nature can bring. As Michiganders we keenly appreciate seasonal changes. After what can seem a cruel joke called winter that goes on interminably from January to February and even on through March (seemingly one of the longest months), we are itching to get outside and spring cannot get here fast enough. Summer of course creeps up on us and will soon disappear with a sigh of regret. And so, to my point: take some time to stop and enjoy the world around you before another season comes upon us. Lawyers are notorious for not taking enough time to take care of themselves, more so than the average. Perhaps you are someone who used to be involved in some organized sport, whether team or individual, but no longer. Consider getting back out onto the court, the field, the track, the pool, or the trail. Maybe you have always wanted to try an activity that you never did when you were younger. Now is the perfect time. Let’s all use the remaining time in this summer season to get out of our offices for a little break and focus a little more on taking care of ourselves. Moving forward this year, the WCBA will begin highlighting activities aimed at helping all of us take care of ourselves so that we are better equipped to take care of our clients and our practices. There are so many choices in Washtenaw County from great hike and bike paths, greenways, golf courses, softball parks, basketball courts, swimming, running and the Huron River. Speaking of golf, don’t forget to sign up for our Annual Golf Scramble on August 11th at the Lake Forest Golf Club. For those of you new to the game, consider the Annual Golf Clinic as an option to committing to the full scramble. This will be the second time we are offering this alternative choice, and it was very popular last year. Whatever you choose, turn off your computer for a bit, and treat yourself to some of the best that nature has to offer. Finally, I cannot let this opportunity pass without thinking a little about next year. Even though we are all going to head out to enjoy some of the great Michigan summertime, don’t forget to mark September 15th down in your calendars for Constitution Day. Information is available on the WCBA website. Consider volunteering some of your time that day to go into Ann Arbor and Ypsilanti schools with our annual Constitution Day in the Classroom event. This is a great opportunity to give back to the community and the schools as well as highlighting the importance of the US Constitution. Until next time.

K. Orlando SimónK. Orlando Simón

[email protected]




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NEW MEMBERS

NIMISH R. GANATRA P61932Washtenaw County Prosecutor’s Office200 N. Main St.P.O. Box 8645Ann Arbor, MI 48107phone: 734-222-6620e-mail: [email protected]

KELLEY M. HALADYNA P63337Dickinson Wright PLLC350 S. Main St., Ste. 300Ann Arbor, MI 48104phone: 734-623-1624e-mail: [email protected]

THOMAS D. HAMMERSCHMIDT, JR.P29190Dickinson Wright PLLC350 S. Main St., Ste. 300Ann Arbor, MI 48104phone: 734-623-1602e-mail:[email protected]

MUNEER M. ISSA P79392Eby Conner Smillie & Bourque, PLLC320 Miller Ave., Ste. 190Ann Arbor, MI 48103phone: 734-769-2691e-mail: [email protected]

RANDALL A. JUIP P58538Foley, Baron, Metzger & Juip, PLLC38777 Six Mile Rd., Ste. 300Livonia, MI 48152phone: 734-742-1800e-mail: [email protected]

LISA MASKILL P77892Michigan Advocacy Program420 N. Fourth Ave.Ann Arbor, MI 48104phone: 734-665-6181e-mail: [email protected]

SAMUEL E. NUXOLL P81538Miller, Canfield, Paddock and Stone, P.L.C.101 N. Main St., 7th FloorAnn Arbor, MI 48104phone: 734-668-8874email: [email protected]

THEODORE W. SEITZ P60320Dykema Gossett, PLLC201 Townsend St., Ste. 900Lansing, MI 48933phone: 517-374-9149e-mail: [email protected]

MICHELLE TAYLOR P64926Preferred Title Agency of Ann Arbor305 E. Eisenhower Pkwy., Ste. 202Ann Arbor, MI 48108phone: 734-773-3550e-mail: [email protected]

ASHLEY WADDELL-TINGSTADP81463Hooper, Hathaway, Price, Beuche & Wallace, P.C.126 S. Main St.Ann Arbor, MI 48104phone: 734-662-4426e-mail: [email protected]

JOY V. WEBER P77088Smith & Brink38777 Six Mile Rd., Ste. 314Livonia, MI 48152phone: 734-521-9000e-mail: [email protected]

NEW ASSOCIATE MEMBER

ERIC F. SLOAT Ferguson Widmayer PC538 N. DivisionAnn Arbor, MI 48104phone: 734-662-0222e-mail: [email protected]

CHANGES

MARY E. COMAZZI P71677Bodman PLC201 S. Division St., Ste. 400Ann Arbor, MI 48104phone: 734-930-2491e-mail: [email protected] FREDERICK R. JUCKNIESS P64032Juckniess Law Firm PLC302 E. Liberty St., Ste. 203Ann Arbor, MI 48104phone: 734-707-1515e-mail: [email protected]

ALEXANDER T. PRASAD P79338Whitecap Sports Group1900 Lindsay LaneAnn Arbor, MI 48104phone: 865-210-8655e-mail: [email protected]

NEW MEMBERS AND CHANGES




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Did you always know you wanted to be an attorney? Where did you get your law degree? Anything else interesting?

I did not always want to be an attorney. I actually tried to major in physics as an undergrad at the University of Mich-igan, but I could not handle the advanced calculus. I then became a political science major. My dad really wanted me to be a lawyer so that was a big influence on how I ended up.

What jobs did you have before you became an attorney?My last job before law-related jobs was in the ground-sup-port crew for UPS at Metro Airport. I was involved in load-ing/unloading planes using a variety of equipment. I have fond memories of that job. I almost went into management training, but I wanted to go to law school.

What area of the law do you like the best and why?I like appeals. I like doing the research and writing the brief. In law school I never thought I would enjoy legal writing, but now that I’m in this profession, it is probably my favorite thing to do.

Tell us a little about your family.I have been married for over 15 years and we have two chil-dren, ages 14 and 13. My wife, Amber, is a registered nurse who manages dialysis clinics in Chelsea and Jackson. Amber and I met in high school but didn’t start dating until our late 20’s. Our children are in the Dexter School District.

What is the biggest challenge facing you as an attorney today? Balancing family and the profession. Being a solo prac-titioner allows me the flexibility to take time off so I can take the kids to appointments (especially the orthodontist, with both kids in braces) and practices, but I do get a little anxious about being away from the office during normal business hours. I have to balance that out-of-office time by working at home in the evenings, which allows me to handle the children’s activities during the day, which is critical to balancing work and home. It’s a delicate balancing act.

What would your second career choice have been if you had not become a lawyer?

Realistically, something in IT, like computer science. I enjoy computer gaming and have built my own computers. But, this has only been in the last 10 years. If I was into com-puter games when I was in college I would have probably moved in that direction. Unrealistically, a professional bass fisherman.

Any words of wisdom to pass on to new lawyers? If time permits following your court hearing, stick around and watch other lawyers. You can learn a lot. Even though I have been practicing almost 20 years now, I still enjoy watching other lawyers in Court.

What is your favorite movie or book?Godfather Part II. I also love Part I, but Part II has to be the greatest sequel ever. I am not much of a book reader. I get most of my reading through my work.

Describe a perfect day off.Fishing in the morning, going on a nice bike ride with my wife in the afternoon on our way to dinner somewhere.

What are some of your favorite places that you have visited?I tend to stay in the State of Michigan, which has great fish-ing. My favorite river for fly fishing is the Pere Marquette River near Baldwin. I also love Traverse City. My family had a cottage on a lake nearby when I was growing up so that was like my second home. As far as national attractions go, I loved Yosemite National Park.

What are your favorite local hangouts? I really don’t “hang out” much since I had kids. The Pinck-ney State Recreation Area is a wonderful place for boating on the Halfmoon chain of lakes and the mountain biking trails. I also like fishing in the Huron River near Hudson Mills Metropark. My family are big fans of Japanese cuisine and love all the restaurants in town. Our favorite would proba-bly be Sadako in Ann Arbor. We also love Palio’s.

When you have a little extra money, where do you like to spend it?

Cabela’s

What do you like to do in your spare time? Hobbies?Fishing (both fly and conventional tackle), biking, boat-ing, golf (not as much as I would like recently), computer gaming, and bowling. Bowling is funny because it was just something we did as an activity with the kids. Then my wife and I got competitive with each other and next thing you know we both have our own bowling balls and shoes. We probably go once or twice per month now.

Why do you choose to be a member of the WCBA? What is the greatest benefit you have enjoyed as a member?

I began as a lawyer in Ann Arbor and not being a member of the WCBA was never an option. Having the WCBA office in the courthouse is a great benefit. If you need to draft a consent order or use the conference room while at court can make life easier. I remember when the office was in the Annex and I hated it. I hope the office remains in the courthouse for the foreseeable future. I also like visiting with Kyeena and Kelley.

James Fraser is the owner of Fraser Legal, P.C. in Ann Arbor, Michigan. Mr. Fraser’s practice focuses on real estate, business, and domestic litigation, including appeals. Mr. Fraser is also a certified domestic mediator. Mr. Fraser has been past president of the WCBA’s New Lawyers Section. He is a life-long Michigan resident and graduate of the University of Michigan and Wayne State University Law School. He can be reached at 734-369-6448 and [email protected].

James W.Fraser

Peter Clark was born and raised in Ann Arbor and now operates an estate planning and probate practicein town. He previously served multiple active duty tours as a JAG attorney in the US Army beforereturning to Ann Arbor to go into private practice. He can be reached at [email protected] or734‐327‐5031.

Did you always know you wanted to be an attorney? Where did youget your law degree? Anything else interesting?

I NEVER intended to become an attorney… anything but! It wasn’tuntil I was an Army ROTC Cadet at U of M, on my way to becomingan infantry officer as a second career, that I even considered it.There, I was presented with the rare opportunity to become a JAGofficer and it struck me as a very unique and important way toserve (not like being a “regular” attorney) so I jumped on it. Iearned my law degree from Wayne State while on an educationaldelay from service and entered active duty thereafter. In the ArmyI worked in the Pentagon for the Office of General Counsel of theArmy. I was a civil legal assistance attorney, a Trial Counsel (prose‐cutor), the Senior Trial Counsel for Fort Bliss, a Special Assistant USAttorney for the Western District of Texas, a Military Magistrate,the Chief of Legal Client Services of Fort Bliss, and finally the Com‐mand Judge Advocate for TACOM/Detroit Arsenal.

What jobs did you have before you became an attorney? I was a professional DJ which eventually turned into opening andoperating a professional audio retail store in downtown AnnArbor. I also operated recording studios and managed events forseveral local night clubs during that time. That was before college,the Army, wife, and kids. It was quite a different lifestyle than theone I lead now!

What area of the law do you like the best and why?I absolutely love estate planning and can see myself happily en‐gaged in that for the rest of my career. I never thought I would bean estate planner but it was one of the first jobs I was given as aJAG attorney and I immediately loved it. I then went off to docriminal litigation for several years, which is what I thought I’d bedoing as a career, but didn’t love it and found myself wanting toget back to estate planning the whole time. It’s a very analyticaland creative area of law, usually slower paced (when compared tolitigation) and, most importantly, it is typically a positive experi‐ence for all involved. You are helping your clients achieve peace‐of‐mind and they are always grateful for that.

Tell us a little about your family.My wife is a special education teacher working in Livonia PublicSchools. She specializes in autism and currently works with 18‐26year‐olds to help them develop life and job skills. We have twodaughters, 5 and 7, in Ann Arbor Public Schools. They like art,dance, soccer, and fighting with each other over insignificant mat‐ters.

What is the biggest challenge facing you as an attorney today? I operate a private practice and have been very lucky to some‐times find myself with more potential work than one attorney canhandle. Therefore, I think my biggest challenge in the comingyears will be intelligently expanding my practice.

What would your second career choice have been if you had not be‐come a lawyer?

We’d really be talking about a 4th career choice here, but I was al‐ways on the verge of pursuing architecture. My grandfather was amid‐century modern architect on the East Coast and I grew up re‐ally loving modern art and design. Still do. I think I would haveloved designing buildings and watching them come to life.

Any words of wisdom to pass on to new lawyers? For those involved in litigation, one thing I always preached to myfellow prosecutors was to never become emotionally attached to acase. You must be able to step back, acknowledge your emotions,and then leave them at the doorstep. Though it may sound cold,when you succumb to your emotions about a case it will impairyour judgment, cause you to narrow your vision, and perhapsworst of all, it can eat you alive and make you miserable. You stillgive each case 100% effort, but you do that because it’s your duty,not because of how you feel about it.

What is your favorite movie or book? Favorite movie is “Wayne’s World.” There goes any credibility Ihad. Favorite book is probably A River Runs through It.

Describe a perfect day off.A long afternoon hike through Ann Arbor with my wife on a springday.

What are some of your favorite places that you have visited?As far as natural beauty, it would be very hard to beat Alaska inthe summer.

What are your favorite local hangouts? That’s top secret Townie information.

When you have a little extra money, where do you like to spend it?I would love to buy more art for my house.

What do you like to do in your spare time? Hobbies?I love endurance running. On weekends you can find me runningthe length of the Huron River, from Parker Mill on the east side toBarton Dam on the west side, and then back again. I’m happiestrunning trails for hours by myself. I rarely enter races.

Why do you choose to be a member of the WCBA? What is the greatest benefit you have enjoyed as a member?

Being part of the local legal community is great, especially for get‐ting to know people who practice in your particular sub‐field. I’vefound that other attorneys in the area are quick to offer help andassistance. And, I love having the WCBA office in the courthouse…which has come in handy!

7Res Ipsa Loquitur

&AnsweredAsked

Peter ClarkJames W. Fraser




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2 March/April 2017

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to those that continue to support the WCBA by contributing to the WCBA Donations Fund for community service, law library, and technology improvements!

Susan V. Brown – Susan V. Brown, PLC

Kathleen M. Carter – Kathleen M. Carter, PLLC

Trent B. Collier – Collins Einhorn Farrell PC

Georgette E. David

Lynn B. D’Orio – Lynn B. D’Orio, JD, PLC

Julie L. Dunbar – Julie L. Dunbar, PLLC

Suzanne R. Fanning – Suzanne R. Fanning, PLLC

Jinan M. Hamood – Law Office of Jinan M. Hamood

Randall A. Juip – Foley, Baron, Metzger & Juip, PLLC

Teresa A. Killeen

James L. Meretta

Lana A. Panagoulia – Lana Panagoulia Law, PLLC

Margaret D. Petersen – Petersen Law PLLC

Diana Raimi – Jaffe Raitt Heuer & Weiss, P.C.

Sheldon J. Stark – Mediator and Arbitrator

Fred S. Steingold – Hamilton, Judge, Schroer & Steingold, PLC

Angela Marie-Alvarez Sujek – Honigman Miller Schwartz and Cohn LLP

William G. Tishkoff – Tishkoff PLC

Thank you

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I once had a client who received an email that read, “We have decided not to hire you. You are too old.” That admission, directly relating to the adverse decision, constituted “direct evidence” of discrimina-tion, and left us only to quibble about damages.

Employment discrimination cases are rarely that easy. Even comments related to a person’s age, reli-gion, gender, or other “protected characteristic,” do not constitute direct evidence if they are not made by a decision-maker1, or are not close in time to the decision2.

What is left? Circumstantial evidence.

Sherlock Holmes once said, “Eliminate all other factors, and the one which remains must be the truth.”

The Supreme Court3 has translated that maxim less suc-cinctly: “... rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.” and “Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.” The Court reasoned that the em-ployer is in the best position to explain the actual reasons for (say) a job termination, and that the plaintiff has the right to rebut those reasons.4

Nonetheless, a plaintiff still has a heavy burden in discrim-ination cases.

Under the Age Discrimination in Employment Act (ADEA), a plaintiff must prove, by a preponderance of the evidence, that age was a “but-for” cause for the adverse action.5 The same is true under the Americans with Disabilities Act (ADA),6 and in retaliation claims, where plaintiff claims the termination was because of a complaint of discrimination.7

It is a little easier when seeking to prove race, color, sex, religion, or national origin discrimination, under Title VII for federal law, or Michigan’s Elliott-Larsen Civil Rights Act (EL-CRA): one need only prove that the protected characteristic was “a motivating factor.”8

In some “mixed motive” cases, where the employer can prove that they would have taken the same action regard-less of the protected characteristic, remedies may be limited to declaratory relief, attorney fees and costs. In other words, the plaintiff can hang the verdict form on the wall and still go bankrupt. Damages are not so limited under state law, but the tradeoff is that in Michigan, circumstantial evidence alone may not carry the burden.

So do I have a discrimination case? Without “smoking gun” direct evidence, such as the email my client received, circum-stantial evidence must be carefully evaluated. This includes an analysis of whether there is disparate treatment of your client compared to those “similarly situated,” such as whether young persons in the same job classification were not disciplined for

the same offense. But if the employer asserts that your client committed misconduct, or another legitimate business reason, be prepared to prove that the reasons given are mere pretext, like false reasons, or “kitchen sink” defenses that change with the expediency of the moment.

In a recent sex and age discrimination trial, where I represented a top-performing, older female employee, I attempted to do this by demonstrating the different ways her boss communicated with younger and male workers with effusive praise, as opposed to criticism

and backhanded compliments for my client - even when she performed. I also provided strong proof that the employer’s proffered reason for terminating her (that they were not going to fill the position) was false; because even though they gave a young, inexperienced male a different title and claimed his duties were not the same as my client’s, the evidence showed otherwise.9

The toughest cases to prove are when clients simply sus-pect discrimination. Their gut instincts may be correct (this is probably most true for age discrimination, as older persons looking for jobs will attest); and the employer’s decision-maker may indeed harbor implicit bias. But if it can’t be shown they acted on any bias, your claim will likely fail. This is especially true when your client did something wrong, but believes ter-mination was too harsh a punishment. Even if they were called “too old” eight months before, it may not be enough to save the day. (Endnotes)

1 Statements made to plaintiff that they were terminated because they were “too old” were not admissible because they were not made by the decision-maker and would confuse the jury. Schrand v. Federal Pac Elec Co., 851 F2d 152 (6th Cir 1988).

2 An employer’s comments to the plaintiff, eight months before her layoff, that she was transferred from a more responsible position because she was “too old,” and a statement a month later that her 55th birthday was a “cause for concern,” were deemed inadmissible and justified overturning a jury verdict for plaintiff in Phelps v. Yale Sec., Inc., 986 F2d 1020 (6th Cir), cert den 510 US 861 (1993). The court determined the comments were “too abstract” and irrelevant and prejudicial, because they were made well before the layoff.

3 Reeves v. Sanderson Plumbing, 530 US 133 (2000).

4 Michigan has a more stringent test, requiring some proof of discriminatory animus even to get past summary disposition. See, e.g., Lytle v. Malady, 458 Mich 153 (1998).

5 Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009).

6 Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 318 (6th Cir.2012).

7 Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013).

8 E.G., Matras v. Amoco Oil Co., 424 Mich 675 (1986).

9 I am waiting on pins and needles for a verdict.

Nicholas (Nick) Roumel is a principal with Nacht & Roumel, an employment and civil rights firm based in Ann Arbor. He is a co-chair of the WCBA Labor and Employment Section. He can be reached at [email protected].

Nicholas B.Roumel

When “You’re Too Old” is Discrimination, and When It’s Not















ab

Jeffrey G.Bennett









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On May 25, 2017, the Michigan Supreme Court issued its much-anticipated decision in Covenant Medical Center, Inc. v State Farm Mutual Automobile Ins. Co (Docket No. 152758). The Court held that medical providers do not have a statutory cause of action against insurers under the no-fault insurance act, MCL 500.3101 et seq.

Section 3112 of the act states that person-al protection insurance (PIP) benefits are

“payable to or for the benefit of an injured person or, in case of his death, to or for the benefit of his dependents.” PIP ben-efits include lifetime medical benefits for injuries arising from an automobile accident.

In Covenant, State Farm settled the policyholder’s PIP claim and received a release. Twelve days later, Covenant Medical Center sued State Farm for unpaid medical bills claiming it had a direct cause of action under Section 3112. The Court of Appeals agreed and ruled that the release was ineffective as to Covenant because State Farm was on notice of the claim when it settled the underlying suit.

The Supreme Court reversed in a 5-1 decision, holding that nothing in the act grants a provider a direct cause of action against a no-fault insurer. Covenant can still sue its patient for medical bills, but it cannot sue State Farm under the act.

What happens to pending cases?

When Covenant was decided, several hundred provider suits were pending in Washtenaw County alone. The number state-wide is well into the thousands. These suits seek to collect medical bills arising from automobile accidents directly from no-fault insurers. The suits have proliferated in recent years as providers decided their interests were inadequately repre-sented by plaintiffs’ liability attorneys. A single accident can generate multiple provider claims, and the volume of these cases has strained the judicial system.

Insurers are already filing motions to dismiss provider suits based on Covenant. The decision is not limited to prospective application, and indeed the case was remanded to the Sag-inaw Circuit Court for entry of summary disposition in State Farm’s favor. Providers whose sole legal basis for filing suit is statutory will likely face dismissal.

For example, on May 31, 2017 the 15th District Court in Ann Arbor issued a General Order to Show Cause applying to “cas-es in which medical providers have directly sued insurance companies for PIP benefits under the Michigan No Fault Act.” The order set a show cause hearing for dismissal of these cases en masse on September 6, 2017 unless the provider files a motion by July 31, 2017 explaining why a dismissal is not warranted.

Some providers are seeking benefit assignments from policy-holders in order to avoid dismissal under Covenant. If valid, these assignments may allow providers to stand in the shoes of policyholders to collect payment for medical services.

Section 3143 of the no-fault act states: “An agreement for as-signment of a right to benefits payable in the future is void.” In Professional Rehabilitation Associates v. State Farm Mutual Automobile Ins. Co, 228 Mich.App. 167 (1998), the Court of Appeals held that this provision does not bar assignment of benefits that are “past due or presently due.” In footnote 40 to the Covenant decision, the Supreme Court acknowl-edged that “our conclusion today is not intended to alter an insured’s ability to assign his or her right to past or presently due benefits to a healthcare provider.” To be effective under Section 3143, an assignment arguably must be made after medical services have been provided.

Even if an assignment is permitted under the no-fault act, it may be contractually barred. Policies commonly contain language barring assignment of benefits. Whether such con-tractual prohibitions are enforceable under the act may be a major point of contention.

Another dispute may be whether an assignment, if valid, re-lates back to the date of filing of the complaint. The “one year back” rule in Section 3145 of the act states that “the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced.” In many cases, a provider claim will be barred by the one-year-back rule if an amended complaint alleging an assignment does not relate back.

If an assignment is effective, insurers may demand that pro-viders fulfill the obligations of policyholders before a claim is paid. These may include formal requirements for claim sub-mission and duties of cooperation in investigating and adjust-ing claims. Insurers may also challenge whether providers can claim statutory attorney’s fees under Section 3148 of the act.

Provider responses to Covenant

Covenant clarified the law but did not simplify it. Providers are already employing strategies to continue seeking pay-ment for medical services under the no-fault act. Courts can expect an increase in litigation in the short term while the law remains unsettled.

Going forward, providers may seek assignment of no-fault benefits from patients as a matter of course. If successful, this approach will allow providers to approximate the direct-ac-tion regime that existed before Covenant. Providers will sue insurers directly under a theory of assignment, and the atten-dant problems of allocating funds among multiple claimants will persist.

Providers may also seek to intervene in PIP cases based


What Happens Next?

W. Daniel Troyka




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ab

Jeffrey G.Bennett






on claims against the patient. Similarly, providers may sue patients directly to collect medical bills. Such a suit might compel a patient to file a third-party complaint against the no-fault insurer or assign the claim to the provider. If the pa-tient has already commenced a PIP action, the provider can seek to consolidate the cases so they are heard in a common forum. Collection suits against patients raise sensitive con-cerns for some providers, in particular non-profit hospitals.

In 1992, the Insurance Commissioner issued Bulletin 92-3 which requires no-fault insurers to defend and indemnify policyholders from “balance bill” lawsuits in which providers seek payment exceeding what the insurer deems reasonable. Provider suits against patients may trigger these obligations even in the absence of a statutory cause of action. If the patient has released the insurer, it is uncertain whether the insurer has any continuing duty.

Providers may also have a greater incentive to work with plaintiffs’ liability attorneys in resolving PIP claims. If pro-viders can ensure that their interest in allocation of no-fault benefits is fairly represented, there will be no need for sepa-rate action.

All of these approaches share a common goal and problem. They seek to coordinate the payment of no-fault benefits with provider claims, allowing providers to be heard before resolution of a PIP claim. The problem is that the claims of providers seeking full payment may exceed amounts avail-able after settlement or adjudication.

If providers are successful in re-injecting themselves into PIP litigation after losing their statutory cause of action, the end result will be familiar. Claims by policyholders against no-fault insurers will be tied to provider claims, and resolution will require allocation of benefits through a global procedure. If providers are kept at bay in PIP litigation, they may be forced to accept an allocation of benefits from proceedings in which they cannot be parties.

Whatever the fallout from the Supreme Court’s decision in Covenant, one thing is certain: lawyers will be busy as the law rapidly evolves.

W. Daniel Troyka is a litigator at Conlin, McKenney & Philbrick P.C., where he has practiced since 2003. He serves on the Board of the WCBA and recently completed his second term as Co-Chair of the Trial Practice Section. He can be reached at [email protected].

Joseph R. Morrison, Jr., a senior associate attorney practicing in Bodman PLC’s Ann Arbor office, has been appointed to the New Enterprise Forum board of directors. Morrison is a member of Bodman’s Business, Data Privacy and Security, and Emerging Companies and Venture Capital practice groups. New Enterprise Forum is an organization devoted to connecting entrepreneurs with management expertise, joint venture partners, business services, capital, and other

resources critical to growing their business. Morrison has a strong background working with entrepreneurs and startups in the Ann Arbor and Detroit areas. Before joining Bodman, he served as corporate counsel and consulting manager to an IT startup based in Ann Arbor, where he helped scale the company to 50+ employees and $3 million in revenue.

Law Firm NoteNew Partner. New Name. New Office. Associate Cassandra (Sandy) Musser has joined Marian Faupel as a named partner in the new firm of Faupel Musser Law, P.C. at their new office located at 4844 Jackson Rd., Ste. 204, Ann Arbor, MI 48103. Sandy joined the Firm in April 2013 and has been a valued part of the Firm since then. Other members of the firm include Randie Swinson, Paralegal; Alison Love, Associate Attorney; and Tracie Faupel, Office Manager. Please feel free to stop by the new location and say hello.

Joseph R. Morrison, Jr.

Member Note

MEMBER AND LAW FIRM NOTES















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Jeffrey G.Bennett




















ab

Jeffrey G.Bennett






The local legal community suffered the loss of one of its beloved attorneys recently:

David E. Kempner, 69, passed away on June 12, 2017.

Our deepest sympathies are with his family.




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Golf Scramble Friday, August 11, 2017

Lunch: 11:00 a.m.-11:45 a.m. Shotgun start at 12:00 noonLight dinner, cash bar and awards after the scramble

We would love to have you join us for our 25th annual golf outing!Enjoy an afternoon of friendly competition and socializing with our judges, your fellow members,

clients and/or other invited guests.

Mulligans, longest drive, closest to the pin and other contests!

Golf ClinicFriday, August 11, 2017

Time: 3:30 p.m. – 5:00 p.m.Light dinner reception afterwards with cash bar

We would love to have you join us for our 2nd annual golf clinic! This small group clinic option is designed for the non-golfer, less experienced golfer and anyone else who wants to participate but doesn’t have time to play

in the full golf scramble. The 1½ hour clinic will cover full swing fundamentals, chipping, putting and a few contests for laughs. Participants will join WCBA golfers afterwards for a light dinner.

SPACE IS LIMITED TO THE FIRST 15 PEOPLE TO REGISTER

Lake Forest Golf Club3110 W. Ellsworth Road

Ann Arbor, MI 48103

Please register for these events by visting the WCBA website at https://www.washbar.org/




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When a business or professional practice is involved in a divorce, there is often considerable difficulty and expense in determining a settlement value acceptable to both parties. This difficulty is frequently a major impediment to reaching settlement.

And, the fees to value a business or professional practice – and time required - can be significant, especially if two or three valuation experts are involved.

The following presents two methods to facilitate resolution of the valuation issue on a cost-effective, expeditious basis.

Abbreviated valuation analysis for mediation and/or settlement negotiations is often effective at providing a reliable value without “going the whole nine yards” on the valuation analysis.

Essentially the business valuation expert performs a sufficient level of analysis to enable him/her to provide a reliable estimate of value – or range of values – for settlement purposes.

The expert will provide well footnoted valuation schedules, and a summary report if requested.

And, the expert will generally be available for mediation to explain the valuation analysis.

The expert could be a “neutral” working on behalf of both parties or, each party may hire an expert to perform an abbreviated valuation analysis. If the case is not resolved at mediation, the expert(s) can perform a more comprehensive analysis and report letter for trial or arbitration – generally with no duplication of effort.

Not all businesses are suitable for this approach. Some have too much uncertainty about the future such that an in-depth analysis is required. But, based on the author’s experience, the abbreviated valuation approach applies to the vast majority of companies and professional practices.

If effective, this approach saves time and fees. The cost is generally about half the fee for a comprehensive valuation analysis and report.

Use of a neutral appraiser working on behalf of both parties is often an effective method for resolving the valuation issue in an expeditious, cost-effective manner.

It is common for each party to retain a business valuation expert. But, it is not uncommon that the values calculated by such experts are meaningfully different. If they cannot resolve the disparity in values, often a third expert is engaged to opine on value – causing considerable delay and additional fees.

However, if the parties can agree on one business appraiser at the outset, they can avoid the possible “battle of experts.” They can also save time, fees, and emotion. Experienced family law practitioners know (and can usually agree on) a business

appraiser with a reputation for competence and integrity.

When using a neutral, it is often advisable to reserve the right to have his/her valuation analysis reviewed for reasonableness by another expert. This reservation offers some protection against a valuation analysis performed erroneously by the neutral. But, to preserve the benefits of using a neutral, the review should be limited to a “reasonableness check,” not a full-blown valuation analysis.

Example

• The fee quote to value a mid-sized business for the divorce is a range of $8,500 - $12,000.

• If each party hires an expert, it could be twice that. And, there will be even more fees if a third expert is needed to resolve a sizable difference between the two values.

• The parties are somewhat “cash-strapped.” The business is encountering challenges and has not paid a bonus in the last couple years.

• On the recommendation of counsel, an experienced business valuation expert with a “straight shooter” reputation is engaged to perform an abbreviated valuation analysis on behalf of both parties to calculate a value the expert recommends and the parties can rely on.

• Both counsel reserve the right to have the neutral appraiser’s conclusion reviewed for reasonableness by another expert.

• The case is settled at mediation using the neutral expert’s business valuation.

• The neutral expert’s fee is $5,000, including attendance at mediation.

Joseph (Joe) Cunningham has over 30 years of experience specializing in financial and tax aspects of divorce, including business valuation, valuing and dividing retirement benefits, and developing settlement proposals. Joe served three 3-year terms on the State Bar of Michigan’s Family Law Section Council, and founded the Section’s Taxation/QDRO Committee, on which he continues to serve. He has lectured extensively for ICLE, Michigan Judicial Institute, State Bar the Family Law Section, and the MICPA. Joe is also the author of numerous journal articles and chapters in family law treatises. He received the State Bar of Michigan John W. Cummiskey Pro Bono Award in 2004 and the Family Law Section Lifetime Achievement Award in 2016. Joe’s office is in Troy though his practice is statewide. He can be reached at [email protected]

FACILITATING DIVORCE VALUATION

OF A BUSINESS OR PROFESSIONAL PRACTICE

Joseph W.Cunningham















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Jeffrey G.Bennett









& Justice Fund.










for their support!



MUNICIPAL CORPORATION SIDEWALK LIABILITY, IRON CLAD DEFENSE

Governor Snyder recently signed Act No. 419 of 20161 that affords additional immunity to municipal corporations for lawsuits arising out of defective sidewalks.2 The addition of MCL 691.1402a(5) grants municipal corporations the defense of “open and obvious” for injuries that result out of defective sidewalks. It reads:

“(5) In a civil action, a municipal corporation that has a duty to maintain a sidewalk under subsection (1) may assert, in addition to any oth-er defense available to it, any defense available under the common law with respect to a premises liability claim, including, but not limited to, a defense that the con-dition was open and obvious.” 3

This addition effectively bars most, if not all, lawsuits against a municipal corporation for personal injuries resulting from dangerous or defective sidewalks. In order to appreciate the sweeping effect of this addition, a brief understanding of municipal corporation sidewalk liability is necessary.

As a general proposition, municipal corporations are immune from tort liability if they are engaged in the ex-ercise or discharge of a governmental function.4 The only instances in which a citizen may sue a municipal corpo-ration are specifically defined by the legislature, which has carved out 5 exceptions to governmental immunity.5 Michigan Courts construe governmental immunity broadly, and narrowly construe the highway/sidewalk exception to governmental immunity.6

With that backdrop, a municipal corporation has a duty to maintain sidewalks adjacent to a municipal, county, or state highway in “reasonable repair.”7 The duty of “reason-able repair” is defined as “reasonably safe and convenient for public travel.”8 However, all municipal corporation sidewalks are presumed to be in reasonable repair, and the Plaintiff bears the burden of rebutting that presumption by proving one of the following: 1) a vertical discontinu-ity of 2 inches or more; or 2) a dangerous condition in the sidewalk of a particular character other than solely a vertical discontinuity.9 Whether Plaintiff has rebutted the presumption through either of the exceptions is a question of law for the Court.10 The Plaintiff must also prove that the municipal corporation knew of the defect, or should have known, at least 30 days before the injury.11

Before the addition of MCL 691.1402a(5)’s “open and obvious” defense, a cause of action would accrue if a pedestrian was injured on a vertical discontinuity greater than 2 inches. That would open the door to liability, and was often called the “2-inch rule.” Plaintiffs still had to prove notice, but the “should have known” provision is a question of fact for a jury to determine. Now, 691.1402a(5) grants municipal corporations the defense of “open and obvious,” creating a fatal blow to claimants.

The defense of “open and obvious” essentially states

that if an individual is injured as a result of a negli-gently maintained or hazardous premises, and that hazard was “open and obvious” to a reasonable person (not the Plaintiff, but an objective standard “reasonable person”), then the landowner has no duty to protect the public against that harm.12 The defense of “open and obvious” is available to all private landowners, except landlords whose tenants are injured on their premises during the course of a leasehold agreement.13 The lone exception to “open and obvious” is when there are “special aspects” to

the condition.14

The addition of the “open and obvious” defense to mu-nicipal corporation sidewalk liability effectively bars most, if not all, lawsuits because the statute requires a vertical discontinuity to be at least 2 inches to rebut the presump-tion of reasonable repair.15 The vertical discontinuity must be greater than 2 inches, but now it must not be “open and obvious.” It creates a logical paradox that a claimant cannot escape because of contradictory rules - a Catch-22. Every lawsuit against a municipal corporation for a defec-tive sidewalk is now, by necessity to rebut the presumption of reasonable repair, “open and obvious.”

As reported in the newspapers, the addition of the “open and obvious” defense to municipalities for side-walk defects was largely motivated by financial strains on local governments. While the policy behind this additional defense may have some short-term justification, I, for one, believe that closing the courthouse doors to injured citi-zens renders more harm than benefit. Further, municipal corporations’ total immunity from liability for dangerous sidewalks may severely diminish their motivation to prop-erly maintain them.

MCL 691.1402a(5) is effective January 4, 2017. The retroactivity of the statute has not been challenged, but it does not appear to be retroactive on its face. The takeaway for your clients is to always look down, carry health insur-ance, and always assume there is no recovery for injuries resulting from governmental negligence. 1 Act No. 419 of 2016, Enrolled House Bill 4686, available at http://www.legisla-ture.mi.gov/documents/2015-2016/publicact/pdf/2016-PA-0419.pdf 2 MCL §691.1402a 3 Id. 4 MCL 691.1407(1)5 The five statutory exceptions are: the highway/sidewalk exception, MCL 691.1402-1402a; the motor vehicle exception, MCL 691.1405; the public building exception, MCL 691.1406; the proprietary function exception, MCL 691.1413; and the governmental hospital exception, MCL 691.1407(4).6 Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 615 N.W.2d 702 (2000)7 MCL 691.1402a(1)8 MCL 691.1402(1)9 MCL 691.1042a(3)10 MCL 691.31402a(4)11 MCL 691.1402a(2) 12 Bertrand v Alan Ford, Inc, 449 Mich 606, 609–612, 537 NW2d 185 (1995)13 Breach of a landlord’s statutory duty to maintain premises in reasonable















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Jeffrey G.Bennett






Benjamin M.Muth




& Justice Fund.










for their support!



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CLASSIFIEDS$750 MONTHLY, ATTORNEY OFFICE SPACE AVAILABLE (4158 Washtenaw Ave., Ann Arbor) - Excellent Ann Arbor location. One furnished (op-tional) attorney office available in beautiful large former residence. Excellent location with easy ac-cess to US-23 and I-94. Free onsite parking. Com-plete amenities available. Must be willing to sign a one year lease. Please call: 734-677-3280.

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repair and in accordance with health and safety laws. MCL 554.139(1)(a) and (b). Woodbury v Bruckner, 467 Mich 922; 658 NW2d 482 (2002)14 For a discussion of “special aspects,” see Hoffner v Lanctoe, 492 Mich 450; 821 NW2d 88 (2012). 15 MCL 691.1402a(3)(1)

Benjamin Muth specializes in plaintiff’s litigation, handling personal injury, civil rights, and professional malpractice. Muth carries on in his father’s name and traditions, even taking his dog, Charlie, to work every day. Muth is the Chairman of the Ann Arbor Elizabeth Dean Trust Fund Committee, serves on the board of the Riverside Art Center in Ypsilanti, and is the Community Liaison for the WCBA. Muth can be reached at 734-481-8800 or [email protected].

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