Page 1

A P U B L I C AT I O N O F T H E G R A N D R A P I D S BA R A S S O C I AT I O N

Holiday Mixer

JANUARY / FEBRUARY 2013

… more photos on page 10!


THE GRAND RAPIDS LAWYER is published by the Grand Rapids Bar Association Waters Building 161 Ottawa Ave., NW, Suite 203-B Grand Rapids, MI 49503 www.grbar.org 616.454.5550 / 616.454.7707 fax Editorial Karen N. Flick Anne Marks-Gaertner Advertising Coordinator Debbie Kurtz STAFF Executive Director Kimberly Coleman/ext. 105 kimc@grbar.org Executive Assistant/Membership/ Inns Administrator Debbie Kurtz/ext. 101 debbie@grbar.org Communications Specialist/ Administrative Assistant Karen N. Flick/ext. 100 karen@grbar.org Lawyer Referral Administrator Nancy King/ext. 107 nancy@grbar.org OFFICERS & TRUSTEES President T.J. Ackert . . . . . . . . . . . . . . . . . . . . . . 616.831.1730 President-Elect Kristin M. Vanden Berg. . . . . . . . . . 616.456.2468 Vice-President Thomas R. Behm . . . . . . . . . . . . . . . 616.235.5500 Secretary Nikole L. Canute. . . . . . . . . . . . . . . . 616.632.8000 Treasurer A. Todd Almassian. . . . . . . . . . . . . . 616.364.2100 Immediate Past President Mark R. Smith. . . . . . . . . . . . . . . . . . . 616.235.3500 Trustees David E. Bevins. . . . . . . . . . . . . . . 616.235.3500 Dennis J. Donohue . . . . . . . . . . . 616.752.2192 Elizabeth Joy Fossel . . . . . . . . . . 616.336.6000 Patrick F. Geary. . . . . . . . . . . . . . . 616.458.5358 Benjamin H. Hammond. . . . . . . 616.458.3600 Sarah Riley Howard. . . . . . . . . . . 616.752.2541 Hon. William G. Kelly. . . . . . . . . . 616.554.0717 Edward P. Perdue. . . . . . . . . . . . . 616.458.1300 Suanne Watt-Stay . . . . . . . . . . . . . 616.732.1741

IN THIS ISSUE: 4 President’s Perspective By T.J. Ackert 5 YLS Update By Bradley A. Fowler 7 E.D. Torial By Kimberly A. Coleman 7 Welcome New Members 8 Criminal Notes By Timothy K. McMorrow

Jan/Feb 2013 9 Justice Foundation Benefit Dinner featuring The Second City

14 Guest Article: ERISA, PIP & Third Party Torts By Troy W. Haney

10 Photo Opportunity

15 New Attorney Orientation

12 Update from the Managing Partners Diversity Collaborative

17 Seeking Nominations

13 LAC Update By Richard E. Hillary, II

19 Member Notes

JANUARY 2013 1 2 3 4 5

FEBRUARY 2013 1 2

MARCH 2013 1 2

6 7 8 9 10 11 12 13 14 15 16 17 18 19

3 4 5 6 7 8 9 10 11 12 13 14 15 16

3 4 5 6 7 8 9 10 11 12 13 14 15 16

20 21 22 23 24 25 26 27 28 29 30 31

17 18 19 20 21 22 23 24 25 26 27 28

17 18 19 20 21 22 23 24 25 26 27 28 29 30

31

JANUARY:

FEBRUARY:

MARCH:

1 New Year’s Holiday Office Closed

4 American Inns of Court 5:00pm University Club

4 American Inns of Court 5:00pm University Club

14 Foundation Benefit Dinner 6:30pm University Club

5 Probate Section Meeting Noon University Club

21 Board of Trustees Meeting Noon Waters Building

8 New Attorney Orientation Session III 2:00pm McFadden’s

15 Corporate Counsel Section Noon Dematic Corporation 15 Ask-the-Lawyer Bankruptcy 6:00pm Grand Rapids Public Library Downtown Branch 16 How NOT to Market Your Practice Noon University Club

21 New Attorney Orientation Session I 1:00pm Federal Courthouse

17 Board of Trustees Meeting Noon Waters Building

27 Family Law Section Noon University Club

21 Martin Luther King, Jr. Day Office Closed

28 New Attorney Orientation Session II 1:00pm Kent County Courthouse

30 Family Law Section Noon University Club 31 Community Legal Services Community Launch Charity Event 5:30pm Cooley Law School

12 Ask-the-Lawyer Employee Rights 6:00pm Grand Rapids Public Library Downtown Branch 21 Board of Trustees Meeting Noon Waters Building 21 Probate/Business & Tax Section Noon University Club 27 Family Law Section Meeting Noon University Club

ON THE COVER: GRBA members gather for some Holiday cheer on December 6, 2012 at the Amway Grand Plaza Hotel. Members were asked to make non-perishable food donations to Kids’ Food Basket. We collected more than 400 pounds of food and supplies. See more photos from the event on page 10.

grbar.org

l

Jan/Feb 2013

l

The Grand Rapids Lawyer

3


PRESIDENT’S PERSPECTIVE

The

BY T. J. ACKERT MILLER JOHNSON

T

Gift of Service

he start of a New Year always brings with it a sense of hope, renewal and the excitement of new opportunities. While the New Year is simply one day removed from the old, I suspect our traditional belief that we start the year with a clean slate – contrived or earned – renews within each of us the desire to achieve an elusive goal, master a talent or skill, or bring a focus and energy to our family, work or community which will bring out the very best in our endeavors. The trials and tribulations of the “old” year, however, are never far from our minds and they can quickly quell the energies and hopes of the New Year. As I write this President’s Perspective, the leaders in Washington are negotiating to avoid the so-called “Fiscal Cliff”, the world remains exasperated by the seemingly endless tensions of the Middle East, and somewhere someone is suffering, or knows someone who is suffering, an ailment, disease, or broken heart. Each of these “conditions” remind us that – no matter how hard we try – we simply do not control our respective worlds.

Yet, we, as a profession, seem unflappable in the face of the pressures, demands and stresses of the day! Whether it is the “New Year” or “mid-year”, we engage in activities that advance the interests of all those who make up our society. We advocate, we participate, we legislate, we mediate, and we even exasperate those who would cut the corners of the law to advance their own agenda! Our members serve as legislators, judges, administrators, business and non-profit board members, ministers,

4

The Grand Rapids Lawyer

l

Jan/Feb 2013

l

grbar.org

SERVE

lay-religious leaders, coaches, activists, enthusiasts, and school volunteers. Our education, training and experience uniquely qualify us for roles within many different organizations that simply need our counsel, leadership or energy. But that doesn’t explain why we get involved. In a word: Service! I can think of no other over-arching explanation for our profession’s involvement in the affairs of the day. While John F. Kennedy sent a clarion call for service in his Inaugural address, he simply reflected a deeper commitment that most humans feel, and which wells up in most attorneys I know: the desire to serve the goodwill of the other! We believed we had something to contribute to society when we entered law school; and we continue to believe that we can serve the best interests of society. I am not so naïve to suggest that we, as a profession, are the only people who are engaged in service or answer a call, or that we don’t have members who are cowardly and deceitful. Yet, I believe we, as a whole, care for our neighbors and community. So this year, I encourage you to think about SERVICE. Recall your first desires to serve, and reignite within yourself the courage to inspire those around you. Talk about service with others; encourage service. Think of where you can serve the Bar! Engage in pro bono services and assist Legal Aid of Western Michigan. You know right now where you can best serve…take the next step! It is a step that has been taken many times by those who went before you!


YLS

YLS Update THE LINK BETWEEN SOCIALIZING & CIVILITY BY BRADLEY A. FOWLER • LAW CLERK TO HON. JAMES ROBERT REDFORD, 17TH CIRCUIT COURT & TREASURER OF YLS

A

s I write this, the rhetoric in Washington is heating up over the fiscal cliff. Politicians on both sides of the aisle are lobbing accusations and retorts at one another at an increasingly higher frequency and an ever more vitriolic tone. This just as we are trying to recover from one of the most divisive political elections in recent history. Watching the devolution of civility in our nation’s capital makes me wonder if our politicians and leaders in Washington couldn’t learn something from the Grand Rapids legal community. We in West Michigan are truly blessed with a close-knit group of attorneys, judges, paralegals and support staff who refuse to allow differing opinions and professional interests to turn into personal attacks and underhanded tactics which, in the long run, obfuscate the administration of justice. But what is it that makes this community so special? I would suggest that the emphasis the GRBA places on providing opportunities for social interaction outside of the “work environment” is what sets us apart as an island of civility in an increasingly rancorous world. Over time, by interacting at golf outings, Christmas mixers, “Just Lips” performances, progressive dinners, or the myriad of other activities hosted by the GRBA and its various sections, attorneys in this community begin to know one another on a more personal level and form bonds that extend beyond the courtroom or the law office. When it then becomes time to work with a colleague on the other side of a case, whether it is in court, settlement negotiations, or during discovery, we in West Michigan are more willing to talk to each other with a certain level of mutual respect and understanding of where the other side may be coming from. In turn, our professional lives and our clients’ interests are greatly benefited simply by our spending time with one another outside of work. Recognizing the professional benefits of social interaction, this year the Young Lawyers Section (“YLS”) has endeavored to schedule a social activity each month on top of our monthly lunch meetings, happy hours, and community outreach activities. This allows us, as young professionals, to begin building bonds of friendship and camaraderie that will last as we practice law together here in Grand Rapids for many years to come. Our most recent activities included an Art Prize pub crawl, a family bowling night, and our annual Christmas party. Additionally, in the new year we are planning a euchre tournament and a paintball outing along with many other great opportunities to unwind and socialize. I would encourage all members of YLS to actively participate in these activities. Not only are they great fun, but they may benefit your legal career in unforeseen ways and continue to hold up Grand Rapids as the best place in the world to practice law. If you would like to receive information about upcoming events or join YLS please contact our Chair, Stephanie Newton (stephanie@newtonlawplc.com). grbar.org

l

Jan/Feb 2013

l

The Grand Rapids Lawyer

5


Leaders in business • Leaders in health care • A partnership that works for you

One card. A complete health plan. Your association membership gives you more options with the Blues. Whether you want to provide group-sponsored HMO, PPO and HSA plans, or to offer affordable individual plans, we’ve got the health care solution that fits your needs. Blues members have the convenience of using one card for medical, dental, vision and prescription drug plans. Groups of two or more can add Blue DentalSM, Blue VisionSM and Blues RxSM coverage to any medical plan, resulting in a total health plan — not to mention a healthier, happier workforce. And healthy, happy employees can save your company money through improved attendance and productivity. Who knew one little card could do so much? Your Association Exclusively Endorses

For more information, please contact 888-SBM-ForU (888-726-3678) www.michbar.org bcbsm.com

101776ADMC

MiBCN.com

PPO — HSA — HMO — Prescription — Dental — Vision — MyBlueSM Individual 6

The Grand Rapids Lawyer

l

Jan/Feb 2013

l

grbar.org


E.D.Tori al

Welcome New Members

In Review of 2012 & Anticipation of 2013

Megan Archer

BY KIMBERLY A. COLEMAN EXECUTIVE DIRECTOR

Nicholas Alexander Avendt

Whew! It’s hard to believe another year has come and gone. I’m pleased to say that I look back on 2012 with a sense of accomplishment. With the support of our members, and the dedication of our Board of Trustees, the GRBA rolled-out new programs, completed many updates and upgrades and found ways to reach out and serve not just our members, but the Grand Rapids community as a whole. Some highlights from 2012 include: • Presenting more than 60 section meetings, continuing education and social events for members • Conducting our first Civil/Criminal Bench Bar Conference • Continuing work on the objectives of the Managing Partners Diversity Collaborative • Updating the Grand Rapids Lawyer newsletter and integrating new features into an electronic version • Making significant upgrades to the www.grbar.org website’s operations and our membership management software • Presenting the most successful Just Lips! Celebrity Lip Sync event yet – raising more than $15,000 for the Justice Foundation of West Michigan • Continuing the Ask-the-Lawyer program in conjunction with the Grand Rapids Public Library

Joshua D. Beard Peter J. Bottenhorn

None of the above would have been possible without the hard work of our staff: Debbie Kurtz, Karen Flick and Nancy King. I would also like to take the opportunity to recognize the hard work of the volunteers in our Lawyer Referral Service: Alan Bedell, Gil Romeyn, Reid Openhuizen, and Mark Woolery.

Sheila Elaine Eddy April A. Goff Daniel F. Gosch Elinor R. Jordan Janet Kelley

For 2013, we’re looking forward to continuing our efforts to promote and increase diversity in the Grand Rapids legal community through the work of the Managing Partners Diversity Collaborative. We’ll be rolling out branding for the Grand Rapids legal community and related social media components. For more on what’s happening with the MPDC, see page 12. On February 14, we will welcome The Second City Comedy troupe to town for our biennial Justice Foundation Benefit Dinner. We hope you’ll join us for an evening of entertainment for a great cause. Tickets are available now and can be purchased online or by calling the GRBA office. See page 9 for more details.

Elizabeth Lamphier Pamela M. MacDougal Audra R. McClure Brian Anthony Mick Jason C Miller David Matthew Moss Kari L. Sherry Bethany Danielle Spencer Jeff Steinport Richard Ward Szymanski Robert G. Teeter

Of course, you can also look forward to our full schedule of section meetings, continuing education and social events and as always – we look forward to seeing you there!

Natalie Warrick Joshua Wease

• Providing lawyer referrals to more than 500 members of the public

grbar.org

l

Jan/Feb 2013

l

The Grand Rapids Lawyer

7


CRIMINAL NOTES

Sentencing A Juvenile for First Degree Murder: What are the Options? BY TIMOTHY K. McMORROW • KENT COUNTY PROSECUTORS OFFICE

For the past several years, the United States Supreme Court has been restricting the power of state courts to impose the harshest sanctions on juveniles. In Roper v Simmons, 543 US 551; 125 S Ct 1183 (2005), the Court held that the Eight and Fourteenth Amendments to the United States Constitution precluded the imposition of the death penalty on those who were under 18 years of age at the time of their crime. In Graham v Florida, 560 US ___; 130 S Ct 2011 (2010), the Court held that life without parole for a non-homicide offense imposed on a defendant under the age of 18 was unconstitutional.

is listed as life. The “no parole” provision is in the Michigan parole statute, which precludes consideration for parole of anyone convicted of first degree murder. The practical effect is that a person convicted of first degree murder will receive a life sentence and never be eligible for parole. But the listed sentence for first degree murder – life – was not invalidated by Miller. Arguably, the effect of Miller is to invalidate the parole statute as applied to those who committed murder before their 18th birthday. So that means we have to revisit all our old murder convictions where the defendants were under 18 at the time of the crime? Well, no. In People v Carp, Docket No. 307758, decided November 15, 2012, the Michigan Court of Appeals issued a published opinion holding that Miller is not retroactive to cases that were final for appellate purposes at the time of the decision. In other words, a defendant convicted in 2008 of a murder when he was 17, whose conviction was affirmed on appeal, and who has exhausted all appellate remedies, cannot now file a motion for relief from judgment attacking the sentence.

In Miller v Alabama, ___ US ___; 132 S Ct 2455 (2012), the Court extended its reasoning and held that a sentence of mandatory life imprisonment without parole for a defendant convicted of first degree murder committed before the defendant’s 18th birthday was unconstitutional. The Court did not categorically ban a sentence of life without parole on such defendants, but did hold that a state cannot mandate life without parole sentence for juvenile murderers.

The Court in Carp also held that for new cases the sentence for first degree murder imposed on the juvenile defendant would remain mandatory life. A trial judge has no authority to impose a term of years sentence, or any sentence other than life. The Court also held that a sentencing

So where does that leave us in Michigan? Answer: in a procedural mess. Contrary to what most people think, the first degree murder statute in Michigan does not list the punishment as life without parole. The sentence 8

The Grand Rapids Lawyer

l

Jan/Feb 2013

l

grbar.org

court could consider various factors listed in Miller in determining whether the sentence should be life without parole or life with the possibility of parole. The Court further held that the Parole Board would have to respect the sentencing judge’s conclusion and provide a meaningful determination and review when the defendant became eligible for parole. Will Carp hold up? No one knows. The defendants in that case will certainly file an application for leave to appeal in the Michigan Supreme Court. Since other states have also issued opinions restricting the retroactive effect of Miller, that issue is certain to end up in the United States Supreme Court. For new cases, Miller of course applies. It puts trial courts in a difficult position. Carp requires a trial judge to conduct a hearing after a juvenile is convicted of first degree murder, and make findings whether the proper sentence should be life with parole or life without parole. It is unclear to me, however, that a trial judge’s finding that the sentence should be life without parole could bind the Parole Board. Carp came up with what appears to be a reasonable solution, but it is one without specific legislative authorization. What this illustrates is a need for some sort of legislative response, to develop a new formalized procedure for addressing the proper sentencing of juvenile first degree murderers.


A S P E C I A L J U S T I C E F O U N D AT I O N O F W E S T M I C H I G A N E V E N T

Make a date to attend a Benefit Dinner featuring...

satire

comedy improvisation

Thursday, February 14, 2013 Frederik Meijer Gardens & Sculpture Park 6:30pm Cocktails • 7:00pm Dinner 8:00pm Show • Cocktail Attire The company that launched the careers of Tina Fey, Stephen Colbert, Steve Carell, Gilda Radner, Bill Murray and more, brings us an evening of hilarious sketch comedy and Second City’s trademark improvisation. Whether it’s ripped from the morning headlines or a classic gem from their 50 year archives, The Second City is always a laugh out loud hit.

Tickets are $75 for GRBA Members and their guests, $85 for non-members. Order tickets online at www.grbar.org or call 616-454-5550.

grbar.org

l

Jan/Feb 2013

l

The Grand Rapids Lawyer

9


H oliday M ixer


Fall Admissions Ceremony


An Update from the Managing Partners Diversity Collaborative On March 22, 2012, the Managing Partners Diversity Collaborative adopted a 5 year Action Plan designed to increase and retain attorneys of color and women in our legal community. In part, the Action Plan stemmed from Collaborative’s conclusion that we can accomplish much more together than we can individually. Consistent with this conclusion, the Action Plan called for the formation of multi-firm workgroups designed to execute the action steps in the areas of pipeline development, recruitment, and retention. These workgroups have made significant progress during the remainder of 2012. What follows are merely the highlights of their completed tasks and ongoing projects. PIPELINE DEVELOPMENT

The Pipeline Development committee has reached out to local schools to identify materials available to students interested in pursuing a career in law. The committee is now working to compile a list of handouts and online materials the GRBA could make available to students interested in a career in the law; e.g., a checklist of suggested college coursework for those pursuing a career as a lawyer, paralegal, or legal secretary; handouts related to job shadowing opportunities, etc. In August, the Committee encouraged GRBA members to consider the Schools of Hope Reading Program, which serves more than 650 children in our community, as one opportunity to have a direct and meaningful impact. Forty-three lawyers from GRBA, and numerous staff members from area firms, responded to that call, have trained with the program, and are volunteering weekly with students. A number of other projects are in the works, including a high school level “Introduction to Law” course, possible LSAT preparation assistance program, and potential law school scholarships. RECRUITMENT

The Recruitment Workgroup has completed the major task of developing a marketing plan to market the Grand Rapids legal community to diverse lawyers and law students throughout the country. A key piece of the plan – the development of a recognizable and substantive brand for the legal community – will be rolled out in 2013 along with its web-based social media components - so watch here for developments. The Recruitment Workgroup is also working towards expanding the Grand Rapids Bar Association’s Minority Clerkship program in two specific ways: (1) expanding the pool of applicants to ensure that the opportunity to participate in the clerkship is available to law students who pursue a non-traditional (eg part-time) as well as traditional, law school track; and (2) expanding the number of employers for the clerks to include non-profit, government, and in-house positions. RETENTION

The Retention Workgroup has focused on three major tasks in 2012 which will bear fruit in 2013. These include: (1) developing a toolkit for training mentors in the art of mentoring across differences in gender and race; (2) designing a conference (to be held in the second quarter of 2013) on inclusive leadership skills for key firm leaders such as management committee members, practices group leaders, client managers, and others; and (3) designing a conference (to be held in the third quarter of 2013) on business development techniques for women and attorneys of color. As the Collaborative’s Action Plan unfolds, the Grand Rapids Bar Association will continue to play an intrinsic part in the development, execution and measurement of each program. We welcome your input and your questions as we move our legal community forward in the pursuit of greater diversity and inclusion for all.

For details of the Action Plan, visit our website! 12 The Grand Rapids Lawyer

l

Jan/Feb 2013

l

grbar.org


LEGAL ASSISTANCE CENTER

My Morning Visiting the Legal Assistance Center (LAC)

A

young woman stood at the counter in the LAC. Charlie asked, “How can I help you?” The woman was upset, but calm. But she was also scared. I could tell. Charlie recognized her. She recognized Charlie. She had stood at that counter before. She was a regular customer and was back again. In a timid voice, she explained to Charlie what had just happened. The young woman had just returned from family court. Her ex-husband’s attorney had asked the judge to modify parenting time. Her ex-husband wanted to see the kids more. She did not have an attorney. She could not afford one. The woman believed that her ex-husband was abusive. She needed to muster a response to his request, and the judge had given her additional time to do so. Charlie went into action. He knew exactly what to do. Charlie pulled up the court docket on his computer, reviewed the docket entries, and immediately deduced what had happened in court that morning. I stood there still confused. Behind Charlie, stacked one on top of another, rested several uniformly shaped shelves, each with a thin cubbyhole, each cubbyhole holding a different court form, and each labeled with the form’s name. Charlie scanned the shelves and snatched a form. I couldn’t see the title of the form, he moved too quickly. With calmness and ease, Charlie then explained to the woman how to complete the form, not what to write, but how to complete it. The woman

listened intently, scribbling notes on a spiral bound notebook she had set on the counter. Once I caught on to what was happening (that is, once I caught up with Charlie), I wanted to tell the woman what she should write and how she should say it. I wanted Charlie to tell the woman what to write. I wanted to shout it. But Charlie could not. That wasn’t his job. It wasn’t his purpose. He could not go so far. The woman had to use and choose her own words and Charlie knew that. He provided her with the tools she needed to have access to the court. The tools she needed to use her own voice and be heard. She retreated from the counter, court form and notes in hand, a genuinely satisfied customer. She was grateful, very grateful. Her smile revealed this.

BY RICHARD E. HILLARY, II MILLER JOHNSON

long, Charlie stepped forward, then Vickie, and then other staff and volunteers answered the call. To a person, they knew what to do and how to do it for each and every customer. With caring efficiency, every question was answered, no one was turned away, and not a single person left the counter not having received something, some guidance, some assurance, some better understanding of the process. There was not a single, unsatisfied customer that morning. Every person who came left with something in hand or in mind to use at the next step in whatever judicial proceeding they were in. I was in awe. I have walked passed the LAC on the 5th Floor of the Kent County

“Injustice anywhere is a threat to justice everywhere.”~ Martin Luther King, Jr. And then they kept coming, one after another, all morning long. Charlie, Vickie and the rest of the staff at the LAC saw so many people in need that morning that I lost count. It was motion day in the family court and the rush was on at the LAC. But the questions posed to Charlie, Vickie and the others did not just involve family law. They involved evictions, collections, garnishments, judgments, modifications of judgments, and many, many other legal issues, some mundane some highly complex. All morning

Courthouse many times. Until spending the morning observing the dedicated staff and volunteers behind the counter in action, I really didn’t understand what happened at the LAC. I do now. And I now appreciate how fundamentally important it is that they continue to do what they do. Dr. King wrote, “Injustice anywhere is a threat to justice everywhere.” He might also have said, “Justice denied for one is justice denied for all.” The LAC supplies people who Continued on page 18

grbar.org

l

Jan/Feb 2013

l

The Grand Rapids Lawyer

13


ERISA, PIP & THIRD-PARTY TORTS:

A step back towards uncertainty – the Michigan Court of Appeals decides Hill v Citizens

BY TROY W. HANEY HANEY LAW OFFICES

In Glover v Nationwide Mutual Fire Ins Co, 676 F.Supp.2d 202 (WD Mich 2009), Magistrate Judge Joseph Scoville trenchantly summarized a major and ongoing legal issue in tort law in this jurisdiction: For over twenty-five years, insured parties have been caught in the crossfire between ERISA health plans and Michigan no-fault carriers, each of which contends that the other is primarily responsible for medical bills arising from an automobile accident. This case. . . proves once again the truth of the adage that the only thing worse than having no insurance policy is having two. In this dispute at the interface of federal (ERISA) and Michigan (no-fault) statutory law, it appeared that the issue was largely resolved by compatible prevailing opinions of the Michigan Supreme Court, in Sibley v DAIIE, 431 Mich 164 (1988), and the Sixth Circuit Court of Appeals, in Shields v Government Employees Hospital Ass’n, 450 F.3d 643 (6th Cir. 2006). However, on October 2, 2012, the Michigan Court of Appeals decided Hill v Citizens Insurance Company of America, docket number 304700, which has likely tossed the ball back into the air on this issue pending further elaboration by the Michigan appellate courts.

Circuit found Sibley to be binding precedent on the no-fault carrier’s ultimate responsibility under the Michigan no-fault act to repay the insured for any sums he or she was required to contractually reimburse to the health insurer. Shields so ruled despite the contention of the no-fault carrier in that case, State Farm, that it should apply instead of Sibley the subsequent contrary majority opinion of the Michigan Court of Appeals in Dunn v DAIIE, 254 Mich App 256 (2002). However, the Sixth Circuit in Shields flatly rejected Dunn as directly in conflict with Sibley and, hence (page 646) “not good law”, and instead followed Sibley as a precedential and binding interpretation of the Michigan no-fault statute.

In Sibley, the Michigan Supreme Court, analyzing MCL 500.3109(1), held that the “benefits provided” language of that section only potentially relieves the PIP carrier of responsibility for benefits “permanently” provided by the health insurer, not benefits paid but subsequently recovered by the health insurer via reimbursement from the insured. In Shields, in turn, the Sixth

In the new case of Hill, however, the assigned Court of Appeals panel, found Dunn “more similar” to the present case than Sibley and accordingly applied its own “first-out” rule, now codified in MCL 7.215(J) (1), which binds subsequent Court of Appeals panels to follow “prior published decision[s]” of the same

Court and thus found Dunn binding on it, so as to preclude the PIP carrier, Citizens, from being required to compensate plaintiff Hill for his own duty to reimburse the health carrier, ArvinMeritor, out of his UM recovery – even though the Hill panel then stated that it found Shields, which had conversely followed Sibley instead of Dunn, to be convincing – and thus “encourage[d]” the Supreme Court “to evaluate this issue . . . if plaintiff [Hill] files leave to appeal”. In other words, the Hill case essentially stated “we would follow Shields and Sibley but we are required to follow Dunn.” Plaintiff Hill may now seek leave to appeal to the Supreme Court but in the meantime, obvious practice tip might be to file ERISA/PIP disputes in Federal Court as was done in Glover. I must also advise of a likely “larger” pending development in this area of law presaged by the decision of the United States to grant certiorari to the Third Circuit Court of Appeals in U.S. Airways v. McCutchen, 663 F.3d 671 (3rd Cir. 2011). The entire idea of potential health insurer reimbursement for medical bills paid out of the insured’s thirdparty tort recovery is of recent origin and basically stems from the Supreme Court’s seminal opinion in Sereboff v. Mid Atlantic Medical Services, Inc., 126 S.Ct. 1869 74 USLW 4240, 164 L.Ed.2d 612 (2006). In addition to the various benefits for “participants” and “beneficiaries” detailed in ERISA, Continued on page 18

14 The Grand Rapids Lawyer

l

Jan/Feb 2013

l

grbar.org


New Attorney Orientation The Grand Rapids Bar Association is hosting its Annual New Attorney Orientation this February and March. The program is designed to give attorneys in practice for a year or less, and attorneys new to the Grand Rapids area, a guided tour of the city’s proud, closely-knit, legal community.

The program is broken into three sessions on February 21, February 28 and March 8. Sessions I & II run from 1:00-4:00pm. Session III begins at 2:00pm.

1 2 3

The FIRST SESSION, entitled “the Unwritten Rules: What You Didn’t Learn in Law School”, will focus on ethics and civility from both a judge’s and a lawyer’s point of view; do’s and don’ts in the courtroom, and a tour of the Federal Courthouse. The SECOND SESSION, “Who’s Who and What’s What at the Courthouse”, will give you a behind-the-scenes look at the inner workings of the Kent County Courthouse from the perspective of the staff. This session will also have a guided tour of the courthouse, as well as a chance to talk one-on-one with Federal and State Judges. The THIRD SESSION “Building a Successful Law Career” will provide sage advice from seasoned professionals and an introduction to resources that can help you build your career. Presentations will begin with “The Unvarnished Truth: How to Succeed as a Lawyer,” and conclude with Speed Mentoring. This activity allows attorneys an opportunity to seek advice through timed conversations with multiple experienced counterparts. A cocktail reception with members of the Grand Rapids legal community will follow.

Sign Up Now! Seats are Limited!

!

COST: Members $25 per session or $60 for all three; Non-members $35 per session or $90 for all three

N EW AT TO R N E Y OR IE NTATION PR OGR AM I would like to attend the following sessions: Return form to: 161 Ottawa Ave. NW Suite 203-B Grand Rapids, MI 49503

Or Fax it to:

q Session I: Unwritten Rules q Session II: Who’s Who… q * Session III: Building a Successful…

Name:____________________________________________________________ Phone:____________________________________________________________

616-454-7707

Firm:_____________________________________________________________

Register Online:

Address:___________________________________________________________

at grbar.org

Questions? Call us at 616-454-5550

_________________________________________________________________ I have enclosed a check in the amount of $________. *Third Session attendees: Please bring business cards and copies of your resume.

grbar.org

l

Jan/Feb 2013

l

The Grand Rapids Lawyer

15


DOWNTOWN “IDENTITY” LOCATION ON-SITE PARKING 30 JEFFERSON SE GRAND RAPIDS MI 49503

OFFICE LEASE/SALE 2300 SQ FT. GR FL+ MARK LEVANDOSKI

(616) 452-5503 marknlevandoski@comcast.net

16 The Grand Rapids Lawyer

l

Jan/Feb 2013

l

grbar.org


The Grand Rapids Bar Association is now accepting nominations for: The Donald R. Worsfold Distinguished Service Award, The President’s Award, and the Liberty Bell Award. .

AWARDS

Our Worsfold Award is presented to an attorney who has shown excellence in the profession and dedication to the community. The President’s Award is given to a member who has contributed his or her talents to help the GRBA realize its strategic goals. The Liberty Bell award is presented to a non-lawyer or non-profit organization that has made an outstanding contribution to the cause of justice or to advancing public awareness of the Constitution and our legal system.

Cooley Law School Seeks Nominations for Hilligan Award

If you would like to nominate a person or organization you feel is deserving of recognition, please contact the Bar at 616.454.5550 to submit your nomination. Nominations must be received by March 8, 2013.

The Marion Hilligan Public Service Award is given annually to recognize contributions by a lawyer in public service to area governmental bodies or community organizations, reflecting greater individual responsibility in promoting public health and welfare through law. The purposes of the award are to promote among the bar and public a greater appreciation for the contributions lawyers make to governmental bodies and community organizations, and to foster among lawyers greater individual responsibility for service to those bodies and organizations.

2013 Officer & Trustee Elections Are you interested or do you know someone who should be? We are seeking potential candidates for the 2013 GRBA Election, and encouraging members to express an interest in serving. The Association will be electing three new Trustees, a new Secretary, Treasurer, and Vice President. The Vice President will subsequently serve as the President-Elect and President.

The award criteria include the candidate’s board memberships and other appointments and service, length of service, time expended, skills exercised, and general perseverance, innovation, foresight, and success in developing, promoting, and sustaining the mission of the governmental bodies or community organizations served. Compensated (career) and volunteer candidates are eligible.

Job descriptions for all four positions may be obtained by contacting Kim Coleman at 616.454.5550 or kimc@grbar.org. If you or someone you know would make a great candidate and a wonderful Officer or Trustee of the GRBA contact Kim Coleman.

Nominations can be made via e-mail to either Nelson Miller at millern@cooley.edu or to CJ Kruska at kruskac@cooley.edu. 

Deadline for submission is January 31, 2013.

grbar.org

l

Jan/Feb 2013

l

The Grand Rapids Lawyer

17


…continued from page 14

…continued from page 13

My Morning Visiting the Legal Assistance Center

ERISA, PIP & THIRD-PARTY TORTS:

A step back towards uncertainty – the Michigan Court of Appeals decides Hill v Citizens

might otherwise be denied justice with the tools and information they need to fully participate in the judicial process. I have been witness to the LAC fulfilling its mission. It is impressive, to say the least. In 2011 the LAC served over 16,000 people. Each time a person is denied access to justice, our justice system is weakened, its stability is challenged, and its integrity is questioned. Each time justice is denied for one, we inch a bit closer to justice denied for all. The LAC fills the gap, providing tools and information to those most in need in order to give them access to justice that they so desperately need – that we so desperately need them to have. The next time you find yourself on the 5th Floor of the Kent County Courthouse, stop in and introduce yourself to Deborah Hughes, the LAC’s Executive Director. Give a shout out to Charlie, to Vicki, to whomever you see working behind the counter. Tell them you appreciate everything that they do. I know I do.

18 The Grand Rapids Lawyer

l

Jan/Feb 2013

l

grbar.org

Section 502(a)(3)(B), 29 U.S.C. Section 1132(a)(3)(B), the section also allows a “fiduciary”, including an insurer, to obtain appropriate “equitable relief”. In Sereboff, the Supreme Court found this “equitable relief” provision to contemplate an insurer’s reimbursement claim asserting an “equitable lien” on sequestered sums retained in a “specifically identified fund”. In granting certiorari in McCutcheon, the Supreme Court agreed to address whether equitable defenses can limit an ERISA plan’s reimbursement rights in a case where a plan is seeking to recover all medical benefits tendered where those benefits exceed the amount of the insured’s net recovery. I look forward to reporting the result when McCutchen is issued.


Charlie Goode, a partner with Warner Norcross & Judd LLP has been elected to serve on the board of The First Tee of West Michigan, a non-profit organization with a mission to impact the lives of young people by providing education programs that build character, instill life-enhancing values and promote healthy choices through the game of golf. Thomas A. Hallin has joined the firm of Price Heneveld. Mr. Hallin has more than 33 years of experience in law practice, with the last 23 years dedicated primarily to intellectual property matters.

MEMBER NOTES Kelechi E. Adibe, Emily E. Bakeman, Adam J. Benitez, Elinor R. Jordan, Laura Rogers-Raleigh, Margaret Stalker Jozwiak, have all joined the firm of Warner Norcross & Judd. Matthew J. Baciak has joined Smith Haughey Rice & Roegge. He is a health care, business and corporate law attorney. David J. Gass was inducted as a Fellow of the American College of Trial Lawyers. Fellowship is extended only by invitation, after careful investigation, to those experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality.

Jane C. Hofmeyer, attorney and shareholder with Smith Haughey Rice & Roegge, was recently appointed to the Community Media Center’s Board of Directors. The CMC is a non-profit organization providing media services to the Greater Grand Rapids area, including television channel GRTV, radio station WYCEFM, and online news source The Rapidian. The CMC also maintains community venues such as the 100-year-old Wealthy Theatre. Gregory R. Kish, attorney with Smith Haughey Rice & Roegge, earned the designation of Certified Elder Law Attorney from the National Elder Law Foundation. Greg is one of only 14 attorneys in Michigan to hold this certification. Richard A. Roane, a partner with Warner Norcross & Judd has been appointed to co-chair the new Lesbian-Gay-Bisexual-Transgender/ Alternative Family Committee of the American Academy of Matrimonial Lawyers (AAML). The committee is tasked with working with other AAML committees and external organizations on national legislative efforts to improve laws or to create new laws to address the issues facing alternative families. Roane also serves as president of the Michigan chapter of the AAML. grbar.org

l

Thomas L. Saxe has been appointed Chair of Rhoades McKee’s Family Law Practice Group. A shareholder with the firm and current chair of the Construction Practice Group, Saxe has concentrated his practice in both areas of family law and construction law. The Honorable Daniel Zemaitis was named 2012 Judge of the Year the Michigan CASA Conference in Traverse City, MI. This honor is awarded annually to a Judge in Michigan who has demonstrated leadership and innovation in promoting CASA within the judicial community and to the public, made significant contributions to the advancement of children’s issues and exemplified exceptional leadership in furthering consistent quality representation of children. Smith Haughey Rice & Roegge recently welcomed Lori L. Gibson as Chief Operating Officer and Shannon M. Cunningham as Director of Marketing and Business Development. Varnum LLP has announced a new management structure. Under the new structure: Larry Murphy will continue to oversee the firm’s business development, client service and community partnerships; Scott Huizenga will become Chair of the Partnership and Policy Committee, the firm’s internal management body; Tom Kyros will serve as Executive Partner, responsible for policy implementation, Lean processes and firm administration.

Visit our website for more news from your fellow Bar members.

Jan/Feb 2013

l

The Grand Rapids Lawyer

19


PRSRT. STD. US POSTAGE

PAID

GRAND RAPIDS, MI PERMIT NO. 1189

Accountants & Consultants



161 Ottawa Ave. NW Suite 203-B Grand Rapids, MI 49503

Our expertise in Litigation Services can help you with: • •

  

• • • •

Business valuations Evaluation of issues and formulations of strategies Depositions Damage theory and calculations Settlement negotiations Expert testimony

CONTACT: Leslie N. Prangley III, CPA CVA

11th Floor, Bridgewater Place 333 Bridge Street NW Grand Rapids, MI 49504 Ph: 616-774-9004 Fx: 616-774-9081

www.pmcpa.com


Grand Rapids Bar Association Newsletter - Jan/Feb 2013  

Grand Rapids Bar Association Newsletter - Jan/Feb 2013

Read more
Read more
Similar to
Popular now
Just for you