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Paul

Gauging interest in filing a lawsuit on behalf of impacted businesses against the Governor and the State of Michigan

So.... I've had interest shown in filing a lawsuit on behalf of impacted businesses against the Governor and the State of Michigan ..... I have one prospective client ready to go. Are there any other interested parties (landscapers, greenhouses, tree service companies, etc.) that would be interested in joining in as party plaintiffs? Let me know: [email protected]

I'll need a confidential statement on how this has impacted your company/business (both from the ability to work as well as to acquire supplies), a strong estimate of your business' lost revenue (this will need to be documented at some point if you are included as a party), what efforts your company/business made to get funding and whether it has been successful or failed or you've just been lost in the shuffle (no communication in response to application(s) submitted), whether any official person (aside from public speeches by the Governor) has informed you that your business is not able to operate during the Stay Home order(s), etc. The more information on how the Executive Order(s) has impacted your business the better.

Again: send your confidential statement to me at: [email protected]

You can also reach me on the phone at: 616-257-3300.

Paul

Court rules homeowner owed nothing after SWAT team destroys his house

Remember the case of the homeowner suing the city of Denver? ( https://www.kiro7.com/…/court-rules-homeowner-o…/1003656331/ )

Well.... I found a case here in Michigan that would find in favor of the homeowner against the city under a "trespass-nuisance" theory. The case is Amir v City of Oak Park, 2001 WL 692399 (Mich App, March 30, 2001). Although this is an "unreported" case, and therefore does not have "precedential" authority, it can be used to support the position that where the police damage a structure in the pursuit of a criminal, the owner (innocent bystander/non-criminal) can recover damages against the city/county/policing unit who caused the damage.

Here, the Plaintiff claimed that "Plaintiff's personal property was destroyed, and he was unable to occupy his leased residence for five months, after police deployed tear gas into his residence in an attempt to apprehend a suicidal gunman located in the residence above plaintiff's. Plaintiff sued defendant city to recover damages for his destroyed property and for deprivation of the use of his leased residence.

Plaintiff resided in the lower level of a two-family flat. On December 16, 1996, police were called to the flat because a suicidal gunman had barricaded himself in the second floor residence. The police requested that plaintiff vacate his first floor residence while they negotiated with the gunman. Plaintiff informed police that the two residences were separate from each other. Thereafter, the police took control of plaintiff's home and used it as a “command post.” Ten hours later, the police abandoned the flat and destroyed it by throwing more than twenty-five tear gas grenades at all levels of the flat. Plaintiff's furniture, clothing, food, and artwork were permeated by tear gas. All of the windows to plaintiff's residence had to be boarded up for five weeks, and during this time the chemical from the tear gas destroyed the remainder of his possessions."

The Michigan Court of Appeals agreed with the trial court that the government could not escape liability. The Michigan CoA held:

Trespass-nuisance is a recognized exception to governmental immunity. The Michigan Supreme Court defines trespass-nuisance:

“as trespass or interference with the use or enjoyment of land caused by a physical intrusion that is set in motion by the government or its agents and resulting in personal or property damage.” To establish trespass-nuisance the plaintiff must show “condition (nuisance or trespass), cause (physical intrusion), and causation or control (by government).”

A compensable injury results from “ ‘a direct trespass upon, or the interference with the use or enjoyment of, land that results from a physical intrusion caused by, or under the control of, a governmental entity.” ’

(citations omitted). The government defended and took the position among other things, that, "plaintiff does not have a viable trespass-nuisance claim because no claim akin to the facts of this case existed at common law."

The Court of Appeals was not impressed the government's defense, opining:

"This argument is frivolous. Neither the Hadfield Court, or subsequent courts applying the principles set forth therein, have required that a modern day recovery under trespass-nuisance be based on a specific fact pattern recognized at common law. To the contrary, the Hadfield Court outlined a formula, using then existing common law cases, to determine when trespass-nuisance could defeat governmental immunity. If the facts of a particularized case fit within the parameters of the cause of action, as identified by the Hadfield Court, the trespass-nuisance claim survives.

Utilizing the pertinent formula, summary disposition in favor of plaintiff was proper. Plaintiff alleged, and defendant could not and did not refute, the existence of a trespass-nuisance. The police action of throwing gas canisters into plaintiff's apartment, breaking the windows and permeating plaintiff's property with fumes, provided support for the claim. See Peterman, supra at 205-206, where pollution and infiltration of sickening odor have supported claims of trespass-nuisance. The damage at issue was the natural result of the tear gas deployment.

In addition to defendant's physical intrusion onto and into plaintiff's property, there was definitely governmental causation or control in this case. “Control may be found where the defendant creates the nuisance, owns or controls the property from which the nuisance arose, or employs another to do work that he knows is likely to create a nuisance.” Baker v. Waste Mgmt of MI, Inc, 208 Mich.App 602, 606; 528 NW2d 835 (1995) (emphasis added). Here, there is no doubt that defendant's police created the nuisance, the tear gas permeation and destruction.

The facts of plaintiff's case clearly fit within the trespass-nuisance exception to governmental immunity. There was a direct trespass and interference with plaintiff's use or enjoyment of land that resulted from a physical intrusion caused by a governmental entity. Thus, there was a compensable injury. Defendant failed to provide any evidence negating the trespass-nuisance claim or that there were material issues of fact with regard to that claim."

So..... there you have it... in case the matter ever comes up here. 😁

-Paul Ledford

Paul

What happens if a divorced spouse fails to change the beneficiary designation in an ERISA plan

Occasionally I am called upon as part of my Grand Rapids, Michigan estate planning practice to give an opinion as to what happens if a divorced spouse fails to change the beneficiary designation in an ERISA plan from the other ex-spouse to the person's own estate (Trust) or someone else (e.g., children). Although Michigan law suggests that the judgment of divorce controls, Michigan law is pre-empted by federal law if it is an ERISA governed plan.

Recently, the U.S. Supreme Court Case, Kennedy v. Plan Adm. for DuPont Savings and Investment Plan, 555 US 285, 129 S Ct 865 (2009) ruled that an ex-spouse cannot waive an interest in a former spouse’s ERISA-governed pension plan through the divorce decree alone. The Estate sued the pension plan to recover the pension benefits wrongfully paid to the former spouse under the terms of the Judgment of divorce. In a unanimous decision, written by Justice Souter, the Court held that the employer did not err in paying benefits to the former spouse even though the Judgment of divorce provided otherwise. 

The U.S. Supreme Court held: 

"ERISA provides no exception to the plan administrator's duty to act in accordance with plan documents. Thus, the Estate's claim stands or falls by “the terms of the plan,” 29 U.S.C. § 1132(a)(1)(B), a straightforward rule that lets employers “‘establish a uniform administrative scheme, [with] a set of standard procedures to guide processing of claims and disbursement of benefits,’” Egelhoff v. Egelhoff, 532 U.S. 141, 148, 121 S.Ct. 1322, 149 L.Ed.2d 264. By giving a plan participant a clear set of instructions for making his own instructions clear, ERISA forecloses any justification for enquiries into expressions of intent, in favor of the virtues of adhering to an uncomplicated rule. ... This case points out the wisdom of protecting theplan documents rule. Under the SIP, Liv was William's designated beneficiary. The plan provided a way to disclaim an interest in the SIP account, which Liv did not purport to follow. The plan administrator therefore did exactly what § 1104(a)(1)(D) required and paid Liv the benefits."

Kennedy v Plan Adm'r for DuPont Sav & Inv Plan, 555 US 285; 129 S Ct 865, 867; 172 L Ed 2d 662 (2009)

In light of the Kennedy decision, to ensure that a divorcing spouse’s intent to waive her interest in the pension plan is effectuated, lawyers must get the proper forms from the plan administer before the entry of the Judgment of Divorce and make sure the waiving spouse signs them contemporaneously with the entry of the Judgment.

Michigan law provides that a Judgment of Divorce must either extinguish or preserve in the Judgment any and all rights of a party in any policy or contract of life insurance, endowment or annuity upon the life of another, in which the spouse was named or designated as beneficiary, or to which he/she became entitled by assignment or change of beneficiary during the marriage or in anticipation of marriage.

However, in Metropolitan Life vs. Pressley, 82 F3d 126 (6th Cir. 1996) the Court held that the waiver in a Judgment of Divorce was not enough. A party must also affirmatively terminate his or her spouse as a beneficiary of an insurance policy because the provisions of ERISA preempt any portion of Michigan law that attempts to indicate otherwise. Therefore, after entry of a judgment of divorce, the ex-spouse should also change the beneficiary on his or her life insurance, endowment or annuity or risk allowing the other ex-spouse to take the asset as an arguably unintended beneficiary. It is not the "intent" of the parties that governs, but rather what the documents themselves say that controls. Put even more simply, a divorce decree itself does not change the ERISA contract beneficiary designation.

So, again, ERISA pre-empts state law, and even though a person might be an "ex-spouse," if they remain named in the ERISA governed plan documents as the named "beneficiary," that named ex-spouse will have a right to receive the beneficiary payment under the ERISA governed plan.

Very truly yours,

Paul-Ledford

Paul A. Ledford, Esq.
Ledford & Associates

Paul

The difference between "deadly force" and "non-deadly force."

On August 20, 2019, the Michigan Court of Appeals handed down a favorable decision supporting a woman's right to use her legally owned and possessed pistol where she "reasonably and honestly" believed that there was imminent danger of the unlawful use of force against herself or others. The case is "People v Siwatu-Salama Ra" (CoA Case No. 343202). Ms. Ra, believing that she, her child and her mother were in imminent danger, pulled her (unloaded) pistol and pointed it at another person who had already struck Ms. Ra's parked vehicle (inside of which was Ms. Ra's 2 year old child), and who had attempted to use the vehicle, after ramming Ms. Ra's parked car, to hit Ms. Ra's mother.

There are a number of conclusions that can be drawn from this case, all of which are favorable in a non-deadly self-defense scenario. First, and perhaps foremost, the Court reiterated that pointing a gun at someone, without intent to actually shoot the person, is the use of "non-deadly" force. The Court quoted the following from a legal treatise, that “merely to threaten death or serious bodily harm, without any intention to carry out the threat, is not to use deadly force, so that one may be justified in pointing a gun at his attacker when he would not be justified pulling the trigger.” Discussing the Self-Defense Act addressing non-deadly use of force in self-defense (MCL 780.972(2)) with the facts presented in the case, the Court stated, "because defendant used only nondeadly force by brandishing her weapon, she was justified in using that force if she honestly and reasonably believed that she had to use force to protect herself or others from the imminent unlawful use of force by another. The evidence presented in this case supports the conclusion that it was reasonable for defendant to believe that she had to use force to protect herself or others from Harvey’s imminent unlawful use of force, even if it was not reasonable to believe that she was in danger of being killed or seriously injured." (People v. Ra, at *5).

A second important point that can be taken from this decision is that the Court once again reiterated the meanings and difference between "deadly force" and "non-deadly force." Citing prior Michigan Supreme Court holdings, the Court stated that "Our Supreme Court, however, has applied the term “deadly force” as defined as force used in a circumstance in which the natural, probable, and foreseeable consequence of the act is death." The Court then recited from the model criminal jury instructions the differences:

"The use of deadly force in self-defense requires that the defendant honestly and reasonably believe that she or another is in danger of being killed or seriously injured, M Crim JI 7.15(3), while the use of nondeadly force in self defense requires that the defendant honestly and reasonably believe that the use of force is necessary to protect herself or others from the imminent unlawful use of force by another. M Crim JI 7.22(4)."

This distinction is important for the non-lawyer to understand: it is much simpler to convince a jury of the justification for the use of non-deadly force (the defendant's reasonable and honest belief of an imminent threat of unlawful force being used against them or others) than for the use of deadly force. "Unlawful force" includes simple assault. Thus, the imminent threat of the use of unlawful force would include the reasonable and honest fear of someone about to assault you or someone else. However, to reiterate the Court's point where a firearm is in play, there CANNOT BE ANY intent of actually firing the gun (pulling the trigger). Intent to fire the gun would convert the conduct over from non-deadly defense to the deadly force much higher defense justification requirement.

Another takeaway from this Case was the Court's willingness to criticize, and very resounding criticism of, the trial judge for instituting his own feelings about whether the defendant's conduct involving a firearm, merely because a firearm was involved, automatically implicated "deadly force." The Court was firm and unanimous in holding that the mere presence and use of a firearm DOES NOT automatically transform the conduct into a use of deadly force. The Court said, "the trial court’s conclusion that the brandishing of a gun is the equivalent of deadly force is contrary to this Court’s holding in Pace that brandishing a weapon is not the equivalent of the use of deadly force for purposes of self-defense."

Some final thoughts on this case: The Court has clearly taken a stance that pointing a gun at someone if there is no intent to use it falls within the "use of non-deadly force" and that under the right circumstances, that conduct can be justified as self-defense or defense of others. However, given long-standing prosecutorial practices, the person who does this may well be charged with 2 felonies: felonious assault (where the gun was pointed at someone even without the requisite intent to fire the weapon) and "felony firearm" (using a firearm in the commission of a felony). The "felony firearm" charge comes with a MANDATORY 2 year prison sentence in Michigan if convicted. However, the Court in this case always referred to the defendant's conduct as "brandishing" not "felony assault" such as how she was charged. This *may* hint that the Court, under the right circumstances, may not be favorably inclined to allow stand a felony assault and felony firearm conviction in a brandishing case, especially where there are facts strongly supporting a self-defense or defense of others affirmative defense justification.

Finally, for the legal practitioner, do NOT be afraid to push the prosecution and trial judge on the issue of a jury instruction supporting the use of non-deadly force in the right scenario. Convincing a jury that your client was justified in using non-deadly force is a much lower hurdle to get across than convincing a jury that the use of deadly force was justified. While that may well seem obvious and pointless a point to make, when in the face of a scoffing prosecutor and a former prosecutor-turned-judge trial judge, the pressure is intense to treat these sorts of cases as deadly force cases. That does appear, perhaps, to have also occurred in this case, and I have personally had to fight tooth-and-nail in certain of my defense cases for the non-deadly force instruction against both a prosecutor and a judge who were absolutely adamant that because a gun was involved the force used was therefore "deadly force." If you cannot get the instruction you want, ABSOLUTELY make sure your objection is on the record.

Stay safe out there!

Paul Ledford-Attorney


by: Paul Ledford