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NEWS ABOUT VANDEVEER GARZIA LAWYERS 


NICO VESPRINI AND ANDREW BARRETT WIN TRIAL FOR CLIENT IN MACOMB COUNTY CIRCUIT COURT IN AUTO v. PEDESTRIAN CASE

Nicolas Vesprini and Andrew Barrett recently received a defense verdict of “No Cause of Action” in an automobile negligence trial in Macomb County Circuit Court.

Plaintiff, a pedestrian who was walking through a parking lot of a shopping center, alleged that Defendant struck her, causing injury.  Plaintiff alleged Defendant was negligent in the operation of her vehicle through the parking lot, and should have been able to avoid the accident.  As a result of the incident Plaintiff alleged she suffered various injuries, including a torn meniscus in the knee resulting in surgery, ongoing pain, and an inability to partake in multiple social activities.  Plaintiff claimed her injuries were a serious impairment of an important body function and sought $750,000 in damages from the jury.

Defendant testified that she used due care and caution while driving in the parking lot and was not negligent in causing the accident.  Further, Nico and Andy presented evidence, including medical testimony from an orthopedic surgeon and neurologist, that to the extent Plaintiff alleged injuries from the accident, the conditions were pre-existing in nature.  In turn, Nico and Andy argued that Plaintiff did not meet the “serious impairment” threshold and her general ability to lead her normal life had not been affected.

At the conclusion of the trial, the jury agreed with Defendant, and found that she was not negligent in causing the accident.

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NICO VESPRINI WINS DISMISSAL OF WAGE LOSS CLAIM

Plaintiff filed a claim for first party no-fault benefits against his automobile insurance carrier.  In part, Plaintiff’s claim was for lost wages.  Plaintiff was unemployed for a number of years before the accident, but alleged the week before the accident he was offered employment with a construction company.  Plaintiff alleged that if he was not injured in the accident, he would have been employed working full time for the construction company.  Prior to litigation, Plaintiff provided his insurance carrier with a letter from the owner of the construction company as “proof” of his potential employment.

During the course of litigation, Nicolas Vesprini subpoenaed Plaintiff’s alleged employer, the owner of the construction company, for deposition.  As a result of the deposition testimony elicited, Nico filed a motion to have Plaintiff’s claim for lost wages dismissed.  Nico argued that despite the letter, there was no offer of employment made to Plaintiff and that Plaintiff failed to meet his burden that there was work available at the construction company for Plaintiff to perform, regardless of Plaintiff’s alleged injuries.  Nico further argued that the “proofs” submitted by Plaintiff were insufficient and failed to meet the standard under the Michigan No-Fault Act to recover lost wages.

After briefing and oral argument, the Court agreed with Nico and dismissed Plaintiff’s claim for lost wages.

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PRESENTATION OF WORKERS COMPENSATION LAW CHANGES
TO OCBA FORUM FOR IN-HOUSE COUNSEL

Christian Hildebrandt presented a seminar on the 2011 Changes to the Workers Compensation Act to the Forum for In-House Counsel at the Oakland County Bar Association on June 5, 2012.  Mr. Hildebrandt covered all of the major changes to the Act that were enacted by the legislature last year. 

Forum for In-House Counsel is designed for in-house counsel, corporation counsel, and transactional attorneys to provide educational programs and a forum to discuss relevant topics.

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THE FIRM WINS A DISMISSAL OF A WRONGFUL DEATH CASE
 IN THE COURT OF APPEALS FOR THE METROPARKS
 
On a warm, summer day in June 2009, a young lady went to the wave pool at Lake Erie Metropark with a friend.  She was known to be a good swimmer.  For some reason, she became incapacitated in the deep end of the pool while the waves were operating.  Her friend lost sight of her.  When the waves stopped, a patron of the pool noticed her on the bottom of the pool and alerted the life guards stationed at the pool.  The guards activated the park’s Contingency Action Plan and attended to the victim.  The life guards, a park police officer, and paramedics were unable to resuscitate her.  
 
The personal representative of the decedent’s estate brought a wrongful death case in Wayne County Circuit Court against the Huron-Clinton Metropolitan Authority, the owner and operator of Lake Erie Metropark.  The estate also sued the park police officer and all of the life guards who tried to help the victim.  The plaintiff claimed that the efforts of those individuals were too late, too slow, and improper.  After preparing the defense, firm attorneys brought a motion to dismiss the case.  The judge in the trial court dismissed the claim against the Huron-Clinton Metropolitan Authority but refused to dismiss the claims against the park police officer and the individual life guards.
 
The firm appealed.  The Court of Appeals reversed the Wayne County Circuit Court judge and dismissed all remaining claims in the case.  Tom Peters and Jim Thome represented the Huron-Clinton Metropolitan Authority, the park police officer, and the life guards. 
 
Susan Cox, as Personal Representative of the Estate of Lisa Cox, deceased, Plaintiff -vs- Huron-Clinton Metropolitan Authority, et al, Defendants, Wayne County Circuit Court Case No. 10-000095- NO; Michigan Court of Appeals Case No. 303158.

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JAMES RENO AND ALICIA SIEFER LaBEAU WIN TRIAL IN MACOMB CIRCUIT COURT FOR CLIENT ARISING OUT OF AN AUTOMOBILE ACCIDENT

James Reno and Alicia Siefer LaBeau recently received a defense verdict of “No Cause of Action” in an automobile negligence trial in Macomb County Circuit Court. 
 
Plaintiff, a motorcyclist, had alleged that the Defendant pulled out in front of him and caused Plaintiff to suddenly slam on his brakes and strike the back of Defendant’s trailer.  As a result of the accident, Plaintiff sustained a lisfranc fracture (middle foot injury), a fractured shoulder blade and several lacerations and abrasions.  Plaintiff claimed that the accident was the Defendant’s fault and also claimed that his injuries resulted in a permanent and serious disfigurement and serious impairment of an important body function.
 
James and Alicia presented evidence and testimony from the Defendant driver and a passenger in the Defendant’s vehicle.  They also relied on the investigating police officer and an eyewitness who both testified our client did not pull out in front of the Plaintiff, but rather that Plaintiff’s own failure to observe traffic conditions was the cause of his injuries.
 
After hearing three days worth of testimony and evidence, the jury deliberated for just over an hour before finding that our client was not at fault.
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JIM THOME WINS TRIAL FOR FIRM CLIENT ON INSURANCE COVERAGE MATTER INVOLVING CASS TECH HIGH SCHOOL

Cass Technical High School is a prestigious and historic college preparatory school located in Detroit.  The Detroit Public Schools decided to build a new Cass Tech and demolish a number of buildings associated with the old school.  The Detroit Public Schools delegated the supervision of the construction and demolition activities to a group of contractors, architects, engineers, and advisors known as the Detroit Public Schools Program Manager Team.  The DPSPMT hired a Detroit contractor, Jenkins Construction, to oversee some of the work.  While conducting a pre-demolition inspection of one of the Cass Tech buildings, Richard Beavers, an employee of Jenkins, sustained a serious injury.  Beavers filed suit to recover damages against certain members of the DPSPMT in the Wayne County Circuit Court in Detroit.  The DPSPMT and its insurance company then filed suit against Jenkins Construction’s insurance company, Valley Forge Insurance Company.  They claimed that Valley Forge should defend the DPSPMT members in the Wayne County Circuit Court case and pay any damages awarded to Beavers in that case.

The declaratory judgment action with regard to insurance coverage was tried in the U. S. District Court for the Eastern District of Michigan.  After considering the testimony of witnesses and reviewing exhibits, the judge in the U.S. District Court case issued his Findings of Fact and Conclusions of Law on March 28, 2011.  He decided the case in favor of Valley Forge indicating that Valley Forge owed no insurance coverage in the Wayne County case filed by Beavers.  This outcome was a complete victory for the firm’s client, Valley Forge.  Jim Thome represented Valley Forge in the federal court case.  Detroit Public Schools, Program Management Team and Lexington Insurance Company -vs- Valley Forge Insurance Company, U. S. District Court for the Eastern District of Michigan, Case No. 2:09-cv-11915
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TOM PETERS, JIM THOME, WILLIAM KIRIAZIS, DANIEL STEELE, 
JOHN LYNCH AND DAVID TIMMIS NAMED “SUPER LAWYERS” AGAIN

William Kiriazis (Construction Litigation), James Thome (Commercial Litigation) and David Timmis (Commercial Litigation) will be included in the upcoming SUPER LAWYERS BUSINESS EDITION, a national publication honoring attorneys who have been selected by their peers for demonstrating a high level of skill and expertise in their area of practice.

The following attorneys were recognized in the most recent edition of Michigan Super Lawyers: Daniel Steele (General Litigation); John Lynch (Alternative Dispute Resolution); Donald Brownell (Insurance Litigation); and Thomas Peters (Insurance Litigation). Additionally, Anthony Kostello (Construction Litigation) and Timothy Connaughton (General Litigation) were listed as “Rising Stars”, a similar recognition for excellence demonstrated by attorneys under the age of 40 years old.

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NICOLAS VESPRINI NAMED SHAREHOLDER OF THE FIRM

The firm is proud to announce that Nicolas Vesprini has been named a shareholder of the firm in 2011.  Congratulations to Nico.

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TOM PETERS, JIM THOME, WILLIAM KIRIAZIS, DANIEL STEELE, 
JOHN LYNCH AND DAVID TIMMIS NAMED “SUPER LAWYERS” 2010

Super Lawyers is a service conducted by the publishers of Law & Politics.  Super Lawyers identifies the top 5 percent of attorneys in the state as chosen by their peers and through the independent research of Law & Politics.

Law & Politics mailed more than 30,000 ballots to active attorneys in Michigan recently asking those attorneys to nominate the best lawyers that they have personally observed.  Each candidate who was nominated was then researched and evaluated.  Peer recognition and personal achievement were primary factors in this process.  Candidates were then evaluated again by a blue ribbon panel of preeminent peers in their practice areas.  An attorney who was finally selected in this process was then designated a “Super Lawyer”.  No more than 5 percent of Michigan attorneys were selected for this honor.

Thomas M. Peters was designated a Super Lawyer in the practice area of Personal Injury Defense.  James K. Thome was designated a Super Lawyer for Construction Litigation. William L. Kiriazis was designated for Construction litigation as well.  Daniel P. Steele, John J. Lynch and David B. Timmis were named Super Lawyers for General Litigation. 

Tom’s areas of practice include Transportation, Trucking and Highway Liability, Alternate Dispute Resolution and Insurance Coverage and Indemnity Law.  

Along with Construction Law and Litigation, Jim also concentrates his practice in the areas of Intellectual Property and Trademark Litigation and Employment Law and Litigation.  

Bill's areas include Construction Law and Litigation, Aviation Law and Litigation, Design Professional Representation and Product Liability.

Dan focuses on Motor Vehicle Law and Litigation, Employment Law and Litigation, Construction Law and Litigation, Aviation Law and Litigation, and Product Liability.

John specializes in  Alternative Dispute Resolution, Construction Law, Professional Liability, Governmental and Mass Transit Liability and Litigation.

Dave practices in the areas of Motor Vehicle Law and Litigation, Business and Commercial Litigation, Employment Law and Litigation, and Product Liability

Timothy Connaughton and Anthony Kostello have again been named Rising Stars for 2010.
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DEFENSE VERDICT IN THIRD PARTY AUTO NEGLIGENCE CASE
IN SANILAC COUNTY

A Sanilac County jury recently returned a verdict of “No Cause of Action,” in favor of Nicolas Vesprini’s client, finding Plaintiff did not suffer a serious impairment of a body function.  Mr. Vesprini’s client admitted liability for a rear-end automobile accident, from which Plaintiff alleged to have suffered multiple injuries including migraines, neck and back pain, depression, anxiety and post-traumatic stress disorder.

Plaintiff testified that due to her alleged injuries she was restricted in her work activities and unable to perform various day-to-day tasks.  Nico presented evidence that there was a lack of objective findings to correlate to Plaintiff’s ongoing complaints of pain.  Further, he presented the testimony of a neuropsychologist, who opined that Plaintiff’s alleged cognitive and emotional injuries did not affect Plaintiff’s general ability to lead her normal life.

At the conclusion of trial, the jury agreed with Defendant, finding that Plaintiff did not suffer a serious impairment of a body function.

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“NO CAUSE” DEFENSE VERDICT RETURNED IN MACOMB COUNTY 
DOG BITE CASE

Nicolas Vesprini recently received a defense verdict at the conclusion of a trial in Macomb County Circuit Court based upon a finding that his client was not negligent, and therefore not liable for the dog bite injury suffered by Plaintiff.  Mr. Vesprini’s client was the owner/landlord of the home where the bite occurred.  Plaintiff, a contractor, alleged that he went to the home at the request and direction of Defendant to complete measurements for work to be performed to Defendant’s home.

Plaintiff alleged that while he was in the backyard, he was bitten by a tenants’ dog, which Plaintiff alleged was vicious and aggressive with a history of similar behavior.  Plaintiff also alleged that Defendant knew of the dog’s dangerous propensities and failed to warn Plaintiff of the danger.  Defendant argued that he did not have any ownership or possessory interest in the dog, and had no control of the dog.

Further, Defendant denied that he told Plaintiff to go to the home, testifying that no agreement for the work had been reached and that he would not have instructed Plaintiff to go his tenants’ property without Defendant or the tenants present. Defendant also denied Plaintiff’s contention that he knew of the dog’s alleged vicious propensities.

Based upon the evidence presented, the jury agreed with the Defendant, finding that he was not negligent.

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WILLIAM L. KIRIAZIS AND JAMES K. THOME DESIGNATED “SUPER LAWYERS” FOR CORPORATE LITIGATION

Bill Kiriazis and Jim Thome have been named “Super Lawyers” in the 2010 edition of Super Lawyers, Corporate Counsel Edition.  The Super Lawyers, Corporate Counsel Edition lists the “Top Attorneys in Corporate Litigation” from throughout the United States. Super Lawyers is a service administered by Law and Politics that uses surveys to identify top attorneys in particular legal practice areas. 

Both Bill and Jim have been designated Super Lawyers for the state of Michigan in the practice area of Construction Litigation.

Jim currently holds the title of firm President and Bill is the Managing Partner of Vandeveer Garzia. 

Among other practice areas, both Bill and Jim specialize in Construction Law and Litigation.

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FAVORABLE DEFENSE VERDICT IN OAKLAND COUNTY RECKLESS MISCONDUCT CASE
 
Nicolas Vesprini and Lauren Wawrzyniak recently prevailed in trial, receiving a jury verdict of “no cause of action,” finding that their client was not liable for injuries Plaintiff suffered during a game of soccer.  At trial, Plaintiff requested an award of $90,000.  Plaintiff alleged that while playing in the soccer game, Defendant (a player on the opposing team) “sucker punched” him, breaking his jaw.  Defendant maintained that Plaintiff’s broken jaw was the result of an accidental elbow resulting from the players jostling for position to make a play on the ball and was an ordinary part of the game of soccer.  It is Mr. Vesprini’s and Ms. Wawrzyniak’s opinion that the jury found that Plaintiff was not credible, both with regard to the manner in which the incident occurred and the extent of his damages, given that they were able to bring out inconsistencies in his testimony at trial as compared to his testimony in deposition, testimony of other witnesses, and his own medical records.  Based upon the evidence presented, the jury found that Defendant’s actions were not reckless, and did not exceed the bounds of conduct or inherent risks associated with the game of  soccer.

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FAVORABLE VERDICT IN MACOMB COUNTY BREACH OF CONTRACT CASE

David Timmis and Timothy Connaughton recently prevailed at trial on a breach of contract action in Macomb County Circuit Court.  The last offer by the Defendant prior to trial was $17,500.00.  The jury returned a verdict of $240,000.00.  Mr. Timmis and Mr. Connaughton are of the belief that the jury was convinced that the representatives of the Defendant were less than forthright in their testimony about meeting their contractual obligations.  This was the result of extensive preparation that resulted in an effective cross-examination of each of the Defendant’s witnesses, which in turn resulted in numerous misstatements of fact and conflicting testimony from the Defendant’s witnesses.  An appeal is likely, but Mr. Timmis and Mr. Connaughton remain confident that the Court of Appeals will uphold the verdict, which was justified by the facts and circumstances involved in this breach of contract action.

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FIRM WINS DISMISSAL OF EMPLOYMENT CASE

Shortly after the firm’s client, a steel casting company, hired the plaintiff as a Production Manager, he sustained an injury on the job.  After the plaintiff recovered from his injury and a physician indicated that he was able to return to work without restrictions, the company terminated his employment for poor performance.  The plaintiff then sued the firm’s client in the Wayne County Circuit Court alleging violations of the Michigan Worker’s Disability Compensation Act and the Michigan Persons with Disabilities Civil Rights Act.

After depositions of the plaintiff and others, the firm brought a motion for summary disposition asking the court to dismiss the case on the grounds that there was no genuine issue of material fact that the plaintiff’s claims lacked merit.  The judge agreed and granted the motion. 

The plaintiff has appealed the trial court’s decision in Leinninger v Delray Steel Casting, Wayne County Circuit Court case number 06-628405-NZ.  The defendants have filed a motion to assess costs and attorneys’ fees against the plaintiff.

James K. Thome supervised the case for the firm’s clients.    

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TRIAL/RESOLUTION DURING JURY DELIBERATIONS - IMPORTANCE OF TIMELY FILING OF
NOTICE OF NONPARTY FAULT

Mr. David Timmis recently tried a case on behalf of a national product manufacturer and a national retailer in the County of Oakland.  Despite a Case Evaluation that was weighted significantly against the product manufacturer and the retailer, the proofs presented at the time of trial convinced a co-defendant, the manufacturer of the display on which the products were situated, to pay all but a nominal portion of the resolution of the claim.  The agreement to resolve the claim occurred after the jury had commenced deliberations. 

The significance of the decision of the manufacturer of the display, to pay all but a nominal portion of the settlement figure, is that it is important to consider nonparties potentially at fault at the outset of the litigation.  The manufacturer of the display was not initially named as party by Plaintiff’s counsel. Upon the filing of a Notice of Nonparty Fault and as the result of the urging of Mr. Timmis, the Plaintiff’s attorney amended the original Complaint to include the display manufacturer as a Defendant.  Without the display manufacturer as a co-defendant, the product manufacturer and the retailer would likely have been found responsible for the Plaintiff’s injuries.

APPEAL/CONTRACTS/ALLEGED CONDITION
PRECEDENT MUST BE STRICTLY CONSTRUED

Mr. David Timmis recently received a favorable ruling from the Michigan Court of Appeals in a contract action involving the attempted purchase of a car dealership.  The Plaintiff signed an agreement with the Defendant that would entitle the Plaintiff to a significant fee if the Plaintiff was able to enter a Purchase Agreement with the owner of a car dealership, then transfer his rights in the Purchase Agreement to the Defendant.  The Plaintiff entered into the Purchase Agreement with the owner of the car dealership, then transferred his interest in the Purchase Agreement to the Defendant.  The subject agreement provided as follows: 

Meagher agrees to execute in escrow such documents as are necessary to convey any and all interest, right and title in the established LLC and its assets to LaFontaine.  For and in consideration of the conveyance of this interest, LaFontaine agrees to make payment to Meagher the sum of Two Hundred Thousand Dollars ($200,000.00) in cash at the closing of the dealership.

The Defendant claimed that the phrase “at the closing” constituted a “condition precedent”, and relied on this position to avoid paying the Plaintiff, as the Defendant never closed on the purchase of the dealership.  The Court of Appeals disagreed with  the Defendant’s position and held that the “clear language (of the agreement between Mr. Meagher and Mr. LaFontaine) … conditions payment on Plaintiff’s conveyance of his interest and not a closing of the purchase”.  The Court further commented that “courts are not inclined to construe stipulations of a contract as conditions precedent unless compelled by the language of the contract.”  Click here for text of unpublished opinion

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