A parent's failure to prevent harm to his/her child.

In People v Borom, __ Mich __ (#146714, 5/29/2013) the Michigan Supreme Court remanded to the Court of Appeals for consideration, as on leave granted, of: (1) whether a parent’s failure to act to prevent harm to his or her child satisfies the requirement for a knowing or intentional act under the first-degree child abuse statute, MCL 750.136b(2), in light of MCL 750.136b(3) that separately punishes omissions and reckless conduct as second-degree child abuse; (2) if so, whether the failure to prevent a person who may be dangerous to the child to have contact with the child violates the first-degree child abuse statute; (3) whether there is a common law duty of a parent to prevent injury to his or her child; and, (4) assuming that there is such a duty under the common law, whether aiding and abetting under MCL 767.39 can be proven where the defendant failed to act according to a legal duty, but provided no other form of assistance to the perpetrator of the crime.

Of specific interest is whether there is a common law duty, and with what effect.

Rosy Relief in Sight for the Plan in CGI Technologies & Solutions v Rose; Guest blog by Emily Hootkins (Hoort)

April 25, 2013 | Posted by Emily Catherine Hootkins | Topic(s): Benefit Claims & Claims Process Litigation, Other Interesting Cases & Issues

On April 22, 2013, the Supreme Court granted the petition for a writ of certiorari in CGI Technologies & Solutions v. Rose, et al., and then immediately vacated and remanded the Ninth Circuit’s judgment in light of US Airways, Inc. v. McCutchen, No. 11-1285, 2013 WL 1567371 (U.S. Apr. 16, 2013).

In McCutchen, the Supreme Court issued a two-part opinion in which it held that (1) equitable principles cannot override clear plan terms, but (2) equitable principles can be used to construe ambiguous or missing plan terms.

Last June, we blogged about CGI Technologies & Solutions v. Rose after the Ninth Circuit ruled that equitable defenses (such as the common-fund rule) can trump express contractual language in lawsuits seeking “appropriate equitable relief” under ERISA § 502(a)(3). 683 F.3d 1113 (9th Cir. 2012). The facts of this case are quite similar to McCutchen. Thus, it is not surprising that the Supreme Court simply vacated and remanded with a reference to its recent opinion in McCutchen.

In CGI Technologies & Solutions v. Rose, plaintiff Rhonda Rose was seriously injured in a car accident. Her ERISA-governed employee welfare benefits plan paid about $32,000 in her ensuing medical expenses. Rose later recovered $376,906.84 from the third party tortfeasor and her automobile insurance provider. After Rose’s recovery, CGI sought reimbursement of the full $32,000 the plan had paid in medical expenses in accordance with the plan’s subrogation and reimbursement provisions. When Rose refused to reimburse the plan in full (she later argued that any reimbursement must be reduced by the make-whole and common fund doctrines), CGI filed suit seeking “appropriate equitable relief,” under ERISA § 502(a)(3) in the form of a constructive trust and/or equitable lien.

At this point, the facts of CGI Technologies & Solutions v. Rose seem quite similar to McCutchen, and it may appear that these two cases will face similar fates on remand. However, we actually expect opposite results on remand of these two cases due to the Supreme Court’s two-part opinion in McCutchen.  Unlike in McCutchen, the plan in CGI Technologies & Solutions v. Rose expressly disclaims the common-fund doctrine and requires full reimbursement to the plan regardless of whether the beneficiary is made whole by their recovery. Thus, on remand under McCutchen, the Ninth Circuit must not consider equitable doctrines such as the common-fund or make-whole rules. Instead, the Ninth Circuit must stick to part-one of McCutchen, namely that the express terms of the plan trump any conflicting equitable principles.

This case is a good example of the importance of unambiguous plan provisions. Here, because the plan expressly disclaims the common-fund and make-whole doctrines, there is no need for the Ninth Circuit to reach part-two of McCutchen, where equitable principles may be considered to fill in plan gaps.

Tripling the amount of restitution in a criminal case.

In People v Lloyd, __ Mich App __ (#310355, 5/14/2013) defendant assaulted the victim by striking her in the eye with a high-heeled shoe. The victim lost her eye and now wears a prosthetic. The prosecution charged defendant with assault with intent to do great bodily harm less than murder, MCL 750.84, and assault with a dangerous  weapon, MCL 750.82. The jury found defendant guilty of the lesser-included offense of misdemeanor assault.  At sentencing, the victim testified that the assault has left her emotionally, physically, and financially devastated. Plaintiff requested $42,187.21 in actual restitution pursuant to MCL 780.766(2), and asked the court to triple the award pursuant to MCL 780.766(5). The trial court agreed and ordered restitution in the amount of $126,561.63.

On appeal defendant argued that the trial court should not have ordered three times the amount of restitution under MCL 780.766(5), which states, “If a crime resulting in bodily injury also results in the death of a victim or serious impairment of body function of a victim, the court may order up to 3 times the amount of restitution otherwise allowed under this section.” As used in this subsection, “serious impairment of body function of a victim” includes loss of an eye.  Because there is no dispute that the victim suffered a serious impairment of a body function, the trial court was authorized to order restitution under this section of the statute. Significantly, the plain language of the statute gives the trial court discretion to order as much as triple the amount of any other restitution allowed, but neither limits nor specifies what the trial court may consider in exercising the discretion to do so.