Claims against County Prosecutor Dismissed; Immunity Applied

Greg Grant from our Traverse City office recently defended a Michigan county prosecutor in a civil case in Circuit Court.

The plaintiff in the case was a former criminal defendant who was charged with felony animal cruelty after it was alleged by a complaining witness that the plaintiff shot her dog multiple times with a pistol.  The plaintiff vehemently denied the allegations.  The plaintiff was found not guilty at the criminal trial.  After trial, the plaintiff was charged with three counts of possessing unregistered firearms that were discovered during a search of his home by police.  He accepted responsibility for the firearms and paid a fine.

The plaintiff subsequently filed a lawsuit against the county prosecutor alleging various deprivations of his constitutional rights.  Specifically, the plaintiff alleged that the prosecutor violated his Fourth Amendment right by knowingly preparing a search warrant that lacked the requisite probable cause.  He also brought a claim of malicious prosecution arguing that the prosecutor charged him with the three unregistered firearms in retaliation after his acquittal at trial.

In the civil case, Mr. Grant successfully argued that the prosecutor was entitled to absolute prosecutorial immunity pursuant to statute and the common law.  Mr. Grant explained to the Court that the prosecutor’s advocatory actions were conducted in connection with initiating and pursuing a criminal prosecution, thereby entitling him to immunity.  The Circuit Court agreed and dismissed the prosecutor from the case with prejudice.

Greg Grant, an attorney in our Traverse City office, concentrates his practice on municipal law, labor and employment law, insurance defense, and commercial litigation. Additionally, he has successfully represented judges, prosecutors, and public defenders.  He can be reached at (231) 922-1888 or at ggrant@cmda-law.com.

City Not Liable for Disclosure of Involuntary Statements by Former Police Officers

The Michigan Court of Appeals recently decided a case involving two consolidated appeals raising an issue of first impression.  The plaintiffs, both former police officers with a municipality in southwest Michigan, sued the city and their Director of Public Safety alleging that the defendants violated MCL 15.395.  Both plaintiffs had been the subject of an internal affairs investigation, and alleged that they were required to make “involuntary statements” as part of the internal investigation.  The plaintiffs claimed that subsequent statements made by the Director of Public Safety to the media were prohibited disclosures of involuntary statements in violation of MCL 15.395.

The statute at issue was adopted by the Michigan Legislature following the U.S. Supreme Court’s decision in Garrity v New Jersey, which held that forced statements obtained from police officers during an internal investigation could not later be used in criminal proceedings brought against the officers.  The Michigan statute goes further and provides that an involuntary statement made by a law enforcement officer is confidential and not open to public inspection, except under four specifically enumerated exceptions.

In affirming the lower court’s dismissal of the plaintiffs’ claims, the Court of Appeals found that not only were the defendants entitled to governmental immunity, but the statute in question does not expressly create a cause of action for damages, and Michigan law does not permit a court to infer a cause of action against a governmental defendant.

Edward Salah, an attorney in our Livonia office, concentrates his practice on municipal law, insurance defense and utility law. He can be reached at (734) 261-2400 or esalah@cmda-law.com.

Insureds and Insurers Must Carefully Read their Insurance Policies

In two seminal opinions, Wilkie v Auto-Owners Ins. Co. and Rory v Continental Ins. Co., the Michigan Supreme Court emphatically confirmed that insurance contracts are to be enforced by the courts “as written.”  The parties to an insurance contract remain free to waive or modify the terms of the contract by mutual consent, but one party cannot demand enforcement of an insurance contract, contrary to the mutually agreed terms, based upon that party’s unilateral belief that the contract has a meaning different than what the mutually agreed terms actually provide.  In particular, the insured is bound by the agreed terms, despite the reality that most insureds must accept their insurance contracts as offered by an insurer, with no genuine opportunity to negotiate the coverage terms.

Yet under these mandates, both the insured and the insurer must be careful to read the insurance contract between them.  An insurer is obligated to know the terms of their insurance policy and will be bound to those terms, even if they fail to read them.  On the other hand, in the absence of fraud by the insured, the insurer is equally bound to the terms of the insurance policy; the insurer must specifically describe those exclusions and conditions in the policy in unambiguous terms.  Ambiguous terms in an insurance policy (i.e., terms that are capable of conflicting interpretations based upon the words used) may be interpreted against the insurer, if there is no demonstrable, external evidence that the insured and insurer had mutually agreed to one particular meaning for the ambiguous term.

Insurance sales and claims representatives need to be particularly aware of the actual language of the insurance policies with which they deal because the policy terms may prove overly generalized or even ambiguous in specific factual situations.  This is particularly true because policy terms are often drafted by the Insurance Services Office (an association of insurers that develops standard policy forms) rather than an individual insurer.  Insurers, as much as their insured, are at risk of finding their expectations regarding the meaning of terms of an insurance policy rejected by the courts if these expectations are not based upon a careful reading of the language of the insurance contract.


Douglas Curlew, an attorney in our Livonia office, concentrates his practice on appeals, premises liability and insurance law.  He can be reached at (734) 261-2400 or dcurlew@cmda-law.com.

Attorney Guest on Blessed 2 Play Show

Jim Acho, a senior attorney in our Livonia office, was a guest on Ron Meyer, Jr’s show Blessed to Play on Friday, May 2, 2014. Mr. Acho spoke on sports law cases and intersecting faith and sports. The show aired on 230 affiliate radio stations throughout North America on Sirius XM 130, on IHeart Radio, and ROKU applications.

To listen to an archive of the show, please visit http://blessed2play.com/show-archives.