Frank Mayer v. City of Clarksburg

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS DEBRA B. FORD, UNPUBLISHED June 20, 2025 Plaintiff-Appellant, 12:09 PM v No. 371805 Calhoun Circuit Court CITY OF MARSHALL, BAILEY EXCAVATING, LC No. 2020-000348-NO INC., LIBERTA CONSTRUCTION COMPANY, doing business as CIOFFI & SON CONSTRUCTION, and GIVE-EM A BRAKE SAFETY, LLC, Defendants, and CONSUMERS ENERGY COMPANY, Defendant-Appellee. Before: BOONSTRA, P.J., and REDFORD and MARIANI, JJ. BOONSTRA, P.J. (concurring). I fully concur in the majority opinion. I write separately to offer additional reasons to affirm the trial court’s order granting summary disposition in favor of defendant Consumers Energy Company. Plaintiff continues to advance the argument that her claim against Consumers sounded in ordinary negligence. But whether plaintiff’s claim sounds in negligence or in premises liability is determined by considering the plaintiff's complaint as a whole, regardless of the labels attached to the allegations by the plaintiff. Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc, 336 Mich App 616, 625; 971 NW2d 716 (2012).. And the nature of a claim (as either premises liability or ordinary negligence) is generally determined by the nature of the hazard itself. As we held in Ford -1- v City of Marshall, unpublished per curiam opinion of the Court of Appeals, issued January 13, 2022 (Docket No. 355541) (Ford I), p 4: On appeal, plaintiff argues that her claim sounded in ordinary negligence rather than premises liability because Consumers lacked possession and control of the sidewalk on the date of plaintiff’s injuries. Plaintiff’s argument lacks merit. As already noted, the question of whether a claim sounds in premises liability or ordinary negligence hinges on the nature of the hazard. Buhalis, 296 Mich App at 692.[1] . . . [W]hether Consumers had possession and control of the sidewalk had no bearing on the nature of plaintiff’s claim, i.e., whether it sounded in ordinary negligence or premises liability. This Court has held that, in certain situations, a contractor whose negligent workmanship creates a hazardous condition on the land may be held liable not only to its contractee, but also in negligence to third parties who later incur foreseeable harm upon encountering the hazard. See Kapalczynski v Globe Construction Co, 19 Mich App 396, 403 n 10; 172 NW2d 852 (1969) (citing 2 Restatement Torts, 2d, § 385, p 293); Feaster v Hous, 137 Mich App 783, 789; 359 NW2d 219 (1984). This potential for liability arises after the contracted-for work has been completed and accepted by the premises possessor, and is based on the contractor’s negligent performance of a contractual duty. See Feaster, 137 Mich App at 789. By contrast, contractors who are currently engaged in contractual duties with respect to the land on behalf of the premises possessor/owner are “subject to the same liability, and enjoy[] the same freedom from liability, as though [they] were the possessor[s] of the land . . . .” Finazzo v Fire Equipment Co, 323 Mich App 620, 626; 918 NW2d 200 (2018).2 Effectively, the premises possessor has “loaned” possessory rights to the contractor. Id. at 627-628, citing Orel v Uni-Rak Sales, Co, Inc, 454 Mich 564, 567 n 2; 563 NW2d 241 (1997) and Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 269; 235 NW2d 732 (1972) (“This ‘loaning’ gives a quantum of ‘control and possession’ to another party.”). This Court in Finazzo noted that “our Supreme Court has explicitly recognized the principles underlying the rule set forth in 2 Restatement Torts, 2d, §384, p 289,” which provides: One who on behalf of the possessor of land erects a structure or creates any other condition on the land is subject to the same liability, and enjoys the same freedom from liability, as though he were the possessor of the land, for physical harm caused to others upon and outside of the land by the dangerous character of the structure 1 Buhalis held that “If the plaintiff’s injury arose from an allegedly dangerous condition on the land, the action sounds in premises liability rather than ordinary negligence; this is true even when the plaintiff alleges that the premises possessor created the condition giving rise to the pla

NUMBER 13-25-00278-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG IN RE CMG3, LLC D/B/A USA FOUNDATION REPAIR ON PETITION FOR WRIT OF MANDAMUS MEMORANDUM OPINION Before Chief Justice Tijerina and Justices West and Cron Memorandum Opinion by Justice Cron1 By petition for writ of mandamus, relator CMG3, LLC d/b/a USA Foundation Repair contends that the trial court abused its discretion by disqualifying its counsel of record, Stephen P. Carrigan and Carrigan & Anderson, PLLC, in the underlying personal injury lawsuit. 2 1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 47.4 (distinguishing opinions and memorandum opinions). 2 This petition for writ of mandamus arises from trial court cause number 2022CCV-61423-3 in the County Court at Law No. 3 of Nueces County, Texas. Relator filed a related appeal from this same trial court proceeding which is docketed in our appellate cause number 13-25-00248-CV. By separate  Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem. Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that: (1) the trial court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). When a trial court abuses its discretion by granting a motion to disqualify counsel, appeal is an inadequate remedy. In re Murrin Bros. 1885, Ltd., 603 S.W.3d 53, 57 (Tex. 2019) (orig. proceeding); In re Turner, 542 S.W.3d 553, 555 (Tex. 2017) (orig. proceeding) (per curiam); In re Guar. Ins. Servs., Inc., 343 S.W.3d 130, 132 (Tex. 2011) (orig. proceeding) (per curiam); In re Cerberus Cap. Mgmt., L.P., 164 S.W.3d 379, 383 (Tex. 2005) (orig. proceeding) (per curiam); In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding) (per curiam); NCNB Tex. Nat’l Bank v. Coker, 765 S.W.2d 398, 400 (Tex. 1989) (orig. proceeding). Consequently, the “pertinent inquiry” in such cases is whether the trial court abused its discretion by disqualifying counsel. See In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding) (per curiam). The Court, having examined and fully considered the petition for writ of mandamus, the response filed by real party in interest Ismael Perez, the record provided, and the memorandum opinion issued on this same day, we have dismissed that appeal for want of jurisdiction. See CMG3, LLC v. USA Found. Repair v. Perez, No. 13-25-00248-CV, 2025 WL _____, at *__ (Tex. App.— Corpus Christi–Edinburg June __, 2025, no pet. h.) (mem. op.). 2 applicable law, is of the opinion that relator has not met its burden to obtain relief. See In re Turner, 542 S.W.3d at 555–58. Accordingly, we lift the stay previously imposed in this case. See TEX. R. APP. P. 52.10(b) (“Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided.”). We deny the petition for writ of mandamus. JENNY CRON Justice Delivered and filed on the 23rd day of June, 2025. 3

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA FILED Spring 2025 Term June 4, 2025 _____________________ released at 3:00 p.m. ASHLEY N. DEEM, CHIEF DEPUTY CLERK INTERMEDIATE COURT OF APPEALS No. 24-ICA-269 OF WEST VIRGINIA _____________________ UNION CARBIDE CORPORATION, a subsidiary of THE DOW CHEMICAL COMPANY, Employer Below, Petitioner, v. CHRISTINA DEARIEN (Decedent) and THOMAS DEARIEN (Dependent), Claimant Below, Respondent. ___________________________________________________________ Appeal from the West Virginia Workers’ Compensation Board of Review JCN: 2022005028 AFFIRMED _________________________________________________________ Submitted: April 30, 2025 Filed: June 4, 2025 Timothy E. Huffman, Esq. R. Dean Hartley, Esq. Jackson Kelly PLLC Hartley Law Group, PLLC Charleston, West Virginia Wheeling, West Virginia Counsel for Petitioner Counsel for Respondent JUDGE GREEAR delivered the Opinion of the Court. JUDGE WHITE concurs and reserves the right to file a separate opinion. GREEAR, Judge: Petitioner, Union Carbide Corporation, a subsidiary of the Dow Chemical Company (“Carbide”), appeals the May 30, 2024, order of the West Virginia Workers’ Compensation Board of Review (“Board”) granting fatal dependent’s benefits (“dependent benefits”) to Thomas Dearien, husband of Christina Dearien (“decedent”). On appeal, Carbide argues that the Board erred by granting Mr. Dearien such benefits, as his claim was barred by the West Virginia Workers’ Compensation Office of Judges’ (“OOJ”) final order affirming the rejection of the decedent’s claim for occupational disease benefits made during her lifetime. Further, Carbide contends that the Board’s final order was clearly wrong in view of the reliable, probative, and substantial evidence on the record. After our review of the record and applicable law, we affirm the Board’s May 30, 2024, order. I. FACTUAL AND PROCEDURAL BACKGROUND On March 11, 2019, the decedent filed an application for workers’ compensation benefits (“living claim”) against Carbide, claiming that she was diagnosed with colon cancer, an occupational disease, while employed by Carbide.1 A review of the decedent’s medical records was conducted, in relation to her living claim, by Mohammed Ranavaya, M.D. Dr. Ranavaya concluded that no credible or reliable evidence existed to establish that the decedent’s diagnosis of colon cancer was causally related to her 1 The decedent’s living claim was assigned claim number 2019020262-OD. While employed at Carbide, from 2006 to 2018, decedent worked in various job positions including a weighmaster, operator, and scheduling technologist. 1 employment at Carbide. Based upon the opinion of Dr. Ranavaya, the claim administrator (“CA”) denied the decedent’s living claim by order entered on June 5, 2020. The decedent timely filed a protest of this determination to the OOJ. On August 24, 2021, counsel for the decedent submitted a request to withdraw the protest due to the decedent’s death on June 2, 2021. By Order dated August 27, 2021, the OOJ dismissed the protest based upon the motion to withdraw.2 On September 10, 2021, Mr. Dearien filed an application for dependent benefits, pursuant to West Virginia Code § 23-4-10 (2010), and argued that the decedent “developed colorectal cancer as a result of her exposure to toxic chemicals” while employed by Carbide.3 On September 24, 2021, the CA rejected Mr. Dearien’s application for dependent benefits based on Dr. Ranavaya’s prior report, which found no direct causal connection between the decedent’s diagnosis of colon cancer and her employment with Carbide. Further, the CA concluded that the dependent’s claim was barred by the principle of collateral estoppel. According to the CA, the OOJ’s August 27, 2021, final order dismissing the protest of the decedent’s living claim constituted a final resolution to the 2 In its Order Dismissing Protest, the OOJ found that upon consideration of the decedent’s motion to withdraw

No. 24-ICA-269 – Union Carbide Corporation, a subsidiary of the Dow Chemical Company v. Christina Dearien (decedent) and Thomas Dearien (dependent) FILED June 4, 2025 WHITE, Judge, concurring: ASHLEY N. DEEM, CHIEF DEPUTY CLERK INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA I wholeheartedly concur with the majority’s opinion and its application of the doctrine of collateral estoppel espoused in State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). In the workers’ compensation system, a “claims administrator” is an insurance company employee who, whilst ostensibly applying West Virginia’s workers’ compensation laws and regulations to rule on a claimant’s claim, is also focused on protecting the interests of the insurance company and, indirectly, those of the claimant’s employer. The majority opinion deftly notes that a claims administrator “is not bound by the traditional rules operative to an adversary system” and does not issue decisions remotely on par with “a quasi-judicial determination of an administrative agency.” ___ W. Va. at ___, ___ S.E.2d at ___ (Slip. Op. at 9). Hence, to put the majority’s ruling succinctly: a ruling, assessment, decision, or any other pronouncement by a claims administrator cannot form the basis for collateral estoppel under Miller. This Court recognizes that its authority is limited to what is expressly provided by the Legislature. See W. Va. Code § 51-11-4 (2024). In line with the Legislature’s limitations, the majority opinion constrains its application of Miller and, upon establishing that Miller’s collateral estoppel rule does not apply to claims examiner decisions and that the lower tribunal’s decision was correct, it ends its analysis. 1  What leaves me troubled, however, is that this is the second time in a year that collateral estoppel has arisen at the appellate level in the context of workers’ compensation rulings. It also is the second time in a year that application of the collateral estoppel doctrine has been rejected. In our ruling today, we rejected an employer’s attempt to use an adverse claims administrator’s ruling against a living claimant to later preclude the claim of a dependent seeking benefits for the work-related death of that claimant. In Ruble v. Rust-Oleum Corporation, 250 W. Va. 324, 902 S.E.2d 873 (2024), the Supreme Court of Appeals of West Virginia (“SCAWV”) found, under the collateral estoppel guidelines of Miller, that a tortfeasor in a lawsuit could not use an adverse ruling against a workers’ compensation claimant to subsequently preclude the lawsuit by the claimant against the tortfeasor for injuries the claimant sustained on the job. The SCAWV found that because a workers’ compensation claim uses legal standards and procedural rules that are “substantially different from those in a courtroom,” a final ruling by a workers’ compensation judge does not have preclusive effect in a lawsuit. Id. at 326, 902 S.E.2d at 875. I write separately to underscore that, in cases like the one at bar, where there has been an adverse ruling against a living claimant, that adverse ruling has no preclusive effect on a subsequent claim for death benefits by the deceased claimant’s dependents. West Virginia law is clear: an adverse workers’ compensation decision against a living claimant has no collateral estoppel effect, and no res judicata effect, on a later claim for dependent’s benefits arising from the claimant’s work-related death. None. There are two 2 independent and separate rights of recovery under the Workers’ Compensation Act, both based on the same injury or disease: one for the worker during his or her lifetime, and another for the worker’s dependents after his or her death. The parties in the claims are different, the parties are not in privity, and their statutory rights are different. Put simply, the actions of an injured worker who litigates a workers’ compensation claim while alive will have no preclusive effect on the rights of the worker’s dependent survivors, should the worker die as a result of his or her work-related injury or disease. This is not just my opinion. For eight-and-a-half decades, the Supreme Court of Appeals of West Virginia (“SCAWV”) has found that a claim for workers’ compensation disability benefits by a living claimant, and a claim for death benefits by a deceased claimant’s dependents, “are not the same, nor is a claim for the latter