BEGIN v. MICHIGAN BELL TELEPHONE COMPANY
Docket Nos. 279891 and 284114
Court of Appeals of Michigan
June 25, 2009
284 Mich. App. 581
Docket Nos. 279891 and 284114. Submitted June 9, 2009, at Grand Rapids. Decided June 25, 2009, at 9:05 a.m.
Neil Begin brought an action in the Kent Circuit Court against Michigan Bell Telephone Company and it self-insurance claims manager, Sedgwick Claims Management Services, Inc., seeking payment as an allowable expense under the no-fault automobile insurance act,
Begin filed a separate complaint in the Kent Circuit Court against Michigan Bell four months after the entry of the consent judgment in his earlier action, asserting several theories of liability arising out of Michigan Bell‘s handling of the plaintiff‘s claims for workers’ compensation and no-fault benefits. One count alleged invasion of privacy-trespass. Three counts based on contract, estoppel, and statutory interpretation theories asserted a right to the payment of attendant care benefits in the manner used before Michigan Bell retained Sedgwick. A final count alleged intentional infliction of emotional distress. Michigan Bell moved for summary disposition, arguing that the claims were barred by the doctrine of res judicata and that the count for intentional infliction of emotional distress failed to state a claim on which relief can be granted. The court, Dennis B. Leiber, J., denied the motion. Michigan Bell appealed by leave granted the denial of its motion (Docket No. 284114). The appeals were consolidated.
The Court of Appeals held:
Michigan Bell waived its ability to contest both the reasonableness of the charge for the van and the reasonableness of the necessity for the van by agreeing to the entry of the consent judgment. In addition, the defendants did not properly preserve and present the issue for appellate review. - Davis held that under the facts of that case a van modified for the plaintiff in that case, who was rendered a paraplegic in a motor vehicle accident, was a reasonable and a reasonably necessary allowable expense under
MCL 500.3107(1)(a) . Davis also held that the three factors to establish an allowable expense under the statute are that the charge must be reasonable, the expense must be reasonably necessary, and the expense must be incurred. Griffith, which noted that the statute also required that an allowable expense must be for an injured person‘s care, recovery, or rehabilitation, did not overrule Davis, which remains binding precedential authority. - A product, service, or accommodation an injured person uses both before and after a motor vehicle accident may be an “allowable expense” no-fault benefit depending on the particular facts and circumstances involved. The fact that the plaintiff used a van before the accident does not prevent a finding that his use of a modified van after his accident was a reasonable charge, and that the van was a reasonably necessary product, service, or accommodation for his care. The trial court did not err by denying the defendants’ motion for summary disposition, which was based on the claim that if an injured person uses a product, service, or accommodation both before and after a motor vehicle accident, it cannot meet the causal relationship tests for an “allowable expense” no-fault benefit. The judgment in Docket No. 279891 must be affirmed.
- The plaintiff did not limit the relevant transaction for purposes of res judicata by allegedly narrowly drafting his first complaint to only address Michigan Bell‘s denial of his claim for reimbursement for the cost of the van as a no-fault benefit.
- The plaintiff could have, with reasonable diligence, brought his attendant care claims in his first lawsuit. These claims are barred by res judicata.
- The plaintiff‘s claim for intentional infliction of emotional distress could have been raised in his first lawsuit. The claim is barred by res judicata.
- The plaintiff failed to state a claim of invasion of privacy by intrusion upon seclusion. Michigan Bell did not obtain the plaintiff‘s personnel and pension information through an objectionable method. Michigan Bell had a right to investigate a party asserting
a liability claim against it, and the plaintiff did not allege that Michigan Bell obtained any secret or private information that the plaintiff had a right to keep private. - The plaintiff could have asserted the claim of intentional infliction of emotional distress in the first lawsuit by moving to include that claim in the action when the facts that the plaintiff claims support the claim were revealed during the course of discovery. The trial court erred by not granting Michigan Bell‘s motion for summary disposition under MCR 2.116 (C)(7) and (8) in Docket No. 284114. The order in that case must be reversed and the case must be remanded to the trial court for entry of an order granting summary disposition in favor of Michigan Bell.
Judgment in Docket No. 279891 affirmed. Order in Docket No. 284114 reversed and case remanded for entry of order of summary disposition for the defendant.
HOEKSTRA, J., concurring, agreed with the resolution of Docket No. 284114 and with the result in Docket No. 279891, but wrote separately to state his disagreement with the majority‘s conclusion that Davis is controlling in this case. The clarification of the construction of
Brinks & Associates (by Sharon R. Brinks and Nadine Renee Klein) for the plaintiff.
Lacey & Jones (by D. Michael McCann, Gerald M. Marcinkoski, and Michael T. Reinholm) for the defendants.
Before: JANSEN, P.J., and HOEKSTRA and MARKEY, JJ.
PER CURIAM. In Docket No. 279891, defendant Michigan Bell Telephone Company (defendant) and its self-
In Docket No. 284114, defendant appeals by leave granted the trial court‘s order denying its motion for summary disposition with respect to a complaint plaintiff filed after entry of the consent judgment in Docket No. 279891. The appeals were consolidated. Plaintiff asserts in his second lawsuit several theories of liability arising out of defendant‘s handling of plaintiff‘s benefits claims, including intentional infliction of emotional distress, invasion of privacy-trespass, and claims regarding the method of payment for attendant care expenses under theories of breach of contract, promissory estoppel, and statutory construction. Defendant argues that it should be granted summary disposition under MCR 2.116(C)(7) because plaintiff‘s claims in the second suit could have been brought in the first lawsuit regarding the van, and therefore are barred by the doctrine of res judicata. Defendant also argues that summary disposition of the claim for intentional infliction of emotional distress should be granted under MCR 2.116(C)(8) for failure to state a claim. Because we agree that defendant‘s arguments have merit, we reverse and remand for the entry of an order granting summary disposition in favor of defendant.
A party that waives an objection to a rule of practice or to evidence, stipulates to facts, or confesses judgment, generally cannot later claim the right to appellate review of those matters. Westgate v Adams, 293 Mich 559, 564; 292 NW 491 (1940). But this Court “has previously recognized that an appeal of right is available from a consent judgment in which a party has reserved the right to appeal a trial court ruling.” Travelers Ins v Nouri, 456 Mich 937 (1998). Nevertheless, unless an issue encompassed within the consent judgment has been specifically preserved for appeal, the general rule is that a party cannot stipulate a matter and then argue on appeal that the resulting action was error. Bonkowski v Allstate Ins Co, 281 Mich App 154, 168; 761 NW2d 764 (2008); see also Chapdelaine v Sochocki, 247 Mich App 167, 177; 635 NW2d 339 (2001) (“A party cannot stipulate a matter and then argue on appeal that the resultant action was error.“).
In this case, on July 6, 2007, the parties placed a settlement on the record providing, among other things, that defendant pay $25,059 for the van plaintiff had purchased. Since plaintiff‘s accident, defendant had purchased three other vans without any protest. In addition, defendant did not contest paying for modifications to the van to accommodate plaintiff‘s disabilities as a claim against its workers’ compensation liability. Plaintiff‘s counsel stated on the record that the parties’ settlement “does not waive Defendant‘s right to appeal from the judgment regarding the issues involving Griffith [v State Farm Mut Automobile Ins Co, 472 Mich 521; 697 NW2d 895 (2005)] and Davis [v Citizens Ins Co of America, 195 Mich App 323; 489 NW2d 214 (1992)] as set forth in the various motions and cross-motions that have been heard on a number of occasions,
The agreement regarding defendants’ reserved right to appeal is further delineated by review of the two specified motion hearings. At the hearing on August 4, 2006, the trial court received arguments of counsel on defendants’ motion for summary disposition under MCR 2.116(C)(8) and plaintiff‘s cross-motion for summary disposition under MCR 2.116(C)(10). Defendants argued in support of their motion under MCR 2.116(C)(8) as follows:
I believe the Supreme Court case of Griffith... does give the Court guidance on this. The Davis case, which is the Court of Appeals case cited by counsel, is really sua sponte overruled by Griffith. Griffith indicates that expenses which are the same for an uninjured person are now [sic, not] allowable under the No-Fault Act.
In ruling on the parties’ motions, the trial court reasoned:
Of this I am certain. The principle enunciated in Davis, in my opinion, is still viable and controlling. And for that reason I find Griffith distinguishable and inapplicable to this case, and I must respectfully deny the defense motion predicated under [MCR] 2.116(C)(8).
As to the [MCR 2.116](C)(10) motion brought by the plaintiff, again, in attempting to assess the issue presented, I do find this van in its totality represents a necessity because of the particularities of the plaintiff‘s condition and the necessity of having these accommodations in a vehicle adapted to meet his particular needs.
The second pertinent motion hearing was held on June 15, 2007, shortly before the case was scheduled for trial. During that hearing, the trial court addressed defense counsel, who was substituting for defendant‘s regular attorney because of illness.
The Court: Well, here‘s [the posture of the case] as I understand it. The plaintiff is a person who requires a van outfitted with certain accommodations, which are not in contest, and the Court ruled that this is a necessary part of his care.
After further colloquy during which defense counsel and the trial court agreed that the $2,600 for necessary accommodations to the van were not at issue because defendant paid for them as part of plaintiff‘s workers’ compensation claim, the trial court continued:
The Court: Right, they have been [paid already]-$2,600 or so-but it‘s not accommodations in a vacuum. It‘s accommodations and a new van, because an operable vehicle is part and parcel of his entitlement, and we‘re sort of at a crossroads here of not making any progress whatsoever.
After further colloquy between the trial court and counsel, the court stated to defense counsel:
But let me say this as clearly as I hope it can be communicated to Mr. McCann, whom I wish to be restored to health soon from whatever his malady or ailment.
I don‘t know if it was called upon me to make a decision with regard to this matter, or the basis upon which summary disposition was denied to plaintiff at the time, but it seems to me-very strong evidence here, that a new van, or a relatively new van since the plaintiff has possessed this
fourth van-seems to me that there‘s really no question that this is an absolute necessity, that the nature of the accommodations, of course, are important, but those accommodations would do nothing for the plaintiff unless he has a reliable vehicle to which they were attached, and reliable is critical because of the plaintiff‘s special needs, who depends on the van more than for transportation, but also to assist him in the manners described in the brief. And this is more than a matter in which an able-bodied person would regard a motor vehicle; this is a vehicle for which the plaintiff is solely dependent beyond transportation, but to attend to his daily living.
So the question is how soon will the defense recognize the obvious, and maybe it will take a trial for that purpose. But of course, with a trial, with which comes the potential of an uncertain result....
The trial court went on to deny the parties’ pending motions and set a firm trial date of July 23, 2007. But, as already noted, the parties placed their settlement on the record on July 6, 2007, providing, among other things, that defendant pay $25,059 for plaintiff‘s van. The consent judgment was entered July 19, 2007, and reserved to defendants the right to appeal the Griffith and Davis issues argued at the two specified motion hearings. In addition, the consent judgment also relates that defendants previously had waived affirmative defenses regarding the statute of limitations, the failure to mitigate damages, and “their Davis defense.” The meaning of the last defense is unclear. Plaintiff asserts in his brief that ”Davis defense” refers to the reasonableness of an allowable expense under
Additionally, although defendants’ brief on appeal refers to parts of plaintiff‘s deposition and argues against plaintiff‘s reasons for asserting that the van is reasonably necessary for his care, defendants’ presentation is totally inadequate to address those factual issues that were never formally decided by the factfinder below. A party may not leave it to this Court to search for the factual basis to sustain or reject its position, but must support its position with specific references to the record. MCR 7.212(C)(7); Derderian v Genesys Health Care Systems, 263 Mich App 364, 388; 689 NW2d 145 (2004). An appellant‘s failure to properly address the merits of an assertion of error constitutes abandonment of the issue. Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003); Yee v Shiawassee Co Bd of Comm‘rs, 251 Mich App 379, 406; 651 NW2d 756 (2002). Consequently, even if defendants did not formally waive contesting the evidentiary support for plaintiff‘s claim that the van was a reasonable charge and reasonably necessary for his care, they did so by agreeing to the consent judgment, or by failing to properly preserve and present the issue for appellate review.
Next, we consider defendants’ claimed entitlement to judgment as matter of law under Griffith and their reasoning that because plaintiff used a van for transportation before his injuries, plaintiff‘s motor vehicle accident injuries did not create his need for a van. We disagree. We do not read Griffith as establishing the bright-line rule defendants espouse; rather, entitlement to no-fault benefits is dependent on the facts and circumstances of each case.
In Davis, this Court reviewed the trial court‘s determination that the purchase price of a modified van was a reasonable and necessary expense under
We also find that the van was reasonably necessary. Transportation is as necessary for an uninjured person as for an injured person. However, the modified van is necessary in this case given the limited availability of alternative means of transportation. The ambulance service is limited
to Branch County, traveling outside the county two or three times a week. Although this service is available twenty-four hours a day, seven days a week, advance notice is preferred for clients who, like plaintiff, reside more than five miles from town. Moreover, because the ambulance service is the only one in the county, transportation could be delayed or unavailable because of medical emergencies. The local transit authority provides door-to-door service to clients who make advance reservations, but it is unavailable during evenings. The van allows plaintiff to travel outside the county for medical purposes and vacations. In addition, the van was reasonably necessary according to plaintiff‘s treating physician. He testified that when he discharged plaintiff, one of the requirements was that plaintiff use a van for her transportation, allowing her the independence to go to work. Under these circumstances, we find that the modified van is an allowable expense. [Id. at 327-328 (emphasis added).]
In Griffith, our Supreme Court held that food provided in a noninstitutional setting to a severely injured motor vehicle accident victim is not an “allowable expense” under the no-fault act because it “is neither ‘for accidental bodily injury’ under
Certainly, the Griffith Court clarified that the truncated test for allowable expenses under
Although the Griffith Court clarified judicial construction of both
Moreover, we reject defendants’ bright-line rule that if an injured person uses a product, service, or accommodation both before and after the person‘s motor vehicle accident, the person cannot for that reason meet the statutory causal relationship tests clarified in Griffith for an “allowable expense” no-fault benefit. Rather, the Griffith Court held that a product, service, or accommodation an injured person uses both before and after a motor vehicle accident might be an “allowable expense” no-fault benefit depending on the par-
Food costs in an institutional setting are “benefits for accidental bodily injury” and are “reasonably necessary products, services and accommodations for an injured person‘s care, recovery, or rehabilitation.” That is, it is “reasonably necessary” for an insured to consume hospital food during in-patient treatment given the limited dining options available. Although an injured person would need to consume food regardless of his injuries, he would not need to eat that particular food or bear the cost associated with it. Thus, hospital food is analogous to a type of special diet or select diet necessary for an injured person‘s recovery. Because an insured in an institutional setting is required to eat “hospital food,” such food costs are necessary for an insured‘s “care, recovery, or rehabilitation” while in such a setting. [Griffith, supra at 537 (emphasis in original).]
The Griffith Court also observed that “[f]ood expenses in an institutional setting are ‘benefits for accidental bodily injury,’ and are ‘reasonably necessary products, services and accommodations for an injured person‘s care, recovery, or rehabilitation,’ given the limited dining options available in hospitals.” Griffith, supra at 538 n 14. We find the Griffith Court‘s reasoning regard-
A further example cited by the Griffith Court illustrates the fact that our Supreme Court did not adopt the bright-line rule defendants urge. In explaining what “allowable expenses” might come within the term “care” as used in
We also note that the Griffith Court, when discussing the cost of food provided to an injured person in an institutional setting, did not suggest that only the marginal increase in the cost of such food served in an institutional setting would be an allowable expense. Nor did the Court suggest that only the marginal cost of modifying regular shoes would be a recoverable “allowable expense” under
Here, plaintiff alleged and presented evidence in support of his claim that a modified van was “causally connected to the accidental bodily injury arising out of an automobile accident.” Griffith, supra at 531. There is no dispute that plaintiff‘s injuries arose out of an accident that occurred while he was using a motor vehicle. Id.;
DOCKET NO. 284114
Defendant appeals by leave granted the trial court‘s order denying its motion for summary disposition under MCR 2.116(C)(7) and (8). Four months after the
We review de novo whether the doctrine of res judicata bars a subsequent action. Adair v Michigan, 470 Mich 105, 119; 680 NW2d 386 (2004). We also review de novo a trial court‘s ruling on a motion for summary disposition. Id. A motion for summary disposition under MCR 2.116(C)(7) asserts that a claim is legally barred. The motion may, but need not, be supported or opposed by affidavits, depositions, admissions, or other documentary evidence. Maiden, supra at 119. The allegations of the complaint are accepted as true unless contradicted by documentary evidence. Id. The motion is properly granted when the undisputed facts establish that the moving party is entitled to immunity granted by law. By Lo Oil Co v Dep‘t of Treasury, 267 Mich App 19, 26; 703 NW2d 822 (2005). A motion brought under MCR 2.116(C)(8) is based on the pleadings alone and must be granted where no factual development could justify the asserted claim for relief. Corley, supra at 277.
The parties do not seriously dispute that the consent judgment entered in Docket No. 279891 was decided on the merits, was a final judgment, and involved the same parties or their privies. Plaintiff weakly asserts that identity of the parties is lacking because Sedgwick is not a party to the second suit. This argument is without merit because plaintiff and defendant are parties to both the prior action and this one. And, there is no dispute that Sedgwick is defendant‘s agent with respect to plaintiff‘s claims for workers’ compensation and no-fault benefits. A privy of a party includes a person so identified in interest with another that he represents the same legal right, including, as in this case, a principal to an agent, or a master to a servant. Adair,
Michigan broadly applies the doctrine of res judicata to advance its purposes. Pierson Sand & Gravel, Inc v Keeler Brass Co, 460 Mich 372, 380; 596 NW2d 153 (1999). “As a general rule, res judicata will apply to bar a subsequent relitigation based upon the same transaction or events....” Id. Thus, under Michigan‘s broad approach to res judicata, the doctrine “bars not only claims already litigated, but also every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not.” Adair, supra at 121. There are two alternative tests for determining when res judicata will bar a claim in a second lawsuit because the claim could have, with the exercise of reasonable diligence, been brought in the first action: the “same transaction” test and the “same evidence” test. Id. at 124. The “same evidence” test looks to “whether the same facts or evidence are essential to the maintenance of the two actions.” Jones, supra at 401. As stated in Dart v Dart, 460 Mich 573, 586; 597 NW2d 82 (1999): “Res judicata bars a subsequent action between the same parties when the evidence or essential facts are identical.”
Michigan also applies the more inclusive “same transaction” test as an alternative method to determine whether res judicata will bar a subsequent claim. In Adair, supra at 124, the Court clarified the differences between the two tests by quoting at length from River Park, Inc v Highland Park, 184 Ill 2d 290, 307-309; 703 NE2d 883 (1998) (citations omitted):
“Under the ‘same evidence’ test, a second suit is barred ‘if the evidence needed to sustain the second suit would
have sustained the first, or if the same facts were essential to maintain both actions.’ The ‘transactional’ test provides that ‘the assertion of different kinds or theories of relief still constitutes a single cause of action if a single group of operative facts give rise to the assertion of relief.’
* * *
“Under the same evidence test the definition of what constitutes a cause of action is narrower than under the transactional test. As explained in the Restatement (Second) of Judgments, the same evidence test is tied to the theories of relief asserted by a plaintiff, the result of which is that two claims may be part of the same transaction, yet be considered separate causes of action because the evidence needed to support the theories on which they are based differs. By contrast, the transactional approach is more pragmatic. Under this approach, a claim is viewed in ‘factual terms’ and considered ‘coterminous with the transaction, regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff; * * * and regardless of the variations in the evidence needed to support the theories or rights.’ ”
Thus, under Michigan‘s broad application of res judicata applying the “same transaction” test, whether evidence necessary to support a first lawsuit differs somewhat from that necessary for subsequent claims will not be dispositive. Adair, supra at 124-125. Instead, “‘whether a factual grouping constitutes a “transaction” for purposes of res judicata is to be determined pragmatically, by considering whether the facts are related in time, space, origin or motivation, [and] whether they form a convenient trial unit. . . .’ ” Id. at 125, quoting 46 Am Jur 2d, Judgments, § 533, p 801 (emphasis in Adair).
In light of the broad application of the doctrine of res judicata and in furtherance of its purposes, we find
In applying the “same transaction” test for res judicata to plaintiff‘s claims in the second lawsuit, we first reject plaintiff‘s argument that he limited the “transaction” for purposes of res judicata by narrowly drafting his first complaint to only address defendant‘s denial of his claim for reimbursement for the cost of the van as a no-fault benefit. This argument flies in the face of the broad application of res judicata that bars “claims arising out of the same transaction that plaintiff could have brought but did not, as well as those questions that were actually litigated.” Jones, supra at 401. “A comparison of the grounds asserted for relief is not a proper test.” Id.
Next, we agree with defendant that plaintiff could have, with reasonable diligence, brought his attendant
The December 15, 1989, letter on which plaintiff bases his contract claim does not state whether attendant care benefits are payable as workers’ compensation benefits, as no-fault benefits, or a combination of both. Plaintiff also attached to his complaint a letter dated April 14, 2005, from Sedgwick claims examiner Kimberly White, which advised plaintiff that the method of paying attendant care benefits would change on May 1, 2005. The letter also requested the social security number of plaintiff‘s caregiver spouse. Further, in the letter White denied plaintiff‘s claim for reimbursement for the van and request to increase the amount paid to plaintiff‘s spouse for attendant care. In the letter White cites both the workers’ compensation act and the no-fault act as the basis for denying both requests. Plaintiff‘s counsel at that time wrote White a letter dated May 10, 2005, requesting reconsideration of the determination regarding the method of paying no-fault attendant care benefits, specifically citing
Next, a perusal of plaintiff‘s claims regarding intentional infliction of emotional distress convinces us that they all involve the interaction between plaintiff and defendant, or defendant‘s agents, regarding the payment and adjustment of workers’ compensation and no-fault benefits arising out of the 1988 motor vehicle accident plaintiff had while employed by defendant. As discussed already, we find that plaintiff‘s tort claim is related in time, space, origin, and motivation, and would form a convenient trial unit, with plaintiff‘s claims for no-fault benefits arising from his injuries in the motor vehicle accident. In fact, the factual basis of plaintiff‘s claim that defendant intentionally inflicted emotional distress is inextricably interwoven with his claims for benefits and defendant‘s response to the claims. As such, this claim is part of a pragmatic factual
Last, we address the parties’ arguments regarding plaintiff‘s claim for invasion of privacy-trespass. This tort can take different forms with different elements: intrusion, disclosure, false light, and appropriation. Earp v Detroit, 16 Mich App 271, 276; 167 NW2d 841 (1969). More specifically, these four tort theories are: “(1) the intrusion upon another‘s seclusion or solitude, or into another‘s private affairs; (2) a public disclosure of private facts about the individual; (3) publicity that places someone in a false light in the public eye; and (4) the appropriation of another‘s likeness for the defendant‘s advantage.” Lewis v LeGrow, 258 Mich App 175, 193; 670 NW2d 675 (2003). A careful reading of plaintiff‘s complaint discloses that its allegations relate only to the first theory. The elements of this tort were stated by this Court in Doe v Mills, 212 Mich App 73, 88; 536 NW2d 824 (1995) (citations omitted):
An action for intrusion upon seclusion focuses on the manner in which information is obtained, not its publication; it is considered analogous to a trespass. There are three necessary elements to establish a prima facie case of intrusion upon seclusion: (1) the existence of a secret and private subject matter; (2) a right possessed by the plaintiff to keep that subject matter private; and (3) the obtaining of information about that subject matter through some method objectionable to a reasonable man.
Plaintiff alleges in support of his invasion of privacy claim that as plaintiff‘s former employer, defendant had access to his personnel records and pension information and shared this information with its agent, Sedgwick.
We agree with defendant that plaintiff has failed to state a claim of invasion of privacy by intrusion upon seclusion. To the extent that personnel and pension information regarding plaintiff in defendant‘s possession concerns a secret and private subject matter, defendant obtained the information not by some method objectionable to a reasonable man, but because of its relation to plaintiff as his former employer. Thus, this allegation fails to state a claim on which relief may be granted for invasion of privacy by intrusion into seclusion.3 Doe, supra at 88.
With respect to other matters plaintiff alleges as supporting his claim of invasion of privacy, defendant correctly asserts that it has a right to investigate a party
In addition, for much the same reason regarding his claim of intentional infliction of emotional distress, we conclude that plaintiff could have asserted, but did not, his claim for invasion of privacy in his first lawsuit. That plaintiff did not learn all the facts that he claims support this tort claim until during the course of discovery in the first lawsuit does not preclude the application of res judicata. See Dubuc v Green Oak Twp, 117 F Supp 2d 610, 625 (ED Mich, 2000), aff‘d, 312 F3d 736 (CA 6, 2002) (“When, in the course of a law suit, the plaintiff becomes aware of a new cause of action against the same defendant, the plaintiff should move to include the new claim or risk having the doctrine of claim preclusion [res judicata] apply to the omitted claim.“).
CONCLUSION
We affirm in Docket No. 279891. Plaintiff, being the prevailing party, may tax costs pursuant to MCR 7.219. We do not retain jurisdiction.
We reverse in Docket No. 284114 and remand for entry of an order granting defendant summary disposition. Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219. We do not retain jurisdiction.
HOEKSTRA, J. (concurring). I agree with and join with the majority in its resolution of Docket No. 284114.
In Docket No. 279891 I concur in the result, but write separately to express my disagreement with the majority‘s conclusion that Davis v Citizens Ins Co of America, 195 Mich App 323; 489 NW2d 214 (1992), is controlling. The majority aptly noted that in Griffith v State Farm Mut Automobile Ins Co, 472 Mich 521; 697 NW2d 895 (2005), “our Supreme Court without mentioning this Court‘s decision in Davis, clarified judicial construction of