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
ESTATE OF YOUNG HOMRICH, by DANI UNPUBLISHED
HOMRICH, Personal Representative, September 24, 2020
Plaintiff-Appellant,
v No. 346583
Oakland Circuit Court
SELECTIVE INSURANCE COMPANY OF LC No. 2018-162962-NI
AMERICA,
Defendant,
and
CHRISTOPHER FOLTS, TRADD VAUTER, and
MARLA VAUTER,
Defendants-Appellees.
Before: RIORDAN, P.J., and O’BRIEN and SWARTZLE, JJ.
SWARTZLE, J. (concurring in part, dissenting in part)
I concur with most of my colleagues’ reasoning and conclusions. Specifically, I agree that
there is no genuine issue of fact on whether Christopher Folts drove negligently—he did not.
Moreover, I agree that the work-product doctrine shields the recorded statement of Robert
Gudenau. My only disagreement is with respect to the claims against Tradd Vaulter (and by
extension Marla Vauter). As the majority recognizes, there are factual disputes on whether Tradd
should have noticed the flashlights, mirror in the road, and hazard lights, and had he noticed these
warnings, whether he should have slowed down rather than veer his vehicle into the victim.
These factual questions would ordinarily require the denial of summary disposition, but the
majority concludes that the victim was 100% at fault for both the initial collision with Folts and
the subsequent collision with Tradd. I depart from my colleagues by concluding that this
apportioning fault between the victim and Tradd is a factual issue. If I were sitting on a jury, then
I might agree that the victim was more than 50% at fault for the collisions that tragically resulted
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in her death, but as to Tradd, I believe that this is a factual question properly left to the finder of
fact. See Bradford v Wurm, 610 F Supp 2d 835, 846 (ED Mich, 2009) (applying Michigan law).
For these reasons, I respectfully concur in part and dissent in part.
/s/ Brock A. Swartzle
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