DIXIE MOTOR SPEEDWAY 7/17/2010
See Picture at
http://dumpmyspousestockcar.blogspot.com/
Flint Divorce attorney gets picture of Dixie Motor Speedway spin out.
How many other drivers dreams are going up in a puff of dust because NASCAR has told the drivers to have at it? Mabey none. Fans want the excitement and the drivers want to deliver. Where is the line?
Assumption of the Risk. When it comes to legal liability for injuries to spectators, courts have been reluctant to hold stadium owners and sports teams responsible for injuries that were a reasonably foreseeable result of the sport itself. This includes foul balls (even bats) flying into the crowd at a baseball game, and hockey pucks that sail over the rink's safety glass and into the stands. And it likely would extend to any injuries suffered by spectators at Talladega on Sunday. [8]
In fact, the track at Talladega is notorious for being one of the more dangerous of the 22 tracks in the NASCAR series, according to the Associated Press: "Horsepower-sapping restrictor plates are used at Daytona and Talladega -- NASCAR's two fastest -- to combat the high speeds. . . As a result, the cars all run the same speed, and the field is typically bunched tightly together. One wrong move by a driver can cause a massive accident."[8]
ARE THE TRACK OWNERS LIABLE?
Exploration of certain state tort immunity statutes is quite interesting and relevant. These
laws protect stadium owners from liability except for gross, willful, wanton or reckless acts
(as opposed to ordinary negligence).[5]
In 2001, NASCAR driver Dale Earnhardt, died in a crash at Daytona International Speedway.52 In 2006, Rookie Indy Car driver Paul Dana died after a two-car crash at Homestead-Miami Speedway, the same track where John Nemechek died
1997.5352 Frank Pellegrini, Dale Earnhardt-Why We Chose Him, TIME.COM, Feb. 23, 2001, http://www.time.com/time/pow/article/0,8599,100437,00.html.
53 ESPN.com, IRL Rookie Dana Dies From Injuries Sustained in Crash, Mar. 27, 2006, http://sports.espn.go.com/rpm/news/story?seriesId=1&id=2384873; see John Donovan, Hitting Too Close to Home, CNNSI.COM, May 13, 2000,
http://sportsillustrated.cnn.com/motorsports/news/2000/05/12/nemechek.
[5]
Edwards managed to survive the Talladega crash. His car flipped at over 15 feet into the crowd’s protective fence, and neither he, nor anyone in the crowd, sustained any serious injuries. The track’s medical director, Dr. Bobby Lewis, calls the crowd’s injuries minor saying that they were “mostly bumps, bruises, contusions and possible fractures.”
The collision involved Brad Keselowski and Dale Earnhardt Jr. The incident fired up with the finish line in sight with Edward’s in the lead when he and Keselowski sped past Ryan Newman and Earnhardt. When Edwards attempted to block Keselowski’s move ahead, the move sent his car flipping over Newman’s hood and into the protective fence. Keselowski managed to pull through Edward’s crash and sped on to win the race.
When Edward’s car’s stopped flipping, he jumped out his window and ran across the finish line. [1]
[1] 04/27/2009
http://www.collegenews.com/index.php?/article/seven_fans_are_injured_from_airborne_nascar_crash_042938282828282832/
[5]
http://nbcsports.msnbc.com/id/30486233/
[8]
http://blogs.findlaw.com/injured/2009/04/nascar-fans-injured-at-talladega-spectator-safety-and-the-law.html
Child support, child custody, alimony, grandparent, divorce questions? Consider contacting Flint Divorce attorney Terry Bankert 810-235-1970,
http://attorneybankert.com/
DMS STOCK CAR RACING 07/23/2010*********
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Over the last several years, the 33-year-old has worked his way up through the racing ranks and he is currently in first place in the bombers at Dixie Motor Speedway in Birch Run. "We're having a great year at Dixie," Cam Hiltz said.
http://www.mlive.com/sports/flint/index.ssf/2010/07/otisvilles_cam_hiltz_is_in_the.html
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NASCAR responded this year with several changes. It encouraged drivers to stay aggressive with a "boys, have at it" policy, introduced double-file restarts that packed the leaders up front on restarts and removed lapped cars, extended overtime finishes, standardized most start times and swapped the cars' rear wings with more traditional spoilers.
http://articles.latimes.com/2010/jul/22/sports/la-sp-nascar-brickyard-20100723
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In a NASCARseason littered with crumpled cars, temper tantrums and aggressiveness sometimes bordering on recklessness, Sprint Cup points leader Kevin Harvick said he begins each race making one broad assumption.*…it is legislated mayhem. NASCAR instituted rules changes designed to inject more excitement into the sport, especially late in the races, and then before this season gave the drivers virtual free rein to have at it…..
Listening to the fans
Prompted by lagging attendance and TV ratings, NASCAR in the past year has responded to fan complaints by altering the way it restarts and finishes races. Both have supplied much-needed drama but at the same time have contributed to the carnage.
In June 2009, double-file restarts were instituted. Instead of the lead-lap cars lining up nose-to-tail in the outside lane with lapped cars to the inside, the leaders are lined up side by side at the front. Predictably, especially late in a race, the restarts become a free-for-all.
http://www.indystar.com/article/20100723/SPORTS0109/7230307/1052/SPORTS01/Tempers-flare-after-NASCAR-s-have-at-it-decree
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“The line between intentional and unintentional when it comes to wrecking others is actually wider than what you might think. “
http://www.mstrc.com/index.php?showtopic=33742&pid=201799&st=0&#entry201799
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Juan Pablo Montoya was pretty sure he was innocent at Indianapolis Motor Speedway last year.
http://www.freep.com/article/20100723/SPORTS16/7230308/1365/Sports/Juan-Pablo-Montoya-feels-good-at-Indy-but-can-he-win-there
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A victory in Sunday's Brickyard 400 would make him the first to win in an Indy car and a stock car at Indy.
http://www.usatoday.com/sports/motor/nascar/2010-07-22-unawed-juan-pablo-montoya-seeks-historic-win-at-indy_N.htm
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DIXIE MOTOR SPEEDWAY
Friday, July 23rd
Eastern Michigan Food Bank
Night / College
Grocery Kart Races
HUGE 6 in 1 Show
Pro Late Models, Modifieds,
Pro Stocks, Street Stocks,
Bombers, and Figure 8s
Pit Gates Open: 2:00p.m.
Practice Begins: 3:00p.m.
Grandstands Open: 5:00p.m.
Qualifying: 5:15p.m.
Racing Starts: 7:30p.m.
Adults (18-59): $12.00
Seniors (60 and Over): $10.00
Teens (13-17): $8.00
Children (6-12): $5.00
Kids (5 and Under): FREE
Pit Passes: $25.00
http://www.dixiemotorspeedway.com/component/content/frontpage
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AUTO CITY SPEEDWAY
July 24 Coca-Cola Night-
July 31- Spaulding Insurance Night-Skirt Night
August 1- Maximum Destruction "Sunday" presented by Suski Chevrolet Buick of Birch Run
August 7-Greg Yost Topless mod tribute race
http://www.autocityspeedway.com/
Flint Divorce Attorney comments on Washtenaw Divorce Court Issues:
Divorce; Motion for relief from provisions of the parties' property settlement agreement; Holmes v. Holmes; Contract interpretation; Klapp v. United Ins. Group Agency, Inc.; Dobbelaere v. Auto-Owners Ins. Co.; Frankenmuth Mut. Ins. Co. v. Masters; Hagen v. Hagen; Effect of a party's choice of labels for the action; Johnston v. City of Livonia;
Whether the Washtenaw Divorce court should have evaluated the property's current market value before ordering the transfer of the plaintiff-husband's interest; "Estimate" defined;
Whether the Washtenaw Divorce court's judgment amounted to an improper modification of or substitution to the settlement agreement; Request to appoint a receiver; Reed v. Reed; MCL 600.2926; Petitpren v. Taylor Sch. Dist.;
Attorney's fees; Unthank v. Wolfe
Court: Michigan Court of Appeals (Unpublished 07/06/10)
Case Name: Cook v. Cook
e-Journal Number: 46266
Washtenaw Circuit Court Lc No 05-001920
Judge(s): Per Curiam - Murray, Saad, and M.J. Kelly
PLAIN LANGUAGE
The Washtenaw Divorce Courtcourt correctly applied the plain language of the parties' settlement agreement by awarding in partial satisfaction of the plaintiff-husband's obligation the parcel of real property provided as security in the agreement for the payment of $1,750,000 to the defendant-wife. However, the court agreed with defendant the Washtenaw Divorce Courtcourt erred in not making any valuation of the property's current market value.
A SETTLEMENT AGREEMENT IS A CONTRACT
“A divorce judgment entered upon the settlement of the parties . . . represents a
contract, which, if unambiguous, is to be interpreted as a question of law.” Holmes v Holmes,
281 Mich App 575, 587; 760 NW2d 300 (2008) (quotation marks and citation omitted)
10 INSTALLMENTS
Pursuant to the settlement agreement, which was incorporated into the parties' consent judgment of divorce, plaintiff had to pay defendant $1,750,000 in 10 equal installments of $175,000 with the first payment due a year from the date of entry of the divorce judgment.
SECURITY ON THE DEBT
As security, the agreement required him to maintain a life insurance policy of not less than $1,750,000 designating defendant as the beneficiary until the agreement was satisfied. Also, his interest in a 40-acre parcel of property (with an estimated value of $1,500,000) served as additional security for the debt.
HE CALLED IT RELIEF FROM JUDGEMENT, COURT LOOKED BROADER
Plaintiff filed a motion entitled "relief from impossible property settlement provisions of judgment," asserting it was impossible for him to meet the payment schedule in the settlement agreement because his net worth had gone from $30,000,000 on the date of the divorce judgment to a "negative number." He requested the Washtenaw Divorce Court adjust his payment schedule to $5,000 a month with interest as provided in the agreement and reevaluate his ability to pay in 12 months.
The Washtenaw Divorce Court concluded since execution on the life insurance policy was not an option, plaintiff's inability to pay triggered defendant's security interest in the parcel of real property, rendering plaintiff's outstanding obligation to defendant $29,000 plus interest.
THE APPEAL
On appeal, defendant argued, inter alia, the Washtenaw Divorce court erred in partially granting plaintiff's motion and transferring the parcel to her in lieu of the cash payments required in the agreement. The court disagreed, concluding the agreement clearly contemplated the scenario of plaintiff being unable to meet his payment obligations where it provided 2 forms of security for the $1,750,000 obligation. As the Washtenaw Divorce court observed, the life insurance policy proceeds were unavailable, so the only remaining security was the real property. The Washtenaw Divorce court, after finding plaintiff was unable to make cash payments, applied the unambiguous language of the agreement's security provision. However, the court vacated in part the Washtenaw Divorce court's order and remanded the case for a determination of the actual value of the parcel at the time it was transferred to defendant. Once its value is determined, this actual value should be deducted from the amount plaintiff owed defendant under the divorce judgment.
INTENT OF THE PARTIES
The fundamental goal regarding the construction or interpretation of a contract, including
a settlement agreement, is to honor the parties’ intent by reading the document as a whole and
applying the plain language used in the contract. Dobbelaere v Auto-Owners Ins Co, 275 Mich
App 527, 529; 740 NW2d 503 (2007); Mikonczyk v Detroit Newspapers, Inc, 238 Mich App 347,
349-350; 605 NW2d 360 (1999).
IF THE LANGUAGE IS CLEAR THIS CONTRACT SHOULD NOT BE CHANGED
Where the contractual language is clear and unambiguous,
courts must interpret and enforce the contract as written. Frankenmuth Mut Ins Co v Masters,
460 Mich 105, 111; 595 NW2d 832 (1999). In such instances, despite a court’s equitable
authority to modify a judgment of divorce to reach an equitable result, Hagen v Hagen, 202 Mich
App 254, 258; 508 NW2d 196 (1993), a court may not modify an unambiguous settlement
agreement incorporated into a judgment of divorce to “rebalance the contractual equities” or
because it considers another interpretation more reasonable unless the agreement resulted from
fraud, duress, or mutual mistake, Holmes, 281 Mich App at 594-595.
Affirmed in part, vacated in part, and remanded.
Posted here by
Terry bankert
http://attorneybankert.com
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