TOV Injury and Safety Blog

According to Michigan Supreme Court majority, closing bus door is not part of "operation of vehicle"

In Fundunburks v. Capital Area Transportation Authority, the activist "Engler Gang of Four" who control our Supreme Court  recently affirmed dismissal of the Plaintiff's injury claim.  The Plaintiff was badly hurt when the bus door closed on her without warning while she was exiting.  The Court held that there was no evidence of "gross negligence" by the operator of the bus and therefore the driver was immune from liability.  The same majority had previously held that operating the door of the bus is not included within the statutory definition of operating a motor vehicle, and therefore the owner of the bus enjoyed immunity from suit as a governmental entity.

Bullard-Plawecki and HIPAA apply to governmental entity employers

In Riopelle v. Zittel, the Court of Appeals referred to the express language of the statutes to confirm that the Bullard-Plawecki and HIPAA statutes apply to a Township employee, despite defenses of governmental immunity.

Guilty plea does not assure civil liability

In an interesting case apparently involving drunks fighting outside a tavern, the Defendant's prior guilty plea to an illegal battery did not preclude him from defending a civil claim brought by the injury victim.

US Justices curb activism, temporarily, after reaction to Ledbetter case

Last term, the US Supreme Court decided that a woman couldn't sue for blatant discrimination because she didn't learn about it within 180 days of the first adverse employment action.  A strong negative public reaction led to an attempt to re-write the necessary legislation that was only blunted by Republican filibustering and veto threats.  The Court had signalled an intent to pursue further activism this term, but apparently some of the activists got cold feet and the law on employer retaliation wasn't changed to favor employers

Michigan re-visits law on "legitimate expectation of job security"

The Michigan Court of Appeals recently heard argument on another case addressing the limits and enforceability of employer promises of long-term employment.

Even among the insurance activists, there are some limits on the abuse of injured employees: duty of one sub-contractor to another

When Rick Beavers showed up to investigate an abandoned property for asbestos abatement prior to demolition, he was reluctant to tour the Tanner building because of its decrepit and unsafe condition.  He was encouraged by the Defendants' supervisory employees to make the tour with them, without a flashlight and under their guidance.  Ultimately, they directed his attention to a location that caused him to fall from a loading dock in the dark, suffering severe injuries.

Michigan Courts recognize "ministerial exception" to employment discrimination laws

In a recent discrimination claim brought against the Lansing Diocese of the Catholic Church, the Michigan Court of Appeals adopted and recognized the "ministerial exception" to  laws against job discrimination.

Its a crime only if the victim dies?

University of Michigan professor David Uhlmann authored a recent editorial describing his time as a Federal Prosecutor and noting the flaw in worker safety legislation:  a criminally culpable employer can be charged with a criminal offense only if an employee dies.  Causing death is a misdemeanor; causing permanent serious harm is not punishable.

No room and board expenses for the severely injured

In Mahle v. Titan Insurance, the Court of Appeals applied a novel definition of "dicta" (at least, it was a definition not used by the activist majority of the Supreme Court when they consider the topic and wish to change the law) to hold that Griffith v. State Farm had the effect of eliminating room and board expenses for at-home care.

Fracture at C-7 is not "serious"

State Farm successfully defended Erik Lundquist's injury claim on the basis he did not suffer a "serious impairment of bodily function" when he suffered a fractured vertebra in his neck.

The unusual statute of limitations for architects, engineers and other land-related professionals

  Michigan has a separate, distinct statute of limitations for the negligence of surveyors, architects, engineers and contractors who improve property.  The statute says that no claim may be brought six years after a survey or report is delivered to the customer/client, regardless of other questions regarding the "accrual" of a negligence claim.

The FDA makes a belated effort to examine the safety of drugs already on the market

 The Bush Administration FDA--essentially controlled by big pharma--has rushed to approve all sort of medications, while dragging its feet "for safety reasons" on politically sensitive drugs.  Burned by the recent deluge of information on unsafe drugs marketed with the approval of the FDA, it is now announcing a new effort to examine drug safety for medications already on the market.

Fraudulent [kyphoplasty] back surgery marketing results in 75 million dollar fine

Forbes Magazine reported this week that Medtronic, Inc. paid 75 million dollars to the Federal government to settle claims of fraudulent marketing involving kyphoplasty back surgery.  Medtronic claims that the payment of 75 million dollars in fines does not show any wrong-doing by the company or its predecessor.  Common sense would certainly suggest otherwise, but maybe this amount is really only one officer's annual compensation.  Who knows?  These people waller in so much money it is hard to gauge their behavior by ordinary standards.

Gender gap in treatment of heart disease

  The University of Michigan Health System reported this month that a gender gap continues to exist in the treatment of heart disease.

The Engler majority hands another gift to insurers

When an Initial Transport tanker truck lost control and overturned on a Michigan highway, it exploded and burned, causing more than 3 million dollars worth of damage to the highway and an overpass.  The State sued the Company to cover the clean up and repair.  The Company had been required, under Michigan's Common Carrier Act, to carry several million dollars of insurance in return for its license to transport goods for hire on the highways of the state .  It defended the State's claim, however, by alleging that it did not have to pay any more damages than the no fault one million dollar property loss limit. 

When your theater seat collapses under you, it may not be an "open and obvious" danger

    The Court of Appeals recently acknowledged that when you enter a dark movie theater and sit down, a flaw in your theater seat may not be an "open and obvious" hazard.    The Plaintiff, Robert Rutan, was hurt when he sat down, in the dark, and his seat back collapsed under him.  The Defendants contended that the seat had been marked with a yellow caution tape, however, the Plaintiff and his companion testified that the seat was folded on arrival and that they only saw a corner of the yellow tape, after the theater lights were turned up.

More protection for bars: fewer rights for the victims of drunks

  In Bergman v. Ron's American House, dba Johnny's Tavern, the Court of Appeals was forced to follow in the footsteps of the activist Engler Majority on the Supreme Court of Michigan, when it dismissed a claim brought by the parents of a 15 year old boy who was killed by a drunk driver, against the bar where a drunk was served.  The Court held that despite evidence to the contrary, it was not a question of fact whether the drunk was "visibly" intoxicated when he was served.

Another non-catastrophic "serious injury" goes uncompensated

    In Williams v. Caleca, the Farm Bureau insurance Company won an appeal to keep from paying an injured plaintiff reasonable compensation for his injuries.

Liberty Mutual gets spanked

If you judged only by their commercials, one would think that Liberty Mutual is an ethical company, practiced at doing "the right thing".  Our experience has been just the opposite, and the recent decision in Blaszcyk v. Liberty Mutual confirms that our experience is not atypical.

BPA plastic: impending government restrictions?

In previous blog entries, we have pointed out the controversy over "hardened plastic" such as is used in Nalgene bottles. (This is the plastic with the "7" in the triangle on the bottom.)  The Canadian government announced it plans to restrict the use of BPA in baby bottles and some other functions. 

Cell phone use in cars

The Record Eagle reported some unpleasant statistics on May 19:  During calendar year 2006, cell phone usage by the driver was implicated as a cause in 951 motor vehicle collisions.  Distractions, generally, were identified as a contributing causal factor in more than 3600 motor vehicle collisions. Various states and other jurisdictions have outlawed or limited the use, by drivers, of cell phones, texting, or hand-held communication devices.

Insurer must defend until questions of fact are resolved regarding permissive use

In auto cases in Michigan, there is a rebuttable statutory presumption that a driver is using another's motor vehicle with the owner's consent.  Car insurance policies must be written to cover liability resulting from permissive use, and Michigan insurance policies are written to make the owner's policy apply before the operator's liability policy.  In Citizens v. Secura v. Gillespie, the Court of Appeals held that the owner's insurer is obligated to defend a lawsuit until such time as the factual issue of consent has been resolved.

Doctors are encouraged to admit errors rather than stone-walling

  For years, potential malpractice defendants have heeded their insurers' advice to emotionally divorce themselves from patient victims and to participate in a stonewall effort to deny or delay claims.  Some hospitals are seeing value in a different approach.

FDA finally concedes it is inadequately funded

  The Bush appointees who currently direct the FDA have finally reversed course and conceded that the FDA is not adequately funded to protect American consumers.

Curtains for anti-bleeding drug Trasylol

The New England Journal of Medicine released findings on Wednesday that appear to confirm higher mortality rates for Trasylol.

Statutory duty of landlords does not extend to tenants' social guests?

In Russell v. Northfield Pines Apartments, the Court of Appeals followed the lead of the activist Supreme Court majority in taking "reasonableness" decisions from the hands of the jury.

When the drinking fountain almost severs a kid's finger, it IS a building defect

     Brandon Joseph's mom sued the Southfield Public Schools after the first-grader almost severed a finger while running past the drinking fountain with his arm out.  The school argued that the exposed and unfinished metal edge of the fountain would not have injured someone drinking at the fountain, and therefore it wasn't dangerous or a "defect".

A divided court recognizes wage loss where the sub-S Corporation is losing money

Under the Michigan No Fault Act, injured persons are not compensated for the loss of "earning capacity"; they can only recover actual lost wages.  AAA argued that an injured worker shouldn't be able to recover lost wages from his own sub-chapter S corporation if the corporation appeared to be losing money.  In a 5-2 decision, with Justices disagreeing over the pertinent logic, the Michigan Supreme Court handed a rare defeat to an insurer.  It held, in essence, that the statutory language and the recognition of a corporation's separate legal identity required it to honor the victim's lost wage claim.

Can't return to your old job? Not a serious impairment.

  In Luther v. Stoeckle, the Court of Appeals applied the Kreiner "life-altering" definition of "serious impairment" to deny the claim  of a woman who suffered exacerbation of a herniated disc when she was rear-ended at a stop light.  Although she could not return to her job because of physician-imposed lifting restrictions, and she could not pursue many of her prior recreational activities, and needed some help with housework, the Court said that under Kreiner, her injury was not "serious".

Risks and dangers inherent in the Notice of Intent

A recent split decision by the Court of Appeals demonstrates the risks inherent in drafting a Notice of Intent.

Farm Bureau strikes again: no coverage for a substitute vehicle

Farm Bureau is making a concerted effort to compete with Allstate's reputation for callous, obstructive bullying in claims management.  This week, it managed to avoid paying an injured woman's PIP claims by asserting that she could not transfer coverage to a rental vehicle while her vehicle was "in the shop".

A rare serious impairment victory

In a 2-1 decision of the Michigan Court of Appeals, Caroline Ransom's right to pursue a claim against the at-fault dump truck driver who rear-ended her was preserved--at least until the case is heard by the Michigan Supreme Court.

Senate Republicans block discrimination reform legislation

Last year, the U.S. Supreme Court overturned a discrimination verdict that awarded compensation to Lilly Ledbetter.  Goodyear had underpaid her for almost two decades, but she didn't learn about the huge gap between her pay and her male co-workers until she was approaching retirement.  The Court's majority interpreted the equal pay statute in such a manner that Ledbetter had to file suit within 180 days of the start of the unequal treatment--even though she knew nothing about it.  Sadly, Senate Republicans rejected a reform measure that had broad support from both parties; it would have given women a limited time to sue after "discovering" that they had been victimized by discrimination.

Dentists object to practice by dental therapists

In previous blog entries we have reported on the shortage of dentists in the U.S. and the decline in dental care as schools graduate fewer dentists and more dentists retire.  Despite this documented and increasing shortage, the documentation of declining dental health, and increasing income for dentists, dental advocacy groups and lobbyists continue to fight the licensing of dental therapists to provide more mundane dental services, particularly in rural areas.

One-third of returning Iraq veterans suffer from head injury or post-traumatic stress syndrome

   The entire country is learning more about head injury and PTSD as a result of the war in Iraq.  Recent reports document that fully one-third of returning vets suffer from one or both of these serious problems.

The Supreme Court adds insult to injury in a tragic case involving two young girls.

  In Estate of Buckner v. City of Lansing the "gang of four" on the Supreme Court recently reversed a decision allowing the family of two young girls to sue the City for plowing snow over the sidewalk and forcing the girls out into the road on their walk home.  One girl was killed and the other suffered a catastrophic head injury when they were struck by a motorist.  The majority--composed of four activist Republicans-- held that the City's duty to maintain sidewalks and reasonably safe roads does not include a duty to avoid blocking the sidewalk with snow.

A case addressing "deliberate indifference" to an inmate's needs

  In Gibson v. Moskowitz, M.D., the Sixth Circuit upheld a verdict for the family of an inmate who died after being neglected in jail for several days.

A task force adopts new guidelines to restrict pharmaceutical gifts to doctors

The guidelines adopted by the Association of American Medical Colleges aren't very strong and don't prohibit much, but they would pressure medical schools to prohibit "ghostwriting" research and ban some gifts given to physicians and staff by pharmaceutical companies.  In prior blogs you can find explanations of the extent to which the pharmaceutical companies have misused their connections with the medical profession.

Another majority abomination on "serious impairment"

  Today the Engler "Gang of Four" handed down another decision denying a seriously injured motorist any recovery.

Broe v. Allstate: Allstate forced to pay overdue PIP benefits

   In this action to recover personal injury protection benefits from Allstate Insurance Company, the summary disposition in favor of the provider was upheld where Allstate opposed the provider's motion with only conclusory affidavits disputing the allegations of the provider's complaint.  The Court held that in response to a motion for summary disposition, Allstate was required to provide specific evidence in defense of the claims and not merely conclusory objections to payment.

No compensation for government defamation

   The State of Michigan recently made an inept effort to protect the safety of children at school by enacting a bill that excluded certain persons with felong convictions from working in the school environment.  Bureaucrats made a sloppy effort to fulfill that obligation by publishing a list of felons currently employed in  Michigan schools, knowing that the list would contain some "false hits".  Several of the innocent persons who were wrongfully included in the list filed suit against the bureaucrats involved for not exercising greater care to eliminate false claims.  The Michigan Supreme Court recently held that the government was not liable for this error, and pursuant to the Court majority's instructions, a panel of the Court of Appeals held on April 29 that the involved individuals were also immune from their stupidity and callousness.

Who made your stereo? A captive 13 year old?

Chinese authorities announced May 1 that it had broken a child labor ring that forced rural kids aged 13 and 14 to work as many as 300 hours a month in export factories building toys and electronics.  A similar scandal was brought to light in 2007, involving brick kilns.  The children identified this year were paid about 2/3 of the Chinese minimum wage and no overtime; many were literally sold to the highest bidder upon arrival in an industrial city after being conned, kidnapped or sold by their parents to labor brokers.  Local and national government representatives and academics acknowledged that this is not an isolated problem.

This is the labor "bottom" that we are racing towards in our effort to reduce labor costs for consumer products, (and conversely, labor compensation) to a bare minimum.