TOV Injury and Safety Blog

Transportation authority entitled to dismissal of claim, despite actual notice

William Pollard suffered a broken hip on a Suburban Mobility Authority bus in Wayne County.  The bus driver was forced to call an ambulance to take Pollard to the hospital, and later the Authority mailed him an application for no fault benefits.  Pollard never returned the application, but he did file suit three months later, alleging serious injury resulting from the driver's negligence.  The Authority sought dismissal of the claim, based on Pollard's failure to provide the Authority with written notice of his injury within 60 days.  The trial court pointed to the Authority's actual knowledge of the injury and refused to dismiss the claim.  The Court of Appeals ruled that even though the Authority suffered no prejudice by the failure to mail a written notice, the case must be dismissed for failure to comply with the statute that requires notice.

Court of Appeals upholds jury verdict against family in Lenawee County death case

The family of a young man killed in a Highway collision on US 223 filed suit against the trucking firm that struck the man's van while it was making a left turn.  The family claimed that the defendant was illegally passing the victim's left-turning vehicle and provided proof that the turn signal was activated.  The Defendant driver claimed that the van turned off the right shoulder into the path of his truck without warning, constituting a "sudden emergency."  Each side presented expert reconstruction testimony supporting their theory of how the collision happened, and the jury found in favor of the Defendant.  The Plaintiff family objected to the trial court's incomplete instruction on sudden emergency and also asked the higher court to overturn the verdict as "against the great weight of the evidence."  The Court of Appeals refused. 

Court rules "No dual domicile" for emancipated kid

Farmers Insurance Exchange and the Auto Club fought over which should provide No Fault PIP benefits to Edward Carter and his Conservator, Angela Henderson, after Carter suffered catastrophic motor vehicle accident injuries. He was a pedestrian when he was struck by a car.  He had no car or car insurance of his own, but family members with whom he sometimes stayed did have auto insurance.  The trial court heard the various facts about where Carter was living, and concluded that he was maintaining a "dual domicile" with two different family members.  The Court of Appeals rejected this outcome and sent the case back to the lower court to determine which of the places where he sometimes stayed was his "only one domicile that is the place where there is a true fixed permanent and principal establishment to which the person has the intention to return."

Multiple fractures in lower spine constitute "serious impairment:" AutoOwners must pay

Jake Vielstra suffered multiple fractures in his lower spine when the driver of the car he was in accidently rolled it several times.  She had only $20,000.00 in coverage, which her insurer promptly offered to pay Vielstra.  After complying with AutoOwner's settlement restrictions, Vielstra took that money and filed an Underinsured Motorist claim against AutoOwners (his own carrier).  AutoOwners declined to pay any settlement, maintaining that Vielstra did not suffer a "serious impairment of bodily function." 

Bronson Hospital denied right to recover for medical care provided to no fault victim: Allstate avoids payment on a technicality

Bronson Methodist Hospital provided $37,000.00 of care to an uninsured accident victim (probably one day's hospitalization, one x-ray, hang-nail surgery and three aspirin.....at going rates).  By law, it was entitled to recover these expenses from an "assigned insurer" licensed to sell auto insurance in Michigan.  MI insurers are randomly assigned to provide PIP benefits to uninsured passengers and pedestrians if they don't have coverage through a vehicle or a member of the household.  In this case, however, Bronson did not identify the victim as uninsured immediately, and did not apply for an "assigned' insurer for nearly 12 months.  By the time Allstate was assigned to the claim, the services were one year and two days old, and Allstate refused to pay for them, citing the "one year back rule."

Court rejects claim loading handicap-access bus is not "operation of a motor vehicle"

Jeanette Collins' wheelchair fell while she swas being loaded on a Capital Area Transportation Authority bus.  She suffered multiple injuries and ultimately died.  The driver who was loading her on the bus claimed he did not know why the lift malfunctioned, dropping her.  Despite the fact that CATA had been warned previously that the subject lift was not operating properly and was not equipped with a safety belt, CATA defended Collins' family's wrongful death claim to the hilt. The trial court and Court of Appeals rejected CATA's defenses, including its argument that loading and unloading a bus doesn't constitute the "operation of a motor vehicle." 

Pioneer State Mutual loses PIP argument about domicile

Pioneer is a late-starting competitor for cheapest no fault insurer in Michigan.  While not up to the standards of Allstate in cynical denial of benefits, Pioneer has demonstrated a willingness to challenge its insureds' claims on virtually any grounds available.  This week, it lost an argument attempting to transfer PIP expenses to State Farm. 

Jason Teeple is a 34 year-old resident of the U.P.  He doesn't have a driver's license or own a car.  He was injured in a motor vehicle collision while a passenger in a vehicle insured with Pioneer.  Pioneer denied his PIP benefits, arguing that he was a resident of his mother's home, even though he hadn't lived with her in about eight years.  Teeple used his mother's home on a regular basis for visits with his child and as his mailing address, but was currently living in an RV with a girlfriend.  Since living with his mother, he had lived for several years with a fiance and in several other cities for significant periods.  The Court found that under the facts as elicited, he was not domiciled with his mother and not a "member of her household."

Sixth Circuit says health insurer need not pay its share of attorneys fees or costs

On November 16, 2009, the Sixth Circuit decided Longaberger Company v. Kolt,  a dispute over an ERISA health insurance plan's demand for an injury victim's negligence recovery from the at-fault driver's insurance.  Samuel Billiter was hurt in a car accident in Ohio, and his medical expenses were covered by Longaberger, a self-funded employee welfare benefit plan.  Billiter sued, through his attorney Jeffrey Kolt, and recovered $135,000.00 from the negligent driver's insurers.  Acting on the law as he understood it prior to the Supreme Court's recent decision in Sereboff v. Mid-Atlantic, Kolt distributed the insurance recovery without honoring the claimed Longaberger lien of $113,000.00. 

Longaberger sued Kolt and Billiter, claiming that the proceeds of the third-party negligence action were held in an equitable constructive trust for "reimbursement" of the plan's medical expenses.  The Sixth Circuit upheld the District Court's summary judgment for Longaberger and refused to honor Kolt's state law "charging lien" for creating the recovery.  Billiter was required to pay Longaberger almost $76,000.00 of his $86,000.00 recovery and Kolt was required to turn over about $38,000.00 of his $45,000.00 fee.  Chances are that if it weren't "for the honor of the thing," both men would have forsaken the lawsuit entirely, had they known that their efforts would only inure to the ERISA plan's benefit.

The outcome of this case either violates or endorses our belief that "pigs get fat and hogs get slaughtered," but we don't know which of the parties initially exhibited the pig-headedness.   It would appear that a fair outcome would have involved some compromise by both parties.

Talk about adding insult to injury: Truck kills a woman; no recovery for family.

Sheri Williams was killed when a large object was thrown through her windshield and struck her head.  Marc Sevigny, a J.R. Phillips Trucking, Ltd, employee, was hauling a tractor-trailer filled with slag in the opposite direction at the time of the incident. Williams' family contended that she was killed when a large fragment of slag became lodged in the semi-tractor's tires and dislodged as the truck accelerated away from the steel mill where it had just been loaded.  After many procedural twists, the steel mill was dismissed from the case, and a jury ultimately concluded that the truck driver and his employer were not negligent.  The family appealed, arguing that the verdict was "against the great weight of the evidence" and that the lower court had incorrectly allowed the trucking company's expert to substantially and dramatically change his defense theory during the trial.

Jury must decide whether woman's neck injuries are a "serious impairment of bodily function"

Emma O'Keefe was hurt when Francis Kirchoff backed into her car in Oakland County.  The Auto Club acknowledged that O'Keefe suffered an objectively manifested injury, but denied that the consequences were a "serious impairment of bodily function" as that threshold requirement was re-defined in the Kreiner v. Fischer case. On that basis, O'Keefe's lawsuit seeking non-economic damages from Kirchoff's insurer was dismissed.

Observing that O'Keefe's back and neck injuries now prevent her from performing yard work, housework, baking, walking on a treadmill and playing with, or even reading to her grandchildren, the Court of Appeals concluded that it was an error to dismiss her case as a matter of law.  Since these and other restrictions and limitations, including a loss of marital relations, appear to be permanent, a jury should determine whether O'Keefe has suffered a "serious impairment of bodily function." 

Court reverses summary disposition for Allstate regarding PIP benefits

Dustin Stevens, who was legally incapacitated at the time, suffered further injury in a single vehicle collision.  He was the driver of an  uninsured car registered to his mother.  Although he and the mother denied he had permission to use the vehicle, there were other circumstantial pieces of evidence that would imply that he was either buying the car or enjoyed regular use.  The trial court granted Allstate summary judgment, however, the Court of Appeals reversed, noting that it was not appropriate for the judge to weigh credibility and decide disputed facts:  under our Constitution, the case should  have been decided by jurors.

State Farm chastised for "disingenuous" actions in delaying payment of PIP benefits

Woodrow Byers was a bail bondsman employed by his wife's corporation until he suffered a severe knee injury in a motor vehicle collision.  State Farm stopped paying PIP benefits because it believed that he was continuing to work for his wife's business, even though he wasn't paid, a substitute "bounty hunter" was employed, and the medical testimony was undisputed regarding Byers' inability to work as a "bounty hunter."  On the eve of trial, State Farm finally paid for Byers' knee surgery--one year late--in what the court concluded was a calculated attempt to avoid defending the delay at trial.  The jury still awarded Byers' wage loss, a modest recovery for domestic service losses, and interest.  When the Court awarded attorneys' fees relating to the "overdue" medical benefits, State Farm appealed both the jury verdict and the Court's fee award. 

A "Gator" utility tractor used to transport tourists is a "motor vehicle" for immunity purposes

The City of Sterling Heights utilized a "Gator" utility tractor and trailer to haul tourists through town during a festival.  Helin Yousif's son, Richard, was badly hurt when he fell off the tractor-trailer.  His mother sued the City, which claimed immunity.  Yousif's attorneys argued that the City was responsible for Richard's injuries under the "motor vehicle" exception to governmental immunity.  The trial court agreed and its decision was upheld by the Court of Appeals.  While certain four-wheeled vehicles, such as a golf cart, are not "motor vehicles" for purposes of the immunity statute, this vehicle is more in the nature of a "car, truck or bus" and was being used for a similar purpose.  Therefore, the City's immunity from suit was waived by statute.

AutoOwners wins partial victory in dispute over PIP benefits

When a no fault insured Michigan resident is so badly injured in a motor vehicle accident that he or she cannot manage his or her own affairs--necessitating the appointment of a guardian or conservator--the insurer responsible for paying PIP benefits (medical, three years of wages and household services) is required to pay the expense of the guardian.  William McDonald became the Conservator for Larry Jerome LeBoeuf under these circumstances, but was not initially aware of his right to bill AutoOwners for his service.  More than a year after some of his services were incurred, but less than a year after they were approved by the Probate Court, as required, he sued AutoOwners to recover his expenses. 

Consumer group argues that power windows are an unrecognized hazard to children

On November 2, the KidsAndCars.org group challenged the National Highway Traffic Safety Administration to account more accurately for children injuries and deaths associated with power auto windows.  It called for the universal application of an "auto reverse" feature on car windows to protect children. NHTSA responded that the risk to children is a "small, but persistent problem," not requiring government action.  It estimates that car windows cause 1995 injuries to children annually, which it claims are "mostly minor," and six deaths.  A 2003-4 study documented similar numbers, annually.  Making the changes requested by KidsAndCars would cost about $6 per window.

Husband is not an "owner" of wife's uninsured vehicle where there is no evidence of 30 days' use

Kevin Zoerman was injured while driving his wife's uninsured car.  Titan Insurance was assigned to pay his Personal Injury Protection (PIP) medical expenses, but declined to pay, arguing that Zoerman was an "owner" of the car, even though his name did not appear on the title.  The owner-operator of an uninsured vehicle is not allowed to collect PIP benefits---because he or she hasn't complied with the law and paid for PIP coverage on the car.

The lower court threw out Titan's claim, however, when it failed to present any evidence that Zoerman was an owner of the vehicle.  To be an owner, the individual must be a registered owner (appearing on the title or registration) or enjoy the regular use of the vehicle for 30 days.  In the instant case, at trial Titan presented no evidence to support its claim that Kevin enjoyed the right to operate this vehicle on demand.  The testimony indicated Kevin's wife bought the car without his knowledge, that she maintained it, and that she possessed the only keys.  The Zoerman's claimed that Kevin used the vehicle infrequently and that his wife retained the right to grant permissive use.  Under these facts, Titan had not created a question of fact with regard to whether Kevin was an "owner" on the alternative statutory basis (by reason of enjoying the right to exercise regular use for 30 days).

Insurer wins appeal: injury victim's right to PIP benefits must be determined by jury

The trial court originally ruled that Jenne Ott was entitled to PIP benefits from Progressive Michigan Insurance Co., because Progressive had insured the vehicle in which she suffered injuries as a passenger.  Progressive argued, however, that the woman who purchased its insurance policy might not have enjoyed an ownership interest in the car, and therefore Ott should collect PIP benefits from the Assigned Claims plan (because Progressive should be allowed to cancel the insurance). 

Supreme Court reverses lower court decision; allows State Farm to claim fraud

Raymond Andres was horribly injured in a car accident and now requires 24 hour attendant care.  State Farm was his auto (PIP) insurer and has been obligated to pay for this care.  State Farm initially entered into an agreement to pay Andres' family for the care provided, but later refused to pay, alleging that the agreement had been fraudulently arrived at by some form of collusion between Andres' attorney and State Farm's adjuster. 

Man struck while inspecting his (uninsured) vehicle at stop sign is eligible for PIP benefits.

Normally, the operator of an uninsured vehicle involved in a collision is not eligible to collect PIP benefits.  In Knox v. Auto Club Group Insurance Co., the Court of Appeals relied upon Supreme Court precedent to force the Auto Club to pay benefits it refused to pay.

Knox observed his ex-girlfriend parked in a pickup truck near his apartment.  He concluded that she was planning on vandalizing his van and decided to move it.  When he drove away from the apartment, however, the girlfriend followed him in her pickup.  At the intersection of Ballenger Highway, he stopped at a stop sign and the ex- drove her vehicle in to the rear of the van.  He put it in park and went to the rear of the van to inspect the damage:  she promptly struck him and the van with her pickup, causing him injury, prior to fleeing the scene.

Auto Club was assigned to respond to Knox's request for PIP benefits.  It maintained that his vehicle was "involved" in the collision, since it was parked partly on the road and therefore was therefore "parked in such a way as to cause unreasonable risk of the bodily injury."  The Court pointed to the Miller v. AutoOwners decision where the Supreme Court refused to apply a bright-line "on the road--unsafely parked" distinction.  In Miller, the Court had refused to consider a State Police cruiser unsafely parked, where it protruded into the traveled lane and was struck by a motorcylist.  In the instant case, even though Knox's vehicle was "parked" in the road, the Court concluded that under the circumstances and in broad daylight, it was not parked in a way as to cause unreasonable risk of injury."

Retiree cannot sue for car accident injuries, despite two surgeries

Judges Christopher Murray, Jane Markey and Stephen Borello, constituting a panel of the Court of Appeals, handed down several opinions this week, all of which managed to result in victories for an insurance company.  Among them:  the dismissal of Gunnard Kyllonen's injury case against William Luepnitz.  Luepnitz had caused a car accident in which Kyllonen suffered a shoulder injury.  Kyllonen endured two surgeries on the shoulder (one to insert a screw and another to remove it) and pain, limitation of work and recreational activities, and some continuing disability.  The judges held that his injury was not a "serious impairment."

Court reaffirms: no remedy for Michigan insureds when Farm Bureau acts in bad faith

Shirley Nixon sued Farm Bureau General after it refused to pay benefits under her homeowner's policy and accused her of intentionally setting fire to her home.  The trial court refused to dismiss her "bad faith" claim or her cause of action for "intentional infliction of emotional distress."  Farm Bureau appealed to the Court of Appeals, arguing that even if it acted in "bad faith" and wrongfully denied Nixon's purchased benefits, she had no claim for damages.

Citing an earlier case where Blue Cross wrongfully refused to pay for treatment of Stage IV metastatic breast cancer treatment, the Court of Appeals reversed the lower court ruling in Nixon's case and dismissed her claim for "bad faith."  The Court held that "the mere failure to pay insurance benefits" does not create a cause of action against the insurer in Michigan.  Unlike most states, Michigan does not recognize a cause of action for bad-faith refusal to pay an insurance claim, no matter how egregious the insurer's conduct, as "[f]ailure to pay a contractual obligation does not amount to outrageous conduct, eve if it is willful or in bad faith."  

Do you still have doubt about the power of insurance companies to control the law in Michigan?

State Farm not required to pay uninsured motorist benefits where suit not filed within one year

Kimberly Idalski was seriously injured in a motor vehicle collision.  She had bought Uninsured Motorist [UM] benefits from State Farm, and the at-fault driver turned out to be uninsured.  In theory, this would allow Idalski to recover from her insurer, State Farm, for any damages the uninsured motorist should have paid.  Although Idalski sued within the three-year statute of limitations provided by law, she did not provide a formal notice to State Farm or file suit within the shorter period State Farm imposed in the contract.  Her attorneys argued that State Farm had suffered no prejudice by Idalski's failure to comply with the shorter notice and suit period, but the Court of Appeals held that State Farm need not show prejudice:  it was allowed to enforce the shorter limitation period without regard to any claim of harm or prejudice. Most insurance companies do not impose a contractual limitation period that is shorter than the period provided by law:  the so-called "Engler Majority" allowed insurers to impose a shorter limitation, however, during a period of insurer-favored activism that lasted most of the past decade.

Texas resident cannot collect Michigan PIP benefits from his insurer

Rochelle Washington, a Texas resident driving a car registered in Texas, was injured in a Michigan car accident.  Initially, her insurer, "Old American County Mutual Fire Insurance Co.," paid her PIP benefits.  After paying a little over $13,000.00 in medical and wages, however, Old American stopped paying and Washington sued it and Titan Insurance--the assigned insurance company under the Assigned Claims Plan. Old American is not registered in the State of Michigan, and therefore not obligated to pay PIP benefits under Michigan law; it could still be obligated under the terms of its policy/contract.  The Court of Appeals concluded that it was not, however.

Court determines question of employee or independent contractor is one for the jury

Bristol West and Amerisure Mutual ended up in Court, arguing over who should provide PIP benefits to an injured truck driver.  Bristol West insured the driver for no fault benefits, while Amerisure insured the company for whom he was driving.  The trial court had heard the evidence under the "economic reality" test and the McKissic opinion, and concluded that the driver was an independent contractor.  The Court of Appeals reversed, sending the case back for the jury to resolve the factual disputes arising out of controverted testimony.  Witnesses disagreed over some of the factors determining employment status, and ultimately the issue was one for the finder of fact to sort out:  the Court was not allowed to make findings of fact in order to support its ruling over independent contractor status.

Victim of ATV injury suffered on highway can collect PIP benefits: Farm Bureau pays costs

Leslie Shankster was injured in a single-vehicle accident involving his ORV.  The accident occurred on a public road.  Since the ATV has four wheels and was operated on a public road, Shankster is entitled to collect no fault PIP benefits, even though the ATV was not insured-- or insurable-- as a no fault "motor vehicle" (because it was not 'designed for use on the highway').  Farm Bureau attempted to get around the existing law by arguing that as a matter of public policy, occupants of ATVs should never be entitled to obtain PIP benefits, even though the plain language of the no fault law had made them eligible when riding on a highway, for 30 years.  The appellate court unanimously rejected Farm Bureau's arguement and awarded costs to Shankster as the prevailing party.

Allstate forced to pay seven-figure PIP claim over technical objections

Jerome Crutcher-Bey suffered a catastrophic head injury while a passenger in a motor vehicle collision in 2003.  His Personal Injury Protection (PIP) claim for medical expenses was assigned to the Auto Club (ACIA), which paid out over one million dollars.  The ACIA then sought reimbursement from Citizens, the owner of the car, and Allstate, the insurer of the injured boy's brother.  With agreement of the parties, the trial court conducted an evidentiary hearing to determine whether Crutcher-Bey was actually domiciled with his brother in the Allstate-insured household.  The judge concluded that he was, and held Allstate responsible for the medical expenses paid by the Auto Club.

Insurer bit by consequences of judicial activism

Several years ago, the Michigan Supreme Court was dominated by a group of Justices hand-selected by Governor Engler for their fidelity to the Chamber of Commerce and the insurance industry.  In a 4-3 decision, these Justices reversed a 19-year old precedent and re-interpreted the no-fault law to limit PIP actions by a one-year statute of limitations. This week, their decision cost an insurer thousands of dollars in reimbursement.

Uninsured Motorist insurer can't avoid coverage on a technicality

Annie Smith was injured in a motor vehicle collision.  She sued the at-fault, who turned out to be uninsured.  Her attorneys wrote to her insurer, MEEMIC Insurance Company, informing them of the latter development and seeking to negotiate her Uninsured Motorist (UM) claim.  MEEMIC refused to respond.  Smith's attorneys obtained a default judgment against the at-fault and then sued MEEMIC.  The trial court dismissed Smith's action against MEEMIC, in reliance on MEEMIC's policy provision that voided its UM Coverage in the event that the insured settled with, or took a judgment against, the at-fault.  Smith's attorneys appealed.

Court addresses complicated interaction between no fault PIP benefits and ERISA health plan

The Hillsdale Community Health Center provided physical therapy to a 16 year-old who was injured in a motor vehicle collision.  She was driving a car insured with Pioneer State Mutual Insurance Company, and she had health insurance with Empire Blue Cross Blue Shield through her father's employer.  The two insurers responsible for her medical care both claimed that  the other had priority and should be paying the bills, leaving HCHC [and many other providers] unpaid.  Ultimately, the court determined that Empire Blue Cross should have been paying and it assessed attorneys fees in favor of HCHC.  Empire Blue Cross appealed.  Among many other arguments, it claimed that its denial of payment was justified by the fact that the insured did not secure its consent after 20 therapy sessions, that HCHC lacked standing to sue for the payments and that under ERISA, HCHC and the insured had failed to exhaust their administrative remedies prior to suit.

Farm Bureau punished for "lying in the weeds" on experts

Laura Putnam-Wesener suffered a head injury, apparently, in a motor vehicle collision.  She sued the other driver and she also had to fight with her own insurer, Farm Bureau, to collect PIP benefits.  Ultimately, she settled the claim against the at-fault.  In the meantime, Farm Bureau sought leave of the court to add as expert witnesses the neurologist and neuropsychologist who had examined the injured woman for the at-fault's insurer.  The problem was that Farm Bureau sought to add the experts 18 months late, and the Court had already extended the expert witness deadline once to accommodate Farm Bureau's request to add expert physicians.

Intoxicated pedestrian cannot sue driver and infer fault

A gentleman named Williams was admittedly intoxicated when he was struck by a motorist on a dark and rainy early morning on 7 Mile Road.  He filed a lawsuit over his injuries, claiming that the driver's prior statements were inconsistent and that the inconsistencies allowed an inference that she did not exercise due care.  The Court rejected Williams' claim.  His admitted intoxication meant that Williams could not recover unless he proved that the driver was more at fault than he was.  The statements alluded to in Williams' appellate brief did not support negligence by the driver and were inadequate to constitute a reasonable basis for a jury to conclude that the driver was more at fault than Williams. The dismissal of his claim was affirmed.

State Farm clobbered after refusing to pay for pain management

The Court of Appeals recently affirmed a $2.5 million dollar verdict in favor of Sheri Anderson against State Farm Mutual.  Anderson suffered from facial pain and headaches after striking the car window in a motor vehicle collision.  Already suffering from multiple sclerosis, Anderson received pain treatment from anesthesiologist Maurice Converse, an M.D. who graduated from Ohio State's medical school.  His treatment included facial injections of steroids, anesthetic and Sarapin.  State Farm covered the treatments for about three years before rejecting payment.  Converse continued to treat Anderson without payment, and she filed suit for Personal Injury Protection benefits. 

State Farm argued to the jury that the treatments were unnecessary, inappropriate, and valuable to Anderson because of her underlying MS, rather than the motor vehicle injuries.  It also argued that Anderson was malingering.  Both sides presented expert testimony to support their claims.  The jury rejected State Farm's defense and awarded Anderson and Converse the full amount owed, including punitive interest.

The unanimous Court of Appeals panel noted that State Farm was cherry-picking the evidence on appeal, and that the trial court had properly limited some of State Farm's evidence in response to State Farm's failure to properly comply with discovery requirements of the Court.  It concluded that the jury verdict was an appropriate outcome under the circumstances of the evidence presented.

Spleen injuries and "serious impairment"

When the Engler Majority of the Michigan Supreme Court jacked up the proof required to document a "serious impairment of bodily function" under the no fault act, one group of victims denied compensation was composed of people who suffered injuries to the spleen.  In a number of cases, Michigan courts applying the "life-altering injury" standard engrafted on the threshold by insurance activists had held that a victim's spleen injury was not "serious," even if it resulted in a major operation and removal of the spleen.  Recent medical research has documented the short-sighted unfairness of these decisions.

Court overturns absurd "serious impairment" decision

In its recent decision in Caiger v. Oakley, et al., the Court of Appeals unanimously reversed a St. Clair County judge's dismissal of Donald Caiger's injury claim.  Caiger suffered a knee injury in a car accident caused by Oakley in 2005.  Within weeks, Caiger's doctor performed arthroscopic surgery on the knee, and 11 months after the collision Caiger was forced to undergo a knee replacement. 

Michigan Supreme Court to reconsider Kreiner no fault "serious impairment" standard?

The Associated Press reported on August 21 that the Michigan Supreme Court has agreed to reconsider a case involving the "life-altering" serious impairment interpretation of the no fault law adopted by Justice Clifford Taylor and the so-called Engler Gang of Four.  The latter justices, hand-selected by then-Governor Engler with an eye toward cozying up to the Chamber of Commerce and the insurance industry, adopted a number of lawsuit "reforms," including a re-analysis of the no fault threshold that severely limited when injured car accident victims could sue. 

Auto Club must pay PIP benefits to woman exiting her car

Michigan's No Fault auto insurance scheme requires that an auto insurer pay PIP benefits (medical and three years of wage loss or domestic services) if someone is injured while "entering or alighting" from a motor vehicle.  Florine Burks was getting out of her daughter's car, after a trip to the grocery store, when the car was hit by another car.  Florine had both of her feet on the ground, but was in the process of removing her groceries from the back seat when she noticed the out-of-control car, pushed the door closed and attempted to "brace her body" against the car.  The Auto Club argued that since she did not have either foot inside the car, the court should create a bright-line distinction and hold that she was not "entering or alighting" from the car and not entitled to no fault PIP benefits.

The Court rejected this approach and required the insurer to pay PIP benefits, noting that by any reasonable interpretation of the events, Ms. Burks was in the process of gathering her bags of groceries and leaving the car when the injury occurred. 

Probate Court can order no fault insurer to pay injury victim's attorney fees

Ever-aggressive Farm Bureau was the no fault insurer responsible for Jennifer L. Geror's medical expenses.  When questions arose over the adequacy of care being provided to Geror--who is not mentally competent--the Court appointed a guardian at litem to represent her interests.  Even though Michigan courts have recognized for almost 15 years that guardianship expenses are an "allowable expense" under the no fault act, Farm Bureau refused to pay Geror's guardian's legal fees, claiming the Probate Court lacked jurisdiction to require the payment.

The Court of Appeals unanimously rejected Farm Bureau's argument, noting that the fees were "expenses incurred for the reasonably necessary services for an injured person's care" and were thus payable under MCL 500.3107(1)(a).

Insurer can't avoid payment of no fault PIP benefits

Met Life Auto and Home denied Harless Hairston no fault PIP benefits when he suffered serious injuries in a car accident.  Met LIfe argued that it was entitled to consider Hairston an "owner" of his mother's car because she had loaned it to him for more than 30 days.  It argued that since Hairston was a Michigan resident and his mother insured the car in Illinois where she lived, Hairston could be denied benefits as the owner of an uninsured vehicle, even though he was not operating it at the time of his injuries.

The Court noted that under the facts of this case, the car was properly insured in Illinois, and that in accordance with MCL 257.243(1), the vehicle was not required to be insured in Michigan.  Therefore, even though Hairston was occupying (not driving) a vehicle that was not insured under Michigan's no fault scheme, he was still entitled to PIP benefits--which were paid under a policy issued to the uncle with whom he lived.

Court of Appeals sends PIP claim back to Wayne County Circuit bench

In James v. AAA Insurance Company, the Court of Appeals held that the Wayne County Circuit Court would have to take a second look at James' PIP claims.  The lower court had held that James could not collect for her hospital billings because she did not admit into evidence the actual itemized hospital billings, however, the Appellate Court ruled that James' testimonial evidence was adequate to support an award of these expenses, if the jury chose to believe the testimony:  she was not required to offer the "best evidence" of the expenses reasonably incurred, leaving the jury to decide what weight should be given her testimonial evidence.

Court upholds $90,000.00 fee award against Farm Bureau for unreasonable delay in paying benefits

Daniel Bamm was injured in a motor vehicle collision.  All three of his treating doctors agreed that his newly-identifed herniated discs were caused by the accident, however Farm Bureau refused to pay the related Personal Injury Protection (PIP) benefits, claiming that his back problems predated the collision.  Ultimately, the jury found that the back problems were related to the collision, and the trial judge hit Farm Bureau with $90,000.00 in attorney fees, finding that it "unreasonably delayed payment" of benefits.  The Court of Appeals upheld this award.

Another study documents "crazy" risk of texting while driving

The Virginia Tech Transportation Institute recently published data it procured from a study financed by the Federal Motor Carrier Safety Administration.  The study videotaped 100 long-haul truckers constantly for 18 months.  It concluded that a texting driver is 23 times more likely to be involved in a motor vehicle collision.  It regularly observed texting drivers take their eyes off the road for five seconds or longer--long enough to travel the length of a football field.  The study confirmed the results from several previous studies, leading the director of the Institute to conclude "You should never do this, it should be illegal."

Comparative fault of drivers is not a question of law for the court

The Sixth Circuit reversed the District Court in an Eastern District case this month, and sent a death case back to the lower court for a new jury to consider.  In Biegas v. Quickway Carriers, Inc., the widow of a dump truck driver sued the driver and employer of a semitractor that struck her husband after he climbed out of his disabled truck on the freeway shoulder.

Court of Appeals affirms fraud-type verdict against State Farm

In 2004, Patricia Paquette sued her son Richard's auto insurance carrier, State Farm, for fraud and misconduct related to its failure to pay Personal Injury Protection benefits for Richard's care.  Richard suffered a catastrophic brain injury in 1985 and Patricia cared for him at home.  She maintained that State Farm concealed its duty to pay a reasonable sum for attendant care and basically defrauded Richard of his right to benefits.  State Farm claimed that it had no duty to advise her with regard to her son's legal PIP benefits and that, in any event, even if it committed misconduct, Ms. Paquette was too late in filing suit.

Court decides catastrophic claim fund cannot "second-guess" PIP settlements

Under the no fault act, when no fault PIP expenses (medical and the first three years of wages and replacement domestic services expenses) exceed a statutory minimum, they are deemed "catastrophic" and the insurer is indemnified through a fund established under the statute, and governed by an association of insurers called the Michigan Catastrophic Claims Association.  The MCCA was given statutory authority to establish rules governing the management of the fund among its member insurers, but it sued recently seeking the authority to deny indemnification for PIP payments it deemed "unreasonable."

Sometimes what we really need is a man of the cloth: police chase goes to jury

Mary Ann Hennig sued the City of Troy and one of its officers after she suffered significant injuries in a car accident.  She was traveling on I-75 when she was rear-ended at high speed by a police vehicle involved in a chase.  The City appealed after the trial court refused to dismiss the claim; the City argued that the claim should be dismissed as a matter of law, but the trial judge said there were too many disputed facts to render judgment for the City and its officer.

Woman's right to attendant care under no fault is rejected

Charlotte Chalko sued State Farm for 24 hour attendant care.  Chalko is obese and has other health problems, and suffered a severe ankle fracture in a motor vehicle collision.  She claimed that the ankle fracture compounded her existing physical problems, resulting in respiratory failures and the need for full-time attendant care.  She presented the testimony of her doctor in support of her claim, but State Farm hired two doctors who testified that any need for attendant care was solely the result of her other health problems and unrelated to her ankle injury.

Michigan House hears insurer complaints; considers reforms

The Detroit Free Press reported on July 14 that the State House was conducting hearings on a series of bills that would punish insurance companies or executives who encourage the wrongful denial of claims.  The bills would authorize the Insurance Commissioner to levy fines and civil penalties and even provide criminal penalties for wrongful conduct.  The bill will go nowhere, however, since the State Senate is controlled by a Republican majority that will never reform insurance law in Michigan to favor consumers. 

Despite record profits by insurers, the Republican majority in the Senate has treated the insurance industry as a "favored child" because of its special interest lobbying wealth.  For a simple example, the no fault maximum limit for domestic replacement services payable to accident victims under the no fault act remains at $20.00 per day as established in 1974; the minimum statutory no fault liability coverage has not been increased from $20,000.00 as written in the same original bill.  It goes without saying that if $20,000.00 dollars was a reasonable potential level of compensation for "death, permanent serious disfigurement or serious impairment of bodily function" in the 70s, it is grossly inadequate today, but Michigan insurers and their Republican toadies have battled any inflationary up-date to a standstill on several occasions.

It will not surprise experienced attorneys to learn that Jo Anne Katzman, a claims adjuster from Bloomfield Hills who supports the bills, told reporters that she quit Allstate Insurance Company in 2003 because she and other adjusters were "pressured to deny claims to people who deserved them."  Allstate is the company that single-handedly led a change in the insurance industry from a fiduciary "good hands" identity to a no-holds-barred, "boxing gloves" approach to claims management that placed profits above the interest of its insureds.  That entire development and the enormous resulting profits have been documented in earlier entries of this web log.

Allstate achieves dismissal of PIP claim on a technicality

Kinda Kayl suffered a knee injury in a 1994 motor vehicle collision.  Ten years later, she was still having trouble and required medical care which her doctor attributed to the collision.  Under Michigan's no fault law, if Kayl's current care was caused, in part, by the prior collision, Allstate, her insurer at the time, was obligated to pay the medical expenses.  Kayl filed suit, and Allstate sought summary disposition claiming the recent care was caused by a more recent collision and not by the 1994 injuries.  Allstate's attorney also argued, at some point, that Kayl had not properly submitted evidence of her current expenses and treatment.  Her attorney responded with an affidavit documenting her submission of claims, however, Kayl's signature was not secured on the affidavit until after the hearing.

Quadraplegiac gets a new van under no fault rules.

Neil Begin was rendered a quadraplegiac in a motor vehicle collision while he worked for Michigan Bell Telephone.  Bell is self-insured for no fault and workers compensation.  It argued that since Begin drove a van before his injuries, it should not be required to provide him with a replacement van after his wore out; it relied upon the Engler majority's decision in the Griffith v. State Farm case, where the Court ruled that the no fault insurer was not required to compensate a seriously-injured accident victim for necessities that non-injured persons also require.

Eleven-year old with multiple fractures can't sue the drunk

In Cottrill v. Craig Kenneth Senter, two judges of the Court of Appeals recently held that an injured eighth grader could not sue the drunk who crossed the center line and hurt him.  The two judges ruled that even though there wer intimations of a head injury, and proven evidence of a fractured wrist, comminuted fracture of bones in the foot, and fractured ribs, the minor plaintiff had not alleged a "serious impairment of bodily function."

The dissenting judge pointed out that the drunk (with a .30 blood alcohol) caused the boy to miss two months of eighth grade and two full seasons of football, along with enduring several months of inactivity and an episode of difficulty breathing resulting from the multiple rib fractures.  He was still experiencing residual chest pain and had gone a full month without weight-bearing, along with needing attendant care for several weeks.

The two judges who dismissed the case determined that young Cottrill's injuries "did not change the trajectory of his life," applying the Engler Majority's Kreiner standard of "serious impairment."  The majority opinion pointed out, a propos of the latter conclusion, that the boy testified "he did not expect [his rib pain] to continue much longer."  We are glad to hear that an eleven-year old's anticipated prognosis for his own injuries is now admissible on the subject of "serious impairment."  Clearly the standard of intellectual analysis and discourse in our judiciary is becoming elevated.