TOV Injury and Safety Blog

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.

No fault PIP application is adequate notice of victim's injury and potential third-party claim

Vivian Atkins was injured when two Suburban Mobility Authority for Regional Transportation (aka "SMART" buses) collided in Wayne County.  She filed an Application for no fault PIP benefits promptly, and later filed a lawsuit alleging a more serious "third-party" injury meeting the "serious impairment" threshold.  Her claim was dismissed on the theory that she had provide only "notice of her injury" and not "notice of her claim" within 60 days.  The Court cited the controversial "Engler Gang of Four" Rowland v. Washtenaw County Road Commission decision, for its holding that the SMART defendant need not show that it was prejudiced by any defect in Atkins' Notice.

Woman can sue dealership for failing to identify needed repairs

In a complicated case, Ruth Webb's car shuddered and vibrated after it was repaired following a minor collision.  She complained repeatedly to Progressive Insurance and Adrian Dodge, the entity that was paid to fix the front end.  Adrian Dodge claimed it couldn't find anything else wrong and Progressive claimed that any additional problems with the car related to normal "wear and tear."  Webb had the vehicle examined by other mechanics who confirmed collision damage, but when she sued Adrian Dodge in Small Claims to compel it to complete the repairs, the magistrate ruled against her. 

A few weeks later, she lost control of the car when it began vibrating and Webb was badly hurt in a collision. A mechanic who examined the vehicle found damage in the left tie rod socket and steering knuckle that he felt was related to the original collision and the vibration problem--and which he believed caused the second collision.

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).

Dental injury is a "serious impairment of bodily function"

Brian Fisher was stopped at a stoplight when he was rear-ended by Derrick Blankenship.  His face struck the steering wheel and among other minor injuries, he lost a tooth.  Ultimately, his dentist concluded that when the traumatic injury was combined with other pre-existing dental problems, the 42-year old Fisher needed to remove 14 of his upper teeth and replace them with a prosthesis.  Fisher did not lose much work and still engaged in all of his normal activities, however, he noted that  his appearance was changed, that some days it took him 45 minutes to an hour to adjust the prosthesis, that it sometime made him drool and altered his speech, and that he experienced difficulty eating certain foods. He also testified that it created a "severe gag reflex" and was often painful, awkward and frustrating.  Two judges of the Court of Appeals agreed with the lower court that Fisher's injuries constituted a "serious impairment" and a "permanent disfigurement," even though the impact of the injuries was diminished by the prosthesis.

Judge Kirsten Kelly, who tends to favor the interests of insurers, noted that Fisher "remains employed,"..."takes no medication"..."continues to engage in his favorite hobby"...and "his weight has remained constant."  Citing these facts and others, she would have dismissed Fisher's claim as neither "serious" nor a "serious disfigurement."

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. 

5 months in wheelchar, 5 more with walker, followed by need of cane to walk doesn't prove "serious" injury

Judges Christopher Murray, Jane Markey and Stephen Borrello wrapped up a good month for the insurance industry by ruling against Linda Berishaj on her "serious impairment" claim.  The judges found a basis to throw out each of the injury cases on their docket, completing a "clean sweep" on Friday by dismissing four cases.  In Berishaj v. Shkreli and Auto Club, the judges ruled that a woman injured in a car accident couldn't sue the at-fault driver, even though her injury was objectively manifested and signficantly impaired her ability to walk.  The evidence showed that Berishaj was confined to a wheelchair for five months, used a walker for five more, and then began using a cane to ambulate:  the judges concluded this was not adequate proof to demonstrate that she had suffered a "serious impairment of bodily function." 

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."

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 re-states basic obligations of operating motor vehicle with due care

In McCuish v. Hallie Nicole Jaffe, the Court of Appeals took pains to re-state the obligations of a motorist charged with negligence after striking a pedestrian.  The Court noted that bystanders and physical evidence both supported the interpretation that the pedestrian had mistakenly stepped into the side of Jaffe's vehicle.  Other than a single witness' suggestion that Jaffe was driving "45 to 50" miles per hour in a 45-mph limit zone, there was no evidence to suggest a deviation from the standard of care by the motorist. 

While Jaffe could have been negligent if she had failed to observe the approach of a pedestrian who is "able to be seen coming in to...her path [if] the driver fails to stop when he or she is capable of doing so," there was nothing in McCuish's behavior that served as a warning to Jaffe.  He was one of a group of high school students standing at the curb, waiting for traffic to clear, when he apparently stepped out without warning.  Under the circumstances, there was no foundation for McCuish to pursue a claim against Jaffe, and no basis for a jury decision of negligence.

Trial judge's grant of new trial is reversed by Court of Appeals

Sallie Smith was allegedly hurt when Michael Lundeen made a left turn in front of her on a winter day.  He argued that she was speeding and ran a red light, but never offered that excuse to the investigating officer.  The jury found in favor of Lundeen, but the Court granted a new trial, finding that the verdict was "against the great weight of the evidence."  The judge pointed to the inconsistency of the Defendant's excuses and also the fact that the Defense attorney violated the judge's pre-trial ruling precluding him from offering weather as an excuse and from bringing up the plaintiff's denial of Social Security Disability.

Citizens Insurance allowed to rescind its umbrella policy after car accident

Cyrus Trent was killed in a motor vehicle caused by Hilda Mae Rippy, the mother of Barbara Goldmanl   The Estate of Trent sued Rippy but Citizens refused to honor the liability policy that would otherwise have provided umbrella protection to Rippy and the Goldman family.  Citizens argued that under the Oade v. Jackson National LIfe case, it owed no coverage because the Goldmans had not included Rippy--who lived above their garage--as a member of their "household" in their original application for the umbrella insurance policy.  In the Oade case, the insured's life insurance application had accurately stated that he had never been hospitalized with cardiac concerns when he submitted it, however, he had been seen in the Emergency Room and hospitalized with chest pain prior to the issuance of the policy.  His failure to up-date his application was deemed to be a material misrepresentation.

Court dismisses litigant's claims in response to uncivil behavior

David Aslani sued State Farm and its insureds, alleging injuries resulting from a motor vehicle collision.  The Court became frustrated with the behavior of both plaintiffs and State Farm, declaring the case "a mess" and asserting control over the scheduling of discovery.  When Aslani appeared for his court-ordered deposition, however, he refused to answer certain areas of questioning and engaged in an obnoxious colloquoy with the State Farm attorney; when his behavior was challenged before the trial judge (who, by now, had had enough), he argued that while he was ordered to appear for the deposition, he wasn't ordered to answer questions.  The trial judge dismissed his injury claim and Aslani appealed.

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.

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. 

Transportation Authority loses argument that unloading bus passengers is "not operating a motor vehicle."

In Horvath v. Don Johnson, et al., the Court of Appeals rejected the defendant's claim that loading and unloading bus passengers does not constitute operating a bus "as a motor vehicle".  Under governmental immunity statutes, governmental entities remain responsible for their employees' negligence in operating motor vehicles.  The so-called "Engler Majority" or "Gang of Four" insurance-oriented Justices of the Supreme Court have interpreted this statute in a way that has denied standing to a number of injury victims.  For example, it has held that maintaining a bus, conducting a police chase, or plowing snow may not constitute "operation of a motor vehicle"--even if the actor is doing precisely that.  This trend was rejected in the Horvath case, however, when the Court of Appeals dismissed the bus authority's claim that unloading passengers was not "operation" of the vehicle.

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.

Farm Bureau can't re-write insurance contract to reduce coverage from 300K to 20K

Tracie Couture's husband, while driving a motorcycle, was killed by a negligent driver.  The at-fault driver was insured with Farm Bureau.  Prior to the fatal collision, the at-fault's husband had asked his insurance agent to reduce the cost of their auto insurance coverage.  The agent re-wrote the terms of the policy to eliminate or reduce several coverages, but by mistake Farm Bureau increased their liability coverage to $300,000.00.  The insured, Rodney Daniels, paid the insurance bill--now reduced--without noticing that his liability coverage and premium had actually increased.  After Couture's husband was killed, however, Farm Bureau attempted to reduce the coverage to $20,000.00, even though Daniels had paid for the greater coverage.

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.

Bush Administration withheld data on danger of cell phone use while driving

This month, the Center for Auto Safety and Public Citizen published data they secured through the Freedom of Information Act, documenting the significant safety risk associated with cell phone use while driving.  The federal Transportation Department had gathered this information in 2005 and 2006, but did not disseminate it during the Bush Administration in order to maintain favor with the cell phone industry. Until 2009, the latter industry argued that cellphone use while driving was not a danger and should not be regulated.

Cement falls from overpass injuring doctor--he MIGHT have valid claim against road authority

Dr. Anthony Adeleye was hurt when a chunk of concrete fell from the M-39 overpass and struck his windshield, as he was driving south on the Lodge.  He sued the Michigan Department of Transportation (MDOT) for failing to properly maintain the overpass bridge.  Luckily, his attorneys alleged that one cause of the deterioration of the bridge was the failure to maintain the roadway surface that rested on the bridge.  MDOT argued that it should have no responsibility for failing to properly inspect and maintain the bridge because its statutory duty to "maintain a reasonably safe roadway" applies only to the traveled surface and not to the structure supporting it.

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.

Court can't require security bond because injured teenager is evasive in identifying friends

Rachael Venzuch underwent several spinal surgeries after severe injuries in a car accident.  She was left with significant permanent restrictions as a result and filed a lawsuit against the at-fault driver. In defending her case, the insurance attorneys apparently took some photographs from her social networking site (a common practice today) and attempted to use them to cross examine the girl.  She was allegedly evasive in replying to the attorneys, supposedly failing to forthrightly provide last names of companions and failing to assist in making them available for depositions.  At the insurer's request, the trial court ordered that she supply a $10,000.00 bond before going forward with her case; her attorneys appealed this order.

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.

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.

Pothole claims against City and driver are defeated after passenger suffers neck injury

Laura Woods required surgery on her neck after Margaret Naylor drove into a pothole containing wet cement.  Woods was a passenger in Naylor's car as they approached a work scene.  The City had posted no barriers or warnings, and both women claimed to have seen the pothole only at the last moment.  The claim against the City was dismissed because proper notice wasn't given--even though City workers were at the scene and observed the incident--and the jury then concluded that the driver was not at fault.

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.

State Trooper's fail to yield right-of-way is not "gross negligence"

In Sulskis v. Van Effen, the Court of Appeals dismissed the injured motorist's negligence claim against a State Trooper who made a left turn directly in front of him.  The Trooper admitted fault, acknowledging that he never saw the oncoming Plaintiff despite adequate visibility, but claimed governmental immunity for his error.  The trial court had held that whether he was guilty of gross negligence, thereby negating immunity, was a question of fact.  The appellate court ruled that Sulskis had only presented evidence of ordinary negligence and therefore his case against the trooper should be dismissed.

Doctors' affidavits establish question of fact regarding traumatic brain injury

In MacDonald v. Koch and Norandex Reynolds Distribution Co. the Court of Appeals recently held that affidavits filed by the injured man's doctors were sufficient to create a question of fact with regard to whether MacDonald had suffered a traumatic brain injury that constituted a "serious impairment of bodily function."   MacDonald had sued the at-fault driver and his employer after a motor vehicle collision.  By law he must prove that he suffered a "threshold" injury, and the pertinent statute addresses the proofs necessary to prove a head injury separately from other injuries. 

Insurer allowed to exclude coverage arising from use of an auto

The Estate of Michael Verschure sued Essex Insurance Co. after Michael was run over in a bar parking lot.  Essex wrote liability insurance on the bar, "Wild Woody's" in Roseville.  Essex denied responsibility for the incident, claiming the events leading to Verschure's death were not an "occurrence" under the policy, that liability was excluded as an "intended injury" and that the broad auto-related injury exclusion in its policy applied to Michael's death.

Herniated disc suffered while adjusting trailer "dolly legs" is not an "accident"

The Court of Appeals concluded that Marshall Munger's case against Transguard Insurance Company should be dismissed because the injuries he suffered were not caused by an insured "accident."  Munger, an over-the-road truck driver, ruptured a disc while adjusting his trailer's dolly legs.  He claimed benefits under the defendant's insurance policy, arguing that "torquing" the disc between L-4 and S-1 constituted an "accident," but the court ruled that an accident under the policy does not include an injury that results from voluntarily-initiated activity.  The Court held that Munger needed to allege an "event" that was unforeseeable, unexpected and unintended, not merely an injury that met that definition.