TOV Injury and Safety Blog

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.

Dump truck parked in dangerous location was not "operated"

In another example of the semantic fictions to which some courts have resorted to achieve "tort reform", the Court of Appeals recently ruled that an allegedly dangerously located Department of Transportation  [MDOT] dump truck had not been "operated" as a motor vehicle.  In Brumfield v. LaBair and MDOT, the plaintiff was precluded from offering testimony that the MDOT truck he rear-ended in the left lane of the Lodge Freeway moved slowly into his lane, because he had failed to timely answer Requests for Admission.  As a result, he was limited to arguing that even if the truck was stationary, as alleged by the defendant driver, its location rendered it unsafe for approaching motorists.  The Court ruled that if it wasn't being operated at the time of the accident, the Department was immune from a negligence claim because parking the truck in a stupid location does not constitute the "negligent operation of a motor vehicle." 

Dealer's insurer must provide primary coverage to customers

The No Fault Act requires vehicle owners' insurers to provide "primary" insurance coverage to all consensual users of the vehicle.  Over the years, self-insurers and insurers writing commercial insurance have attempted to side-step this obligation by writing exclusions and limitations into policies.  In a fairly significant ruling last decade, Enterprise Leasing was required to provide primary coverage for rented vehicles and was not allowed to limit its coverage to the statutory minimum of $20,000.00 per injury.  This month, the court rejected Auto Owners Insurance Company's effort to deflect primary coverage on so-called "garage customers" of dealerships.

Progressive's attempt to avoid coverage is rejected in death case

Progressive wrote insurance on the trucks operated by Rozafa Transport, however when William Neill was killed during the unloading of one of Rozafa's trucks, Progressive denied coverage.  The insurer admitted it had coverage if liability arose out of the "use, ownership or maintenance" of the semi-tractor and trailer, however, it argued that since a forklift was being used in the unloading process, the coverage was eliminated by an exclusion relating to injuries "caused by movement..of an unattached..mechanical device."

Fraud case against Auto Club allowed to proceed

Sharon Strozewski sued the Auto Club Insurance Association, alleging that it fraudulently denied her proper payment for quitting her job to care for her two small children who suffered severe brain damage in a car accident.  Her case came back to the Court of Appeals, after appeal to the Supreme Court, to determine whether the insurer could properly be charged with defrauding two brain-damaged very young children.  The Court concluded that even though the children were no misled by the alleged fraud, their representative, Strozewski, was:  therefore a fraud case was viable.

Over-reaching Farm Bureau claim gets dunked

Bill Carpenter, a Farm Bureau insured and Michigan resident, was working in Indiana when he was hurt in a car wreck. The at-fault, Wendy Black, happened also to be a Michigan resident.  Indiana, like Michigan, requires injury victims to bring suit in the County where the injury occurred.  When Carpenter sued, however, Farm Bureau ran to court in Michigan and filed its own suit, seeking to force Carpenter's case in Indiana to be dismissed.  Turns out that Farm Bureau liked Michigan law better and wanted a court to apply Michigan law because the two drivers were both from Michigan.

Court decides ambiguity in medical chart against injured plaintiff: "no serious impairment"

In Patreka v. Brandi Cordle, et al., the Court of Appeals upheld the lower court's decision that Patreka had not suffered a serious impairment, even though she claimed that she was off work for nearly two years, pursuant to doctor's orders.  Patreka alleged that her motor vehicle injuries disrupted her social life and domestic duties, and also that her doctor had kept her off work through February  of 2005, when the doctor entered this note in her chart:  "I have given the patient a note that she continues to be unable to work."  In 2004, the doctor had charted "I have continued to keep the patient off work."

Stunningly, the lower court and the Court of Appeals decided these statements did not create a question of fact with regard to whether the doctor had restricted Patreka's return to work.  Both suggested that the statements were only documentation of Patreka's choice not to return to work and that Patreka had not met her burden of demonstrating physician restrictions that constituted a serious impairment of bodily function.  Because she had not proved a "serious impairment", Patreka's case was dismissed and she was not allowed to collect any non-economic damages from the at-fault driver.

Reading between the lines of the opinion, it appears that there was a substantial question with regard to the objective manifestation of Patreka's injuries, and the Court engaged in the previous fictive analysis in order to achieve a result with which it was more comfortable.  There was probably a suspicion that if the doctor actually considered Patreka unable to work during this period, her attorney should have taken the doctor's deposition to confirm it.  Nevertheless, it is another example of how "bad cases make bad law" as the court turned to semantic gymnastics in order to dismiss a case it did not feel comfortable with.

Court refuses to interpret Release to immunize third-parties: no free ride for State Farm

Regina Randolph was struck by a car, landing in the center of a Pontiac Street.  While bystanders activated flashers and attempted to assist her, she was struck again by a drunk driver and killed.  Titan, the cheap insurer for the first driver, paid its liability limits of $20,000.00 in settlement to her family and required that they execute a release.  The family then sued the drunk who last struck Randolph and the bar where the drunk had been drinking, along with Randolph's own Uninsured Motorist insurer, State Farm.

State Farm and the bar persuaded the trial court to dismiss the family's claims against them, arguing that they had been released by the boiler-plate language in the earlier Titan release.  The Court of Appeals reversed.  Two judges distinguished the language and facts of this case from the Romska v. Opper decision, where a similar argument was upheld.  These judges ruled that this incident involved two separate "accidents" and therefore the broad release language in the Titan release did not apply to State Farm. 

In a brief but well-reasoned concurrence, Judge Wilder pointed out that by prior Supreme Court precedent, State Farm and the bar were not direct "third-party beneficiaries" intended to benefit from the language of the Titan release.  In Koenig v. South Haven, the Engler majority had held that the family of a young man who drowned on an ill-protected breakwall could not sue the City for failing to maintain the breakwall in accordance with its contract with the State, as potential injury victims were not "intended third-party beneficiaries."  Judge Wilder logically pointed out that if this law applied to deny injury victims' rights, it should also apply to potential defendants who claimed to be third-party beneficiaries to a contractual arrangement.

The case is Brown v. State Farm Automobile Insurance, et al.

Fiat can take Chrysler assets without its responsibilities

Bankruptcy judge Arthur J. Gonzalez held last week that Fiat need not assume Chrysler's product liability defect responsibilities along with its assets.  A bankruptcy judge has broad discretion in deciding whether a successor entity must stand behind its predecessor's liabilities for personal injuries.  Many judges, and most common law decisions outside bankruptcy, hold that a successor entity that takes over the valuable assets of a company must also assume its existing duties to injury victims.

Michigan Insurance Company loses battle over residency

Chunqin Han and his wife emigrated from China to the U.S. in the 80s.  They attended school at Michigan State and became U.S. citizens.  After graduation Han worked for the DEQ, but in 2002 he accepted a job as a microbiologist in Arkansas.  His wife and daughter remained in Haslett.  He was killed in a motor vehicle collision, and Michigan Insurance refused to pay wrongful death benefits owed to his family under his wife's policy, claiming he was no longer domiciled in Michigan.

Fractured femur isn't a serious impairment? Maybe if its not your femur.

The Court of Appeals recently threw out a case filed by James Plaggemeyer against the Lee family.  Apparently one of the Lees (sounds like the kid was driving a car titled jointly by both parents) hit Plaggemeyer's bike (although in an interestingly-foretelling description, the opinion says that "his bicycle collided with defendants' motor vehicle").  The man had surgery, used a walker for four weeks, crutches for eight weeks and returned to work without restrictions after fourteen weeks. He couldn't do lawn work for a year.  He can't hike, jog or play tennis "because of pain."  His left leg has atrophied about an inch. 

Nevertheless, because the latter restrictions are "self-imposed" and not supported by proof from a physician, however, the court refused to consider them.  It concluded that under the Kreiner analysis, as a matter of law, he had not shown a "life-altering injury."  We can't help but wonder whether these judges would agree with this analysis of "serious impairment" if it were their lives disrupted in this fashion.

Expenses for care of catastrophically injured Michigan no fault victims

Attorneys and the families of catastrophically injured no fault victims continue to watch the Michigan Supreme Court to see what will happen with PIP expenses in the situation where the families avoid institutionalization.  From 1974 until a few years ago, the Supreme Court took the position that families could be fully compensated for keeping a catastrophically-injured loved one out of an institution by providing care for him or her.  The Court held that if an expense was payable to an institution, it would be payable to the family, as well. 

Fractured wrist is not a "serious impairment"

Three judges of the Court of Appeals upheld the lower court's decision that Alisha Recker's fractured wrist was not a "serious impairment" under the Kreiner standard, and dismissed her case against Charter Communications and its negligent driver.

State Farm appeal of PIP benefits denied

In Greene v. State Farm, the defendant refused to pay contracted PIP benefits after the plaintiff suffered an alleged head injury in her fifth motor vehicle collision in four years.  The jury awarded her benefits after a hotly-disputed trial, despite testimony from State Farm's hired-gun IME doctor.  The Court of Appeals upheld the jury's decision, even though the injury victim's attorney inappropriately called on the jurors to take into account the Defendant's size and wealth in reaching a verdict. 

Harleysville/Lake States can't take "second bite at the apple"

Keith Kangas was badly hurt on US-23 when another driver struck a truck tire in the road, lost control and struck Kangas' car.  Kangas had purchased Uninsured Motorist Coverage from Lake States and raised a claim under the policy for the [unidentifiable--and therefore "uninsured"] truck tire owner.  Harleysville/Lake States proceeded to arbitration, but when the arbitrators awarded the remainder of its $500,000.00 policy to Kangas, after credit for the payments by the insurers of the young woman who lost control, Harleysville attempted to overturn the award in Circuit Court.   

Court orders Farm Bureau to pay PIP benefits in domicile dispute

 Farm Bureau has become one of the more contentious and aggressive insurers in attempting to use litigation to avoid contractual obligations.  Its bid to avoid paying the medical expenses associated with a young girl's head injury back-fired, however, this week.  In Phillip v. State Farm Mutual and Farm Bureau General Insurance, the trial court and a unanimous panel of the Court of Appeals held Farm Bureau owed benefits to the child.

Previously disabled injury victim can maintain "serious impairment" claim from second injury

Michigan no fault insurers have enjoyed a field day, summarily dismissing significant injury claims because they occurred to people who had already suffered a different, relatively serious injury.  This trend has been reversed somewhat, and the Tipton v. Lang decision helps to illustrate why.  The three Court of Appeals judges in Tipton unanimously pointed to prior decisions recognizing the relative importance of particular activities and bodily functions, where a broad range of activity or function has previously been lost.

Insurance study warns about small-car danger

The Insurance Institute for Highway Safety reported this week that the Honda Fit, Toyota Yaris and the Smart Fortwo, three very small new vehicles touted for their light environmental impact, performed poorly in crash safety testing.  In testing that simulated head-on collisions with mid-size vehicles, with each model traveling at 40 miles per hour, the three minimodels suffered a disproportionate deceleration (and likely greater injuries to the occupants).  While the heavier vehicle changed speed by 27 mph on impact, the minimodels decelerated by 53 mph [essentially being driven backward at 13 mph immediately upon impact]; they were far more likely to be sent airborne and spun.

State Farm forced to pay more than $200,000.00 in overdue rehabilitation benefits

State Farm refused to pay Community Resource Consultants, Inc., of Macomb County, for rehabilitation benefits that CRC provided to 15 different no fault insureds.  CRC attempted to work matters out with State Farm, apparently, and did not sue for over a year.  Eventually, it secured a verdict for more than $200,000.00,  plus another $200,000.00 in fees, costs and sanctions, after which State Farm's attorneys asked the court to reduce the verdict to eliminate all PIP benefits that were more than one year old when CRC filed suit. 

The trial court concluded that it was bound by the Engler Majority's re-interpretation of the no fault statute limiting PIP benefits to "one year back" from the date suit is filed.  On that basis, it overturned the $400,000.00 judgment it had previously entered, and signed a judgment in State Farm's favor, essentially wiping out the jury verdict.  The Court of Appeals noted that the "one year back rule" is an affirmative defense which State Farm was obligated to raise prior to trial.  On that basis it reinstituted the jury's verdict including the substantial fees, interest and costs.  Apparently, if you want to live by a technicality, you can expect to die by one, as well.

No PIP benefits for man killed when machine falls from tractor trailer

Gwendolyn Neill sued MEEMIC and Progressive Michigan Insurance Company after her husband was crushed under a machine that fell from a tractor trailer.  Neill's husband was unloading the machine from a parked trailer in the course of his employment, and the Court denied the widow benefits after finding that the tractor trailer was not "parked in such a way as to cause unreasonable risk of the bodily injury which occurred." 

Car accident claim without a lawyer? Read this.

None of us like the ads some lawyers run on TV, seeking clients with personal injury claims.  The alternative, though, can be catastrophic.  Here is one example, taken from the Michigan Court of Appeals in April of 2009:  The case is Tammy Johnson, Guardian of Nancy Eastman v. Wausau Insurance Company and Nationwide Indemnity, Inc.

In 1983, Nancy Eastman suffered profound brain injury at ten months old in a car accident.  Under Michigan law, she was entitled to full lifetime medical benefits, including hourly attendant care, as needed.  It is undisputed that the brain injured child required 24 hour care.  Her parents could not provide that care when she came home from the hospital, so Dorothy Bencheck assumed her care and ultimately became her guardian.  Bencheck was paid $20.00 per day by Wausau/Nationwide to care for Nancy.  She repeatedly asked if she was entitled to any other financial support and was told by the adjuster, one Albert Abdey, that she was not entitled to anything else.

Woman not an "owner" of vehicle borrowed from live-in companion

Detroit Medical Center provided signficant medical care to Maria Jiminez after she was injured in a motor vehicle collision.  Titan Insurance Company was assigned by the State to cover Jiminez's PIP benefits because she was an uninsured occupant [the driver] of an uninsured motor vehicle.  Titan refused to pay her medical bills, claiming that Jiminez was exempted from receiving PIP benefits as the "owner or registrant" operating an uninsured car.  The Court concluded that DMC was entitled to be paid after examining the circumstances of Jiminez' use of the vehicle.

Court upholds jury verdict of "serious impairment"

Glenn Forgette suffered injuries to his right wrist, left shoulder and lower back as a result of Gail Jones' negligent operation of her husband's business-owned car.  Forgette's injuries included a torn rotator cuff, a fractured wrist and probable fractures in the lower back.  The insurer appealed, claiming that even though these injuries severely curtailed Forgette's lifestyle, they did not constitute a "serious impairment of bodily function."  The unanimous Court of Appeals rejected the insurer's arguments, noting that while many of Forgette's activities were restricted by pain and not by explicit physician instructions, the limitations were based upon physician-identified physiological explanations and "tru[e] suffering".

State Farm clobbered for repeatedly disputing PIP benefits

Antonina Juzba suffered a severe brain injury in a motor vehicle accident.  She was insured for no fault benefits by State Farm.  The insurer paid for her treatment initially, but stopped paying after she spent months at the Rainbow Rehabilitation Center and the Ann Arbor Rehabilitation Center (AARC). 

Uninsured Motorist Coverage denied where insured suggests erratic driving was intentional

Kimberly Gray was seriously injured in a motor vehicle collision.  She attributed the other, unidentified, driver's erratic behavior to a fit of "road rage" over lane usage on the highway.  Citing her description, MEEMIC refused to pay Gray's Uninsured Motorist Coverage to her, using the the at-fault's "intentional" conduct as a defense.  The Court of Appeals agreed with MEEMIC and ruled that the insurer did not have to stand in the shoes of the erratic driver, even though the driver and her own insurer--had they been capable of identification--would have been legally responsible for her erratic, "intentional" conduct.

Post-Taylor court rejects third-party "fault" without duty

Part of the history of tort "reform" legislation was a movement to eliminate joint and several [or "deep-pocket"] liability.  The Michigan Legislature adopted a statute that achieved that end by allowing victims to recover from a particular defendant only those damages attributable to that defendant's fault.   (In this way, the innocent victim bears the weight of the "third-party's" uninsured or uncollectible share of fault.  The reform legislation also allowed the defendant in a lawsuit to blame others who are "at fault" in causing the victim's injuries, without actually suing them.  Insurers had argued that they should be able to place blame on third parties, and avoid responsibility for their "share" of responsibility, even if the third party wasn't included in the lawsuit.  They went an additional step, next, and argued that they should be able to deduct damages for the "fault" of a third-party who owed no duty to the victim.

Court holds man alleging back injury from car accident failed to prove causation.

In McLaren v. Emcasco Insurance Co., the plaintiff sued his no fault insurance carrier after being injured by an uninsured motorist (he had purchased optional uninsured motorist coverage).  Although McLaren had  a history of cervical and lumbar problems with his back, he claimed he had different, more severe symptoms, after the collision. The court noted that McLaren offered no medical documentation or expert opinion testimony in the trial court to document his claim that the motor vehicle collision exacerbated his back problems and necessitated surgery.  On the contrary, the records suggested that he had disc herniations and degenerative spinal disease before the collision.

McLaren's attorneys also argued that his insurer had admitted that a causal relationship existed by paying [as a result of litigation] no fault PIP medical benefits after the collision.  The court pointed out, however, that the standard of proof relating to causation for PIP medical is a lower standard than the standard applied in liability settings, referenceing MCL 500.3105 and Scott v. State Farm.

Three new "serious impairment" decisions

In the past two weeks, the Court of Appeals has addressed three new defenses of "no serious impairment" in auto accident cases.  The Court sent two of the cases back to the lower court , apparently holding that the plaintiff suffered a "life-altering serious impairment."   In Yarger v. Garchow, et al., the Court upheld the dismissal of the accident victim's claim because the victim's second injury in a two year period did not sufficiently exacerbate the cervical fusion he had endured after a car accident a year earlier. 

Farm Bureau forced to pay attendant care benefits, despite reimbursement claim

In Cooper v. Farm Bureau, the defendant appealed to the Court of Appeals in a last-ditch effort to avoid paying statutorily-obligated no fault PIP attendant care benefits.  Cooper was badly hurt in a car accident while driving his girlfriend's uninsured vehicle.  Farm Bureau owed Cooper $60,000.00 in attendant care which was provided by the girlfriend, and argued that since the girlfriend could be required to reimburse it for uninsured vehicle no fault expenses, it should not be required to pay Cooper and the girlfriend, but rather should be allowed to simply deduct the reimbursement.

The lower court and the appellate court both rejected Farm Bureau's argument, pointing out that it could not unilaterally withold statutorily-mandated benefits from Cooper because of a debt allegedly owed by his attendant care provider.  In a unanimous opinion, the appellate court suggested that Farm Bureau take its public policy argument up with the Legislature and upheld the fee award against Farm Bureau for unreasonable denial of benefits.

Compensation for injuries suffered in a Michigan car accident: the Kreiner standard

Much has been discussed about the so-called Engler Majority's "Kreiner" standard for suing an at-fault driver if a person is hurt in a car accident.  Kreiner is the name of a plaintiff victim who sued several years ago, alleging that he had suffered a "serious impairment of bodily function" in a car wreck.  Since 1973, the Michigan no fault act has allowed an innocent victim to sue the at-fault driver after an accident, only if he or she suffered a "threshold injury": death, permanent serious disfigurement or serious impairment of a particular bodily function. 

Insurer's delaying tactic over venue is rejected

Nationwide refused to acknowledge that Deb McCorkle was entitled to bring her no fault contract action against it in any county where Nationwide does business.  Her collision occurred in Oakland County, but she filed suit to recover no fault PIP benefits in Washtenaw.  Nationwide appealed the trial court's refusal to move the case to the venue it preferred.

Court grafts new obstacle on injured person's recovery: consent and legal operation

Rae Plumb went to the bar and got drunk, before leaving with some men she didn't know.  When one of them threw her the keys and asked her to drive, she apparently acquiesced.  Ultimately, she was found badly burned and with a head injury, near the scene of a single-vehicle collision.  It turned out that the man who gave her the keys was not the owner of the car, and the owner--who hadn't yet acquired the title from the seller---claimed he didn't give the keys to anyone....he claimed he left them in the car.

Busted thumb--even a severe one--won't meet Kreiner threshold

Gary McManigal's lawsuit against George Levosinski was dismissed for failing to meet the Kreiner serious impairment threshold.  Levosinski was the at-fault in a collision that resulted in an "avulsion fracture of the ulnar base" of McManigal's right thumb.  McManigal was casted for only a few weeks, but was likely to have future restrictions on use of the hand, and to experience pain, arthritis and loss of range of motion.  The Court held that because these problems did not interfere with his jobs as a painter and as an apartment manager, and because the injury had little impact on his recreational life, McManigal could not sue for compensation.

Allstate suckers its own insured after car accident

If you wondered why judges and attorneys don't respect the "good hands" people, despite all the money Allstate spends on advertising, you could go back and read about their "good hands or boxing gloves" memoranda: more than a year ago we put an entry in the log describing Allstate's policy emphasizing profits and hard-ball litigation over its fiduciary duty to insureds.  If you don't want to take the time to go back to that memorandum, read Thornton v. Allstate Insurance Company, just decided by the Michigan Court of Appeals.

Boyfriend with access to uninsured vehicle is not an "owner" disqualified from no fault benefits

Willie Auxier was driving his girlfriend's van to return some movies when he was struck from behind and injured.  The girlfriend was involved in a dispute with her insurer at the time, so the van was ultimately deemed uninsured.  Nationwide, the insurer of Auxier's car, denied his right to receive no fault benefits, claiming that he was an "owner" of the van.  Under Michigan's tort "reform" amendments, the operator/owner of an uninsured motor vehicle is denied most of his no fault rights, even if he is injured in a collision where he is without fault.

Court rejects "serious impairment" defense in legal malpractice case.

Adrianne Williams was hurt in a car wreck.  She retained Dan Rusch, an experienced attorney, to represent her, however, unfortunately he failed to file suit within the pertinent statute of limitations.  She brought an action against him and secured a verdict of $145,000.00.  Mr. Rusch appealed claiming Williams hadn't suffered a serious impairment, and his attorneys "disingenuously" claimed that Williams' injury was not "life-altering." 

The court noted that after three years of constant back pain and limitations on activity, Williams' spine was fused surgically.  She endured years of PT, nerve blocks, use of a TENS unit and was unable to perform normal household tasks or recreational activities.  She is required to take pain medication daily and has been told that her leg will not improve.  The appellate court concluded that the trial judge was correct in concluding that she had suffered a "serious impairment" as a matter of law.  The case is Williams v. Rusch, et al.

Woman's Underinsured Motorist Claim dismissed as Farm Bureau exploits technicality

Farm Bureau Insurance has aggressively exploited the Engler Majority's willingness to protect Michigan insurers from claims by injury and casualty victims.  Another example of Farm Bureau's never-pay attitude was provided in Feldkamp v. Farm Bureau, decided by the Court of Appeals in January of 2009.  Feldkamp, badly injured in a 2002 motor vehicle collision, had purchased underinsured motorist (UIM) coverage from her own insurer, Farm Bureau.  Typically, UIM coverage increases the at-fault's coverage limits to the same limits that an insured purchased for her own liability.

Feldkamp was so severely injured that the at-fault's insurance carrier, GMAC, agreed to pay her its policy limits almost immediately, however, Farm Bureau refused to grant Feldkamp the written consent required under the policy to settle with the at-fault.  Feldkamp's attorneys became impatient with Farm Bureau's conduct and sought a court order compelling Farm Bureau to grant consent, which the court ordered after a hearing.  Feldkamp's attorneys then settled with the at-fault and gave her the Release that GMAC demanded.

Previously injured man cannot have suffered a serious impairment

Three of the more conservative Judges on Michigan's Court of Appeals recently held that a previously disabled man could not suffer a "serious impairment of bodily function" as a matter of law.  Theon Crumpler had suffered a head injury in a motor vehicle collision in 1986 and required 24-hour attendant care because of his difficulty walking and his need for help with the requirements of daily living.  When he suffered additional injuries in a 2001 accident, the Court held that his difficulties with seizures, with standing or with negotiating stairs,  and with fine motor tasks, were not adequate to constitute a "serious impairment" of his already disabled life.  The judges said that his already-humbled life was not "materially altered".  That might depend on the perspective from which it was viewed, we suspect.  In any event, the jury was not allowed to make that decision.

Jury determines shoulder injury was not a serious impairment

In Regan v. Suchowolec, the Court of Appeals was asked to consider a jury's verdict of no cause action, denying Ms. Regan any recovery for her motor-vehicle-accident-shoulder injury.  She claimed that the trial court should have directed a verdict in her favor and not allowed the jury to decide the issue.  The Court of Appeals rejected her request, holding that her claims, particularly her description of pain and interference with life activities, were questions of fact and credibility and properly decided by a jury.

Can a companion accompany you to a so-called "independent medical examination"

Michigan auto injury victims are currently placed in a quandary if their no fault insurer wants them to attend an IME and the victim would like to impose some reasonable conditions on his or her attendance.  Up until 2007, it was believed that injury victims enjoyed the right to secure a court's intervention and supervision to assure that so-called independent medical examinations were conducted reasonably and with proper controls.    Those rules still apply to "independent" examinations sought in the context of all other (non-no fault) circumstances. 

Michigan courts have regularly required that the exam be conducted by a specialist reasonably close to the victim or that mileage or overnight expenses be paid.  Other conditions we have seen imposed included a limit on the number or frequency of the examinations, and the right to have a companion accompany the victim or to have the victim's attorney observe the examination, for example.

Court addresses factual issues surrounding sale of vehicle without prompt registration

In Titan Insurance Co. v. State Farm Automobile, the Court of Appeals had to sort out a priority dispute involving injuries suffered in a car-motorcycle collision.  Kenneth Curler was injured when his motorcycle was struck by a car.  Neither vehicle had PIP insurance applicable to the injury, so he was sent to the Assigned Claims plan, and through it to Titan.

Titan investigated and learned that Edward Shreve was the last registered owner of the bike, and that he had coverage through State Farm that would have applied to Curler.   Shreve claimed that he had sold the bike, for cash, to a man named Jay (address and last name unknown) on June 14, and gave him the title.  State Farm claimed that in accordance with Shreve's testimony, he was no longer the registered owner of the vehicle on June 18, and that it was "Jay's" responsibility to transfer title, not Shreve's.  State Farm claimed it had no responsibility for the vehicle after Shreve signed the title over to "Jay" and surrendered possession of the bike.

When the occupant of a motorcycle is injured in a collision with a car or truck, PIP benefits are payable first by the insurer of the car.  If the car's owner and driver do not have coverage, PIP benefits are then payable by the insurer of the bike or its operator.  By statute, State Farm is correct that the owner/registrant of a vehicle changes on the date of the application for a new title or the assignment of the certificate of title:  therefore, the trier of fact must determine whether Shreve's testimony is credible and whether he ceased to be the owner of the bike prior to the collision.  The court should not have decided the facts necessary to resolve this issue:  they were for a jury to determine. The pertinent statute, MCL 257.233(9), was revised in 2007 to make the effective date of transfer for specific.

Court rejects claim based on construction activities that interfere with driveway

The Court of Appeals recently rejected Rudy Denha's injury claim against Dart Properties.  Dart owns an apartment complex and had torn up the asphalt just inside its driveway.  Denha claimed that a tenant made a left turn in front of him and then stopped abruptly, when she encountered the construction activities, blocking his lane of travel.  The tenant at-fault driver testified she didn't recall hesitating after attempting to enter the driveway, but Denha presented other testimony tending to corroborate his claim. 

State Farm attempt to avoid medical payments is denied

The Plaintiff TBCI, Inc. provided psychological and professional services to five individual patients who had suffered head injuries in auto collisions.  After-the-fact, State Farm attempted to avoid payment for these services, claiming that the limited license psycholgist employees had exceeded their authority in providing services, and that the services were improperly "block billed".   The Trial Court summarily decided in favor of State Farm, denying payments to the Plaintiff.  The Court of Appeals reversed and sent the case back to the trial court for a complete hearing on whether the billed services were actually provided and whether the limited license employees were properly supervised.

Allstate allowed to avoid arbitration despite "inconsistent" and "contradictory" claims

Alan Buckman was injured in a collision with an uninsured driver.  The good news  for Buckman was that he bought uninsured motorist coverage with his mandatory no fault auto coverage; the bad news was that he bought it from Allstate.   When Buckman sought to arbitrate his claim with Allstate, pursuant to the mandatory arbitration policy provision, Allstate refused, claiming that it had modified the policy to reserve the right to refuse to arbitrate.  Buckman filed a lawsuit to compel Allstate to arbitrate, and the trial court granted his request, finding that Allstate's claims about amending the policy provision were inconsistent and contradictory.   Allstate appealed the decision to the Court of Appeals.

Unfortunately, the Court of Appeals reversed the trial court's decision and sent the case back to the lower court.  While the appellate court judges agreed that Allstate's amendment claims and its filings with the court were both contradictory and inconsistent, it ruled that it could not enforce the arbitration claim as filed by Buckman because he did not file with the court the Declaration Page along with the no fault policy.  As a result, the judges determined that he could not prove the relevant dates or the Named Insureds, and was thus unable to force Allstate to comply with the policy.

Court concludes ambulance driver was not negligent as a matter of law

In a surprising decision, the Michigan Court of Appeals held that a Boyne City ambulance driver was not negligent, as a matter of law, despite testimony that the operator was traveling 65 miles per hour in the dark on slippery, snow-covered roads.  The panel concluded that the family of a passenger victim of a fatal collision with the ambulance did not create a question of fact with regard to the ambulance driver's negligence, even though the family presented an ambulance passenger's claim of the above speed, along with a contemporaneous statement by a passenger EMT, suggesting that the driver "take it easy".