TOV Injury and Safety Blog

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

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

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

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

Farm Bureau strikes again: no coverage for a substitute vehicle

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

A rare serious impairment victory

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

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

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

Another majority abomination on "serious impairment"

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

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

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

The Gang of Four on Michigan's Supreme Court does another favor for insurance companies

In the recent case entitled Mary Ellen McDonald v. Farm Bureau, the Engler appointees to Michigan's Supreme Court overruled 30 years of case law to allow Farm Bureau to enforce a contract provision that was previously considered illegal and unenforceable.

Titan Insurance sanctioned for failure to pay medical expenses

In Spectrum v. Titan Insurance Company v. Blue Cross Blue Shield, the Court of Appeals upheld the award of fees and costs to the Plaintiff against the Titan Insurance Company, for failing to timely pay auto no fault PIP medical expenses.

"Death, in Michigan, is not a 'bodily injury' "

  In yet one more example of political activism at the expense of innocent consumers, the Engler majority on the Michigan Supreme Court has denied the victim's family the right to sue a government agency when the government driver negligently kills an innocent person.  They denied mom and dad's right to sue for their daughter's death by negligent operation of an ambulance, and denied a wife's claim for consortium when her husband was read-ended by a Road Commission claim.  Defenses that were universally and thoroughly dismissed by knowledgeable attorneys have now become the law of our state.

An unlikely and injudicious ruling on the impact of medical records

     It has long been maintained that "hard cases make bad law".  That principle was demonstrated once again in Thomas v. Schneider, an unpublished per curiam opinion of the the Michigan Court of Appeals.  From what can be gleaned from the opinion, it appears that the plaintiff in Thomas appeared to the Judges to be misrepresenting the injuries she suffered in a motor vehicle collision and over-stating their impact on her prior medical state.  In summarily dismissing her auto no fault claim, the judges felt that the need to eliminate her contradictory deposition testimony so that a "non-deserving" Plaintiff could be dismissed without a trial weighing conflicting evidence.  To achieve that goal, the Court held that her deposition testimony about her condition could not be considered because it contradicted her prior statements to medical treaters.

     Reading between the lines, it appears that the appellate court concluded that the Plaintiff was not truthful and did not want her to waste the resources of a "day in court".  Nevertheless, it went much too far when it struck her testimony:  no rule of evidence or court rule would justify this outcome.  We have seen too many examples of hurried, forgetful or even biased doctors making mistakes or mis-statements in medical records to allow these hurried chart notes to completely exclude a witnesses' explanation.  A health care provider's primary responsibility is to treat the patient and it does just happen on occasion that a medical chart will mistakenly refer to the wrong gender of the patient, the wrong limb being injured, the wrong accident facts (from another ER case of the same date) or create some other confusion or error.  We have personally witnessed numerous examples of this nature of the years.  The ruling in Thomas v. Schneider is simply bad law and ultimately too draconian an exercise of judicial discretion to be justifiable--simply to uphold the summary dismissal of one "bad" case.

Another abusive "serious impairment" decision

  In McCormick v. Carrier, two Court of Appeals judges applied the Michigan Supreme Court's recent interpretation of the "serious impairment" threshold to dismiss the claim of Mr. McCormick.

Leading cause of death for teens age 15 to 19

Motor vehicle accidents are the leading cause of death for teens between 15 and 20.  We have seen enough of this carnage over the past 30 years to anecdotally confirm this statistic.  The most dangerous time to ride with a young driver is after 10 pm, and a car with four teens driven by a sixteen-year old driver is more dangerous, statistically, than riding with a drunk.  Several states, including Michigan, have responded to these statistics with "graduated" drivers licenses that limit young driver's privileges.  These graduated programs have reduced teen deaths in the affected states by from 20 to 40 percent.

The object must hit your car: your car can't hit the object

  In an effort to eliminate "phantom" uninsured motorist claims, most insurers require that there be some corroborating evidence of "physical contact" with the insured vehicle.  The "strict constructionists" in Seger v. Hartford read this requirement with such minute detail that striking a tree did not meet the contract terms and benefits were denied.

Serious impairment of shorter duration

In Donovan v. Metro Plant Services, the Court of Appeals recognized that an injury may meet the Supreme Court's interpretation of serious impairment, and thus be "life-altering", even though it may not be "life-altering" for more than a few months.

Insurance limits, inflation and "reform"

Most Michigan citizens would think that with all of the "reform" championed by the Republicans in the last twenty years, our no fault law would be "up-to-date".  Boy, would they be mistaken.

Father of baseball player killed in bus crash campaigns for improved bus safety

    John Betts, father of David Betts, the Bluffton College baseball player who was killed when a bus collision on an Atlanta freeway overpass decimated his team, has devoted considerable energy to a campaign to improve the safety of interstate and charter buses.

This week it was State Farm's turn to be slapped down for over-reaching

  In Suminski v. State Farm, the Michigan Court of Appeals, rejected State Farm's claim that it could enforce a "written consent" requirement in its uninsured motorist coverage, after State Farm waived the clause earlier in litigation.

Fight over serious impairment and insurance surveillance "gamesmanship"

      In Laukkanen v. Jason, the injured Plaintiff secured a verdict against the driver who rear-ended her at a stop light.  Plaintiff worked as a physical therapist and had to undergo substantial medical treatment after the collision.  MRI and EMG testing showed abnormalities consistent with her accident-injury claims, and she endured having to wear a back brace, physician-restrictions on her activities, numerous medical therapies including orthopaedic manipulation, and physical therapy.  She provided extensive evidence supporting the limitations on her normal work duties and life activities.  Despite this evidence, the insurer claimed she did not suffer a "serious impairment of bodily function", and asked the Court of Appeals to set the verdict aside. 

     Not only did the trial court and the Court of Appeals reject the insurer's claim of no serious impairment, it also upheld the trial court's refusal to countenance the Defendant's "gamesmanship" in secretly taping the Plaintiff and then lying about it.  The Court had required both sides to disclose their evidence months before the trial (a standard scheduling order) and the Plaintiffs had also filed motions to compel the Defendants to produce any surveillance evidence.  The Court criticized the Defendant for lying about the existence of this evidence, failing to produce it for more than four months, and producing other photographic and video evidence without producing the hidden surveillance until a few days before trial--too late for the Plaintiff to examine the evidence or respond to Defendant's arguments about what it showed. 

     The Court held that the trial court did an excellent job of carefully considering the circumstances  of the Defendant's "gamesmanship" and blatant violation of the court's discovery rules.  The Appeals Judges felt that excluding this imporper evidence was a proper exercise of the trial court's discretion and refused to overturn its decision.

Serious impairment and a Michigan soldier

A no fault insurer recently avoided paying compensation to a soldier who was partially disabled for 18 months after a motor vehicle collision, claiming that her injuries were not a "serious impairment".

Children and time limits on suit

     Ever since the hand-appointed Engler Justices took control of the Supreme Court,  the four Justices have controlled Michigan jurisprudence and displayed an activist drive to manipulate the law for the benefit of their insurance constituency.  One of the Justices was even reported to have made a speech where he described he and his colleagues as allied with insurance tort "reformers" in a civil war with victims' attorneys.  As a result, insurance companies have become more aggressive in attempting to restrict the rights and interests of their insureds.  In the recent Klida v. Braman case, the Court of Appeals refused to countenance an effort by Farm Bureau to eliminate a child's right to sue.

More over-reaching by Bristol West Insurance Company

    Bristol West has been a recent entry in the Michigan competition to see who can most aggressively abuse Michigan consumers.  While no one can really compete with Allstate in this competition, Bristol West appears to be doing its best.  This week it over-reached.

Auto rental agencies' limited liability in Michigan

  As a special favor to auto rental companies, several years ago our Republican legislature and governor included in their tort "reforms" a statute that limited the rental agencies' liability for negligent operation of a vehicle to $20,000.00. That special interest reform continues to cause problems for innocent victims who are injured by the sloppy rental practices of rental agencies and the greed of auto insurers.

Distractions and motor vehicle collisions

Research is documenting that electronic devices constitute a significant distraction and a major causal contributor to  the carnage on our highways. 

The magic haybale

   In another marvelous result-oriented, pro-insurance, typically Henry Saad opinion, this week the Court of Appeals ruled that magical hay bales are capable of appearing anywhere, at any time.   In Kerr v. State Farm, the plaintiff was badly injured after she was startled by the presence of a haybale in the middle of the freeway and attempted to avoid it. She struck the bale, left the road and hit a highway obstacle, suffering vehicular damage and  severe injuries.  Since she couldn't identify the owner of the bale of hay, she brought a claim against her own carrier, State Farm, under the pertinent section of her policy.

Delivering newspapers voids your auto coverage in Michigan

        Acting pursuant to an earlier decision by the Michigan Supreme Court, the Court of Appeals yesterday held that a woman who used her car to deliver newspapers could not avail herself of the auto liability insurance she had purchased.  In addition, the woman she had seriously injured in a car accident could not avail herself of the coverage.  In Bristol West v. Butzbach, the three Court of Appeals' judges felt constrained by a prior Supreme Court decision to invalidate Butzbach's coverage, because her auto policy contained a standard exclusion for "business pursuits." 

          In Michigan, no fault insurance is mandatory, and the coverage the carrier must provide is mandatory:  on that basis, prior court decisions had held that insurers are in a better position to evaluate and underwrite risks that include incidental money-making or "business" pursuits, and have required coverage of these activities that fall short of an actual commercial venture.  For example, a number of years ago, we prevailed against the insurer in Rossman v. State Farm, when it attempted to invalidate a volunteer fireman's coverage because he received a small per diem for fire runs. 

          This issue arises regularly because many unsophisticated insureds use their vehicle for incidental money-making activities (for example, teens delivering pizza, newspapers or other materials for an employer) that aren't normally considered to be a "business".  Even if an insured were to read his or her entire policy when it comes in the mail a month after buying it, most people wouldn't recognize this exclusion from coverage as applying to them.  And, under other activist rulings of our Supreme Court, the insured's agent owes no duty to explain the exclusion to the insured.

        Before the activist Engler Justices assumed control of the Supreme Court, these incidental income-generating activities were included in mandatory coverage, and an insured's agent owed a general duty to inform the insured:  under this Court, though, many naive or uneducated Michigan consumers who are unaware of this constraint will be purchasing illusory coverage for these poorly-compensated activities.  None of them will likely come from the neighborhood of these Republican activist jurists, however, so their concerns are ignored.

Serious impairment: a new low

      The rights of accident victims struck a new low in Michigan with the Court of Appeals' unpublished November 15, 2007, decision in Jones v. Jones, et al.  The Court upheld the Trial Court's dismissal of an auto negligence claim relying on the Kreiner Supreme Court decision requiring a "serious injury" to have "life-altering" consequences.  Under the no fault act, an injured person can only sue the at-fault driver if the injured person has a threshold injury (i.e., death, permanent serious disfigurement or a "serious impairment of a bodily function).  In 2005, the Engler majority on the Michigan Supreme Court reinterpreted "serious impairment" to require a "life-altering" impact.

          Controlled by this interpretation, the Court of Appeals in Jones held that the injured victim didn't have a "serious" injury, DESPITE THE FACT THAT SHE SUFFERED A FRACTURED BONE IN HER LEG THAT REQUIRED SURGERY AND INSERTION OF A ROD AND SCREWS TO MEND.  The woman required in-home health care for "several months" after discharge from the hospital, had to use a wheelchair or walker when she left home during that period, and required assistance with her activities of daily living.   She claimed she was left with a permanent limp and the need to use a cane for support.  She was unable to stand for extended periods or to walk any significant distance. 

        The Court relied heavily on the fact that Ms. Jones had not worked for three years prior to this injury and that "minor problems with walking or standing" are not "serious".  It noted that her physician had neither diagnosed the limp nor prescribed the cane and that she could perform most household tasks.  Her life was "not so different" from before the injury and therefore did not meet the Kreiner standard of a "serious" injury.  We wonder if the Justices who redefined "serious" to exclude an injury of this nature would still argue it was not "serious" if it was inflicted on one of them or their family.  We seriously doubt it.

The jury or the four conservatives on the Supreme Court?

        In 1974 when the Michigan legislature established Michigan's "no fault" auto insurance scheme, it limited those accident victims who could sue a wrong-doer (and indirectly the wrong-doer's insurance) to persons who had suffered death, permanent serious disfigurement or a serious impairment of bodily function.  The latter definition is the one which has received the greatest scrutiny by succeeding legislatures and courts.

        Initially, the courts noted the Legislature's failure to define a "serious injury" and ruled that it must be left to jurors to interpret in accordance with the common understanding of the word.  When insurers pressed for a "catastrophic" definition of  serious, the Supreme Court eventually intervened and restored the original "serious" language of the statute.  The Legislature then revisited the no fault act and helped to provide some definition to "serious" by requiring that the injury be "objectively manifested" and that certain factors be considered; it rejected a "catastrophic" definition and retained the common sense "serious" interpretation.

       In 2004, however, Michigan's very partisan Governor enjoyed the opportunity to appoint several very conservative, insurance-oriented Justices to the Supreme Court bench.  He seized this opportunity and appointed to the Court special interest advocates such as the chief counsel for AAA Insurance and the husband of his own Chief of Staff.  Forming a narrow majority on the Court, these four appointees immediately granted several large favors to the insurance industry.  One favor was the re-definition of "serious" for which insurers had lobbied for thirty years, and which had been consistently rejected by the legislature and the courts.

        In the Kreiner case, the Supreme Court majority held that to be "serious" an injury must be "life-altering" and that limitations on recreational activities or limitations caused by pain were of limited consequence.  In successive cases, court holdings ruled that a girl who missed a year of school was not seriously hurt; a plumber who was limited to working 20 hours per week was not seriously hurt; a wheelchair-bound victim who was already incapable of employment could not suffer a serious injury.

        In further demonstration that the Court's definition of "serious" is out of touch with the common parlance, another jury verdict in favor of an innocent injury victim has been thrown out by the appellate court based on the Supreme Court's "Kreiner rule".  In Hamilton v. Gross, a Lvingston County jury had awarded a modest verdict to an innocent young man injured through the negligence of Ms. Gross.  The Court reversed and took away this verdict, holding that the young man's injury could not reasonably be called "serious", despite the jury's decision that it was.  The young man (he was apparently under 18) suffered a fractured ankle requiring surgery and was casted for three weeks and on crutches for "six to eight weeks".  He missed eight weeks of work, was severely limited in recreational activities and faced the potential of future arthritis.  The court held that the proofs he presented on these topics were not adequate to meet the Supreme Court's threshold for establishing a serious injury.  We don't know if this outcome reflects poorly on the attorney who represented the young man, or if it reperesents hyper-critical appellate jurisprudence.  In either event, it is one more example of the difference between ordinary citizens' understanding of "serious" and the extreme definition of "serious" which was championed by the insurance industry and its minions in the Supreme Court.

"Good hands or boxing gloves"

        The American Association of Justice recently published a thoroughly researched article explaining the massive change that Allstate Insurance Company has initiated in the United States' insurance industry. In 1987, the Insurance Information Institute conclued in its annual report that the industry, while profitable, needed to cut costs and enhance profits in order to compete with Fortune 500 companies for investment dollars.  Twenty years later, it continues to report that the industry has reported "superb", "robust" and "excellent" investment and income results, but it also continues to call for caps on recovery that it originally advocated in the 1980s--despite the fact that the industry was highly profitable (profits increased in the first nine months of 2006, alone, by 15.1 billion dollars) and that the suggested caps had lost 75 percent of their value due to inflation.  By 2006, Allstate had captured returns for its investors that were double that of the Standard & Poor 500, yet it continued to seek higher profits by limiting payouts to consumer insureds.  It had not cut premiums.

        In 1995, Allstate initiated a program it called Claims Core Process Redesign (CCPR) at the suggestion of a corporate consulting company called McKinsey & Co.   McKinsey is better known for having provided consulting services to the Enron Company.   Most people will recall that Enron reported spectacular profits as a result of a novel and illegal accounting strategy, before it crashed and destroyed the lives of its workers and investors.  Under the guidance of a CEO who in 1999 retired with a personal fortune of more than 150 million dollars in stocks, options and incentive buyouts,  and a successor who profited by more than 50 million dollars between 1995 and 1999, Allstate secretly adopted a business paradigm that intentionally manipulated its loss payouts to insureds in order to maximize profits. 

     Historically, courts had required that insurers balance profits with a fiduciary duty to the persons they insured.  In short, the insurer "represented" the policy holder and the relationship was not entirely "at arm's length": in many cases, citizens are even compelled to buy the insurance product in order to operate a vehicle on state roads, for example, or to bid on public contracts.  In return, the insurer recieved various legislative and financial perquisites thought to be necessary to accomplish the purpose of sharing risks broadly.  Thirty years ago, the California Supreme Court characterized this "quasi-public" responsibility of insurers as an obligation of "good faith and fair dealing, encompass[ing] qualitites of decency and humanity inherent in the responsibilities of a fiduciary".

         Taking the Enron philosophy to its core, McKinsey and Allstate increased Allstate's pre-tax operating income [not including investment income] from a decade-long average of82 million dollars a year, to an average of 27.4 billion dollars per year from 1996-2006.  McKinsey and Allstate did not accomplish this by making smarter investments or through wiser risk management.  Rather, Allstate adopted a "zero-sum" approach which internal memos claimed "redefine[d] the game" and "radically alter[ed] our whole approach to the business of claims".    Allstate aimed to reduce claims payments by 15 to 20 percent, and in fact it reduced payouts on auto claims from 69 cents per premium dollar collected, in 1994, to 51.7 cents per dollar in 1998 and 43.5 cents per dollar by 2006.  Parenthetically, this should have resulted in some reduction in premiums but in fact it did not.

        In order to achieve these spectacular results, McKinsey and Allstate devised a "Good Hands or Boxing Gloves" approach, pursuant to which Allstate would pay claims fairly, or promptly, but not both.  Insureds would be offered a choice:  prompt payment of an arbitrarily computed amount (actually eighty percent of similar past claims, apparently)--or incur the expense, risk and delay of bare-knuckled litigation.    This strategy deliberately took advantage of the economic pressures which accompany a significant personal or property loss:  many policy holders would simply be unable to withstand the delay and expense of litigation and be forced to capitulate and accept unjust settlement offers that had been calculated at about eighty percent of past payouts.

        McKinsey estimated that faced with legal expenses and substantial court delays in resolution of a claim, 90 percent of policy holders would throw in the towel.  The remaining ten percent of insureds willing to contest this arbitrary reduction in a claim would be forced in to what McKinsey and Allstate called the "kill box":  no-holds-barred litigation designed not to determine the actual value of a claim, but rather to punish policyholders unwilling to accept less than the actual value of their loss.

        As further assurance of higher profits, the industry also redoubled its assault on victims' rights under state laws.  A full-scale national campaign was engaged (and then fueled with extraordinary profits) to limit payouts by all casualty and liability insurers through changes in the law and marketing to potential jurors.  "Frivolous claims" became a political by-word, despite the fact that no actual proof was offered to document that such claims were a legitimate issue. 

        In an earlier blog we documented the enormous change in the number and size of payouts in Michigan since 1987: insurers have enjoyed particular success in reducing claims and claims payouts in Michigan and have reaped profits that are even more spectacular than nationwide averages as a result.  Refer to "Record Profits..." in our weblog index.      

        Enormous insurers like Allstate, Safeco and Progressive have achieved such startling profits that they have embarked upon a massive stock buyback with excess premium dollars.  Just two y ears ago, Allstate bought back more than 15 billion dollars in stock during the same period it was complaining about large potential weather-related losses and lobbying legislatures for insurance "reform".  While insurance industry spokespeople like Mark Racicot--formerly a top Enron lobbyist and Republican National Committee Chairman, and current head of the American Insurance Association--describe the industry as "high-risk" when responding to critics, the facts show otherwise:  even in 2005 when three of the ten most destructive storms in history ravaged the United States, U.S. insurers declared RECORD profits.

        These record profits have not ocurred by coincidence.  Even while the industry was reporting 44+ billion in profits in 2005, insurance executives were manipulating to enhance profits further.  For example, Jeff Radke, CEO of a Bermuda-based reinsurer, claimed that Hurrican Katrina is a "significant event" for our company...our loss will leave us with enough capital to really thrive in the markety opportunity that's going to follow...this is one of those happy cases where if a rating agency were to insist that we raise capital...it wouldn't trouble us much at all."  AIG Executive Vice President JW Greenberg expressed similar sentiments in an intra-company memo he wrote the day Hurricane Andrew hit south Florida:  "We have opportunities from this and everyone must probe with brokers and clients.  Begin by calling your underwriters together and explaining the significance of the hurricane.  This is an opporunity to get price increases now. We must be the first and it begins by establishing the psychology with our own people.  Please get it moving today.   Lloyd's of London described the September 11 attacks similarly, as a "historic opportunity...where very large profits are possible".

        In short, the American public has been manipulated into a cultural change of significant  proportions through a campaign of deceit and greed.  Led by Allstate and McKinsey, a quasi-public industry that historically balanced state-defined risks and rights in order to broadly share accident risks accross the population, has achieved an Enron-like goal of redefining and diminishing consumer rights in order to record record profits.  Even more disgusting, it has cynically and deliberately profited from catastrophes such as September 11 and Hurricane Katrina, while diverting attention from its record profits to excoriate innocent victims and policyholders.  One can't help but wonder just how long the middle class will allow itself to be manipulated against its own interest by wealthy Enron-like profit-mongers.

       

       

Federal Regulations and trucking safety

   Despite Federal studies that demonstrate a sharp increase in driving fatalities associated with driving more than ten consecutive hours, the Bush administration recently revised federal regulations to allow truckers to drive for 11 consecutive hours, rather than the ten hours previously allowed.  The Bush administration ignored its own safety studies and caved in to industry pressure in order to enhance corporate profits.

        Fortunately, two successive federal courts have now struck down this relaxation of driving rules, citing the Federal Motor Carrier Safety Administration's own research into safety and consecutive hours of driving.  The Court of Appeals' recent decision was unanimous.  Hopefully, if the issue gets in front of the U.S. Supreme Court, Justice Anthony Kennedy will join with the moderates and not with the right-wing activists who have been rubber-stamping the interests of the Republican Party.  Insurance companies would probably object to this relaxation of regulation, however, several months ago, the Federal Government threw a sop to their lobbyists by limiting liability exposure of interstate trucking companies.

Head injuries and new research

    On August 1, 2007, the journal Nature published a new report documenting the case of a 38 year-old man who was awakened from a barely-conscious state through electronic brain stimulation.  The man had suffered a depressed skull fracture and severe brain injury in an armed robbery and beating, and had not regained full consciousness in more than five years (the NYT reported more than five years, NPR reported 8 years).  The man's recovery has not been complete, but he can now converse with his mother over simple issues; previously, he had remained in a virtual sleep-state.

        The recovery was achieved by means of a deep brain stimulator implanted  in the thalamus at a site that controls sleep and waking states.  Researchers were quick to point out that this procedure was not helpful when attempted with Terri Schiavo and that the patient must have evidence of some brain function for it to work.  This patient was minimally responsive over the years and testing showed that certain language and intellectual functions of his brain remained intact.  The procedure was performed at the Cleveland Clinic.  A neurologist at Cornell reported the results, along with the Clinic physicians.  They note that the patient shows clear, objective improvement in function during the 12 hours per day when the implant is activated, and that he regresses in function when it is off.  While he has thus far been unable to develop new memory, he is once again an individual--even if his functional capacity is incomplete.

Snow and ice in Michigan

     Judge William Murphy and Judge Jessica Cooper recently filed an opinion in Kaseta v. Binkowski that for the first time illustrated the hypocrisy of the current holdings addressing black ice as a safety hazard.  In Kaseta, the Plaintiff was invited to the Defendants' home to execute legal papers; on leaving she fell on black ice on the sidewalk and suffered severe injuries.  Judge Bill Whitbeck, an Engler associate, dissented from the majority opinion and would have distinguished between whether "a reasonable person in the Plaintiff's position would foresee the danger" and "whether a particular plaintififf should have known that the condition was hazardous".  Whitbeck would argue that these statements support different standards of inquiry.  On reasonable reflection, that seems to be so much semantic nonsense.

          Whitbeck's position--the insurer's position--is that any Michigan resident should always recognize the potential of slippery conditions in Michigan during winter months, even upon casual inspection, and that therefore landowners owe no duty to correct these conditions.  Setting aside the fact that this is bad law and unfortunate public policy--since it removes any duty to improve hazardous conditions, this theoretical lack of duty is inconsistent with the insurers' position in no fault auto claims. 

        The same judges who hold a pedestrian responsible for failing to anticipate black ice also allow motorists who lose control on black ice and cross the centerline, causing death or serious injuries, to claim the "unexpected" and "unanticipatable" black ice as a "sudden emergency" excuse for crossing the centerline or losing control.  Judges Murphy and Cooper pointed out that the standard and the inquiry in each case is the same:  if a motorist can be surprised by black ice in the winter, then a pedestrian can also.  If one can claim surprise by the condition as a defense, it should also be available as a potential argument for injury victims who did not recognize its presence.

"Serious impairment of bodily function"

    The appellate courts of Michigan continue to be distracted with arguments over the serious impairment standard.  The No Fault statute requires that a jury find a "serious impairment of bodily function" in order for a person injured by the negligence of another driver to receive non-economic compensation beyond PIP coverage.  [There are two other exceptions that have not resulted in much controversy:  persons suffering death or permanent serious disfigurement also may sue.]  Since 1974, the meaning of "serious impairment" has been tweaked by courts and the legislature, but never so dramatically as in 2004 when the Supreme Court adopted its Kreiner decision requiring that a "seriously impaired" person prove a "life-altering" injury.  As noted elsewhere on our website and weblog, this decision--with little support in the legislative history--has been a windfall for Michigan insurers and denied compensation to many innocent victims. 

          This week was no exception, as Stacy Buys, an innocent passenger in a vehicle struck by the at-fault, was denied compensation under the "drunk driver's relief act".  Ms. Buys suffered a badly fractured ankle that required surgery and the insertion of pins and a tubular plate.  Her attorney may have been a little too confident in responding to the insurer's motion for summary disposition, as she apparently filed her medical records with the court anticipating they would be adequate to create a question of fact about the seriousness of her injuries.  The Court held that as a matter of law she was not "seriously" hurt--according to the Supreme Court's standard. 

          During the same week, the Court of Appeals refused to overturn a verdict for another young woman victim of a car wreck.  Despite the fact that she suffered from back pain and radiculopathy in her left leg, despite the fact that she had surgery on her left knee and was still receiving treatment five years later, the insurance company appealed a verdict of $330,000.00 in her favor.   Only $30,000.00 of the verdict was non-economic (i.e. for things like "pain and suffering").  Despite the fact that her claim was supported by two medical specialists and a vocational rehabilitation specialist who testified that there were "no jobs" that she could do after the accident injuries, the insurer argued that her injuries were not a "serious impairment" as a matter of law.  One judge would have agreed with the insurer, citing the Kreiner decision, despite the wealth of testimony and the jury's decision to the contrary.

The Drunk Driver's Relief Act

       The No Fault act makes an at-fault driver responsible for any "serious" injuries he causes.  For many years, the meaning of this threshold requirement was simple:  jurors had to consider the facts of the injury and damages and decide whether it was "serious" in normal parlance.  As most people now know, in the Kreiner case the conservative majority of the Supreme Court re-intrepreted "serious" to require that the injured person's injuries have a "life-altering" impact.  They also stated that the life-altering impact cannot be based on pain and can only be based upon physician limitations and restrictions.

           There have been many notorious and senseless pro-insurance and anti-victim decisions since Kreiner.  A teen-aged girl's closed head injury that necessitated  missing a full year of school was deemed "not serious".  A neck injury that caused a herniated disc, dangerous surgery, several months of missed work and nagging permanent pain "was not a serious impairment".  Several victims with  serious limb or facial fractures, torn knee ligaments, ruptured discs, and other colloquially "serious" injuries have been denied compensation, despite permanent restrictions on work activities and hours (even to the extent of being limited to working 24 hours per week), total loss of recreational activities, and doctor-confirmed lifetime pain problems.

        The latest of these extreme decisions releasing a careless driver's insurance from paying compensation , involved a man who suffered a torn rotator cuff and other injuries in a high-speed collision when the at-fault blew a red light at an intersection.  The victim, Herbert Jurnikian, made a fairly prompt recovery form injuries to his knees, hands, and neck, but his torn rotator cuff turned out to be intractable. 

          His family doctor wouldn't approve the recommended surgical repair because of his age and pre-existing emphysema, so Mr. Jurnikian was forced to live with chronic, severe pain in the shoulder.  He had attended literally dozens of physical therapy sessions over more than a year.  The therapists recorded that he could not do any pushing, pulling, lifting, carrying or heavy work involving his shoulder.   He could not even shoot pool without experiencing pain, and often required help with dressing and bathing.

          Despite the fact that he endured severe pain with virtually all activities that was so severe his doctors would have liked to operate to give him some relief, two judges of the Court of Appeals ruled that "reasonable minds could not conclude" that he had suffered "a serious impairment of bodily function."  These two judges thought the issue was so clear that they did not even allow Mr. Jernukian's attorneys to participate in Oral Argument on appeal.  One would think that with the threshold for liability claims raised this high, all Michigan residents should have seen a significant reduction in our no fault insurance premiums:  has your insurance gone down in the past few years?

Deadlines to Sue

      One of the many "reform" decisions issued recently by the Michigan Supreme Court addressed the issue of how long an injured person, or people providing services to the person, can delay before filing suit against an auto insurer for PIP benefits [PIP benefits are medical expenses and three years of lost wages or domestic services, payable normally by the injured person's own insurance].  From the 1970s when Michigan's No Fault Act was adopted, the Supreme Court had consistently held that the injured person, or a service provider, could delay suit until the auto insurer actually denied the benefit claim in writing.  This approach made sense, since it encouraged the parties to negotiate claims without litigation and it allowed unsophisticated consumers the opportunity to manage claims themselves, without fear of inadvertently losing the right to enforce their rights.

         The arch conservative Michigan Supreme Court majority decided to overturn this rule, however, and reversed 19 years of law that had appeared to be expressly resolved and stable.  It held that the injured person, or persons providing services to the injured person, must sue within one year of incurring the original expense, or lose their claim.  It also held that insurers who negotiate through this deadline are not estopped to raise the deadline to deny the claimant the right to sue.  It also applied this deadline to infants and incompetent persons, and denied them the protections of extended deadlines that the Legislature had previously established in the Revised Judicature Act.  In other words, it took away all the established exceptions and protections and instituted a hard-line one year statute of limitations protecting auto insurers from PIP lawsuits.  Unfortunately, most citizens are unaware of this one-year deadline, or of the fact that if a provider's bill is not paid by the first anniversary, and no suit is filed, the billing may become an obligation of the family.

          Since this change in interpretation came as a surprise to most claimants and medical providers, it caught many flat-footed, holding claims that were legitimate but had not been placed in suit while the parties were negotiating compromises.  Under the existing rules, the claimants and their service providers would have enjoyed the right to exhaust negotiations and then sue within a year if no satisfactory compromise could be reached.  The Supreme Court overturned that right and also made its decision retroactive, so that people who had patiently attempted to negotiate without rushing to Court were punished by the complete denial of their [now stale] claims.  We can't imagine how many millions of dollars this dropped in to the laps of auto insurers in Michigan, in one fell swoop.

          While conservative "reformers" have paid lip service to reducing the amount of litigation and the need for families to aggressively protect their rights by hiring lawyers and involving the courts, this decision helps to demonstrate the real goal of "insurance reform":  preserving and enhancing the profit margin of Michigan's insurers.  No wonder they were willing to contribute heavily to the Justices' re-election campaigns.

          The message for families with a severely injured loved one is also clear:  consult with a knowledgeable person to confirm your rights and don't trust or rely upon an insurance representative.  While some insurance adjusters and case managers are honest, dedicated and decent, many are not; and families have too much at risk to rely upon their [conflicted] advice exclusively.  Most experienced attorneys will consult with a family for free, and capable attorneys can be hired on an hourly or contingent fee basis, depending on what is best for the family, to provide knowledge and guidance.

Corporate Assault on Safety

The corporate-financed and Republican-engineered assault on safety continues, according to recent articles in the national media.  In Missouri, newspaper accounts of the death of 62 year old Dorris Edwards on her way home from visiting relatives over Thanksgiving, highlight some of the problems encountered when regulators refuse to act in the public's interest.

Ms. Edwards was killed by a rookie truckdriver on his first cross-country trip.  He had been driving nonstop for 8 hours and in the cab for nearly 12.  His "instructor", a 22 -year old with one year of driving experience, was asleep in the berth behind him when his groggy reactions resulted in the death of Ms. Edwards. 

The Cost of Liability

 

         Whenever the Chamber of Commerce or the insurance industry wish to take a cheap shot at injured people or their rights, someone typically invokes the cost of liability insurance coverage.  It is extremely common for insurers to invoke this bogeyman when consumer groups or legislators question the cost of insurance coverage.  In fact, the number of liability claims in Michigan, per capita, is down substantially since 1990, but the cost of liability insurance has continued to rise.  The New York Times recently reported that several of the largest insurers are recording record profits, some approaching 30 percent, per year.

          Most people have no idea who to believe in these matters. There is one simple test for Michigan residents, though, that may help to demonstrate where your insurance money goes.  Whenever you buy or renew an auto policy, you receive a Declaration Page.  This page shows what coverages you have purchased and what each of those coverages costs you for the coverage period.  If you examine that Dec Sheet--and the two or three you received immediately before--you will be startled by what you learn.

         In the case of most car owners, about two-thirds of their auto insurance premium is related to the cost of potentially replacing the vehicle. Collision and comprehensive coverage for $20-60,000.00 vehicles is prohibitively expensive, especially when they contain expensive electronic parts and are made of plastic and fiberglass [and probably overseas].  Of the remaining one-third of your premium cost, for most insureds three-fourths of that cost is related to ordinary medical and catastrophic medical coverage or potential wage loss.  For the average owner/driver, only a very small part of Michigan's mandatory auto insurance coverage is attributable to liability exposure.

             Another proof of the proportionate cost of liability coverage is the relative cheapness of uninsured and underinsured motorist coverage.  These are coverages an owner/insured can purchase to protect his family in the event a family member is injured by a person who has not purchased adequate liability coverage.  In most cases, adding this coverage to an existing policy costs less than $50.00 per coverage period:  far less than the cost of collision or medical coverage.

 

Electronic Data Recorders

 

         Most motorists don't realize that they have something of a "spy" in the engine compartment.  If you drive a General Motors vehicle, or a more recent make of Ford, it is highly likely that a mechanism connected with your air bag creates a snapshot of your vehicle's operation in the seconds before any event that triggers the airbag.  If you are operating a heavy-duty vehicle of fairly recent vintage, it is highly likely that it contains a computer that is designed and programmed to preserve similar data.  In the case of snowplows, fire engines and semi-tractor trailer units, for example, even a hard-braking stop will "capture" the speed of the vehicle immediately prior to the capturing event.

       In some cases, this data is captured "permanently".  In other cases, it may be over-written after a certain number of braking events or after a certain number of engine starts.  We have found that while these computer systems are not foolproof, they tend to be more reliable than an at-fault driver when it comes to estimating speeds, for example.  It is imperative that anyone investigating a motor vehicle incident thoroughly investigates the potential content of an electronic data recorder or "black box".

         Most foreign-manufactured passenger vehicles do not contain an EDR.  In the case of some heavy-duty vehicles, the owner can determine what information will be preserved by stipulating that the computer not be activated or partially disabled.

       EDRs were originally installed by General Motors in an effort to defend consumer claims of manufacturing or design defect.  They can also be useful in some commercial applications to assess whether the vehicle's operation is consistent with regulations governing hours of service, speed and hours of rest.  We have found that even investigating police agencies may overlook the potential for EDR evidence, if the officer is not highly familiar with the concept and willing to explore what is available.  For example, in one of our recent cases, the Sheriff's Deputy did not preserve evidence temporarily captured by a snowplow that struck a pedestrian because he did not understand that the simple act of braking hard would activate the system’s memory.
       

Actions involving emergency vehicles

     For the fourth time in my career, our firm has been retained to represent a family that has suffered a fatality as a result of the unsafe operation of an emergency vehicle.  Despite the fact that studies from as far back as the 1970s clearly document the need for emergency vehicles to stop before violating traffic control directions, emergency drivers continue to believe that by activating their lights and siren, they can adequately warn every driver they contact of their intent to violate normal traffic rules.  In these four cases, we have been witness to six fatalities:  when these incidents happen, they involve large, heavy vehicles and high speeds and the results are catastrophic.

     It is our hope that eventually some form of public pressure will force emergency departments and drivers to train and discipline their drivers so that they comply with the existing state law:  under the statutes that allow emergency drivers to violate the normal laws of motor vehicle operation, they can do so only if they do not endanger life or property.  Unfortunately, the message does not seem to be readily absorbed by some of the young men who are willing to give their time to emergency work.