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.

Michigan Blue Cross agrees to provide limited benefits to autistic insureds

On June 20, 2009, Blue Cross Blue Shield of Michigan agreed to pay one million dollars to settle a class action brought by 100 Michigan families.  The families had argued that the health insurer should be providing coverage for behavioral therapy to young children diagnosed with autism.  Most private Michigan health insurers do not provide coverage for autism, however, BCBS announced in May that it would provide limited coverage for intensive early intervention.

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."

Bloomberg reports cost of medical malpractice claims are "a drop in the bucket"

On June 16, the Bloomberg News Agency responded to President Obama's talk to the American Medical Association by citing figures from a Harvard economist showing that the total cost of medical malpractice claims is about $12 per person in the U.S.  That amounts to about $3.6 billion dollars of a total $2.3 trillion dollars spent on health care (or one in every six dollars of our gross domestic product, by some calculations).  As Bloomberg and Harvard pointed out, this makes the total cost of malpractice claims "a drop in the bucket" when compared to the total cost of health care:  even eliminating malpractice claims entirely would have a negligible impact on the runaway cost of medical care in the U.S.  The U.S.'s largerst health insurer, WellPoint, Inc., conceded the same point last month when it issued a report acknowledging that medical liability was not driving up the cost of health insurance premiums.

Nationwide Mutual admits underpayment to insureds for 13 years

On June 16, the Columbus Dispatch reported that Nationwide Mutual Insurance had agreed to pay policyholders an additional 20 percent on top of previous payments to settle a class action alleging systematic underpayment of home repair claims.  The paper explained that over a 13 year period, Nationwide had underpaid insureds by withholding payment for general contractors' overhead and profit, leaving insureds inadequate insurance coverage to complete insured repairs.  A spokeswoman for Nationwide denied wrongdoing and refused to discuss the case, pending court approval of the class-action settlement.

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.

Michigan Campaign Finance Network: Taylor substantially outspent Hathaway

The Michigan Campaign Finance Network (MCFN), attempting to secure greater transparency in fund-raising for judicial elections, published its findings on the 2008 Michigan Supreme Court race this week.  Justice Taylor, the conservative Republican who had been appointed by Governor Engler and who was considered the poster-boy for "tort reform" favoring insurers, was defeated despite raising $4.8 million dollars.  His campaign outspent his opponent's by $1.93 million to $750,000.00, and including outside interests, $4.8 million was spent on his behalf, compared to $2.7 million spent in total for Hathaway. 

Supreme Court rules 5-4 that taking too much money from a litigant can disqualify a judge

In prior log entries we have discussed the Caperton v. A.T. Massey Coal Company brouhaha.  Several small coal companies sued Massey, the state's largest, claiming that its owner had put them out of business through illegal fraud.  They won a verdict in the amount of $50 million dollars.  Massey then counted noses on the West Virginia Supreme Court, and contributed 3 million dollars to the campaign to replace one of the sitting justices with a candidate he favored.  That candidate won and became the deciding vote in a 3-2 decision overturning the verdict against Massey.  Yesterday the U.S. Supreme Court held 5-4 that the small coal companies had been denied due process.

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.

Chamber of Commerce amps up disinformation campaign

The U.S. Chamber of Commerce is a wealthy organization that represents more than three million businesses.  In the past two decades it has become an extremely aggressive political and special interest lobbying entity, charged with spending millions of dollars to buy judges, wipe out consumer protection legislation and  prevent government regulation.  It is currently campaigning against rules that would require that the nation's food supply be labeled with the country of origin. 

"Strict Construction" and judicial activism: what do these terms really mean?

In recent years, many pundits have called for a return to "strict construction" of legal documents, legislation and even the Constitution.  In some cases, the advocates have gone so far as to argue for "original intent," that is, interpreting the Constitution, for example, as intended by its draftors, rather than by modern analysis.  This initially inviting and simple suggestion loses some of its attraction when we are reminded that many of those draftors were actually slave-owners and that the Constitution itself assigned a value of only six-tenths of a person to black slaves. 

None of the draftors would have granted the vote, for example, to blacks or women; and a majority would have denied the vote even to white males if they lacked their state's prescribed property requirements.  The suggestion that "strict construction" is a simple and more accurate judicial goal, and the criticism of any other approach as "judicial activism," intentionally obfuscates the task of the judiciary and denigrates our courts.  As examples, we point to two recent events reported in widely divergent courts.

Low overhead on stairs is "open and obvious"

Kevin Romitti was attending a deposition at the offices of Peter Ryan and had to descend a stairway with a low overhead.  Romitti made his way to the conference room safely twice, before striking his head on the third time down.  Perhaps he was disoriented by too many mind-numbing questions from one attorney or another.  In any event, apparently he was seriously hurt and he filed a claim against the owner of the building.

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.

Court of Appeals decides to publish case rejecting title insurer negligence

Several weeks ago, we described the holding in Wormsbacher and W & FLLC v. Phillip R. Seaver Title Company, Inc., holding, in which a panel of the Court of Appeals concluded that a title insurance company cannot be held responsible for negligence.  This month, the panel decided the decision should be published and serve as a precedent for the proposition that title insurers can only be held responsible to fulfill the duties they spell out in the title insurance contract.  Under the decision, insureds have no remedies other than those agreed to by the insurer in the contract.  The judges concluded that if a buyer or developer wants a remedy in the event of an error in examining the title, it should pay for an abstract rather than a title insurance commitment.

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.

Allstate's "Good Hands" get greased with taxpayer money

Allstate Insurance has been the most aggressive insurer in the country, with respect to placing profits ahead of benefit payment, since it adopted its "good hands or boxing gloves" approach to claims management.  It has pushed the entire insurance industry toward heavy marketing to secure premium dollars, coupled with "tort reform" and truculent management of claims in order to minimize payouts.  It has also been a leader in resisting government inspection or regulation of insurance reserves.

Much of that anti-consumer effort has been documented earlier on this site.  Today, Allstate's arrogant treatment of insureds and consumers was rewarded by the award of several billion dollars of taxpayer "bailout" money ("up to 3 percent of its net worth") by the federal government.  Other insurers to receive the handout include Prudential Financial, Hartford Financial, Lincoln National, Ameriprise and Principal Financial.

Next time you see Allstate's handsome actor-spokesman on TV, keep in mind that the clever pious marketing stance presented by the Company and its celebration of old-fashioned values is nothing more than a superficial public relations campaign for a brutal, self-possessed multi-national corporation that is not above grabbing taxpayer cash to reimburse the money it has gambled away on financial derivatives and speculation.

Michigan Justices weigh-in against court reform

Michigan taxpayers will be pleased to learn that Michigan Supreme Court Justices Young and Corrigan, with not enough work to do, filed an amicus brief with the U.S. Supreme Court, indirectly arguing against limitations on judicial campaign contributions.

Fraud verdict against American Family Insurance is reinstated

The Kansas City Star reported on Tuesday that a $17 million dollar verdict against American Family Insurance had been reinstated by the appellate courts.  The jury verdict had initially been overturned by a judge who questioned whether the plaintiffs had made a satisfactory proof of their claim that American Family committed fraud by using inferior, nonoriginal equipment to repair insured's damaged vehicles. 

Health Insurer trade group offers to eliminate gender rate disparity

As matters currently stand, U.S. women pay from 25 to 50 percent more than men for health insurance.  The reasons for this disparity have been discussed previously in this web log, and include higher utilization rates by women, childbearing issues and better medical compliance by female patients, in addition to old-fashioned gender bias.  Although the health insurance industry has always maintained that underwriting principles underly the disparity, Karen M. Ignagni, president of America's Health Insurance Plans, a trade group, was quoted by the New York Times as having told the Senate Finance Committee on May 5, 2009, that the practice would be discontinued.

This is one of a series of concessions the trade group has offered since the Obama Administration began discussing creation of a government-run insurance option to compete or replace private insurers in the market place.

Saad allows Farm Bureau to avoid payout again

Henry Saad was Governor Engler's hand-pointed shill for the insurance industry.  Farm Bureau is the Michigan insurer most eager to exploit litigation to avoid fiduciary responsibilities.  They patted each other on the back again this week, when Saad's panel of the Court of Appeals denied life insurance to a widow.

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.

Can AutoOwners dodge responsibility for injuries at Ludington Motel?

The Bronkema family was injured by chlorine gas while staying at the Holiday Inn Express in Ludington.  No one denied the family's injuries, and AutoOwners initially paid more than $10,000.00 in medical expenses incurred by the family.  When the incident turned out to be more significant than anticipated, however, AutoOwners denied responsibility and stopped paying, citing the "pollution" exception in the coverage it wrote for the motel.  The trial judge rejected AutoOwners' pollution argument and awarded the motel and the Bronkemas more than $500,000.00 in damages, fees and costs.

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." 

Insurance agents held accountable for arranging illusory health coverage for employees

This week the Court of Appeals upheld a $1.2 million dollar verdict against Joseph Saigh and Lawrence Wells.  The jury had concluded that Saigh and Wells had allowed their employee to sell illusory coverage, provided by an unlicensed insurer, through negligent or intentional misrepresentations.  The Court rejected the defendants claims that they were not responsible for the representations made by their employee and also  rejected arguments that they owed no duty to the employer, even though they were retained expressly  because they claimed to be "specialists in health insurance coverage." 

The Court also allowed the corporate employer to collect exemplary damages from the defendants, based on the injury the company suffered to its good name.  The court noted that as a result of the illusory coverage the Defendants arranged and facilitated, the corporate employer suffered loss of good employees, hundreds of complaints from employees and health care providers, and a loss of reputation.  The case is Unibar Maintenance Services, Inc. v. Joseph Saigh and Lawrence Wells.

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.

Claim arising from punch thrown during soccer match is reinstated

Basil Esshaki suffered a broken jaw and lost four teeth when he was punched by Scott Millman during a soccer match.  He sued to recover compensation, including medical expenses, that resulted.  The Oakland County Circuit judge dismissed the case, holding that only Esshaki's testimony supported a claim that the injury was other than a typical sporting injury; the judge claimed that by engaging in the game, Esshaki waived any claim of injury resulting from the ordinary risks associated with participation.

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.

Farmers' "stray voltage" case dismissed as court rejects their experts' testimony

In Schaendorf v. Consumers Energy, the Court of Appeals acknowledged that it is common knowledge and undisputed by either party that stray voltage in a barn can and will decrease milk production.  Nevertheless, it upheld the dismissal of the Plaintiff's economic damage claim, citing a lack of scientific foundation for the farmers' three experts' testimony.

School janitor "owes no duty" to injured school board member

Ruth Williams, a member of the Inkster School Board, was in the cafeteria for an enrollment fair.  A contractor's employee had just mopped the cafeteria floor but didn't set out any warnings. Williams fell and severly fractured her ankle.  She sued the contractor, alleging negligence in failing to post a warning to meeting invitees that the floor was newly mopped and slippery.  The Court held that the contractor and its employees--whether negligent or not--owed no duty to her or any other person entering the cafeteria.

Farm Bureau's efforts to avoid paying fire loss are discredited by court

Brittany Smith's home burned.  She had bought coverage with Farm Bureau.  Farm  Bureau demanded that Smith complete the copious Proof of Loss which can be required by law (and it has short time limits, by the way) and she filled it out including between $900 and $1,000 dollars of personal property in the residence destroyed by fire but not owned by her.  She explained that apparent discrepancy to Farm Bureau when it forced her to sit for an examination under oath.  Nevertheless, Farm Bureau attempted to void her policy and refused to pay her the insured value of her loss--which was in excess of $200,000.00 in real and personal property.

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 evades another obligation

Dynamic Land, L.L.C., bought commercial insurance from Farm Bureau on a two-unit commercial building.  It was renovating the insured property when a sprinkler system pipe broke.  It attempted to recover for lost rent and actual expenses of nearly $300,000.00, incurred over the twelve months the property was under repair.  Farm Bureau denied payment, arguing that the company had not shown an "actual loss of business income" during the repair period. 

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.

Title insurers aren't responsible for negligence in Michigan

Apparently because there was concern they would flee the state, Michigan title insurers have gradually been granted immunity by state court judges, at least according to the Court of Appeals' recent ruling in Wormsbacher v. Phillip R. Seaver Title Co.  A buyer who relied on title searches before buying land in a Rochester subdivision attempted to sue the title company when it turned out that the company failed to advise him of restrictions prohibiting commercial use of the land.

Study documents negative impact of campaign contributions to judges

Many knowledgeable authorities have bemoaned the fact that United States' judgeships are more and more available for purchase--or at least appear to be.  No less an authority than Sandra Day O'Connor--not known as a militant reformer or liberal by any means--has urged the nation to seek serious reform of the judicial selection process over the past few years.   The issue gained new traction with the current controversy in West Virginia, where the Chief Justice of the State Supreme Court was the swing vote in over-turning a 50 million dollar verdict against a company owned by a man who contributed three million dollars to the Justice's election campaign. 

The U.S. Supreme Court has recently agreed to hear an appeal in that case, and dozens of former state court justices and judges have filed amicus briefs urging reversal of the West Virginia outcome.  The retired judges feel that this kind of contribution and the failure of the judge to recuse himself constitute a denial of due process and erode public confidence in the judiciary.  [To quote my son, "Duh."]  Their concerns were validated in a recent study published by political scientists from Utah and Pennsylvania.

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. 

Farm Bureau required to fulfill its duties under insurance contract; State Farm allowed to skate

The owners of Aladdin's Carpet Cleaning purchased commercial liability from State Farm and an umbrella from Farm Bureau.  State Farm had the insight to exclude coverage for "mold claims" in the small print of its policy, but Farm Bureau's loop-hole generators weren't as effective.  Aladdin was hired to help clean water damage in a home and allegedly performed badly, negligently contributing to a mold problem throughout the house.  When Aladdin turned the claim over to its (two) insurers to defend, they both ran for the "back forty".  Aladdin defended the lawsuit with the homeowner and resolved it, before suing State Farm and Farm Bureau for the costs it incurred.

Progressive Insurance not liable for vehicle title "mistake"

Progressive Insurance totalled one of its insured's vehicles, but then sold it with a clear title instead of a salvage title.  A purchaser bought the vehicle after it was repaired, but Progressive refused to insure it because of the title "error."  (How's that for irony?)  The auction house, Pro-Tech, bought the vehicle back and a dispute developed between it and the dealer over the quality of the dealer's repairs.  When the dealer refused to contribute to the buy-back, it was banned from Pro-Tech auctions, and the dealer eventually sued the auction house and Progressive.  The Court of Appeals held that Progressive's titling "error" was too remote to make it responsible for the controversy that developed between the auction house and the repairing dealer.  If an insured made a similar "mistake" in his or her purchase documents, their insurance would be voided for fraud.  The term "progressive" has certainly assumed a different meaning over the past few decades.

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.

More medical groups sue over use of Ingenix

We reported a few weeks ago that New York Attorney General Andrew Cuomo had secured a settlement under which insurers would have to compensate insureds who had been underpaid after seeking "out of network" treatment.  The settlement was based on the patent conflict of interest involved in using United Health's captive Ingenix subsidiary to set rates for out-of-network care.  Ingenix reportedly abused United Health data to unfairly and falsely compute "reasonable and customary" charges and to underpay out-of-network providers. 

Now, the AMA, The Connecticut State Medical Society and several other state medical societies have also filed suit, claiming their doctors have been short-changed.  The lawsuit is being pursued as a Racketeer Influenced and Corrupt Organizations claim and as a violation of ERISA rights and the Sherman Anti-Trust Act.