TOV Injury and Safety Blog

Sixth Circuit overturns mis-application of Michigan law in wrongful death.

Nickie Donald died when a 28' steel beam loaded on an E.R. Express semi-trailer struck a bridge overpass and fell onto the highway, striking Donald's cab.  Mai Roquemore, the Personal Representative of Donald's Estate sued the owner, driver and three other entities, including the companies that loaded the beam on the truck for negligence.  The U.S. District Court dismissed the latter claims, holding that a Michigan law immunized everyone but the owner of the truck from liability.  The Sixth Circuit repudiated this over-broad reading of a statute intended to immunize bridge authorities under similar circumstances.

Appellate court overturns judge's decision to grant a new trial where back injury exacerbated

Ted Olney sued Darbin M. Fogg and Tracy Lynn Fogg after Darbin rear-ended him in a low speed accident.  Olney claimed that the collision exacerbated his existing back and neck troubles, thereby constituting a "serious impairment of bodily function" necessary to hold the Foggs liable fo damages resulting from Darbin's negligence.  He provided evidence that he underwent surgery after the Fogg collision.  After a jury trial, a verdict was returned holding that Olney "suffered no injury" in the Fogg collision.  The judge discussed the verdict with jurors and concluded that they did not understand the instructions they had received.  Under Michigan law based on the "thin-skull"  or "egg-shell" plaintiff rule, an at-fault actor is responsible for all the damages resulting from his or her negligence, even if the damages are enhanced by an existing weakness or susceptibility in the victim.  Concluding that the jury did not understand this rule, the judge ordered a new trial, and Foggs' insurer appealed.

Pioneer State Mutual leaves daughter-in-law holding the bag

Tammy Sue Long borrowed the in-laws' car for the day.  She was involved in a bad car accident, causing injury to Janice and Brian Kammers.  No problem because her parents had purchased $300,000.00 in liability coverage on the vehicle, right?  Wrong.  Pioneer's fine print limits its liability coverage to $20,000.00 if the vehicle is operated by anyone other than the "named insureds" and family members living with them.   Citing this provision of the policy, the Court of Appeals ruled this week that Tammy Sue Long was entitled to only $20,000.00 in liability protection.  The Court noted that under prior rulings of the Republican State Supreme Court Majority, while it is illegal for an insurer to deny coverage to a non-owner, it may limit coverage to the 1974 state minimum--$20,000.00 per injury--and this is not a violation of public policy.  Regardless of the premium paid by the insureds or the fact that they permitted the use of the vehicle by the driver. 

The Court did not address an additional question:  since the Longs remained responsible for the full amount of damages caused by a permitted operator, why didn't the higher coverage limits they purchased apply to the Kammers' injuries?  Maybe the answer is just "because the insurance company says so."  That seems to be the rule of law in Michigan.

USAA penalized for unreasonable delay in paying no fault PIP medical benefits

USAA, the company that advertises its "special relationship" with military families and claims to provide them with enhanced service, was penalized again this week for unreasonably delaying payment of no fault personal injury protection (PIP) benefits.  The insured, Rana Reyes, who suffered from depression, became distressed in 2008 when her boyfriend changed his Facebook status to "single."  She accompanied the love interest to the bar, where she became intoxicated and highly emotional.  As they were driving home from the bar, she became angry when her companion would not reciprocate her expressions of love and announced she was leaving the car. She opened the door and fell out at 35-40 miles per hour.  Her head was struck by the rear passenger wheel, causing a severe head injury.

Court holds that where joint custody exists, child is domiciled in both homes for purpose of no fault coverage

Josalyn Lawrence suffered fatal injuries in a car accident.  Her mother's car was insured with Farm Bureau and her father's car was insured with the Grange Insurance Company. The parents were divorced and the court had awarded them joint legal custody of Josalyn.  She stayed with her mother most week days but maintained a bedroom and possessions at her father's home and spent most every other weekend with him. 

Farm Bureau paid Josalyn's PIP benefits (medical and a small burial expense) and the Grange refused to reimburse one-half of these expenses.  The Grange argued that Josalyn's sole domicile was with her mother and that its policy dictated that the insurer for her "principal domicile" was solely responsible for PIP benefits.  The trial court and the Court of Appeals rejected this argument, holding that Josalyn was domiciled with both parents for purposes of the no fault act.  The Court of Appeals also noted that Grange's attempt to define a "principal" domicile excusing it from shared PIP responsibility was illegal and not controlling. 

It would be interesting to evaluate whether the courts would also give the family the benefit of any uninsured or underinsured motorist coverage that they may have purchased; or, whether the insurers will be allowed to enforce a "primary domicile" provision to refuse to pay these coverages where the benefit of a shared domicile would inure to the premium-paying family.

Successful lawsuit unravels in litigation over litigation-funding loan

The ugliest aspect of modern litigation was on display as the Court of Appeals considered the allegations made by Nancy Shanks against her attorneys, Morgan & Meyers, PLC.  Shanks was rear-ended in an auto accident and claimed that she suffered a head injury, back and neck pain and exacerbation of pre-existing depression.  After hiring the defendants to pursue her legal claim, within seven months she obtained loans from Cambridge Management Group, LLC, in a total amount of $125,000.00, bearing 4.99% interest PER MONTH, compounded monthly.  (She had managed to spend her first $100,000.00 loan between July and December.)

Ultimately, the attorneys achieved a default judgment against the auto negligence defendants who failed to answer the negligence complaint, and in October of 2008, the claim was settled, while on appeal, for $625,000.00.  By normal standards, this represented an unusually good recovery for a claimant with potentially very defensible injuries.  Nevertheless, an argument ensued over the debt owed to CMG, which claimed liens totalling $325,819.00 for loaning Shanks $125,000.00 for an average of about 10 months.  The lien claim was settled, however, Shanks then sued her attorneys arguing that they had breached a fiduciary duty to her by facilitating her loans with the litigation-funding company.

Woman injured in "sideswipe" loses appeal of jury verdict that she wasn't injured

Josephine Leleniewski was a passenger in an ambulance that was "sideswiped" by another car.  She sued Amerisure Company and the at-fault driver for various damages owed by the respective defendants.  At trial, the jury concluded that her neck and back pain were not suffered in the "sideswipe" collision and did not award her any damages.  She appealed, arguing that her case was unduly prejudiced by the improper admission of evidence.

Chrysler Insurance Company No Fault policy is voided and reformed by court due to illegal attempt to shift PIP obligations

Titan wins battle with State Farm over who must pay motorcyclists' medical expenses

Troy Hughes suffered catastrophic injuries in a car-motorcycle collision.  He did not have medical coverage for bike injuries, but he did have auto no fault PIP coverage  with Titan Insurance on a car.  State Farm had insured the pickup involved in the collision, but it never confirmed that the man who insured the pickup did not actually own it:  it was insured by David Curtiss, father of the registered owner, Bradley Curtiss.  The driver of the pickup, Courtney Van Eck, had married Bradley five days earlier (and the parties disputed whether or not she lived in David Curtiss's home).  State Farm paid the first $1,000.000.00 of PIP benefits and then stopped payments entirely, claiming that Titan was higher in priority and should be paying.  Titan paid an additional $200,000.00 in benefits before suing State Farm to secure a ruling that it was higher in priority among insurers, as the insurer of the owner of the truck. 

Court grants immunity to City and officer involved in negligent police chase

Brian Ibrahim was seriously hurt when his car was struck by a vehicle operated by Ivan Lazar.  Lazar was fleeing a City of Detroit police officer at high speed.  The chase began when Lazar failed to make a complete stop at a stop sign.  Ibrahim's attorneys argued that police standards do not support high-speed chases where the perpetrator has committed a simple traffic violation:  the risks to the public from a high speed chase are deemed by authorities to out-weigh the value of effecting a police stop of the offending driver.  Nevertheless, the Court granted the City's and the officer's motion for summary disposition. 

Titan Insurance not allowed to escape the consequences of its own sloppy work

Nicole Falls called the KC Insurance Agency to obtain insurance on her car.  She spoke to an agent for several minutes to make appropriate application, and then stopped at the agency to pay the initial payment.  She was handed and signed a one-page application, prepared by the agency, which disclosed that she was married.  She was not given the second page which would have identified her husband as a secondary driver in the household.  Thirty minutes later, her husband was involved in a fatal collision.

Titan immediately claimed fraud and material misrepresentation.  It attempted to avoid paying the Falls' expenses and attempted to reduce the couple's liability coverage (payable to the family of the decedent in the motor vehicle collision) from the $100,000/$300,000 purchased, to the state minimum of $20,000/$40,000. Titan claimed that if Nicole had properly disclosed her husband's name as a household driver, it would have charged an additional annual premium of $57.00 more ($1,095 rather than $1,038).

Victims of car accident cannot sue owner of car stolen from driveway

The family of Angela Readus sued Michelle Rogers claiming negligence.  The facts were not in dispute.  Rogers started her car in the morning and then returned to the house to gather her kids to go to school.  The car was stolen while it was warming up in her gated (but not locked) back yard.  The perpetrator then caused a motor vehicle collision which killed Ms. Readus.  Her family argued that Rogers bore some responsibility for the collision because Rogers had left her car running unattended in a neighborhood where there was a history of car thefts.  The Court rejected this theory and dismissed the wrongful death claim against Rogers.

Occupants of stolen vehicle cannot sue officer after high-speed chase and bump

The families of a catastrophically injured young man and another man killed in the collision sued the City of Taylor and officer Phillip Alton Biggs, arguing that Biggs was negligent in pursuing and bumping a stolen car driven by another young man.  The City argued that since the vehicle must have known that the vehicle was stolen, and since they had allegedly been drinking, smoking marijuana, and contemplating shoplifting, their families could not argue that the officer was partially at fault in causing their death by bumping their vehicle at high speed.  They were lumped in with the driver as "wrongdoers" whose wrongful actions gave rise to the necessity of the police chase:  therefore, despite evidence that one of more of the young men tried to persuade the driver to stop the car or let them out, they were precluded from any legal action even if the officer was negligent.

State Farm loses PIP priority dispute

State Farm insured a motorcycle that was registered to Edward Shreve.  It was operated by Kenneth Curler who had allegedly purchased the bike, although Shreve remained the registered owner.  When Curler was hurt in a collision with an uninsured motor vehicle, Titan Insurance Company paid Curler's PIP benefits through the Assigned Claims Plan.   Titan then sought reimbursement from State Farm, arguing that as the insurer of the registrant of the bike, State Farm was obligated to pay PIP bnenefits.  The Court of Appeals agreed, concluding that despite the attempted sale, State Farm's insured remained the registered owner of the bike.

Another Underinsured Motorist policy is interpreted to deny the insured benefits

Joseph P. Esmer was killed and several people were hurt when Caitlin Grubb lost control of her vehicle on a wintry US-2 in Mackinaw County.  Esmer's Estate sued HomeOwners Insurance Company, a subsidiary of AutoOwners, claiming that it owed Underinsured Motorist Coverage to Esmer.  Grubb had purchased liability insurance in the amount of $500,000 per person and $500,000.00 per occurrence.  The latter limit was then divided among the various claimants giving $270,000 dollars to the various injured parties and $230,000 to the Esmer Estate.

Driver who claimed medical emergency cannot reverse strategy and claim physician-patient privilege to avoid turning over medical records.

Medical records are privileged:  normally a person can decline to produce medical records even in response to a subpoena.  In order to sue on an injury, however, the victim must make his or her records availabe to the at-fault individual and his or her insurance attorneys.  The victim has voluntarily placed his physical condition "in issue" by filing suit.   If the victim does not allow access to these records, his or her injury claim must be dismissed.  Similarly, if the allegedly at-fault person wants to avoid turning over his or her privileged medical records, the defendant cannot rely on a medical emergency to explain the occurrence. He or she has placed the his medical condition "at issue."

Westfield Insurance Company avoids underinsured motorist obligation through deceptive coverage

Mark Robbins drove a wrecker for Ken's Service in Antrim County.  He was dispatched to pull a police cruiser out of the ditch and was operating the wrecker's boom controls to extract the cruiser when he was struck by a negligent motorist.  His "substantial" accident injuries left him "crippled for life" but the at-fault driver carried only $100,000.00 of liability coverage.  Robbins and his employer thought that Robbins would have additional coverage (up to $1,000,000.00) through the Underinsured Motorist Coverage (UIM) that Ken's Service purchased from Westfield Insurance Company.  Unfortunately, they hadn't read the fine print.

Court addresses another PIP dispute generated by a young person's scrambled domicile

Alfronia Carter was hurt in a car accident while driving a vehicle owned by Chrylser and insured by Chrysler's in-house no fault insurer.  His parents owned a vehicle insured by American International Insurance Company.  Both insurers refused to cover Alfronia's legitimate Personal Injury Protection (PIP) benefits, so he applied for benefits through the Assigned Claims Plan and Allstate was assigned to pay.  When none of the insurers recognized the duty to pay Carter's wages, services and medical expenses, he filed suit and the trial court ultimately concluded that AIG owed PIP benefits to the Plaintiff.  AIG appealed that outcome.

Edging into intersection is not gross negligence but may be ordinary negligence

Dawana Rodriguez was allegedly hurt when her car struck a police cruiser operated by Trooper Jasen Sack.  Rodriguez had the right-of-way at a Genessee County intersection when the right-turning Sack edged into her path in an attempt to see around a left-turning vehicle.  The trial court and the Court of Appeals ruled that Sack's behavior in blindly placing his vehicle into the path of another vehicle that enjoyed the right-of-way could not be considered "gross negligence."  Therefore, Sack personally enjoyed immunity from liability.  Nevertheless, it was a question of fact for the jury to decide whether Sack's conduct was ordinary negligence:  if it was, the governmental owner of the vehicle did not enjoy immunity under state law.

AutoOwners avoids paying its insureds for injuries excluded in umbrella policy

April Leikert was badly hurt when her husband struck the rear-end of a Ford Expedition with their Harley-Davidson.  April was a passenger and was violently thrown from the bike.  The couple had purchased a liability policy on the bike through Progressive and an umbrella liability policy on Howard through AutoOwners.  Progressive paid over its $250,000.00 in coverage to April, but AutoOwners claimed that its umbrella policy did not apply to injuries to April.  It filed a Declaratory Judgment action against the Howards, arguing that it owed no coverage for April's damages.

Insured eligible under two Underinsured Motorist Coverages; sues and Farm Bureau must pay.

Kimberly Beddingfield was a passenger in a car insured by Farm Bureau when a collision caused by an underinsured driver caused her very severe jaw and cervical injuries.  As an occupant of the Farm Bureau-insured vehicle, she was entitled to Underinsured Motorist Coverage (UIM) equal to $500,000.00.  Under her own State Farm policy, she was entitled to $100,000.00 of UIM coverage.  Nevertheless, both companies declined to pay and Beddingfield was forced to sue.

Jury will have to decide implied consent issue where kids use RV during party

Sandra Williams' daughter hosted a party at Williams' property on the lake.  There were allowed access to the boats and other "toys" and used the RV to haul gas from the garage to the boats.  One of the kids eventually ran over another kid with the RV, causing injuries that resulted in partial amputation of a leg.  Williams defended the claim by arguing that she never consented to the operation of the RV by the drunken boy.  She did acknowledge that she had granted her children access to "the  boats and toys;" that the keys were in the RV; and that she had consented to her son the use of the RV to tote gas.  There was a dispute between the son and the kid who caused the injury over whether the son had allowed access to the RV by party-goers.

Auto Owners avoids PIP obligations when injury victim's attorney doesn't advise and prepare

Keith Phillips was riding his motorcycle when he was struck by a car insured with AutoOwners.  Since AutoOwners' insured vehicle was the only car involved in the collision, AutoOwners was obligated to pay all of Phillips Personal Injury Protection benefits (i.e.,  three years of wage loss and home services and unlimited medical).  Phillips incurred substantial medical mileage and prescription expenses which AutoOwners had not paid:  he filed a lawsuit to compel payment.  When the insurer's attorneys deposed him, however, he had not calculated the amount of mileage owed or the prescription total; he presented no proof to confirm that the insurer had been billed for the various expenses.  His attorneys did not mark his receipts and records as exhibits and did not present them to the trial court when AutoOwners sought summary disposition.  As a result, the court granted AutoOwners' requested dismissal and the bills will remain unpaid.

Court holds lower court must conduct trial on the merits to assess fault by three motorists

The family of Edilee Kail Roberts sued three separate drivers after Edilee was killed in a car-motorcycle collision.  Roberts was north bound on her bike on M-37 near Newaygo when a truck driven by Travis Adams crossed the centerline and killed her.  Adams argued that he was forced to cross into the northbound lane when the van in front of him stopped abruptly in the southbound lane.  The van driver argued she did not slow or stop abruptly and the driver of the truck in front of her argued that he did not stop abruptly after missing a driveway he had intended to enter. 

Motorcyclist who suffers injury in second collision can sue for PIP benefits if first collision caused seizure that caused second collision

Ian McPherson was in a motor vehicle collision while occupying a car driven by his brother and insured by Progressive Michigan.  He suffered a seizure the following day, which his two physicians attributed to a mixture of genetic and traumatic causes. A year later, he was operating his uninsured motorcycle when he suffered a second seizure; in the succeeding crash, he suffered catastrophic injuries that rendered him a ventilator-dependant quadriplegiac.

Case examines duty of care of 17-year old bicyclist and motorist who struck her

Hali M. Steele was riding adjacent to another girl in the right lane of 14 Mile Road in Calhoun County.  The other girl was nearer the fog line as Ronald Gilis and Penny Gillis approached at 55 miles per hour in their minivan.  The minivan slowed to about 40 miles per hour when Hali reported "panicked" and swerved into the left lane in front of the Gillises.  Steele filed suit against Gillis for negligence, and a trial resulted in a verdict in favor of the minivan driver.  Steele's attorneys appealed, raising several arguments.

Progressive loses another battle over priority in obligation to pay PIP benefits

Doug Alt was badly hurt in a single vehicle collision.  Alt was a farmer who lived with his parents. He was driving a car titled in his name but insured with Citizens by his parents.  Alt's only insured vehicle was a pickup truck he used on the farm. Citizens initially paid his PIP benefits but then sought reimbursement by Progressive.  Progressive apparently initially indicated an obligation to pay but then refused and filed suit for a declaratory judgment that it was not responsible for PIP benefits.

Insurers battle over PIP benefits for woman "employee" providing attendant care

Nancy Clement was hurt when the car she was driving was struck by another motorist.   Clement was driving Nancy Denman to an appointment in Denman's automobile.  Clement was a caregiver for Denman, hired by Denman's daughter.  Clement sought PIP benefits, but had to sue the Auto Club and Cincinnati Insurance Company after the two companies fought over which owed first priority to pay Clement's PIP benefits (medical and up to three years of wages and services). 

The two companies fought over the definition of "employment" as used in the no fault act and under Michigan law.  If Clement was "employed" by Denman, under the no fault act Denman's insurer, the Auto Club, would assume from Cincinnati (Clement's personal no fault insurer) the duty to pay PIP.   Section 500.3114 does not define "employment" for no fault purposes, so the court looked to the "economic reality test" which controls in other situations. 

The Court held that Denman's daughter controlled Clement's daily routine, not Denman; it suggested that Denman's daughter--not Denman-- had hired Clement and was the only person who could fire or discipline her.  While Clement was paid ten dollars per hour,  Denman's family made no "employee" deduction of taxes or benefits.  Finally, while Clement's activities were "integral to Denman's well-being," Denman was not "in the business of being well," and therefore, Clement did not meet Michigan's definition of "employment."

While some of this decision makes sense, the opinion is faulty in part because it is based on the flawed suggestion that Denman's daughter was not acting as Denman's agent in supervising Clement's hiring, discipline, firing and "employment."  Simply because the family did not properly pay employment taxes on Clement's wages should not have controlled the outcome where the family did, in fact, hire Clement, control her daily activity, and retain the right to discipline or fire her.

Court enforces shorter statute of limitations contained in insurance company's Uninsured Motorist Coverage

Ira Mopkins sued her own insurer, National Indemnity Company, after it refused to honor its obligations under the Uninsured Motorist Coverage she bought with her auto no fault policy.  The insurer claimed that she should have brought suit earlier, even though she had sued within the State of Michigan's contract statute of limitations.  Her attorneys argued that the company should not be able to enforce a shorter statute of limiations and that, in any event, it should be "estopped" from enforcing the shorter limit in her case because the company never responded to their letter requesting a copy of the subject policy.  The trial judge rejected Mopkins' attorneys' arguments and ruled that the company could deny her claim based on its own shorter statute of limitations in the policy.

Consumers are 0 for 2 in uninsured/underinsured motorist claims this week: policy language from amended policy is enforced based on "mailbox rule."

Michael Hegyl sued the Auto Club to collect Underinsured Motorist Coverage that he had purchased with his No Fault Coverage.  Hegyl was badly hurt when a driver who had fallen asleep at the wheel rear-ended his Jeep.  He settled his claim against the at-fault for the at-fault's liability limits of $20,000.00 and then attempted to recover the remainder of his damages from the Auto Club.  The Auto Club rejected his claim, relying on language in its UM/UIM policy that waived the coverage if an insured settled the underlying injury claim without the insurer's written consent.

Insurance interests were 3 for 3 and injury victims 0 for 3 in today's Michigan appeals courts, including upholding USAA family injury limitation

Cynthia Ruzak and her husband have maintained auto insurance with USAA since Jay served in the military in 1966.  USAA likes to market its coverage to military families, claiming special expertise and interest in their needs. Originally, the Ruzak's policy apparently did not contain any provision limiting liability if one family member negligently injured another.  According to USAA, however, around 1999, the policy was amended to exclude any liability coverage for injured family members.  Such an exclusion is illegal in Wisconsin where the couple lived in 2002, but legal where they subsequently lived in Indiana.  The exclusion is enforceable in Michigan as a $20,000.00 limitation on damages, rather than the full $300,000.00 in liability coverage that the couple had purchased and maintained.  In 2004, when Jay lost control of his truck and hit a tree, severely injuring Cynthia, USAA argued that it owed only $20,000.00 in coverage to Cynthia.

State Farm's objection to paying PIP benefits when tailgate dysfunctions is rejected by Court of Appeals

Charles Lefevers attempted to dump contaminated soil at the landfill, however, his tailgate malfunctioned.  He walked from the actuator to the tailgate and attempted to dislodge it by hand.  In the process, the gate released, he lost his footing and fell 14 feet into a concrete-lined landfill pit.  He sought medical benefits from State Farm, which refused to pay. 

Lefevers argued that he should be entitled to PIP medical expenses under one of three theories which would make him eligible for benefits:  1) he argued that he was in contact with permanently mounted equipment; 2) he argued that the vehicle was parked in an location that was not reasonably safe, as it was too close to the landfill pit; and 3) he argued that his injury was caused by contact with the contaminated dirt being unloaded.  The Court of Appeals held that the latter two bases for awarding PIP medical benefits did not apply, but that the first inclusion did.  Since he was in contact with the dump trailer tailgate and it was permanetly mounted equipment--and in operation at the time of the fall, Lefevers was eligible for PIP benefits. 

When the fox guards the henhouse: Supreme Court redefines NoFault PIP coverage

Mona Lisa Frazier fell while closing her car door.  The Michigan No Fault law provides medical benefits for people who suffer injury while in "physical contact with permanently mounted equipment" and for people who are "entering or alighting" from a parked vehicle.  Frazier sought benefits from Allstate, but the "good hands" people refused to pay.  She filed suit and both the Circuit Court and the Court of Appeals agreed that she was entitled to Personal Injury Protection benefits under the above provisions.  This week, the Republican Justices of the Michigan Supreme Court reversed the lower courts and held, in a 4-3 decision, that Frazier is not entitled to PIP benefits.

City cannot avoid liability by claiming garbage truck stopped to load is not "operating" under statute

Alexus Strozier was hurt in a collision between her school bus and a Flint City garbage truck.  Her mother, Abby, filed an injury suit against the school district and the City Sanitation Department.  The City tried to dismiss the case, arguing that it's truck was stopped at the time of the collision and therefore not "operating."  It also sought a ruling by the court that a child's observations of the collision were not admissible.

Court dismisses claim against angry woman who struck husband of antagonist with car

In a typical Henry Saad opinion, the Court of Appeals protected an auto insurer from an injury claim based on a tortured analysis of the law.  Billy Joe Chandanais was struck by a car operated by Samantha Wilson. Wilson had become involved in an argument with Chandanais' wife and followed them home to continue the argument.  When Chandanais demanded that Wilson leave, she backed her car into him, pinning his leg between her car and another. Chandanais sued, alleging that Wilson's act was intentional.

Family-provided no fault attendant care is analyzed thoroughly

When William Hardrick was struck by a car in 2007, he suffered a severe head injury.  He was eventually allowed to live at home, however, his physicians ordered that he receive 24-hour attendant care "for supervision and safety."  His parents provided this care and his auto insurer, the Auto Club, paid the parents $10.25 per hour.  The parents argued, however, that the care they were required to provide included specialized skills and administrative support which justified a higher hourly rate.  AAA disagreed and the matter went to litigation.

Court of Appeals reinstates upper peninsula "serious impairment" claim

Willam David Smart sued Frank Robert Kowalesky after Smart's foot was injured in a motor vehicle collision.  The trial judge summarily dismissed the claim, finding that Smart's injuries did not consitute a "serious impairment" under the Kreiner standard.  Applying the 2010 McCormick standard, however, and noting that Smart's fractures resulted in 90 days of missed work, a diminished lifestyle, long-term pain and progressive arthritis, a developing valgus deformity and a developing flat foot deformity, the Court of Appeals returned the case to the lower court for trial.

Claim against University of Michigan and negligent employee-driver is dismissed for notice violation

Alex Lemerand sued Kevin Sheldon Hartman and the U of M, alleging that Hartman's negligent operation of a University vehicle caused injury to Lemerand.  Hartman was cited in the collision after he rear-ended Lemerand's vehicle at a stop light.  Although Lemerand's counsel provided written notice of the event and Lemerand's intent to pursue a claim within 60 days, no formal written notice of the potential claim was filed pursuant to MCL 600.6401 (the governmental immunity act and Court of Claims Act).  On that basis, the University sought summary disposition of Lemerand's claim.

Farmers Insurance and State Farm lose priority fight in case involving commercial van

Two women and several children were injured on their way to a Music Festival in northwest Michigan.  They had flown to Grand Rapids to attend the Festival, and paid for a shuttle bus ride to the location, however, their flight was delayed by weather, so they missed the shuttle bus employed by the Festival to transport airline passengers.  They would have been required to wait 24 hours, however, they spotted a van used by the Festival for other purposes and persuaded the volunteer driver to transport them.  The volunteer rolled the van en route causing injuries.

Woman signed off on title, canceled coverage, but still owned car; her insurer mus pay PIP benefits

In a fairly unique set of circumstances, Genevieve Schumacher's failure to complete the transfer of her vehicle led to her insurer paying PIP benefits to an accident victim.  Schumacher intended to sell the car to her daughter's boyfriend, Jeremy Qualls, and "signed off" on the title.  She did not secure his signature on the title, however, or even write his name in.  She also did not confirm a change in the registration with the Secretary of State or remove her license plate. 

No fault injury victim cannot collect attorneys fees from Farmers Insurance

The Guardian of Denise Nail sued her insurance carrier, Farmers Insurance Exchange, after Farmers terminated Nail's PIP medical benefits.  Nail suffered a closed head injury when she was struck from behind by a vehicle traveling over 55 miles per hour.  After paying benefits for several months, Farmers sent Nail to an "independent" medical examiner, Dr. Thomas Gola, who concluded that Nail suffered "no neurological deficits that would be consistent with traumatic brain injury."  Farmers then terminated benefits.

Woman allowed to introduce evidence of defendant driver's guilty plea; injury verdict upheld

Nicole Motyka sued Fawzea Bassam Abusalah and Ahmed Shafik Khalil for auto neglience.  She also sued her own no fault insurer, Titan, after it stopped paying for her accident-related medical expenses.  At trial against Abusalah, she achieved a verdict that ultimately became a judgment of $183,000.00.  Abusalah's insurance company appealed, arguing that the verdict should be over-turned because the judge allowed Motyka's attorneys to cross-examine Abusalah with her statement in District Court accepting responsibility for the collision. The defendants also argued that they should have been allowed to cross-examine Motyka at length about her dispute with her own insurer.

Court releases Annual Report with data on personal injury filings

Insurance companies have repeatedly sought legal "reforms" to eliminate "frivolous" personal injury claims.  Unfortunately, they have created a public [mis-]perception of the so-called "tort" system that is 180 degrees from reality.  While many reasonably informed people believe that injury cases are a major burden on the court system, reality confirms they are not:  criminal, domestic and business claims dominate our courts and insurers pretty much get a free ride.

The 2010 Annual Report shows that 2.4 percent of the filings in the 13th Circuit Court (Antrim, Grand Traverse and Leelanau Counties) were automobile negligence.  That number includes cases brought by injury victims or health care providers whose medical expenses or wage loss had been discontinued or were unpaid by the victim's own No Fault PIP insurer.  1.8 percent of the Court's new filings fell in to the category of "other civil damage claims," which category includes, for example, all products liabilty, dramshop, medical malpractice, and property damage claims. 

This is not a new trend: the local court has published similar figures in its past reports.  Numbers for the state-wide court system are similar, if slightly higher:  3.56% auto cases and 1.85% "other."

State-wide, criminal cases added up to about 20% of the docket.  Juvenile claims were another 20%, and divorce was about 16% of the docket. Paternity cases (6.14%) out-numbered injury cases of all types. Local numbers were similar, but with divorce actions being more common (21%) and criminal actions less common (11%).

Appeals judges overturn trial judge's decision excluding opinions of child witness

David J. Little, age 10, was struck by Robert Lang's pickup in the City of Muskegon.  Little's family sued Lang, arguing that he was driving too fast for conditions and that he failed to adjust his speed after seeing Little near the road.  Lang presented an affidavit of another motorist in support of his claim that there was "nothing Lang could do" to avoid the collision and asked the Court to summarily dismiss Little's claim.  The Little family presented the affidavit of another neighborhood child who witnessed the incident, claiming that Lang was driving too fast.

Court rejects Farmers Insurance Company exclusion based on car pool

Orleander Meadows bought Underinsured Motorist Coverage from Farmers Insurance Company.  It covered all the occupants in his vehicle, provided they were not being transported in a vehicle "for a charge."    The exclusion explicity did not render ineligible occupants who were participating in "share-expense car pools."  Johnetta Pugh was was later hurt in a car accident in Meadows' vehicle and applied for UIM benefits.  Farmers rejected her claim, arguing that her payment of approximately $20.00 per week, along with two co-workers, to contribute to gas and expenses ,rendered her a "for a charge" occupant ineligible for benefits.

Trial judge's decision holding auto insurer in contempt is reversed

The Clare County Circuit Court judge entered an order holding Integon National Insurance Company in contempt at the conclusion of a pretrial settlement conference.  The insurer sold Uninsured and Underinsured Motorist Coverage in the amount of $50,000.00 to Kevin Bencheck, who was later injured in a Clare County car accident.  Bencheck claimed that the at-fault driver was underinsured and pursuant to his policy with Integon, he joined his own insurer in the lawsuit.

Pioneer State Mutual loses frivolous PIP defense

Ronald Borek was hurt when a passing car struck metal debris in the roadway, propelling it into Borek's leg and causing serious injuries.  Borek's truck had been rear-ended by another truck, creating a large debris field on the highway.  Borek was returning to his vehicle after checking on the condition of the other driver, when a passing motorist struck the debris field.  Borek's Personal Injury Protection insurers, Pioneer State Mutual Insurance Company and Acuity Insurance, refused to pay Borek's lost wages and medical expenses, arguing that his injuries "did not arise out of the use of a motor vehicle."  Incredibly, the trial court agreed with this argument and dismissed Borek's claim.  Even the insurer's best friend, Kirsten F. Kelly, found this argument unsustainable, and the Court of Appeals unanimously reversed the lower court and reinstated Borek's claim.

MDOT denied automatic immunity for failing to properly close exit lane

Tracy Snead was one of four drivers who, within minutes, drove into a seven-foot deep pit dug by MDOT contractors on an exit lane of I-94.  When she filed suit for her injuries, however, MDOT argued that under the terms of an "Engler Majority" Republican Justice decision several years ago, it was immune from any responsibility.  Many government actors enjoy "sovereign immunity" for their mistakes; a bizarre holdover from the English common law days when the King "owned" the courts and refused to hold his minions responsible for errors.  That immunity was limited by statute in Michigan, with respect to roadways, when the Legislature passed a law requiring highway authorities to maintain the roads within their jurisdiction in a manner "reasonably safe for public travel." About a decade ago, Justices appointed by the Republican Party ruled that highway authorities were not responsible for traffic control signs or signals; their duty applied only to the "roadbed."    MDOT relied on this decision to argue that regardless of its negligence in failing to close the freeway exit under construction, it was immune from responsibility.

Court overturns summary disposition: driver is responsible for injury caused by debris in road

Ronald Borek was rear-ended by another truck while delivering a semi-tractor load of scrap metal for his employer.  He exited his cab and walked to the at-fault's cab to check on the driver; as he stepped down and started back to his vehicle, he was struck by a metal object.  Police determined that he was struck by metal debris from his own trailer after the field of debris was struck by another vehicle.  The trial court held that the driver who caused the original collision was not a cause of Borek's injuries because several minutes had elapsed between the collision and Borek being struck.

Court rejects Auto Club's bid to diminish Conservatorship obligations of PIP carriers

Mark Fullmer was appointed by the Probate Court to serve as a substitute Conservator for Deanna Theresa Cisneros, a woman who suffered a closed head injury in a Michigan motor vehicle collision.  The Conservator billed AAA for Fullmer's expenses, including expenses incurred to assist with real estate and debt disputes as well as legal work provided to secure no fault benefits.   AAA argued that under section 3107 of the no fault act, any expenses incurred by the conservator not related to obtaining medical care should be limited to $20.00 per day for three years.  It did not argue that Cisneros did not need a conservator or that the need was not caused by the motor vehicle collision.