TOV Injury and Safety Blog

Court reverses summary dismissal of road liability claim against Washtenaw County

Karen Utley sued the Road Commission after suffering severe injuries when her motorcyle hit a pothole  on Zeeb Road in Lodi Township.  One of her riding companions estimated that the potholed was six inches deep and 2-3 feet in diameter.  Others described it to police as "large" or "significant."  The Road Commission prevailed on the trial judge to dismiss Utley's claim on summary disposition by arguing that the pothole had been repaired three days prior to Utley's crash, but that a sudden rain fall had washed out the repair.  The Road Commission persuaded the local judge that it had taken appropriate steps to keep the road in reasonable repair.

The Court of Appeals reversed, holding that given the evidence about the extent of the pothole, it was a question of fact for jurors to determine whether the Road Commission's efforts at amelioration were adequate.  It held that "the mere presence of so large a pothole less than three full days after the road was spot-scraped supports a reasonable inference that the pothole was not repaired."  It also cited the Plaintiff's engineer expert, a gentleman with 30 years road maintenance experience with MDOT, who claimed that the pothole was "a high level severity pothole that's not been attended to."  Surprisingly, even Judge Christopher M. Murray, who virtually never sides with injury victims, agreed with the appellate court holding.

Court holds that intersection of alley and public highway is part of the highway for liability issues

Kurt Teramo suffered serious injuries when his moped struck a pothole at the "T" intersection of Clover Court and Broadway Alley in the City of Grand Rapids.  Although public entities remain responsible for maintaining "reasonably safe roads," the Republican majority of Michigan's Supreme Court has limited this duty--through successive decisions--to the road surface itself.  The more insurance-oriented Justices have concluded that the statutory duty does not include a duty to design safe roads, to maintain signs or traffic control devices, or to maintain curbs, rights-of-way or bridge structures.  It also interpreted the statute in such a manner that it does not apply to public alleys.

Michigan Supreme Court overturns Court of Appeals; dismisses motorcyclist's claim against Road Commission

Joseph Paletta sued the Oakland County Road Commission.  He lost control of his bike on loose gravel and suffered serious injuries.  He presented testimony from a man living near the area where he was injured, attesting to the fact that the witness had complained on a number of occasions that the Road Commission scattered loose gravel in the road when it turned in and out of a gravel storage area.  The witness claimed that the Road Commission failed to take any action in response to his complaints and continued to create a nuisance on the asphalt roadway. 

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. 

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.

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.

State Farm gets temporary reprieve on paying attorneys fees on PIP claim

Charles Carignan lost a leg in a car-motorcycle collision.  His doctor initially ordered 24-hour attendant care for the man while he adapted to his new condition and a Occupational Therapis recommended housing modifications.  State Farm thought it new better and declined to pay the attendant care or the entire home changes.  Carignan sued and the jury found in his favor, awarding about $11,000.00 in PIP benefits.  The jury expressly concluded that some of the payments were "overdue" (meaning that they weren't paid within 30 days of reasonable proof.  The trial court then awarded over $100,000.00 in attorney's fees after confirming that the attorney's work justified that amount.

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.

"Activist" judges restrict No Fault Act causation when pedestrian hurt by snowmobiler blinded by car

The consumer-friendly aspect of Michigan's No Fault Act was its provision of medical coverage and three years of wage loss (and minimal domestic services) to all persons who suffered injury as a result of the "use, ownership or maintenance" of a motor vehicle.  When the Act was adopted in the 1970s, interpreting jurists emphasized that it represented a policy choice to provide broad, minimal compensation for all injury victims without requiring proof of fault or retention of an attorney. Judicial opinions applying the Act pointed out that the statutory language did not require the normal proof of legal or "proximate" causation:  the injured person simply needed to prove that there was a causal nexus between use of motor vehicle and the alleged injury. Use of a vehicle must be "a significant contributing factor."

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.

Michigan Supreme Court Republican majority reverses Court of Appeals; dismisses injury claim against mining firm

Under a unique agreement, the State Department of Transportation leased land from O-N Minerals Company underlying M-134 in the U.P., and built a reinforced crossing site for the Minerals company to use when crossing the highway.  The O-N vehicles crossing the highway included very heavy and tracked vehicles and they severely damaged M-134 at the crossing site.  Debra K. McCue was very badly hurt when she attempted to bike across the site during a DALMAC bike tour and her husband brought a wrongful death survival claim against O-N.  He claimed that O-N was negligent in tearing up the crossing site, failing to repair it and failing to notify the State of the damage it had caused.  The Court of Appeals agreed with McCue and rejected O-N's effort to dismiss the claim.  On appeal, the four insurance-oriented Michigan Supreme Court Justices overturned the lower court's decision and dismissed McCue's claim. 

Insurers 2 for 2 today in denying homeowners' coverage, winning dispute

Fremont Insurance Company and IDS Property Casualty Insurance Company each avoided insurance coverage to an insured this week.  Fremont ducked coverage for an ATV injury caused by its insured Nathan Kadau, while IDS avoided paying for a theft from its insureds, Steven and Helen McGuinness.

Court holds notice of injury is defective; dismissed motorcyclist's injury claim

Republican Judges Christopher Murray and William Whitbeck enjoyed a satisfying week, dismissing two serious injury cases this week.  In the Marcoux case, they held that a van parked so that it blocked "only" half of a residential travel lane did not pose an "unreasonable" risk of harm.  In Agee v. Department of Transportation, they dismissed a motorcyclist's claim against the road authority.  In a notice of injury sent 15 days after the accident, Agee claimed he lost control of his bike on "the Service Drive for Southbound Southfield Freeway at Ford Road."  He claimed the cause of the accident was "defective pavement."

Van parked where it blocked "only" one-half of one lane of residential street is "not an unreasonable hazard."

Daniel Marcoux was drinking and snowmobiling with a friend when the headlight on his snowmobile fell out of the housing.  The two men could not find the light, so they returned home without benefit of a headlight. Marcoux dropped his friend off and was travelling to his own home when he struck the rear of a van that had been parked in the travel portion of a residential street. He suffered significant injuries including a "shattered" femur, facial fractures and a fractured clavicle.  He sought PIP benefits (medical and three years of wages and household services) from the owner of the van.

Auto Owners' claim of non-liabilty in boating death is upheld

Brian Lepp caused the death of Kathleen O'Neill while operating a large, fast watercraft.  He had insured the boat with Progressive Insurance Company and had attempted to buy umbrella coverage through AutoOwners. He and his agent disagreed over the attempt to buy coverage and whether the agent had informed him that the boat was not covered. The Court of Appeals held that under the circumstances, Lepp had not proved that the agent had undertaken the duty to provide umbrella coverage on the boat.

AutoOwners' subsidiary HomeOwners Insurance loses attempt to deny benefits based on fine print

Sharen Wellman bought auto and motorcycle insurance from HomeOwners Insurance Company, a subsidiary of AutoOwners.  She paid for Underinsured Motorist Coverage on her car, but it was not included in the terms of the associated bike coverage.  Sharen was hurt on her motorcycle when another motorist ran a stop sign and struck her.  HomeOwners refused to pay under the UIM coverage on the integrated policy, however, and she filed suit.

Motorcyclist's claim against police agency will go forward

Chris Lambert was riding his Harley on US 23, traveling the 70 mph speed limit on his way to babysit his grand-daughter in Lansing, when he was squeezed off the road by a semi-tractor trailer in the lane ahead of him. The truck applied its brakes hard, and then decelerated in to the left lane immediately after Lambert moved to the left lane to avoid striking the trailer.  It turned out that the truck was reacting to a Green Oak Township Police officer who was traveling to the office at the end of his shift with his lights and siren operational.  The officer claimed he forgot to turn off the lights after a prior incident.  His lights had "accidentally" caused another motorist to pull over on the freeway, and in this 70 mph zone, the officer simply stopped in the right lane of the freeway, adjacent to the stopped motorist, to tell her that he was not detaining her.  In the process, the office briefly obstructed the right lane of the high speed  traffic, causing the problems that sent Lambert in to the median at high speed.  When he turned around to investigate the incident, the officer, one Michael Jain, also "accidentally" forgot to record the names of the witnesses or their vehicle identification information.  As a result, the biker was left with no eyewitnesses to corroborate his account of what happened.

Electric utility not responsible for dropping wire that draped over road, striking motorcyclists

Steven Shievely and his wife Carol were biking on Springbrook Road in Jackson County when they struck a nearly-downed electrical power line operated by Consumers Power.  The line had drooped to within three feet of the ground after a tree limb struck a cross-arm on the utility pole, fracturing the cross-arm and causing the line to hang slackly over the road.

The trial court dismissed the motorcyclists' case because they had not hired an adequate expert witness to testify that Consumers' maintenance practices were adequate.  The expert they did hire was a former Consumers Power Company employee who testified that the Company's safety practices were unreasonable and not in conformity with the National Electric Safety Code.  The Court ruled, however, that he did not have enough hand's-on experience with forestry practices, utility line maintenance or the maintenance standards used by other Michigan utilities to quailify him to explain to the jury what Consumers did wrong.

Family of drowning victim cannot sue

Ursula St. Clair sued the Bayview Yacht Club after her sister drowned in the Club's Marina.  The sister, Layla Deitz, had been drinking in the Club's bar at a private party when she was kicked out of the bar because she was visibly intoxicated.   She then accompanied William Carleton, II, to his yacht, where the couple were discovered by another boater having sex in a  rigid inflatable boat.  Carleton claimed that Deitz was embarrassed at her circumstances and insisted that he leave.  In any event, he did drive away, leaving the drunken, upset young woman on the dinghy.  Her body was discovered floating near the marina days later with bruises on her legs and a bruise on her temple. 

Michigan Supreme Court rules boating statute does not create duty to passengers

In Binno v. Binno, Bencivenga and Dabish, the Michigan Supreme Court issued a peremptory order holding that boating safety rules governing the operation of recreational vessels do no not create a duty running from the operator to boat passengers.  The only ramification of the ruling is the denial of injury victims' (such as the family of deceased passenger Ryan Binno) right to sue the operator for negligent statutory violations.

Jury must decide whether cyclist was run off the road by a vehicle; Progressive loses appeal

 A motorcyclist without unusual coverage cannot collect full No Fault PIP benefits, unless a motor vehicle is involved in the incident leading to his injuries.  William  Lowell Elston argued that he lost control of his bike when an approaching car took a curve too widely and squeezed him into contact with the curb.  The trial judge assigned to the Lenawee County case granted Progressive Michigan Insurance Company summary disposition, despite Elston's claim of vehicle involvement. 

Case brought for injured cheerleader is reinstated

Jessica Sherry was badly hurt at a cheerleading camp.  She was part of a group of high school girls who were practicing stunts when the girls lost focus, got distracted, and began to fool around.  In violation of the rules of the camp, no instructor was present, however, one instructor became engaged sufficiently to threaten the girls with punitive laps if they did not straighten out.  Left to their own devices, the girls embarked on a dangerous "throw" maneuver while continuing to engage in horseplay.  The outcome was Sherry's injury.  Her mother filed suit against the East Suburban Football League sponsor and others, alleging negligence.

Motorcyclist's road claim dismissed where his notice didn't "precisely" identify unsafe section of road

The Oakland County Road Commission succeeded in dismissing Charles Kurzer's injury claim that he suffered injury when potholes in the road caused him to lose control of his motorcycle.  The Court of Appeals over-turned the lower court's refusal to dismiss the lawsuit.  The appeals judges held that Kurzer's son's photographs taken after his injury were inadequate to prove an unsafe road, because Kurzer could not confirm which pothole caused him to lose control and could not prove that the Road Commission had notice of the unsafe condition.  Even though Kurzer's son's pictures showed a road that was "in poor condition, over a period of time, making for a generally bumpy ride" this was not adequate proof that the road was "unsafe or inconvenient for public travel."

Tennis player injured by another's tantrum cannot sue

David Juhas was engaged in tennis practice at Anchor Bay High School when he violently backhanded a stray ball, striking John Chryczyk in the eye on an adjacent court, and causing severe injury to Chryczyk's eye.  Chryczyk sued Juhas in an  attempt to secure compensation from Juhas' homeowners' liability coverage.

Insurance company does not have to cover injuries caused by drunken boater

The AutoClub wrote a policy of insurance for Robert Lee Smith and Cynthia Hall Smith  that provided liability coverage on the operation of their boat.  In July of 2006, while intoxicated, Robert Smith, with his wife and young kids in the boat, ran into the boat owned and occupied by Karon and Duane Pool.   The Pools sued for personal injury and for property damage.

Injured motorcyclist cannot sue attorney for failing to pursue "double-recovery."

Scott Hasen was hurt what a motorist struck him on his motorcycle.  Under Michigan law, the motorist's auto insurance was obligated to pay his No Fault Personal Injury Protection (PIP) medical benefits.  Hasen had also paid for Blue Cross-Blue Shield health coverage, which was also obligated to pay his medical expenses.  Hasen allowed that coverage to lapse, however, based on his attorney's suggestion that he could not "double-dip" and recover for the same health expenses from both carriers.  Hasen later sued the attorney for malpractice, arguing that he could have obtained payment from both insurers for $180,000.00 in PIP medical expenses if the attorney had advised him to maintain his Blue Cross coverage.

Family of motorcylist injured while passing stopped cars on the right cannot sue for his death

Clay Dangler was killed when he attempted to pass a string of stopped vehicles on the right-hand (passenger) side and struck an on-coming, left-turning Bloomfield School District school bus.  His family sued the school district, alleging that the driver was negligent in initiating a left-turn, and also sued the driver of a large boom truck who had indicated that he would allow the bus to turn in front of him. 

Mining Company may be responsible for injuries caused by damage it caused at highway-driveway connection

As a result of a fall on her bicycle, Debra McCue suffered a skull fracture and head injuries so severe that she required a conservator.  The fall occurred while McCue was participating in a bicycle tour, and in particular, while she was biking on M-134 in Mackinac County.  Her Conservator alleged that the fall was caused by deterioration in the road where an O-N Minerals Company driveway entered M-134.  It was also alleged that the deterioration was the result of O-N driving extremely heavy trucks across the road at this location.  O-N argued that the State had sole jurisdiction and responsibility for maintaining the highway, and that it owed no duty to McCue or the traveling public.

Progressive's frivolous denial of PIP benefits to motorcylist is rejected

Jeremy Bogue was riding his motorcycle when he was struck and badly hurt by a HomeOwners' insured operating a van.  Bogue sought PIP benefits, but Progressive denied them, arguing that his motorcycle was an "ORV" and therefore he wasn't eligible for coverage.  Under the law, Progressive's denial required HomeOwners to step into the breach and it paid Bogue's medical and wage loss expenses, as required by the no fault law, totalling $184,000.00.  HomeOwners then sued Progressive for reimbursement.

Court overturns jury verdict involving unleashed dog after jury verdict form error is discovered

The Court of Appeals voted unanimously to overturn a jury verdict against Charles Pease, after Pease sued Roger Riley to collect compensation for injuries Pease suffered.  Pease alleged that he suffered serious injuries when Riley's unleashed dog ran into his motorcycle.  Under MCL 287.262, dog owners are required to keep loose dogs on a leash, and they can be held responsible if a dog running loose causes another person injuries.  Unfortunately, at the conclusion of the trial, the defendants submitted a jury verdict form which required that the loose dog be the SOLE CAUSE of the injuries.  Under the law, the victim can collect from the at-fault party if the latter's negligence is A "significant contributing factor" in causing the injury--even if other factors played a role. 

Noting that the form contradicted the Judge's (appropriate) instructions regarding multiple causes, and that the form had not been approved by the victim's attorney, the Court of Appeals panel was obligated to send the case back for a new trial.  There being no evidence that the defense attorney intentionally submitted an erroneous form, or that the victim's attorney knowingly allowed the erroneous form to be used, a form that very reasonably may have mis-led the jurors was grounds for overturning their verdict.

Motorcyclists can sue Road Commision for failing to fix pothole; notice incorporating police report is not defective

Arthur Whitmore and Elaine Whitmore sued the Charlevoix County Road Commision after they were injured when their motorcycle struck a large pothole on Advance Road.  The Road Commission argued that the Whitmores' claim should be dismissed because the notice they filed pursuant to statute incorporated the police report to describe the location of the pothole.  It also argued that the Whitmores failed to allege that the Road Commision had notice of the particular pothole. 

Four-wheeler injuries on a private road are not "no fault" injuries; Special assessment district does not render road "public highway"

Michael Flowers sued Progressive Michigan after the latter company refused to provide no fault PIP benefits to Flowers.  Flowers was hurt on a four-wheeler operated by a drunk party-goer.  The injuries were suffered on a privately-owned road which the Township taxed under a special assessment district (SAD) and then contracted out for maintenance. 

PIP benefits are payable whenever a passenger or operator suffers injury in a vehicle:

1. EITHER operated on a public highway OR

2.  designed for operation on a public highway. 

In this case, Flowers maintained that the Township's SAD and involvement in maintaining the road rendered it a "public highway."  In a case of first impression, the Court of Appeals rejected this definition.  Despite the fact that the road was open to the public and maintained through a Township-created and taxed SAD, the road remained a "private road" for No Fault purposes.

Court dismisses wrongful death claim arising out of drowning

Ryan Binning drowned while swimming in Cass Lake.  He was on a pontoon boat with Frederick Binno and others when they decided to go for a swim in the middle of the lake.  The boat operator did not anchor the boat.  While the swimmers were in the water, a storm blew up causing the boat to drift away from the swimmers.  Before the boat could be operated into close proximity of the group of simmers, Ryan drowned.  His companions claimed that he did not call for help before slipping under the water twice and failing to surface after the second submersion.  Ryan's family filed suit against the boat operator and owner, alleging negligent "operation."

Case against bar dismissed due to victim's failure to give notice of fee agreement

Christopher Dirla sued the Seney Spirit Store, alleging owner liability for a rented snowmobile, and Andy's Seney Bar, Inc., alleging that it sold alcohol to Jason Sunkle after he was visibly intoxicated.  Apparently intoxicated, Sunkle ran over Dirla on the rented snowmobile, causing significant injuries, before fleeing the scene.  Dirla hired an attorney who sent notice to the Spirit Store alleging ownership liability for its rented snowmobile, but failing to raise an issue of dramshop liability.  The Dirlas maintained that they only learned that Sunkle was drinking in the Seney Bar from the owner of the bar in response to the owner liability notice.  As a result, the Dirla's formal notice of dramshop liability was sent to the bar 148 days after they signed a fee agreement, and not within the 120 days required by law.  The trial court dismissed the claim and the Court of Appeals upheld this outcome.  It concluded that the Dirlas and their attorneys had failed to comply with the statutory obligation to provide notice, even though they were initially unaware of the potential dramshop claim, the bar owner was actually drinking with the alleged intoxicated person [AIP] on the night in question, and a notice of injury [relating to the snowmobile rental] was timely provided to the Defendant.

So, the Defendant knew the the AIP got drunk in her bar--drinking with her, no less; knew that he caused someone serious injuries; got notice of the injuries in a timely manner, but didn't get the "dramshop notice" until 28 days late--and is therefore allowed to escape responsibility. This passes for justice?

Court slaps down Farm Bureau's "totally unfounded position" regarding ORV

In another example of "boys being boys" resulting in tragedy, three young men near Port Huron suffered a collision while attempting to assess the top speed of a dirt bike.  They were operating the bike, a re-built 4-wheel ORV, and a pick-up on the highway in tandem when the boy on the bike lost control, contacted the ORV, and was runover by the pickup.  The succeeding battle over who should pay the badly injured bike-operator's medical expenses became Schultz v. Blue Cross-Blue Shield.

Court overturns award of PIP benefits to family of boy killed by runaway motorcycle

Josh Eddy was struck by a runaway motorcycle at a racetrack, suffered a severe head injury and later died.  His parents attempted to recover their substantial medical expenses through a No Fault PIP action against Titan Insurance Company.  Because motorcycles don't fall within the "normal" definitions of No Fault, the family initiated the action against Titan becauses it was the insurer of a friend's van.  The family sued the van's insurer because the van was parked unreasonably close to the straightaway of the race track (within 60 feet, with only a snow fence and bales of straw as a barrier), and the motorcycle struck it, before careening off and causing Josh's catastrophic head injury.  The family argued that parking the van too close to the track created an unreasonable danger of injury to Josh and his companions. 

Multiple fractures in lower spine constitute "serious impairment:" AutoOwners must pay

Jake Vielstra suffered multiple fractures in his lower spine when the driver of the car he was in accidently rolled it several times.  She had only $20,000.00 in coverage, which her insurer promptly offered to pay Vielstra.  After complying with AutoOwner's settlement restrictions, Vielstra took that money and filed an Underinsured Motorist claim against AutoOwners (his own carrier).  AutoOwners declined to pay any settlement, maintaining that Vielstra did not suffer a "serious impairment of bodily function." 

Disability insurer cannot avoid obligation to drunk driver by characterizing his injuries as "intentional"

The Sixth Circuit recently handed down an important decision interpreting ERISA insurance policies.  Under these policies, insurers have traditionally excluded payment of benefits where an insured intentionally suffered injury.  The Reagan-Bush appointees to the Court has, over the past decade, begun recognizing a broader range of negligent conduct as "intentional" at the request of insurers seeking to avoid a duty to pay health or accident benefits.  The result has been the "activist" development of a line of cases suggesting that insurers could avoid paying benefits where an insured did something "stupid," in cases where no one would categorize the actual injuries as "intentionally" suffered.  In Kovach, et al. v. Zurich American Insurance Company, the Sixth Circuit finally handed down a ruling placing a limit on this development under ERISA.

Consumer Product Safety Commission eyes standards for 4-wheel ORVs

The CPSC recently rejected voluntary safety standards suggested by manufacturers of 4-wheel ORVs, finding them inadequate.  Instead, it will take testimony from the industry and the public and compose independent standards.  It noted that the side-by-side off-road vehicles, capable of speeds in excess of 35 miles per hour, are involved in a disproportionate number of deaths and injuries.  In March, Yamaha recalled 100,000 of its Rhino models for repairs, after two models were linked with 46 deaths in six years.  The vehicles pose a substantial roll-over risk and have been associated with 116 deaths and many serious injuries since 2003.  Many of the victims have been children.  Industry spokesman suggest that the deaths are merely the result of owners' unsafe use.

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. 

Court interprets release signed by uninsured motorcyle operator

Mark Sindler was injured while operating a motorcycle he owned but had not insured.  He collected damages from Farmers Insurance, which provided liability insurance on the at-fault car driver, but insisted on language in the release that preserved his right to collect PIP benefits (wages, replacement domestic service expenses and medical).  After paying these benefits for more than a decade, Farmers notified Sindler it would no longer pay PIP benfits because Sindler was operating his own, uninsured bike at the time of the injury.  He sued to enforce his right to PIP benefits and Farmers sued to collect from him the medical it had paid.

Court applies Michigan premises law to "admiralty" law of the seas

When a person is injured on a boat in navigable waters, the so-called rules of admiralty apply to the case.  In effect, the rules applicable to navigable waters are subject to a different federal, rather than state, common law.  Nevertheless, pertinent state law rules can be imposed in admiralty cases when they do not conflict with the underlying rules.  Using this legal theory, a panel of the Court of Appeals grafted the "open and obvious" Michigan premises liability standard on top of the rules of admiralty applicable to an injury suffered on the Clinton River Cruise vessel.  

Court addresses factual issues surrounding sale of vehicle without prompt registration

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

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

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

The National Transportation and Safety Board recommends that the Feds do more to police truckers' hours

The NTSB held a hearing on September 16 to assess the role that fatigue plays in trucking accidents.  The hearing was prompted by a 2005 collision in Wisconsin that involved a high school band bus and an overturned semitrailer, killing five people.  The NTSB concluded that employers and the government do not do enough to enforce the limitations on driving hours imposed by the Federal Government. 

As gas prices rise, so do motorcycle fatalities

The National Transportation Safety Board released figures for 2007 showing that the number of motorcycle fatalities increased dramatically.  According to the NTSB, combined with a reduction in car and truck occupant deaths, this increase in bike fatalities means that motorcycle deaths now account for almost one traffic fatality in  eight.

Death claim dismissed, although manufacturer admits component missing or never installed

Lynette Witbeck's husband was killed when the boat he was operating suddenly veered out of control.  He struck his head on the windshield and was ejected.  The Defendants who had manufactured and sold the boat acknowledged that "the accident probably occurred after the steering link rod disconnected...because the nylon insert locknut (NIL) that was supposed to be on the threaded end of the steering link rod was missing or had not been properly installed."  Nevertheless, the court dismissed her death case because her expert drew his experience from "reliable engineering principles and methods" but not directly from experience with marine fasteners.

Parents who let boy drive moped illegally have consented to use that exceeds their permission

The Defendant 14 year old severely injured a passenger when he collided with a motor vehicle while illegally driving his moped on a sidewalk.  His parents allowed him to operate the moped illegally, but claimed that he did not have consent to use it on this occasion.  The Court noted that under existing Michigan law, merely exceeding the restrictions on use of a vehicle does not abrogate the original consent.  Relying in part on statutory presumptions, the court held that when a kid has access to the keys and a right of use, he has "consent", even if he doesn't follow the owners' instructions.