TOV Injury and Safety Blog

Court holds insured cannot sue agent for failing to provide adequate coverage

Continental Rental, Inc. sued Moulthorp-Clift, Inc., Continental's insurance agent, arguing that Moulthorp breached their insurance contract and was professionally negligent in failing to provide employment practices liability insurance (EPLI) coverage for Continental.  Continental was sued by an employee alleging violation of his civil rights.  The owner of Continental argued that he had an express agreement with the owner of Moulthorp to provide all coverages that the Continental business reasonably required.  The agent denied any such conversation. The trial court dismissed Continental's lawsuit on summary disposition and Continental appealed.

Court reconsiders; again grants immunity to Hotel for obviously unsafe speakers' podium

Norma Chesser sued the Radisson Plaza Hotel in Kalamazoo months after she fell off the stage immediately after giving a short speech.  Chesser was returning to her seat and was forced to walk between other speakers' chairs and the edge of the stage.  She did not realize that one of the speakers had apparently pushed a chair back, narrowing the walkable edge of the stage, and she stepped into oblivion, suffering injuries.  Earlier this spring the Court of Appeals reversed the trial judge and dismissed her injury claim. The Court held that the Radisson was immune from injury claims because the danger presented by the stage was "open and obvious."

The panel of the Court then granted reconsideration and it appeared that this absurd public policy decision would be reversed.  Today, the Court issued its new opinion and the only thing changed was the rationale by which the "open and obvious" decision was justified.  Where the earlier opinion had suggested that Chasser should have interrupted the program rather than attempting to make her way back to her seat, this opinion focuses on the broader, less absurd--and less human--aspect of the case.

The Court recognized that Ms. Chasser raised "important and reasonable concerns" but that they are "essentially policy issues" foreclosed by the "Enger Majority" of the Michigan Supreme Court and therefore must be directed to the state legislature.  It doesn't matter that industry standards were violated in the stage design or that the Hotel employees admitted negligence.  It doesn't matter that no reasonable person in Chasser's position would have interrupted the program to force the Hotel to re-arrange the stage.  Since the danger was "open and obvious," the users bear all of the risks and the creator of the danger owes no duty to make repairs.

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 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).

Newspaper derides claim that "tort reform" resulted in savings to consumers

The editors of the Henderson Daily News in Texas published an article this month repudiating claims that adopting aggressive "tort reforms" had resulted in benefits to consumers.  The Editors pointed out that limiting victims of medical malpractice to $250,000.00, as Texas did in 2003, was touted as a means of lowering the cost of medical care and health insurance.  It was also suggested that it would make Texas a more hospitable location for doctors.  The outcome after almost nine years? Well, not so good.  Texas did not obtain a competitive advantage over other states by reason of tort reform. 

Court reverses another summary disposition wrongly based on "contract immunity."

Richard Burns lost his home in a fire caused by a defective wood stove.  He and his insurer, USAA, sued JCS Fireplace and a contractor, arguing that the negligent installation of the wood stove made the contractor, JCS (and their insurers) liable for the resulting fire damage.  The trial court dismissed the negligence case, citing the Republican Supreme Court's much-criticized "contract immunity" holding. 

Injury victims "0 for 3" on the day: Summary judgment granted to insurers in all cases, including dob bite.

Brian Stacey, a minor, suffered serious scarring when he was bit by a neighbor's pit bull.  He sued the Colonial Acres Associates, LLC, and Newbury Management Co., the operators of the trailer park where he lived, alleging that they bore some of the responsibility for his injury.  Through his parents, Stacey argued that the Defendants had violated their own rules by allowing the pit bull to live in the trailer park for years, despite the prohibition of several breeds of dogs known to have a propensity for biting or violent behavior.

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.

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.

Insurers sue Michigan Blue Cross alleging illegal conduct

Aetna, Inc. filed suit against Blue Cross Blue Shield of Michigan this week, alleging it uses an anti-competitive scheme that forces other insurers to pay higher prices for hospital care.  Blue Cross reportedly insures almost sixty percent of Michigan residents.  According to the lawsuit, Blue Cross enters into agreements with providers that exclude other insurers and require the providers to charge as much as forty percent more for services.  These allegations would constitute a violation of federal anti-trust law. 

The State and the federal government already have a suit pending against Blue Cross, alleging the same illegal conduct:  Blue Cross sought dismissal of that suit earlier in the year and was denied.  According to the Aetna lawsuit, Blue Cross raised rates to insurers and passed the money generated through higher rates through to providers to induce them to raise rates on insurance competitors.  According to Aetna, 70 Michigan hospitals have signed this type of contract with Blue Cross; one anonymous hospital executive was quoted to the effect that "Blue Cross represents thirty percent of our patients, we can't put that in jeopardy."

Texas report repudiates claims that "reforms" delivered benefits

The Fort Worth Star Telegram of October 12 published an article describing the findings of a Public Citizen report that refuted the claim that malpractice reforms had benefitted medical care in Texas.  The "reforms" enacted in 2003 did not reduce health care costs or insurance premiums, which have risen faster than the national average since 2003.  During this period, the number of Texans without health insurance, and their percentage of the total population, have also risen faster than the national average.  The legislation also did not improve the per capita number of doctors in the state (i.e., doctors did not stop leaving the state or flock in, as suggested by some).  One of the authors of the Report suggested that the only "winners" from Texas "reforms" were doctors and insurers. Malpractice payouts have dropped by 65% and malpractice premiums have dropped by approximately 50%.

Study by cardiologists demonstrates better care, higher survival rates for privately insured patients

In reporting a study that was described as "shocking and equally disturbing" by one of its cardiologist authors, the September 27 issue of the Journal of the American College of Cardiology documents that the outcomes for cardiology patients vary by the type of medical coverage they enjoy.  HealthDay reported on September 21 that the study evaluated the medical charts of 99,508 patients from 244 different hospitals that had agreed to participate in the AHA national quality improvement program.  Even in these hospitals that had opted to participate in a quality improvement program, it was determined that Medicare and Medicaid patients and uninsured patients were less likely to receive certain essential treatments and more likely to die in the hospital, than  were patients who are covered by private insurance plans.

The study noted that "disparities do exist" and they are "associated with worse outcomes."  One of the authors explained that "care continues to be tailored to the individuals bsed on their pocketbook, and not on their condition." Patients with no coverage, Medicare or Medicaid were less likely to be given any of several blood pressure medications and less likely to receive an implantable cardioverter defibrillator, all "proven therapies" that result in documented improvement in recovery and decreased mortality.  In part because of the failure to provide evidence-based therapies, the hospital stays for uninsured or publicly-insured patients are also longer.  The authors questioned whether the results are also influenced by the obvious socio-economic disparity between privately-insured patients and the the other groups with whom they were compared.

"Surrogate mother's" expenses are not covered by her health insurer; statutory definition of "surrogate mom" not controlling

Stephanie Lehr and Spectrum Health Hospital sued NGS American, Inc., the Administrator of Lehr's health plan, arguing that the plan should have covered the health costs of the triplets Lehr delivered after being implanted with embryos from another couple.  Under existing rules, since the ERISA Plan Administrator was granted discretion in the ERISA Plan, the Court is constrained to uphold the administrator's decision unless it is arbitrary and capricious. [This standard is weaker if the Plan administrator would pay out of its own pocket.] Lehr and the Hospital argued that the administrator was required to consider the statutory definition of a "surrogate mother" in the Surrogate Parenting Act, and that to do so would require benefit payment.

Republican majority overturns unanimous 1996 decision on employer liability

In 1996, the Michigan Supreme Court unanimously decided that in certain circumstances, the employer should be responsible for an employee's violation of a citizen's civil rights--even if the employee was acting ultra vires or outside his employment duties, when the wrong was committed.  That case was Champion v. Nation Wide Security and involved the rape of an employee by her supervisor.  The issue came up again this year after Tara Hamed was arrested for non-payment of child support.  Her Wayne County jailor transferred her to an unsurveilled area of the jail and then "violently raped" her.

Insured who files late proof of loss cannot recover on homeowner policy, despite substantial compliance

Teresa Essa sued her homeowners' insurer, Pioneer State Mutual Insurance, after her home suffered severe water damage.  While she provided Pioneer State with virtually all of the information that would have been included in the insurer's "proof of loss" form, she was late filing the form itself (it is due within 60 days).  She argued that the insurer had waived strict compliance and that, in any event, she had "substantially complied" with the requirement, making it unjust to completely deny her any recovery.  In a decision that undoubtedly pleased Judge Henry Saad, he and two companions ruled that the insurer owed no duty to pay under the policy and could enforce the strict 60-day deadline.

Woman with multiple pelvic fractures can go to jury on claim of "serious impairment."

Ruth Sikkenga suffered multiple pelvic fractures in a car accident caused by Charles Townsend.  Under the so-called Kreiner standard adopted by the activist Engler Majority, the trial judge ruled that she had not suffered a "serious impairment" of a bodily function and dismissed her case.  This week the Court of Appeals applied the 2010 McCormick interpretation of "serious impairment" and reinstated Sikkenga's claim.  Under the latter standard, it will be for the jury to decide whether the woman's pelvic fractures constituted a "serious" impairment of her daily life.

Driveway ice should have been noticed by visitor but not by owner.....?

This week the Court of Appeals upheld the dismissal of Nicholas Lawson's lawsuit against Cherylene Norton (and her insurer).    Lawson suffered a severe ankle fracture that required multiple surgeries while walking up Norton's driveway to perform a repair estimate.  He said that he fell on ice that he did not see because it was clear.  He and others testified that the temperature was in the 40s and that it had not snowed in several days.  He also testified that there was no snow or ice on the ground, although he also told the defense attorney, on cross-examination, that pictures taken by the Defendant four days later "accurately depicted" the condition of the driveway and defendant's home:  those pictures showed snow in the area.

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. 

Multiple lawsuits against USAA for using outside auditor who uniformly rejects medical claims.

The Texas insurer, USAA, was sued again this week by customers denied reimbursement for auto-related medical expenses.  This claim was filed in Oregon, and is the third similar class-action filing against USAA in the past several  years.  A class-action filed in Arizona was settled last summer. An Illinois class action was reportedly settled for 35 million dollars in 2005. The allegedly-sham reviewer utilized by USAA is Alabama-based Auto Injury Solutions.

MEEMIC files subrogation action; claim dismissed for lack of proof and failure to preserve evidence

A MEEMIC insured suffered a house fire and complete loss of her home and 3 vehicles.  MEEMIC paid at least  partial coverage for the loss and then sued Detroit Edison, claiming that it was responsible for the fire. The undisputed evidence showed that the fire started while power was out to the neighborhood. MEEMIC claimed, however, that its insured was served by a separate transformer.

State Farm not required to pay living costs for spared quadriplegiac

Bonnie Yackish suffered catastrophic paralysis from the chest down in a motor vehicle collision.  She required a conversion van for transportation, and could not return to her home because it could not be modified to accommodate her disability.   When State Farm refused to pay the full cost of her van or her new living arrangement, Yackish filed suit seeking more complete Personal Injury Protection benefits.

U.S. Supreme Court holds vaccine makers immune from product design lawsuits

This week, the U.S. Supreme Court voted 6-2 to grant immunity to vaccine makers.  The ruling was in the case of Bruesewitz v. Wyeth, and arose out of Hannah Bruesewitz' parents' claim that she suffered a permanent brain injury after being administered a standard diptheria, tetanus and pertussis vaccine.  Hannah's parents claimed  that Wyeth negligently designed the vaccine, but the Court held it didn't matter:   the Justices concluded that a Congressional bill intended to provide limited compensation to some patients who suffer side effects impliedly created immunity for the  manufacturers--even though the bill does not say that.  

Government agencies struggle with the task of placing a value on an individual life

Media outlets on  February 16 reported on developments in Washington, D.C., as federal agencies arm-wrestled over placing a value on human life.  The New York Times, for example, reported that federal agencies are allowed to assign different values for one life, and the "valuations" utilized by various agencies vary  widely.  The FDA, for example, places a value of $7.9 million dollars on a single life, while the EPA values a life at $9.1 million dollars.  The Transportation Department uses a value of approximately 6 million dollars. 

These estimates are calculated by different means in each agency.  Some rely upon consumer surveys estimated how much individuals would pay to avoid a particular risk.  Other valuations rely on computations of incremental pay that must be offered to induce workers into more risky occupations.  Still others simply add up the total wages lost when a worker dies:  obviously this calculation--unlike most Americans--- places no value on a worker's life outside the trenches.

Corporations and the government use these valuations to determine--by cost-benefit analysis--whether, for example, a road should be made safer, new labeling should be required on prescriptions, and whether there should be tighter restrictions on air pollution.  The involved agency and regulated corporations attempt to determine how many lives would be saved by the proposed change, and then multiple that number by the estimated value of a single life:  the "value" of the regulatory change is then compared to the cost of the modification, regulation or investigation, to determine whether it is justified.

Somehow, the whole business seems a little like trying to assess how many angels can dance on the head of a pin.  That is especially true in a walk of life where legislators and jurors routinely place a "value" on a life--or the "cost" of a wrongful death--at something well below the economists' numbers.   A few years ago, Michigan  "reformers" held that the "value" of a life lost in most malpractice and product liability cases is $285,000.00--plus lost income, if there is any.  

Michigan's legislators, in another example, have mandated a minimum auto liability coverage of only $20,000.00, and all of th no fault and tort "reforms" since 1974 have refused to increase that value with the cost of living.  [If you hadn't already realized it, tort "reforms" only reform for the benefit of the insurance industry--not for the benefit of insureds or consumers.]  Thus, as a practical matter, we often see cases where the "value" of a life wrongfully ended is as low as $20,000.00 or $50,000.00--even though more reasonable mandatory minimums could be legislated at a cost per insured driver of less that fifty dollars per year. 

Unfortunately, the "value of a life"  is never as great, in theoretical terms, as it is to the person who owns it; and the value is never as great in anticipation of loss (i.e. when  you go to the voting booth or when you write your check for an insurance premium) as it is when the loss is realized.  And insurers know how to exploit that discrepancy.

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.

Store owes no duty to eliminate known "serious hazard" where ice forms near entrance

Nancy Torres suffered serious injuries when she slipped on ice near the entryway to the Goodwill Industries store in Grand Rapids.  The parking lot was covered under several inches of snow when Torres' daughter dropped her off:  Ms. Torres didn't want to wade through the snow  (and whatever it covered) so she opted to approach the entrance on a walkway that had been shoveled but  appeared dark and perhaps wet.  When she arrived at the dark wet spot, Torres slipped on ice and fell.  The Manager of the store acknowledged that water dripped off the roof in that location and regularly formed a patch of ice. 

Case returned to trial court to assess "serious impairment"

Hadieh Katip sued Ali Nasri Sayed, after Sayed rear-ended her vehicle while she was waiting to make a left turn.  Police and ER personnel noted a contusion on Katip's head, and over the next year she made 58 visits to her physician, related to "concussion head injury, cervical disc herniation compression of the cord, lumbar disc herniation L5 with compression right S1, cauda equina sydrome at L4-L5 and carpal tunnel syndrome."  Both the treater and another physician concluded that she was disabled from work and household activities." Nevertheless, under the Engler-era revised Kreiner standard, the trial court dismissed Katip's claim, finding that she had not proved a "serious impairment of bodily function."  The Court of Appeals returned the case to the lower court to evaluate Katip's claims under the McCormick standard of serious impairment (which is likely not to survive the election of an insurance-friendly majority to the Michigan Supreme Court in November of 2010).

Are frivolous lawsuits "clogging our courts?"

The State Court Administrator and the 13th Circuit Court (Antrim, Leelanau and Grand Traverse Counties) recently released their filing data for calendar year 2009.  According to the judges and staff, 3385 new cases were filed in the 13th Circuit in 2009.  2.9 percent of these cases alleged injuries caused by auto negligence.  1.7 percent alleged injuries caused by other forms of civil fault (that is, medical malpractice, products liability, premises liability, libel, slander, negligence, etc.).  More than twelve percent of the total cases were general (non-injury) civil disputes, 11 percent sought domestic PPOs, 5 percent sought non-domestic PPOs, 16.6 percent alleged juvenile delinquency, 10.8 percent were criminal cases and 20 percent were divorce cases.  Thus, by the court's numbers, about 100 persons in the three counties decided in 2009 to file suit over car wreck-injuries that they believed were "serious."  Sixty people sued for other injuries:  during the same period, about 650 people filed for divorce and more than  750 people were forced to attend to claims of delinquent or criminal conduct.

For the State of Michigan, the numbers were similar:  2.9 percent of total cases alleged auto negligence and 1.69 percent alleged "other civil damage" rights.  Divorce, paternity, criminal and juvenile delinquency claims far out-weighed all other actions in frequency.  General civil disputes over contracts and business matters constituted almost ten percent of the caseload in courts state-wide, also; a number that is not a surprising number given the state of Michigan's economy.

Court parses definitions regarding whether a psychologist's affidavit confirms head injury

Shakita Crittendon's auto negligence suit against Cheryl Ann Johnson has been in limbo for several years and will remain there for several more.  Crittendon's case was initially dismissed by the trial court because her proofs of "serious impairment" included an affidavit from a psychologist but did not include an affidavit from a licensed physician.  On appeal, the Court of Appeals returned the case to the lower court last year, holding that confirming a head injury through the affidavit of a licensed physician is not the sole means available to establish a serious injury.

Freight driver is an "employee," not an independent contractor on day of collision

Jason Judy was driving a First Flight Freight Services truck at Detroit Metropolitan Airport in 2006, when he cause injuries to David Baum.  Judy was insured by Progressive Michigan for no fault coverage, while the truck he was driving was insured by Citizens.  The two carriers disagreed over which of them had primary responsibility to provide coverage for Baum's injuries.  The trial court had ruled that Progressive had primary responsibility, but the Court of Appeals overturned the lower court judge's decision.

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.

Court re-imposes sanctions on AutoOwners Insurance for frivolous defense

The Ludington Holiday Express suffered a failure in the pool room heating system, poisoning a family of guests who were present at the time.  It reported the claim to its insurer, AutoOwners, but the insurer claimed that it was not obligated to defend or compromise the family's claim because of an exclusion in the fine print of its policy.  Ultimately, the family was forced to sue; the hotel owners defended and then settled the family's injury claims, and then sought a ruling that they should be reimbursed by the insurer.  After several more years of litigation, the hotel owners prevailed and AutoOwners was required to cover the family's settlement and the defense costs. 

U.S. and State of Michigan sue Michigan Blue Cross for illegal rate setting

The State of Michigan joined in a federal government lawsuit against Blue Cross Blue Shield of Michigan, accusing it of using predatory pricing practices to exclude other health insurers from various in-state markets.  Blue Cross insures more than 60% of the families in Michigan who have health insurance, amounting to approximately three million commercially insured persons and four million insureds, total.  It grossed approximately 10 billion dollars in income in 2009 (because it is a "non-profit," profits go to management rather than to ownership/ governance).  It is nine times larger than its nearest competitor, leading to concerns about monopolistic practices.

More than 651,000 applicants rejected for health insurance in 2007, 2008 and 2009 due to "pre-existing conditions"

Bloomberg News reported that together four insurers, WellPoint, Inc., Aetna, Humana and United Health, denied health coverage to nearly three-quarters of one million persons who were attempting to switch coverage from an employment to an individual plan. This practice is set to end with the adoption of the Obama health care plan, and roughly 75 percent of U.S. residents say they favor ending this practice.  Nevertheless, many persons running for office in November of 2010 have pledged to attempt to overturn the health care plan, so the window period when insurers cannot turn down potential insureds with "pre-existing conditions" may be short.

Two more "serious impairment" cases are sent back to the lower court for review

In two cases,  Ross v. State of Michigan and Brooks v. Anderson, et al., the Court of Appeals this week overturned summary dispositions that had been granted to at-fault defendants because the plaintiff/victims had been deemed not to meet the "life-altering" requirement of the "serious impairment" threshold.  Ms. Ross alleged a severe wrist fracture with delayed healing and psychological problems arising out of a significant wreck allegedly caused by a State Trooper's negligent driving.  Brooks alleged that he suffered multiple facial and jaw fractures requiring surgery, jaw wiring and significant follow-up care after being struck from behind at high speed.  Brooks' case had been dismissed, despite medical records evidencing a slow recovery with significant pain, because the trial judge concluded that "he did have a pretty serious mouth injury...but he recovered pretty well...he did have some trouble eating, but aside from that it really didn't affect his normal life."  Guess maybe that depends on whose face got clobbered.

Court refuses to allow insurer's friviolous effort to apply new law to void coverage

In 2008, the Michigan legislature adopted a bill that added specific language to the No Fault Act excluding all off-road vehicles from Personal Injury Protection coverage.  Beverly Duffy was paralyzed in 2007 under circumstances that appeared to provide PIP coverage, and she applied for benefits to the Grange Insurance Company, which insured the ORV.  Grange denied Duffy's claim and argued that the 2008 No Fault amendment language should be applied to nullify her rights.

State Farm cannot enforce policy provision since it suffered no prejudice

Two judges of the Court of Appeals agreed that State Farm cannot dismiss an Uninsured Motorist (UM) Claim brought by Stephanie Bradley, simply because Bradley took a default judgment against the uninsured motorist instead of joining him in her claim under State Farm's UM policy.  UM coverage is not mandatory in Michigan, so insurers are allowed to insert any language or any requirements they choose.  One of the so-called Engler Majority's pro-insurance rulings last decade was the holding that these provisions will be enforced, regardless of reasonableness.

Ex-girlfriend receives deck hand's life insurance rather than wife

James Williams died in 2009 with $280,000.00 of life insurance.  In 1995, he had filled out a beneficiary designation mis-identifying his then-girlfriend, Dorothy Williams, as his "wife" and providing for the benefits to be paid to her. He never married Williams.   One year later, however, he married Betty Williams and filled out a new form identifying his new bride as the beneficiary.  Although he printed his name at the bottom of the 1996 form, as required, and checked the box that he had signed the form in the presence of witnesses, he did not actually write his name in cursive on the form.  On the basis of this omission, one hundred percent of the proceeds of James' life insurance went to the Estate of his former girl-friend and nothing went to his wife of 13 years.  That outcome hardly qualifies as "justice" and cries out for some form of legislative, regulatory or judicial reevaluation.  The Sixth Circuit case is entitled Larry Bonner v. Metropolitan Life Insurance Company.

Families of fire victims cannot sue oxygen supplier who continued deliveries to "careless smoker"

The agents of Senior Home Health Care, Inc.  apparently observed that one Mr. Renwick was carelessly smoking in close proximity to the oxygen they were delivering to him.  They apparently made record of this fact, but continued deliveries of oxygen for 17 months, until Renwick caused a fatal apartment fire in which the plaintiff families suffered injuries and fatalities.  The families then filed suit against Senior Home Health, arguing that it was negligent to continue providing oxygen to Renwick after determining that he would not stop carelessly smoking near the oxygen.

Indiana requires reporting of hospital "never" errors; sees immediate reduction

The September 1 Journal Gazette reported that "what gets measured gets done."  It noted that when Governor Mitch Daniels was elected in 2005, he immediately ordered the Indiana State Department of Health to institute a system tracking so-called "never" events:  malpractice errors that should never happen, such as operating on the wrong limb or discharging a baby to the wrong mother.

AAA secures dismissal of Uninsured Motorist Claim based on policy language requiring "direct" contact

Michigan No Fault auto insurance policies are no longer required to include Uninsured Motorist (UM) Coverage.  UM coverage requires the victim's insurer to stand in the shoes of any uninsured (or unidentified) at-fault driver.  Because the coverage is not mandatory, the Engler Majority ruled that UM policies can include any language and any exclusions from payment the insurer chooses to include, whether the language is within the "reasonable expectation of insureds" or not. 

Court of Appeals overturns lower court's holding arising out of accidental shooting

On August 31, the Court of Appeals overturned a Macomb County decision that the Auto Club Insurance Company had appealed.  The lower court had ruled that John Booth's homeowner's coverage with the AutoClub should apply to an accidental shooting that occurred in Booth's home.  The Court of Appeals held that the insurer's "criminal acts" exclusion applied to the homeowner's negligent discharge of his pistol even though he was intoxicated, believed that he had unloaded the gun, and did not intend to pull the trigger. 

The Court also pointed to a prior holding by the Supreme Court dictating that the public policy of Michigan is to discourage crime, while providing insurance coverage for the victim would do the opposite.  The Court did not address the public policy argument raised in the Supreme Court's McCarn II case:  i.e., the point of insurance is to protect victims from a stupid act, and if the criminal act is a negligent criminal act, insurance purchased by the "stupid" individual should be paid to the victim.

Supreme Court repudiates lower court decision granting third-parties right to enforce boilerplate release language

For the past decade, the so-called "Engler Majority" of the Supreme Court had allowed to stand a 1999 decision of the Court of Appeals that proved a windfall for insurers.  The decision, entitled Romska v. Opper, had granted summary disposition to a wrong-doer's insurer because the accident victim had previously signed a Release document that contained "boiler-plate" [standard] language purporting to release "all other parties" who might be responsible for the victim's injuries.  Prior to the decision in Romska, such language was routinely included in Releases at the insistence of insurers, however, if an unwary victim signed the release, it could in some cases be amended to limit its operation to the parties' intent. 

In Estate of Shay v. Aldrich, et al., the Supreme Court finally confronted this issue.  In Shay, Allen Park and Melvindale police officers were sued after they allegedly beat Shay.   It was alleged that Melvindale officers originally responded to a car alarm at Shay's home, left the home, but then returned with Allen Park officers later the same day and assaulted Shay.

The case went to Case Evaluation, where minimal awards were entered against two of the [Allen Park] officers, but significant awards were entered against the Melvindale officers.  The Allen Park officers and Shay consented to the awards involving these officers and a Release was executed that limited the release and dismissal of Shay's claims to the Allen Park officers only, but also contained "boilerplate" language that purported to dismiss claims against "all other persons." 

Insurer wins dispute over Uninsured/Underinsured Motorist Coverage exclusion

Daniel Mikolasik was hurt in a motor vehicle accident while occupying a car that is registered in his wife's name.  He had insurance on his car through Farmers and his wife had insurance through Citizens on her car.  Mikolasik had paid for Uninsured/Underinsured Motorist Coverage (UM/UIM) on his policy but his wife apparently had not.  Mikolasik brought an action against his carrier, Farmers Insurance, to collect UIM benefits due to the seriousness of his injuries. 

Michigan's judicial campaigns become laughingstock nationally

A recent national study conducted by the Brennan Center for Justice at NYU Law School and the National Institute on Money in State Politics gave Michigan's judiciary yet another black eye.  It pointed out that Michigan ranks third among states in money spent on TV ads for supreme court candidates during the past decade.  At least 11 million dollars could be accounted for publicly.  The Michigan Chamber of Commerce was the nation's fifth-biggest spender on state supreme court campaigns, having contributed $3 million dollars in identifiable direct contributions. 

Judge Kirsten Kelly deviates from past law to deny PIP benefits

In the recent case of Farmers Insurance Exchange v. Rufus Young, Judge Kelly demonstrated her willingness to kowtow to the insurance industry, regardless of past law or legal principles.  The depth of her disinterest in the rights of ordinary people, and her lack of scholarship, is thoroughly elucidated in the dissenting opinion of very moderate judge Peter O'Connell.  In the Young case, Kelly and Judge Brian Zahra denied PIP benefits to the Henry Ford Health System and Mr. Young because they felt that Young had abused his permissive use of an automobile.  O'Connell pointed out that since 1974, PIP benefits have been payable arising out of the use of any vehicle that has not been taken ILLEGALLY.  A jury expressly found that Young did not take this vehicle illegally--he was given permissive use.

Court of Appeals finds ambiguity and refuses to enforce indemnity agreement

Susie Poole suffered severe injury when she fell over a rolled floor mat at the Down River Community Federal Credit Union.  She sued the Credit  Union and also the Cintas Corporation, arguing that a Cintas employee was negligent in his delivery of the rolled mat.  Cintas argued that it was entitled to indemnification by Down River because it's standard contract with customers states that "Customer hereby agrees to defend, indemnify and hold harmless Company from any claims and damages arising out of or associated with this agreement, including any claims arising from defective products."

Farm Bureau and Great West lose spurious no fault PIP dispute

Matthew Gillem was hurt after a complicated accident involving four vehicles on I-96.  In short, Gillem was accompanying a friend who was towing a disabled semi-tractor back to the garage.  A wheel disengaged from the towed tractor so Gillem and his friend pulled to the side of the road.  Gillem started down the highway to warn oncoming motorists, however, he was struck by one of two cars that sideswiped one another and lost control attempting to avoid the detached wheel. 

Court rejects product claim against bungee cord seller and distributor

Keith Fowler suffered a serious eye injury while fastening lumber to a trailer with a heavy duty bungee cord.  Sadly, this is a common injury associated with bungee cords:  I think our firm, alone, has investigated more than half a dozen of these cases.  Fowler was pulling the cord tight over the lumber when the cord separated from the hook on the opposite end and snapped back into his eye.  Virtually every claim we have investigated has occurred in the same fashion.  Bungee cords are deceptively dangerous pieces of equipment. In Fowler's case, the Court rejected Fowler's argument that the cords should be sold with a warning advising purchasers of the danger they present.

Children and incapacitated adults granted limited relief from "one year back" rule

This week the Michigan Supreme Court backed away from a prior decision that had denied infants and incompetent persons the benefit of additional time to file lawsuits in no fault cases.  Under provisions of the Revised Judicature Act that have been the law in Michigan for decades, the statute of limitations is "tolled" while a person is an infant or mentally incompetent.  The potential litigant--who by definition cannot sue on his own without a court-appointed conservator, "next friend" or guardian-- then has a brief period after the "disability" is removed in which to file suit.  These provisions were applied to all claims of an infant or incompetent person up until the Engler Majority of the Supreme Court decided the Cameron case in 2006.  In the latter decision, the 4-3 conservative majority held that the no fault "one-year back" rule was not a statute of limitations and exempted it from the operation of the tolling provision of the RJA.  The decision was also given retroactive effect:  the immediate impact was a windfall of literally millions of dollars to the state's auto insurers who were relieved of the duty to pay no fault benefits--particularly medical benefits--where payment negotiations had extended beyond the "one year" limitation.