Archive for the ‘News’ Category
Friday, February 3rd, 2012
Last evening, February 2, 2012, a town hall meeting was held in Traverse City, Michigan, about saving auto no-fault insurance in Michigan. The town hall meeting was sponsored by the Coalition Protecting Auto No-fault (CPAN) and was well attended by members of the greater northern Michigan community, including many health care providers (e.g. , Munson Healthcare, Great Lakes Orthopedics (B. Scott Groseclose, M.D., Trauma Specialist), The Lighthouse Neurological Rehabilitation Center, Community Links, Alaris Case Management, HealthPartners and the Eisenhower Center, just to name a few). In equal attendance were many families with survivors of catastrophic brain and spinal injuries who attested first hand that but-for our no-fault system (which has been in place since 1973), their recovery and rehabilitation would not have been possible. Finally and importantly, also in attendance was Michigan House of Representative, Wayne Schmidt, of the 104th district, representing Grand Traverse and Kalkaska Counties. Local northern Michigan media outlets, TV 7&4 News and TV9&10/Fox53 reported on the event.
As you have read from our law firm’s previous posts on this subject (See, also, Smith & Johnson Attorneys, P.C., partner, Tim Smith’s commentary, Parts 1, 2 and 3), the Michigan Legislature is currently evaluating the auto no-fault insurance industry’s assertion that reforms to the no-fault act are necessary in order to sustain the Michigan Catastrophic Claims Association (MCCA) (this proposed overhaul of the no-fault act is self-contained in HB 4936). At the town hall meeting last night, Dr. Groseclose helped explain how the proposed changes would adversely impact the availability of healthcare for catastrophically injured auto accident victims, should such changes occur.
The MCCA was created by the Michigan Legislature in 1978, under section 3104 of the no-fault act. The MCCA was created as a reinsurance program to protect the catastrophically injured. To facilitate and fund the investment of this program, each auto-insured Michigan resident contributes an annual premium (currently $145) to the fund. The funds are then invested and managed by members of the insurance industry; they essentially act as fiduciaries of our investment. Many of us may recall back in 1988, that the MCCA did such a tremendous job in managing the fund that it prompted then Governor John Engler, to request and sign into law a generous refund to Michigan’s auto insureds.
Coincidentally, that same year (1988) the Michigan Legislature also amended section 134 (4) and (6)(c) of the general insurance code which protected and excluded the MCCA’s business of managing Michigan auto insured’s trust funds from full public disclosure under the Freedom of Information Act (FOIA), MCL 15.243. As an important aside, Article IV, Section 25 of the Michigan Constitution mandates that “No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.” Putting this constitutional mandate in context, recall that in 1978 the Michigan Legislature created the MCCA and it specifically did so by adding section 3104 to the no-fault act itself. In other words, the Michigan Legislature adhered to the constitutional mandate and placed the amendment within the act it was amending. Conversely, in 1988 when the Michigan Legislature added the MCCA FOIA exemption, it did so to section 134 (4) and (6)(c) of the general insurance code, as opposed to section 3104 of the no-fault act itself. In other words, the Michigan Legislature did not adhere to the constitutional mandate under Article IV, Section 25.
Fast forward to 2012: at the core of the auto insurance industry’s claim that no-fault reforms are necessary is its assertion that the MCCA cannot maintain its solvency at its current funding levels. Fortunately for Michigan auto insureds and our catastrophically injured auto accident victims, courageous leaders like Representative Wayne Schmidt demand full disclosure from the MCCA so that the citizens of Michigan (and their elected legislators) may make a full and complete informed decision about whether such reforms are actually necessary. The MCCA, however, refuses to fully release its data that allegedly supports the auto-insurers’ claim that the fund will not continue to be solvent unless reforms are enacted. The MCCA refuses to publicly disclose this important data by shielding itself behind the 1988 FOIA exemption/amendment. Therefore, CPAN has initiated important and necessary legal proceedings requesting our Third Branch of Government in Michigan, the Judiciary, to weigh in and decide (1) whether the 1988 MCCA FOIA exemption/amendment was constitutional; and if not, (2) to compel the MCCA to produce its data so that the citizens of Michigan can confirm that what the auto insurance industry is claiming, is factually accurate. Until then, as Representative Schmidt inferred at the town hall meeting last night, there will be no rush by the Michigan Legislature to push HB 4936 through until full disclosure by the MCCA occurs. Fortunately for Michigan citizens, a majority of House of Representatives agree with Representative Schmidt’s wisdom and leadership.
Needless to say, this topic is of great importance to Michiganders. Please return to our website Blog for future developments.
You can read 7&4 News’ coverage of last night here. And, you can see 9&10 News’ coverage here.
Authored by L. Page Graves
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Thursday, February 2nd, 2012
Plaintiff was shopping at a Big Lots store. She walked down an aisle and turned at the end, whereupon she tripped over a wooden pallet that was just around the corner. The pallet was about three-square feet in size and protruded about three feet into the adjacent aisle, and was on wheels. After she bumped into the pallet, she jumped onto the pallet and the pallet then rolled out from under her, causing her to fall to the floor and injure herself. The trial court dismissed the plaintiff’s premises liability claim against the store, holding that because the danger was open and obvious no liability can lie.
The Plaintiff appealed, and the Court of Appeals affirmed dismissal of her case. The Court of Appeals disagreed with the plaintiff’s claim that the pallet was hidden or camouflaged, which plaintiff argued would take it out of the open and obvious defense. The Court of Appeals noted that it was impossible for the pallet not to have been visible to a person approaching the end of the aisle before reaching the pallet itself. The pallet stuck out three feet, halfway across the intersecting aisle. The color of the pallet contrasted with the color of the floor. The only possible way a reasonable person would not notice the pallet is if the person was not exercising ordinary care. There were no special aspects to the case, which is a requirement to take the case out of the open and obvious danger category.
What This Means For Plaintiffs:
Although a premises liability claim can exist if an open and obvious condition has special aspects which make it effectively unavoidable or pose an unreasonably high risk of severe harm despite the open and obvious nature, this exception will not apply just because an object is around the corner and thus partially hidden.
You can view the entire opinion here.
Authored by Barbara A. Assendelft
Tags: open and obvious, Premises liability, slip and fall, trip
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Friday, January 27th, 2012
The decedent and two friends went to a bar and were asked to leave after they became visibly intoxicated. They left without the decedent’s car keys. A bar employee found the keys and picked the keys up. When Decedent and her friends discovered they had forgotten her keys, they returned to the bar, still visibly intoxicated. The bar employee returned the keys to the decedent, and they left. Decedent drove away from the bar, lost control of her vehicle, and was killed.
Decedent’s estate filed suit against the bar and its employee, claiming the employee’s actions in returning the car keys to a person who was visibly drunk was negligence. The trial court dismissed the case and the Court of Appeals agreed.
The Court of Appeals noted that Michigan’s dramshop act, MCL 436.1801, is the sole and exclusive remedy for a person who is injured by a visibly intoxicated person arising out of the unlawful sale or furnishing of alcohol. And, under the dramshop act, the visibly intoxicated person and his or her family are denied recovery. MCL 436.1801(2),(9). Thus, the only question in this case was whether that result is altered by the fact that the alleged act of negligence was the defendant-bar employee giving the decedent her car keys, not the act of furnishing her alcohol. The Court of Appeals answered in the negative. Although a retail establishment can still remain liable for actions arising out of negligence other than the sale or furnishing of alcohol, the test is whether the common law recognizes a cause of action for the negligent conduct, if the person were not intoxicated. Intoxication is taken out of the equation. For example, if a patron slipped and fell on the bar’s premises, a premises liability action could be brought. However, In this case, there is no ordinary common-law action for the furnishing of keys to an unintoxicated patron. Giving keys to an unintoxicated patron is perfectly legal. Therefore, the decedent’s estate was denied recovery.
What this means for bar patrons:
If you are injured after leaving a bar in an intoxicated condition, you do not have a cause of action against the bar. This result is not changed by your claim that the bar should not have given you your car keys or other similar actions that caused you to be able to drive.
You can read the entire opinion here.
Authored by Barbara A. Assendelft
Tags: Bar, Car Keys, Dramshop, Intoxication, Liable, negligence
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Tuesday, January 24th, 2012
A young man lived with his parents. The young man was the titled owner of two motor vehicles. One vehicle was a truck that he used exclusively for his personal farming business. The truck was insured by Progressive under a commercial auto policy with the young man being listed as the named insured. The other vehicle was a sedan that the young man used for personal needs. That car, however, was insured under a policy purchased by the parents and issued by Citizens. On the Citizens policy, the young man was listed as a driver.
The young man was driving his sedan and crashed, sustaining bodily injuries. A claim was presented to Citizens, only, which began paying no-fault benefits. Citizens learned about the Progressive policy and therefore, declared that Progressive was legally responsible to pay the young man’s no-fault claims. Progressive denied responsibility claiming that it did not insure the risk complained of but rather, only insured a loss that involved the farming truck.
The Michigan Court of Appeals agreed with Citizens. The court reasoned that the plain language of the household priority provision under MCL 500.3114(1) trumped the employer provided vehicle priority provision under MCL 500.3114(3). Sub-section one states that “When personal protection insurance benefits . . . are payable to or for the benefit of an injured person under his or her own policy and would also be payable under the policy of his or her spouse, relative, or relative’s spouse, the injured person’s insurer shall pay all of the benefits and is not entitled to recoupment from the other insurer.” (Emphasis in original). Given this plain language, the court held that the Progressive policy applied, regardless of the contemplated risk it insured for the truck which was not involved.
What this means for injured persons:
Boiled down to its core, the court held that the auto policy followed the insured person. Therefore, when more than one automobile insurance policy exists in the family household, make sure you submit your no-fault claim to each auto insurer. Failure to do so could prove fatal to your claim under the written notice requirement under MCL 500.3145(1). Thereafter, let the competing auto insurers sort out which company is ultimately liable to pay.
On that note, though, the no-fault law demands that the injured person (and medical service providers) be left out of any priority dispute; instead, one insurer must pay benefits and then seek recoupment from the other insurer, just like Citizens did in this case. If, however, the disputing auto insurers refuse to take responsibility, then the injured person (and medical service providers) should immediately file a lawsuit which will allow them to recover not only the no-fault benefits owed, but also no-fault interest at 12% under MCL 500.3142(3) and no-fault attorney fees under MCL 500.3148(1). In this regard, the Michigan Court of Appeals stated clearly in Regents of U of M v State Farm Mut Auto Ins Co, 250 Mich App 719 (2002), at page 738:
“A claimant who is clearly entitled to no-fault benefits should not be forced to hire an attorney merely because the circumstances of his accident create problems of priority among insurers. Because the only dispute concerned Estes’ domicile, and because there is no dispute that Estes was entitled to no-fault benefits, the trial court’s finding that defendants acted unreasonably was not clearly erroneous. We find no error in the award of attorney fees to plaintiffs.”
What this means for medical service providers:
At intake, make sure you identify every possible auto insurer within the injured person’s household. Then, submit your claim to each auto insurer, demanding payment within 30 days as required under MCL 500.3142(2). Failure to notify all potentially liable auto insurers written notice of your claim will prove fatal under MCL 500.3145(1). Do not rely upon your patient to submit his/her claim and assume you were included. Some patients refuse to cooperate, fearing that their auto insurance rates will increase if they submit a claim. While this is a poor and ill advised position to take, the fact is is that happens frequently. Therefore, medical providers must be proactive and submit their own claims directly.
You can read this Opinion here.
Authored by L. Page Graves.
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Tuesday, January 24th, 2012
A police officer noticed a Pontiac Grand Prix swerving inside its lane on I-75. It was never speeding and it never went outside of the lane markers, but it weaved almost continuously for three miles. The officer pulled the vehicle over, suspecting intoxication. Defendant was the passenger and another man was the driver. The officer asked the driver for his license and registration, but he produced only a Michigan ID card and a rental agreement for the car that did not list the driver or Defendant as the authorized driver. The officer asked the driver to exit the vehicle and they walked behind the car for questioning. After he walked around the car, the officer noticed a white pharmacy bag on the ground outside the vehicle by Defendant’s passenger door, which had not been there before. In the meantime, the driver consented to the officer’s request to search the vehicle. The officer questioned Defendant about the bag, but Defendant insisted the bag did not belong to him and that he did not place the bag outside the car. In the bag were 220 pills totalling 59.02 grams of Oxycodone. Defendant was charged with possession with intent to deliver a controlled substance, MCL 333.7401(2)(a)(iii).
The trial court granted Defendant’s motion to suppress the evidence and dismiss the charge, but the Court of Appeals reversed, finding the stop and search to be constitutional under the Fourth Amendment of the U.S. Constitution and Article 1, § 11 of the Michigan Constitution, even though the bulk of the search focused on the driver, but Defendant was the one who was arrested.
The Fourth Amendment and Article 1, § 11 guarantee a person’s right to be free from unreasonable searches and seizures. When a police officer searches without a warrant, the search is deemed to be unreasonable unless an exception applies. Two common exceptions are an automobile search and consent. If an officer has an articulable and reasonable suspicion that a vehicle or one of its occupants has violated a law, the vehicle can be stopped. The Court of Appeals held that here, the weaving gave the officer a reasonable suspicion that the driver could be intoxicated, giving the officer the right to stop the vehicle. All of the action after that point was then legal. The Court of Appeals stated that when a traffic stop reveals a new set of circumstances, here, the failure to produce a valid license, an officer is justified in extending the detention long enough to resolve the suspicion raised. This is so even if it results in a passenger being arrested, not the driver who caused the suspicion in the first place. As to the bag, one placed outside the car, it is deemed abandoned and there is not expectation of privacy in it, so it can be seized and searched without a warrant. The Court of Appeals reinstated the charges against Defendant.
What This Means For Drivers:
Even if the stop shows that the initial suspicion of a broken law is false, if the stop reveals a new set of circumstances that is reasonably suspicious, the officer can detain longer and inquire further. And this is true even if the focus changes from the driver to the passenger.
You can view the entire opinion here.
Authored by Barbara A. Assendelft
Tags: Automobile, Fourth Amendment, Illegal Search, Questioning, Search, Search Warrant, Seizure, Stop, U.S. Constitution
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Monday, January 23rd, 2012
Defendant and her husband were found in contempt of court for violating a personal protection order (PPO) entered against them by Defendant’s sister-in-law (the “complainant”), who was married to Defendant’s brother. Defendant’s brother had been granted guardianship over Defendant’s 14-year-old son as a result of neglect proceedings involving the boy. On the day in question, Defendant and her husband were in court on a show cause hearing against Defendant’s brother-in-law for his violating a visitation order allowing Defendant visitation with her son. The complainant was present at the courthouse just to show her support to her husband, Defendant’s brother. However, at court a confrontation broke out when Defendant saw the complainant.
The testimony conflicted regarding who started the confrontation. The complainant testified that when Defendant saw her, Defendant started shouting at her and using profanities against her. Defendant testified that at no time did she approach, confront, or use profanities against the complainant. The trial court believed complainant, and found that Defendant had violated the PPO’s provision that she was not to approach or confront the complainant in a public place. On appeal, Defendant claimed that the holder of a PPO should not be able to use it as a sword instead of a shield. In other words, Defendant argued that the holder of a PPO should not be able to interject herself in a place where the defendant would be, and then claim a violation of the PPO if a confrontation develops. The Court of Appeals disagreed with Defendant, holding that the holder of a PPO is under no obligation to behave in a certain way or to avoid certain places. In determining whether there has been a violation of a PPO, the focus is to be only on the individual against whom the PPO is entered, not on the complainant.
What this Means for PPO Holders:
The holder of a Personal Protection Order does not have to worry about avoiding places where the defendant is likely to be. The holder of a PPO does not have to change his or her behavior or patterns. If a person has a PPO against him or her, it is only his or her behavior that is looked at in a contempt proceeding. The focus is solely on the behavior of the defendant, not on whether the complainant somehow precipitated contact.
You can view the entire opinion here.
Authored by Barbara A. Assendelft
Tags: Contempt, Personal Protection Order, PPO, Shield, Sword
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Friday, January 20th, 2012
Plaintiff was at an annual family party at Camp Dearborn, a park run by the County of Oakland. After socialization, the group boarded a hayride. Defendant was the driver of the hayride. Defendant-driver drove through Camp Dearborn along his normal route while weaving and doing figure eights. This was part of the attraction of the hayride; the swerving and weaving made it more exciting than typical hayrides, and the guests were allowed to drink alcohol and throw hay at each other. In this hayride, plaintiff, who was sitting at the edge of the wagon, fell out and sustained serious injury after the driver swerved to the right and then whipped the wheel sharply to the left. She filed suit against the driver of the tractor, alleging that his driving was grossly negligent. An allegation of gross negligence is necessary to avoid the defense of governmental immunity under MCL 691.1407. The Court of Appeals dismissed the plaintiff’s case, holding that the evidence did not show that the driver’s conduct was grossly negligent. The Court of Appeals held that his conduct was not ”so reckless as to demonstrate a substantial lack of concern for whether an injury results”, because he drove the wagon how the guests expected, he had no prior accidents while driving a hayride, and there was no evidence that he was aware of other accidents occuring from driving in this manner. The plaintiff’s case was dismissed.
What This Means For Injured Persons:
Proving gross negligence to avoid governmental immunity is difficult. You must show almost a willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks. You must basically convince the court that, if an objective observer watched the actor, he could reasonably conclude that the actor simply did not care about the safety or welfare of the people in his charge. This is a hard burden. In the case of rides or similar type attractions such as the hayride in this case conducted by a governmental unit, it is important that if you feel the ride is dangerous, you must tell the operator of the ride. It could save your case.
You can read this opinion here.
Authored by Barbara A. Assendelft
Tags: governmental immunity, gross negligence, Hayrides, negligence
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Thursday, January 19th, 2012
Plaintiff was injured when she tripped over chipped tiles at the top of the flight of stairs at her rental apartment and fell down the stairs. The apartment building was owned by the Royal Oak Housing Commission. She filed suit not against the owner, but against the company hired by the owners to maintain the property. Her suit alleged negligence under the common law as well as under the Michigan Housing Law, MCL 125.401, and under a statute which sets forth covenants in leases, MCL 554.139. The Court of Appeals affirmed the dismissal of her case. The Court of Appeals held that the statutes cited did not give her a cause of action because MCL 125.401 sets forth duties of an owner, while she filed suit against the maintenance company. The Court held that 554.139 did not apply, because it imposes covenants, which are contractual in nature, and thus cannot support a negligence action. Finally, the Court of Appeals held that her common-law negligence claim failed because the chipped tiles were open and obvious. The open and obvious doctrine is a defense wherein, if the average user with ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection, recovery is denied. Since plaintiff testified that she was aware of the broken tile and used the stairs anyway, the defense applied. It is important to note that the evidence revealed that the chipped tiles were on only about 25% of the width of the stairs; thus the remaining 75% of the top of the stairs did not have chipped tiles. If the entire width of the top of the stairs was chipped and if that was the only way down, Plaintiff’s negligence claim might have survived.
What This Means For Tenants:
If a tenant is injured by defects in rental premises. the tenant should carefully choose who to file suit against. Here, the tenant’s statutory cause of action was denied because she did not sue the owner of the apartment. She filed suit only against the maintenance company. Further, bring as many causes of action as you can. Here, if the tenant had included a breach of contract action against the landlord, her claim under MCL 554.139 likely would not have been dismissed. Consultation with an attorney before filing suit should guard against inadvertently missing relevant causes of action.that can provide recovery.
You can read this opinion here.
Authored by Barbara A. Assendelft
Tags: defective stairs, landlord and tenant, rental premises, trip and fall
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Thursday, January 19th, 2012
Ever since the changes to Michigan’s drunk driving law in 1999, repeat drunk driving offenders have faced obstacles in getting their licenses back after revocation. The driver had to go through annual review hearings to try to get their license back, provided they qualify. Effective January 1, 2011, however, a new law, the DWI/sobriety court law, significantly changed these revocation hurdles. It added a new section, MCL 257.304, to Michigan’s drunk driving law, which established new privileges, procedures, and corresponding sanctions for repeat offenders. Most significantly, after an initial 45-day suspension, qualifying repeat offenders will be able to obtain restricted driving privileges with a breath-alcohol ignition-interlock device provided they have successfully participated in a sobriety court program.
The new law has a broad definition of what is a “prior offense.” It requires the Secretary of State to issue a restricted license to an individual whose license was restricted, suspended, revoked, or denied because he or she either has (1) two or more convictions of driving while intoxicated (DWI) or visibly impaired under Michigan law, or (2) one conviction under Michigan law for one of those offenses, preceded by one or more convictions for violating a ‘substantially similar’ local ordinance or law of another jurisdiction. A restricted license may then be issued after the individual’s driver’s license has been suspended for 45 days. For this to occur, the judge assigned to a DWI/sobriety court must certify to the Secretary of State that the individual has been enrolled in a DWI/sobriety program and that an approved ignition-interlock device has been installed on his or her vehicle.
The restricted license remains effective until a hearing officer orders an unrestricted license. The hearing officer must then order an unrestricted license when the later of the following events occurs: Court notification to the Secretary of State that the individual has successfully completed the DWI/sobriety program; the completion of the minimum license sanction that would have been imposed. Both must occur.
The DWI/sobriety court law uses incentives to give the driver incentive to timely complete the DWI/sobriety program. For example, the law provides that all required driver responsibility fees assessed by the Secretary of State be held in abeyance while the individual is participating in the program. Further, the individual’s vehicle is exempt from forfeiture or immobilization while they are in the program.
What it means for drivers:
The law provides license sanction parity with last year’s “super drunk” law. Now, “super drunks” and repeat offenders both have a 45-day hard suspension followed by 320 days of restricted driving with an interlocking device. The law is also likely to encourage participation in a DWI/sobriety court by making it more rewarding to repeat offenders. However, one problem is that the new law creates two classes of repeat offenders: those whose convictions occur in jurisdictions using DWI/sobriety courts and those whose convictions occur in jurisdiction without such courts. The offenders unlucky enough to be arrested in the latter will have more harsh driver’s license sanctions.
Authored by: Barbara A. Assendelft
Tags: driver's licenses, Drunk driving, restricted licenses, sanctions
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Wednesday, January 18th, 2012
A man was involved in a motor vehicle accident and suffered severe bodily injuries. The man filed a claim for personal injury damages with the at-fault driver’s auto liability insurer. A settlement was reached for the no-fault statutory minimum coverage of $20,000.00. MCL 500.3009(1). Because the injured man’s damages exceeded the policy limits of the at-fault driver, a second claim was presented to the man’s own auto insurer for Underinsured Motorist Benefits (UIM). The UIM policy language required that its insured first obtain written consent from it to settle any liability claim with another, before making a UIM claim under the policy. This was not done and therefore, the Michigan Court of Appeals upheld the denial of UIM benefits.
What this means for injured persons:
First, this case highlights the importance of making sure your auto policy includes Uninsured and/or Underinsured Motorist Benefits to protect against the risk that you may be hurt by a person who was not insured or only carried the minimum required by law. MCL 500.3009(1). Thus, if you do not have this coverage on your auto policy, consult your insurance agent immediately and obtain adequate coverage.
Secondly, this case highlights the importance of following the rules and steps listed in the policy in order to perfect and protect your potential UM/UIM claim, should one unfortunately arise.
Finally, while this case scenario involved a dispute on when the man knew or should have known he was supposed to get written consent from his own insurer, UM/UIM polices typically also include strict time limitations for when a claim can be made. Therefore, careful attention to the details of the policy is critical. It is best to consult your attorney for further guidance.
You can read this Opinion here.
Authored by L. Page Graves
Posted in Auto Accident, News | No Comments »
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