Facts & Ruling by Court:

A man was catastrophically injured in a car accident and was taken to the Detroit Medical Center for care.  The patient’s medical expenses were covered by the No-Fault law.  Before the patient was discharged and before the DMC issued an itemization of charges to the patient’s no-fault insurer, the patient’s lawyer claimed an attorney’s charging  lien (MCL 500.3148) against the charges incurred arguing that he facilitated in procuring coverage and payment.   The DMC refused to honor the lien arguing, in part, that there was no attorney-client relationship between it and the patient’s attorney.  The Michigan Supreme Court ruled that the DMC was not liable to pay the patient’s attorney fee.  That said, the Court was silent about whether the attorney fee lien was validly asserted against the DMC’s charges recovered; ducking to answer this pressing question, the Court instead held that the DMC could pursue the balance of its charges directly against the patient.

What this case means for injured persons and medical service providers:

  1. It reaffirms medical provider’s longstanding position that the relationship between the patient and provider is one of creditor (provider) and debtor (patient).  Thus, regrettably, it seemingly pits providers against patients instead of the liable auto no-fault insurance company.
  2. The Court held that no common fund was created which seemingly overrules Aetna Cas & Surety Co , 116 Mich App 630 (1982), which has the effect of undercutting the entire basis that attorneys have relied upon in enforcing a lien against the funds recovered.
  3. Regarding an attorney-client relationship between an attorney and a provider, the Court does say that there must be some kind of explicit waiver or “unequivocal acquiescence.”  This will like spur more litigation.  At worst, however, medical providers can argue that it reaffirms the meaning of ethics opinion C-226.  On that note, it is incumbent that medical providers be proactive when there is attorney contact: send the form letter making clear that there is no attorney-client relationship and they are not authorized to pursue the provider’s charges.
  4. The ultimate quandary this Order creates is how does the medical provider now collect its bill that the attorney has retained?  The Order does not contain any remand language on procedure.  These important procedural questions remain unanswered.

Your can read the Supreme Court Opinion here.  Your can read the Court of Appeals Opinion, that led to this decision by the Supreme Court, here.

Authored by L. Page Graves

Facts & Ruling by Court:

Three cars were traveling south on M-37 approaching a curve in the roadway.  Heading northbound was a motorcyclist.  The first of the three cars was looking for wood.  It is here where testimony of several witnesses differed on what actually occurred next: the driver of the first car says he slowed and pulled completely off the road; others said he stopped abruptly and straddled the fog line before getting off the travel lane.  The second vehicle says she slowed and that there was no way she could pass the first car and therefore, she either came to a complete stop or was almost stopped; the testimony was disputed whether she was straddling the fog line.  The third motorist came around the curve to see the two cars ahead as described.  He could not go left or around the second car because he thought she was in the travel lane; he therefore swerved over the center line at the same time the motorcyclist was rounding the corner in the opposite direction.  The car struck the motorcyclist who was killed.

The estate for the deceased motorcyclist sued the three motor vehicles for liability damages suffered by the family’s loss of their loved one.  The third motorist who actually crossed the center line and struck the motorcyclist settled out of court.  The remaining two motorists (one and two in scenario) contested their role as being a factor in this occurrence.  The Court of Appeals agreed with the estate that a jury must decide whether the actions of one or both of the two motorists also played a role in causing the accident.  The Motor Vehicle Code requires that motorists not travel too close behind another so as to be able to stop safely within the assured clear distance ahead.  This is commonly referred to as the basic speed lawMCL 257.627(1).  A motorist also may not stop or park his or her motor vehicle in a travel lane when it is possible to pull completely off the travel lane.  MCL 257.672(1).  Finally, the common law requires every person to exercise ordinary care when engaged in any undertaking so as to not endanger others.

What this means for injured persons.

As to liability for personal injury damages claims, this case illustrates that multiple liability policies may be applicable.  Do not accept an insurance carrier’s denial of liability because it is not the final arbiter of your claim; instead, a jury of your peers makes that decision for you.

Even though this case did not discuss the application of no-fault benefits, it nevertheless does illustrate that more than one auto no-fault insurer may be liable to pay the motorcyclist’s no-fault claim under MCL 500.3114(5).  These benefits include medical bills, wage loss, replacement services and if necessary, funeral expenses and survivor’s loss benefits.  The no-fault statute only requires that a motor vehicle be “involved” in the incident with a motorcycle; not that it actually comes into physical contact with the motorcyclist.    MCL 500.3114(5).  Therefore, when factual scenarios illustrate that more than one motor vehicle may be involved, the motorcyclist or his/her estate must apply for no-fault benefits with all of the involved motor vehicle insurers.  One will accept responsibility and pursue recoupment from the others.  Failure to notify all potentially liable insurers in the same order of priority could prove detrimental and lead to only a partial recovery of no-fault benefits.  MCL 500.3145.

What this means for medical service providers.

This case illustrates that when collecting an injured motorcyclist’s charges incurred for care, medical providers must submit their claims to all involved motor vehicle insurers involved in the motorcycle accident.  Failure to do so may be partially fatal to recovering fully, the charges owed.  MCL 500.3145.

You can read this Opinion here.

Authored by L. Page Graves

An 18 year old moved out of his family home and into a friend’s home to attend school in another town.  The son, however, kept his family home address on his driver’s license and provided his school and a part-time employer with it as opposed to the friend’s.  His checking account also kept his home address.  He maintained possessions in a bedroom at his family’s home.  Often, he would return home during breaks, catch up with his family, sleep in his bedroom, eat with his family and clean his laundry before going back to school.  He was allowed to drive the family cars and he was listed as a driver on the family auto policy.  His parents provided clothing, food, a cell phone and other maintenance items including cash.  He was maintained on his mother’s health insurance through her employer because she represented he still lived with the family. Finally, the son intended to return to the family home after school concluded.

While away at school, the son borrowed his friend’s car and was involved in a motor vehicle accident and suffered bodily injuries requiring medical care.  The family auto insurance and the friend’s auto insurance each denied liability to pay the injured son’s medical bills pointing the liability finger at each other instead.  Under the no-fault law, one is covered by family auto insurance provide s/he is considered “domiciled” in the family household.  MCL 500.3114(1).  The Court of Appeals held that the son was domiciled in the family home, thus holding the family auto insurer liable to pay his medical bills.  The court reasoned that while young adults who transition from parental homes to independent living arrangements pose special problems in determining domicile, children studying abroad who clearly have not severed ties to the family household such as this case, remain legally domiciled in the family home.

What this means for injured persons:

Frankly, the outcome really does not matter for the injured person because either way, s/he is going to be covered by no-fault insurance.  If the facts were tilted in the opposite where a return to home or fewer ties existed, then the injured son would have been covered by the friend’s auto insurance.  MCL 500.3114(4).  What this case importantly illustrates, however, is the correct decision by the injured person to timely file a lawsuit against both insurance companies to protect his rights under the no-fault law.  Failure to file suit within one year [MLC 500.3145] and/or to name both insurers could have been fatal to his claim.   Has he not done either, the medical bills could have become his legal responsibility.

Thus, always submit your claims to all potential auto no-fault insurers in the chain of priority under MCL 500.3114 and/or MCL 500.3115.  The general rule is that one of the insurers will accept responsibility and then settle its dispute with the other; regrettably, more often than not, no-fault insurers do not follow the law hoping instead that the injured person will not learn that if s/he does nothing about it within one year, the claim is lost.  MCL 500.3145.

Another recommendation to follow is that when two or more auto insurers are disputing liability, the injured person should file a claim with the Michigan Assigned Claims Facility [MCL 500.3172].  The MACF, by law, will literally randomly assign the claim to a third auto insurer which must pay the benefits and seek recoupment from the other insurers who are later determined to be legally liable.  Failure to timely submit a claim to the MACF within the one-year rule [MCL 500.3145] is likewise fatal to that claim, too.

What this means for medical service providers:

This case illustrates is that medical providers must continue to be diligent on intake and discover the identity of all potential auto insurers within the chain of priority [MCL500.3114 and MCL 500.3115] and then submit the claim to them all.  And where the potential insurers refuse responsibility, the provider must file its own claim with the MACF, too.  Finally, the one-year time limitation [MCL 500.3145] applies to medical providers too and therefore, they must be equally cognoscente of this fact and keep watch.  Medical providers cannot rely on patients to take action on his/her own; often they do not and ignore repeated efforts at collection.  Therefore, providers must be pro-active and pursue their claim directly against the auto insurers.

Injured people and medical providers can obtain an application to file a claim with the MACF here.

And, you can read the Opinion that provided the back-drop for this discussion here.

Authored by L. Page Graves

Auto no-fault insurance no longer applies to process of closing your car door

Facts & Ruling by Court:

An adult was placing personal items into her motor vehicle which was parked.  She had reached into the passenger side of the vehicle with its door open.  In one fluid motion, she stood back up to regain her upright balance and stepped away from the car while also shutting the door with her hand.  It was at this point that she slipped and fell on a patch of ice beneath her feet and suffered bodily injury requiring medical care.  The no-fault law provides coverage when a person is “entering” or “alighting” from a parked motor vehicle [MCL 500.3106(1)(c)].  The Michigan Supreme Court ruled that the injured person was not “alighting” from her motor vehicle because, it reasoned, she was in no way reliant upon the vehicle itself to maintain her balance.  The Court said she had already alighted and that closing a car door is not part of the alighting process.


What this means for injured persons:


This is new law created by the Court.  Closing the door used to be considered a part of the alighting process since the no-fault act was enacted in 1973.  Now it is not.  Therefore, in fact patterns identical to this case, injured persons are no longer covered by their auto no-fault insurance which they must purchase as mandated by law.  Instead, coverage for their medical care falls to any other accident or health coverage applicable (e.g., BC/BSM, Medicare, Medicaid, etc.) or private pay.


What this means for Medical Service Providers:


In fact patterns identical to this case, medical providers can no longer pursue auto no-fault coverage in cases just like this.  Instead, they must submit their claims to the patient’s applicable health coverage.


You can read this Opinion here.

 Authored by L. Page Graves


Facts & Ruling by Court:


A minor riding a school bus suffered bodily injuries when the school bus swiped a temporarily stopped city garbage truck that pulled back into the travel lane while the school bus was passing.  The Michigan Court of Appeals held that even if the garbage truck was temporarily stopped, that fact did not shield the city from liability for the minor’s injuries under governmental immunity.  The truck was still in “operation” as contemplated by the law [MCL 691.1405] because temporarily stopping is carrying out the garbage truck’s designed and intended function and purpose.


What this means for accident victims:


This is good because the court followed existing law which holds governmental bodies liable for personal injury caused by the negligent operation of governmentally owned vehicles.


What this means for Medical Service Providers:


This case does not change or affect a medical provider’s independent claim for no-fault insurance to cover the injured person’s incurred charges for medical care.  The child was in the bus which was operating.  The bus could have hit any standing object and no-fault coverage would apply.  The no-fault rules of priority apply [MCL 500.3114]: submit claim to the child’s household family auto coverage; if there is no family auto coverage in the household, then submit claim to the city’s auto coverage.


You can read the Opinion here.

Authored by L. Page Graves

In 2010, Michigan’s Court of Appeals issued a published opinion on an important legal issue facing a number of our healthcare provider clients. The issue on appeal dealt with defining what are “usual and customary charges” for St. Joseph Regional Medical Center. At the trial court level, defendant was a non-profit corporation that owns and operates hospitals including the St. Joseph Regional Medical Center. In December of 2005, plaintiff Holland was admitted to this hospital for medical care, in particular treatment of a kidney stone. At the time plaintiff was uninsured. She signed the agreement with the hospital when she promised to pay “for all services rendered to me at the medical center’s usual and customary charges”.

Click to read the rest in our Medical Services section.

Congressman Dave Camp represents the people of the 4th Congressional District of Michigan, which spans from Owosso to Greenville and northward to Traverse City and the Leelanau peninsula. Camp is the top Republican on the Ways and Means Committee, which is one of the oldest and most powerful committees in the U.S. House of Representatives.

In his leadership role, Camp is one of the most influential policymakers in Washington, DC, helping to set the nation’s economic, health care and social welfare policies. His committee has sole jurisdiction over tax policy and oversees tariff and trade laws, Medicare, Social Security, and welfare and unemployment programs.

Representative Camp contacted our office to make sure we and our clients were aware of the many Rural Development Loan and Grant programs that were available to folks throughout Michigan. These loan and grant programs are available to families, farms, businesses, non profits, and public bodies like municipal and county governments.

The Development Programs include:

1. A Housing Program with available funds to repair, improve, winterize, construct, or purchase homes.

2. A Business and Cooperative Development Program with funding for acquisition, start-up and expansion. There are also monies available to provide economic planning for rural communities, technical assistance for rural entrepreneurs and economics development officials, as well as land acquisitions and construction of new businesses and community development projects.  Funding for project costs for renewable energy and efficiency projects such as wind, solar, biomass, geothermal and other renewable energy sources is also available.

3. Community Programs (Utilities and Community Facilities) with loans and grants for waste and water disposal, waste and water pre-development, solid waste management and the construction, equipment purchase and operation of facilities for fire and rescue.

4. Telecommunication Programs to assist with funding of electric and telecommunication programs for non-profits, cooperative associations and public bodies, as well as development and deployment of distance learning, telemedicine and broadband systems.

At Smith & Johnson, we are uniquely positioned to assist governmental entities, non profits, businesses and individuals who are looking to take advantage of the loan and grant opportunities made available through the hard work by Representative Camp.

Here’s  video of USDA Under Secretary of rural Development Dallas Tonsager discussing some of the challenges and opportunities facing the rural communities on a go forward.

Feel free to contact Louis Smith at 231.946.0700 or lsmith@smith-johnson.com with any questions or concerns about these programs.

Everyone knows that no matter where you live, you are required by law to have car insurance. Michigan is no exception to this. Also, Michigan is a no-fault auto insurance state. In Michigan, your no-fault insurance pays all your medical bills in the event that you are injured in an auto accident. So, if you have the minimum required no-fault insurance you have all the insurance you need, right?

Actually, wrong, for a number of reasons. Basic no-fault insurance doesn’t pay to have your car repaired. Nor does it pay if your car is stolen. To cover those costs you will need collision and comprehensive insurance. But beyond those situations you should seriously think about getting uninsured/underinsured motorist coverage (UM/UIM).

Here are some reasons why:

While no-fault insurance covers your medical costs and lost wages without regard to who is at fault, there are some situations in which personal injury claims against the at fault driver are allowed. Suits are permitted in accidents in which there have been a death or severe bodily injury or permanent disfigurement. Essentially, in these cases, the injured party will be allowed to sue to recover pain and suffering damages from the person at fault.

This is fine, as far as it goes, but what happens in the event that the at fault driver is either uninsured, or has insurance with very minimal coverage? The answer is that the injured party gets little or no recovery. UM/UIM insurance bridges any gap between what an injured party is entitled to and the limits of the at fault party’s insurance coverage.

Assume that you are severely injured in an auto accident. Assume further, that a jury finds you are entitled to $100,000 of compensation for pain and suffering. If the driver has only $20,000 in coverage [the minimum required here in Michigan], you will lose any amounts above that figure. If you had $100,000 or more worth of UM/UIM insurance, you would receive the entire sum awarded to you by the jury.

Essentially, underinsured and uninsured motorist coverages are the only coverages that cover you for bodily injury if you are injured, maimed or killed by another driver’s negligence. You may have purchased an expensive policy with $500,000 limits on bodily injury, but, that is the money that your company pays to someone that YOU hurt when YOU cause an accident. It doesn’t help you one bit when someone runs a stop sign and injures you.

The only way to be fully protected in case of an accident is to purchase and maintain underinsured and uninsured motorist coverage. Check with your agent right now to make sure that you have the coverage in place to protect you and your family.

Michigan consumers are shocked when they learn that their auto insurer is not their advocate but instead is their primary adversary. Despite responsibly paying those costly premiums for mandatory no-fault insurance, injured accident victims are repeatedly dismayed when they learn that their very own no-fault insurer’s/adjuster’s strategic goal in handling their claim is to find (or many times, manufacture) an excuse to deny paying medical bills and lost wages. Michigan consumers need to know what their legal rights are and how to fight back to recover the benefits they paid for, for all those years without having to make a claim.

Your No-Fault Rights and What You Must Do to Protect Them


This article provides you a general understanding of your rights under the Michigan No-Fault Insurance Law. It also provides you helpful suggestions to protect your potential benefit claims. This article is not all-inclusive because there are several exceptions and exclusions to No-Fault benefits which may be applicable to your claim or case; therefore, you should not rely on this post as legal advice.
Your Legal Rights
When you are involved in an automobile accident, you are entitled to certain benefits under the Michigan No-Fault Insurance law, regardless of fault. Your basic no-fault benefits potentially available to you include coverage for your medical expenses, wage loss, household services and survivor’s loss.

Your auto insurance company is required to pay these benefits to you within 30 days from when it receives reasonable proof of your claim, e.g., copies of your medical records validating your injury and temporary disability from work. If your insurance company does not pay your benefits after 30 days, it is also required to pay you 12% interest per annum as to each claim. If your auto insurer unreasonably denies your claim, you may also be able to recover reasonable attorneys fees.

Also recognize that because you were injured, you may have a separate legal claim against the at-fault driver, the owner of the vehicle involved and/or your own insurance company (if the at-fault driver was not insured) for fair compensation for your injury, disfigurement, pain and suffering.
What Should You Do If Your Auto Insurance Company Does Not Pay or
Denies Your Claim?

You must file a lawsuit within 12 months from the date that you incurred the particular expense not paid or denied; otherwise, you will lose all rights to be reimbursed for that particular expense. While you have 12 months to file a lawsuit, it is advisable to seek legal representation as soon as you are experiencing difficulty with your auto insurance company so that your lawsuit/claim is properly documented and preserved.

Your No-Fault Benefits

Medical expenses: all reasonable charges for products, services and accommodations reasonably necessary for your care, recovery or rehabilitation for injuries caused by the auto accident. These benefits are available to you for as long as you live. Common examples include hospital care, doctor visits, physical therapy, and prescriptions and family provided attendant care; related expenses may also include mileage to and from the medical care providers or handicapper modifications to your home and/or vehicle.

Importantly, your no-fault insurer cannot direct or dictate where, when or why you receive medical care. You should resist any attempt by it or a nurse case manager it assigns to you, to manage your care. And regarding nurse case managers, you can choose your own too and not accept the person “assigned to you”. The assigned case manager typically has one motivation and that is to please the no-fault insurer’s ultimate goal: reduce payments.

Wage loss: you are entitled to a minimum of 85% of your lost wages for time off due to your injuries caused by the auto accident. This benefit is available to you for up to 3 years from the date of the accident but is subject to a maximum monthly benefit, adjusted every year by the Michigan Insurance Bureau.

Replacement services: you are entitled up to $20.00 dollars a day for up to 3 years from the date of the accident, for reasonably incurred expenses for ordinary services performed by family or friends, that you traditionally performed but now cannot because of your injuries. Examples of such services include, but are not limited to, ordinary household tasks like mowing the lawn, cleaning, laundry, etc.

Survivor’s loss: the dependents (spouse and children) of a deceased individual who is killed in an automobile accident are entitled to a survivor=s loss benefit for up to 3 years from the date of the accident, subject to the same maximum monthly benefit formula applied to wage loss.
Coordinated Benefits & Setoffs
If you have other health or accident coverage through you employer or spouse, you may have purchased coordinated auto no-fault coverage for a lesser premium. If so, then your health coverage is primary and your auto coverage only pays for expense not covered by your primary health coverage.

Whether you have purchased coordinated no-fault coverage, your auto insurer is able to reduce your benefits that are available to you under state of federal law. A critical exception is that neither Medicare nor Medicaid is responsible for medical expenses when no-fault coverage is available. In that instance, no-fault is always primary.
What Should You Do?
A. If injured, immediately seek legal counsel regarding your potential claim for injury, disfigurement and suffering against the other driver.

B. Immediately file an Application for No-Fault Benefits with your insurance company. Failure to do so within 12 months of your automobile accident will prevent you from ever obtaining those benefits that you are entitled to receive.

C. Monthly, submit a claim letter for reimbursement of medical expenses, wage loss and replacement services. Always include your name, claim number and date of the accident. Always submit, if available, copies of your receipts, work releases or notes from your doctors or your employer, and summaries of household jobs done on your behalf (see below).

Medical Expenses:

A. Inform all medical providers (hospitals, doctors, etc.) of your insurance company name and claim number.
B. Submit copies of all receipts for medical expenses incurred (e.g., prescriptions) to your insurance company.
C. Keep a log or diary of all miles driven to and from medical providers.
D. Request letters from physicians/therapists recommending needed expenditures for rehabilitation devices or equipment.
E. If requested to submit to an independent medical exam set up by your insurance company, take a family member or friend with you and time the duration of the entire exam.

Wage loss:

A. Request letters or notes from your doctor(s) who have placed you on work restrictions with the applicable dates; diary or log each and every day missed from work (if an hourly employee, calculate hours for potential overtime loss).

Replacement services:

A. Orally or in writing agree to pay family members or friends up to $20.00 dollars a day for help around the home.
B. Diary or log all services performed on your behalf identifying the nature of the service performed and who performed it.
C. Request letters or notes from your doctor(s) who have placed you on general restrictions (e.g., no lifting).

Authored by L. Page Graves