The Michigan Court of Appeals issued a published decision affirming the basic rule that an injured claimant’s generic notice of injury constitutes sufficient notice to a liable no-fault insurer.  The case is Dillon v State Farm Mut Auto In Co, ___ Mich App ___ (May 3, 2016)(Docket No. 324902).  When Ms. Dillon was injured in a car crash, her immediate pain symptoms were localized in her low back and left shoulder.  And these were the generic injuries reported to State Farm within one-year of the crash.  MCL 500.3145 requires written notice of a claim for no-fault benefits within one-year of the crash and in that notice, the claimant is to “indicate in ordinary language . . . the . . . nature of his injury.”  After a year had passed, Ms. Dillon began experience symptoms in her left hip and began medical treatment.  State Farm refused to pay arguing it was not notified of this particular body part/injury within one-year, citing MCL 500.3145.  The Michigan Court of Appeals held that “the notice of loss does not need to identify the specific injury.”  Applying the Michigan Supreme Court’s standards of plain text construction, the court referenced Merriam-Webster’s Dictionary which defines the  term “nature” as to be “a kind of class”  as opposed to specifics.  Accordingly, the court reasoned that since Ms. Dillon notified State Farm that she was injured in the crash within one year, her generic notice of injury satisfies statutory notice for no-fault PIP benefits.

Authored by L. Page Graves

Under the General Property Tax Act, an assessor cannot increase the true cash value as a result of expenditures for “normal repairs, replacement, and maintenance” in determining the true cash value of property for assessment purposes until the property is sold.  The law provides that the following repairs are considered normal maintenance if they are not part of a structural addition or completion:

(a) Outside painting.

(b) Repairing or replacing siding, roof, porches, steps, sidewalks, or drives.

(c) Repainting, repairing, or replacing existing masonry.

(d) Replacing awnings.

(e) Adding or replacing gutters and downspouts.

(f) Replacing storm windows or doors.

(g) Insulating or weatherstripping.

(h) Complete rewiring.

(i) Replacing plumbing and light fixtures.

(j) Replacing a furnace with a new furnace of the same type or replacing an oil or gas burner.

(k) Repairing plaster, inside painting, or other redecorating.

(l) New ceiling, wall, or floor surfacing.

(m) Removing partitions to enlarge rooms.

(n) Replacing an automatic hot water heater.

(o) Replacing dated interior woodwork.

If your construction work includes any of the above, the assessor cannot consider it for purposes of assessment.  However, if the scope of your project is outside of those listed above, the assessor may consider the changes and increase the taxable value of your property.  Further, the assessor, in determining a property’s taxable value can add any “additions” to the previous year’s taxable value.  As defined in the Act, “additions” include “new construction,” which in turn is defined as property not in existence on the immediately preceding tax day and not replacement construction. New construction includes the physical addition of equipment or furnishings, subject to the above (a) through (o) list of normal maintenance. For purposes of determining the taxable value of property, the value of new construction is the true cash value of the new construction multiplied by 0.50. “Replacement construction” means construction that replaced property damaged or destroyed by accident or act of God.

Therefore, depending on the nature of what construction activities you ultimately engage, the assessor could take that into account and raise your taxable value.

If you are considering a remodel or renovation project, it is important to know how your taxes may be affected. The real estate attorneys at Smith & Johnson, Attorneys, P.C. stand ready to assist with any real estate tax matters, whether with your local taxing authority or with the State of Michigan Tax Tribunal.

Authored by:  Andrew K. Shotwell

Medical service providers must carefully adhere to the procedures and administrative guidelines set forth in participating provider agreements with primary health insurers.  Failure to do so will prove fatal to any secondary no-fault claim.  That is exactly what happened to a medical provider in a recent ruling issued by the Michigan Court of Appeals, entitled Farm Bureau Gen Ins Co of MI v Blue Cross/Blue Shield, et al, ___ Mich App ___ (2016)(Docket No. 322423, dated January 7, 2016).  In Farm Bureau v Blue Cross, the injured patient had coordinated no-fault coverage with BC/BM, being primary.  She was admitted into a Spectrum rehabilitation care facility.  Spectrum and BC/BM had a participating provider agreement which details the process in which claims are considered, appealed and/or waived, etc.  Per the agreement, Spectrum requested pre-authorization for care and was granted only 14 days of coverage.  Per the agreement, Spectrum was required to appeal the decision if it sought more days of coverage; or, obtain in writing from its patient, that its patient would agree to be financially responsible for charges incurred beyond the 14 days approved by BC/BM.  If it did neither, then the agreement provided further that Spectrum “assumes full financial responsibility for the denied claims.”   Spectrum neither appealed nor sought written acknowledgment from its patient.  And, it continued to treat the patient beyond the 14 days.  Spectrum then billed the patient’s auto no-fault insurer, Farm Bureau for the unpaid charges not otherwise covered by BC/BM.  Farm Bureau paid the claim under protest and filed the instant declaratory action.  The court held that Spectrum assumed liability for the expenses beyond the 14 days approved by BC/BM, per the language of the provider agreement.  Even though the plain language of the BC/BM was all that was necessary to decide this case, the court nevertheless engaged in a no-fault jurisprudence discussion about coordination of coverage under MCL 500.3109a and when a charged is deemed “incurred”, as contemplated by MCL 500.3107(1)(a). Relying on Proudfoot v State Farm Mut Auto Ins Co, 469 Mich 476 (2003), the court reiterated that to “’incur’ means [t]o become liable or subject to, [especially] one’s own actions.  When an insured has no legal responsibility for disputed costs, those expenses are not ‘incurred’ by the insured within the meaning of MCL 500.3107(1)(a) and they are not subject to payment by the no-fault insurer.”  Thus, in addition to the BC/BM provider agreement being controlling, the Court held further that Spectrum’s insured had not incurred charges under MCL 500.3107(1)(a), during the period after the initial 14 days; as such, Farm Bureau was not liable and consequently, was entitled to a refund.

Authored by L. Page Graves

 Jesperson v Auto Club Ins Ass’n, ___ Mich ___ (2016)(Docket No. 150332, dated March 21, 2016).  In Jesperson, the injured person never submitted to the liable no-fault insurer, written notice of his no-fault PIP claim.  Notwithstanding the foregoing, more than a year after the accident, ACIA began paying PIP benefits for Jesperson and then after a period of time, terminated his benefits.  Jesperson filed suit and ACIA (a/k/a AAA Michigan) defended the claim per MCL 500.3145(1), citing the introductory sentence that says “An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided here has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment or personal protection benefits for the injury.”  ACIA reasoned that because Jesperson never filed written notice within 1 year of his injury, his claim was barred.  In a unanimous opinion authored by Justice McCormick, the Court disagreed with ACIA’s interpretation of the statute, reasoning that the article “or” chosen by the Legislature modified the sentence into two (2) independent exceptions to the general rule.  An action may be brought if (1) the claimant files written notice within a year (a/k/a the “notice” exception); or (2) if the insurer pays a PIP benefit at any time before the action was commenced (a/k/a the “payment” exception).  PIP benefits have been ordered to be restored to Mr. Jesperson.

Authored by L. Page Graves

The Michigan Court of Appeals recently published a case that holds that a person who is injured while occupying an uninsured vehicle that is not operable may recover no-fault PIP benefits.  The case is Shinn v State of Michigan Assigned Claims Facility, ___ Mich App ___ (Docket No. 324227, dated March 29, 2016).  In Shinn, the injured plaintiff was occupying her parked motor vehicle when it was struck by another vehicle.  Ms. Shinn had parked her motor vehicle on the street in front of her house.  The car was inoperable and had not been used for a period of time.  Because of this fact, Ms. Shinn did not continue to maintain no-fault insurance on the vehicle.  After she got hurt, Ms. Shinn applied for no-fault PIP benefits through the Secretary of State, Michigan Assigned Claims Plan, per MCL 500.3171, et seq.  Under the no-fault act, the assigned claims plan is the insurer of last resort when no other applicable insurer exists but the injured person is otherwise eligible for no-fault benefits having been injured by a motor vehicle.  In this case, Ms. Shinn was injured by virtue of being rear-ended by a moving motor vehicle.  The MACP assigned Ms. Shinn’s no-fault PIP claim to Farmers Insurance Exchange which denied the claim citing MCL 500.3113(b) as its defense, arguing that Ms. Shinn was occupying an uninsured motor vehicle that she owned, that was involved in the accident and which was uninsured at the time.  Ms. Shinn challenged Farmer’s denial by arguing that the no-fault act only mandates insurance for vehicles that are driven or moved on a highway.  That is exactly what MCL 500.3101(1) says.  Ms. Shinn argued further that the statutory bar under MCL 500.3113(b) only seeks to preclude no-fault benefits to an owner operating an uninsured vehicle on the highway.  The Court of Appeals agreed.  PIP benefits have been ordered to be restored to Ms. Shinn as an eligible no-fault PIP claimant.  This case is now binding law.

Authored by L. Page Graves

By L. Page Graves, Smith & Johnson, Attorneys, P.C.

Introduction

This brochure 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 brochure 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 brochure 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 assistance 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 attorney 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 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. This includes services provided by a Certified Nurse Case Manager of your own choosing; if your insurance company assigns a case manager, you have the right to discharge that individual and select your own, instead.

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?

  1. If injured, immediately seek legal counsel regarding your potential claim for injury, disfigurement and suffering against the other driver.
  2. Immediately file an Application for No-Fault Benefits with your insurance company. Failure to do so within 12 months of your automobile accident will forever bar your rights to collect benefits.
  3. 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. Inform all medical providers (hospitals, doctors, etc.) of your insurance company name and claim number. Keep a log or diary of all miles driven to and from medical providers. Request letters from physicians/therapists recommending needed expenditures for rehabilitation devices or equipment. 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. 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). Orally or in writing agree to pay family members or friends up to $20.00 dollars a day for help around the home. Diary or log all services performed on your behalf identifying the nature of the service performed and who performed it. And, request letters or notes from your doctor(s) who have placed you on general restrictions (e.g., no lifting).

On February 9, 2016, the Michigan Court of Appeals issued a Published Opinion that restricts certain reimbursements for chiropractic care under the no-fault act.  The case is Measel v Auto Club Ins Co.  The basic facts are that Ms. Measal was injured (neck, upper back and arm) in a motor vehicle crash.  As part of her medical treatment, she received ultrasound therapy (neck and upper back) and massage therapy (arm) from a chiropractor’s office.  AAA of Michigan refused to pay for the care arguing that neither modality of service was reimbursable under the no-fault act; this lawsuit followed.  Per MCL 500.3107b(b), chiropractic care is reimbursable provided the nature and extent of the services provided “was included in the definition of practice of chiropractic under” MCL 333.16401, as of January 1, 2009.  In short and analyzing the definitions of the statute, on their own plain terms, the Court of Appeals concluded that, generally, ultrasound therapy and massage therapy “fell within the current definition of ‘practice of chiropractic’ under MCL 333.16401” and therefore, held “each of these services is ‘[a] practice of chiropractic service’ for purposes of MCL 500.3107b(b).”  But that holding was not the end of the Court’s review and analysis.  It then considered AAA’s alternative argument that because an assistant and not the actual chiropractor provided the service, the care was rendered unlawfully and thus, excluded from no-fault reimbursement, regardless.  Turning to the Public Health Code and its definition of “supervision” under MCL 333.16215 , the Court concluded further that the care was lawfully rendered under the supervision of the chiropractor and thus, not barred under the no-fault act.  But that holding, also, was not the end of the Court’s review and analysis.  Finally, the Court turned to the testimony and records of the chiropractor who stated/documented that when performing the ultrasound and massage therapy on Ms. Measal, her entire neck and upper back and “‘whole arm ‘” were treated.  While ultrasound and massage therapy are, generally , reimbursable under the no-fault act, in this case, they were deemed not reimbursable because, as the Court of Appeals reasoned, “they involved treatment to areas other than Measel’s spine.”  The Court reached its conclusion by relying on an old case, Hoffman v Auto Club Ins Ass’n, 211 Mich App 55 (1995), which basically held that chiropractic care was limited to treating the “spine” only.  Because Ms. Measal received ultrasound and massage therapy to not only her spine, but to her connective tissues and “whole arm”, the Court concluded that the chiropractor rendered care beyond the spine and thus, outside the definition “‘practice of chiropractic’ under MCL 333.16401.” (And “Yes,” you read that correctly in case you are scratching your head right now.).  The resulting consequence of this opinion is that even though Ms. Measal faithfully paid auto insurance premiums for the rare chance she may get hurt in an auto accident and require medical care, her own insurer turned against her and fought to deny payment and actually succeeded leaving Ms. Measal personally liable and in debt for the chiropractic expenses.  (And “Yes,” you read that correctly, too, in case you are scratching your head again right now.).

Authored by L. Page Graves

The Michigan Legislature is, again, debating a proposal to raise the speed limits for state and county roadways.  The package of bills (HB 4423  thru 4427) have been passed by the House Transportation Committee (Chaired by Republican, Peter Pettalia, District 106) and will now be considered and debated by the full House.  A comprehensive legislative analysis of the bills and “the 85th Percentile” rationale by the House Fiscal Agency can be found here.  Increasing the speed limit raises safety questions for Michigan motorists.  Political alliances are forming for and against the proposal; one partisan hypothesis by the Mackinaw Center for Public Policy (in favor of the bills) cynically charges that those who oppose the bills — citing safety concerns  — are actually, just privately motivated by financial loss if the bills are implemented.  Meanwhile, the MDOT is on record confirming that its studies factually prove that higher speeds lead to more serious accidents.  We will continue to monitor and report about the status of this important legislation that will impact us all.

Authored by L. Page Graves

Winter has finally arrived with piles of fresh powder.  And for snowmobilers across the State of Michigan, the trails of northern Michigan are increasingly becoming more populated.  In Michigan, it is illegal to operate a snowmobile with a blood alcohol level equal or greater than .08.  The newly revised law took effect on December 30, 2014.  And while common sense dictates caution and due care, just like driving a car, there is no excuse for operating a snowmobile while under the intoxicating influence of alcohol (or controlled substances). Regrettably for all, a few people still recklessly use poor judgment and drink and ride snowmobiles while drunk.  And sadly, the tragic consequence for doing so can be fatal.  Sadly still, stories like this are endless and that is why snowmobiling publications and associations across the nation work tirelessly to promote safety and discourage drunk snowmobiling.  You can do your part by leading and encouraging others to do the same.  Now go enjoy the trails!

Authored by L. Page Graves

It may seem obvious.  It may seem an unnecessary public service caution to express.  Especially for us northern Michiganders.  But for whatever the reason, once winter returns the local news is ripe with car crashes occurring in our area, most often because a driver was driving too fast for conditions.  The posted speed limit is for optimum road driving conditions.  It is not the lawful and prudent speed in less than optimum conditions.  Winter road conditions mandate slowing down.  This is commonly known and referred to as “the basic speed law” which we are all taught in driver’s education.

Authored by L. Page Graves