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NASCAR admits that catch-fence system failure is not new. Remarkably, in a moment of candor, Steve O’Donnell, NASCAR’s senior vice president for racing operations, remarked “‘This is not new.'” Viv Bernstein, NY Times, dated February 24, 2013. It truly is not. In 1987, the gravity of this known danger of poorly designed catch-fencing systems was exposed. During the Thursday, May 7, 1987, time-trials for the Indy 500, one of Roger Penske’s race cars crashed into the concrete wall at turn 4, shedding its right front wheel. Hungness, Carl (1987). The 1987 Indianapolis 500 Yearbook. Carl Hungness Publishing (there also exists, actual video footage of this incident with Roger Penske witnessing its occurrence). The wheel assembly careened over the catch fence and into the grandstands. Fortunately – then – no one was seated in the grandstands. Days later, Indy’s luck ran out when Race-car driver, Tony Bettenhausen’s wheel assembly flew over the catch fence and killed Lyle Kurtenbach. Staff writer, Los Angeles Times, May 25, 1987. The height of the crash wall at Indy was 31 inches and the catch fence system was 14 feet. In 1993, the Indianapolis Motor Speedway underwent major renovations and safety improvement. The crash wall height was increased to 42 and the catch fence to 19 feet, 18 inches coupled with increased arcing over and above the racetrack. Despite this history and industry knowledge, Penske Motorsports, Inc. and Michigan International Speedway, did nothing to modify, improve or make safer its catch fencing system. Its crash wall remained at 48 inches and catch fence only at 11 feet. And the consequence of that failure proved horrific when, on July 26, 1998, race car driver Adrian Fernandez crashed into the wall at turn 4, and his car’s wheel assembly careened over the fence into the grandstands, killing three spectators and maiming several others. After this horrible incident, in August of 1998, the Michigan International Speedway hurriedly implemented safety modifications to its fencing system that were readily known and available to the industry. The fence was raised to 17 feet above the well, still shorter than Indy’s improvements. The arcing or overhang was also extended by 4 additional feet. But it appears that these heights still remain inadequate. That is because Daytona’s catch fence purportedly measures 22 feet. Images of the catch fence, however, illustrate that although it is taller than either Indy or Michigan, it does not arc or reach out over the race-track in the manner and design of Indy’s or Michigan’s. Again, these are just lay observations from the available photography when compared to the actual designs of Michigan’s, for example. But clearly, it is a relevant starting point to any investigation into any potential personal injury damage claim brought by an injured fan.

Authored by L. Page Graves

Race car wheel assemblies keep flying over catch fences. For the motor-sports industry, that is neither new nor a freak accident. And with the recent incident at the Daytona 500 last Saturday, with yet another wheel assembly flying over the catch fence system, NASCAR and the motor-sports industry are renewing their historical debate about fan safety and catch-fence systems. It should be noted that despite this unedited footage from ABS News, Daytona President Joie Chitwood, III, said Sunday that he did not know if the wheel went over the fence, or through it. Jim Utter et al, Charlotte Observer, dated February 25, 2013. Respectfully, the ABC footage linked herein dispels NASCAR’s/Daytona’s attempt to shape the public message. According to H.A. “Humpy” Wheeler, former president of Charlotte Motor Speedway, “‘The worst thing that anyone can think about is a wheel going over the fence.'” Utter, supra. The motor-sports industry has been debating with themselves for years about fan safety versus revenues. According to Samuel Gualardo, past president of the American Society of Safety Engineers and referring to simply moving fans away from the track, “‘Obviously it will be a revenue decision by track owners because you’ll be eliminating that set of rows [and] [t]hat’s probably why they haven’t done it.'” Utter, supra. According to Izod IndyCar Series champion Ryan Hunter-Reay, “It’s an industry-wide problem, and one we can fix quickly.'” And further, Reay said “‘We’ve been talking about it for a long time….'” Olson et al, USA Today, February 24, 2013. Echoing Reay’s comments is three-time Indy 500 winner Dario Franchitti, who tweeted “‘it’s time @ indycar @ nascar other sanctioning bodies & promoters work on alternative to catch fencing. There has to be a better solution.'” Nate Ryan, USA Today, February 24, 2013. But as the foregoing historical debate documents, there are better solutions which have been available to the industry for years; time and time again, though, what is getting in the way of those safety improvements is the bottom line to the track owners and the industry.

Smith & Johnson Attorneys, P.C., are experienced in handling race car crash debris litigation. L. Page Graves served as assistant legal counsel and research counsel for one of the families who tragically lost a loved one during the 1998 Michigan International Speedway incident which when, on July 26, 1998, race car driver Adrian Fernandez crashed into the wall at turn 4, and his car’s wheel assembly careened over the fence into the grandstands, killing three spectators and maiming several others. Critical to that successful resolution of the family’s wrongful death claim was counsels’ tireless research and documentation of the motor-sports industry’s actual knowledge of the exact risks posed to its fans and its repetitive, reactionary approach to “fixing the problem” each time a spectator got hurt or killed.

Yesterday, the Michigan Supreme Court did away with the long-held rule of protecting minors and the infirm in no-fault claims.   This legal issue has literally been a political ping-pong match with the balance of the court changing so much since 1999.   Since 1973 — when the no-fault act was enacted — it had always been the rule to protect this class of persons.

In 2006, however, AAA of Michigan got its request granted when the new court created a new rule that no longer protected minors and the infirm.  This directly impacted medical providers because their unpaid claims approaching one year were now at risk.  If not paid or a lawsuit filed, those unpaid claims became barred under no-fault.  Resorting to Medicare or Medicaid or writing off as bad debt were the only remaining options.

The old no-fault law protecting this class of persons was restored in 2010 when the U of M Hospital challenged the new rule.  But now the political ping pong has been hit back in Joseph v ACIA .  Once again, children, the infirm and their medical service providers must adhere to the one-year-back-rule for no-fault claims.

Authored by L. Page Graves

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