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The “New” Michigan Assigned Claims Plan for No-fault Benefits

In 2012, the Michigan Legislature passed and Gov. Snyder signed into law, a new Michigan Assigned Claims Plan for No-fault Benefits. The new law modifies the administration of the Michigan Assigned Claims Plan. Formerly, the plan was administered by and through the Secretary of State. Now, under the new law, it is administered through the Michigan Automobile Insurance Placement Facility. The administrative transfer became effective on December 17, 2012. From this day forward, all potential MACP claims shall be submitted to the new MAIPF. You can read more about the MAIPF here. And the Application for No-Fault Benefits under the plan can be found here (and also can be found on the website). For more questions or information regarding the new MAIPF, please contact us directly.

Authored by L. Page Graves

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Temporary Staff Psychiatrist Entitled to Governmental Immunity Even Though He Was Called an Independent Contractor

         Plaintiffs were employees of Caro Regional Center who were attacked by a patient. 

         After being found not guilty by reason of insanity at a criminal trial on another matter, the patient was admitted to Caro  in December 2003.  While at Caro, the patient showed progress and was given a grounds pass which gave him unsupervised access to the grounds at Caro  for 15-minute periods.  On June 22, 2004, the defendant, a locum tenens (i.e., temporary) psychiatrist at Caro, examined the patient so he could give testimony at an upcoming probate court hearing regarding the patient.  That evening, the patient used his grounds pass and disappeared from Caro.  Three days later, he reappeared at the Caro Learning Center nearby, where he  attacked the plaintiffs with a hammer and his fists, severely injuring them.  He was apprehended three days later and was found guilty but mentally ill of assault with intent to commit murder, MCL 750.83.

          In a civil lawsuit against defendant-psychiatrist, the trial court found defendant to be entitled to governmental immunity under MCL 691.1407(2), and thus not liable for the plaintiffs’ injuries.  The plaintiffs appealed, arguing that the psychiatrist was not an employee of Caro.  The Court of Appeals disagreed with the plaintiffs and affirmed the dismissal of the psychiatrist. 

         The Court of Appeals noted that under the Governmental Immunity Act, MCL 691.1407(2), employees of a governmental agency are immune from tort liability  for injuries to persons if: 1) the employee is acting within the scope of his authority; 2) the governmental agency is engaged in a governmental function; and 3) the employee’s actions are not grossly negligent.  Here, the psychiatrist was called an “independent contractor.”  However, this is not dispositive.  Whether he is an employee for purposes of the Act and can be subject to tort liability depends on application of the “economic reality” test.  The following four factors are considered:  1) the governmental unit’s control of the worker’s duties; 2) payment of wages; 3) right to hire, fire, and discipline, and 4)performance of the duties as an integral part of the employer’s business towards the accomplishment of a common goal.   Under this test, the trial court correctly found that the defendant-psychiatrist was an employee of Caro.  The evidence showed that the defendant’s supervisors at Caro had the right to control the defendant’s duties.  They had the right to discipline and fire him.  He was considered part of the staff at Caro.  He was required to abide by the bylaws in place for staff members.  His supervisor testified that his duties were “more or less” the same as other staff psychiatrists.  They could take corrective action against him. 

        Under the totality of the circumstances, the trial court correctly concluded that the defendant was an employee entitled to governmental immunity.

 What This Means For Injured Plaintiffs:  If you are injured by the actions of a governmental worker, it is not the employee’s title that determines whether or not he is immune from suit but rather the four factors in the economic reality test.  This makes it more likely that the employee will be found to be immune.

You can read the entire opinion here.

Authored by Barbara A. Assendelft

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Operator of Hayride Was Not Grossly Negligent So As To Avoid Governmental Immunity

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

 

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