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 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

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

Several ski resorts in Northern Michigan have already opened and several more have announced their season will begin this weekend.  With that in mind, it is time to re-check and make sure your and your child’s ski or snowboarding helmet fits properly and is not cracked or damaged, necessitating immediate replacement.  A helpful guide indicating when to replace a helmet following common skiing or snowboarding incidents is found here.  And, a helpful video-instruction about properly fitting a ski helmet is found here.  An improperly fitted helmet or a cracked or damaged helmet is, essentially, useless and defeats its purpose of increasing safety from laceration, cracked skull and minor traumatic brain injury.    So please go get properly fitted, hit the slopes and enjoy the season.

Authored by L. Page Graves

The Michigan Court of Appeals has strengthened medical service providers’ rights under the Michigan No-Fault Act.  On October 22, 2015, the court published a recent decision which upheld Covenant Medical Center’s claim against State Farm.  Specifically, Covenant had notified State Farm of its billings and its claim for payment.  Unbeknownst to Covenant, State Farm then negotiated a settlement with the patient.  When Covenant filed its lawsuit to collect, State Farm attempted to avoid liability because the insured patient had released State Farm from any liability.  In rejecting State Farm’s disingenuous ploy to avoid liability, the court relied upon the plain language of the no-fault statute, section 3112, which makes plainly clear that when the insurer has written “notice of the claim of some other person”, the insurer’s liability is not extinguished.  Critical to the court’s holding and application of the statute was the fact that Covenant’s written notice preceded State Farm’s settlement with its insured.  The case is titled Covenant Medical Center v State Farm and can be found here.  For more information about this case and how it can either help or harm medical service providers, please contact us for a free consultation, in that regard.

Authored by L. Page Graves

With the growth and development progressing from Acme, east toward Kalkaska, the MDOT has elected to redesign M-72 to include roundabouts.  While MDOT proclaims roundabouts will decrease accidents and improve safety, a closer reading of its own exhaustive study reveals that the facts are not necessarily conclusive.  In fact, to quote directly from its study, MDOT cautions readers to keep in “mind that these results do not account for regression-to-the-mean, traffic volumes or the decreasing time trend in crashes in Michigan so these results should not be used to make conclusions about the effectiveness of roundabouts in Michigan.”  Further, lack of lane discipline, speeding and unfamiliarity with location were all contributing factors that resulted in roundabout crashes.   Needless to say, the jury is still out on whether roundabouts improve the safety of the general public.  At its core, however, — as always — is driver behavior which is paramount for the safety of us all.

Authored by L. Page Graves

 

There has been a radical change to Michigan’s No-fault Law.  The radical change was announced in the recent decision published by the Michigan Court of Appeals, on September 10, 2015. The radical case is Perkovic v Zurich American Insurance Company, __ Mich App __ (2015).  Since the no-fault act was enacted back in 1973, it has been common and routine industry practice and custom for medical providers, like hospitals, to submit claim information on behalf of the insured patient to open a claim and get medical bills paid.  This rudimentary custom was founded upon the plain and ordinary language of the written notice provision set forth at MCL 500.3145(1) which provides:

“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 herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced. The notice of injury required by this subsection may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefor, or by someone in his behalf. The notice shall give the name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury.” (Emphasis supplied).

In the Perkovic case, Mr. Perckovic was injured in a motor vehicle crash on February 28, 2009.  Within 61 days later, the hospital that provided him care sent to Zurich a copy of its medical bills which identified Mr. Perkovic’s name and address.  The hospital also (as is customary) submitted corresponding medical records which contained the following information (which included the date of the MVA service record when Mr Perckovic was received in ER and treated):

“46 yo male semi truck driver.  R upper back pain after MVC.  States that he was driving down interstate when car in front of him began to spin, he swerved to avoid the car since in semi and ran into a wall hitting front driver side.”

“back sprain, cervical sprain or fracture, chest wall contusion, contusion, head injury, liver injury, myocardial contusion, pneumothorax, splenic injury, sprained or fracture extremity.”

On May 19, 2009, Zurich denied the claim arguing that “‘No injury report on file for this person.'”  Mr. Perckovic filed a lawsuit and Zurich defended, claiming “that no written notice of injury was provided to it within one year” as contemplated by MCL 500.3145(1).  In an extremely radical departure from over 4 decades of industry custom and procedure between medical providers and Michigan auto no-fault insurers, as well as established Michigan No-fault law jurisprudence under MCL 500.3145(1), the Court of Appeals held that the hospital’s claim submission for Mr. Perckovic “did not provide sufficient notice pursuant to MCL 500.3145(1)”.  In reaching its decision, the Court of Appeals reasoned, as follows:

“In this case, however, no letter or written form was sent that would alert the defendant to the possible pendency of a no-fault claim.   Rather, the medical bill and medical records were sent to defendant without any indication or a possible claim.  In fact, according to [the hospital representative], the bill and records were sent for the purpose of obtaining payment.  This notice of injury, which was unrelated to a possible claim for no-fault benefits, did not trigger defendant’s investigative procedures or advise defendant of the need to appropriate funds for settlement.”  (Emphasis supplied).

Going back to the plain language of the statute above, obviously there is nothing in it stating that a “letter” is required.  And respectfully, what is this “letter” that the Court refers to?  Similarly, nothing in the statute indicates that a “written form” is to be used or completed.  And again, respectfully, what is this “written form” that the Court refers to?  As has been common, customary practice, the hospital sent in its claim documentation which the sophisticated Michigan no-fault insurance company has routinely understood and accepted as notice of a claim because, as the plain language of the statute says, notice can be submitted “by someone in his behalf”.  And by the content of the information submitted by the hospital to Zurich, who can objectively state that it was not advised of its insured, Mr., Perckovic “name and address” and the “time, place and nature of his injury.”

The tragic consequence of the decision reached by the Court — and why its decision is so radical — is that Mr. Perckovic ended up being 100% stuck with the hospital bill.  Mr. Perckovic’s insurer, which was timely and fully paid auto-insurance premiums, walked away from the courthouse having to pay absolutely nothing, simply by the radical stroke of the pen by the Court of Appeals.  Parenthetically, notice that this radical change in the law did not comport with the Michigan Constitutional division of government: the law change was not authored by the Legislature and was not signed into law by the Governor.

This extremely radical change in the Michigan No-Fault law now applies to all concerned: the injured, insured person and all treating medical providers.  The Court of Appeals gave no indication or explanation as to what a “letter” or “written form” must look like or conform to.

Injured people and their medical treaters are welcomed to call our law firm to discuss conceptual methods and procedures that may satisfy the notice requirement of MCL 500.3145(1), as contemplated by the Court of Appeals in Perckovic.

Authored by L. Page Graves