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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

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

The Michigan Consumer Protection Act (MCPA), is a statutory cause of action for conduct constituting unfair, unconscionable, or deceptive trade practices. MCL 445.901, et seq.   Under the MCPA, a deceptive trade practice is defined to include “(c) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has sponsorship, approval, status, affiliation, or connection that he or she does not have.”  The MCPA remedies available to the deceived consumer include the recovery of “actual damages” sustained by the person or representative of the class of persons deceived.  MCL 445.911.

Investigations of Volkswagen have revealed that that the manufacturer installed a device that deliberately falsifies emissions tests.  When not activated, the diesel vehicles reportedly emit as much as 40 times more than the United States Clean Air Act allowed level of nitrogen oxides.  The VW models sold in the U.S. that have been found to be implicated include VW Jetta, Beetle and Golf from 2009 through 2015, the Passat from 2014-2015 as well as the Audi A3, model years 2009-2015.

Actual damages sustained by consumers include, but are not limited to, having over-paid for a diesel engine that is less efficient than represented.  Add to that, the anticipated reduced re-sale or trade-in value of the vehicle.  How quickly and in what manner VW responds to these developing consumer complaints will be VW’s biggest test.  VW has created a website allowing consumers to input the Vehicle Identification Number to determine whether a recall has been ordered for the subject vehicle.  The VW website was last updated on Monday, September 28, 2015.

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

 

It is striking to both see first-hand and then also hear a witness defensively testify that he was “driving the posted speed limit”, albeit in poor weather conditions, poor light (e.g., nighttime driving) or even around a curve on a road.  The basic speed law is one that governs speed for the conditions present; the posted speed limit is only for optimum conditions (the driving environment).  Driving for conditions allows a motorist to maintain absolute control.  Failure to drive for conditions can lead to tragic consequences.  It is a simple rule that saves lives.

Authored by L. Page Graves

The posted speed limit applies to perfect driving conditions (e.g., lighting, weather and traffic flow).  It is the maximum speed allowed in that perfect driving context.  When less than optimum conditions are present (e.g., reduced light/vision, wet roads or congested traffic), the basic speed law requires that you reduce your speed so that you can safely stop your vehicle within the assured clear distance ahead of whatever is in front of you (e.g., a car, a pedestrian, etc.).  Regrettably, some drivers ignore this basic rule of the road and drive the posted speed limit (if not exceed it) in poor driving conditions.  Raise your hand if you have been driving in a snow squall and semi-truck has blown past you in the passing lane, kicking up more snow and making driving even more dangerous.  Driving too fast for conditions can lead to dangerous crashes.  Maintain the appropriate speed for conditions present.  It is the law.

 

Authored by L. Page Graves

Since last week’s major storm up in Northern Michigan, tree clean-up is the task at hand for a great many of residents.  Obviously, caution is paramount when operating a chainsaw.  Kickback is the most common and seriously harmful consequence of either inexperienced or careless operation.   Understanding the correct way to operate a chainsaw and avoid kickbacks is relatively straightforward.  If resources permit, it is advisable to hire expert tree service companies to clear fallen trees and debris; there are multiple reputable and local tree service companies here in Northern Michigan permitting you to “keep it local” too.

 

Authored by L. Page Graves

So you and your pals have driven to northern Michigan to play a round of golf at one of its many, beautiful golf courses. You get to the starter shack at the first tee box and the person takes down your assigned golf cart number and then presents to you a “Golf Cart Agreement”. You likely are told it is required that you sign the agreement before you can tee off. Chatter about the course and where the pins are located that day coupled with cart-path-only rules, follow as the signature sheet is placed in front of you to sign. You are consumed with the moment and beauty of the anticipated round; you could care less about the golf cart agreement because you know you will be a responsible person and nothing dramatic will happen. You tee one down the middle of hole number one and off you go. Unbeknownst to you, however, the grounds keeping crew forgot to put a sprinkler drain head-cover back on an irrigation system being worked on that morning. Tall grass grows around the large uncovered hole by the green. You make your put and walk off heading to your golf cart and…..down goes your foot and leg. You hyper-extend your knee and tear your ACL. Golf season is now over. And then the really bad news is revealed: that so-called “Golf Cart Agreement” was less about the golf cart and your responsibility for any damage you may cause to it and more about your having just completely released the golf course of any liability, whatsoever, for its negligence which caused your torn ACL. The dirt literally is in the details. Read any such form that is shoved into your hands while you are pulling out the driver on hole number one. You likely will sign it anyway because you want to play; but just be informed of what it is that you are signing and giving up in the process. For those of you who did not have to sign a “Golf Cart Agreement” or its equivalent and were injured because of the negligence of a golf course or its employees, please contact Smith & Johnson, Attorneys, P.C., for your free consultation about your legal rights.

Authored by L. Page Graves