Posts

Driving too close behind another and stopping abruptly are factors that may lead to driver liability for personal injury suffered by another. And, when multiple motor vehicles are involved in a scenario which is a factor resulting in a motorcyclist’s injury, liability for no-fault coverage afforded to the motorcyclist may rest with more than one of the involved motor vehicles.

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 law.  MCL 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

/by

You and Your Michigan No-Fault Car Insurance Rights

Michigan consumers are shocked when they learn that their auto insurer is not their advocate but instead is their primary adversary. Despite responsibly paying those costly premiums for mandatory no-fault insurance, injured accident victims are repeatedly dismayed when they learn that their very own no-fault insurer’s/adjuster’s strategic goal in handling their claim is to find (or many times, manufacture) an excuse to deny paying medical bills and lost wages. Michigan consumers need to know what their legal rights are and how to fight back to recover the benefits they paid for, for all those years without having to make a claim.

Your No-Fault Rights and What You Must Do to Protect Them

Introduction

This article 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 article 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 post 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 services 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 attorneys 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, pain 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.

Importantly, your no-fault insurer cannot direct or dictate where, when or why you receive medical care. You should resist any attempt by it or a nurse case manager it assigns to you, to manage your care. And regarding nurse case managers, you can choose your own too and not accept the person “assigned to you”. The assigned case manager typically has one motivation and that is to please the no-fault insurer’s ultimate goal: reduce payments.

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?
A. If injured, immediately seek legal counsel regarding your potential claim for injury, disfigurement and suffering against the other driver.

B. Immediately file an Application for No-Fault Benefits with your insurance company. Failure to do so within 12 months of your automobile accident will prevent you from ever obtaining those benefits that you are entitled to receive.

C. 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 (see below).

Medical Expenses:

A. Inform all medical providers (hospitals, doctors, etc.) of your insurance company name and claim number.
B. Submit copies of all receipts for medical expenses incurred (e.g., prescriptions) to your insurance company.
C. Keep a log or diary of all miles driven to and from medical providers.
D. Request letters from physicians/therapists recommending needed expenditures for rehabilitation devices or equipment.
E. 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.

Wage loss:

A. 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).

Replacement services:

A. Orally or in writing agree to pay family members or friends up to $20.00 dollars a day for help around the home.
B. Diary or log all services performed on your behalf identifying the nature of the service performed and who performed it.
C. Request letters or notes from your doctor(s) who have placed you on general restrictions (e.g., no lifting).

Authored by L. Page Graves

 

/by