Eric's Journal

On Sunday, the Michigan Supreme Court issued a major decision that benefits all Michigan motorists and taxpayers. In a hotly contested 4-3 decision, the Court issued McCormick v. Larry Carrier and Allied Automobile Group, which overturns the infamous 2004 Kreiner v. Fischer decision previously issued by the Court.

Car, truck and motorcycle accident victims can rejoice. For the past six years, thousands of innocent accident victims, many of them hurt by drunk drivers, have not been able to have their day in court because of the Kreiner decision. As a result of McCormick, accident victims will be able to obtain pain and suffering money damages for car accidents that were never their fault.

In McCormick, Mr. McCormick sustained a severe fracture to his ankle when his leg was run over by a truck. He required two operations to repair his shattered ankle. He was off work for 19 months and when he returned, was not able to resume his normal job duties. Medical testimony established that his injury had caused the onset of degenerative arthritis in his ankle joint, which is only bound to get worse over time. He testified at his deposition that his life was “painful, but normal and was eventually able to resume all of his pre-accident activities.

Using Kreiner as the standard, the trial court threw Mr. McCormick’s case out of court, ruling that because the entire course and trajectory of his life was not affected, he was not entitled to any compensation. Last year, the Michigan Supreme Court decided to review the Kreiner decision, and this week overturned its earlier ruling.

The Kreiner decision was a tragedy. Under Kreiner, an injured person had to demonstrate that his or her entire life was permanently affected by the car accident. If a person had surgery, worked hard during physical therapy to recover and returned to work within a couple of months, too bad. Your life was not permanently affected because you were able to return to your pre-accident life, and under the law, you were not entitled to any compensation.

No state in this country had such a draconian standard. If a person was injured in Ohio, Hawaii or any other state, that person would have been entitled to a recovery. But not in Michigan.

The Michigan Legislature never intended such a result when it crafted MCL 500.3135 and Michigan motor vehicle law in general. No where in any Michigan statute does it state a plaintiff must have permanent injuries, or a person’s entire course and trajectory of life must be affected to recover compensation when injured in an auto accident.

Kreiner was pure activist judge-made law. In deciding McCormick the way it did, the Michigan Supreme Court is returning to the original intent of our state’s lawmakers.

Sunday was a great day for justice in Michigan and for motorists throughout this state.

The Michigan Supreme Court issued it’s opinion in the closely watched Woodman v. Kera case. It was a much needed victory for accident victims. The case involved a parent who signed a pre-injury liability waiver prior to his son using an inflatable play equipment, or Bouncer. In this case, Trent Woodman’s father signed such a waiver on his son’s behalf. While Trent used the Bouncer, he fell off a slide and broke his leg. The parent’s sued the defendant company who operated the Bouncer, alleging negligence.

The Court held that under Michigan common law, a parent cannot bind a child through a contract. The decision means the owner of the Bouncer can be sued for negligence, upholding a 2008 ruling by the Michigan Court of Appeals. This decision is important. The Court upheld literally a century-old Michigan common law rule that a minor lacks capacity to contract, and thus in turn, a parent cannot bind his or her child to such a contract.

In making this ruling, the Court looked at prior rulings from as far back as 1874. In fact, in its decision the Court quoted one of Michigan’s foremost and important judges, Justice Thomas Cooley (namesake of Cooley Law School), who wrote in 1886:

“The natural guardian has no power to admit away the rights of the ward whose person is committed to his custody. He is guardian of the person only, having no control of any estate the ward may possess, and could not be given a control except on judicial proceedings and after giving security for responsible care. This being so, it cannot be plausibly claimed that by an irresponsible admission he may deprive his ward of important rights. A right of action is as much property as is a corporeal possession,; much less, therefore, and, in the case of a minor, is protected by the law in the same way and under the same securities. The mother could not release it even for full consideration and by the most formal instrument could she, by mere word of mouth, when not under oath, or otherwise chargeable with responsibility, destroy his right of action by her admissions.”

Simply put, children have no authority to enter into contracts, such as a standard waiver form, therefore they cannot be subject to the contents of such a waiver. This rule is utilized by almost all, if not all 50 states.

Unfortunately two Court justices disagreed with 125 years of Michigan jurisprudence. Both Justice Maura Corrigan and Stephen Markman wish to disregard Michigan common law and hold that children are bound by such contracts. Because these two justices almost never side with accident victims, no matter the context, their decision is not at all surprising.

They make the usual arguments, arguing if such waivers are not upheld, businesses will surely face more lawsuits causing them to go out of business and the world will end. However, these waivers have never been enforceable and last time I checked, business were still opening up their stores every day. As Justice Diane Hathaway aptly stated in her concurrence – “The historic rule is a sensible, logical, and well reasoned approach that places greater emphasis on the protection of minor children than on hypothetical business concerns that have not materialized in this or any other state has chosen to follow it.”

Woodman v. Kera is a good win for accident victims, and in particular children, who were at risk in losing 125 years of common law protection.

Clients will often ask me about how Michigan’s car accident law, or no-fault law system works.  The following is a basic primer.

The central tenant of the Michigan no-fault law is the actual “no-fault” provision found in the law.  In almost all situations, a person is entitled to no-fault benefits, even if they caused the accident, so long as the person was involved in a motor vehicle accident. 

These no-fault benefits are sometimes called first-party benefits or PIP (personal injury protection) benefits. 

At the outset, Michigan auto law is really divided into two separate categories, first-party litigation and third-party litigation.  First-party litigation is a claim against an insurance company for no-fault benefits.  No-fault benefits pertain to economic damages, such as lost wages and medical bills.  A third-party claim is a claim against an at-fault motorist for pain and suffering damages only.   

FIRST-PARTY CLAIM: 

It is important to understand that just because you do not personally have automobile insurance coverage does not mean you are not entitled to first-party benefits.  Passengers, pedestrians, bicyclists, and drivers are examples of people entitled to no-fault first-party benefits.  Even without auto insurance, in almost all situations you are still entitled to PIP benefits, as long as a motor vehicle is involved. 

The no-fault benefits accident victims are entitled to are extensive. They include, but are not limited to, reimbursement for medical expenses such as doctor and hospital visits, lost wages, household replacement services, attendant (nursing) care, survivor’s loss benefits and reimbursement for travel expenses related to medical care.

When opening a first-party claim for no-fault benefits, one must first determine which insurance company is responsible for the payment of these no-fault payment.  This is called the order of priority.  The order changes, depending on if the person is injured while an occupant of a motor vehicle or a non-occupant – such as a pedestrian or bicyclist.  Either way, the first place to start is the injured person’s own insurance.  If that person carries auto insurance, that auto insurance company is responsible for no-fault payments.  The search ends there. 

However, if that person doesn’t have auto insurance, one next looks to the accident victim’s spouse or a resident relative who is domiciled with the accident victim and see who their insurance is with.  If auto insurance exists at this level, that insurer is responsible for the payment of no-fault benefits.  If no insurance exists at this level, the search continues.  Ultimately, all persons who sustain an injury in a motor vehicle accident are protected by the no-fault act, even if this requires the State of Michigan to assign an auto insurer to the accident victim to cover the applicable no-fault benefits. 

There is one lone exception to this rule.  A claimant who has not purchased insurance for his or her owned vehicle involved in an accident is disqualified from receiving no-fault benefits, because under the law, each vehicle owner must insurer his or her vehicle.   

To receive first-party benefits, an accident victim must first complete an Application for No-Fault Benefits. This application must be completed and returned to the automobile insurance company handling the first-party claim within 12 months of the date of the accident. This deadline is compulsory and an accident victim will not be entitled to receive no-fault benefits if the application deadline is not met.

THIRD-PARTY CLAIM:

Under Michigan law, a third-party claim is the typical negligence claim in which an accident victim seeks money damages because of the negligence, or fault, of another vehicle operator or owner. Although auto accidents happen for any number of reasons, typically they involve a driver who was not paying proper attention or was not using due care in operating the vehicle.

In a third-party negligence claim, the plaintiff may sue for pain and suffering damages as long as he or she meets the statutory threshold of death, permanent serious disfigurement, or serious impairment of body function.

The most common and litigated threshold requirement is the serious impairment of body function. This term has undergone numerous legal changes over the years, but essentially the phrase means that a plaintiff must show an objectively manifested impairment of an important body function that affects the plaintiff’s ability to lead his or her normal life. An objective manifested impairment requires the plaintiff to show medical proof there is a physical basis for subjective complaints of pain and suffering. As a result, it is difficult to obtain pain and suffering damages for soft tissue injuries.

In addition to pain and suffering, negligent defendants are responsible to accident victims for excess economic loss, regardless of whether or not the accident victim meets the statutory threshold. Thus, even if a plaintiff does not have a serious impairment of a body function, he or she can still recover loss wages and replacement services that exceed the statutory maximum amount available in a first-party no fault claim, or lost wages and replacement services that last beyond the 3 years paid by the PIP no-fault insurance company.

Almost everybody has thoughts, feeling and opinions about BP and the tragic Gulf of Mexico oil spill. What I haven’t heard is much disagreement about who should ultimately pay for the costs of cleaning up all that oil swimming around the Gulf and invading our nation’s beaches and coastline.  Until now.   

The prevailing thought has been something like this – BP broke it, BP should fix it. Unfortunately, not everybody agrees with this assessment, most notably the Chamber of Commerce CEO Tom Donohue. Mr. Donohue, who runs one of the largest lobbying groups in the country, is an expert in protecting big business and big insurance from paying out claims and generally protecting the general welfare. He had this to say recently about the oil spill and who should pay for it:

“It is generally not the practice of this country to change the laws after the game,” he said. “Everybody is going to contribute to this clean up. We are all going to have to do it. We are going to have to get the money from the government and from the companies and we will figure out a way to do that.”

So apparently for the US Chamber of Commerce, the U.S. taxpayer is responsible for the cleanup costs related to the oil spill, not the company that caused the spill in the first place. So much for personal responsibility and small government.

Just remember this when you hear or think about the Chamber of Commerce. It is not an organization promoting commerce or American capitalism. Instead, it is a lobbying group which promotes big business and big insurance at the expense of the everyday consumer and disagrees with the basic American ideal “if you break it, you fix it.”

Last month, the Michigan Supreme Court issued its ruling on a long awaited case, Robinson v. City of Lansing.  The Court held that the 2 inch rule, which states that a discontinuity defect of less than two inches in a sidewalk creates a rebuttable inference the municipality (such as a city) maintained the sidewalk in reasonable repair, does not apply to city sidewalks.  Instead, the Court held that per Michigan statute, the 2 inch rule only applies to sidewalks along county highways, and because the sidewalk in Robinson involved a city sidewalk along a city street, the 2 inch rule could not be used by the defendant city to escape liability. 

This decision is interesting on a number of levels.  First, it was a unanimous decision, and if anybody knows anything about the present makeup of Michigan’s Supreme Court, unanimous decisions in cases involving personal injury are few and far between.  Rarely do you see the arch conservative bloc of the Court (Young, Markman and Corrigan) siding with the more liberal bloc. 

Second, this case may have far reaching implications for cities and townships. 

Many city leaders will cry foul, arguing that cities cannot afford the onslaught of lawsuits that will follow this ruling.  However, this type of argument much be ignored.  Injuried parties will still have to prove the sidewalk was not in ”reasonable repair” to win their case and that this condition caused the injury.  This is not easy to do.  It is important to remember that the 2 inch rule was just one of many hurdles injured persons had to get over when proving their case. 

If anything, the Robinson decision gives injured people a fairer shake at obtaining justice.  Since the 2 inch rule was made into law 10 years ago, it became a virtual bar to almost all sidewalk claims.  For example, there were situtions where city employees at deposition stated under oath they don’t fix old and broken sidewalks because Michigan law (2 inch rule) protected them from civil lawsuits.  This is not the way to serve our state’s communies. 

I consider the Robinson decision a victory for an average person like myself, who just wants our state’s cities and townships to be honest and to work to protect citizens.

Welcome to the Law Offices of Lee Steinberg, P.C.’s new blog. At this part of our website, we will explore various topics pertaining to personal injury law, including changes in the law and how it affects accident victims, Michigan auto accidents, no-fault law, medicine and a host of other topics.

Please feel free to comment on any of the topics that are discussed on the blog. After all, it is your right and obligation to stay informed and understand the issues that affect you, your family and our nation.

– Eric Steinberg