Traverse City Personal Injury Lawyer

"Judicial Activism by Unrestrained Statutory Interpretation"

Timothy Smith — Wed, 30 Apr 2008 09:22:56 GMT

The title to this entry is how Justice Weaver, one of Michigan's 7 Supreme Court Justices, described the actions of Chief Justice Cliff Taylor and fellow activists Justices Corrigan, Markman and Young. The quote by Justice Weaver appeared in her dissent to an opinion by Taylor et. al. wherein they reversed the ruling of the trial court AND the Michigan Court of Appeals in a single paragraph opinion that let a drunk driver off the hook for striking 2 young pedestrians in Lansing Michigan - killing one and crippling the other.

The defendant - the City of Lansing - evidently used a public sidewalk as a place to push/dump accumulated snow and leave it for the winter. Two young girls could not get around this city-made obstacle, were blocked from walking on this public sidewalk and so forced to walk in the roadway instead. They were walking because Chantell had been given a gift certificate to McDonalds for being good in school. They were heading to McDonalds to redeem it.

As they walked around the pile of snow created by the City of Lansing, a drunk driver hit them. Killed one, caused severe injuries [brain damage] to the other. City later admitted it had an "unwritten policy" of just abandoning this stretch of public sidewalk for the winter. Not clearing or caring for it at all. Under Michigan law that protects pedestrians, as the law has existed for many years, the city was clearly responsible. The trial court agreed with this and denied Defendant's motion to dismiss the case. The City of Lansing didn't like it's own Judge's ruling and appealed the case to the Michigan Court of Appeals. The 3 Judges from the Court of Appeals that reviewed the briefs submitted by the parties, reviewed the entire record from the lower court and heard oral argument from the attorneys agreed with the trial court and affirmed that court's denial of The City of Lansing's motion for dismissal. Again, the City of Lansing was dissatisfied. So they appealed the matter a 2^nd time. To the Michigan Supreme Court which is currently being run by Chief Justice Cliff Taylor.

The Taylor court ignored the laws passed by our Legislature, ignored the tragic facts of this situation, re-wrote the language of the law to their liking [adding the words "structural defect" where they don't exist], applied its own radical new reversals of previous law [the Nawrocki decision] to a new type situation [cities], and created new law that pretty much absolves cities of any responsibility for not just clearing sidewalks, but for avoiding the active obstruction of sidewalks or doing anything at all to make sure sidewalks are usable. Justice Taylor reversed the ruling of the trial court, reversed the ruling of three judges from the Michigan Court [who were unanimous in their findings] and let the city of Lansing off the hook for causing this horrible situation.

Why would Justice Taylor do this? The last time I posed this question in this blog it was a 30 million dollar verdict against Chrysler for sexually harassing female employees. A verdict rendered by a jury of peers, a verdict affirmed by the trial judge and a verdict affirmed by the Court of Appeals, yet it was thrown out by Justice Taylor. I asked the question why and began digging through his campaign finance records only to find that Chrysler had donated nearly $100,000.00 in monies to Taylor's campaign [this figure doesn't include possible soft-money donations from Defendant Chrysler]. I don't have the time to do the same with this injustice, but my guess is if we dug into Justice Taylor's campaign finance records, we'll find donations from The Municipal League or the insurer that was responsible for The City of Lansing's negligence and maybe even the law firms that represented the defendant's in this matter. I don't know, because I don't have the time to look it up and in light of what I found last time, nothing would surprise me...

The dissent to Taylor's opinion clearly explains what actually happened and what Michigan law actually says. According to the dissent, this decision is the Taylor court's "latest example of judicial activism by unrestrained statutory interpretation."

Justice Taylor's court has tried to spin this abrupt reversal of Michigan law by saying that "cities don't have a duty to remove every bit of accumulated snow" but that is NOT what this case said. Taylor's court decided that cities don't even have a duty to make sidewalks passable at all and can --as they did in this case-- just use sidewalks for dumping grounds [not accumulated snow but snow *placed there*] with no need to worry if they are passable for pedestrians.

Fortunately, there is something we can do about this. Justice Taylor is up for re-election this November. Remember what Justice Taylor did to young Chantell Buckner. Her death shouldn't be remembered as a case of judicial activism gone wrong. Her case should be remembered as the one that caused the Michigan voters to say, "Enough"!

A vote against Cliff Taylor is a vote for Chantell.

Originally posted at InjuryBoard by Timothy Smith

Justice Taylor's Legacy Lives On

Tim Smith — Mon, 31 Mar 2008 15:30:19 GMT

Kreiner v. Fischer. A 2004 opinion by Michigan Supreme Court Justice Cliff Taylor that re-wrote Michigan Auto Insurance law as it was known up until that point in time. In that opinion, he literally re-wrote the legal standard that had been drafted by our legislature for individuals who had been injured in auto accidents. Back when the legislature enacted the Auto No-Fault Statute, individuals who had been hit by a car, who had broken bones that needed multiple surgeries to fix were given the legal right to make a claim against the at fault driver's insurance company for their damages. Justice Taylor took that right away when he wrote the Kreiner decision. Now, 4 years later, the decision authored by Justice Taylor has taken away the legal rights of Rodney McCormick

On March 25th, the Michigan Court of Appeals applied Justice Taylor's reasoning from the Kreiner decision and held as a matter of law that Rodney McCormick has no legal claim for an injury he sustained in January of 2005. In the accident, Rodney's left ankle was crushed when a truck backed over it and snapped it. Rodney had to undergo 2 surgeries. He was unable to work for an entire year. Yet, the Court of Appeals was forced to apply Justice Taylor's analysis from the Kreiner decision and they decided that Rodney's injury wasn't serious enough....

Out of work for one year? Two Surgeries? Not serious enough?

This may seem ridiculous, but that is the way Justice Taylor re-wrote Michigan's auto no-fault law when he drafted and published the Kreiner decision.

The House of Representatives recognized Justice Taylor's error and passed a bill [the Kreiner Fix bill] over a year ago to correct his re-writing of our No-Fault law. But, it remains stuck in the Senate.

I've been told by a number of friends, but I haven't been able to personally confirm, that individuals who are backing Taylor in the upcoming election [he is the only Justice up for re-election this year] have instructed certain Senators to keep the Kreiner Fix bill from reaching a vote until Justice Taylor has been safely re-elected.

The funny thing is, none is this would even be an issue if Justice Taylor just called "balls and strikes" as opposed to legislating from the bench. In a recent Saturday evening meeting with Cass County Republicans, he told them that it was his belief that the role of the judge is not to make policy, but to interpret the words of the statute or constitution at issue.

I couldn't agree more.

If he had only acted in this fashion when the Kreiner case came before him, Mr. Rodney McCormick would have had his day in court. Instead, he's left with permanent scarring from 2 surgeries as a life-long reminder of the year in his life that was taken from him by a negligent driver and Justice Cliff Taylor.

Justice Taylor went on to say to Cass County Republicans that his judicial philosophy might earn him the undying enmity of certain kinds of folks. He mentioned the labor unions and trial lawyers. But he didn't mention Republicans. I'm a Republican and I take issue with the manner in which he has legislated from the bench. I've talked to other Republicans who feel the same way.

Justice Taylor's re-election campaign isn't about Republicans v. Democrats or trial lawyers v. tort reformers. It's about individuals who believe in a proper system of checks and balances where one branch doesn't rise in power above the rest. Remember Mr. McCormick when it's time to vote in November.

Originally posted at InjuryBoard by Tim Smith

Insurance Company Doctors - Round 2

Tim Smith — Fri, 08 Feb 2008 07:56:47 GMT

As I discussed in my prior article, one of the regular tools used by insurance companies to terminate benefits of their insureds is the insurance company doctor. These doctors typically perform a one-time exam of the insured lasting anywhere from 15-20 minutes and then render a report which outlines their cursory examination and their medical opinion that the person either is not injured or is capable of working or that the injuries present are not the result of the automobile accident or work injury but rather some other event. The next thing the insured knows is that they are receiving a letter from their insurance company terminating all of their medical benefits on the basis of this one time evaluation. Even though in most cases, this one time evaluation and the opinions of the insurance company doctor are in direct conflict with the opinions of the treating physicians who have treated this individual for many months and, in some cases, years and who relate the treatment to the injuries sustained in the traumatic event. Is this fair? Not even close.

I think the general public would be surprised as to the credentials and background of some of the more infamous doctors used by the insurance industry here in Michigan. One of the favored neurologist of auto insurance companies such as State Farm, AAA and Allstate is a neurologist at the University of Michigan. His resume shows that he obtained his under graduate degree at the University of Pennsylvania, but did his medical studies at the Municipal University of Amsterdam in the Netherlands. The first couple times I deposed this doctor, he would go on about this prestigious European institution of higher learning where he obtained his medical degree. I took the liberty of securing a copy of his medical licensing file here in Michigan through the Freedom of Information Act. In a sworn statement on his medical license application from the 1960s, it showed that he had attended Jefferson Medical College and the University of Pennsylvania for 11 months prior to attending the University of Amsterdam. The funny thing was, he never mentioned attending this medical school on his resume or made reference to it in depositions when asked where he received his medical training. When this neurologist was pressed on the issue under oath, he admitted to me that not only did he attend medical school for one year here in the United States, but that he had failed out of medical school here in the United State including the class of neurology. This is the "expert" that the auto insurance company was using when they needed a reason to cut off further neurological treatment in cases involving a neurological injury in auto accident claims. How upset would you be if your benefits were terminated based on the expert opinion of a neurologist that failed out of medical school, including neurology?

Another favorite physician of the insurance industry here in Michigan is an orthopaedic surgeon who is licensed in Michigan, Texas, California, New York, Nevada and Indiana. While this sounds impressive on paper, when you begin to dig into his background, you find out that this doctor is no doctor at all, but rather, a medical incompetent who will say anything for the right price. He currently resides in Texas and travels to Michigan for one week per month for the sole purposes of performing examinations for insurance companies. He does the same thing one week per month in the State of California.

In 2004, he made almost $420,000 simply doing workers' compensation exams for workers' comp insurance companies in the State of Texas. For the two years that he practiced in Michigan, he was successfully sued five times for malpractice and the Plaintiff won every case. There have been no less than 15 malpractice suits filed against him in the State of Texas. His track record in Michigan was so bad that Attorney General Michael Cox filed an administrative complaint against this quack to revoke his license. Not only that, this orthopaedic surgeon was arrested in August of 1997 for driving to his soon-to-be ex-wife's attorney's office in his hospital scrubs with $10,000 cash in his car whereupon he parked and through a rock at the window of the law office and ran back to his car. He was arrested by the Houston Police Department at gunpoint for assaulting the office of his soon-to-be ex-wife's divorce attorney.

During the divorce, the wife obtained a million dollar judgment against him for assaulting her during the marriage including choking her and shoving a rag down her throat. His own son even testified at the divorce trial that he watched his dad beat up his mother. Further, during the second deposition that he gave in his divorce in October 1997, he admitted to lying under oath during the first deposition as to the extramarital affairs he had been having. It just doesn't seem fair to me that an insurance company can use a one-time doc such as this individual who is an admitted perjurer who clearly has a mental and /or behavioral disorder and whose competence as a doctor is in question in numerous states. Yet, your insurance company can use him to deny all further medical care and treatment in your particular claim.

Our next insurance company doctor has, on at least two occasions that the State Attorney General is aware of, wrote reports indicating that he had performed both a nerve conduction study and an EMG and later is was documented that he did not perform either of those exams on the particular patient. These were cases where he had been asked by an insurance company to examine an insured, issue the report indicating that he had performed these tests which were negative (when he had performed neither of the tests) and on that basis, the insurance company denied medical care and treatment. The State Attorney General filed an administrative complaint against him alleging that he:

1. Wrote reports indicating he performed tests that he hadn't and came to medical conclusions based on tests never performed;
2. That he was negligent in the performance of these exams;
3. That he was incompetent;
4. That he lacked good moral character;
5. That he engaged in unethical business practices; and
6. That he engaged in unprofessional conduct.

To get the State to drop four of these counts, he plead no contest (admitted the allegations were true) to the allegations of negligence and was reprimanded by the State of Michigan.

Lastly, to show a type of financial bias is in play for these insurance company doctors, the last doctor I will discuss has testified under oath that 100% of his current income comes from performing these evaluations for insurance companies. He earns in excess of 1.2 million dollars per year in fees from these insurance company examinations. He travels to Gaylord, Lansing, Flint, Grand Rapids, Southfield and Kalamazoo to perform these one time exams for insurance companies and has been doing so for 15 years.

Records indicate that in 1997 he performed over 3,200 exams at the request of insurance companies. Not only that, this doctor was successfully sued by a person he examined on behalf of an insurance company because he injured them during one of his insurance company exams. The insured told him that his treating physicians ordered him not to lift his arm up over his shoulder level, but this doctor forced his arm above his shoulder level, tearing out his shoulder and causing even more damage to the poor man. Not only did this doctor lose at the trial court level, but lost at the Court of Appeals and the Michigan Supreme Court levels and ended up having to pay the person he injured for the damages caused during this incompetent insurance company examination.

Lastly, during this doctor's divorce deposition, he was asked if he had any disabilities by the attorney for his wife, to which he testified, "I have peripheral neuropathy, difficulty walking, difficulty feeling things and a number of problems in regard to those disabilities". This particular doctor is hired by insurance companies as a physical medicine and rehab physician. His 15-20 minute exam of the insured includes palpating the skin, feeling and sensing things through his hands on the person's body such as muscle tonicity, trigger points and spasms. How can a person who has testified under oath that he has "difficulty feeling things" complete a competent physical examination of someone when he admittedly is suffering from a peripheral neuropathy? Quite simply, he can't.

So, if you have a medical claim pending and your insurance company wants to send you to their "specialist". Stay on your toes. Odds are, the "specialist" they've sent you to is simply an agent of the insurance company and their got-to-guy when it's time to start denying benefits.

Originally posted at InjuryBoard by Tim Smith

Insurance Company Doctors

Tim Smith — Wed, 06 Feb 2008 07:34:19 GMT

I think it's important for attorneys to keep track of the different trial and appellate judges they appear in front of. It helps attorneys to give "counsel" to their clients. If you have an understanding about how a particular judge stands on a particular issue, it gives you a better ability to advise and counsel your client as to how their particular legal issue may fare in the courts of this state. So, it has been with a watchful eye that I have followed the beginning of the career of the newest Michigan Appellate Judge, the Honorable Jane M. Beckering.

In one of her first decisions since being appointed to the Court of Appeals by Governor Granholm, Judge Beckering appeared with fellow Michigan Court of Appeals Judges Henry Saad and Kathleen Jansen. The case entitled Spencer v. State Farm Mutual Auto Insurance Company. dealt with State Farm's denial of certain medical benefits claimed to be due and owning to Ms. Spencer.

In Michigan, we have a no-fault auto insurance system which requires an auto insurer to pay for medical treatment related to injuries caused by the insured's use of a motor vehicle. In this case, Plaintiff was injured in an automobile accident. Her treating physicians felt that the treatment and physical therapy that she was receiving were due to the injuries sustained in the accident. State Farm sent their insured to an insurance company doctor who, after a cursory examination, reported that her medical condition could not be related to the car accident. Based solely upon the opinion of their own doctor, State Farm terminated her benefits.

Judge Beckering, in affirming a long line of case law here in Michigan held that it is absolutely improper for an insurer to deny coverage when the insurance doctor's opinion conflicts with and is contrary to the medical evidence from the treating physicians. Judge Beckering found that the Defendant's claims adjuster made no effort to reconcile the conflicting medical information which caused the denial of benefits to be legally unreasonable and justified an award of penalty attorneys fees and costs against State Farm in this auto accident claim.

It shouldn't be a surprise that insurance companies utilize the services of these insurance company doctors to justify decisions to terminate benefits of their insureds. The insurance company doctor or defense doctor has become a standard tool for insurance companies to utilize in attempting to terminate their insured's benefits.

The insurance doctor industry has become quite a cash cow for those medical practitioners willing to engage in an area of practice typically looked at by other doctors as a task for those who are unable to make a living in private practice. In fact, there are a number of insurance doctors in this state that make hundreds of thousands of dollars per year performing these one time exams at the request of insurance companies.

Not surprisingly, many of them have questionable academic backgrounds, a private practice which produces many malpractice claims and, in some cases, even criminal convictions.

Tune in to my next post as I discuss some of Michigan's more notorious insurance doctors.

Originally posted at InjuryBoard by Tim Smith

Insurance Fraud

Tim Smith — Fri, 25 Jan 2008 10:33:11 GMT

First things first. I don't handle medical malpractice cases. But, I do handle cases involving insurance fraud and claims involving insurance companies who have broken their contract with their clients. That being said, when insurance companies perpetrate a fraud upon the public, it typically catches my attention.

In 1993, the Medical Malpractice Reform Act (MMRA) was enacted here in Michigan. One of the original sponsors of the Bill, former Representative Richard A. Bandstra, now Judge Richard A. Bandstra on the Michigan Court of Appeals, indicated that the goal of the legislation was to lessen the cost of medical insurance and/or to prevent the escalation of premiums. Both prior to and since that Act, insurance companies have claimed repeatedly that the reason for rising malpractice insurance rates is the trial attorneys and the filing of frivolous medical malpractice lawsuits. In looking at the facts, since the Medical Malpractice Reform Act of 1993 was enacted, it is clear that the trial attorneys and/or the lawsuits that they file have little, if anything, to do with the insurance rate gouging that has occurred within the malpractice insurance industry.

According to a recent article in Michigan Lawyer's Weekly, since 1993, medical malpractice insurance rates have increased by approximately 51% for one of Michigan's largest writers of medical malpractice insurance, American Physicians Assurance Corporation. During that same time period, the filing of new medical malpractice lawsuits is down 75%. Further, between 1991 and 2006, American Physician Assurance Corporations payments on medical malpractice claims against it's Michigan doctors dropped approximately 60%.

If I was a physician who has been told for the last 15 years that my insurance rates have gone up each year due to the trial attorneys and then I found out that medical malpractice filings were down 75% and the amount of money that my insurance company was paying out was down 60%, while my own premiums had increased 50+%, I would be absolutely livid.

I suppose the trial attorneys are an easy target and one that, not only our legislature and general public, but doctors as well, have demonized as the cause for rising insurance rates. But the fact of the matter is since the Michigan Medical Malpractice Reform Act of 1993 was enacted, insurance rates are way up, lawsuit filings are way down and, more importantly, the amount of money that the insurance companies are paying out on lawsuits has dropped significantly. This leaves only one reason for the rising insurance rates - large profit margins for medical malpractice insurance companies.

Originally posted at InjuryBoard by Tim Smith

Supreme Court Justice Cliff Taylor Posts Failing Grades

Tim Smith — Wed, 23 Jan 2008 10:14:38 GMT

Anyone who has ever looked for a mechanic to fix their car or perhaps a doctor to treat a family member, they have often asked friends and acquaintances as to their experiences with a particular auto body shop or physician. If the mechanic or doctor has received good reviews, more often than not, you end up using that mechanic or doctor to fix your particular problems. Recently, the state wide periodical that caters solely to attorneys polled those members who had appeared before Michigan Supreme Court to assess the performance of the seven Supreme Court Justices. Current Chief Justice Cliff Taylor finished second to last in what can only be described as a failing grade.

Michigan Lawyers Weekly polled attorneys who have appeared at least once in the last six years in front of the Michigan Supreme Court. They were asked to rate the Justices on a scale of 1 (poor) to 5 (excellent) in eight different areas described as "Judicial Characteristics".

Chief Justice Taylor was ranked dead last in the areas of "Overall Knowledge of the Law" and "Thoroughness of Opinions" which are the written opinions where each of the Judges explain why they ruled as they did. Justice Taylor's overall rating of a 2.91 had him only 6/100th of a point above Justice Robert Young, Jr. who was the lowest scoring Justice at 2.85.

What does this tell us? It tells us that it's time for a change. Justice Taylor is up for re-election this November and the complaints not only from attorneys in this poll, but also from his own fellow Justices about his behavior on the bench and legal abilities seem to be justified. It's time for a change. At this point, I don't know who, if anyone, will run against Chief Justice Taylor, but I can't imagine that the candidate could perform more poorly than our current Chief Justice has performed during his tenure on the bench.

The funny thing is, I've talked with attorneys and non-attorneys. I've talked with Republicans and Democrats. I've talked with folks that are pro-tort reform and those that are against it and nearly everyone I've talked with recognizes that Justice Taylor just isn't cutting it on the Supreme Court bench.

Remember this when it comes time to vote.

Originally posted at InjuryBoard by Tim Smith

Driving Safely in Winter

Tim Smith — Tue, 18 Dec 2007 14:45:18 GMT

Winter has come early here in Northern Michigan, at least a little earlier than it did last year. Now that the roads are covered in snow and ice, we have to use a little extra caution as we race about town looking for that last Xmas gift. We all need to keep in mind the following safe driving tips as we head into the coldest months of the year here in Northern Michigan.

When driving in the winter, it's important to remember the 3 P's:

Prepare for the Trip
Protect Yourself
Prevent Car Crashes on the Road

Prepare for the Trip:
First, it's important to properly maintain your car. Keep an eye on your tire tread, windshield wipers, wiper fluid, antifreeze and your battery. This isn't the time of year to get caught out in the cold with a dead car.

Second, always have the following on hand in your car in case of an accident:
Jumper Cables, shovel, blankets, flashlight, warning devices/flares, snow brush and abrasive material like kitty litter or sand. For longer trips, add water, cell phone and food to the list.

Third, if you are stopped or stalled and there's no help around, stay with your car. Put bright markers on your antenna and shine your interior lights if it's night time. If you can run your car, run it just enough to keep the heat on and stay warm, but make sure your exhaust pipe is clear.

Fourth, practice driving in cold weather. Rehearse handling your car on ice or snow in a local parking lot. Also, remember to always steer into a skid to avoid losing complete control of your auto. Always remember what your brakes will do; anti-lock brakes? stomp on them, non-anti lock? Pump them.

Lastly, keep in mind that stopping distances are much longer on water-covered snow and ice.

Protect Yourself:

Make sure you buckle up and secure your children in the appropriate child safety seats. Also, never place an infant seat that is rear-facing in the front seat of a car equipped with a front passenger air-bag. Lastly, Children 12 and under are always safest in the back seat.

Prevent Crashes:

It's Christmas Party season, so if you're going to drink, make sure you have a designated driver. You don't want to end up like this guy. Next, slow down your speed on all roadways and give yourself a little extra distance between autos. Lastly, keep your eyes peeled for pedestrians walking in the roadway - especially downtown...... they're everywhere.

If you keep these tips in mind, you and your loved ones should have a safe and happy Christmas Season.

For more information on this subject, please refer to the section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by Tim Smith

Preventing and Treating Dogbites

Tim Smith — Fri, 30 Nov 2007 09:14:48 GMT

Every year, almost 5 million Americans are bit by dogs. Over 800,000 of these individuals suffer injuries that require medical treatment and 44% of those that require treatment are younger than 14 years of age. Since more than half of the reported attacks are by dogs owned by the family or neighbor of the victim and the most common victims are children, it's important for parents to understand not only how to prevent attacks, but treat them should they occur.

Preventing Dog Bites
Teach children basic safety around dogs and review regularly:
Do not approach an unfamiliar dog.
Do not run from a dog and scream.
Remain motionless (e.g., "be still like a tree") when approached by an unfamiliar dog.
If knocked over by a dog, roll into a ball and lie still (e.g., "be still like a log").
Do not play with a dog unless supervised by an adult.
Immediately report stray dogs or dogs displaying unusual behavior to an adult.
Avoid direct eye contact with a dog.
Do not disturb a dog who is sleeping, eating, or caring for puppies.
Do not pet a dog without allowing it to see and sniff you first.
If bitten, immediately report the bite to an adult.

The dog breeds most often associated with attacks include pit bull breeds, german shepards, chows, malamutes, Rottweilers, huskies and wolf hybrids.

If your child is bitten by a dog, seek medical attention immediately. Risk of infection to the wound site is a reported in up to 20% of all dog bite wounds. This is why medical attention is so important.

Your doctor or emergency room will irrigate the wound to reduce the risk of infection. They will want to know if your child's tetanus shots are up to date so bring your child's immunization records with you. Depending on the size and severity of the wounds, consultation with a plastic surgeon is likely so that the risk of permanent scarring can be assessed and reduced.

Lastly, discharge instructions will ask the parents to be on the lookout for fever, chills, or severe or rapidly spreading cellulitis which would signal the onset of an infection at the wound site which may necessitate additional hospitalization.

Originally posted at InjuryBoard by Tim Smith

What Are My No-Fault Rights?

Page Graves — Wed, 21 Nov 2007 07:10:28 GMT

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 auto 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 brochure 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 assistance 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 attorney 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.

Regrettably, this rule applies to incapacitated persons and children, neither of whom can understand or appreciate their own legal rights. That was the politically driven result reached by Michigan's current supreme court in Cameron v ACIA. Therefore, brain injured victims and children desperately need their advocates to monitor their medical bills for them to make sure a lawsuit is filed timely.

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).

For more information on this subject, please refer to the section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by Page Graves

Michigan Senators Shielding Drug Companies

Tim Smith — Mon, 19 Nov 2007 09:57:10 GMT

In 1995, Michigan passed a law that granted immunity to drug manufacturors when their products injured or killed an individual. This was the year that Michigan became the only state in the entire nation to grant this protection. Did other companies whose products injure and kill Michigan Citizens get the same immunity? Remember the Ford Pinto - the car that blew up when it got rear-ended? Remember lead based paint? Remember asbestos based products? All those companies were held responsible for the individuals they blew up and poisoned from exposure to their products.

The legal immunity that Michigan gave the drug industry for dangerous products was recently recognized by our House of Representatives as being completely unfair as it left Michigan citizens without any legal recourse when they were injured or killed by dangerous drugs. Merck - the makers of Vioxx - have recently agreed to pay out $4.8 billion dollars to those they injured when they released a drug on the unsuspecting public that Merck KNEW caused damage to the cardiovascular system of the patient. Will those that have been injured or died here in Michigan take part in any portion of that settlement? The jury is still out on that issue due to the complete immunity that Michigan's legislators granted the drug companies in 1995.

Michigan citizens had a chance to get the protection from dangerous drugs that every other citizen in every other state enjoys. In early 2007, a bill passed the Michigan House of Representatives that revoked drug company immunity and it was sent to the Michigan Senate for approval. Your senators have tucked that bill away in the deepest recesses of the senate sub-committee structure where they have ensured it will probably never see the light of day.

This isn't the only bill that has been hidden by Michigan's senate. New laws to protect us against drunk drivers, to protect infants and minors, to protect those that are mentally incapacitated, and other bills that help the individual citizens of the State, not just the corporate citizens are buried in a senate sub-committe structure to ensure they never see a vote.

Why? Just look at who is funding your particular senator's campaign was chest: insurance companies, Mi Chamber of Commerce, lobbyists for large Corporations in Michigan and other corporate interest groups. When laws like the 1995 Drug Immunity act were passed, our government told us it was to help Michigan's economy. In the last 10 years, our state's legislature and court system has taken away a myriad of individual rights under the pretext of making the state's business economy stronger.

Has it? As a state, are we better off now than we were 12 years ago? Not even close. We're last or near last in about every relevant indices that one might use to compare Michigan to the rest of the U.S.

Who has suffered the most? Car accident victims, injured children and mentally incapacitated adults, and other individuals who have been injured due to others negligence. It is ironic that those who need the most protection have been left most vulnerable by our court system and our legislators.

So what can we do? Get educated and vote. Find out how your senator is voting on issues like drug company immunity. Let him or her know that you're watching how they vote and that you vote too.

To find out who your Representative is, click here -> Representative
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To see how your representative/senator is voting on issues that are important to you, click here-> Voting

For more information on this subject, please refer to the section on Drugs, Medical Devices, and Implants.

Originally posted at InjuryBoard by Tim Smith