Comments on: Why Was I Told I Don’t Have a Case? http://www.michiganautolaw.com/auto-lawyers-blog/2007/11/27/why-was-i-told-i-dont-have-a-case/ Michigan auto accident lawyers review of no fault law, auto insurance tactics, legal cases involving car, truck & motorcycle accidents Sat, 11 Oct 2008 19:52:27 +0000 http://wordpress.org/?v=2.6.1 By: Kenneth D. Finegood http://www.michiganautolaw.com/auto-lawyers-blog/2007/11/27/why-was-i-told-i-dont-have-a-case/#comment-116 Kenneth D. Finegood Tue, 04 Dec 2007 03:17:02 +0000 http://www.michiganautolaw.com/auto-lawyers-blog/?p=14#comment-116 Instead of determining whether or not a genuine issue of material fact exists for the jury to consider, the courts now engage in a game of "gotch ya," finding ways to dismiss legitimate cases involving very real and serious injury. Two cases of mine have become Kreiner casualties. Mr. Mattei, a disabled person, suffered a shoulder injury as a passenger in a bus after the driver sped away before Mr. Mattei was seated. Mr. Mattei had a prior injury to his left shoulder and compensated with his right shoulder until it became injured in this accident. Mr. Mattei had surgery to his right shoulder and was restricted after the surgery due to his right shoulder injury. Additionally, plaintiff had emotional issues exacerbated by his physical injuries. At the hearing on defendant's motion for summary disposition I argued, in addition to the physical injuries, that whenever some one testifies at deposition that sometimes they feel like blowing their brains out, that maybe the court should give them the benefit of the doubt. Judge Maceroni dismissed plaintiff's case. When I called to advise my client of the outcome, I was advised by his family that Mr. Mattei passed away the day before from what appeared to be suicide. Joe Swick was injured in a rear end collision. He sustained a herniated disc and had surgery within 6 months of the accident. He was disabled from his employment as a chimney inspector but eventually released to work by his surgeon. In opposition to defendant's Motion for summary disposition, I obtainted written restrictions from his primary care physician. Additionally, Mr. Swick testified at deposition to a list of 56 activiies adversely affected by his injuries. Unfortunately, the signed list of activities which was given to defense counsel at deposition, adopted as sworn deposition testimony on the record and never objected to by defense counsel, was not notorized and therefore, the court refused to accept it and dismissed his case. The Court of Appeals ruled that Mr. Swick was not disabled despite current restrictions from his primary doctor, since his surgeon returned him to work months after his surgery. Although I contacted an appellate lawyer regarding an appeal to the Supreme Court, given the trial and appellate court's arbitrary refusal to consider the entire record, unfortunately, Mr. Swick passed away shortly thereafter from unrelated illness. Instead of determining whether or not a genuine issue of material fact exists for the jury to consider, the courts now engage in a game of “gotch ya,” finding ways to dismiss legitimate cases involving very real and serious injury. Two cases of mine have become Kreiner casualties.
Mr. Mattei, a disabled person, suffered a shoulder injury as a passenger in a bus after the driver sped away before Mr. Mattei was seated. Mr. Mattei had a prior injury to his left shoulder and compensated with his right shoulder until it became injured in this accident. Mr. Mattei had surgery to his right shoulder and was restricted after the surgery due to his right shoulder injury. Additionally, plaintiff had emotional issues exacerbated by his physical injuries. At the hearing on defendant’s motion for summary disposition I argued, in addition to the physical injuries, that whenever some one testifies at deposition that sometimes they feel like blowing their brains out, that maybe the court should give them the benefit of the doubt. Judge Maceroni dismissed plaintiff’s case. When I called to advise my client of the outcome, I was advised by his family that Mr. Mattei passed away the day before from what appeared to be suicide.

Joe Swick was injured in a rear end collision. He sustained a herniated disc and had surgery within 6 months of the accident. He was disabled from his employment as a chimney inspector but eventually released to work by his surgeon. In opposition to defendant’s Motion for summary disposition, I obtainted written restrictions from his primary care physician. Additionally, Mr. Swick testified at deposition to a list of 56 activiies adversely affected by his injuries. Unfortunately, the signed list of activities which was given to defense counsel at deposition, adopted as sworn deposition testimony on the record and never objected to by defense counsel, was not notorized and therefore, the court refused to accept it and dismissed his case. The Court of Appeals ruled that Mr. Swick was not disabled despite current restrictions from his primary doctor, since his surgeon returned him to work months after his surgery. Although I contacted an appellate lawyer regarding an appeal to the Supreme Court, given the trial and appellate court’s arbitrary refusal to consider the entire record, unfortunately, Mr. Swick passed away shortly thereafter from unrelated illness.

]]> By: Kenneth D. Finegood http://www.michiganautolaw.com/auto-lawyers-blog/2007/11/27/why-was-i-told-i-dont-have-a-case/#comment-115 Kenneth D. Finegood Tue, 04 Dec 2007 02:38:21 +0000 http://www.michiganautolaw.com/auto-lawyers-blog/?p=14#comment-115 It is readily apparent from the multitude of cases decided since the Kreiner decision, that basic notions of fairness and justice no longer play any part in the adjudication of automobile negligence cases. Even when there are objective findings required by the statute and injuries requiring surgery the courts seem to be looking for ways to dismiss these cases. The "serious impairment of body function" (SIBF) threshold has become a moving target without any reasonable way to predict whether or not a case will survive summary disposition. The intellectual dishonesty of the high court decision is indeed shameful when considering the court's self described "textualist" approach to statutory construction. Nowhere in the amended statute is there language regarding "change in the course or trajectory" of ones life in order to meet the SIBF threshold. Instead, the statute requires only that there be "an" affect on a person's general ability to lead his or her normal life. It is readily apparent from the multitude of cases decided since the Kreiner decision, that basic notions of fairness and justice no longer play any part in the adjudication of automobile negligence cases. Even when there are objective findings required by the statute and injuries requiring surgery the courts seem to be looking for ways to dismiss these cases. The “serious impairment of body function” (SIBF) threshold has become a moving target without any reasonable way to predict whether or not a case will survive summary disposition.

The intellectual dishonesty of the high court decision is indeed shameful when considering the court’s self described “textualist” approach to statutory construction. Nowhere in the amended statute is there language regarding “change in the course or trajectory” of ones life in order to meet the SIBF threshold. Instead, the statute requires only that there be “an” affect on a person’s general ability to lead his or her normal life.

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