Reprint of Steven M. Gursten’s Letter to Michigan Lawyers Weekly

Rarely does the Michigan Lawyers Weekly completely miss the point of an important case, but I feel compelled to respectfully suggest that your recent story on Benefiel v. Auto Owners Insurance Company¹ did exactly this.  

Benefiel is the most important automobile negligence case to be decided since the Michigan Supreme Court decided Kreiner v. Fischer.²   Benefiel is a published decision, and it may hopefully help lawyers and judges better understand Michigan’s chaotic threshold law.     

On February 14, 2008, the Michigan Court of Appeals ruled against State Farm Insurance Company on an important new uninsured motorist case (Suminski v State Farm).  State Farm, it seems, did not act like a good neighbor, which comes as no surprise to Michigan No Fault Attorneys.  The surprise with this case is that State Farm’s pattern of bad acts towards injured policy holders did not work in favor of the insurance company (this time).

The consequences of driving a car without auto no fault insurance in Michigan are exceptionally harsh.  A recent case, released on January 29, 2008, illustrates just how severe these consequences will be.  

Steven Gursten will be speaking on February 12, 2008 at Cooley Law School.  Steve will be speaking to the law students on future legal careers in personal injury and insurance law.  The lecture is being presented through the Career and Professional Development Office of Cooley Law School, in Lansing Michigan. 

I was interviewed today by the Michigan Lawyers Weekly about an important new auto accident decision released December 27, 2007, called Benefiel v. Auto Owners Insurance Company.  For Michigan lawyers who litigate automobile accident cases, this is the first case to analyze what the Michigan Supreme Court meant when it wrote in Kreiner v. Fischer that the relevant period of inquiry after a car accident is a person’s “whole life,” finding: “we do not require that every aspect of a person’s life must be affected in order to satisfy the tort threshold…Rather, in a quite distinct proposition, we merely require that the whole life be considered in determining what satisfies this threshold, i.e., whether an impairment “affects the person’s general ability to lead his or her life.”  Kreiner at 133 fn 16. 

I was surprised by the recent editorial by Michigan Supreme Court Justice Maura Corrigan that appeared in the Detroit Free Press on December 19, 2007.  Justice Corrigan wrote about her efforts in protecting children.  I note Justice Corrigan chose to ignore her own role in the Cameron case from last year in her article.   For Michigan lawyers already familiar with Cameron, and for those lawyers representing children injured in car accidents throughout Michigan, it seems that Justice Corrigan’s notion of protecting children does not extend to protecting children who suffer serious injury in automobile accidents in this state.   The Cameron decision has and will continue to negatively impact the lives of thousands of children.    
 
Justice Corrigan helped write, and signed onto, the majority opinion in Cameron v. ACIA, 476 Mich 55 (2006).  In Cameron, the Michigan Supreme Court stripped away critical legal protections for children injured in accidents.  Justice Corrigan ruled that Michigan’s no fault “one year back rule” cannot be tolled for both minor children and for the legally incompetent, such as people incapacitated due to traumatic brain injury.  As a result of Corrigan’s decision, a four year old child injured in a car accident in Michigan is now treated the same way as an adult when complying with the one year back rule of the Michigan No Fault Act.   A person rendered legally incompetent due to a traumatic brain injury or other incapacity has the same obligation, even if they cannot understand the legal requirements.   It is an insane opinion that changed 26 years of Michigan law and now holds young injured children to the same legal standard as competent adults. 

On December 4, 2007, the Michigan Supreme Court heard oral argument in Jones v. Olson.  This has many Michigan lawyers predicting an end for all but the most catastrophic car accident injury cases in this state.

Many personal injury lawyers already familiar with this divided Court have questioned why the Michigan Supreme Court would wish to grant leave on this case, except to obviously reverse the lower court decision.  The Court of Appeals had previously found that plaintiff Greg Jones, who was injured and disabled from work after his car accident for roughly six months, but who then made a very good recovery, should be allowed a day in court to pursue a claim for pain and suffering damages under Michigan’s automobile accident threshold law. 

Judges, you’ve got this Kreiner case all wrong. 
We need to take another look at this “threshold creep” in Michigan’s auto accident threshold law, where each “Kreiner casualty” seems worse than the last.  We have to look at some of these decisions, cases like Jones v. Jones or Gagne v. Schulte, that are leading to such shocking and absurd results. Things are simply getting out of hand.

Not just us lawyers who are completely bewildered.   
As of today, I’ve counted 200 or so unpublished Michigan automobile accident injury cases where the defendant insurance company has won, and 30 or so auto accident cases where the Plaintiff has won.

As an attorney, one of the toughest questions I face is “Why was I told I don’t have a case?”   Unfortunately, I hear this all too often.   Two weeks ago, on November 15, 2007, the Michigan Court of Appeals passed judgment on Cynthia Jones.  Now, I expect to face this question more and more from victims whose lives have been shattered by car accidents.

This letter to the Detroit Free Press was written by Wayne Miller, an excellent lawyer, friend and colleague practicing law in Southfield, Michigan.   Wayne and I serve together on the Michigan Auto No-Fault Committee for the Michigan Association for Justice.  In addition to teaching law at Wayne State University Law School in Detroit, Wayne specializes in handling large provider claims, where he and the other lawyers in his office represent hospitals and doctors around Michigan.  This is what Wayne recently wrote: