Earlier this month, we posted “Do I Have a Good Case?”, illustrating 8 inconsistent examples of how Michigan’s car accident injury laws unfairly impact real people, with identical injuries from car accidents.   All examples were based on actual cases, although one example (Gagne v. Schulte) stands out as so extreme, it has been questioned by our readers as “unrealistic”.

Sadly, that case was all too real.  Krista Gagne was 21 years old when her car was hit by a drunk driver.   Krista suffered very serious injuries, including a torn anterior cruciate ligament and medial meniscus that ultimately required reconstructive knee replacement surgery.  She lost over a year from work, had extensive physical therapy, and ultimately lost her job. 

On April 3rd, 2008, the conservative, 4-justice majority of the Michigan Supreme Court, referred to as the “Gang of Four” by many Michigan personal injury lawyers, wiped out all lawsuits and legal claims based on consortium in any car accident caused by government employees.  Parents, children and spouses are now barred from making any claim for loss of society, companionship, or consortium for the injury or death to a loved one if the car accident has been caused by a governmental employee.   This terrible decision is still limited to lawsuits against a governmental entity based upon the negligence of a governmental employee in causing a motor vehicle accident.  Michigan lawyers can still bring a loss of consortium claim for personal injury or death to a parent, spouse or child after car accidents not been caused by a governmental employee.
 
Wesche v. Mecosta County Road Commission:
The decision, Wesche v. Mecosta County Road Commission was authored by Justice Corrigan, the same justice who has ironically called herself a “champion of children,” despite authoring such previous travesties as Cameron v. ACIA.  Justice Corrigan ruled in Wesche that the parents of an unborn child killed in a car accident caused by a negligent driver employed by the government, cannot recover anything for the loss of society and companionship of their child. 

Last week, I was asked to teach a class at Cooley Law School on Michigan’s automobile accident law.   The class normally covers Michigan No Fault Law, but this class was on third-party claims – suing the insurance company of the person who causes an accident.

Below are some examples I used during the class to show law students how Michigan’s car accident threshold law of “serious impairment of body function” discriminates against different types of people, even when they have suffered identical personal injury from motor vehicle accidents.  The elderly, young children, those already disabled, and those who choose to stay at work in the home have a far more difficult time under our current automobile accident threshold law. 

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.     

Bankruptcy Issues for when you are injured:
Unfortunately, there are many people in Michigan declaring bankruptcy these days, and serious car accidents can occur whether an economy is good or bad.  

How does a bankruptcy filing affect a person who has been injured in an automobile accident?
The most important advice I can give someone who has been injured in a car accident and who is considering whether to declare personal bankruptcy is to avoid filing bankruptcy if at all possible.  The reason is that your bankruptcy becomes an “asset” of the bankruptcy estate.  The bankruptcy trustee (not you, as the person injured in the automobile accident) will decide how much your legal case is worth and when to settle it.  The problem with the trustee holding control of your legal case is that his interests are not the same as yours. 

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.

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: