Top 10 Michigan Auto Accident Guide
Ten Things You Must Know if
Injured in a Michigan Car Accident
by Steven M. Gursten
Note:
In addition to the following Top Ten Guide, a Michigan Car Accident Checklist is available for victims to use at the scene of an accident. The checklist can be printed or downloaded for reference, and placed in the vehicle’s glove box. The information that follows has been prepared by Michigan personal injury lawyers to assist victims of auto accidents in Michigan. This guide outlines the Top Ten most important things to know if you or someone you know has been injured in a Michigan car accident.
1) Michigan Car Accident Victims Must Show Impairment - Not Pain
Michigan law requires that victims injured in a car or truck accident be able to show a “serious impairment of body function.” That means that someone can be completely innocent, in pain every day, but if they cannot show how their life is different after the auto accident than it was before the crash, it is unlikely that they will have a successful Michigan car accident case.
How do Michigan Auto Accident Attorneys and victims demonstrate “impairment?” This is the most important way to have a successful case for injuries sustained from a Michigan car accident. Impairment is commonly referred to as lifestyle impact. The more ways you can show changes in your normal daily life the easier it is to show how the car accident has affected your normal life. Courts will look at such factors as the amount of time off work, the type and length of medical treatment, and what affect the car accident had on someone’s ability to perform hobbies, interests, and recreational activities they performed prior to the Michigan automobile accident.
2) Michigan No Fault Law has a ONE YEAR Time Limit to Apply for Benefits – No Exceptions!
Michigan No Fault First Party PIP (Personal Injury Protection) law is responsible for important benefits such as wage loss, medical bills, replacement services and mileage. Attendant Care may also be payable, based upon the severity of the injuries.
All Michigan automobile accident victims have only one year to file an application for benefits, regardless of age or competency. And all incurred Michigan no fault benefits must be paid within one year of the date the service is incurred. If an incurred expense remains unpaid by your no fault insurance company after one year, and a lawsuit for no fault benefits has not been filed on your behalf, then the amount owing is time barred. No exceptions.
Tolling has been eliminated in Michigan. When the Michigan Supreme Court issued Devillers v. ACIA 473 Mich 562 (2005), it overturned existing case law in Michigan since 1978 that allowed for tolling of medical bills, wage loss, and other important Michigan No Fault benefits until there was a formal denial by the no fault insurance company. Tolling allowed insurance adjusters to investigate claims, and Michigan personal injury lawyers to negotiate settlements for medical bills and other expenses that ran past the one year statute of limitations of MCL 500.3145(1) but had not been formally denied by the insurance company. Previously, tolling prevented these bills from becoming time barred by the one year statute of limitations.
After Devillers, and with it the elimination of tolling and equitable estoppel in Michigan, there is now a strict one year back rule: if a submitted expense is not paid within one year of the date it is incurred, it becomes time barred. No exceptions.
This strict one year rule also now applies when a no fault application for benefits must be filed. Cameron v. Auto Club Insurance Assoc., 263 Mich App 95 (2004). After Cameron, this strict one year rule now applies to minors and to those who are found mentally incompetent or disabled. After Cameron, both a one year old infant child and a car accident victim in a coma for a year after a disabling traumatic brain injury would both lose the right to receive no fault benefits if an application for benefits had not been filed with the correct no fault insurer within one year.
3) Three Years (or Less) to File Lawsuit for Injuries from Michigan Car or Truck Accident
Michigan Third Party auto negligence law allows a claim against the negligent driver for injuries and excess economic loss after the first 3 years (the first 3 years are part of the first party no fault PIP case). Unlike a First Party PIP case with a 1 year statute of limitations, a third party auto negligence case has a 3 year statute of limitations. But, it may actually be far less.
In Michigan, car accident victims have three years to file a lawsuit for injuries sustained from a Michigan automobile accident. But, in reality, injured victims may have much less than 3 years.
Why? Any Michigan car accident victim with Uninsured or Underinsured Motorist Coverage (UM & UIM), two important types of additional coverage, must immediately check their auto policy when involved in a car or truck accident.
Why do experienced Michigan auto accident lawyers stress this? Because uninsured and underinsured motorist coverage are optional types of auto coverage and may have notice provisions that are far shorter than the one year statute of limitations in first party no fault or the three year statute of limitations in filing a tort lawsuit against a negligent driver.
Courts in Michigan have ruled repeatedly that because these are “optional” types of contractual coverage, the insurance policy’s contract language controls with regards to the notice and filing requirements. Courts have upheld contractual provisions requiring a lawsuit be filed within one year from the date of the motor vehicle accident for underinsured motorist benefits. Michigan Courts have also held that notice provisions to the auto insurance company within only two weeks are valid under Michigan law - no matter how serious the personal injuries are, or how reasonable the explanation for why notice was not provided.
Please be sure to check your own auto insurance policy immediately after you are involved in any car or truck accident so you can provide timely notice to your insurance company. If you have any questions regarding the contractual provisions in your insurance policy regarding filing requirements or notice periods, consult with an experienced Michigan personal injury attorney immediately.
And, if you or your family members do not currently have Uninsured and Underinsured Motorist Coverage, please read about the benefits and protect yourself now. If you or a loved one is ever involved in a serious car, truck or motorcycle accident, these may be the most important types of coverage you can have.
4) All Car Accident Injuries (even minor ones) must be documented on No Fault Application for Benefits
In 2004, Ross v. Allstate, No. 245165, 2004 WL 435393 (Mich.App.) was decided. The case held that a person who suffered injuries in a car accident but who FAILED TO GIVE SPECIFIC NOTICE OF EACH OF THOSE INJURIES to his no fault insurance company within one year was later barred from having his no fault insurer pay medical bills for those injuries. (In Michigan, payment for medical treatment for injuries caused by a car accident is a lifetime benefit). This auto accident case is an important example of how dangerous it can be for people who are hurt in car accidents and fail to report all of their injuries to their insurance company.
For people who have suffered CLOSED HEAD INJURIES or MILD TRAUMATIC BRAIN INJURY, a far more common problem is that important symptoms of these injuries are not documented early in medical records or reported to doctors, and payment for medical services is then later denied or refused.
Michigan Auto Accident Lawyers who understand the complexities of handling closed head injury cases cannot stress this point enough to victims and their families. Important symptoms such as headaches, dizziness or lightheadedness, ringing in the ears, blurred vision, problems with short term memory, concentration, or emotional changes are not reported to doctors because the patient dismisses these concerns as minor. When these traumatic brain injury symptoms become far more evident, such as when the masking effects of pain medications for accompanying physical injuries is later stopped, or when someone tries to return to a job that highlights underlying problems with short term memory or concentration that were not as evident when the automobile accident victim was still off work, it can be too late for car accident victims to get the medical treatment for these serious injuries paid by the insurance company.
Injuries that may at first appear minor sometimes get progressively worse instead. When significant and expensive medical treatment is required to address these injuries, the medical bills are either denied entirely because they were not timely reported, as in the Ross v. Allstate case, or contested because of a long delay between when the car accident occurred and when these injuries were first diagnosed months later.
Michigan car accident victims should not try to determine on their own that certain injuries are too minor to report. If it hurts, tell your doctors, and tell them as soon as possible. Report all of your injuries to your insurance company on your application for benefits immediately. Hopefully, your injuries will continue to get better over time. But, better safe than sorry.
5) Prompt Medical Attention & Documentation for ALL Injuries is Absolutely Essential
What seems like minor personal injuries or insignificant pain from a car accident can sometimes have devastating or fatal consequences.
Always seek medical attention immediately if you have struck your head or lost consciousness and seek diagnostic testing for your brain to rule out a bleed as soon as possible. Back and neck pain, and other areas where you are experiencing pain must be documented as soon as possible. A “minor” backache may be a ruptured spinal disk and extruded disk material that can cause paralysis.
Your health and well being are too important. And the personal injury lawyers at Michigan Auto Law have seen too often the sad consequences of medical delay. Please, if you or a loved one has suffered injuries – any injuries – from a car or truck accident, be sure to seek medical attention and treatment as soon as possible. And document every injury, no matter how insignificant it may seem at the time.
6) Two Biggest Mistakes made by victims of Michigan Car Accidents
Two simple rules can prevent car accident victims from harming the value of their auto injury case.
a) Do not hide information; b) Always tell the truth
Violate these two rules and you arm defense lawyers with a valuable weapon to attack your case and undermine the true value of your injuries.
This seems like common sense, so why do experienced Michigan auto accident attorneys consider these to be the two biggest mistakes made by car accident victims? Trial advocacy essentially boils down to two simple issues: being credible and being likeable. Jurors want to do the right thing. They need to believe something is true if they are going to be motivated to help. And jurors tend to give more money to people that they like and believe to be credible. It’s human nature.
When a defense attorney argues at trial that a car accident victim did not fully disclose important parts of his or her medical history, this will likely have an impact on the value of the auto injury case.
In a lawsuit, the auto accident victim’s entire medical history will be discoverable information. A proper history must be provided immediately to doctors and it must be as accurate as possible. Obviously, you must always tell the truth. An old injury or a minor injury that occurred years ago to the very same area injured by a new car accident must be disclosed so doctors can properly differentiate between old and current automobile accident related injuries. Remember that we live in an age of computers, social security numbers and private investigators. If an injury ever appeared in your medical records or work records, it will be found. Always admit what you can remember, as it prevents defense attorneys from later claiming that you tried to “hide” this information or were exaggerating your injuries.
We have seen time and again that clearly inadmissible information, such as an old criminal record, can become admissible evidence because the injured party did not disclose this information when asked by doctors, in depositions or lawsuit interrogatories. Remember, if you have hired a Michigan personal injury lawyer, he or she is on your side, but your attorney has to know about it to help you.
It is a simple philosophy: always tell the truth, leave nothing out. Your attorney should handle everything else.
7) Surveillance by Defense is expected for Serious Michigan Car & Truck Accident Cases
It has become expected that defense lawyers will conduct surveillance during the course of a serious Michigan car or truck accident case. Whenever there is a serious automobile accident injury case that requires significant first party no fault benefits to be paid, it is expected that insurance companies will conduct surveillance as well.
We typically find that almost everyone tells the truth. The danger occurs when a car accident victim has almost never performed a specific task, say, taking out the garbage, except for that one day when there was no one there to help. The injured victim takes out the garbage, and forget about it months later in a deposition. Unfortunately, this is the type of mistake that has the potential to destroy an auto accident case. Even if the task was truly performed just one time, it has been caught on video and the jury may well believe that this is something that has been done on a routine basis.
When injured auto accident victims fail to disclose something like this when specifically asked about it in a deposition, the defense lawyer can make accusations of lying or exaggerating, instead of seeing this as an honest mistake. It just isn’t worth it.
So what do ethical Michigan Auto Accident Attorneys recommend?
If there is any basis of truth to the question you are being asked, even if it was just one time, just admit it. There is no reason why you can not disclose something, and then explain the circumstances behind it. Maybe it was just a good day, and you were on pain medication. Maybe it was the first time you attempted the task and just wanted to see if you could do it. Telling the full truth, leaving nothing out, is always the right answer.
What most car accident victims fail to realize is that these scenarios are exactly what make them human. It shows that you are not just “giving up”, you are trying to do the best you can. And it makes you likeable. Jurors like people who try their best, who do what they can and don’t give up - even if they could only perform a task once or twice because it caused too much pain afterwards.
The point bears repeating: if there is any basis of truth to it, however remote, admit it and then explain it. You will be supporting your own credibility and honesty, and you will deprive the defense of a cheap shot.
8) Misrepresentations made to Insurance Companies can prevent Right to Sue for Injuries
Uninsured (UM) and Underinsured (UIM) Motorist Coverage are optional types of coverage that provide many important protections. If an insured makes a misrepresentation that is considered material, the insurer may be entitled to cancel the insurance policy.
Recent cases, such as Jones v. ACIA, No. 261089, WL 2017354 (Mich. App. 2006) have held that “fraud or concealment” by an insured can actually void out an insurance company’s obligation to pay on a claim. In Jones, the law was actually extended to a misrepresentation made by an insured in a completely different case - the insured’s own PIP no fault claim. This misrepresentation voided the insurance company’s obligation to pay for her injuries in an uninsured motorist claim. In other words, the misrepresentation cost the insured the right to receive any compensation for injuries from her automobile accident.
More specifically, an insurance company has no obligation to pay if an insured has misrepresented where a car or truck is principally garaged for lower rates, or if an insured has not disclosed other drivers who also regularly driving their vehicle. People who use a different address to get lower rates from an insurance company are putting themselves at great risk. If that person is later seriously injured in any type of motor vehicle accident, the insurance company can rescind the policy from the beginning, making that driver an uninsured driver.
And here in Michigan the law is the most draconian in the entire United States. Uninsured drivers who also own the vehicle they were injured in cannot receive any Michigan no fault PIP benefits. Moreover, uninsured drivers/owners also lose the right to sue the negligent driver who caused the car accident. Misrepresentations to obtain slightly more favorable insurance rates may later come with a very steep price indeed.
The case law in Michigan has allowed insurance companies to reduce much larger UM and UIM policies to minimum $20,000 policy limits (the lowest policy limit for bodily injury allowable under Michigan law) or to void these policies altogether.
Be extremely careful. Even if it is a completely unrelated issue, (for example, providing documentation regarding your wage loss) you can expect that if you have suffered a very significant automobile accident injury, defense lawyers will check and investigate your application for benefits, wage and salary verification forms, and other insurance documents. As has been mentioned time and again, always tell the truth and do not exaggerate. The consequences in Michigan are so punitive and can truly destroy your chances of receiving a fair and full measure of compensation for your accident injuries.
9) “Right to Use” an Uninsured Vehicle may cost your “Right to Sue”
In 2004, the case of Twichel v. MIC General Insurance Corp., 469 Mich. 524 (2004) was issued by the Michigan Supreme Court. Overnight thousands of completely innocent, seriously injured Michigan citizens lost their right to bring a lawsuit for their injuries from Michigan automobile accidents.
Now, a person need not actually drive an uninsured car a certain number of times in order to be considered a “constructive” owner of that vehicle. The essential inquiry today is the “right to use” that car for a 30 day period. And if that right to use the car exists, even if the person who has been injured in a car accident has only driven that vehicle a handful of times, then that person will be found to be a constructive owner of that vehicle.
Why do Michigan car accident lawyers find this so important? If someone is found to be a constructive owner of a vehicle then they are also, by definition, an uninsured owner of that vehicle. And in Michigan an uninsured owner of a car or truck not only loses the ability to receive Michigan no fault benefits, but they also lose the ability to sue for their injuries against the at fault driver.
This law is so deliberately harsh and punishing that it deserves repeating. Even if you are paralyzed for life by a drunk driver, if you are found to have had the “right to use” an uninsured car, you can not sue for your injuries, no matter how severe. You cannot sue the driver that caused your injuries.
10) Strong Communication with Michigan Auto Accident Attorney is Essential
Alert Your Attorney regarding any doctor visits or medical examinations that your insurance company is sending you to.
Never give a statement, recorded, or otherwise, to anyone including your own insurance company without contacting us first.
Often, these Examinations Under Oath, (EUOs) are used by experienced defense lawyers to take advantage of an unrepresented insured. Questions are asked and topics explored that have no importance or relevancy to the claimed areas of investigation, the only true reason is to lessen later exposure in a lawsuit. These are far too important, and because they are recorded and under oath, they can be used against you in your car accident lawsuits. Contact an experienced Michigan auto accident attorney immediately if you have questions or require guidance or counsel.
Never Miss Appointments:
Do what your doctors say. There is almost never a good reason or excuse to miss a doctor appointment. Not going to these appointments, or physical therapy, can often be interpreted by a doctor (or a jury) that you don’t really care, or aren’t really hurt. It is very important to work hard to get better and keep all of your appointments.
Tell Your Auto Accident Attorney Everything that Worries You:
Often, many things like a past DUI, a bankruptcy, an old injury, can cause clients substantial worry and concern. Unfortunately, too many decide on their own to hide this information from their lawyers and doctors instead of disclosing it. And far too often this information would have been inadmissible if it had been disclosed, but instead became admissible because a person tried to hide it or failed to disclose it when asked.
Remember, experienced and ethical auto accident attorneys are 100% on your side with one common interest: to make sure you receive the most fair settlement and full compensation for your car accident.
Our greatest satisfaction is derived from having happy clients who can confidently refer friends and family members for years to come, knowing they too will receive the best possible legal results. But we have to know about your concerns if we are truly going to help.
To avoid these and other dangerous pitfalls, auto accident victims should consult a Michigan personal injury attorney experienced with the unique challenges related to auto accident cases and Michigan No Fault Law.
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