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Lawyers and Car Accident Victims Hoping for Some Sunshine After Michigan's Kreiner v. Fischer

On Tuesday, I posted an open letter that my Michigan Auto Law partner Bobby Raitt wrote last year, during his presidency of the Michigan Trial Lawyers Association. Bob asked his fellow Michigan personal injury lawyers whether they can “stand the rain”– the “rain” being the dismal state of consumer rights and personal injury law in Michigan following years of the Engler-appointed “Majority of Four” Court’s dismantling of safeguards, precedent and binding stare decisis designed to protect people. These arch-conservative, activist justices have especially wreaked havoc on victims of car accidents and truck accidents in Michigan with the Kreiner v. Fischer decision.

To illustrate how automobile accident victims have been ravaged by Kreiner, Bob pointed out that in 140 of the first 165 unpublished Michigan Court of Appeals decisions concerning Kreiner, plaintiffs had their car accident injury cases dismissed. Kreiner interpreted the no-fault act’s “serious impairment of body function” statute, which establishes the precondition plaintiffs must meet before they can sue for non-economic damages in such a way that many people who suffered serious injuries and who missed months from work, had no rights under Michigan’s threshold law.

But a new era in Michigan jurisprudence may now beckon after former Michigan Supreme Court Justice Cliff Taylor, an arch conservative, lost to Judge Diane Hathaway. Michigan now has a 4-3 Supreme Court philosophical majority that isn’t so heavily partisan and predictably biased in favor of auto insurance companies. Therefore, Michigan lawyers are hoping for big changes to Michigan’s car accident threshold law in 2009, a hypothetical burst of sunshine after it’s been raining on accident victims for so long.

The Future of Kreiner According to Michigan Auto Law Personal Injury Lawyers

Our lawyers hold leadership positions in several important state and local organizations, including the Michigan Association for Justice (formerly the Michigan Trial Lawyers Association), American Association for Justice, Association of Interstate Trucking Lawyers of America and the State Bar of Michigan Negligence Law Section.

Bobby spoke last weekend at the State Bar of Michigan’s Negligence Law Section spring seminar in La Romana, Dominican Republic, for trial lawyers representing plaintiffs and defendants throughout Michigan. His topic was certainly interesting: What does the future hold for Michigan personal injury victims? Bobby reviewed the latest auto threshold cases interpreting Kreiner, and how lower courts are viewing summary disposition motions with the change in the Michigan Supreme Court.

Here’s what Bobby had to say:

“There are a few cases that have been decided by the Michigan Court of Appeals on leave to the Michigan Supreme Court that the Michigan Association for Justice is targeting to overturn Kreiner.

One in particular is a case called McCormick, where the plaintiff suffered serious personal injuries including a fractured ankle, two surgeries and one year on disability from work. The lower court dismissed McCormick under Kreiner; the Court of Appeals affirmed and the plaintiff filed leave to the Supreme Court, which was denied. In November, the plaintiff filed a motion for reconsideration. And in February, the Michigan Association for Justice and CPAN (Coalition for Protecting Auto No-Fault) filed amicus briefs informing the Supreme Court that it should hear McCormick — and that McCormick should overturn the Kreiner analysis.

The reason we believe McCormick may be the right case to overturn Kreiner is because the injuries were so bad, certainly severe enough that it would have survived under the preexisting case law analysis of Cassidy v. McGovern. The Michigan Supreme Court said in Kreiner that the case itself was a return to Cassidy. Second, the injury was bad enough that under the Michigan statue, the jury should be allowed to hear McCormick. Lastly, because of the severity of the injuries, McCormick would be a perfect case for the new Court to revisit in order to restore sanity and common sense to Michigan’s auto threshold law of serious impairment of body function. It should be noted that a majority of sitting justices on the Michigan Supreme Court have now said that Kreiner is wrongly decided.”

Sunshine through the Rain?

As a lawyer in the trenches, it seems like the change in Michigan’s highest Court has already had important changes in how judges in the lower courts are handling motions now. Almost like that scene from the Wizard of Oz, when people broke out singing and dancing that the witch is dead, it seems that many judges are now finding it easier to rule against defense motions for summary disposition, now that they know they do not face almost certain reversal from Michigan’s “Majority of Four.” Lower court judges are feeling more liberated to question some of the changes that have been made in recent years.

The advice Bobby and I give to other car accident attorneys is that they have to focus on the statutory language of MCL 500.3135(7). Summary disposition is never appropriate if there is a material dispute as to the nature and extent of a person’s injuries. Auto accident lawyers must do a better job of this.

My crystal ball says that the courts already see Kreiner being addressed and overturned with a new Supreme Court. The hope is that victims of serious car crashes and truck accidents may now get a fair day in court.

But we’ll see. There’s got to be some sunshine after the rain.

Robert Raitt has been a Michigan Association for Justice officer for the past five years. He has been a speaker and moderator at various seminars for the State Bar of Michigan and the National Business Institute. In practice, Bob is successful in receiving many jury verdicts, arbitration awards and negotiated settlements with very favorable results for his clients.

Steve Gursten is recognized as one of the nation’s top experts in serious car and truck accident injury cases and automobile insurance no-fault litigation. Steve has received the largest jury verdict for an automobile accident case in Michigan in four of the past seven years, including 2008.

— Photo courtesy of Creative Commons by Wili_hybrid

Related information:

10 Lessons for Michigan Attorneys Handling Car Accident Cases

Three Challenges Facing No-Fault Attorneys Today

Video: Kreiner Fix Legislation

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Southfield, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. Call (800) 777-0028 for a free consultation with an insurance lawyer.

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