When Susan Al-Maliki was seriously injured in a rear-end car accident, she never thought it would be a Wayne County Circuit Court judge in Detroit who would pose the greatest obstacle to her pain and suffering claim reaching a jury.
Without warning – and without providing her an opportunity to respond – Judge Warfield Moore Jr. dismissed Ms. Al-Maliki’s auto-tort lawsuit for a reason that he alone chose to focus on.
Even though the defense lawyer for the at-fault driver’s insurance company had limited her arguments in her motion to whether Ms. Al-Maliki had satisfied the “serious impairment of body function” threshold (for suing for non-economic damages under Michigan’s no-fault insurance law), Judge Moore took it upon himself to attack the causation element of the case. In other words, he instead focused on whether the car accident caused the plaintiff’s personal injuries.
Judge Moore’s Attack
First, the circuit court judge invited the insurance defense lawyer – who had essentially conceded the causation issue for summary disposition purposes – to pontificate about whether she thought the collision in question caused Ms. Al-Maliki’s injuries. Not surprisingly, after that type of judicial prompting, the defense lawyer chose to dispute causation.
Second, Judge Moore chose to ignore Ms. Al-Maliki’s improvised rebuttal to the insurance defense lawyer’s remarks. Ms. Al-Maliki’s lawyer pointed out that an IME doctor thought the collision may have led to or exacerbated her injuries.
Finally, Judge Moore announced he had heard enough. He declared there was no evidence of causation and, if there was, it was the plaintiff’s fault for not presenting it to the court. Then Moore threw out the case.
Michigan Court of Appeals Brings Back Common Sense
Outraged, Ms. Al-Maliki appealed to the Michigan Court of Appeals. In a tempered, but critical, unanimous published, per curiam opinion in Al-Maliki v. LaGrant, a three-judge panel reversed Judge Moore’s dismissal order, saying:
“The basic requirements of due process in a civil case include notice of the proceeding and a meaningful opportunity to be heard. Our review of the record reveals that the basic requirements of notice and a meaningful opportunity to be heard have not been satisfied in this case.”
The appellate judges, which included Judges Pat M. Donofrio, David H. Sawyer, and Donald S. Owens, noted the “trial court decided the matter on an issue not before the court at that juncture because defendant clearly conceded causation for purposes of [her] Kreiner [v. Fischer] motion.”
The judges added: By being “dismissive of plaintiff’s counsel” and ignoring his efforts to bring favorable causation evidence to the court’s attention, Judge Moore failed to live up to his “responsibility to provide plaintiff with the opportunity to be heard” on the causation issue, which the “trial court decided to bring up …”
Many Trial Court Judges Replace Precedent
I’ve tried cases in front of Judge Moore. I like him on a personal level and I should point out that he has always treated me and the other auto accident lawyers in my law firm fairly. A few years back, Judge Moore did let in triple level hearsay based upon an insurance adjuster’s impressions of medical records from a decade before my client’s crash, but he isn’t the only judge or lawyer in America who sometimes struggles with hearsay evidence.
I hope this case was just a bad day for him.
The far more interesting factor in this case, and the reason I chose to blog about it today, is the judicial warning shot that the Court of Appeals gives loud and clear to all the pro-Kreiner activist judges in Michigan. The greatest tragedy of Kreiner v. Fischer has been the thousands of innocent, injured car accident victims who have lost their day in court due to Michigan’s harsh auto accident injury threshold. But an additional aspect that’s at least as troubling is the feeling that respect for law and precedent has been replaced by political ideology amongst trial court judges — as Kreiner has served as an excuse for some judges to clear their dockets of personal injury cases.
As I said, one bad day in court for Judge Warfield Moore aside, I think this decision was aimed at the pro-Kreiner activist judges throughout Michigan, warning them that the basic elements of fairness and due process must still be followed.
– Steven M. 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. Michigan Auto Law has received the largest reported jury verdict for an automobile accident case in Michigan in seven of the past 10 years, including 2009, according to published year-end verdicts and settlements reports.
– Photo courtesy of Creative Commons, by dreamsjung
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