New auto law promises hope and a second chance for hundreds of Michigan car accident victims who were told they did not have cases
Rodney McCormick v. Larry Carrier and Allied Automotive Group, Indemnitor of General Motors Corp. was released just before midnight on Sunday, August 1, 2010. Here are my initial thoughts on the impact this important Michigan Supreme Court case will have for car accident victims, the insurance industry, and Michigan personal injury lawyers – including auto lawyers who help accident victims and those who do insurance defense work on auto negligence claims.
First impressions: As important as McCormick v. Carrier is, the decision is actually quite modest. McCormick v. Carrier creates no new law. It is important by subtraction, not by addition.
What makes this decision remarkable is that it strips away the improper judge-made law that was created by four Republican justices in Kreiner v. Fischer, in 2004. These four Michigan Supreme Court justices – Justice Young (up for election this November), along with Justice Corrigan, Markman and Taylor – essentially created an entirely new auto law in this state with Kreiner. It went far beyond what the Legislature enacted. These four judges took a short, simple, clear and unambiguous statutory definition of “serious impairment of body function” and added entirely new, and far harsher and more restrictive language that greatly hindered the rights of those injured in auto accidents in Michigan.
It should be noted that this new judge-made language in Kreiner was seemingly created out of thin air, as it was entirely absent from the legislative definition and the legislative history.
As Justice Cavanaugh himself writes in McCormick: “The dissenters’ stare decisis protestations should taste like ashes in their mouths. To the principles of stare decisis, to which they paid absolutely no heed as they
denigrated the wisdom of innumerable predecessors, the dissenters now would wrap themselves in its benefits to save their recent precedent… Indeed, the members of the dissent have overruled case law without even paying lip service to Robinson, see, e.g., People v Anstey , 476 Mich 436; 719 NW2d 579 (2006), or after engaging in a cursory or limited analysis of the factors that they claim fidelity to today. See, e.g., Wesche v Mecosta Co Rd Comm , 480 Mich 75, 91 n 13 (2008); Al-Shimmari v Detroit Med Ctr, 477 Mich 280, 297 n 10; 731 NW2d 29 (2007); Neal v Wilkes, 470 Mich 661, 667 n 8; 685 NW2d 648 (2004); People v Hickman, 470 Mich 602, 610 n 6; 684 NW2d 267 (2004); Mack v Detroit, 467 Mich 186, 203 n 19; 649 NW2d 47 (2002).”
Not out of the woods yet – the auto accident serious impairment threshold still exists
McCormick removes the additional restrictive hurdles created by Justices Young, Corrigan, Markman and Taylor, by taking away additional judge-made restrictions like “course or trajectory” and “entire normal life.” In other words, most of the language requiring long, temporal periods of disability after an auto accident are now removed.
But it is important to remember that this is not a “win” for auto accident lawyers, and certainly not for auto accident victims in this state. Removing the judge-made language from Kreiner is important, but it still leaves Michigan with one of the hardest auto accident thresholds in the entire nation. Don’t forget, the auto law has simply been returned to the way it was intended and enacted by the Michigan Legislature back in 1995.
What people forget is that in 1995, all three branches of Michigan government were controlled by the Republican Party, and the Republican Legislature enacted this law as a result of significant lobbying by the insurance industry in Michigan. At the time, it was considered a huge win for the insurance industry, and indeed, it has led to a 54 percent decrease in auto claims, according to the State of Michigan Department of Energy, Labor and Economic Growth (DELEG).
But all those promises of significant insurance premium reductions that the insurance industry said we would see if we passed this law back in 1995 never materialized. In fact, the insurance industry has only continued raising premiums, even while profits have rocketed to new highs.
And with the huge victory that the insurance industry just won on using credit scoring last month, don’t shed any tears for insurance industry profit margins. Auto liability payments by insurance companies are actually pretty insignificant, only “pennies” of each No-Fault dollar. Any increase in payouts, assuming there are any after McCormick, will be more than offset by the money the insurance industry now makes as a result of its credit scoring win.
A return to common sense: What McCormick really means for auto accident victims
The victory here is important. McCormick v. Carrier is a return to the rule of law, as it is written by the Legislature, and as taught to lawyers and judges to respect the law as it is written, even if we may disagree with it. The real evil of Kreiner v. Fischer was that four Republican judges wanted to make Michigan’s auto accident threshold even harder than the one that was enacted nine years earlier in 1995, by a Republican Legislature and signed into law by John Engler, a Republican governor. However, as our Supreme Court has observed, respect for the unambiguous language of a statute is important “to avoid an arbitrary discretion in the courts, it is indispensable that [courts] should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them…” Petersen v. Magna Corp, 484 Mich 300 (2009).
The real victory is that we now have a return to at least some level of common sense, justice and fairness in this state. If Kreiner had not been overturned, and if cases like Rodney McCormick’s serious fracture, two surgeries, and one year off of work from his Flint auto accident were not going to be sufficient in this state to be compensable injuries, it would have wiped out 99 percent of auto accidents in this state and only the most permanent and catastrophic injuries would have been compensable. After all, lawyers would have known that anything less than Mr. McCormick’s injuries and year off work were not, as a matter of law, sufficient. And that would have been a result heretical to the entire scope and intent of the Michigan No Fault Act, and one not even the conservative Republicans that changed our law in 1995 ever intended.
We return now, on Monday, August 2, 2010, to that law.
The auto accident law in Michigan is still tough. It is still tougher to bring a case for pain and suffering and injuries from a car accident here than it is in almost any other state. But at least serious injuries from car accidents – the fractures, the herniated disks, the surgeries, the people who lose weeks and months from work; the types of cases that you and I intuitively understand in our gut are serious cases where people should be getting something – are cases that can now still be heard under McCormick v. Carrier.
Kreiner is dead. Long live McCormick, a return to common sense, and respect for the rule of law.
– Steven M. Gursten is recognized as one of the nation’s top attorneys handling serious car and truck accident injury cases and auto insurance no-fault litigation. Steve speaks and writes extensively on Kreiner and Michigan’s No-Fault laws and he is available for comment on Michigan’s new auto accident law, McCormick v. Carrier.
– Photo courtesy of Creative Commons
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