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How To File A Lawsuit

Steps to Take When Pursuing a Truck Accident Case in Michigan

By Steven M. Gursten

1. People injured in Michigan truck accidents must show impairment — not pain.

Michigan law requires that victims injured in a commercial truck accident be able to show a “serious impairment of body function.” That means that a person can be in pain every day, but if he cannot show how his life is different after the truck accident than it was before, it’s unlikely he will have a successful case.
Demonstrating “impairment” is the most important way a Michigan truck accident lawyer can make a successful case for you for injuries you have suffered from a truck accident. Impairment is commonly referred to as lifestyle impact. The more ways you can show changes in your daily life, the easier it is to show how the truck accident has affected your normal life. Courts will look at such factors as the amount of time off of work, the type and length of medical treatment, and what affect the auto accident had on a person’s ability to perform the hobbies, recreational activities and interests he performed prior to the accident.

2. Michigan no-fault law has a ONE YEAR time limit to apply for benefits — No exceptions!

Michigan is a no-fault law state. That means there are two cases for your accident, not one. The first is against the driver and company that caused the truck accident. The second case, which can be overlooked, is for Michigan auto insurance benefits. These no fault auto insurance benefits are also commonly referred to as no-fault or first-party or personal injury protection (PIP) benefits. Even if you are completely innocent and have been seriously hurt, your own insurance company 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 truck 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. That means it is too late to ever file a lawsuit to recover those benefits that have now been lost forever. That’s because tolling — which allowed insurance adjusters to investigate claims, and 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) — was eliminated in Michigan when the Michigan Supreme Court issued Devillers v. ACIA. The ruling overturned existing case law 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. Previously, tolling prevented these bills from becoming time-barred by the one-year statute of limitations.

Again, because of Devillers, there is a strict one-year rule in Michigan: If a submitted expense is not paid within one year of the date it is incurred, it becomes time-barred. There are no exceptions This strict one-year rule also applies when a no-fault application for benefits must be filed, thanks to another terrible decision Cameron v. Auto Club Insurance Association. After Cameron, the one year rule now also applies to minors and to those who are found mentally incompetent or disabled. For example, both a child and a truck accident victim in comas for a year due to a disabling traumatic brain injury would lose the right to receive Michigan no-fault benefits — if an application for benefits had not been filed with the correct no-fault insurer within one year of the semi-truck accident.

3. You have three years to file a lawsuit for injuries from a Michigan truck accident, but you really may have far less time than that.

Michigan truck accident victims have three years to file a lawsuit for injuries sustained from an auto accident. But in reality, injured victims may have much less time than that.

Here’s the reason: Many Michigan truck accident victims have two additional types of coverage called Uninsured or Underinsured Motorist Coverage (UM or UIM). These options may have notice provisions that are far shorter than the one-year statute of limitations in first-party no-fault cases, or the three-year statute of limitations in filing a tort lawsuit against a negligent driver.

Michigan courts have repeatedly ruled that because UM and UIM are “optional” types of coverage, the insurance policy’s contract language controls 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. On the other hand, Michigan courts have held that notice provisions to the auto insurance company within only two weeks are valid under Michigan law — regardless of the severity of the personal injuries, or a very reasonable explanation for why notice was not provided.

Please be sure to check your auto insurance policy immediately after you are involved in a 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 a personal injury attorney who is experienced in Michigan truck accident law immediately.
Additionally, if you currently do not have UM or UIM, please read about the benefits and protect yourself now. If you or a loved one is ever involved in a serious car or truck accident, these may be the most important types of coverage you can have.

4. All truck accident injuries (even minor ones) must be documented on no- fault application for benefits.

In 2004, the Michigan Court of Appeals ruled in Ross v. Allstate 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. Ross v. Allstate is an important example of how dangerous it can be for people who are hurt in truck 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 more common problem is that important symptoms of these injuries are not documented early in medical records or reported to doctors, so payment for medical services is then later denied or refused.

For instance, important symptoms like headaches, dizziness, light-headedness, ringing in the ears (tinnitus), blurred vision, short-term memory loss, jarred concentration, or emotional changes are not reported to doctors because the patient dismisses them as minor concerns. But when these traumatic brain injury symptoms become far more evident, such as when the masking effects of pain medications for accompanying physical injuries later stops, 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 truck accident victim was still off of work, it can be too late 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 reported in a timely manner, as in Ross v. Allstate, or they are contested because of a long delay between when the occurrence of the truck accident and the diagnosis of the injuries.

Michigan auto accident lawyers who understand the complexities of handling closed-head injury cases cannot stress this point enough to victims and their families: Do not try to determine on your own that your injuries are too minor to report. If it hurts, tell your doctors, and tell them as soon as possible. Also report all of your injuries to your insurance company on your application for benefits immediately.

 

5. Prompt medical attention and documentation for ALL injuries is 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 struck your head or lost consciousness. Seek diagnostic testing for your brain to rule out bleeding as soon as possible. Back and neck pain, and other areas where you are experiencing pain must be documented as soon as possible, too. 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 of Michigan Auto Law have all too often experienced the sad consequences of medical delay. Please, if you or a loved one has suffered any injuries from a 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. The two biggest mistakes made by victims of Michigan truck accidents are…

Two simple rules can prevent truck accident victims from harming the value of their auto injury case.

1. Do not hide information;
2. 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 Michigan personal injury attorneys consider these to be the two biggest mistakes made by accident victims? Trial advocacy essentially boils down to a pair of simple issues: being credible and being likeable. Because jurors want to do the right thing, they need to believe something is true if they are going to be motivated to help. In turn, jurors tend to give more money to people that they like and believe to be credible.
When a defense attorney argues at trial that a truck accident victim did not fully disclose important parts of his medical history, this will likely have an impact on the value of the auto injury case.

In a lawsuit, the semi-truck accident victim’s entire medical history can be discovered. So a proper history must be provided immediately to doctors, and it must be as accurate as possible. Remember that we live in an age of computers, private investigators and social security numbers. If an injury ever appeared in your medical or work records, it will be found. An old or minor injury that occurred years ago to the same area injured by a new truck accident must be disclosed, so doctors can properly differentiate between old and current automobile accident related injuries. 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 repeatedly seen that clearly inadmissible information, such as an old criminal record, can become admissible evidence because the injured party did not disclose the information when asked by doctors, in depositions or lawsuit interrogatories. Remember, if you have hired a Michigan no-fault lawyer, he or she is on your side, but your attorney has to know about your history to help you.

7. Surveillance by defense is expected for serious truck accident cases in Michigan.

It has become expected that defense lawyers will conduct surveillance during the course of a serious Michigan truck accident case. Whenever there is a serious automobile accident injury that requires significant first-party, no-fault benefits to be paid, it’s expected that insurance companies will conduct surveillance as well.

We typically find that almost everyone tells the truth. The danger occurs when a truck accident victim almost never performs a specific task, say, taking out the garbage, except for one day when there is no one around to help. So the injured person may take out the garbage, and forget about the task in a deposition. In turn, the defense lawyer can make accusations of lying or exaggerating, instead of seeing this as an honest mistake. Unfortunately, this type of mistake has the potential to destroy a truck accident case. Even if the task was truly performed just once, it could be caught on video and the jury could believe that this is something that has been done on a routine basis.

Ethical truck accident attorneys recommend that if there’s 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 is always the right answer.

What most truck 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. Jurors like people who try their best — even if they could only perform a task once or twice because it caused too much pain afterwards.

8. Misrepresentations made to insurance companies can prevent right to sue for injuries.

Uninsured and Underinsured Motorist Coverage (UM and UIM) are optional types of coverage that provide many important protections. If an insured person makes a misrepresentation that is considered material, the insurer may be entitled to cancel the insurance policy.

More specifically, an insurance company has no obligation to pay if an insured person has misrepresented where a truck is principally garaged for lower rates, or if an insured person has not disclosed other drivers who are also regularly driving the vehicle.

Take Michigan Court of Appeals case Jones v. ACIA. It held that “fraud or concealment” by an insured person can actually void an insurance company’s obligation to pay on a claim. In Jones, the law was actually extended to a misrepresentation made by an insured person in a completely different case — the insured person’s own personal injury protection (PIP) no-fault claim. The misrepresentation cost the insured person the right to receive any compensation for injuries from her automobile accident.

Michigan law is the most draconian in the entire country. Uninsured drivers who also own the vehicle they were injured in cannot receive any Michigan no-fault PIP benefits. Moreover, uninsured drivers/auto owners also lose the right to sue the negligent driver who caused the car or truck accident.
Michigan case law 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 allowed under Michigan law) or to void these policies altogether.

Therefore, victims of serious truck accidents must be extremely mindful of the truth in all circumstances. Even if it’s a completely unrelated issue, like providing documentation regarding your wage loss, you can expect that if you have suffered a very significant auto accident injury, defense lawyers will check and investigate your application for benefits, wage and salary verification forms, and other insurance documents.
The consequences in Michigan for not telling the truth 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. was issued by the Michigan Supreme Court. Overnight, thousands of completely innocent seriously injured Michigan residents lost their right to bring a lawsuit for their auto accident injuries.

According to the Court precedent, a person does not have to actually drive an uninsured vehicle a certain number of times in order to be considered a “constructive” owner. The essential inquiry is the “right to use” that vehicle for a 30-day period. If that “right to use” exists, even if the person who has been injured in a car or truck accident has only driven the vehicle a handful of times, then that person will be found to be a constructive owner of that vehicle.
Michigan truck accident lawyers find this so important because 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 no-fault benefits, but that person also loses the ability to sue for injuries against the at-fault driver.

This law is deliberately harsh and punishing. For instance, 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.

10. Strong communication with your Michigan truck accident attorney is imperative.

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 a truck accident attorney first. Often, these Examinations Under Oath (EUOs) are used by experienced defense lawyers to take advantage of an insured person who does not have a lawyer. Questions are asked and topics are explored that have no importance or relevance to the claimed areas of investigation. The only true reason for the interviews is to lessen later exposure in a lawsuit. Because EUOs are recorded and under oath, they can be used against you in your truck accident lawsuits.

Never miss appointments: There is almost never a good reason to miss a doctor appointment. Not going to 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 truck accident attorney everything that worries you: Often, many things like a past DUI, bankruptcy or old injury can cause clients substantial worry and concern. Unfortunately, too many clients decide to hide this information from their lawyers and doctors. Normally, this information would be inadmissible if it is disclosed. But it can become admissible if a person tries to hide the information or fails to disclose it when asked.

Remember, experienced and ethical auto accident attorneys are 100 percent on your side with one common interest — to make sure you receive the most fair settlement and full benefits for your truck accident. Our greatest satisfaction comes from having happy clients who can confidently refer friends and family members, 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, truck accident victims should consult a Michigan personal injury attorney who has experience with the unique challenges related to truck accident cases and Michigan no-fault law. To request a free, no obligation case evaluation, please fill out our consultation form and we will respond to your inquiry within one business day. Or to speak to an attorney immediately, please call (800) 777-0028.

The truck accident lawyers of Michigan Auto Law have helped enforce important truck safety regulations to make our roads safer. No other law firm in Michigan has received more jury verdicts or consistently higher settlements for truck accident cases. In fact, the vast majority of our wrongful death and personal injury cases from truck accidents are referred to us by local attorneys, based upon our record of experience and success. In 2008, Michigan Auto Law partner Steven Gursten received the top verdict in the entire state of Michigan for a truck accident case, as well as the largest truck accident settlement.

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