10 lessons for Michigan Attorneys Handling Car Accident Cases
McCormick v. Carrier is Michigan’s new auto accident threshold law.
In 2010, the Michigan Supreme Court issued its landmark ruling in McCormick v. Carrier, which restored the true meaning and intent of Michigan’s auto accident threshold law by overruling the disastrous Kreiner v. Fischer decision from 2004.
For six long years, auto accident attorneys struggled to secure justice for their clients in spite of the frequently insurmountable obstacles created by Kreiner.
By overruling Kreiner, McCormick has restored to car crash victims the legal rights they need to have a fighting chance at satisfying the No-Fault law’s “serious impairment of body function” requirement for pain and suffering recoveries.
Below are the 10 lessons to be learned from McCormick and its overruling of Kreiner.
1: Michigan Car Accident Law Reaffirms The Legislature’s Intent
After the Michigan Legislature enacted Public Act 222 of 1995, which defined what a “serious impairment of body function” is, there was considerable debate among appellate and trial judges and as well as car accident lawyers and insurance defense lawyers about the extent to which the threshold law reflected reaffirmations and/or rejections of Cassidy v. McGovern, 415 Mich 483 (1982) and DiFranco v. Pickard, 427 Mich. 32 (1986).
In McCormick, the justices definitively put the issue to rest:
“[T]his opinion faithfully applies the text of the statute . . . . The opinion fully recognizes the Legislature’s adoption of Cassidy where the Legislature indicated an intent to do so through the text of the statute and “resuscitates” DiFranco only in the narrow places where, similarly, the statutory text indicates a legislative intent to do so.” (Page 39)
2: Course or Trajectory Language No Longer Applies
Among the many criticisms of the Michigan Supreme Court’s Kreiner decision was the majority’s creation of its non-text-based “course or trajectory” test for evaluating whether a car accident’s “entire normal life” has been adequately affected by his or her accident-related impairment to be entitled to non-economic loss damages.
The McCormick court ruled that “course or trajectory” had no place in the “serious impairment of body function” analysis:
“[T]he Kreiner majority went astray and gave the statute a labored interpretation inconsistent with common meanings and common sense. [The “course or trajectory” test] is quite different from the actual statutory text in form and substance. Significantly, the Kreiner majority’s interpretation of the statute interjects two terms that are not included in the statute or the dictionary definitions of the relevant statutory language: “trajectory” and “entire.” Both terms create ambiguity where the original statutory text had none, and the Kreiner majority thus erred by selectively defining the words used in definitions of statutory terms in order to shift away from the common meaning that the words have in the context of MCL 500.3135(7) [now subsection (5)].” (Page 23)
3: Auto Accident Victim’s Restrictions: Law Does Not Proscribe Either Physician-Imposed or Self-Imposed
Another criticism of the “judicial legislation” generated by the Michigan Supreme Court’s majority in Kreiner is the requirement that restrictions on a car accident victim’s work and activities be physician-imposed and not self-imposed. This is found in footnote 17 of Kreiner where, in discussing the factor of residual impairment, the Court wrote that (for the first time) a car accident victim may not establish this factor by testifying to his own self-imposed limitations on activity due to pain.
Unfortunately, many trial courts and appellate panels misconstrued this footnote, addressing only one of the five “nonexhaustive factors” as a mandatory requirement in deciding serious impairment.
Although the resultant confusion was subsequently addressed by the outstanding case of McDanield v. Hemker 268 Mich App 269 (2005), a devastating number of very serious injury cases were lost because of the absence of doctor-imposed restrictions, even when the injuries from the motor vehicle accident were obvious and severe.
By concluding that Kreiner erred in adopting its non-text-based 5-factor list (which included residual impairment), the McCormick rejected the Kreiner court’s elevation of physician-imposed restrictions over self-imposed restrictions. (Pages 26-27)
4: Michigan Lawyers Must Remember There Is No Temporal Requirement
Defense lawyers used – and judges relied on – Kreiner for the proposition that a car accident victim’s “serious impairment of body function” must be long, if not permanent, in duration in order to recover pain and suffering compensation under the No-Fault threshold law.
Indeed, Kreiner instructed that a “serious impairment” must be evaluated based on “how long” it affects a victim’s life. Additionally, no less than four of the justice’s five “serious impairment” factors involve temporal issues.
Consequently, in the post-Kreiner era, many innocent car crash victims had their cases thrown out of court because they suffered temporary or relatively brief durations of impairment.
The McCormick court has put an end to Kreiner’s erroneous way of thinking:
“[T]he statute does not create an express temporal requirement as to how long an impairment must last in order to have an effect on “the person’s general ability to live his or her normal life.” To begin with, there is no such requirement in the plain language of the statute. Further, MCL 500.3135(1) provides that the threshold for liability is met “if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.” While the Legislature required that a “serious disfigurement” be “permanent,” it did not impose the same restriction on a “serious impairment of body function.””(Page 21)
“The [McCormick] opinion merely notes that there is no specific express temporal requirement in the text of the statute and rejects Kreiner’s strained attempts to insert what was essentially a permanency requirement into the statute.” (Page 41)
5: Proving Accident Victim’s General Ability to lead Normal Life Has Been Affected
In overruling Kreiner’s interpretation of the No-Fault threshold law, the McCormick clarified what car accident victims need to show in order to satisfy the “general ability/normal life” component of the “serious impairment of body function” statute:
An objectively manifested impairment of an important body function has affected a person’s general ability lead his or her normal life if it has had “an influence on some of the person’s capacity to live in his or her normal [“pre-incident”] manner of living.”
“[A] person’s general ability to lead his or her normal life [must have] been affected, not destroyed.”
“[T]he statute does not create an express temporal requirement as to how long an impairment must last in order to have an effect on the ‘person’s general ability to live his or her normal life.’”
6: Auto Accident Threshold Treats Different Classes of People Differently
This is another area of concern for attorneys handling auto accident cases in Michigan: Different classes of people are treated differently by the threshold law . As the focus of Michigan law is on impairment, and not on pain, after an automobile accident, it is clear that certain types of people are judged far more harshly than others under Michigan’s auto law. The elderly, the very young, the stay at home spouse, and those who are already disabled due to another injury or condition will have a much harder timing proving impairment than someone in the workplace.
This should be of concern not only for attorneys but for anyone concerned with public policy and equal protection for Michigan residents. Why should those who are most vulnerable – the elderly, the very young, the already disabled – have a harder time recovering for injuries from their car accident than someone who is healthy and working? Is this good public policy?
7: Michigan Car Accident Attorneys Must Focus on Impairment, Not Pain
The main focus for Michigan attorneys and car accident victims must always be on impairment, though complaints of pain may be considered by courts.
When it comes to satisfying the “objectively manifested impairment” requirement, the McCormick ruling concluded Kreiner “wrongly decided” to the extent it rejected “subjective complaints” of pain and “could be read to always require medical documentation” to prove an impairment. (Page 16)
8: Automobile Accident Negligence of Wrongdoer Does Not Matter
In Michigan, the degree of negligence of the person who causes the car accident does not matter. In many other states, the facts regarding a car accident, especially when they are extreme or outrageous, can lead to separate causes of action and protection for accident victims. In Michigan, there is no accountability for extreme or outrageous actions that can cause serious car accidents. Those who knowingly and intentionally drive without automobile insurance (requiring an accident victim to make an uninsured motorist claim with his or her own No-Fault insurance company), those who intentionally drive a defective car or truck, those who might even steal a vehicle and cause a serious accident or drive while significantly impaired by alcohol or drugs receive complete immunity and protection under Michigan’s threshold law of serious impairment.
9: Michigan Auto Accident Threshold Law Punishes Hard Working People the Most
The Michigan auto accident threshold law punishes those who are most worthy of our respect and help – those who try, despite the pain of injury, to return to work and those who do not seek unnecessary medical treatment or No-Fault submittals: People who try to return to work weeks or months after an accident, even if it is part-time or with the assistance of strong pain medications, are judged far more harshly under Michigan’s impairment law than those who stay off work. Is this really the type of public policy that lawyers and judges in Michigan should be encouraging when handling car accident cases in Michigan?
The Michigan Supreme Court’s ruling in McCormick and its rejection of a temporal requirement to the threshold law will hopefully help to improve this injustice.
But some stubborn insurance defense lawyers persist in raising the Kreiner-era notion that if a victim’s general ability to lead his or her normal life is not destroyed, then he or she didn’t suffer a “serious impairment of body function” warranting pain and suffering compensation.
To this argument, McCormick has provided a ready response:
“[T]he statute merely requires that a person’s general ability to lead his or her normal life has been affected, not destroyed.” (Page 20)
10: Role of Michigan Personal Injury Lawyer is As Important As Ever
The lawyer’s role in helping people who have suffered injury in car accidents in Michigan is as important now – in the post-McCormick era – as it ever has been.
People who have suffered serious injury in a car accident depend upon their lawyer to help them more than ever before – thanks in large part to the restoration of rights brought about by McCormick.
Good personal injury attorneys not only get higher settlements for their clients in our age of computer programs that insurance companies use to help determine the value of an injury case, but a lawyer is absolutely essential in helping his or her client document the impairments that they have suffered after their car accident so they will survive defense motions for summary disposition.