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Why Was I Told I Don’t Have a Case?

November 27, 2007 by Steven M. Gursten

As an attorney, one of the toughest questions I face is Why was I told I don’t have a case?” Unfortunately, I hear this all too often. Two weeks ago, on November 15, 2007, the Michigan Court of Appeals passed judgment on Cynthia Jones. Now, I expect to face this question more and more from victims whose lives have been shattered by car accidents.

Lawyers throughout Michigan who handle car accident cases are calling the Cynthia Jones case the worst “Kreiner casualty” yet. Kreiner refers to the 2004 Michigan Supreme Court case of Kreiner v. Fischer, and the term “Kreiner casualties” refers to the increasing number of cases that have been thrown out of court since 2004. The trend has become increasingly bleak for Michigan accident victims.

The facts are disturbing.
In 2005, Cynthia Jones was struck by a car as she was walking across the street. She was literally run over by a driver who wasn’t watching the road. The car accident snapped her leg in half, requiring the surgical insertion of plates and screws. After a 4 day stay in the hospital, she returned home and required in-home nursing care from health aides for several months thereafter. She first had to use a wheelchair and needed assistance with almost all of her activities of daily living. Gradually Ms. Jones improved to a walker. Once she had more fully recovered, she still was left with a permanent limp and testified in her deposition that she still had pain and problems with standing and walking.

Despite all this, the defense attorney representing the defendant’s insurance company brought a motion to dismiss her case, saying that under Michigan law, Ms. Jones did not suffer a serious enough injury to even get to a jury. The trial judge dismissed her case and on November 15, 2007, the Court of Appeals upheld the trial court, and ruled that her injuries were not serious enough.

Her case against the negligent driver was thrown out of court.
Michigan law is already the harshest in the country today for car accident victims. There are 3 reasons for this: Michigan is a no fault state, Michigan’s car accident law has a threshold test that an injured person is required to pass in order to sue a negligent driver, and this threshold test is still developing. Unfortunately, as the Jones case shows, this developing threshold test is becoming more and more restrictive for accident victims, something Michigan personal injury lawyers refer to as “threshold creep.”

It is safe to say that results like the Jones case were certainly not what the politicians intended when they changed Michigan’s auto accident laws and enacted a new definition of serious impairment of body function over 10 years ago. If you had asked a Michigan personal injury lawyer who handled car accident injury cases ten years ago if they could ever have imagined a result like Jones, they would have thought it impossible.

However, after Kreiner v. Fischer we now have a car accident law in Michigan that is so bad that a completely innocent woman whose leg is shattered, who undergoes major surgery to repair the leg with a 4 day hospitalization, and who is required to use a wheelchair, a walker and have extensive in-home care following her injuries cannot even get to a jury. Because of this holding, she is denied a day in court.

What a strange trip it has been.
Michigan started out with a law whose legislative history made explicitly clear its original intent: to keep out “clearly frivolous” and “de minimus” injuries as a reasonable trade-off for Michigan first party no fault insurance benefits. What we have instead is a new judge-made law, an “interpretation” of Michigan’s auto accident law stemming from the divisive and bitter 4-3 split of the Michigan Supreme Court in Kreiner v Fischer. In that case, the Court added new and far more restrictive language that accident victims must now meet, over and above the statutory language. Examples include that the “course or trajectory of a person’s life now be effected, that the effect has to be on a person’s “entire” normal life, and in one particularly vicious footnote, the requirement that there be physican-imposed restrictions” for accident victims. This new language was entirely absent from the clear and unambiguous statutory definition, and the 4 justice majority has been strongly and universally criticized for this new language.

No Job, No Life, No Impairment
In the Jones case, Cynthia Jones was thrown out of court because she hadn’t worked in over 3 years before the accident and according to the court, she “failed to demonstrate any employment prospects.” Apparently, this type of judicial reasoning now equates to no job for 3 years as essentially having “no life.” Under the Jones court’s rationale, you can’t impair or affect the course or trajectory of someone’s life if they have “no life.” Thus a “normal life” cannot be affected by having life threatening injuries and extensive surgery required to save a severely broken leg, plus the added bonus of having hardware surgically installed into your leg to set off metal detectors for the rest of your life.

The reasoning of this terrible decision is to say that anyone in Michigan who does not have a job or immediate prospects for a job cannot have a serious impairment of body function after a car accident, no matter how severe or disabling the initial personal injuries. This rationale does not only apply to people not in the workforce. Using the court’s logic, people who are unemployed due to a pre-existing disability also could not have their “entire normal life” impaired by a car accident. This reasoning puts at terrible risk the young, the elderly, the retired, the disabled, and people who choose to work in the home. Entire groups of people are now at risk of being thrown out of court and never even getting to a jury if they have the misfortune of being injured in a car accident in Michigan.

With “threshold creep,” these unpublished decisions are continuing to get progressively worse, from bad to abominations now such as Jones, which was never the original intent behind Michigan’s car accident threshold law. In effect, this new law has a total and permanent disability requirement. Because of Jones, any judge, fueled by his or her own political predilections, can find any injury (no matter how initially severe) unable to change the “course or trajectory” of a person’s “entire normal life.”

Things are not completely lost, however.
Ms. Jone’s case might still have been saved if her lawyer had followed some of the strategies and tactics for documenting serious impairment that we provide for Michigan lawyers. The tragedy is that we have gotten to this point. And it’s the reason I expect to hear “why was I told I don’t have a case?” so often in coming days.

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2 Replies to “Why Was I Told I Don’t Have a Case?”

  1. It is readily apparent from the multitude of cases decided since the Kreiner decision, that basic notions of fairness and justice no longer play any part in the adjudication of automobile negligence cases. Even when there are objective findings required by the statute and injuries requiring surgery the courts seem to be looking for ways to dismiss these cases. The “serious impairment of body function” (SIBF) threshold has become a moving target without any reasonable way to predict whether or not a case will survive summary disposition.

    The intellectual dishonesty of the high court decision is indeed shameful when considering the court’s self described “textualist” approach to statutory construction. Nowhere in the amended statute is there language regarding “change in the course or trajectory” of ones life in order to meet the SIBF threshold. Instead, the statute requires only that there be “an” affect on a person’s general ability to lead his or her normal life.

  2. Instead of determining whether or not a genuine issue of material fact exists for the jury to consider, the courts now engage in a game of “gotch ya,” finding ways to dismiss legitimate cases involving very real and serious injury. Two cases of mine have become Kreiner casualties.
    Mr. Mattei, a disabled person, suffered a shoulder injury as a passenger in a bus after the driver sped away before Mr. Mattei was seated. Mr. Mattei had a prior injury to his left shoulder and compensated with his right shoulder until it became injured in this accident. Mr. Mattei had surgery to his right shoulder and was restricted after the surgery due to his right shoulder injury. Additionally, plaintiff had emotional issues exacerbated by his physical injuries. At the hearing on defendant’s motion for summary disposition I argued, in addition to the physical injuries, that whenever some one testifies at deposition that sometimes they feel like blowing their brains out, that maybe the court should give them the benefit of the doubt. Judge Maceroni dismissed plaintiff’s case. When I called to advise my client of the outcome, I was advised by his family that Mr. Mattei passed away the day before from what appeared to be suicide.

    Joe Swick was injured in a rear end collision. He sustained a herniated disc and had surgery within 6 months of the accident. He was disabled from his employment as a chimney inspector but eventually released to work by his surgeon. In opposition to defendant’s Motion for summary disposition, I obtainted written restrictions from his primary care physician. Additionally, Mr. Swick testified at deposition to a list of 56 activiies adversely affected by his injuries. Unfortunately, the signed list of activities which was given to defense counsel at deposition, adopted as sworn deposition testimony on the record and never objected to by defense counsel, was not notorized and therefore, the court refused to accept it and dismissed his case. The Court of Appeals ruled that Mr. Swick was not disabled despite current restrictions from his primary doctor, since his surgeon returned him to work months after his surgery. Although I contacted an appellate lawyer regarding an appeal to the Supreme Court, given the trial and appellate court’s arbitrary refusal to consider the entire record, unfortunately, Mr. Swick passed away shortly thereafter from unrelated illness.

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