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Do I Have a Good Case?

April 3, 2008 by Steven M. Gursten

Last week, I was asked to teach a class at Cooley Law School on Michigan’s automobile accident law. The class normally covers Michigan No Fault Law, but this class was on third-party claims – suing the insurance company of the person who causes an accident.

Below are some examples I used during the class to show law students how Michigan’s car accident threshold law of “serious impairment of body function” discriminates against different types of people, even when they have suffered identical personal injury from motor vehicle accidents. The elderly, young children, those already disabled, and those who choose to stay at work in the home have a far more difficult time under our current automobile accident threshold law.

Construction Worker – Off Work Post Accident
After law school, I decided to quit the corporate law firm rat race and started working construction. Unfortunately, I was rear-ended in a car accident in Detroit. I suffered a badly broken leg and I had to have surgery. Because I work construction, I cannot stand on my leg or do any type of physical, manual work. I missed a little over a year from work due to my injuries.

I learned about this case called Kreiner v. Fischer in law school, but it didn’t affect my accident case at all. My lawyer settled for policy limits.

Lawyer – Working Post Accident:
I was also in a car accident, I also got rear-ended and I suffered the exact same broken leg and also required surgery. The only difference is that I don’t work construction. I’m a lawyer. As a lawyer, a broken leg really doesn’t stop me from doing my job, where I basically sit at a desk and use a phone and a computer. I missed a couple days from work after the accident and a couple days after my surgery. I’m trying to make partner in my law firm, so I have tried to miss as little work as possible, even though I’m in a lot of pain and take a lot of pain medication for my injury. As a young lawyer trying to make partner, I basically have no hobbies or recreational activities. The insurance company’s lawyer in my case filed a motion for summary disposition on serious impairment of body function. The court granted it. I got nothing for my car accident case.

Stay-At-Home Mom (Example 3):
I was in the same car accident in Detroit and I had the same broken leg and surgery, but I got married after law school and chose to become a stay at home. I have live-in help for the kids. My lawyer is afraid to file a personal injury lawsuit for me. My lawyer says that Michigan has a very unfair auto law and people are treated differently: that if you are a stay at home parent or very old or very young, or in school, it is much harder to show a serious impairment than if you are in the workforce and miss a lot of time from work because of your injuries.

Not Employed – On Social Security Disability (SSD):
I was in the same car accident and I suffered the same broken leg and I underwent the same surgery. But, I am already on social security disability from before my car accident from a pre-existing disability. I don’t work, and I don’t have any physical activities or hobbies that my new broken leg has stopped me from doing. I got nothing from my car accident.

Serious Accident – No Change in Course or Trajectory of Life:
I had a great car accident case, but I had a really bad lawyer. All he did was a five minute prep before my discovery deposition.I am confused. My lawyer said that the Michigan Supreme Court specifically wrote in Kreiner v. Fischer that an injury does not need to be permanent in order to be serious under Michigan’s auto accident threshold law. But then the Supreme Court wrote that an injury from a car accident must change the course or trajectory of my normal life in order to constitute a serious impairment under Michigan law.
Isn’t that a contradiction?

Well, the trial court didn’t think so. The judge said that my fractured leg wouldn’t change the course or trajectory of my life, even though I missed almost six months from work. I got nothing for my pain and my injuries.

No Physician Imposed Restrictions:
My doctor said he doesn’t want to get involved in litigation. My doctor said he won’t write any reports and doesn’t want to get involved with lawyers or have to testify. He says he doesn’t like taking patients who have been hurt in car accidents because it is too much paperwork and aggravation. My doctor keeps telling me I have a serious injury, but he has never specifically written me any restrictions (no one has ever asked him to).
The defense lawyer filed a motion saying everything that I say I can’t do is “self-imposed” restriction and not a physician imposed restriction, as required by Kreiner v. Fischer. I got nothing for my car accident.

Serious Injuries – Lost Job:
I have a good lawyer for my accident. My lawyer keeps saying I have a great case. I was hit by a drunk driver who crossed the centerline. I had major knee reconstruction surgery using cadaver bone, and lots of screws that were drilled into my leg. I had over 7 months of physical therapy and rehabilitation. I lost my job. I also suffered a head injury and lost consciousness. In the first few weeks after my accident I could barely move even with crutches. I needed help just getting to a bathroom and the bathtub.

But I had a very bad Court of Appeals panel. My lawyer said that 2 of the most conservative judges in Michigan were on my 3 judge panel. They formed a majority and ruled against me. The Court of Appeals said that because I was able to go back to work, and could walk again a year after my car accident, that my accident case did not affect my overall life as a matter of law. I got nothing for all the pain and everything I went through from my auto accident.

Works in Pain – Post Accident:
I am in pain everyday from my car accident in Warren, Michigan. But I take a lot of pain medication and I can still work. I can also do basically everything I could do before my car accident, but not as long. The pain medication helps me to function. I get home and I am exhausted. My lawyer says I won’t have a good car accident case unless I can show a “serious impairment.” That seems ridiculous. Why am I being penalized for trying to work and trying to live my life? It doesn’t seem fair that I would get more money if I just gave up and didn’t do anything after my accident.

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