Bill to Fix Michigan’s Unfair Auto Accident Law: Now Out of Committee

Today Michigan has the worst automobile accident law in the country. But last week, Republican Senator Bruce Patterson, with the help of Democrat Gretchen Whitmer, took an important step to change that by moving a bill to the Michigan Senate floor to finally fix the terrible Kreiner v. Fisher case. For the past 4years, thousands of Michigan citizens who have been injured in car accidents have been denied the right to a jury trial and fair treatment in the courts. For example, as of June 16, 2008, 189 out of 208 Michigan citizens injured in automobile accidents have lost their case in the Michigan Court of Appeals, according to the Michigan Lawyers Weekly.

Kreiner v. Fischer was authored by four Michigan Supreme Court Justices, led by Chief Justice Taylor, who is up for re-election this November. These same four justices have caused the Michigan Supreme Court to be called the “worst” state supreme court in the United States, according to a recent University of Chicago study.

Kreiner v. Fischer has stripped the rights from Michigan citizens seriously injured in car accidents, in favor of insurance companies. Democrats in the Michigan House and Senate have been trying to fix the problem with remedial legislation for the last several years. When the Michigan House moved a Bill over to the Senate early last year, the “Kreiner Fix” Bill languished in committee in the Republican majority Senate. That was until last week, when Republican Senator Bruce Patterson had enough of politics as usual. Against the wishes of the party higher-ups, Mr. Patterson moved the Bill out of committee to the Senate floor. Democrats, led by Gretchen Whitmer, have supported the move. Now Sen. Bill 124, the “Kreiner Fix” Bill, is sitting on the Senate floor, with too few Republican votes. Two Republican Senators are on vacation.
Senate Majority Leader Mike Bishop has the power to put this important bill to fix Michigan’s auto law to a vote, and Senator Bishop needs to hear from you. If you contact Senator Bishop’s office, this is the response you will receive:

Thank you for contacting me directly regarding what has commonly come to be
known as the “Kreiner Decision.”

Under Michigan’s No-Fault Law, motorists must look to their own insurance
policies for economic benefits in case of accidents and injuries and can
only sue another motorist under limited circumstances. The negligent driver
can still be held responsible for non-economic damages, such as pain and
suffering, if the injured person suffered death, serious impairment of body
function or permanent serious disfigurement.

In an attempt to clarify the definition of “serious impairment of body
function,” the Legislature amended the statute in 1995 to define “serious
impairment of body function” as an objectively manifested impairment of an
important body function that affects the person’s general ability to lead
his or her normal life.

In 2004, the Michigan Supreme Court addressed the issue of the definition in
the case of Kreiner v. Fischer. The court held that, “to determine whether
one has suffered a ‘serious impairment of body function,’ the totality of
the circumstances must be considered, and the ultimate question that must be
answered is whether the impairment ‘affects the person’s general ability to
conduct the course of his or her normal life.”

As you know, Senate Bill 124 would make it easier for a plaintiff to seek
damages for pain and suffering under the No-Fault Law, by changing the
definition of “serious impairment of body function.”

Under Senate Bill 124, a person who causes such an injury may be subject to
a lawsuit for “pain and suffering” damages otherwise barred by the No-Fault
Law. The new definition would be, “an objectively manifested INJURY
INVOLVING an important body function that, IN SOME WAY AND FOR SOME TIME,
affected the injured person’s ability to lead his or her normal life.”

Under the House version, House Bill 4301, the new definition would be, “an
objectively manifested INJURY or impairment INVOLVING an important body
function that, HAS AFFECTED, affects, OR MAY AFFECT the injured person’s
ABILITY to lead his or her normal life.”

Most recently, a motion was made in the Senate to discharge Senate Bill 124
from committee to the Senate Floor. Let me be clear, in no way does this
action signal an agreement between opposing sides of this issue. Further
careful evaluation of both House Bill 4301 and Senate Bill 124 is necessary
before either bill can be considered by the full Senate.

Again, thank you for contacting my office. Should you have further
questions or concerns relating to this, or any other matter, please do not
hesitate to contact me directly. In the meantime, my continuing best
regards.

Sincerely,

Michael D. Bishop
Majority Leader
State Senator, 12th District

This reply from Senator Bishop is unacceptable.

Senator Bishop’s reply does seem to agree on one important point – that the Michigan Supreme Court disregarded the definition of serious impairment (an impairment that affects the person’s general ability to lead his or her normal life) enacted by the Michigan Legislature, in favor of its own far harsher definition (that an impairment must affect the person’s general ability to conduct the course or trajectory of his or her normal life).

However, my main criticism with this email reply from Senator Bishop’s office is with his next sentence: “Further careful evaluation of both House Bill 4301 and Senate Bill 124 is necessary before either bill can be considered by the full Senate.”

What does this mean? After all, the Kreiner Fix Bill has been languishing in committee for nearly two years. Thousands of Michigan citizens who have suffered very serious injuries, including fractures and surgeries and months off from work, have been thrown out of court. Hasn’t this bill been carefully evaluated yet?

I infer from Senator Bishop’s response that his dislike with the current Senate and House versions of the Kreiner fix is that they seem more expansive than the pre-Kreiner statutory definition of serious impairment. But shouldn’t the merits of this, and there are some substantial merits to this in a state where automobile insurance companies lead the country in record-breaking profits – be something voted on by the full Senate after each individual Senator’s careful consideration?

Senator Bishop appears to forget the purpose of the legislative process. If a majority of Michigan citizens, represented by the Michigan Legislature, believes the Kreiner Fix Bill defines serious impairment too broadly, the bill will be defeated. If the majority believes that the bill reflects what something better than what we have now, something that nearly everyone now recognizes is seriously broken, then the Kreiner Fix will pass.

Senator Bishop’s alternative appears to be that no action should be the course taken on this bill – because he apparently believes it defines serious impairment too broadly. Yet Senator Bishop has a history of allowing bills that he says he is against still being brought to the full Senate for a vote. For example, Senator Bishop was against anti-smoking legislation, yet allowed the smoking bill to be brought to the full Senate for a vote. This is how the political system is supposed to work.

The same should hold true with Kreiner. Whether the fix bill passes or fails, at least some action should be taken after nearly two years of delays. And most important, a message should be sent, by both Democrats and Republicans alike, to the four justices on the Michigan Supreme Court that it cannot impose its radical anti-consumer, pro-insurance company agenda without some check of its power by our other two branches of government.