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Insurance Lawyer Warns of Terrible Attendant Care Ruling in Michigan

April 14, 2009 by Steven M. Gursten

Ask any Michigan lawyer that handles attendant care cases, and he’ll tell you there’s been a terrible game at the hands of insurance companies going on for many years. When people suffer serious personal injuries from car accidents and truck accidents, they are entitled to attendant care — also referred to as nursing services — as part of their no-fault insurance personal injury protection (PIP) benefits. The problem is that many insurance companies responsible for paying for attendant care do not inform people they’re entitled to receive attendant care in the first place.

There is an obvious financial disincentive at play, as telling a customer about her right to attendant care can cost an insurance company tens or hundreds of thousands of dollars, depending on the severity of the personal injury. Michigan lacks bad faith law and punitive damages, so there is little penalty or down side to insurance companies engaging in this seemingly dishonest practice. Meanwhile, they have probably saved tens of millions of dollars on attendant care claims they’re legally obligated to pay.

In recent years, Michigan attendant care lawyers have been able to force auto insurance companies to pay for attendant care by alleging fraud in their complaints. The statute of limitations for claiming fraud in a lawsuit is six years, which allows car accident lawyers to get past the strict one-year back rule (that says you have one year to claim your attendant care benefits), and make a claim for incurred attendant care going back to the time the fraud was committed.

Michigan Insurance Companies Can Keep Attendant Care a Secret

A recent Michigan Court of Appeals case, Johnson v. Wausau Insurance Co. et. al, is yet another holding that protects insurance companies, enabling them to get away with not properly informing their clients of all benefits that are available to them following an auto accident. The case ruled plaintiffs cannot use fraud without establishing reliance. Even though it was never disputed that Wausau Insurance Co. did not ever advise the plaintiff she was entitled to attendant care benefits for being the legal guardian and caregiver to an accident victim, the Court ruled:

“Abdey (insurance adjuster’s) representation did not involve information or facts that were exclusively or primarily in the control of the defendant. Rather, Abdey’s misrepresentation concerned with benefits were available to plaintiff… for their care of Eastman (accident victim) under the no-fault act. Plaintiff…had no means, i.e., consultation with a lawyer, to determine whether Abdey’s representation was true.”

In essence, the case reaffirms that fraud claims lawyers brought to protect their clients will not be accepted. And what makes this decision horribly unfair is that the Court basically contended a catastrophically injured person should somehow learn about attendant care on her own or be forced to seek a lawyer’s advice, because presumably, an insurance company adjuster cannot be trusted to inform an injured person what benefits she is owed. It’s hard to think of a reason why the Court would protect insurance companies with such unclean hands, or punish those who are obviously in a vulnerable and unequal position by presuming they should know every one of their legal rights — especially when these people have undergone horrible personal injuries that require attendant care to start.

Definition of Attendant Care

Keep in mind that the average person does not receive a copy of their no-fault insurance policy, let alone read all of it. It should also be noted that nowhere in the entire Michigan No-Fault Act is attendant care specifically mentioned or described, and most lawyers do not fully understand or know how to handle attendant care claims. This gives insurance adjusters complete power when dealing with their customers, because they have information about Michigan’s complicated no-fault law that they average driver does not understand, let alone have access to because again, it’s not fully described in a no-fault insurance policy. Yet Court of Appeals Judges Saad, Bandstra and Hoekstra would presume a person who’s been catastrophically injured should somehow understand this very technical and complicated area of Michigan insurance law.

Michigan insurance lawyers define attendant care as “Activities of daily living,” such as monitoring and supervision for safety reasons, administering medication, bathing, dressing, ambulation, styling/combing of hair, other grooming, help using the toilet, driving the patient, fetching things for the patient, carrying and lifting things for the patient, and wound care. Pursuant to the Michigan No-Fault Act, medical benefits, including Michigan attendant care benefits, are recoverable in the event of personal injury from an auto accident. Attendant care can be preformed by nurses, as well as family members or legal guardians who perform nursing services. Family members or legal guardians who perform the attendant care services are entitled to compensation. But there is no firm guideline that indicates how much an insurance company must pay in the form of Michigan attendant care benefits for car accident injuries.

If you have questions about attendant care, please contact one of our attendant care lawyers before it’s too late at (800) 777-0028, with no fee or obligation. Remember, there is a strict one-year statute of limitations to collect your attendant care benefits, and with the decision in Johnson v. Wausau, the ability for insurance lawyers allege fraud and get around the statute has again been curtailed.

— Photo courtesy of Creative Commons, by Ed Yourdon

Related information:

Benefits Available through Michigan No-Fault Law

Beware of Strangers Bearing Gifts

Help for Attorneys Handling Truck Accident Cases

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout the entire state of Michigan. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. For more information, please refer to our law firm quick facts.

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2 Replies to “Insurance Lawyer Warns of Terrible Attendant Care Ruling in Michigan”

  1. Is it common for attorneys to take 66% of attendant care? I finally received 1 check for 620. and after the lawyer took a lot I am left with 133.00 to pay for my care.

  2. No, it is not common at all. If true, it also violates the maximum 33 1/3 percent that the Michigan Supreme Court has ruled that lawyer in personal injury cases can charge his or her clients. However, if this was for a very short, finite period of time and the matter had to be litigated (ie., costs had to be incurred in filing, taking depositions, ordering medical records) then the 66 percent may actually be a 33 percent contingent fee and the costs which were deducted from the gross settlement amount. I would check with your attorney immediately to resolve the matter.

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