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Johnson Attendant Care Decision Troubles Chief Judge

July 1, 2009 by Steven M. Gursten

From left, Steven M. Gursten, Judge William J. Giovan and attorney Ed Stein
From left, Steven M. Gursten, Judge William J. Giovan and attorney Ed Stein

I received a comment yesterday from retired Chief Judge of Wayne County Circuit Court, William J. Giovan, after my letter on Johnson v. Wausau.

Judge Giovan is a true intellectual and has an excellent grasp of the rules of evidence. In fact, I once invited him to speak to the Michigan Trial Lawyers Association on evidentiary issues car accident lawyers face in trial. Judge Giovan also knew my grandfather, and on more than one occasion, has shared memories of him as a lawyer while we were in his chambers. It isn’t every judge that knows and cares about three generations of one family.

I decided to publish Judge Giovan’s comments as a blog entry, because the points he makes are excellent, and I commend him on his legal analysis that the problem in Johnson needs to be corrected at the highest level. Hopefully, the Michigan Supreme Court will heed his advice. This is what the Judge wrote:


I read your criticisms of the above case, and you’re correct about the effect of the decision. However, you may be placing the blame in the wrong place. The Johnson court, after all, was merely following the “precedent” of Cooper v. Auto Club, which correctly held that an action for fraud is not subject to the one year back rule. Unfortunately, however, the Cooper court went on to elaborate in the “Cautionary notes” part of the opinion to effectively negate the principal ruling. Without saying so, the court in effect abrogated the time-honored rule that negligence is not a defense to fraud, the principle being that one who intentionally defrauds someone cannot escape liability by claiming that his victim was a fool. You can find cases on this.

The Supreme Court did this by citing cases that held that an insured is charged with knowledge of the insurance policy, and the like. So you have to blame the Supreme Court, not the Appeals, who were only doing their duty to follow precedent. Almost. The “Cautionary” segment of the Supreme Court opinion was dictum, and therefore was actually not binding precedent. The trouble with that, of course, is that the Supreme Court is the 900 pound gorilla, and rarely – maybe never – do lower courts have the temerity to say that the Supremes are wrong and rule the other way. ( I did it once.)

So the point I’m making is that to successfully attack a bad result you have to identify its source, which here is the cited portion of the Cooper case.

– William J. Giovan

If you have questions about attendant care, please contact one of our attendant care lawyers 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.

Steven M. Gursten is recognized as one of the nation’s top attorneys handling serious car and truck accident injury cases and automobile insurance no-fault litigation. He is head of Michigan Auto Law. Steve has received the largest jury verdict for an automobile accident case in Michigan in four of the past seven years, including in 2008, according to Michigan Lawyers Weekly. Visit our law firm quick facts for more information.


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