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McCormick v. Carrier: A New Dawn for Michigan Car Accident Victims?

August 25, 2009 by Steven M. Gursten

Michigan auto accident lawyers and judges hoping McCormick v. Carrier will overturn Kreiner v. Fischer and restore the rights of personal injury victims

On August 20, 2009, the Michigan Supreme Court granted the motion for reconsideration in McCormick v. Carrier (Rodney McCormick v. Larry Carrier and Allied Automotive Group, Indemnitor of General Motors Corp.) as well as leave to appeal. This is the case that Michigan auto accident lawyers and judges have been hoping will finally reverse Kreiner v. Fischer.

I’ve written extensively on how unfair Michigan’s current auto accident laws have become, commenting on previous travesties like Benefiel v. Auto Owners, Plaggemeyer and Gagne. Michigan has the worst law in the country, and thousands of innocent and seriously injured people injured in car accidents, including people who have endured fractures and surgeries, have had their cases thrown out of court and received nothing for their pain and suffering.

The system has become so badly broken and lost its common sense. Now, finally and at long last, McCormick could fix Michigan’s auto law.

In McCormick, Plaintiff Rodney McCormick suffered a badly fractured ankle that required two surgeries after an auto accident in Flint, Michigan. The surgeries were successful, and McCormick returned to work approximately one year later and was able to resume all of his pre-car accident activities, including golfing and fishing. He testified at his deposition that his life was “painful, but normal.”

Only in Michigan could this be dooming.

McCormick was thrown out of court because two surgeries and a year off of work, was not considered serious enough under Michigan law. Judges Whitbeck and Jansen, writing for the majority in the Court of Appeals and dismissing McCormick’s case, found that the “course or trajectory of plaintiff’s normal life” was not affected because he had made a great recovery one year later.

In other words, pain doesn’t matter. Periods of near total incapacitation and recuperation after surgery do not make a difference. An entire year off of work and of being physically unable to enjoy the activities that are most important to a person – are not enough.

The Normal Person Test

Try describing this result to any person on the street: Tell them that in Michigan, a person can be:

o Completely innocent;
o Rear-ended by another driver;
o Suffer serious fractures requiring two surgeries and a year off work and;
o Receive nothing for all of his pain and suffering because our law doesn’t consider these devastating factors “serious enough.”

The person on the street will look at you like you are from Mars.

Again, this sad state of affairs is due to Kreiner, a Michigan Supreme Court decision that interprets the no-fault act’s “serious impairment of body function” statute. It establishes the precondition plaintiffs must meet before they can sue for non-economic damages in such a way that many people who suffer serious injuries and who miss months from work, have virtually zero rights.

Counting Votes on Kreiner v. Fischer

Judge Diane Hathaway, when running for the Supreme Court, called Kreiner a travesty. I and thousands of other Michigan lawyers agree. The language that has dismissed hundreds of cases was not created by the Michigan Legislature. It was judicially created — plucked out of thin air — by the Court’s previous “majority of four”: Taylor, Corrigan, Young and Markman. Kreiner’s requirements like “course or trajectory” or “physician-imposed restrictions” or even that impairments be very serious, are completely absent from the Legislature’s definition of “serious impairment of body function” and the entire legislative history of the Michigan No-Fault Act.

Kreiner was simply created by four extreme, right-wing justices who chose to ignore precedent and legislative interpretation and instead, impose their severe political ideology on Michigan’s civil justice system. In fact, these four justices called the definition of serious impairment of body function a return to Cassidy v. McGovern. But as the cases metastasized, involving injuries far worse than the broken leg that Leo Cassidy had ever suffered, they were still found insufficient to be considered “serious” under Michigan law. This raised the question by auto accident lawyers, like myself: How can Kreiner possibly be worse than Cassidy?

In addition to Justice Hathaway, Justice Weaver with Justice Kelly, joined Justice Cavanaugh’s opinion in Benefiel, where Justice Cavanaugh explicitly states “I continue to believe that Kreiner was wrongly decided.” Read more in the Benefiel Michigan Supreme Court Order.

It seems there are now four like-minded justices who believe it’s time to go back to the clear wording and plain meaning of the legislative definition of serious impairment. If so, then Kreiner v. Fischer will be overturned. If so, then fabricated language that created an ever higher bar to recovery, such as “course or trajectory” will also be overturned.

Steven M. Gursten is recognized as one of the nation’s top experts in serious car and truck accident injury cases and automobile insurance no-fault litigation. Steve has received the largest jury verdict for an automobile accident case in Michigan in four of the past seven years, including 2008, according to Michigan Lawyers Weekly.

– Photo courtesy of Creative Commons by MissLPS

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. Call (800) 777-0028 for a free consultation with an auto accident lawyer.

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3 Replies to “McCormick v. Carrier: A New Dawn for Michigan Car Accident Victims?”

  1. Steven, I see your point of view on the over turning of the Kreiner case but why don’t you ever mention that we have unlimited medical beneits/coverage in Michigan when you are involoved in an auto accident which includes pedestrians and resident household memebers that are not disclosed on an an auto application because they do not have a drivers license? Can you review this in one of your articles. Michigan by far has the best coverage in this area and it contributes to the high cost of auto insurance. I personally think the consumer should be given the option to purchase unlimited medical coverage or elect a different level of protection.

  2. Thank you for your question, Kristin.

    Many people share your perception that lifetime medical is a driver of soaring insurance costs in this state. But, neither lifetime medical payouts, nor pain and suffering “tort” payouts are the reasons behind the high insurance costs we face in Michigan.

    The reality is that first-party No-Fault insurance (lifetime medical, wage loss for 3 years, replacement services, mileage, attendant care) and third- party payouts (pain and suffering and excess economic loss past the first 3 years paid by No-Fault) are statistically only very small amounts of the total No-Fault dollar. Total combined payouts on “third-party” or pain and suffering settlements represents literally pennies of the total No-Fault dollar. Lifetime medical does sound expensive, but it is also a very small percent of each actual insurance dollar spent.

    How can lifetime medical be so little? The answer lies in the MCCA. After an insurance company spends over a certain pre-determined amount, currently $460,000, that insurance company is repaid on the entire claim by the Michigan Catastrophic Claims Association for all medical paid over the cap. And the total assessment of the MCCA for each resident in only $124.89 per motor vehicle, which is separately assessed and frankly, about the best deal out there in exchange for the guarantee of total protection for all Michigan residents who suffer catastrophic personal injury that will require lifetime medical care and treatment after a motor vehicle accident.

    The real driver of costs are the insurance companies themselves. The savings that insurance companies promised Michigan residents when they spent untold thousands of dollars lobbying the Michigan Legislature in 1995, when Michigan enacted the harshest tort reform laws in the nation, never materialized. In fact, premiums have only increased. You may wonder how this can be, when claims and payouts have fallen so sharply?

    And here lies the answer to your question Kristin. The real reason why we pay so much money for insurance here in Michigan is because Michigan insurance companies have the highest profit margins in the nation, and Michigan is one of the only remaining states in the nation where the insurance commissioner does not have the power to regulate the profits that the auto insurance industry can make.

    So we have a nasty little problem. Insurance companies can charge as much as they want, and in turn are able to make record-breaking profits. Insurance companies can recoup losses they make gambling in the stock market, or paying out claims in other states by charging more in Michigan.

    These same insurance companies will then use our own premium dollars that we are legally required to spend buying No-Fault insurance to wage a propaganda campaign to convince the public that the reason we have such high insurance premiums in Michigan is because of non-issues like lifetime medical, or lawyers and lawsuits or anything beside the real reason – bloated and unregulated insurance industry profits.

    Hope this helps answer your question. Thank you again for contacting me.

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