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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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