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McCormick v. Carrier: A Personal Injury Lawyer’s Observations from Tuesday’s Oral Arguments

January 14, 2010 by Steven M. Gursten

The long-awaited Michigan Supreme Court hearing on McCormick v. Carrier (Rodney McCormick v. Larry Carrier and Allied Automotive Group, Indemnitor of General Motors Corp.) was Tuesday. McCormick is the Flint auto accident case that will hopefully change Michigan’s long-broken auto threshold law, Kreiner v. Fischer — and restore the rights of injured auto accident victims.

Kreiner is a 2004 Michigan Supreme Court decision that interpreted 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, lose their right to bring car accident claims.

Here are some of my thoughts as a personal injury lawyer, based on the hearing and how it will affect our law.

Duration of Impairment from Auto Accidents

If the Republican Michigan Legislature in 1995 had wanted there to be “additional factors” as were judicially created in the Kreiner opinion, they certainly could have done so themselves when drafting the No-Fault Act. It was not for four justices on the Michigan Supreme Court to add hurdles and obstacles to recovery when plaintiffs suffer injuries in car accidents, such as:

* “Course or trajectory”
* ” Most but not all”
* “Self-imposed v. physician-imposed restrictions”
* Added language regarding duration, etc.

The issue of duration of an impairment was a big part of the discussion in Tuesday’s hearing. However, what the proponents of adding duration as a factor fail to acknowledge, is that a durational requirement is not present in the statute. Rather, duration should be but one of many considerations by a judge or jury when deciding if the serious impairment definition is met.

As I discussed in my blog about Plaggemeyer v. Lee, if an injury occurs for a very short period of duration, a judge should consider this in evaluating whether there was a threshold injury. Even Justice Cavanaugh got this part wrong in his dissent when he first wrote that there should not be an “added durational requirement,” but then went on to say that “most but not all” of Mr. Kreiner’s life was affected.

Kreiner Erodes Rights Guaranteed by the U.S. Constitution

One thing was missing from Tuesday’s hearing, but it’s an extremely important point: The Kreiner threshold erodes the right to a jury trial by adding to the statutory threshold. It does so by making a judge decide if a plaintiff meets this judicially-created, ridiculously high standard, and dismissing plaintiffs’ cases inappropriately without allowing a plaintiff to argue before a jury how his or her life was affected.

There is still clearly a role for the trial court judge if an injury is trivial or clearly frivolous (“de minimus,” as our Legislature wrote when creating our no-fault law). In other words, where no reasonable mind could differ. But in all other cases, a jury can do just as good of a job and should be given the opportunity to do so.

How Bad Has Kreiner v. Fischer Been?

It is worth noting that in the 30 years before Kreiner, there were 150 Michigan appellate court opinions regarding the threshold. In the five years since Kreiner, there have been 246 appellate court decisions. Of these, the plaintiff has lost 196 times.

The defense argument that changing our current law would add uncertainly, chaos or more appeals, is ludicrous.

It’s also worth mentioning that the 1995 statute defining serious impairment was not simply a
“codification” of Cassidy, as Justice Corrigan inferred in her questioning. Instead, the Legislature deliberately created a more relaxed threshold. Kreiner has made the serious impairment threshold far more restrictive than either Cassidy or DiFranco. How ironic that the plaintiff in Cassidy met the threshold with a fractured leg without surgery and a relatively short duration of actual impairment. Leo Cassidy’s injury was not nearly as serious as the injury and subsequent impairment suffered by Rodney McCormick.

All this should mean that if our current Court feels this new law was a return to Cassidy, or feels the statutory threshold was anything like the serious impairment threshold under Cassidy, that Kreiner must be completely undone.

Who Wants Kreiner to Change?

It is not just plaintiffs’ attorneys who detest Kreiner. There is universal condemnation for it. Defense lawyers, and especially many trial court judges, want a change to Kreiner. And I think what makes everyone so angry about the Kreiner opinion is that it represents unacceptable, agenda-driven judicial activism of the worst kind.

It has come to highlight for both the bench and Michigan bar so much of what is glaringly wrong with our judicial system today. Again, the Michigan Legislature could have added additional factors or more wording to the definition of serious impairment of body function, but deliberately chose not to. That did not stop the Court in Kreiner from disregarding the plain, unambiguous wording of the statutory definition when it ruled.

We all lose under this politically motivated ruling. It’s worth noting that the independent State Bar of Michigan Negligence Law Section, a neutral group composed of well-respected plaintiff and defense lawyers, came out strongly against Kreiner in its own amicus brief filed in McCormick, as did a number of consumer organizations such as CPAN (Coalition Protecting Auto No-Fault), which is made up of dozens of medical groups.

Frankly, anyone who reads this 64-page opinion based upon a clear, unambiguous, plainly-worded and quite short legislative definition of serious impairment of body function knows Kreiner is a bad decision. If the judges and even the defense lawyers hate Kreiner and what it stands for, it seems the only entity that truly likes the Kreiner decision is the insurance industry.

This is because it effectively gives them immunity that goes far, far beyond what the Michigan Legislature ever intended when they created the Michigan No-Fault Act and then again when they enacted the amendment, 1995 PA 222. The insurance industry argued years ago that with less third-party claims, Michigan residents would save substantial money on insurance premiums.

Since Kreiner, insurance premiums in Michigan have gone up. Even the Michigan Insurance Commissioner has filed an amicus brief arguing Kreiner was wrongly decided.

Kreiner has caused cynicism and disgust amongst lawyers and judges. It has deprived hundreds, perhaps even thousands, of completely innocent people who have been seriously injured through no fault of their own.

It has not lowered insurance rates for Michigan drivers.

It’s time for a change.

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. Michigan Auto Law has received the largest reported jury verdict for an automobile accident case in Michigan in seven of the past 10 years, including 2009, according to published year-end verdicts and settlements reports.

Related information:

Michigan Car Accident Legal Resource Center

A Flowchart Guide to Kreiner

10 Lessons for Michigan Attorneys Handling Car Accidents

Help for Michigan Truck Accident Lawyers

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 to better serve you. Call (248) 353-7575 for a free consultation with an auto accident attorney. We can help.

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