Medical, consumer and legal groups also say McCormick v. Carrier shows why Kreiner v. Fischer is wrongly decided
To follow-up on a recent blog on my own impressions of the Michigan Supreme Court hearing on McCormick v. Carrier (Rodney McCormick v. Larry Carrier and Allied Automotive Group, Indemnitor of General Motors Corp.), I’d like to run a comment by C-PAN regarding the McCormick case and why Kreiner v. Fischer is wrongly decided. CPAN, the Coalition Protecting Auto No-Fault, is a Lansing-based, bi-partisan organization of medical, consumer and legal groups.
McCormick is the case that will hopefully change Michigan’s broken auto threshold law, Kreiner— and restore the rights of injured auto accident victims. It stems from a car accident with serious personal injuries that occurred in Flint, Michigan. Here’s what CPAN has to say:
On Jan. 12, 2010, the Michigan Supreme Court heard oral argument in the case of McCormick v. Carrier – a case where the Court will decide whether to overrule the 2004 decision in Kreiner v. Fischer. The Coalition Protecting Auto No-Fault submitted an amicus brief in McCormick and sent representatives to observe the oral argument. Those involved in the process clearly understand the importance of the McCormick case and the significance the decision will have on the future of the Michigan auto no-fault insurance system. Equally important is the significance this case has for all attorneys who truly care about justice in the state of Michigan. Reduced to its essence, the case is all about the following:
Shocking Numbers of Failed Auto Accident Cases with Real Personal Injuries
It was noted by one of the justices that CPAN’s brief referenced the fact that, through September 1, 2009, there had been approximately 246 Court of Appeals decisions implementing the Kreiner decision, with the victim losing 196 times. This justice inquired about the numbers before Kreiner, but unfortunately, no one had the information readily available. Those numbers are shocking. The fact is that the Michigan appellate courts have dismissed more victims’ cases during the first five years of the Kreiner era, than the appellate courts dismissed during the first 31 years of the Michigan No-Fault Law! [There were approximately 150 total appellate court decisions during the first 31 years of the no-fault law, which are broken down as follows: approximately 25 during the 10-year advisory opinion era; approximately 85 during the four-year Cassidy era; and approximately 40 during the 10-year DiFranco era.]
The Ignored Reality of Kreiner
Hopefully, after a thorough review of the briefs, the Supreme Court will issue an opinion that will be based upon a fundamental reality that was simply ignored by the Kreiner decision. That reality is this: the 1995 threshold is clearly not a codification of the Cassidy decision. On the contrary, it is a more relaxed threshold than Cassidy for three fundamental reasons: (1) the 1995 law utilizes a more lenient subjective life impact test rather than the more stringent objective life impact test used by Cassidy; (2) the 1995 law does not adopt the definition of the statutory element of “objective manifestation” that was in effect during the Cassidy era; and (3) the 1995 law does not require a separate finding of “seriousness” as was required during the Cassidy era. The reason these three elements of Cassidy were not incorporated into the 1995 threshold is because the Legislature opted to comprise between a DiFranco type threshold and a Cassidy type threshold that would then become a part of a larger auto tort reform package that included two other serious limitations on the rights of victims to pursue non-economic loss clients. Neither of which excited during the Cassidy era: (1) the new comparative negligence rules; and (2) the new uninsured victim disqualification. In spite of this unassailable reality, the Kreiner decision has turned the 1995 law on its head by making the threshold more restrictive than it ever was under Cassidy. This is demonstrated by the fact that the plaintiff in Cassidy (who had a broken leg that did not require surgery and healed without complications) was found to have suffered a serious impairment of body function as a matter of law, while the plaintiff in McCormick (who suffered a more severe leg fracture requiring two surgeries, the inability to work for over a year, and permanent residual consequences) was found not to have suffered a serious impairment of body function under a less restrictive threshold than was adopted by the Cassidy case.
Kreiner: Clearly Michigan Judicial Legislation
Hopefully, after a thorough review of the briefs and listening to the argument of counsel, the Supreme Court will issue an opinion that will characterize the Kreiner decision for what it clearly is: a classic example of judicial legalization. This is made abundantly clear when the language enacted by the Legislature is compared to the language contained in Kreiner. The differences are stark. When the Legislature adopted the 1995 threshold, it defined “serious impairment of body function” exactly the way it wanted that term defined – by using four specified elements chosen by the Legislature. Those elements are: (1) objective manifestation; (2) body function importance; (3) ability impairment and (4) normal life impact. The Legislature could have, but did not, adopt the radical defining elements decreed by the Court in Kreiner; i.e. course or trajectory, entire normal life, whole life, generally unable, for the most part unable, extensive and pervasive, etc. The fact that all of these words are conspicuously absent from the 1995 threshold speaks volumes. The Legislature did not enact these legal rules – the justices who decided the Kreiner case did. Furthermore, it is clear that when it drafted the 1995 definition of “serious impairment of body function.” The Legislature did not insert any specific durational elements into that definition. Nevertheless, duration is something that can be considered by judges or juries regarding the Legislature’s requirement that an injury be one that affects the person’s “normal life.” Therefore, if an injury or impairment lasted for a trivially short period of time such that no reasonable thinking person could conclude that the injured person’s normal life had been affected, then the claim will fail because of the inability to satisfy the statutory normal life element.
Restoring the Right to Jury Trial
Hopefully, the experience of the last five years will convince the Court that the Kreiner decision has resulted in the wrongful denial of the right to trial by jury. The Supreme Court should immediately restore that right. It has long been the law in Michigan that judges can decide cases by summary disposition only if summary disposition is appropriate under the court rules (MCR 2.116(C)(10)). This court rule prohibits summary disposition unless “there is no genuine issues as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” Moreover, this court rule constitutionally trumps any legislature that is inconsistent with its provisions. As a result of the decision in Kreiner, lower court judges have dismissed cases that would not have been appropriate for dismissal under the court rules governing summary dispositions. It is hoped that the Supreme Court will recognize that most threshold issues arising under the 1995 law are for juries to decide, not for judges. Our citizen jurors, properly instructed, can do just as good a job as the judges who have been deciding these issues over the last five years – frequently in a way that has resulted in little consistency. Nevertheless, there is still a role for judges to play in deciding threshold issues. It is the same role judges have been playing since the adoption of the no-fault law 36 years ago – if a claim is so trial or frivolous that no reasonable thinking juror could conclude the injury constitutes serious impairment of body function, the case becomes one that “breaches permissible limits,” this making it appropriate for decision by the judge.
Universal Condemnation for Kreiner
Never before in the 36-year history of the Michigan no-fault law has there been a legal issues that has produced such a consensus of opinion as Kreiner. Almost the entire “no-fault world” has expressed universal disapproval of the Kreiner decision, concluding that it is not only legally wrong, but that it has severely disrupted the delicate balance that is essential to preserving and protecting the Michigan auto no-fault law. This fact is abundantly clear by the position taken by CPAN – the Coalition Protecting Auto No-Fault. CPAN is a bipartisan coalition of 26 major medical, consumer and legal groups that has consistently and persistently voiced its strong criticism of the Kreiner decision and worked vigorously to seek its reversal.
In addition to CPAN, the Michigan Insurance Commissioner has filed an excellent amicus brief in the McCormick case echoing CPAN’s call for a reversal of Kreiner and agreeing with CPAN’s analytical criticism of that decision. The associations who are members of CPAN include:
Michigan Academy of Physician Assistants; Michigan Assisted Living Association; Michigan Association of Chiropractors, Michigan Association of Rehabilitation Organizations; Michigan Brain Injury Providers Council; Michigan College of Emergency Physicians; Michigan Dental Association; Michigan Health and Hospital Association; Michigan Home Health Association; Michigan Nurses Association; Michigan Orthopedic Society; Michigan Orthotics and Prosthetic Association; Michigan Osteopathic Association; Michigan Rehabilitation Association; Michigan State Medical Society; Brain Injury Association of Michigan; Disability Advocates of Kent County; Disability Network of Michigan ; Michigan Association for Justice; Michigan Citizen Action; Michigan Paralyzed Veterans of America; Michigan Partners for Patient Advocacy; Michigan Protection and Advocacy Service; Michigan State ALF-CIO; Michigan Trial Advocates; and UAW Michigan CAP.
In truth, it seems that only no-fault insurance companies defend the Kreiner decision. They defend it because it allows them to collect premiums while not having to pay seriously injured victims of auto accidents. The nearly universal condemnation of the Kreiner decision is power confirmation that the time has now come to overrule it.
– 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.
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