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McCormick v. Carrier: What the new law means for Michigan personal injury lawyers

August 10, 2010 by Steven M. Gursten

Attorney boils down the new 100+ page Michigan Supreme Court case McCormick v. Carrier for lawyers

One week ago, the Michigan Supreme Court restored common sense to the state’s auto accident law with its ruling on McCormick v. Carrier, an auto accident case from Flint. McCormick v. Carrier overturned Kreiner v Fischer, and returned important legal rights to potentially hundreds of car accident victims who were told by Michigan lawyers that they did not have a case under the old auto law as interpreted – incorrectly – by the Kreiner Court. Over the past week, nearly every personal injury lawyer, insurance claims adjuster, and trial judge has been scrambling trying to figure out what this decision, weighing in at more than 100 pages, really means for people injured in car accidents in Michigan.

Here is my McCormick outline, to help fellow personal injury lawyers better understand this important case.

The McCormick v. Carrier decision reestablishes the proper interpretation of the clear and unambiguous language in the No-Fault Act’s MCL 500.3135. It creates the following test for anyone in Michigan who has been injured in a car accident to recover pain and suffering damages.

As of August 1, 2010, this is Michigan’s new “serious impairment of body function” test, after McCormick v. Carrier:

Step 1: To begin with, the court should determine whether there is a factual dispute regarding the nature and the extent of the person’s injuries, and, if so, whether the dispute is material to determining whether the serious impairment of body function threshold is met. MCL 500.3135(2)(a)(i) and (ii). If there is no factual dispute, or no material factual dispute, then whether the threshold is met is a question of law for the court.

Step 2: If the court may decide the issue as a matter of law, it should next determine whether the serious impairment threshold has been crossed. The unambiguous language of MCL 500.3135(7) provides three prongs that are necessary to establish a “serious impairment of body function.”

Personal injury lawyers and people injured in car accidents must meet this test under McCormick v. Carrier to recover pain and suffering damages in Michigan

Step 3: If a personal injury lawyer can prove the three requirements below, the injury victim will have a pain and suffering case in Michigan:

(1) an objectively manifested impairment (observable or perceivable from actual symptoms or conditions)

(2) of an important body function (a body function of value, significance or consequence to the person with the personal injury) that

(3) affects the person’s general ability to lead his or her normal life (in other words, influences some of the plaintiff’s capacity to live in his or her normal manner of living).

Comment: As McCormick only requires an injured car accident victim to establish that the impairment affected or influenced “some” of the injured person’s capacity to lead his normal life (slip opinion, p. 19); this new threshold test will be far easier than the requirement that a person have a completely altered life course or trajectory, as was required under Kreiner.

Every personal injury and car accident lawsuit in Michigan is different

Step 4: Our new auto law is to be applied case by case. It’s important for personal injury lawyers in Michigan to remember that legal recovery after an auto accident is inherently fact- and circumstance- specific to each injured person, and must be conducted on a case-by-case basis.

As stated in McCormick v. Carrier, “[t]he Legislature recognized that what is important to one is not important to all[;] a brief impairment may be devastating whereas a near permanent impairment may have little effect.” As such, the analysis does not “lend itself to any bright-line rule or imposition of [a] non-exhaustive list of factors,” particularly where there is no basis in the statute for such factors. Id. Accordingly, because “[t]he Legislature avoided drawing lines in the sand . . . so must we.”

What’s gone after McCormick v. Carrier: Kreiner v. Fischer?

What made Kreiner v. Fischer such a bad decision were the additional hurdles and restrictions that the Kreiner Court created – really what four justices decided to write into the auto law in Michigan. This judge-made law represented a radical departure from the simple, unambiguous statutory definition created by the Michigan Legislature.

Personal injury lawyers can now say goodbye to the “multifaceted inquiry, comparing the plaintiff’s life before and after the accident as well as the significance of any affected aspects on the course of the plaintiff’s overall life.”

Personal injury lawyers can also say goodbye – and good riddance – to whether a car accident has altered the “course or trajectory” of an injured person’s overall life.

Personal injury lawyers can say goodbye to “nonexhaustive list of factors” that the Kreiner Court required judges to consider (the nature and extent of the impairment, type and length of treatment required, duration of the impairment, extent of any residual impairment, and prognosis.”

In fact, lawyers can say goodbye to all the additional temporal requirements of Kreiner, as durational requirements are now soundly rejected by the McCormick Court as going far beyond the intended scope and legislative definition of serious impairment of body function.

Comment: Kreiner was responsible for the worst possible public policy in Michigan. What made the old law under Kreiner so frustrating for lawyers was that the focus on duration and temporal factors meant that people who suffered very serious injuries of near total incapacitation but shorter duration were punished, as were good people who tried, despite the pain and medical restrictions of their injuries, to gut it out and try to get back to work as quickly a possible. On the other hand, it seemed to reward those who had what may be less serious injuries but who stayed off work. As I said, the public policy rationale behind Kreiner could not have been worse for this state.

If you have questions about how McCormick v. Carrier will affect auto accident victims in Michigan, you’re welcome to call Michigan Auto Law at (248) 353-7575 and you can speak with a personal injury lawyer. We can clarify the restored legal rights that people who have suffered personal injury in auto accidents in Michigan now have after McCormick v. Carrier.

Steve Gursten is recognized as one of the nation’s top personal injury lawyers handling serious car and truck accident injury cases and auto insurance No-Fault litigation. Steve speaks and writes extensively on McCormick v. Carrier and Michigan’s No-Fault laws. He is available for comment on Michigan’s new auto accident law.

Related information about McCormick v. Carrier:

The insurance defense perspective of McCormick v. Carrier

The big insurance company lie: No-Fault rates will raise after McCormick

Does Michigan No-Fault coverage contribute to soaring insurance costs?

Michigan Auto Law is the leading largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state for more than 50 years. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights to better serve you.

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