Which auto law applies to cases filed under Kreiner, before McCormick v. Carrier?
As I’ve previously discussed in my blogs about McCormick v. Carrier, I believe McCormick will apply retroactively to all auto accident cases that had been filed before the decision was released by the Michigan Supreme Court on August 1, 2010. In addition to writing on McCormick, I’ve also spoken on the topic to several hundred auto accident lawyers at the No-Fault Institute seminar and to the State Bar Negligence Section seminar in Grand Rapids, Michigan, last fall.
Now it’s official.
On February 22, 2011, the Michigan Court of Appeals specifically addressed this issue for the first time in Casey v. Charter Township of Ypsilanti. Although an unpublished decision, it still squarely addresses whether McCormick’s less draconian threshold law for Michigan auto accident cases will apply to those that were filed while Kreiner v. Fischer was in effect, before McCormick was released.
In Casey, the court applied McCormick retroactively. The underlying case, that had dismissed the auto accident claim because the trial court’s analysis was based on Kreiner, was vacated and the case was remanded for reconsideration under McCormick.
McCormick v. Carrier established new standards for determining when a person has suffered a serious impairment of body function in Michigan auto accident cases and expressly overruled Kreiner by doing so.
Most important, the Casey decision expressly adopts the argument I’ve made repeatedly for why McCormick must be retroactive: the court noted that McCormick did not establish a new law, but brought the “case law in line with the explicit language of the [applicable] statute.” As the law itself was not new, but McCormick was merely correcting the erroneous (and politically motivated and ideologically driven judge made law of the Republican majority under Kreiner), McCormick had to be retroactive.
Here’s some information about Casey v. Charter Township of Ypsilanti:
Issues: Automobile negligence; Whether the trial court properly granted the defendant-township’s motion for summary disposition in this third-party claim under the No-Fault Act (MCL 500.3101 et seq.) based on Kreiner v. Fischer; Whether McCormick v. Carrier can be applied retroactively; McDonald v. Farm Bureau Ins. Co.; Grimes v. Department of Transp.
Court: Michigan Court of Appeals (Unpublished)
Case Name: Casey v. Stachlewitz and Charter Township of Ypsilanti
Judge(s): Per Curiam – Hoekstra, Fitzgerald, and Beckering
The court applied McCormick retroactively and held that because the trial court’s analysis was based on Kreiner, it vacated the trial court’s order and remanded for reconsideration under McCormick. After the trial court granted defendant’s motion, the Supreme Court decided McCormick, which established new standards for determining when a person has suffered a serious impairment of body function and overruled Kreiner. The court also concluded that there was an issue of fact as to the causation element. The case arose out of a motor vehicle accident where defendant-Stachlewitz, the defendant-township’s fire marshal at the time, rear ended plaintiff’s vehicle when she was stopped at a red light. Plaintiff sued alleging that she suffered a serious impairment of body function under MCL 500.3135(1) and (7). The trial court based on Kreiner granted the township’s motion for summary disposition. The court noted that McCormick did not establish a new principle of law, but brought the “case law in line with the explicit language of the [applicable] statute,” and held that it should by applied retroactively to this case. Because the trial court’s analysis and order granting the township’s motion for summary disposition was based on the now-overruled standards for determining when a person has suffered a serious impairment of body function set forth in Kreiner, the court vacated the order.
– Steven Gursten is recognized as one of the nation’s top accident lawyers handling serious car and truck accident lawsuits and automobile insurance No-Fault litigation. He routinely writes about McCormick v. Carrier and the auto laws in Michigan, and is available for comment.
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