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Is it best for injured train accident victims to collect Michigan No-Fault?

February 3, 2012 by Steven M. Gursten

Accident lawyer says No-Fault insurance benefits are the right choice for passengers, but injured Amtrak employees might want to pursue FELA

I was recently interviewed about the train that crashed with a semi-truck in Jackson, Michigan this week, and about what the various legal rights are for the injured people involved. Afterward, I wrote a quick blog to explain the unusual insurance loophole that exists in Michigan that will allow injured train accident victims to collect Michigan No-Fault insurance benefits — even though they were passengers on the Amtrak train when the crash occurred.

But this then raises an interesting second legal issue. Even though injured train passengers can collect Michigan No-Fault insurance benefits, should they?

The answer is, it depends (sorry for having to talk like a lawyer here, but I’ll explain below).

For injured train passengers, No-Fault is the right choice

For injured train passengers — who would have the choice to sue in tort or collect Michigan No-Fault –the better answer would be to collect No-Fault insurance benefits. There are several reasons for this.

First, they can still sue in tort. But in addition to being compensated in tort for their injuries and pain and suffering, they can also collect No-Fault and receive incredibly important protections that they cannot recover in any other state.

As an aside, I have this same discussion with out-of-state attorneys every time there’s a Michigan resident who is injured in a motor vehicle accident out of state, especially when that state does not have No-Fault and the same choice arises.

To begin with, Michigan No-Fault insurance benefits (also called personal injury protection or PIP) offer a lifetime benefit for necessary medical care. If someone has suffered a serious neck injury, back injury or traumatic brain injury, that alone should be the deciding factor in choosing to collect No-Fault.

With serious spinal cord and brain injuries, the medical treatment can be extremely expensive, and these people may need care over the course of a lifetime. Or, as is often the case, the person with the brain injury goes on to develop conditions from the trauma, such as dementia years later, or the person with a neck injury goes on to have surgery for a ruptured or herniated disk years later. With No-Fault, there will be insurance to pay for it, whereas the same is certainly not the case if that person chose to sue in tort.

No-Fault insurance offers other important benefits as well, such as wage loss for three years, replacement services (help around the house), attendant care (nursing services), and mileage reimbursement. But the medical protections are by far what separates it from every other state and makes this, to me, generally an easy choice.

The sad reality is that many injury lawyers, whether they be FELA lawyers or out of state personal injury lawyers looking at an auto accident case, prefer to sue in tort and avoid No-Fault because the lawyer can then collect the cost of medical as part of his or her attorney fee. That’s not the case with No-Fault. And even though every case is different, and the unique facts and liability and insurance policy limits have to be looked at in each and every case. For most people who suffer serious injuries – whether it be in a train accident or an auto accident, they will almost always be better off collecting Michigan No-Fault if they are able to.

I can say I’ve passed up on attorney fees of what would be millions of dollars in medical for my seriously injured clients by recommending they pursue a PIP No-Fault claim instead of suing in tort, and I’m happy I’ve done it every single time because I know I’ve put my client’s best interests ahead of my own.

For injured Amtrak train crew members, the answer may be different

If the question relates to one of the Amtrak crew members who may have been injured, then the answer is, it’s probably not best for them to opt for collecting Michigan No-Fault. The Amtrak crew members who may have suffered injury would be protected under the Federal Employer’s Liability Act (FELA).

When a railroad worker or train crew member is injured on the job, legal compensation is governed by a Federal law known as the FELA, or the Federal Employers’ Liability Act.

Before the FELA, when an injured railroad worker attempted to recover compensation for injuries and pain and suffering damages for railroad negligence, the odds of any legal recovery or compensation were slim.

Compensation for negligence under FELA

To recover under the FELA, it is necessary to first establish negligence on the part of the railroad. This differs from state workers’ compensation laws, where no such proof of negligence is required.

However, in Michigan FELA cases, as in all other states, the amount of negligence required to be shown against the railroad is very small. All that needs to be shown is that a railroad failed to provide a reasonably safe place to work. When Amtrak or railroads act negligently, recoveries under the FELA will generally be higher than under workers’ compensation.

FELA is intended to provide injured railroad workers and families of railroad employees and crew members with fair compensation for injuries. I would strongly recommend you discuss your case with an experienced FELA lawyer so you can better understand all of the unique legal benefits that FELA provides to train crew and railroad workers.

Suffice it to say, as I’ve seen the interconnection between FELA, work comp, and No-Fault for now almost 20 years of practice, that the protections and benefits offered by FELA are substantial.

Steven Gursten is a head of Michigan Auto Law and one of the accident lawyers in the country. He is president of the Motor Vehicle Trial Lawyers Association. Steve frequently writes and speaks on catastrophic accidents, and is available for comment.

Related information to protect yourself:

Your 3 types of car accident claims

Michigan No-Fault insurance resource center

The Michigan No-Fault Act

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout the entire state of Michigan. We have offices in Farmington Hills, Sterling Heights, Ann Arbor, Grand Rapids and Detroit. Call (800) 777-0028 or to speak with one of our accident lawyers today.

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