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The Michigan Supreme Court meets “The Godfather”

August 7, 2012 by Steven M. Gursten

The movie “the Godfather” ends with Michael Corleone taking revenge and wiping out all of the Corleone family enemies.  If you’re a Michigan lawyer or judge, you could be forgiven for wondering if the past two weeks have seen the equivalent of the Michigan Supreme Court’s version of this movie classic.

The four Republican justices on the Michigan Supreme Court have released a series of landmark decisions that will have devastating results on thousands of Michigan citizens injured in car accidents and slip and fall cases.

My partner Robert Raitt is speaking Thursday to a hastily convened State Bar Negligence Section seminar on these cases. The tone among both plaintiff and defense lawyers is one of shock at the breadth and scope of these decisions.

  • The Court has assassinated all claims for excess replacement services in third-party auto-negligence cases in Johnson v. Recca, a claim that Michigan lawyers have been making for decades.
  • The four justice Republican majority effectively have wiped out all of the ice and snow premises liability claims in Michigan by crafting an entirely new test of “inescapably required to confront” that takes the previous standard of “effectively unavoidable” language from Lugo to a new and effectively unreachable level (this is a very activist and results-oriented Republican Supreme Court majority).
  • They riddled hundreds of No-Fault attendant care claims with bullets by releasing Douglas v. Allstate, a case that allows insurers to go back and re-examine the incurred element for all allowable expenses in No-Fault PIP cases and imposes very high, new guidelines for attendant care claims.
  • The four justice majority clearly developed “judicial amnesia” in Titan v. Hyten  by creating a clear and blatant double-standard of the legal proof required in fraud cases. This new double standard makes it very easy for auto insurance companies to allege fraud and void coverage against their own customers, but makes it near impossible for innocent customers to turn around and allege fraud when an insurance company cheats, lies and steals against the unsuspecting, the innocent and the vulnerable.

Michigan lawyers, judges and law professors are left to wonder whether justice, like Luca Brasi, now sleeps with the fishes.

Textualism, like Don Barzini, lay dead in the streets after these new judge-made laws.

At the end of the Godfather movie, Philip Tattaglia, Barzini, Carmine Cuneo, Victor Stracci, and Tessio each lay dead as Michael Corleone family took his carefully planned revenge on his enemies. In similar fashion, attendant care claims, snow and ice premises liability claims, claims for excess economic loss in auto accident cases, claims against insurance companies based upon adjuster fraud and misrepresentations and even equitable (fairness) exceptions to the one year back rule (Joseph v. ACIA) were each carefully singled out as the Court waited until the end of its term to act.

The real shame is that this isn’t a movie.  And it isn’t really bad people like Sollozzo who are getting hurt.  It is the thousands of Michigan citizens who suffered serious harm and injury once and who now are harmed a second time as their legal rights are taken away by these decisions.  Each decision was rendered by the same sharply divided 4-3 Michigan Court, proving that politics now clearly trumps precedent and stare decisis.   Four justices are re-writing the negligence laws in this state.  These cases will effects the lives of thousands of people, with thousands more each year.  And yet these decisions received almost no media attention or comment.   In two weeks, entire areas of personal injury law in this state have vanished.  Just like Carmine.

Law professors, negligence lawyers and judges can only look upon what is happening and shake their heads in wonder at the impact these decisions will have on the civil justice system and negligence laws in this state. Real people won’t know until after they or a loved one has been seriously injured in a car accident, or slip on black and ice, and their lives are changed forever.

The insurance industry in our post-Citizens United World now gives unlimited amounts of money to judges and justices who publicly campaign promise to overturn decisions like McCormick v. Carrier and to “do something” about attendant care.

In The Godfather, Tom Hagen says that a lawyer with his briefcase can steal more than a hundred men with guns.  It looks like the insurance industry took that scene to heart.

– Steve Gursten is head of Michigan Auto Law. He is past co-chair of the Michigan Association for Justice Automobile Accident No‐Fault Committee. He frequently writes and speaks about Michigan No-Fault law, and is available for comment. Steve also wrote the free book, Guide to Michigan No-Fault Law.

 – Photo courtesy of Creative Commons, by Vectorportal

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. Call (800) 777-0028 to speak with one of our lawyers.

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