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Will HB 5864 kill No-Fault and wipe out car accident lawsuits?

September 13, 2012 by Steven M. Gursten

HB 5864 destroys our Constitutional 7th Amendment Rights, Destroys No-Fault in Michigan

HB 5864 was introduced on September 11, 2012 by Representatives Lyons and Haveman.  It has been written by the state’s powerful auto insurance companies, and would essentially destroy the No-Fault law in Michigan.

It is a very dangerous and ugly piece of legislation.  It keeps the profits intact for the state’s auto insurance companies – who already enjoy some of the highest profit margins in the nationbut would wipe out the ability to bring an auto accident lawsuit for all but the most seriously injured in this state, effectively barring nearly everyone from the courtroom.

I’ve spoken and written widely about Michigan’s current “serious impairment of body function” threshold law.  I’ve lectured to the Michigan State Bar, the Michigan Association for Justice, the Institute for Continuing Legal Education, and spoken on this topic at three of the state’s law schools.

In analyzing the proposed language of HB 5864, my main concern is that it seeks to destroy the balance in Michigan that currently exists in this state. Our current No-Fault Law is predicated on  providing No-Fault insurance benefits to people injured in car accidents and then balancing those benefits with a threshold test that requires that these injuries be sufficiently serious in order to bring a lawsuit for pain and suffering compensation against a negligent driver.

If HB 5864 becomes law in this state, that balance will be destroyed.  Based upon how cases were interpreted under the previous misinterpretation of 1995 PA 222 under Kreiner v. Fischer, which HB 5864 seeks to codify into law, it is quite conceivable that this bill would eliminate almost all third-party (pain and suffering) lawsuits against at-fault and negligent drivers for injuries they’ve caused. This new threshold test that our law would now impose if this bill becomes law would be so severe for innocent people injured in car accidents that it will likely be nearly insurmountable for almost all car accident victims in this state.

The bill seeks to redefine all three current injury threshold elements that currently exist under Michigan law.

1.  Objective manifestation – Objective manifestation is the current first prong of Michigan’s  auto accident threshold law. HB 5864 redefines this first prong to require a “medically identifiable” injury or medically identifiable physical condition. It also now requires that this medically identifiable physical condition be “caused by the accident” and further that it  “substantiates” a car accident victim’s complaints, restrictions and impairments.

This is horribly dangerous in two important ways.  First, it seeks to return to the to Kreiner v. Fischer era, but it then goes much further and would be significantly more restrictive.  This is because for the first time ever, our No-Fault law will include injury causation and injury severity sub-requirements as part of the “objective manifestation” requirement.

What does this mean?  It means people who suffer very common injuries from car accidents will never be able to get to court.  People who suffer, for example, disabling post-traumatic headaches, or tinnitus (the suicide injury as it is often called because it is so horrible for people who have it) lose their 7th Amendment right to a jury trial under this law.

It is a requirement that clearly discriminates between people who have injuries that are easily identifiable and those that are not – no matter how serious those injuries may be.  Chronic Pain Syndrome?  Reflex Sympathetic Dystrophy (RSD) and Complex Regional Pain Syndrome (CRPS)?  These are all utterly incapacitating  injuries. And all would be completely barred by this new objective manifestation prong.

Why would we allow a law that lets someone with a severely shattered broken leg  – an injury that does show up easily on an x-ray be able to sue for his or her injury against a negligent driver, but someone driven almost to the point of suicide and who will never be able to work again because of tinnitus, or CRPS have his 7th Amendment right under the US Constitution be arbitrarily taken away?

Pre-existing medical conditions will likely also be wiped out. This new objective manifestation requirement would arguably disqualify many car accident victims who suffer from pre-existing medical conditions that were not caused by the car accident, but which were significantly aggravated by the car accident.

This new objective manifestation prong would also clearly disqualify car accident injury victims who have medically identifiable injuries or medical conditions caused by an automobile accident, but  that do not necessarily explain the full scope of an injury victim’s current medical problems. In conclusion,  this new objective manifestation definition imposes new and very significant injury severity requirements never before seen in Michigan’s 40 years of No-Fault.

2. Important body function – This element has been completely redefined.  The new definition is that a body function is only important if it is “important to an average person, rather than important to the injured person.” This new definition will certainly disqualify accident victims whose ordinary, normal life requires abilities that the “average person” does not require.

The classic example that lawyers always use to explain “important body function” is the fractured finger injury that causes loss of motion.  That fractured finger may be utterly devastating to the neurosurgeon or the violinist, but will it be “important” to an “average person?”

Most certainly not.

3. Normal life – This third prong of Michigan’s serious impairment threshold and it’s also completely redefined. What is most alarming is that this new definition would impose far more restrictive concepts than ever existed even under Kreiner v. Fischer and its progeny of cases.

Specifically,  HB 5864 requires that the impairment be “of sufficient severity and duration to affect the course and trajectory of the injured person’s entire pre-accident normal life.”

This return to the “course and trajectory” language from Kreiner v. Fischer should send a shiver down the spine of every judge and lawyer who practiced law during the Kreiner era.  In using these words, nearly any injury, no matter how serious, could arguably now be dismissed.  This is because surgeries, fractures, and very serious physical injuries that require months and months of disability will still fail.

“Course and trajectory” is deliberate wording that is meant to impose very significant durational/temporal elements.  But HB 5864 then goes even further.

“Entire pre-accident normal life” is also completely new.  And it is the worst language by far in a bill that is itself a near complete destruction of people’s rights.  What does “entire pre-accident normal life” mean? Arguably it would mean that almost no injury – no matter how devastating it may be to the innocent accident victim – could survive if that injured person is able to still do many of the things that they could pre-accident. Arguably, even a lawyer who loses a leg or a manager who suffered paraplegia or other catastrophic personal injury, but who could within a year or so go back to his or her job, would be barred from the courthouse.

The real danger is that a judge with an agenda can now use “course and trajectory” and “entire pre-accident normal life” to dismiss nearly any injury.

The end of No-Fault?

I’ve been waiting for this bill.  Based upon the devastating changes that the Republican Supreme Court has already made to our first party No-Fault law, combined with a new third-party tort law that completely bars any legal recovery for all but the most catastrophic personal injury, there would be no purpose left to continuing with the pretense that Michigan still has a viable No-Fault system.

The only course of action that will be left is a referendum returning Michigan to a pure-tort state and returning to basic concepts of fairness, accountability and responsibility.  If HB 5864 passes, or a version similar to the language of this bill becomes law, it will be time to kill No-Fault in Michigan.

–    Steve Gursten is an attorney at Michigan Auto Law. Steve wrote the book, Guide to Michigan No-Fault Law, and is available for comment.

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