How auto accident victims, victims of insurance company fraud will suffer if Court continues to favor insurance companies
Pop. That was the sound of a champagne cork popping. But it was the insurance companies that are celebrating. Not only do they make record profits in Michigan, but those profits look to be in no danger of being threatened after the 2012 Michigan Supreme Court election.
Although the election of University of Michigan Law professor Bridget Mary McCormack was an extremely positive development for seriously injured accident victims, and victims of insurance company abuse and fraud, the reelection of two activist Republican justices with a 100% record of ruling for insurance companies was a definite set-back.
Protecting Barbara Ross and other auto accident victims
Michigan’s law regarding pain and suffering compensation for seriously injured auto accident victims, as it stands right now, is exactly what it should be and it is exactly what the (Republican) Michigan Legislature intended it to be when it was enacted in 1995. Our auto law is based upon a case called McCormick v. Carrier.
McCormick protects seriously injured auto accident victims such as Barbara Ross in Ross v. State of Michigan and others like her:
As a result of a crash caused by a Michigan State Police Trooper, Ms. Ross suffered a wrist fracture which required surgery, the wearing of a cast and extensive physical therapy. For well over a year from the date of the crash, Ms. Ross suffered pain, limited range of motion, restrictions on her ability to perform her normal activities of daily living as well as her normal recreational activities, including working on the computer and playing with her grandchildren.
But if the right-wing majority of the Michigan Supreme Court, which was left intact by the November 6, 2012 election, has its way, auto accident victims such as Ms. Ross would have no protection under the law and little or no chance of recovering the pain and suffering compensation she should be entitled.
Indeed, the “insurance companies win-auto accident victims lose” philosophy of the high Court’s activist Republican justices (which we must be vigilant about combating) was on full display by the trial judge in Ms. Ross’s case, when the judge explained why she was (wrongly as the Michigan Court of Appeals concluded) throwing Ms. Ross’s case out of court:
“I think that she’s able to lead her normal life in every way, shape, or form …”
I could not think of a better example of why judges should not be deciding these issues, and why the 7th Amendment to the United States Constitution, that guarantees a right to trial by jury, should be protected.
Michigan’s ‘pain and suffering’ law for auto accident victims
To sue for pain and suffering compensation, which is also known as “noneconomic loss” damages, a Michigan auto accident victim must prove he suffered a “serious impairment of body function” as result of an auto accident that was caused by another driver’s negligence. This is according to McCormick v. Carrier.
Specifically, the victim must show he suffered “an objectively manifested impairment of an important body function that affects [his] general ability to lead his … normal life.” (MCL 500.3135(1) and (7))
To put it another way, the law requires merely that the victim show that his impairment has “influenced some of [his] capacity to live in [his] normal, pre-incident manner of living.” (McCormick v. Carrier, Michigan Supreme Court, 2010)
The activist Court’s version of ‘pain and suffering’
If the activist (ironically, the Republican majority) on the Michigan Supreme Court have their way and are able to rewrite the law again, as they did in 2004, then be prepared to whiplash back to the draconian standards required under Kreiner. That will add only more pain and suffering to what seriously injured Michigan auto accident victims already are forced to endure.
In 2004, the right-wing majority of the Michigan Supreme Court effectively “repealed” Michigan’s law regarding pain and suffering for auto accident victims, replacing it with a “law” of its own creation – and one that more aggressively advanced the interests of their campaign supporters in Michigan’s auto insurance industry.
Those activist, Republican justices imposed a draconian set of rules that both ignored the actual wording of the law passed by the Michigan Legislature and guaranteed that nearly all auto accident victims would fail in their attempts to collect pain and suffering compensation from the wrongdoers who injured them.
Specifically, instead of honoring the statutory language which allowed victims to recover when their impairments of important body functions “affect their general ability to lead” their normal lives, the right-wing majority amended the statutory language by judicial fiat to effectively require that recovery could only be had if a victim was permanently unable to resume leading his or her normal life.
As expected, the result was devastating:
- Thousands of seriously injured auto accident victims were wrongfully denied the pain and suffering compensation they were entitled.
- The wrongdoing, negligent drivers who caused the accidents were never brought to justice.
- The deep-pocketed, auto insurance companies who should have been obligated to pay the pain and suffering compensation that was rightly owed to the victims under any reasonable interpretation of the law got to continue making record-breaking profits and praising the so-called “rule of law” justices, whose elections they helped fund through hefty contributions to the multitude of right-wing, activist, Republican Political Action Committees that have sprung up in the wake of the disgraceful U.S. Supreme Court decision in Citizens United.