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Michigan Court of Appeals case limits No-Fault transportation services, confining auto accident victims to their homes

December 8, 2012 by Steven M. Gursten

How ZCD Transportation v State Farm only allows transportation for medical visits

Today I’m sharing a blog from a friend of our law firm, Arnie Grinblatt. Arnie was seriously injured in a car accident and he is now a strong advocate of  preserving our Michigan No-Fault Law.

Today the No-Fault system in Michigan is under attack.  Not only is it being scaled back with nearly every decision in the courts, but there have been several bills introduced in the legislature (at the behest of the insurance companies, of course) to limit or cap No-Fault PIP benefits as well.

And the human cost of what these judicial changes means to the people who depend upon PIP benefits most is lost.  Arnie, who lives in West Bloomfield, Michigan, wrote in on how one particularly unfair recent Court of Appeals decision, ZCD Transportation v State Farm, will effect people – by confining car accident victims who depend upon transportation services to their homes.

I agree with Arnie.  I think ZCD is a terrible decision, but this is sadly to be expected these days in Michigan. It is clearly the trend with the courts attempting to dismantle and scale back the scope of No-Fault.

Below is Arnie’s unique perspective on what ZCD Transportation v State Farm really means to accident victims:

ZCD Transportation v State Farm is very sad case that clearly illustrates the injustice occurring in our courts today. I am not a party to the lawsuit. I am, however, the subject of the lawsuit.

The Michigan Court of Appeals ruled that transportation other than to directly treat my auto injuries are replacement services. Although I am not a legal expert, find me a transportation company that will drive to your home to pick you up to run your errands for $20 per day, and I will find you a transportation company that will quickly be out of business.

To add insult to injury, my insurer has informed my care agency that the aides will not be paid when they grocery shop for me because that, too, is a replacement service. Thus, based on this ruling, I have no means to buy my food, to  visit my mother who resides in a nursing home, to seek medical care unrelated to my auto injures, or  to basically have any  life outside of my home.

Based on the Court’s ruling, the legislators drafted our Michigan auto No-Fault victims to be confined to their homes [with the exception of medical rides directly treating their auto injuries] and to starve to death.

Interestingly,  AFTER filing the Griffith Brief on Appeal w/ the MSC  in 2004, my insurer recognized my need to have transportation for all medical needs and for reasonable, but limited leisure outing. They agreed to this after a 7-month long investigation to determine if my inability to drive was caused by my motor vehicle accident or a pre-existing condition. Given that I was totally independent prior to the accident, 24/7 dependent as a result of the accident, and given that I was driving the vehicle when the accident occurred, this was, in my opinion, a delay tactic.

After my insurer  had supporting documentation that my inability to drive was caused by the accident, they paid my transportation company for all unpaid rides while the investigation was ongoing,  and then drafted a transportation settlement agreement providing me w/ ALL medical rides and up to three leisure outings per week. They submitted their bills for reimbursement to the MCCA.  Again, this all took place AFTER my insurer file the Griffith Brief of Appeal with the Michigan Supreme Court.

The MCCA rejected my insurers request for reimbursement, and so, after the Griffith Opinion was published one year later, they reneged on their agreement and offered to buy me a modified vehicle [one-time only] to be driven by my aides. I would need to release them of their obligation to provide me with medical rides forever, and as the owner of the one-time vehicle, I would be legally responsible if my aides negligently drove. They wrote that they would honor my medical rides if I didn’t accept the offer.

Since ALL medical rides were paid for at that time, I didn’t accept the offer.  However, in 2007, my insurer reneged on their 2007 promise. They began denying rides for medical when the medical provider does not directly treat my auto injuries.

Again, although I am not an attorney, It appears to me that this panel of three legal experts has eliminated “rehabilitation” from the no fault statute and replaced it with “replacement service.”

The court, referring to Johnson, wrote:

“Services that were required both before and after the injury, but after the injury can no longer be provided by the injured person himself or herself because of the injury, are ‘replacement services,’ not ‘allowable expenses.’”  Johnson, 492 Mich at 180 (emphasis in original).  That is because while the services “might be necessitated by the injury if the injured person otherwise would have performed them himself, they are not for his care . . . .”

In my opinion, this is a slippery slope. Technically, assistance with ALL ADLs could be categorized as replacement services. I can no longer dress myself, bathe myself, turn over in bed, cut my meals into bite size portions and more.  These services were necessitated by me before my auto injury. Based on the above reasoning, what separates assistance any ADL from being categorized as a replacement service?  Ask these judges, and I am sure that they will be tongue-tied.

Last, even if one could successfully argue that they are not for care, how can they argue that they are not for rehabilitation? Unlike Griffith, whose food needs were no different before and after the auto accident, my needs for transportation were altered because my inability to drive AROSE FROM my accident.

I’m not a lawyer, but is clear to me that the judges who wrote the ZCD Transportation Opinion failed to distinguish that the transportation needs for those who are able to resume driving after the accident differ from those of us unable to do so. For those of us in the latter group, with transportation, we are now deprived of our right to reintegrate into society.

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