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How lawyers can use the PIP case to prove Serious Impairment of Body Function

March 14, 2013 by Steven M. Gursten

Below is my column from this month’s issue of Attorney At Law magazine. It’s geared toward attorneys who are helping injured auto accident victims in Michigan:

Will the current auto threshold law as interpreted by McCormick v. Carrier be overturned?  And if it is,  will it revert back to the previous threshold under the draconian Kreiner v. Fischer? Or will Michigan lawyers find themselves with a new third interpretation that contains elements from both?

This month is a new column in my series about strategies that attorneys litigating auto accident cases can use to show Serious Impairment of Body Function. These strategies can also help you to maximize the value of your underlying auto case under our current law (and under whatever new law and threshold that may be in store for us).

One important strategy is to re-evaluate how you use the PIP case in your third-party auto tort case. The PIP case is an extremely important tool for lawyers to increase the value of your auto accident case, yet it’s often ignored and not aggressively pursued by many personal injury lawyers in Michigan.

On the other hand, and ironically as a direct result of what the previous threshold did under Kreiner to tort filings, we are also  seeing more abuse and questionable behavior from some lawyers in the PIP case (but that will be the subject of a future column). It serves as good example of how insurance companies should be careful what they wish for.
The terrible public policy of Kreiner v. Fischer

First, let’s address the obvious: the old law, as embodied under Kreiner v. Fischer, was terrible public policy. We had a law that punished those who tried their best to return to work. It also punished those who tried to avoid racking up doctor visits and medical bills unnecessarily.  It punished those who did not collect No Fault benefits like replacement services.

The other problem with the old auto threshold law under Kreiner is that it rewarded those with less serious injuries but who chose to stay off work and collect No Fault benefits.  Under Kreiner, with its emphasis on temporal and durational factors, we saw good people with serious injuries punished, and people exaggerating their injuries rewarded.

And we saw cases where the failure to claim replacement services, or not collect them for a long enough time period, was used in several unpublished opinions to dismiss third party lawsuits. This is bad for insurance companies as well, as the costs of first-party No Fault claims is roughly double those from tort claims, and it encourages people to treat and collect wage loss longer than necessary.

Using the PIP case

However, when there is a substantial and legitimate period of replacement services and wage loss, the plaintiff attorney should use it  as evidence to show both duration and extent of impairment.

In addition to helping a third-party case survive summary disposition, the type of help a person requires can be used to show examples of how a plaintiff’s general life is impaired.

PIP cases also offer a few additional benefits.

  1. The PIP case is generally easier to litigate, compared with the third-party auto negligence case.
  2. PIP cases have an easier threshold and an insurance company as a named-party defendant: Plaintiffs must show what is “reasonably necessary” for an injured persons care, recovery and rehabilitation. And let’s face it, having an insurance company as a named-party defendant doesn’t hurt.
  3. You are helping to protect the public. The scale has tipped way too far in favor of the insurance industry in Michigan. It is making some of the largest profit margins in the entire nation, while at the same time pushing for major No Fault “reform” to reduce or cap No Fault payouts to those most in need. The insurance industry is largely immune from punitive damages, bad faith, and the Michigan Consumer Protection Act.  Attorneys who are willing to litigate these claims in this environment are serving a vital public good.
  4. These cases offer the potential of collecting tens of thousands of dollars in penalty interest and attorney fees with very short trials: That is if an attorney is willing to take a case to trial.
  5. PIP cases can be used to increase settlement values in the third-party case: Submitting selected materials from the claims file to the claims adjuster — especially if it is to an adjuster from one of the 48 insurance companies today using  Colossus computer claims software — can double or triple settlement value. It also helps to have a proven record of being willing to take cases to trial, as many of these claims software programs pay significantly more to attorneys that they regard as a legitimate trial threat.

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