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Here’s my list of some of the worst car accident cases, legal decisions of 2016

December 28, 2016 by Steven M. Gursten

CPAN v. MCCA, Hall v. Miko and more cases from the MSC and MCOA all have one thing in common – they’re good for insurance companies and very bad for injured auto accident victims fox-guarding-hen-house

Yesterday, I discussed my pick for the “Worst Car Accident Lawsuit of 2016,” Bazzi v. Sentinel Insurance Company. Bazzi allowed innocent car accident victims to be denied No Fault medical benefits and wage loss based on insurance “fraud” they had nothing to do with and knew nothing about.

Although that was, in my opinion, the worst of the worst for 2016, there were other car accident case rulings from the Michigan Supreme Court and Michigan Court of Appeals this year that can fairly be described as being far worse than most.

Two that leap to mind as particularly dreadful are the following:

  • CPAN v. MCCA, where the Michigan Court of Appeals ruled that a Freedom of Information Act (FOIA) exemption applied to the Michigan Catastrophic Claims Association (MCCA) relieved the entity from having to publicly disclose how it calculates the MCCA fees.
  • Hall v. Miko, where Michigan Supreme Court Justice Stephen J. Markman insisted the case should be heard because it presented an opportunity to “overrule McCormick v. Carrier,” the landmark ruling that restored the legal right for seriously injured auto accident victims.

I will discuss both cases in greater detail below.

But before I do, I can’t resist calling out two of the “worst” legal opinions from recent years because of the very negative and ugly impact they’re having on people who have been injured in Michigan car, truck and motorcycle accidents:

  • Bahri v. IDS – The Michigan Court of Appeals approved auto insurance companies’ shameful strategy of using mistakes as a basis to allege “fraud.”  This allows the insurer to rescind its No Fault policy and deny all No Fault benefits – present and future. As I said in one of my blog posts about Bahri: “Bahri is a tragic sign of very bad things to come. Expect insurance companies to aggressively employ surveillance in defending PIP claims, and expect defense attorneys to scream ‘fraud!’at the slightest mistake.”
  • Covenant v. State Farm – Although it may not sound like a terrible case at first, this ruling by the Michigan Court of Appeals has gone a long way toward mucking up thousands of first-party No Fault lawsuits and have created tremendous additional burdens for No Fault attorneys and medical provider attorneys. It took what was previously a relatively smooth settlement process in No Fault cases and made it far more complex, cumbersome, and expensive. In Covenant, the court ruled that a No Fault auto insurer may still be on the hook to pay a medical provider’s outstanding, unpaid expenses, even after the insurer reached a settlement with the car accident victim. Specifically, the Court held: Under “the plain text of the [No Fault] statute [MCL 500.3112] … if the insurer has notice in writing of a third party’s claim, then the insurer cannot discharge its liability to the third party simply by settling with its insured. Such a payment is not in good faith because the insurer is aware of a third party’s right and seeks to extinguish it without providing notice to the affected third party.” Now, because of Covenant, No Fault insurers won’t settle without requiring victims (and their lawyers) to jump through fiery hoops for fear that their liability may not be limited to the terms of the settlement.

Notably, on May 27, 2016, the Michigan Supreme Court granted leave to appeal from the Court of Appeals’ October 22, 2015, ruling. And, on December 7, 2016, oral arguments were held before the Supreme Court.

MCCA gets to keep its dark secrets – and the foxes get to keep guarding the hen house

Now, back to this year’s cases.

CPAN v. MCCA started with an Ingham County judge’s order that the FOIA didn’t excuse the MCCA from complying with the request from the Coalition Protecting Auto No-Fault and the Brain Injury Association of Michigan for disclosure of information about “how the MCCA rate charged … is calculated …”

Sadly, the case ended with the Court of Appeals concluding just the opposite: FOIA’s disclosure exemption applied to the MCCA and, thus, disclosure was not required.

Hopefully, in 2017, the Michigan Legislature will take action to bring much-needed transparency to the MCCA.

Is McCormick v. Carrier ‘most compatible’ with No Fault law for ‘noneconomic loss’ recovery?

As an auto accident attorney who practiced before Kreiner v Fischer, during the Kreiner era, and now post-Kreiner, let me answer the question – Yes, of course, it is.

McCormick v. Carrier was the most important auto law case from 2010 because it restored motor vehicle accident victims’ rights to pain and suffering compensation, which had been needlessly and recklessly dashed in the Supreme Court’s horrible ruling in Kreiner v. Fischer in 2004.

We know McCormick is “most compatible” with the requirements of the No Fault for “noneconomic loss” precisely because of what subsequently happened in Hall v. Miko, earlier this year.   In Hall, Justice Markman returned to the ugly judicial activism and political opportunism he exhibited as part of the majority in Kreiner v. Fischer. Fast forward six years, and we see Justice Markman at it again, attempted to overturn McCormick.

As I noted previous in my blog post:

  • McCormick “has been the law of the state for auto accident victims for the past six years.”
  • “Since McCormick was decided in 2010 and despite the several changes in the court’s composition, no published opinion has revisited, reexamined or otherwise questioned McCormick.”
  • “Finally, and, perhaps, most significantly, no other justices joined Justice Markman’s [position in Hall]. Most notably absent was the signature from Chief Justice Robert P. Young Jr. who both joined the majority in Kreiner and Markman’s dissent in McCormick.”

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