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7 lessons for auto accident attorneys from Asker v. Sanders and Comcast case

June 26, 2017 by Steven M. Gursten

Despite judge’s missteps and specious defense attorney legal arguments, Michigan Court of Appeals says car crash injury victim can still proceed with pain and suffering lawsuit against Comcast

Car crash, auto accident

A car crash victim who was rear-ended and injured at an Oakland County intersection by a Comcast driver can still proceed with his lawsuit for pain and suffering compensation.

But don’t think the insurance company ’s defense lawyers didn’t try every trick in the book to stop him, aided by a judge who made a series of really bad legal calls.

Luckily, the car accident victim had a protector in the Michigan Court of Appeals.  The recent  unanimous three-judge panel in Asker v. Sanders and Comcast ruled the car crash victim should be able to have a jury hear his claim for “noneconomic loss” damages based on:

“[C]ontinuing pain following the accident left him disabled and made it difficult for him to engage in basic activities he enjoyed before the accident, such as going to the gym, playing sports, maintaining sexual intimacy with his wife, and lifting his infant son.”

Under Michigan’s auto accident threshold law, in order to sue for pain and suffering compensation — also known “noneconomic loss” damages — a car accident victim must first show he suffered a “serious impairment of body function,” which means “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life,” i.e., influences some of the plaintiff’s capacity to live in his or her normal manner of living. (MCL 500.3135(1) and (5))

Asker case provides lessons for Michigan auto accident attorneys on how to prove impairment

This case represents a great deal of what’s wrong with the way some judges in Michigan — and most, if not nearly all, insurance defense lawyers — are currently ignoring  the legal requirements  in motor vehicle accident cases.  For the judges, far too many are wrongly misinterpreting our auto accident threshold law or granting Bahri “fraud” motions as a docket clearing mechanism. For the insurance defense attorneys who I litigate these cases against, they are becoming ever more emboldened to file aggressive motions for summary disposition by what many personal injury lawyers, including myself, believe is a pro-insurance industry and anti-accident victim and anti-consumer agenda in Michigan over the past two decades.

Many lawyers feel  the deck is frequently stacked against them and the people they help.

I’m hopeful that can change … starting with rulings like Asker.

What mistakes were made by the Court in it’s interpretation of the No-Fault law?

The lawsuit was initially dismissed by the Oakland County judge who was presiding over the case.  The missteps that were later rejected by the Michigan Court of Appeals are as follows:

  • Disobeying the law: “The trial court did not adhere to the guidelines” as set out by the No-Fault Law and the Michigan Supreme Court for deciding whether a pain and suffering lawsuit like the victim’s should be dismissed. There was a “lack of analysis” that the trial court was legally required to undertake.
  • Improper consideration of evidence: “The trial court improperly considered the fact that plaintiff had managed to travel for vacations conclusive proof that plaintiff’s ability to live his normal life had not been affected by his impairment [i.e., injuries]” and, thus, he should not be able to sue for pain and suffering.
  • Inappropriate substitution of “personal experience” for facts in decision-making process: “The trial court failed to comparatively analyze plaintiff’s life before the motor vehicle accident and his life after the motor vehicle accident, and instead relied on its own ‘experience’ with back pain to infer that a serious back injury would prevent plaintiff from sitting on an airplane for long periods of time. Summary disposition must be based on the facts presented, and the trial court’s injection of personal experience, especially on an issue requiring medical expertise, was inappropriate.”
  • Erroneously “ambushing” the victim about causation: “The trial court further erred” in dismissing the victim’s lawsuit on “causation” grounds given that: (1) neither the defendant nor the trial court had raised the issue either before or during arguments; (2) the defendant had “conceded that [the victim’s] injuries arose from the … motor vehicle accident involving a van belonging to Comcast”; and (3) the causation issue was not raised until it was too late for the victim to address it, i.e., “it was not raised by the trial court or either party until the trail court rendered its oral opinion and granted defendants’ motion [to dismiss].”

Court calls defense lawyers’ arguments ‘inappropriate’ and ‘specious’ in car crash case

Significantly, like the trial court’s judicial missteps, the defense lawyers’ legal arguments in Asker fell flat on their face with the Court of Appeals:

  • Comparing victim’s injuries to cases with similar or more serious injuries is “inappropriate”: “[T]he comparative severity of plaintiff’s impairment, while relevant, is not ‘significant’ or ‘essential’ to the determination of whether plaintiff’s impairment ‘affects his general ability to lead his normal life’” and, thus, whether he can sue for pain and suffering compensation. That determination is depends on the facts and circumstance of each case. Dismissal based on comparison to cases with more serious and painful injuries is “inappropriate.”
  • Ignoring the motor vehicle accident victim’s medical records is “specious”: “Defendants also suggest that plaintiff’s impairment could not have affected plaintiff’s life because plaintiff’s X-rays revealed no fractures and plaintiff was never hospitalized or subjected to invasive procedures. This is a specious argument, considering defendants’ inclusion of plaintiff’s medical records to support their motion for summary disposition. … There is no requirement that a plaintiff’s injuries be of a certain nature, or that treatment of a plaintiff’s injuries involves invasive procedures.”
  • No denying that victim’s post-crash lifestyle was “more sedentary”: “Plaintiff has shown that his impairment affected his general ability to lead his normal life because it has, at least, influenced some of his capacity to live in his normal, pre-injury manner of living. Plaintiff’s lifestyle is more sedentary than it was before the [August 22, 2012] accident … While plaintiff’s incapacitation was not confirmed or extended by any physicians beyond May, 2013, [the No-Fault law’s rule for pain and suffering compensation] contains no ‘temporal requirement as to how long an impairment must last in order to have an effect on the person’s general ability to live his or her normal life.’” To put it another way, “it is clear that ‘there is no quantitative minimum as to the percentage of a person’s normal manner of living that must be affected.’”

Author’s note: The fact that Comcast has now been to my house 4 times in two weeks for service calls, or that this seems to be the most poorly run company that I have ever seen, or that this company still has a total monopoly on service in my area has played no role in my writing about this case.  That said, I do wish there was some competition out there so I could use anyone but Xfinity for cable.

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