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Crain’s story on “Duggan divides lawyers on auto insurance” is just wrong

October 9, 2017 by Steven M. Gursten

Just one lawyer, speaking for himself, supports Duggan-Leonard plan. All other auto accident lawyers unanimously reject Duggan-Leonard-Theis plan

Crain’s Detroit Business’s story on a rift among auto accident lawyers over the Duggan-Leonard-Theis No Fault car insurance reform plan makes a good headline.

Too bad it’s also completely wrong. The facts are wrong. The premise of a rift between first-party No Fault PIP lawyers and third-party auto injury lawyers is wrong.

Normally, Crain’s and Chad Livengood are more accurate.

But not this time.

The tall tale that Livengood concocts in this story, “Duggan divides lawyers on auto insurance,” is misleading. I could go on. It is also completely disingenuous, untrue, and factually unsubstantiated.

In his story, in order to make it look like the auto accident attorneys are turning against one another over HB 5013, Livengood suggests that, unlike first-party attorneys (who sue for No Fault benefits), third-party auto accident attorneys (who sue for injuries and pain and suffering) favor the Duggan-Leonard-Theis plan, also known as HB 5013.

But Chad Livengood offers no support for this, other than just one attorney.

Michigan’s auto accident attorneys all oppose HB 5013 because despite rhetoric, the bill is anti-consumer, anti-civil-rights, and doesn’t lower car insurance rates as supporters claim

Sorry, Chad. There is no division among Michigan’s car accident injury lawyers — whether they’re first-party lawyers who sue for unpaid or overdue No Fault insurance benefits, or third-party injury lawyers who sue for pain and suffering compensation. It’s a nice headline, but Michigan’s injury lawyers have been united in opposing House Bill 5013, the “Driver’s Choice Insurance Reform” plan cooked up by Duggan, House Speaker Tom Leonard (R-DeWitt) and sponsored by House Insurance Committee Chair Lana Theis (R-Brighton).

There is one lawyer who Livengood used for his story, Mark Bernstein. Mark is a good friend, but he is the only lawyer I know who is backing the Duggan-Leonard-Theis proposal.

While Mark and I have an honest disagreement over the bill, the notion that the Duggan-Leonard-Theis proposal under HB 5013 somehow helps third-party auto accident lawyers in Michigan while at the same time hurting first-party No Fault lawyers is preposterous.

As a third-party auto accident lawyer, let me explain why Livengood is so wrong

This deeply flawed plan does significant harm to the clients and to the well-being of third-party auto lawyers. This idea of a $25,000 cap for everything is devastating to our clients.

As I noted recently, there’s plenty to loathe about HB 5013:

  • Savings are only for the most underinsured drivers who choose the $25,000 No Fault cap.
  • The bill gives immunity to at-fault drivers — even drunk drivers — who cause the car accident because these negligent drivers cannot be sued for excess medical bills incurred by the people they injure that are over the $25,000 No Fault cap.
  • These savings are only on No Fault PIP only, not your total auto insurance bill.
  • This $25,000 cap, as Theis admitted in hearings, is to get car crash victims off auto No Fault and onto health insurance or Medicaid. For people without health insurance, or who have auto exclusions in their policy, this means personal bankruptcy and being forced onto Medicaid for necessary medical care after a car accident. While insurance company profits fatten, an additional $150 million Medicaid tax burden is shifted onto all of us as taxpayers.
  • If attendant care is needed beyond the proposed 56-hour limit, car crash victims go without necessary care.
  • The bill is anti-consumer, with no Michigan Catastrophic Claims Association transparency and a fraud authority that only looks at fraud by claimants — not fraud committed by insurance companies towards victims.
  • The bill also makes it easier for insurance companies to cut off and deny No Fault insurance benefits to people, with new ways to dodge payments, new ways to assert defenses to valid claims, and new ways to deny medical treatment (pp 29, 51-53 of Duggan-Leonard No Fault bill).
  • The bill also makes it harder for injury victims to hire an attorney for unpaid, overdue No Fault claims and to show that unpaid No Fault claims are overdue under Michigan’s No Fault law (pp. 46-48, 51-52).
  • The bill makes it much harder for car crash victims to receive access to medical care and deters doctors from treating auto accident victims. This bill has a new “non-exhaustive” list of 10 general category items that a treater must “timely submit” to an insurance company that can add hundreds or even thousands of pages to meet these new compliance requirements for medical providers who treat auto accident injury victims.

No divisions on No Fault reform among Michigan car accident lawyers

If a person can get past the sensationalized headline and innuendo passed off as fact in the story, then he or she will see that not even Livengood’s own reporting substantiates his claim.

Not one of the attorneys quoted in the story describe there being a “division” among car accident attorneys.

Indeed, none of them even indicates that they or any or lawyer they’re aware of — save, maybe one — support the Duggan-Leonard-Theis plan.

Strangely, Livengood neglects to get input from the Michigan Association for Justice, which represents the interests of all personal injury attorneys — especially auto accident lawyers.

Had he talked to MAJ — which vehemently opposes the bill — he would’ve learned just how undivided lawyers really are.

As I mentioned above, Livengood spoke to only one third-party lawyer for his story and that was my good friend Mark Bernstein, who inexplicably supports HB 5013.

But it’s important to note that Mark’s comments make it clear that he’s speaking only for himself and no one else — he’s not purporting to speak for all third-party attorneys.

Additionally, neither Mark’s quotes nor the statements attributed to him by Livengood hint at — let alone confirm or prove — a division within the personal injury attorney ranks.

Third-party lawyers aren’t going to support a plan like HB 5013, which hurts their clients

Third-party lawyers don’t support HB 5013 because it hurts the people they’re trying to protect.

With its gutting of No Fault medical benefits and its arbitrary, punitive and exploitative restrictions on attendant care benefits, HB 5013 prevents car crash victims from getting the medical care and treatment they need.

Without it, not only are their chances of recovery from their injuries considerably less, but they will not have the medical diagnoses, treatment and disability determinations that third-party lawyers need to substantiate their claims for pain and suffering.

Additionally, because HB 5013 prohibits any claims for “excess” medical (i.e., medical expenses that exceed the No Fault cap), then third-party lawyers will be prevented from suing a third-party case to get medical coverage for services and treatment that are no longer covered by first-party No Fault benefits.

Chad wrote a good headline, but there’s no story to support the rift among auto accident attorneys

The biggest problem with the story is that Chad Livengood already knew it was false.

Yet, for reasons that still aren’t clear, instead of using my statements from a previous extensive interview, Chad decided to go forward with this wonderful headline that would suggest the Duggan auto No Fault plan actually has far more support among the experts in the legal community than it does.

Aside from my friend and colleague Mark Bernstein, auto accident lawyers in Michigan are united in calling the Duggan-Leonard-Theis proposal what it is: a deeply flawed plan that will cause great harm for our clients and the people we protect. It’s an insurance company-written bill that is great for the insurance companies, but for people in cities like Detroit, it will be beyond devastating if they are seriously injured in a car crash.

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