July 12, 2002
Below is an excerpt from Steve Gursten’s book for auto accident attorneys in Michigan handling car and truck accident cases. Keep in mind, as of August 1, 2010, there is a new auto accident ruling from the Michigan Supreme Court called McCormick v. Carrier that changes the car accident law in Michigan that’s discussed below.
Under McCormick, people who seek compensation for injuries and pain and suffering have a better chance at a fair recovery. McCormick says a person can qualify for pain and suffering damages if his or her normal life is affected – not completely altered by a car accident as Kreiner (discussed in the article below) required.
The practitioner handling automobile accident cases in Michigan faces yet an additional challenge in that there is still no Supreme Court decision in the State of Michigan interpreting the exact meaning of the new threshold that took effect on March 28, 1996 . Indeed, at the time of this writing, there are only five (5) published Court of Appeals decisions in Michigan interpreting the new Michigan no-fault threshold. There are an additional number of unpublished appellate cases that have clearly inconsistent holdings.
Any successful automobile accident case must depend upon a thorough understanding of the elements of a prima facia case and a careful analysis of the existing law such as it now exists to provide guidance. Therefore, our analysis first begins with the Michigan No-Fault Act and the separation of financial responsibilities between the at-fault driver and an injured person’s own no-fault insurance company.
First-party claims are made to a claimant’s own no-fault insurer who, by contract and by law, is required to pay no-fault benefits to the claimant. Claims involve payments for medical expenses, wage loss, replacement services, mileage, survivor’s loss, funeral expenses, and attendant care.
High wage earners who earn over the statutory wage loss maximums that are adjusted annually on October 1 st of each year can also bring a claim for economic loss over the statutory maximum within the first three years.
The No-Fault Act was designed to correct the deficiencies of the tort system. It was based largely on two uniform acts – the Uniform Motor Vehicle Accident Reparations Act (UMVARA), 14 ULA 48 (1972) (drafted by the national Conference of Commissioners on Uniform State Laws) and a Proposal for Motor Vehicle Basic Protection Insurance Act , in R. Keeton & J. O’Connell, Basic Protection for the Traffic Victim (1965). The Michigan statutory act absorbed the most important elements from both: (1) self-insurance coverage irrespective of fault or “No-Fault” insurance, and (2) prompt payment of economic damages, including medicals and lost wages, household services and mileage, and (3) limitations on lawsuits against the other negligent driver and limitations on the damages recoverable.
Shavers majority stated that a system designed to pay the economic losses of injured person promptly, regardless of fault, while allowing plaintiffs to file a tort suit for serious personal injuries, would more fairly compensate, as the legislature intended, nearly all victims of automobile accidents.
Nonetheless, the Michigan legislature chose to make significant changes to third-party practice and claims in 1995, by enacting 1995 PA 222.
Section 1. Section 3135 of Act No. 218 of the Public Acts of 1956, being section 500.3135 of the Michigan Compiled Laws, is amended to read as follows:
Sec. 3135. (1) A person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.
(2) For a cause of action for damages pursuant to subsection (1) filed on or after 120 days after the effective date of this subsection, all fo the following apply:
(a) The issues of whether an injured person has suffered serious impairment of body function or permanent serious disfigurement are questions of law for the court if the court finds either of the following:
(i) There is no factual dispute concerning the nature and extent of the person’s injuries.
(ii) There is a factual dispute concerning the nature and extent of the person’s injuries, but the dispute is not material to the determination as to whether the person has suffered a serious impairment of body function or permanent serious disfigurement. However, for a closed-head injury, a questions of fact for the jury is created if a licensed allopathic or osteopathic physician who regularly diagnoses or treats closed-head injuries testifies under oath that there may be a serious neurological injury.
(b) Damages shall be assessed on the basis of comparative fault, except that damages shall not be assessed in favor of a party who is more than 50% at fault.
(c) Damages shall not be assessed in favor of a party who was operating his or her own vehicle at the time the injury occurred and did not have in effect for that motor vehicle the security required by section 3101 at the time the injury occurred.
(3) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance, or use within this state of a motor vehicle with respect to which the security required by section 3101 was in effect is abolished except as to:
(a) Intentionally caused harm to persons or property. Even though a person knows that harm to persons or property is substantially certain to be caused by his or her act or omission, the person does not cause or suffer that harm intentionally if he or she acts or refrains from acting for the purpose of averting injury to any person, including himself or herself, or for the purpose of averting damage to tangible property.
(b) Damages for noneconomic loss as provided and limited in subsections (1) and (2).
(c) Damages for allowable expenses, work loss, and survivor’s loss as defined in sections 3107 to 3110 in excess of the daily, monthly, and 3-year limitations contained in those sections. the party liable for damages is entitled to an exemption reducing his or her liability by the amount of taxes that would have been payable on account of income the injured person would have received if he or she had not been injured.
(d) Damages up to $500.00 to motor vehicles, to the extent that the damages are not covered by insurance. An action for damages pursuant to this subdivision shall be conducted in compliance with subsection (4).
(4) In an action for damages pursuant to subsection (3)(d):
(a) Damages shall be assessed on the basis of comparative fault, except that damages shall not be assessed in favor of a party who is more than 50% at fault.
(b) Liability shall not be a component of residual liability, as prescribed in section 3131, for which maintenance of security is required by this act.
(5) Actions under subsection (3)(d) shall be commenced, whenever legally possible, in the small claims division of the district court or the municipal court. If the defendant or plaintiff removes the action to a higher court and does not prevail, the judge may assess costs.
(6) A decision of a court made pursuant to subsection (3)(d) is not res judicata in any proceeding to determine any other liability arising from the same circumstances as gave rise to the action brought pursuant to subsection (3)(d).
(7) As used in this section, “serious impairment of body function” means an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.
We will now examine each prong of the three (3) part threshold definition of serious impairment body function.
Standard Jury Instructions 2d 36.11 also incorporates the DiFranco definition of objectively manifested impairment. That standard jury instruction states as follows: in order for an impairment to be objectively manifested, there must be a medically identifiable injury or condition that has a physical basis.
Finally, on August 28, 2002 , the Court of Appeals in Jackson v. Blaine-Hasson Lomax , No. 227759 issued an important and published case that affirms that the definition of objective manifestation comes from the DiFranco definition of medically identifiable. The Jackson court agreed that the DiFranco definition is the last word defining objective manifestation and that the current jury instruction which refers to DiFranco is the proper instruction to use for the new threshold definition.
The court in Williams in effect threw out all injuries that were not subject to a measurement by objective means. Symptoms of pain and suffering, limitations in motion, closed head injuries, etc., no matter how objectively demonstrated through muscle spasm, loss of normal lordosis, restricted range of motion and other orthopedic or other testings, could never meet the demands of objective medical measurement test.
The published case of Jackson v Blaine-Hasson Lomax has now answered this split of opinion as to whether the first prong of the definition of serious impairment of body function – objective manifestation – was a return to the Cassidy/Williams v Payne requirement of objective proof of injury or the later Michigan Supreme Court definition from DiFranco that is currently incorporated in the Michigan Standard Jury Instruction that an injury simply be “medically identifiable.”
Section 3135(7) clearly requires that the body function impaired be an important body function. This was the requirement imposed initially by the Cassidy decision. The DiFranco court refused to make new law and rejected this. That portion of DiFranco has now been legislatively overruled by 1995 PA 222. Thus, trial courts will be deciding what is or is not an important body function as a matter of law. It should be noted that under the Standard Jury Instruction, as amended in May of 1997, SJI2d 36.11 includes a parenthetical instruction on what is or is not a “important body function.” The court is directed to the Notes On Use section that if it has concluded that a body function is important as a matter of law, the court must then instruct the jury the specific function involved is an important body function.
The following are some of the cases which have already held as a matter of law to involve important body functions. Those include:
1. Cassidy v McGovern , 415 Mich 483, 330 NW2d 22, 30 (1982) “Walking is an important body function.”
2. Meklir v Bingham , 147 Mich App 716, 383 NW2d 95, 98 (1985) “We do not doubt that the ability to move one’s back is an important body function.”
3. Meklir, supra , at p 98 “We would also agree that movement of one’s neck and hand are also important body functions.”
4. Kanaziz v Rounds , 153 Mich App 180, 395 NW2d 278, 280 (1986): “We agree with plaintiff that the correct functioning of the heart is an important body function.” (Her contusion demonstrated by an irregular electrocardiogram following plaintiff’s trauma with a steering wheel.)
5. Sherell v Bugaski , 140 Mich App 708,364 NW2d 684 (1984) Where a back injury and the absence of a normal spinal curvature “does impair important body functions.”
6. Range v Gorosh , 140 Mich App 712, 364 NW2d 686, 689 (1984) (after remand): “Breathing is an important body function”. (Plaintiff suffered fractured ribs and a fractured clavicle).
7. Harris v Lemicex , 152 Mich App 149, 393 NW2d 554, 560 (1986): “In the instant case, we find that plaintiff’s ability to move her back is an important body function”. (A diagnosis was made by a chiropractor of a low back strain with myofascitis.)
8. Argenta v Shahan , supra , which is now the law: “It is obvious that plaintiff’s ability to his back is an important body function.”
Under these cases, the ability to walk, use one’s legs, use one’s hands, one’s neck, mid-neck, back or chest in breathing are all important body functions.
Under MCLA 500.3135 (7), “serious impairment of body function” means an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life. This last aspect of the new threshold has already become the most litigated. This is because it is an entirely new standard. It is not the objective normal lifestyle test adopted by Cassidy v. DiFranco , 415 Mich. 483, 330 N. W. 2d 22, 30 (1982) and the legislature refused to heed the warning to the court in DiFranco v. Pickard , 427 Mich. 32, 398 N.W. 2d 896 (1986) not to adopt a purely subjective lifestyle test. If opposing counsel cite and rely upon the numerous Court of Appeals cases applying as interference with normal or objective lifestyle test, counsel must advise the courts that these cases are all inapplicable as a matter of law to the present normal lifestyle test enacted under 1995 PA 222, amending MCLA 500.3135.
In Cassidy , the court adopted the normal lifestyle component of serious impairment of body function as an objective test, not a subjective test:
“We believe that the legislature [under prior MCLA 500.3135] intended an objective standard that looks to the effect of an injury on the persons general ability to live a normal life.”
The court, of course, could not define what a normal life was, let alone an abnormal life. Obviously, no expert (other than a judge) could be called upon by either side to say whether a plaintiff had a normal life or not based on some type of national, state or local standard of a normal life. Thus, if a plaintiff was unable to engage in social and sporting activities, but continued at work, the courts concluded that an objective normal lifestyle was not interfered with. Conversely, if a plaintiff was unable to work, had to change jobs, but could still engage in certain social and recreational activities, the court concluded that there was evidence of an ability to lead a normal life.
The majority of cases decided by the Court of Appeals after Cassidy denied compensation for threshold injuries based upon lack of objective interference with a person’s general ability to lead a normal life. No matter what the proofs showed, the court could always rely upon the “normal life” test and conclude that whatever the disability or restrictions were, the general ability to lead the objective normal life remained.
For example, in Wolkow v. Eubank , 139 Mich. App. 1, 360 N.W.2d 32 (1984), judgment vacated, 428 Mich. 877, 402 N. W.2d 476 (1987), the Court of Appeals found that the plaintiff did not suffer an interference with a normal lifestyle.. it was undisputed that plaintiff was hospitalized for three and a half months. Plaintiff’s fractures interfered with her sleeping and use of her hands. She was basically unable to dress herself or shower and was precluded from driving a car for a period of over three months. The court, nonetheless, felt that the only “significant restriction” on her normal activities was the doctor’s admonition not to work or drive. In effect, the Wolkow court found that the inability to work or drive does not amount to an interference with the general ability to lead a normal lifestyle.
Where the plaintiff could not sit, run or jog, but nevertheless could drive a car and work, the court in Sherrell v. Bugaski , 148 Mich. App. 708, 711, 364 N.W. 2d 684 (1984), concluded that the injury did not cause a significant impact on the plaintiff’s ability to lead a normal life.
DiFranco rejected the Cassidy objective interference with lifestyle test, stating:
“[A] test which attempts to compare the plaintiff’s post-accident activities and abilities to a hypothetical person’s “normal lifestyle” is equally flawed. Very simply, there is no such thing as a normal life. Determining which activities are essential to living a normal life is an equally impossible task.”
398 N.W. 2d at 914.
The DiFranco court also rejected a subjective normal life test. The court noted that such a test was equally flawed, stating:
“A test which merely compares the activities which the plaintiff could perform before and after the accident could reward the malingerer or hypochondriac while penalizing the person who cannot afford to miss work or tries to function despite the pain.”
398 N.W.2d at 913.
Failing to heed this warning, the legislature went ahead and adopted a purely subjective lifestyle test. By the wording of the statute, the test adopted by the legislature looks only to how the impairment affects the person’s ability to lead his or her normal life. Whether or not his or her lifestyle is normal makes no difference. Plaintiff’s lifestyle before the accident must be compared to the plaintiff’s lifestyle after the accident.
Plaintiff practitioners have argued, under the statutory wording, that if there is any effect on the person’s general ability to lead that pre-accident lifestyle, the plaintiff meets, as a matter of law, the third component of serious impairment of body function.
A good example of the distinction between objective/subjective ability to lead a normal lie test is the decision of Franz v. Woods 145 Mich. App. 169, 377 N.W.2d 373 (1985). In Franz, the plaintiff testified that her injury forced her to quit her job as a waitress and to give up certain social activities such as bowling. The court noted that that may have affected her lifestyle but not the objective normal lifestyle”:
” While plaintiff’s testimony indicates a significant change in her normal lifestyle – an athletic, outdoors one – we believe that she has a general ability to lead what can objectively be termed a normal life.”
377 N.W. 2d at 379.
This is an important distinction, because such analysis is no longer the law. The new statute mandates the court to consider the effect the impairment has on plaintiff’s general ability to lead his or her normal life.
It must be emphasized that the legislature has in no way characterized the type of effect required. Numerous cases in applying the interference with normal lifestyle test did apply a subjective standard, looking to the effect the injury has on the individual plaintiff’s life. For example:
In Gurerro v. Schoolmeester , 135 Mich. App. 742, 356 N.W. 2d 251, 255 (1984), the court conluded:
“While there is testimony that plaintiff experienced difficulties in her daily life, i.e. dropping plates, inability to crochet, and difficulty in driving, we do not find that such difficulties interfered “in any significant manner” with plaintiff’s normal lifestyle as required under this court’s opinion in Braden.”
The statutory test adopted by the legislature does not seem to require that the impairment affect the plaintiff’s ability to lead a normal life “in a significant manner”. Nor does it require that the injury or impairment have a “significant impact” on plaintiff’s ability to lead a normal life. Moreover, the legislative standard does not require a “significant restriction” of a plaintiff’s normal activities, nor that the plaintiff’s mode of living be “significantly altered”. The statutory threshold requires only that the body function impaired “affects the person’s general ability to lead his or her normal life.” It need not alter, significantly change, significantly disable, or significantly restrict, or significantly impact the person’s general ability to lead his or her normal life.
Any analysis of appellate cases must begin with Kreiner v Fischer , No. 225640. Kreiner was released for publication on May 31, 2002 . It is also the most relevant and helpful published case in its detailed analysis of the third prong of the threshold statute of lifestyle impact. Because Kreiner is a published decision, other Michigan courts will be bound to follow its holding, although at the time of this writing this decision has been appealed.
Kreiner court found that, if true, Mr. Kreiner had sustained a serious impairment as a matter of law. The case was remanded back to the trial court level for consideration of the videotape surveillance evidence and factual questions concerning whether the injury did actually affect Mr. Kreiner’s ability to work. The decision seems to imply that if the videotape surveillance is found admissible, it would probably be a question of fact for a jury as to whether these reductions in court hours and restrictions on what type of jobs Mr. Kreiner could perform would be a question of fact for the jury. On the other hand, the decision seems to imply that if the surveillance tape is not admissible, then plaintiff would probably be entitled to summary disposition on the issue of serious impairment based upon these impairments on lifestyle.
The Kreiner court has apparently followed this return to the primary role of statutory interpretation in reviewing the statutory wording of MCL 500.3135. The court stated that an anchoring rule of jurisprudence , and the foremost rule of statutory construction that courts are to effect the intent of the legislature. If the language of a statute is clear and unambiguous, then courts must give the plain meaning to the statute as it is written. The court in Kreiner cited a number of recent Michigan Supreme Court decisions in finding that a necessary corollary of these above principles is that a court may read nothing into an unambiguous statute that is not within the manifest intent of the legislature as it is arrived from the words of the statute itself.
The first controversy has boiled around the exact meaning of “lifestyle impact,” which is the third prong of the statutory definition of serious impairment of body function. The exact wording, of course, is “affecting the person’s general ability to lead his or her normal life.” MCL 500.3135 (7). The third prong was interpreted by the Kreiner decision as requiring only that the impairment meet the statutory definition and that the statutory threshold does not require any additional proof. The court stated that it would be improper to read any more requirements, limitations or language to an unambiguous statutory definition.
For example, in Miller v Purcell , 246 Mich App 244 (2001), the court interpreted a plaintiff’s injury which included an acromioclavicular separation and mild tendinitis, with no time missed from work with the exception of a few doctor appointments and physical therapy; and who had admitted that she was able to perform all of her normal activities and did not have significant overall medical treatment as a relatively minor injury. Regarding lifestyle impact, the court concluded that the record was clear that plaintiff’s “general ability to lead her normal life had not been significantly altered by her injury.” In effect, the court took it upon itself to raise the threshold bar that a plaintiff had to meet in order to sustain a serious impairment of body function. The Miller court introduced the new language of “significantly altered” that simply is nowhere to be found in the statute.
Another example, is the unpublished decision of Hicks v Trammer ; Michigan Court of Appeals; Docket No. 217237; released on 1/30/2001 . The plaintiff in Hicks suffered soft tissue neck injuries involving some muscle spasms, neck pain, numbness in the extremity and sleep difficulties. The court agreed the plaintiff’s injuries were objectively manifested and it involved an important body function. However, the court concluded that in regard to the third prong of lifestyle impact that these injuries had “no appreciable affect” on plaintiff’s life.
Equally confusing is the Massey decision that was released just three days later. Massey v Garbacz ; Michigan Court of Appeals; Docket No. 221577; released on 8/24/2001 . The Massey court found that William Massey failed the lifestyle impact prong because “although William Massey can no longer perform certain activities, “his general ability to lead a normal life is unaffected.”
Giardi we have the court adopting language regarding what affect is needed and also at the same time abandoning the subjective part of the statute and returning to an objective person analysis of whether this injury affects a person’s ability to “lead a normal life.”
Moore court noted, the evidence shows that plaintiff’s general ability to lead her normal life “was not significantly altered by the injury.”
The Court of Appeals in Kern v Blethen-Coluni , 240 Mich App 333 (2000) took a completely opposite approach from the prior published decision in May v Sommerfield . The Kern court stated in its holding that the new threshold is a return to the standards of Cassidy v McGovern .
Miller v Purcell , 246 Mich App 224 (2001), the last published case before Kreiner , also referenced Kern’s observation that the new statute “reflected a return to the standard first articulated in Cassidy v McGovern .” This split of opinion is likewise reflected in the unpublished decisions that have likewise attempted to interpret the new statutory definition of serious impairment of body function.
The first unpublished decision, like the first published decision, clearly referred to DiFranco v Pickard as the latest case defining the threshold element of “objective manifestation.” Black v Lynn ; Michigan Court of Appeals; Docket No. 209686; released 6/22/99 . By referring back to the DiFranco v. Pickard decision as the latest case defining the threshold element of “objective manifestation” the court decided that an injury can only be “medically identifiable” and not “objectively proved.”
In Mitchell v Stuart ; Michigan Court of Appeals; Docket No. 215052; released 6/30/2000 , the court employed the DiFranco v Pickard definition of objectively manifested injury. The Court of Appeals held: “for an impairment to be objectively manifested, there must be a medically identifiable injury or condition that has a physical basis. In this case, the evidence established that plaintiff had a large hematoma over her spine, which, according to her physician, was causing a fair portion of her pain. She was diagnosed with lumbrosacral sprain. Further a positive straightleg raising test produced pain. Medical testimony indicated that plaintiffs physical examination was 50 percent objective and 50 percent subjective. We find that these undisputed facts establish an objectively manifested impairment sufficient to survive defendant’s motion for summary disposition.”
However, the Hicks v Mumin decision, Michigan Court of Appeals, Docket No. 214004,; released on 1/12/2001, chose a completely new direction. In Hicks , the court ruled that 1995 PA 222 statute “overturned the Michigan Supreme Court’s ruling in DiFranco v Pickard . . . by codifying the tort threshold standards of Cassidy v McGovern .” The Hicks court chose not to explain its holding further.
As discussed previously, on January 30, 2001 , an identical panel from the Court of Appeals released three decisions affirming summary disposition for the defendant. These decisions were previously discussed because of the new language that the courts imposed on the third prong of lifestyle impact. However, this panel from the court of appeals also decided that “the statutory definition of serious impairment of body function is the same as the definition adopted in Cassidy v McGovern . See Howitt v Billings, Feed and Lawn, Inc. , Michigan Court of Appeals, Docket No. 216738, 1/30/2001 . Hicks v Trammer ; Michigan Court of Appeals, Docket No. 217237, 1/30/2001 and Mirling v Carell , Michigan Court of Appeals, Docket No. 216843; 1/30/2001, the Judges Markey, Whitbeck, and Martlew sitting for all three panels.
In Roy v Thomas , Michigan Court of Appeals, Docket No. 222220, 7/31/2001 , the court affirmed a jury verdict of $135,000.00 in favor of a plaintiff who had suffered classic soft tissue whiplash injuries. With regard to objective manifestation, the court decided the DiFranco definition of “medically identifiable injury” was the controlling standard. Interestingly, the court found limitations in passive range of motion, muscle spasm and trigger points, each sufficient to meet the threshold of objective manifestations of injury. Regarding the third prong of lifestyle impact, the court held that plaintiff had offered sufficient evidence on lifestyle impairment to create a factual dispute where the evidence showed that plaintiff had reduced her daycare clients and had foregone such recreational activities as bowling, swimming, motorcycle trips and gardening. The defendant in Roy had also offered surveillance videotape which allegedly contradicted some of plaintiff’s testimony. The court found that this videotape further created a factual dispute warranting jury determination.
In Perales v Partin , Michigan Court of Appeals, Docket No. 223343, released on 7/13/2001, the court determined that with regard to 1995 PA 222, “because the legislature overturned the Supreme Courts DiFranco decision by codifying the tort threshold injury standards of Cassidy v McGovern , and the statutory definition of serious impairment of body function is the same as that adopted in Cassidy , it is appropriate to refer to Cassidy and the cases decided thereunder in deciding this case.” Based upon that rational, the Court of Appeals cited several Cassidy era cases in support of its findings cited in the body of its opinion affirming defendants motion for summary disposition on plaintiff’s claim of serious impairment of body function.
In Davis v Cole , Michigan Court of Appeals, Docket No. 226215, released on 11/30/2001, the court found that the threshold requirement that an injury be “objectively manifested” is a requirement previously construed in the case of Williams v Payne , 131 Mich App 403 (1984) as meaning that the injury must be “subject to medical measurement.” The court next found that even though DiFranco v Pickard , 427 Mich 32 (1986) held that the Williams’ decision was incorrectly decided, the Court of Appeals nevertheless decided in the published case of Kern v Blethen-Coluni , that 1995 PA 222 was and returned to the standards of Cassidy and its progeny. The courts comments do appear to be dicta, however, as they were added at the end of the opinion and were not necessary in resolving dispositive issues in the case.
What emerges from these conflicts in authority provides little consistent guidance for the Michigan practitioner handling automobile accident cases. It has led, in some circles to charges of political motivations among members of the judiciary. It also raises considerable confusion.
It is hoped that the Kreiner v Fischer decision will help to eliminate much of this controversy by returning interpretation of the new statutory definition of serious impairment of body function back to the strict statutory construction and plain meaning of the wording as was intended by the legislature. It is clear that this new statute is a hybrid of both DiFranco and of Cassidy v McGovern and it is likewise clear that this new statute incorporates some elements and clearly rejects other elements of both cases.
There are two main areas where the practitioner who handles automobile accident cases can focus. Always keeping the statutory threshold requirements in mind, attention should be paid on proving objective manifestation of injury and on showing how these injuries affect a person’s normal ability to lead his or her life.
Doing so will provide a useful framework so that practitioners can begin to immediately increase the value of their cases both for settlement and trial.
This overview on handling automobile accident injury cases is being written at a time when major insurance companies such as Allstate, State Farm, Farmers and others are turning to highly sophisticated computer programs to determine what value they will place on different types of injury cases. Many of these insurance companies then have incentive or bonus programs for adjusters who will pay 80% or less of what the computer determines is the value of that particular injury. Value is in part determined upon the geographic location where the injury occurred, jurisdiction, and other local factors. Obviously, part of the much larger macroeconomic goal of these programs is that for each year settlement values injuries will be further reduced as offers are made upon the average settlement value from the year before.
The only way to stop this from happening for the practitioner handling automobile accident injury cases, is to fight hard for his or her client in achieving just compensation. The threshold statutory requirements of the Michigan No-Fault Law provide a useful framework in which to do this. By documenting the objective manifestation of these injuries and by focusing relentlessly on the ways that an injured person’s life has been affected, the practitioner is making each case a stronger case for settlement or trial verdicts. It is only by truly engaging a jury’s or insurance company’s appreciation of the way in which an injury can affect every major arena of a person’s normal lifestyle – from working to recreational activities to social relationships – that a settlement or jury verdict can properly take into account the true and profound impact that these injuries are having on people’s lives.
It is the responsibility of the practitioner of automobile accident cases to explore all means of medical treatment and medical testing that may be available on behalf of his client. This is because, regardless of appellate analysis, if the goal is to achieve the greatest recovery possible, then all avenues must be fully explored for documenting and verifying an injured person’s complaints of pain.
Some of the medical testing available for documenting and verifying pain and injury complaints includes:
A. MRI or Magnetic Resonance Imaging;
B. CT scanning;
E. Spect Scanning;
F. PET Scanning;
G. Thermography ;
H. Dynamic Motion X-rays.
All of these different types of medical testing and documentation should be explored by the Michigan practitioner handling automobile accident cases. It is not enough for the Michigan practitioner to rely upon the medical treaters to explore these different avenues for medical testing. Michigan , with its unusually harsh and restrictive threshold for recovery in automobile accident cases, demands that more emphasis be placed upon medical documentation of injuries so that the practitioner can survive Motions for Summary Disposition and appellate scrutiny.
Moreover, many people today are participants in different health care plans and organizations and can face the additional challenges of getting the proper type of medical care and treatment that they require. Unfortunately, it is a sad reality that too many doctors who are enrolled as participating physicians in many of these health care plans can only make money by seeing people in volume.
Many health care plans require primary physician referrals at a time when, incredibly, these same plans are providing economic disincentives for doctors to send their patients out for expensive medical testing such as magnetic resonance imaging.
While an injured person may suffer very serious injuries that would satisfy either interpretation of objective manifestation of injury, including for example a ruptured spinal disc, months or years can pass before that person is referred out for objective medical testing to verify those injuries. In the meantime, the Michigan practitioner is faced with either pursuing a legal case for that person based upon the symptomology of that very real, but as yet undiagnosed injury by focusing on the spasm, lack of range of motion, reversal of the lordotic curve, or other manifestations of the injury, or with the client paying for these very expensive tests himself or herself in order to pass the statutory threshold requirements of the Michigan definition of serious impairment of body function. Of course, this latter action flies in the face of the fundamental scheme of the No-Fault Act, the overriding principle of which is to provide generous medical and loss wage benefits for an injured person, while at the same time imposing restrictions upon an injured person’s ability to sue except for more serious injuries.
The fundamental challenge that the Michigan practitioner handling automobile injury cases faces, as with most other forms of personal injury, is in making the pain and injuries real to secure the best settlement or trial verdict for his client. Pain as a concept is intangible, it creates no tangible real image in people’s minds and it is very possible that every person sitting in a courtroom may have a very different understanding of what pain is. In handling automobile accident injury cases, it is the practitioner’s job to make pain real and the most effective way to do this is to demonstrate what the impairments are that your client is suffering from. This is also the key to maximizing your damages at trial. Ironically, one perhaps unintended consequence of our new law, which was enacted by a Republican legislature in an attempt to raise the threshold level yet again, is that those cases that do survive will do so by continually emphasizing and documenting impairments to survive summary disposition, this increasing the value of these same cases.
To maximize damages and flush out and document impairment, a practitioner handling automobile accident injury cases is only limited by his or imagination. These impairments may also be provided to a trial court to readily assist the trial court in determining its findings for or against serious impairment of body function as a matter of law at a Motion for or against Summary Disposition. If the Michigan practitioner is unsure about the actual nature and extent of impairment, there are a wealth of resources that can be turned to.
On some level, every practitioner who goes to trial in auto negligence cases already knows that complaints of pain are not enough. Pain as a concept is intangible, it creates no tangible real image in people’s minds and it is very possible that every single person in the courtroom may have a different understanding of what pain is. As a plaintiff practitioner, your job is to make pain real and the most effective way to do this is to demonstrate what the impairments are that your plaintiff is suffering from. This is also the key to maximizing your damages at trial. Ironically, one unintended result of our new law is that in documenting impairment to survive summary disposition, plaintiff lawyers are increasing the value of their cases.
To maximize damages and flesh out and document impairment you are only limited by your imagination. These impairments should be provided to the trial court to readily assist the trial court in determining its “May” findings. If Plaintiff or defense counsel is unsure about the actual nature and extent of impairment, there is a wealth of resources that can be turned to.
Functional capacity testing questionnaires, such as the McGill pain Questionnaire, electronic pain diaries like PIPER that allow an injured person to record throughout the day their levels of pain and how injuries are affecting them, the AMA Guidelines for Pain and Disability are all available and can be used to document impairment. Such functional capacity and testing can be extremely persuasive and powerful tool for providing the court a sufficient factual basis for granting or denying summary disposition. Moreover, at trial, the more that you can impress upon a jury how an actual injury has been impairing a person’s normal life, will better assist you in really achieving the best result possible to your clients.
Nursing evaluations, physical therapy questionnaires, surveys and testing can and should be presented to the trial court at motions for summary disposition to support or attack the level of plaintiff’s impairment.
With elderly clients and the unemployed, “time off work” will not establish a period of serious impairment. The plaintiff practitioner can and should consider pain or grief counselors to establish the long term affects of pain that can depress a person’s ability to function in every arena of their life. The same can be said with a psychopharmacologist or pharmacologist to talk about what the different pain medications are, what they mean, the harms and risks that the plaintiff is exposed to in taking these medications and the long term affects that he or she may be suffering as a result.
Demonstrative aids can and should be brought to these motions for summary disposition. There are wonderful life activity calendars that come in all different shapes, sizes and colors that can graphically and persuasively show the impact of an injury by comparing a person’s pre and post-accident lifestyle. Plaintiff and defendant practitioners should also consider demonstrative aids to assist the judge with what the injury really means. It is unfair to assume that every judge has a background familiar with these injuries as the practitioners who deal with medical issues everyday. When possible and when the opportunity presents, the plaintiff or defense practitioner should make every effort to impress upon the judges the effect of an underlying injury to assist the court as to why this injury is or is not significant to the plaintiff.
Any investigation of a potential case must include an analysis of liability or negligence. Remember under MCL 500.3135 (2)(b) damages are assessed under comparative fault, except that damages will not be assessed if a party is more than 50 percent at fault.
A good first step to the investigation begins with the full police report including the UD-10. Too often, law firms will rely solely on the UD-10, only to be surprised by photographs or witness statements or police investigation which is contained in the full police report, but of which there may be no mention whatsoever in the UD-10 form. The UD-10 form itself is not admissible in court.  However the UD-10 can and should be used throughout the case investigation including up through case evaluation.
When reviewing other possible claims, it is important to spend time making sure the police report was thorough and that police investigators took appropriate steps to preserve crucial evidence. Critical but often ignored factors in motor vehicle accident cases can involve investigation into the vehicle itself, the tires, failed parts, the debris field involving vehicle damage, blood alcohol samples, whether seatbelts were or were not being used, and a host of other issues that can affect liability against both the negligent tortfeasor of the accident but also against other defendants as well.
Experts commonly encountered an automobile accident litigation include:
The plaintiff’s treating medical experts.
The plaintiff must rely upon treating physicians to establish medical injury and causation.
The defendants experts.
Defendants generally seek “independent medical examinations.” Oxymoron or not, these various medical practitioners are used in an effort to refute and rebut the plaintiff’s treating physicians and medical injuries.
A toxicologist may assist in cases where drug or alcohol use are alleged and may be contributing factors to an auto accident.
The meteorologist can be used to establish weather and to support or rebut claims about what role weather may have played in causing the motor vehicle accident. It is important to remember that the weather by itself can only rarely be found to be an excuse for causing a motor vehicle accident as drivers are charged with using ordinary care when driving in the weather conditions that confront them.
This is an expert who may be able to take evidence from an accident scene and form a hypothesis as to how the accident occurred. This includes estimating the speed of motor vehicles involved, and forming a theory as to causation.
Whether civil or traffic or biomechanical, engineers can examine the construction, condition, placement and working order of the various motor vehicles and roadway in which an accident occurs. Biomechanical engineers study the laws of physics when focusing on human tolerances that may or may not produce injury. A biomechanical engineer examines the relationship between vehicle dynamics, occupant kinematics, injury causation, and the forces involved in a collision. The reader should be warned that there are now dozens of cases that have come down across the United States barring defendant bio-mechanical engineers from testifying with the forces involved in a collision would not be consistent with causing injury to the plaintiff.
An economist can assist with preparing and assessing future lost earnings over the first three years of no-fault lost wages, or if the injured person is a high wage earner, the difference over and above the statutory maximum that the injured person received from his no-fault insurance company. The economist will consider such factors as a persons age, life expectancy, the expected duration of work loss, and more complicated factors like the time value of money, projection of future interest rates and inflation, and other factors.
The Vocational Rehabilitation Expert.
Depending upon the nature and extent of a disability, a vocational rehabilitation expert can assist with determining the proper courses of treatment, whether and to what extent accommodation can be made in the workplace for an injured person and alternative paths to retraining an individual to re-enter the work force.
Remember that experts can play multiple roles, not just to testify. Experts can assist you the attorney in investigation of the case, providing testimony at deposition, case evaluation, educating attorneys and testing various alternatives to potential legal recovery.
An expert is a person with special knowledge, skill, experience, training and/or education. It goes beyond the experience of ordinary members of the public. There can be dozens or even hundreds more experts that can be used ranging from human factors to lighting experts to metallurgy. The attorney should always keep an open mind to working with and to letting himself or herself be helped by those who may have special knowledge and allowing the attorney to develop the best possible automobile accident case.
It is always helpful to see the scene of the collision yourself. If possible, photographing the scene shortly after you are retained and before any changes are made maybe helpful in preserving the photographs to be used later or to be used when pursuing potential causes of action against other possible defendants. If the collision occurs on a State of Michigan highway, it is always helpful to contact the State and obtain the State’s mapping program of the area involved.
It is always helpful to try talking to witnesses before memory fades. It can also become more challenging as there is often a race to attempt to contact and talk to witnesses before representatives from any insurance company who may be involved in the same accident. The goal should always be to obtain statements or recordings of helpful testimony in the event the person later is not able to be found or changes his story as to how the accident happened. Remember, however, if you do not want your adversary to see a statement, it should not be preserved. The current law does suggest that these statements would have to be turned over to your adversary and may not be protected by the work-product privilege. Lynd v Charter Twp. of Chocolay , 153 Mich App 188 (1986), and Peters v Gaggos , 72 Mich App 128 (1976).
Explanations and Excuses
The practitioner handling automobile accident cases should be prepared for some very creative and unusual explanation from defendants as to how these motor vehicle accidents occur.
By far the most common involves invoking the “sudden emergency” doctrine. In essence, the doctrine of sudden emergency says that when a defendant is confronted with such a “sudden emergency” the is “unusual or unsuspected” and the situation is not of his or her own making, and that the defendant is using ordinary care and yet is not able to avoid the collision that he sees and comprehends is unfolding before him, then his negligence can be excused by a jury. The defendant must show that the sudden emergency was in view for a short length of time and the peril was totally unexpected. The sudden emergency defense must be raised as an affirmative dense to give notice before trial. This doctrine has been raised by both honest and less than honest defendants involving everything from oil slicks to sudden blinding sun to sudden winter storm warnings, brake failure, child dart out, stalled cars, avoiding a prior accident, and deer.
The plaintiff attorney handling automobile accident cases must focus on whether this sudden emergency was truly “not of his own making.” Most defenses involving the sudden emergency doctrine can then be defeated by showing that the defendant did not use ordinary care in the moments that lead up to the defendant being confronted by a sudden emergency.