Winning Injury Cases Under The Michigan No Fault Law.
March 15, 2023
Michigan’s no fault law does allow recovery for pain and suffering for injured victims of auto accidents. However, the laws and rules for recovery are complicated and insurance companies fight many of these claims. The claim for pain and suffering must meet a 2 prong test. The first is liability of the other driver. The second prong is that the party seeking damages has suffered threshold injuries under the Michigan No Fault Act. My law firm has represented victims of auto accidents in Western Michigan for over 40 years.
This blog will discuss the tactics used by insurance companies to limit these legitimate claims as well as the strategies for the victims to use to achieve the best results in your case.
I. Liability is required in order to have a claim for non economic damages.
The driver that caused the accident must be at least 50% responsible to trigger liability for the claim. In other words, the injured victim is a passenger or an operator of a vehicle that was in an accident caused by a negligent driver. Negligence or recklessness must be established by the facts of the accident. Generally, this requires statements of witnesses, review of the accident scene, and the police report. In many cases liability is obvious to the licensed driver and an insurance adjuster. In other words, your vehicle was the subject of some other driver’s violation of the rules of the road. For instance, the other driver fails to stop within an assured clear distance and rear ends your vehicle. Other examples include failure to yield to oncoming traffic, crossing the centerline, driving intoxicated, or being hit by a distracted driver.
Insurance companies will fully investigate accidents before they decide to consider payment for a bodily injury claim. Additionally, they could use certain facts, such as not wearing a seatbelt, in order to attempt to diminish the value of a claim. If there are legitimate claims of comparative negligence, a claimant may have to hire an accident reconstruction expert to testify as to the cause of the accident. However, if liability is clearly established, then the insurance company proceeds to the next step. The next step is to evaluate the injury claim.
II. If liability is established, the injured victim must prove to the insurance company that the injuries they suffered arguably meet the Michigan No Fault threshold.
The Michigan law requires that in order to recover damages the claimant must establish that they sustain a serious impairment of an important body function. A serious impairment of an important bodily function is defined as “an objectively manifested impairment of an important bodily function that affects the claimant’s general ability to live his or her normal life. “
For instance, a claimant may have suffered multiple fractures of the right leg in the accident. These fractures require surgery with the placement of permanent rods and screws to stabilize the fractures. This causes him to be off of work for several months. He also required therapy and now walks with a slight limp. The doctor advises he will have future arthritis. These are serious and permanent injuries and the claimant is entitled to past, present and future pain and suffering under Michigan No Fault.
In the above example the claimant establishes his injuries with emergency records, surgery reports and his treating doctor’s office notes. The treating doctor in most cases will write the claimant’s attorney a report outlining his current diagnosis and prognosis for recovery. This is referred to as a narrative doctor’s report. A good narrative report from a treating doctor is an excellent piece of evidence to present to an insurance adjuster.
It is now common practice for insurance companies and their lawyers to argue that the injured party’s general ability to lead their normal life has not been affected.
In other words, the insurance company argues the claimant’s activities in their life in general did not change as a result of the accident. This argument allows them to deny the claim.
For example, I had a case in Holland Michigan where my client suffered from chronic head and neck pain after a rear end collision. The chronic pain had continued for over a year with treatment and pain management therapy. The insurance company argued that her capacity to live her normal life had not changed. The insurance company claimed that she was not working at the time of accident. She was babysitting her grand children prior to the accident and she was still able to perform those functions. They also argued she was able to grocery shop as well as do her own chores and laundry. These are typical type of arguments insurance company will use to avoid paying the claim.
The insurance company ended up paying the claim. In order to affect a person’s general ability to live his or her normal lives, you only have to have an influence on some of the person’s capacity to live in his or her normal manner of living. Thus, you have to look at her capacity to dot the same activities with her grand kids. For instance, she could not take them to the park and play as she did in the past. She could no longer ride bikes with the kids or take her dog on long walks. She was unable to take rides in her car. She had limited ability to travel without severe pain. Thus, the injuries my client suffered did affect her general ability to live her normal life.
Insurance companies will hire doctors to conduct Independent Medical Evaluations of claimants in order to get a second about the nature of the injury, diagnosis, and even the treatment.
These independent evaluations are commonly referred to as IME’s. The IME doctor may or may not be an expert on the type injury suffered by the claimant. They also might have limited access to the claimant’s medical records. Although, not reviewing the medical records would clearly raise eyebrows of the claimant’s attorney. In most IME’s the doctors will review the hospital and treatment records. These IME’s are often conducted in the doctor’s office with limited time and not for treatment of the claimant. In many cases the claimant will be subjected to a series of short questions by the IME doctor. The doctor may also conduct examination of the area of injury. Once the IME examination is completed the doctor will prepare a report for the insurance company. This report will be available to the claimant as well as his attorney in most cases.
The IME report will contain answers to questions submitted by the insurance company to the doctor. The questions concern the present conditions and limitations the IME doctor has observed in his examination and review of the file. Some of the common questions asked by the insurance company for the IME doctor to answer are as follows:
*Was patient’s condition caused by the accident?
*Was the duration and type of treatment provided consistent with accepted medical practices?
*What is the patient’s prognosis?
*Did the patient sustain permanent or temporary injuries in the accident?
*Is the patient able to return to pre loss activity?
*Does the patient need further treatment?
Insurance companies are experts at trying diminish the severity of injuries. If there is a questionable IME, the claimant may want to consider hiring their own expert doctor for an opinion. The use of outside expert opinions can save time, add value to the case and make sure the claimant is prepared in the event of litigation. In most cases it is better to avoid the time and cost of litigation. The use of the expert witness will show the insurance company that you arew prepared to counter the IME with competent doctors. Thus, it creates issues of fact for a jury. This can increase the claimant’s settlement value.
C. Insurance Policy limits of the defendant driver is often an Impediments to full recovery.
The policy limits of the insurance company of the defendant driver may also play a role in how much is recovered. A victim could be permanently injured, but the driver that hit him may have low bodily injury policy limits. For instance, low limits would be 50/100. This means that the insurance company is obligated to pay up to $50,000 per injured victim, but no more than $100,000 for all victims. If the victim is permanently injured they could only get $50,000 from the at fault driver. The reason for this situation is that the defendant is often uncollectable.
In a case of the defendant being uncollectable, an experienced lawyer will try to make a further claim under the victim’s uninsured/underinsured motorist policy. However, the underinsured motorist policy of the victim must exceed the at fault driver’s bodily injury policy. This would allow the victim to recover additional money under claimants own policy limits. Hopefully, the victim has good coverage for this situation.
In the case of an accident with a semi tractor trailer or commercial vehicle, the policy limits for bodily injury are often much higher. I had one case in Holland, Michigan where to semi truck had 21million of bodily injury coverage.
It is for all the reasons that injured victims need to hire an experienced personal injury firm. Call Gerald R. Stahl for any further questions. This Blog is intended to discuss the issues related to No Fault Insurance claims and is not intended to give of be construed as legal advice