PERSONAL INJURY RESOURCES
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STATUTORY AND COMMON LAW DUTIES INVOLVING AUTOMOBILE CASES IN MICHIGAN
By: Robert E. Logeman
Michigan statutes regulate the use of motor vehicles on the highway. The most common statutory violations are of the traffic regulations found at MCL 257.601-.714b. In Michigan, the violation of a statute creates a prima facie case on which a jury may infer negligence. See Zeni v Anderson, 397 Mich 117, 243 NW2d 270 (1976). This is a rebuttable presumption. For example, when defendant driver, while recognizing that the road was icy, hit a patch of ice and skidded across the centerline, the court held that the violation of the statute requiring drivers to keep to the right was excused. Young v Flood, 182 Mich App 538, 452 NW2d 869 (1990); Skidding on ice does not excuse a violation of the Aassured clear, distance@ statute because this statute requires a driver to take conditions into account. Jackson v Coeling, 133 Mich App 394, 349 NW2d 517 (1984).
The Michigan seat belt statute, MCL 257.710e, includes an exception to the normal rule of statutory violation. The statute provides that each driver and passenger in the front seat of the motor vehicle must wear a seat belt and requires more stringent belt usage rules for children. In a civil lawsuit, for the purpose of comparative negligence, the statute provides that the failure to wear a seat belt may be considered evidence of negligence.
A violation of a statutory duty does no always establish an inference of negligence. MCL 257.618 requires the driver or occupant of a vehicle involved in an accident to remove the vehicle from the main traveled portion of the roadway into a safe area on the shoulder, emergency lane, or median or to a place otherwise removed from the roadway if moving the motor vehicle can be done safely and the vehicle can be moved under its own power without further damage or hazard to the traffic elements or the roadway. The vehicle does not need to be moved if the driver or occupant knows or reasonably should know that serious injury or death has resulted from the accident. If a vehicle is moved under this statute, the operator is not prima facie at fault regarding the cause of the accident solely by reason of moving the vehicle. The decision to move or not move the vehicle is also not admissible in a civil action as evidence that a serious impairment of bodily function has or has not resulted from the accident.
Generally, a motor vehicle driver owes a duty of care to anyone who may be reasonably, foreseeably injured as a result of negligent acts or omissions, regardless of whether the person is physically located on the roadway. Typically, this duty extends to other individuals using the highways, including motorcyclists, bicyclists, pedestrians, guests or passengers, persons stopped along the roadway in disabled vehicles, and persons performing highway maintenance at or near the highway.
However, a driver is not an insurer of the safety of others, and the mere fact that an accident occurs does not establish liability or raise a presumption of negligence. Barger v Bissell, 188 Mich 366, 154 NW 107 (1915). Furthermore, reciprocal duties of reasonable care are owed to the driver of a motor vehicle. For example, a pedestrian owes reciprocal duties of reasonable care to a motorist because both have equal rights to use the roadway, except as modified by statute. Wilson v Johnson, 195 Mich 94, 161 NW 924 (1917); Schock v Cooling, 175 Mich 313, 141 NW 675 (1913). However, the degree of care imposed on each differs due to the ability of a motor vehicle to inflict far greater injury to a pedestrian than vice versa. Patterson v Wagner, 204 Mich 593, 171 NW 356 (1919).
The same principle of reciprocal duties holds true for a person riding a bicycle, electric bicycle, electric personal assistive mobility device, electric skateboard, commercial quadricycle, and moped or low-speed vehicle rider, MCL 257.657; motorcyclists, MCL 257.660; and persons riding on animals in the street or driving an animal-drawn vehicle, MCL 257.604; Wright v Crane, 142 Mich 508, 106 NW 71 (1905).
Although the degree of care owed varies depending on the mode of travel involved, a familial relationship between a driver and an injured person does not deprive the injured person of a motor vehicle negligence cause of action. For example, a child passenger may sue a negligent parent driver, and a passenger spouse may sue a negligent spouse driver. Plumley v Klein, 388 Mich 1, 199 NW2d 169 (1972).
COMMON LAW DUTY OF CARE OWED IN AN AUTO NEGLIGENCE CASE
A motorist has a legal duty to drive an automobile reasonably safely and not to endanger people and property. Wright v Crane, 142 Mich 508, 106 NW 71 (1905). What an ordinarily prudent driver would or would not do varies and depends on the circumstances and conditions the motorist encounters. DePriest v Kooiman, 379 Mich 44, 149 NW2d 449 (1967). In general, a driver must use ordinary, reasonable care in the operation of a motor vehicle, in the speed at which it is driven, and in maintaining an appropriate lookout. Zarzecki v Hatch, 347 Mich 138, 79 NW2d 605 (1956); Sponkowski v Ingham Cty Rd Commn, 152 Mich App 123, 393 NW2d 579 (1986).
These common-law duties temper the additional obligations imposed by statute. For example, driving at a posted speed limit of 70 miles per hour might be appropriate on a sunny, clear day and meet statutory requirements, but driving at that same speed in the midst of fog in which there is limited visibility would breach the common-law duty of ordinary, reasonable care. In such circumstances, an increased duty to exercise care and caution is imposed on the driver, regardless of statutory provisions. Russell v Szczawinski, 268 Mich 112, 255 NW 731 (1934).
WHEN DOES AN AUTO INJURY SATISFY THE NO-FAULT LAW STATUTORY
By: Robert E. Logeman
The legislative trade-off for the first-party benefits provided by the No-Fault Act was a limit on some benefits and the elimination, in some circumstances, of traditional negligence suits against the responsible driver. The major distinctions between third-party auto negligence litigation and other negligence suits is that the no-fault defendants liability is statutorily limited. The plaintiff in an automobile negligence suit must show that an injury is serious enough to warrant filing a suit to recover noneconomic damages. The injury must be shown to have crossed the no-fault threshold established by MCL 500.3135.
MCL 500.3135 can bar certain damage claims against the negligent driver. An insured defendant whose liability arises out of the ownership, maintenance, operation, or use of a motor vehicle is afforded a conditional immunity. That immunity bars the plaintiff from recovering for any noneconomic losses (such as pain and suffering or mental anguish) without demonstrating one of the three classes of injury set forth in MCL 500.3135(1). Demonstrating one of the three classes of injury is known as Acrossing the no-fault threshold.@ An auto accident victim has met the statutory threshold if he or she has suffered (1) death, (2) permanent serious disfigurement, or (3) serious impairment of body function. Whether the plaintiff has suffered a serious impairment of body function is a question of law if there is no factual dispute regarding the nature and extent of the plaintiffs injuries or if the factual dispute is not material to whether the plaintiff suffered a serious impairment of body function or permanent serious disfigurement. MCL 500.3135(2)(a).
Even if the plaintiff can cross the threshold, MCL 500.3135(2) limits and potentially even bars recovery in certain circumstances. The plaintiffs damages are limited by comparative fault, and
a plaintiff who is more than 50 percent at fault for the accident cannot be awarded non-economic
damages. MCL 500.3135(2)(b). Moreover, a plaintiff may not be awarded damages if operating their own vehicle at the time of the injury without the insurance required under MCL 500.3101.
When a threshold injury has been proved, the threshold is crossed. Even if the injury improves at a later date, all noneconomic losses are still recoverable. Once the threshold has been crossed, a plaintiff does not have to maintain a continuing level of threshold injury to recover damages. Byer v Smith, 419 Mich 541, 357 NW2d 644 (1984).
PERSONAL INJURY CASES INVOLVING PERMANENT SERIOUS DISFIGUREMENT
There has been little litigation concerning the first two thresholds of MCL 500.3135(1), death and permanent serious disfigurement. There are no death cases in the reported decisions, and there have been only a few permanent serious disfigurement cases. Under MCL 500.3135(2), the question whether the claimant meets the threshold for permanent serious disfigurement is one of law for the court to decide if the court finds there is either (1) no factual dispute regarding the nature and extent of the claimants injuries or (2) a factual dispute about this issue but one that is not material to the threshold determination. The act provides for the assessment of damages based on comparative fault but precludes an award of damages for a party who is more than 50 percent at fault. Thus, pure comparative negligence no longer applies in no-fault cases. Furthermore, the No-Fault Law bars a damages award for a person who was operating their own vehicle at the time of the injury without the security required under MCL 500.3101. See MCL 500.3135(2).
In Kern v Blethen-Coluni, 240 Mich App 333, 612 NW2d 838 (2000), the trial court submitted to the jury the threshold determination of whether the plaintiff suffered permanent serious disfigurement. The court of appeals reversed. Under MCL 500.3135(2), the issue of whether the threshold has been met is a question of law for the court, absent an outcome-determinative factual dispute. Without photographs, a video, or other visual evidence of the disfigurement, the appellate court was not able to conduct a de novo review, and a remand was necessary. The court of appeals stated that if the trial court on remand found permanent serious disfigurement, it should hold a trial on the issue of damages. If the trial court ruled against plaintiff, plaintiff must make an offer of proof in that court with photographs or other documentary evidence sufficient to support plaintiffs claim on appeal.
In Minter v City of Grand Rapids, 275 Mich App 220, 739 NW2d 108 (2007), revd, 480 Mich 1182, 747 NW2d 229 (2008), the court of appeals reversed a trial courts decision that a Arelatively small@ scar above plaintiffs eyebrow that was not Areadily noticeable@ and therefore not a permanent serious impairment. The Court of Appeals held that a question of fact existed because not only was the scar visible but, presuming the truth of plaintiffs allegations, it also caused a functional problem with her ability to express emotions or otherwise communicate nonverbally. The court noted that a great deal of human face-to-face communication is nonverbal, and plaintiffs contention she could not move her eyebrow in a natural or normal manner because of the scar could add to a claim of disfigurement. The supreme court reversed and reinstated the trial courts original judgment for the reason stated in the court of appeals dissenting opinion. The court of appeals dissent had opined that there was no question of fact regarding the nature and extent of plaintiffs scar because plaintiff had offered testimony and provided color photographs showing the scar:
The undisputed evidence, which is comprised of the color photographs of the scar, reveal a 13 millimeter scar above plaintiffs eyebrow that is only slightly lighter in color than plaintiffs skin tone. Additionally, plaintiff testified that it Aitches@ and, when she frowns, it bothers her. And, even though plaintiff stated that she was Asomewhat@ embarrassed about her scar, she has to date foregone the option of corrective surgery. More importantly, a plaintiffs embarrassment and sensitivity about her appearance are a subjective reaction to a condition that must be objectively judged by the trial court, and do not always create a question of fact. . . .Thus, the trial court did not err in concluding that Plaintiffs scar did not constitute a Apermanent serious disfigurement.
DENTAL INJURY CASES
In Fisher v Blakenship, 286 Mich App 54, 777 NW2d 469 (2009), struck his mouth and nose on the steering wheel in an automobile accident. A dentist removed a front tooth that was fractured in the accident and replaced it with a single implanted post and crown. Due to existing conditions in plaintiffs surrounding teeth, all of his top front teeth were eventually removed and replaced with a partial upper denture. There were no restrictions placed on any of plaintiffs activities, and he missed only a few days of work for the dental work. Plaintiff testified the denture altered his appearance, although some friends felt his appearance was improved with his new teeth. He also testified that he drooled occasionally due to the denture and that it altered his speech. Finally, the process of removing and replacing the denture each day was frequently painful, frustrating, and upsetting, although he had not sought counseling to address these issues or taken medication to deal with the discomfort. The court of appeals determined based on this record that plaintiff had suffered a permanent serious disfigurement: In this case, it is clear that [plaintiffs] loss of teeth mars or deforms his overall appearance. Thus, the loss of teeth is a disfigurement. It is also abundantly clear that the disfigurement will last for the remainder of his life. Consequently,[plaintiff] has suffered a permanent disfigurement.
The court in Fisher then discussed whether it was appropriate to consider when a disfigurement could be concealed from view in determining whether a disfigurement was serious: [W]hether the disfigurement is serious must be determined with regard to the injurys physical characteristics under a totality of circumstances, which necessarily includes those times when the disfigurement is fully exposed to view. Moreover, we do not agree that a disfigurements seriousness is in any way diminished because the only persons who will see it when fully exposed are the injured person or those persons who are intimately connected to the injured person; a serious disfigurement remains a serious disfigurement even when hidden from the general public. For these reasons, we hold that courts must consider the effect of the disfigurement on the injured persons appearance without the use of devices designed to conceal the disfigurement, such as the dentures in this case. We do not, however, hold that the need, or lack thereof, for a prosthetic device cannot be considered when determining the seriousness of the disfigurement. Indeed, the fact that an injured person requires, or does not require, the use of a prosthetic to mitigate the disfiguring effects of an injury will often be evidence of the seriousness of the disfigurement.. . . [Plaintiffs] ability to partially conceal his disfigurement through the use of dentures does not render his disfigurement less serious. Rather, we conclude that the need for such a prosthetic is evidence that the disfigurement itself is so serious that one cannot reasonably expect [plaintiff] to appear in public without it. Further, even when he uses the dentures, his appearance is significantly altered; his upper lip protrudes, he drools, and his speech is altered.
Owens v City of Detroit, 163 Mich App 134, 413 NW2d 679 (1987), was a dental injury case after DiFranco. In Owens, Plaintiff suffered the loss of four front teeth and had to have a removable denture plate to remedy the problem. There were issues of serious impairment of body function due to the injuries to plaintiffs mouth and also issues regarding permanent serious disfigurement. On the disfigurement issue, the court stated that under DiFranco, Aserious is a jury question except in the most extreme cases and in Owens it was a jury question. Most of the decisions on permanent serious disfigurement have been unpublished. A couple of cases before DiFranco held that minor facial scarring was not serious enough. However, DiFranco and Owens suggest that only in the most extreme cases should a plaintiff be barred from presenting this issue as a question of fact for the jury. Indeed, in most instances, the question of whether the injury is serious enough is presented and argued to a jury.
ECONOMIC LOSSES IN AUTOMOBILE ACCIDENTS AND PERSONAL INJURY LAWSUITS
By, Logeman, Iafrate & Logeman, PC
Before no-fault reform in June of 2019, a defendant in a third-party lawsuit was legally protected from being sued for wage losses, replacement services, or medical expenses within the statutory maximums of the No-Fault Act. A plaintiff received wages, replacement services, or medical benefits from their own insurance company as long as the defendant driver had the required no-fault insurance, the defendant was not liable for economic losses recoverable from the no-fault insurer. This was a very important protection because it eliminated the risk of being responsible for lifetime medical expenses.
After no-fault reform, a defendant’s liability for economic damages may not be limited to excess economic damages. Under the amended MCL 500.3135(3)(c), effective June 11, 2019, a plaintiff has no limit on economic Aallowable expense@ damages if the applicable first-party policy has no PIP coverage under MCL 500.3107d, or if an exclusion under MCL 500.3109a(2) applies. Moreover, amended MCL 500.3135(3)(c) clarified that all resident relative plaintiffs can seek damages for future allowable expenses and wage loss to the extent such damages are not payable under their no-fault coverage.
A defendant may not be sued for replacement services under MCL 500.3135(3)(c). Johnson v Recca, 492Mich 169, 821 NW2d 520 (2012). This is true even with post-nofault reform as allowable expenses and work loss are explicitly listed in the amended MCL 500.3135(3)(c), but there is no mention of replacement services in the Statute.
Wage Loss Recoverable in Auto Negligence Cases
A plaintiff’s ability to recover economic losses in third-party cases can be important in establishing recoverable damages. For example, if a man is disabled for life as a result of an automobile accident and he had a work expectancy of 30 years at a job that he would have performed, he could recover the first three years of his wage losses from his no-fault insurer and seek the remaining 27 years of wage losses from the negligent tortfeasor in a third-party personal injury lawsuit. The claimant need not show a threshold-level injury to recover the excess wage loss claims. See MCL 500.3135(3)(c). However, nonresidents must show threshold injury in order to recover any damages including economic loss.
The wage loss claimed by the plaintiff must be based on an actual wage loss, rather than on an impairment of earning capacity. Hannay v DOT, 497 Mich 45, 860 NW2d 67 (2014). The earning capacity question, which is generally the test in Michigan in nonautomotive cases, focuses on what work the individual could have performed; that is, the economic value of all possible avenues of income that are foreclosed. Under
Michigan no-fault law, the work loss test is a Abut for@ analysis that focuses on what the individual would have earned but for the accident. Accordingly, prior wages generally are the most relevant and reliable evidence to establish work loss damages. The plaintiff is entitled to recover wage losses from a third-party defendant for all losses exceeding the wage loss benefits paid by the no-fault carrier during the first three years after the accident.
The requirement that a plaintiff must prove an actual income loss, rather than a loss of future earning capacity, presents proof difficulties for individuals who do not file tax returns or have prospective employment situations in writing such as employment offers. It is difficult to prove what wages would have been earned three years after an auto accident when the plaintiff has not yet begun a career or, possibly, has not even chosen one. Although the No-Fault Act does not expressly limit a plaintiffs work-loss award to the plaintiff’s wages at the time of the accident, courts must be cautious in considering wages because of the risk that a calculation based on such wages will be contingent and speculative under existing case law.
In the Hannay case, plaintiff argued that but for the accident, she would have been admitted to and completed a dental hygienist program. And found part-time employment as a hygienist. She produced evidence that her employer before the accident, for whom she worked as a dental assistant, would have hired her as a hygienist postgraduation for a specific rate of pay. The court of appeals agreed that based on the evidence, the trial court correctly calculated plaintiff’s lost wages based on her potential earnings as a parttime dental hygienist. The Michigan Supreme Court reversed, holding that the Asheer number of conditions that were required to be satisfied before plaintiff could be employed@ made the work-loss award Acontingent and speculative.@ The Hannay court explained that it was justifiable to look beyond the plaintiffs’ wage history in these cases because the plaintiffs had met Anearly every condition to employment@ in their professional fields. In contrast, plaintiff in Hannay had not yet been accepted into a dental hygienist program, and one of her prior applications to such a program had been denied on the merits.
Before Hannay, plaintiff’s counsel could cite caselaw in both no-fault and other contexts that provided examples of circumstantial proofs in employment situations where damages would be recoverable. Covell v Colburn, 308 Mich 240, 13 NW2d 275 (1944) (proofs of plaintiff’s intentions to become a nurse and testimony of two nurses regarding nurse’s earnings were sufficient to create question of fact for jury to decide), overruled on other grounds in Thompson v Ogemaw Cty Bd of Rd Comm’rs,, 357 Mich 482, 98 NW2d 620 (1959). The language in Hannay is fairly broad, but most future employment claims are not too different from Gobler and Swartout. The multiple requirements in Hannay that had to be satisfied within the three-year no-fault wage loss period (readmission to school, completion of the program, successfully passing the admission requirements for a hygienist, and finding employment) make it easily distinguishable from Gobler and Swartout.
Michigan law relaxes the degree of proofs on damages when the defendant’s negligence makes exact calculation of damages difficult to prove. See Sadlowski v Meeron, 240 Mich 306, 215 NW 422 (1927). The courts will probably use the reasoning of these non-no-fault cases to find questions of fact on income loss cases when the employment career path is undeveloped but reasonably likely.
The area of excess economic losses and long-term economic earnings will be important for plaintiffs’ counsel if they prepare thoughtful proofs concerning a plaintiff’s future employment. One case that illustrates the proofs necessary to prove a long-term Abut for@ wage loss is Cole ex rel Robinson v DAIIE, 137 Mich App 603, 357 NW2d 898 (1984), a no-fault first-party case. In Cole, the accident victim’s plan, and the intention she expressed to her family members, was to return to work in the fall when her youngest child entered school. However, she was killed before the fall in an automobile accident. The court of appeals held that the family’s testimony about her plans and intentions created a question of fact. The court upheld the jury’s award of survivor’s income loss benefits commencing in the fall in accordance with the mother’s expressed intention to return to work in the fall. In a third-party case seeking wages in excess of the 30-day or yearly maximums, the same level of proof will probably be required to show what the probable long-term income loss would have been earned in the case.
Wage losses may also include survivor’s loss benefits, referred to in MCL 500.3108 as loss of Acontributions of tangible things of economic value.@ This phrase is not limited to wages alone and is broad enough to include Ahospital and medical insurance benefits, disability coverage, pensions, investment income, annuity income and other benefits.@ Miller v State Farm Mut Auto Ins Co, 410 Mich 538, 557, 302 NW2d 537 (1981). Oldage Social Security benefits are also tangible things of economic value that must be included in the calculation of survivor’s loss benefits. Scugoza v Metropolitan Direct Prop & Cas Ins Co, 316 Mich App 218, 891 NW2d 274 (2016). See ‘6.48.
Jury instructions on recovering excess economic losses regardless of whether a threshold has been demonstrated are provided in M Civ JI 36.04 and .06. See forms 12.8 and 12.10, the third-party model jury instructions.
PROCEDURAL RULES RELATED TO AUTO NEGLIGENCE CASES
By, Logeman, Iafrate & Logeman, PC
An automobile negligence lawsuit is subject to the three year statute of limitations generally applicable to other negligence actions. See MCL 600.5805(2). An auto negligence cause of action accrues and the statute of limitations begins to run when the accident occurs. MCL 600.5827. MCL 600.5856 states that the filing of a complaint tolls the statute of limitations as long as the summons and complaint are served within the time set forth by the court rules within the 91-day expiration period for a summons under MCR 2.102.
Under traditional negligence principles, the negligent driver in a tort case is responsible to the plaintiff for damages sustained as a result of the defendant driver’s negligence. Under the Civil Liability Act (also known as the Aowner liability act@), MCL 257.401, the owner of a motor vehicle is liable for any injuries and damages caused by the operation of that vehicle by any person with the owner’s express or implied consent or knowledge. See the case of Sexton v Ryder Truck Rental, Inc., 413 Mich 406, 320 NW2d 843 (1982).
The defendant in a no-fault lawsuit is immune from suit for any property damage to the Plaintiff’s vehicle unless the vehicle was parked. The defendant is responsible for the plaintiff’s noneconomic losses – – such as pain and suffering, embarrassment, and disfigurement – – and for economic losses in accordance with MCL 500.3135(3). To recover noneconomic losses from the defendant in a negligence suit, the plaintiff must prove that a threshold-level injury has been sustained and that the Plaintiff is not more than 50 percent at fault. MCL 500.3135(2).
An insured whose third-party claim has been rejected by a jury may be estopped from bringing a first-party action. In Monat v State Farm Ins. Co., 469 Mich 679, 677 NW2d 843 (2004), the Michigan Supreme Court ruled that when collateral estoppel is being asserted defensively against a party who has already had a full and fair opportunity to litigate the issue, mutuality is not required. Mutuality means that the party being estopped must have been a party or privy to a party in the previous action. 469 Mich at 682. Citing Monat, the court in Radwan v Ameriprise Ins. Co., 327 Mich App 159, 933 NW2d 385 (2018), held that the consent judgment in plaintiff’s third-party case was the basis for collateral estoppel in her first-party case. Collateral estoppel applied because the consent judgment was based on the jury trial, during which it was litigated and determined that Plaintiff was uninjured.
The normal lawsuit or pleading in the no-fault complaint must allege that the plaintiff has sustained a threshold-level injury, which is death, serious impairment of body function, or permanent serious disfigurement if noneconomic damages are sought or, effective June 11, 2019, if economic damages are sought and the plaintiff is a nonresident. Second, the no-fault complaint does not request any recovery for out-of-pocket wage losses, replacement services, or medical expenses to the extent that those are recovered or recoverable from the no-fault carrier. For a claim to fall within the scope of the No-Fault Act and third-party liability policies issued pursuant to the act, the conduct of the defendant giving rise to liability must arise from the use, operation, or maintenance of a motor vehicle. Celina Mut. Ins. Co. v Aetna Life & Cas. Co., 434 Mich 288, 454 NW2d 93 (1990). However, effective June 11, 2019, a Michigan plaintiff covered by a Michigan no-fault policy may seek wage loss in excess of the no-fault wage loss maximums in MCL 500.3107. If the Michigan resident has no-fault medical expenses in excess of the personal protection insurance (PIP) choice amount elected, see MCL 500.3107c (eff. June 11, 2019), the tortfeasor may be responsible for those excess medical expenses. Nonresidents may seek economic and noneconomic damages in a tort lawsuit if they have a threshold injury. See MCL 500.3135(1) (noneconomic), (3)(d) (economic), amended by 2019 PA 21.
Unlike the typical tort complaint, a no-fault auto negligence complaint is restricted in the amount of out-of-pocket expenses it can recover and must demonstrate a threshold-level injury. In all other respects, the auto negligence complaint is like other civil damage claims in Michigan. The complaint must allege the duties owed by the defendant to the plaintiff and the manner in which the duties were breached as well as the resulting damages. Any demand for a jury trial must be filed as a separate document. MCR 2.508(B)(1). The choices of court and venue are governed by general civil procedure concepts.
WHEN ARE UNINSURED MOTORIST BENEFITS RECOVERABLE IN A CAR ACCIDENT?
By, Logeman, Iafrate & Logeman, PC
The no-fault law does not require that an insured purchase uninsured motorist coverage and as a result, the terms of the contract control the claimant’s entitlement to benefits. See Rohlman v Hawkeye-Sec Ins. Co., 442 Mich 520, 502 NW2d 310 (1993). Generally, to recover uninsured motorist benefits, the claimant must show that the other driver was uninsured and was legally at fault for the damages sustained in the accident. Uninsured motorist coverage also frequently requires that the plaintiff must have been in physical contact with the uninsured motorist’s vehicle. See Scott v Farmers Ins. Exch., 266 Mich App 557, 702 NW2d 681 (2005). However, the language of defendant’s policy covering uninsured motorist benefits may relieve the claimant of the burden of showing that the driver was uninsured. In Scott, plaintiff was the passenger in a car that was involved in an accident. The driver of the car was a named insured on a Titan Insurance no-fault automobile insurance policy. The vehicle was uninsured. Plaintiff lived with his mother, who was a named insured on a no-fault policy issued by defendant that provided Auninsured motorist@ coverage for injuries arising from the use, ownership, or maintenance of an uninsured vehicle. The court of appeals held that the language of these provisions, read together with the heading AUninsured Motorist,@ raised a question of fact regarding whether plaintiff must show that the driver was uninsured before obtaining benefits under the policy language. Further, the court noted that although the trial court indicated that the existence of insurance coverage for the driver had been established, the lower court record was unclear on this point. The court of appeals concluded that because the policy was unclear regarding the conditions to be met before plaintiff could recover uninsured motorist benefits, and factual questions existed regarding whether plaintiff met those requirements, the trial court erred when it held that the contract did not cover accidents in which the driver was insured. This case may have limited applicability for the reason that many insurance policies contain a narrower definition of uninsured motor vehicle, including only those motor vehicles that are uninsured and whose owner or operator are uninsured.
If the claimant is not legally entitled to recover damages from the tortfeasor, an uninsured motorist claim may not be made to the insurer under its uninsured motorist coverage. For example, in Hopkins v Auto-Owners Ins. Co., 41 Mich App 635, 200 NW2d 784 (1972), the claimant sought uninsured motorist benefits against a co-worker. The court of appeals concluded that, because of the exclusive remedy provision of the Worker’s Disability Compensation Act of 1969, MCL 418.101 et seq., the claimant never had a remedy against the uninsured motorist tortfeasor, so plaintiff was not entitled to recover any damages from the negligent motorist. Because the claimant was precluded as a matter of law from seeking damages from the uninsured motorist, the claimant was not legally entitled to recover damages from the uninsured motorist, so no uninsured motorist claim existed.
In Cole v Auto Owners Ins. Co., 272 Mich App 50, 723 NW2d 922 (2006), the court of appeals denied uninsured motorist benefits based on the dictionary definition of pedestrian. Plaintiff was struck by a vehicle driven by an unidentified driver while riding a bicycle. The policy provided uninsured motorist coverage for injuries suffered Awhen you are a pedestrian.@ The policy did not define pedestrian. The court of appeals held that because uninsured motorist coverage is optional, the policy language governs coverage, and the policy language need not be broadly construed to provide coverage. To determine the ordinary meaning of a word, courts may refer to a dictionary, and a word is not ambiguous simply because dictionary definitions differ. The court concluded that the term pedestrian is not ambiguous; and under its common meaning, plaintiff was not a pedestrian under the policy because he was riding a bicycle rather than traveling or going on foot. The court noted that while plaintiff was not entitled to uninsured motorist benefits under the policy, he might be able to seek PIP benefits from the Assigned Claims Facility.
Underinsured motorist coverage is also not required by the no-fault law but is offered as an option by a number of insurance companies. Because such insurance is not mandated by statute, its coverage, and limitations of protection are governed by the insurance contract and contract law. Underinsured motorist coverage is usually added to the uninsured motorist coverage provisions by changing the definition of uninsured motorists to include underinsured motorist coverage. Therefore, most of the uninsured motorist provisions and procedures apply to underinsured motorist claims.
Underinsured motorist contracts frequently require that the claimant recover the full policy limits from the negligent tortfeasor’s insurer. That precondition may preclude the plaintiff from accepting an amount less than the tortfesor’s policy limit as a settlement because accepting a lesser amount would prevent the plaintiff from collecting the remaining amount from his or her own underinsured motorist insurer. Most policies that provide uninsured or underinsured motorist coverage generally cover any person occupying the vehicle that is involved in the accident. It is imperative to read the particular policy to determine whether the coverage applies to a nonresident family member occupying the vehicle. Policyholders will find that underinsured and uninsured motorist coverage is fairly inexpensive for the amount of coverage provided. With larger insurers now offering underinsured motorist coverage, more extensive underinsured motorist coverages are being purchased to compensate accident victims for their uncompensated damages.
A requirement for a successful uninsured motorist claim is a showing that the negligent driver was uninsured. There is a distinction between being uninsured and being insured by an insolvent insurance company. That is, if a motorist had an insurance contract in effect at the time of the accident, the vehicle would be considered insured even if the insurance company later went bankrupt or became insolvent. Thus, the plaintiff would be prevented from recovering damages from his or her uninsured motorist coverage. If the insurer was insolvent at the time of the accident, the uninsured motorist benefits were available. The deciding factor was whether the vehicle was technically uninsured at the time of the injury-producing event.
In a case decided during the time the subsequent mandate was in place, before its repeal after the enactment of the No-Fault Act, the court of appeals determined that the statutory public policy of encouraging uninsured motorist coverage supported an award of uninsured motorist benefits even when the insurer later became insolvent. Winans v Hartford Accident Indem. Co., 25 Mich App 75, 181 NW2d 17 (1970). After the statutory repeal of the mandate, it was not clear if the Winans approach had continued validity at the present time.
A different question regarding whether the tortfeasor was uninsured arose in Hafner v DAIIE, 176 Mich App 151, 438 NW2d 891 (1989). In Hafner, a witness who had plaintiff’s permission to momentarily drive plaintiff’s truck caused injuries to plaintiff. Plaintiff argued that the matter should be submitted to arbitration to resolve an ambiguous uninsured motorist provision in his policy. The court held that not only was the contract unambiguous but that no uninsured motorist was involved. Because the passerby operated the vehicle with plaintiff’s permission, he was an insured driver under the plaintiff’s no-fault policy.
Most uninsured motorist coverage provides that if an unidentified motorist, such as a hit-and-run driver, injures an insured, the insured may seek uninsured motorist benefits by showing proof of the unidentified motorist’s involvement. The insurance contract usually provides that the plaintiff must have physical contact with the unidentified motorist’s vehicle to recover uninsured motorist benefits. The physical contact requirement was meant to ensure that phantom vehicles are not invented and claims made for uninsured motorist benefits without some evidence that an unidentified motorist’s vehicle was involved. Some policies also require that the involvement of a hit and run vehicle be reported to a police department within 24-hours of the accident.
The court of appeals has been divided on the question whether the physical contact requirement is satisfied in cases in which the claimants vehicle has struck objets on the roadway. In Kersten v DAIIE, 82 Mich App 459, 267 NW2d 425 (1978), a collision in which the vehicle struck a spinning wheel on the highway was held to fail the contact requirement. In Kersten, the court required that indirect contact between the insured’s vehicle and the hit-and-run vehicle be transmitted to the insured’s vehicle by Aa continuous and contemporaneously transmitted force.@ In Adams v Zajac, 110 Mich App 522, 313 NW2d 347 (1981), the court rejected this requirement and held that a truck driver who had hit a tire-and-rim assembly on the highway had made sufficient physical contact with the unidentified motorist’s vehicle to satisfy the contact requirement under the uninsured motorist provision.
In Dancey v Travelers Prop. Cas. Co. Of America, 288 Mich App 1, 792 NW2d 372 (2010), plaintiff was injured when her vehicle hit a ladder on an I-696 ramp high above I-75. The accident site was inaccessible to pedestrians and nonvehicular traffic. There was also no construction taking place in the area. The court held that in these cases there was objective and convincing evidence of another unidentified vehicle that could have been the source of the object causing the accident. The court determined that these cases did not preclude it from considering the unique location of the accident in this case. Although, the evidence did not establish an identifiable vehicle from which the ladder may have fallen, the evidence Apermits a reasonable person to eliminate all reasonable sources for the presence of the ladder except one: the ladder fell off a vehicle. The court found, Aa reasonable juror could conclude that there is no reasonable explanation for the presence of a ladder in the middle of an overpass soaring high above Royal Oak and inaccessible to nonvehicular traffic except that the ladder must have fallen off a vehicle@ thereby establishing a substantial physical nexus between a hit-and-run vehicle and the ladder struck by plaintiff.
The physical contact requirement has also been litigated in a case involving a drive-by shooting. In Kreager, the court determined that plaintiff did not establish a sufficient physical nexus with the unidentified vehicle to trigger coverage. The projectile that injured plaintiff was a bullet, not an object that dislodged from the assailants’ car. Therefore, uninsured motorist coverage was not available. Because Michigan’s No-Fault Act does not statutorily require uninsured motorist coverage, the terms of the insurance contract control the claimant’s entitlement to benefits (see ‘8.2). Therefore, exclusions from coverage in the contract preclude the recovery of benefits when the exclusion applies.
In American States Ins. Co. v Kesten, 221 Mich App 330, 561 NW2d 486 (1997), a car passenger injured in an accident sought uninsured motorist benefits from her own insurer. The insurer denied the claim because of a policy exclusion for situations when an insured occupies a motor vehicle that provides the same or similar coverage. The driver of the car had uninsured motorist coverage that the passenger’s insurer deemed to be the same as or similar to the passenger’s personal coverage. The trial court found that the exclusion did not apply, but the court of appeals reversed because the exclusion was clear, concise, and specific. A difference in the amount of coverage provided by the two policies was not sufficient to render the policies dissimilar.
A number of cases have arisen in connection with policy provisions prohibiting settlements without the insurer’s consent. If consent is not obtained, coverage may be precluded under the policy language. It is critical that written consent from the insurer be obtained before settling with the tortfeasor. This is necessary so that the insurance company’s subrogation rights are protected.
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