Michigan Statutory Personal Injury Practice

Question 1

No-Fault: Potential Plaintiffs

Answer 1

1. Injured Driver
2. Passenger
3. Pedestrians
4. Bicyclist

Question 2

No-Fault: Benefits

Answer 2

• Medical Expenses - “All reasonable charges incurred for reasonably necesssary products, services, and accomadations for an injured person’s care, recovery, and rehabilitation for life w/o any cap.
• Work Loss - “Loss of income an injured person would’ve performed during the first 3 years after the date of the accident if he had not been injured. There is a monthly cap.”
• Replacement Services Expense - “Reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he had not been injured, the injured person would’ve performed not for income but for the benefit of himself or dependents. Cappted at 20/day. Eligible for the first 3 years after an accident.
• Survivor’s Loss Benefits - “dependents of the decedent are entitled to recover decedent’s work loss & replacement services + $5k max funeral expense. Spouse and children > 18 are conclusively presumed to be dependents.”

Question 3

No-Fault: Coordination of PIP

Answer 3

• “Coordinated Benefits” - when an insured purchases a coordinated benefits policy, the no-fault insurer only pays expenses not paid by other health insurance policies
• “Full benefit” - no-fault carrier pays all expenses

Question 4

No-Fault: Whose carrier pays?

Answer 4

Priority…

1. Injured person’s own policy
2. Injured’s spouse or relative domiciled in same household
3. Owner of motor vehicle
4. Driver of motor vehicle

Exception: If injury occurs in ER’s vehicle, ER’s no-faulty policy kicks in.

*Note: Govt. benefits–SS Disability & Worker’s Comp-are set off / deducted from PIP benefits

Question 5

No-Fault: Who doesn’t get benefits?

Answer 5

Owners of uninsured, involved vehicles.

Nonresident w/vehicle registered in another state.

Motorcyclists don’t have to carry no-fault & aren’t covered unless the incident involves a motor vehicle, ie auto/truck.

*Note: If a nonresident operates within the state for an aggregate of 30 days in a calendar years, said nonresident must carry no-fault insurance.

Question 6

No-Fault: What does PIP not cover?

Answer 6

Damage to motor vehicle or its personal property contents.

Question 7

No-Fault: What are the potential COA available to a π?

Answer 7

(1) A negligence COA may be brought to recover noneconomic damages (ie pain and suffering) if the injury is sufficiently severe to meet the “tort threshold” standard of the no-fault statute.
(2) COA for excess economic damages that aren’t paid under no-fault benefits (e.g., replacement services)
(3) “Mini-Tort Claim” – $1000

Question 8

No-Fault: Serious Impairment of Important Body Function

Answer 8

One of the three threshold injuries.

The statute defines it as “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his normal life.”

Permanent impairment isn’t required.

Question of law for the judge. (*Note: material factual dispute to the nature & extent of injury is for a trier of fact.)

Question 9

No-Fault: McCormick Standard

Answer 9

The test applied to determine serious impairment of important body function.

1. Is it an “important body function” & has it been “impaired?” – Must be both!
2. Impairment must be objectively manifested.
3. Whether there has been some effect to the person’s ability to live her normal manner of living (McCormick)

Restrictions can’t be self-imposed

*Note: If π can’t work to full capacity or do all things he once did, π is still “generally able to lead his normal life.”

Question 10

No-Fault: Negligence COA to recover noneconomic damages.

Answer 10

A negligence COA may be brought to recover noneconomic damages (ie pain and suffering) if the injury is sufficiently severe to meet the “tort threshold” standard of the no-fault statute.

• Tort threshold includes:

1. Serious Impairment of Important Body Function
2. Permanent Serious Disfigurement
3. Death

• ∆’s fault must be shown or that he breach the standard of car by driving unreasonably.
• Michigan utilizes a “greater fault bar” in that if π > 50% at fault, π is barred from recovery!
• π barred if π-owner operating an uninsured vehicle at time of accident.

Question 11

No-Fault: COA for excess economic damages.

Answer 11

COA for excess economic damages.

• ∆’s fault must be shown or that he breach the standard of car by driving unreasonably.
• No tort threshold injury to prove.
• Pure comparative negligence basis (NO greater fault bar)
• Can sue even if π is operating an uninsured vehicle.

Question 12

No-Fault: Mini-Tort Claim

Answer 12

“Mini-Tort Claim” - Allows the π to recover damages up to $1000.

• Designed to cover the insurance policy deductible.
• Recovery to the extent not covered by insurance.
• Michigan utilizes a “greater fault bar” in that if π > 50% at fault, π is barred from recovery
• π barred if π-owner operating an uninsured vehicle at time of accident.
• ∆’s fault must be shown or that he breach the standard of car by driving unreasonably.

Question 13

No-Fault: Owner’s Liability Statute

Answer 13

The owner of the motor vehicle is a joint tortfeasor and is joint and severally liable if the owner expressly or impliedly consented to the driver’s use of the vehicle or if the owner had knowledge of the use.

• Consent is presumed when the vehicle is driven by an immediate family member.
• When EE’s drive ER-owned vehicles, ER is presumed to have knowledge or impliedly consents so proving scope of employment for vicarious liability NA.
• Owner doesn’t have to behave negligently in permitting the driver to use.
• Statutory. Not in common law.

Question 14

Govt. Immunity: Base Rule

Answer 14

Unless there is a statutory cause of action against the government, all subdivisions and agencies at the state, county, and municipal level are immune from liability for negligence.

• There are 6 COA to know here.
• Can sue an govt. EE individually for gross negligence.

Question 15

Govt. Immunity: COA for Defective Highways

Answer 15

State and county road commissions have a duty to repair and maintain the highways. The duty extends “only to the improved portion of the highway designed for vehicular travel & does not include sidewalks, trailways, crosswalks, or any other installation outsided of the improved portion of the highway designed for vehicular travel.”

Must prove:

1. Defective condition caused bodily injury or property damage…
2. B/c the govt. agency failed to repair the condition
3. The govt. agency knew or should have known of the condition and had reasonable time to repair.
4. Conditions which are readily apparent for > 30 days before injury occurred = conclusive presumption of knowledge

Question 16

Govt. Immunity: COA for Negligent Operation of a Govt.-Owned Motor Vehicles

Answer 16

Govt. agency is liable for bodily injury and property damage caused by (1) the negligent operation of the motor vehicle (2) by an agent or govt. EE (3) if the π can meet the applicable tort threshold provided by the No-Fault Act.

COA

1. Was EE acting or reasonably believed he was acting within the scope of his authority?
2. Was EE engaged in the exercise of a govt. function?
3. Did the EE’s conduct amount to gross negligence that was the proximate cause of the injury/damage? - Proximate cause, here, is defined “the one most immediate, efficient, and direct cause preceding the injury”

• Key Question: What constitutes a motor vehicle?
• Key Question: Whether the damage resulted from the negligent operation of the motor vehicle.

Great Example: Where a snow plow caused an accident, the court said that it was not the motor vehicle that caused the damage and, therefore, the govt. was immune.

Can’t sue for loss of consortium. Only injury/property damage.

Question 17

Govt. Immunity: COA Public Buildings

Answer 17

Govt. agencies have a duty to repair and maintain public buildings when open for use by the public.

A π has a COA to recover for personal injury or property damage if:

1. Public building in question is open for public use
2. A dangerous or defect condition of (not necessarily only “in”) the public building exists.
3. Govt. agency had actual or constructive knowledge of the alleged defect. (conclusive presumption of knowledge if defect was readily apparent for > 90 days before injury)
4. Govt. agency failed to remedy or protect the public from the alleged defected condition after a reasonable time.

Big question is: “What constitutes a public building?” – Not playgrounds, swimming pools, equipment in a high school chemistry lab, ramps into building. Does include parking structure that had offices and other facilities.

No open and obvious standard.

Question 18

Govt. Immunity: COA for Providing Medical Care or Treatment to a Patient

Answer 18

No govt. immuntiy with respect to providing medical care or treatment to a patient.

**Exception: **state’s owned/operated mental health & dept. of corrections hospitals

Govt. agencies can be sued for medical malpractice.

Question 19

Govt. Immunity: COA for Proprietary Function

Answer 19

Govt. agencies can be sued for bodily injury or property damage arising out of the performance of a proprietary function.

Proprietary Function–activity conducted primarily to produce a pecuniary profit

• ~ordinary taxes and fees
• Problem: proving govt. makes a profit (E.g., parking lots and swimming pools)

Question 20

Govt. Immunity: COA for Defective Sewage

Answer 20

• Govt. agency knew or should have known about the defect.
• The defect was a substantial proximate cause of the event and the property damage or physical injury.
• This statutory provision abrogates common law theories such as trespass to land for damages caused by a sewage disposal event.

Question 21

Govt. Immunity: COA against a Govt. EE individually for Gross Negligence

Answer 21

EE is immune from suit if:

• Acting within the scope of her authority.
• Discharging a govt. function
• EE’s conduct amounts to gross neligence that is the proximate cause of the injury.
  
  • Gross negligence means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.
  • Gross negligence must be THE proximate cause. (E.g., In a high speed police chase even if the police officer’s driving is grossly negligent, he can only be sued if the negligence is THE cause of the resulting harm, i.e., last immediate cause)

Question 22

Factual Setting: A “motor vehicle” accident resulting in personal injury and/or property damage.

Answer 22

No-Fault

Question 23

Factual Setting: Whenever an EE is injured while on the job at the place of employment.

Answer 23

Two Approaches

1. Worker’s Comp as exclusive remedy against ER and fellow EE
2. Potential lawsuits based in tort against any third party who is legally responsbile for the injury to the EE

Question 24

Workers’ Comp: Types of Personal Injury

Answer 24

1. Single accident
2. Disease or disability which is due to cause and conditions which are characteristic of and peculiar to the business of the ER
3. Mental disabilities and conditions of the aging process, including but not limited to heart and cardiovascular conditions, and degenerative arthritis shall be compensable if contributed to or aggravated or accelerated by the employment in a significant manner

*Note: An ordinary disease of life to which the public is generally exposed outisde of the employment is not compensable.

Question 25

Workers’ Comp: Statutory Standard

Answer 25

To get benefits…

1. A person must be an EE under a contract for hire, express or implied, rather than an IC or volunteer.
2. The EE’s personal injury must arise out of and in the course of the employment.

Question 26

Workers’ Comp: “In the course of” Standard

Answer 26

“In the course of” means that the EE is at work, on the ER’s premises at the time of the injury. Presumption: Going to or coming from work while on the premises where work is to be performed. NO: Activities for which the purpose is social or recreational.

• Includes: Parking Lot
• Traveling To & From Work
  
  • Generally not included
  • Exception: special mission, ER provided transportation, ER derides special benefit
  • Traveling for work, as part of job

Question 27

Workers’ Comp: “Arising Out Of” Standard

Answer 27

The risk of harm which caused the injury arose from the work or under the positional risk doctrine, from some neutral risk.

• E.g.’s tornado, explosion in the building next door
• Standard causes the following to NOT APPLY:

1. Intentional/willful misconduct by the injured EE
2. Horseplay if “a substantial deviation from work” as compared to customary and compensatory (E.g., air hose use to clean off clothing at the end of the work day - hose is a risk of daily employent and horseplay involing the hose in compensable)
3. Recreational and social activities
4. imported risks
5. Idiopathic falls

Question 28

Workers’ Comp: Exclusivity of Remedy & Exceptions

Answer 28

If the EE falls under the Workers’ Comp statutory standard, worker’s comp is the exclusive remedy. Can’t sue in tort either the ER or other EEs.

Can sue third parties though.

Exceptions:

• Intentional Torts.
• Suits based in contract or on statutes
• Uninsured ER’s
• Dual Capacity Doctrine-ER must have a second identity completely removed and distinct from his status as an ER (e.g. doctor-ER)
• Fellow EE (natural person in the same employ) if committed intentional tort which took EE out of the scope of employment. (If arises out of a job dispute ≠ fellow EE exception.) EG Sexual harassment

Question 29

Workers’ Comp: Disability

Answer 29

A limitation on the EE’s wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work related disease.

Wage Earning Capacity–wages the employee earns or is capable of earning at a job reasonably available to that EE, whether or not wages are actually earned.

Such a limitation exists only if a personal injury results in the EE’s inability to perform all jobs paying the maximum wage in work suitable to that EE’s qualifications and training including using the EE’s transferable work skills (i.e. wage loss).

Showing “Wage Loss” requires establishing a connection between the disability and reduced wages. (i.e. EE’s good faith effort to procure work within the worker’s wage earning capacity)

An EE ~disabled if he refuses a bona fide offer of reasonable employment w/o good and reasonable cause.

• Reasonable employment–work that is within the EE’s capacity to perform that poses no clear and proximate threat to that EE’s health and safety, and that is within a reasonable distance from that EE’s residence.

Question 30

Workers’ Comp: Finding “Compensability”

Answer 30

A personal injury is compensable if work causes, contributes to, or aggravates pathology in a manner so as to create a pathoogy that is medically distinguishable from any pathology that existed prior to the injury.

To be compensable, the injury must be disabling.

Question 31

Workers’ Comp: Wage Loss

Answer 31

Showing “Wage Loss” requires establishing a connection between the disability and reduced wages. (i.e. EE’s good faith effort to procure work within the worker’s wage earning capacity)

Question 32

Workers’ Comp: Exception to Exclusivity of Remedy - Intentional Tort

Answer 32

An intentional tort shall exist only when an EE is injured as a result of (1) a deliberate act of the ER and (2) the ER specifically intended an injury. An ER shall be deemed to have intended to injure if the ER had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge.

• (2) Specific Intent. Actual knowledge only. NO: Construtive, implied, or imputed knowledge.
• Injury certain to occur–extremely high standard. > substantial certainty
• Willful disregard–more than negligence, failure to act to protect a person who might foreseeably be injured from an appreicable risk of harm.
• For the ER Corp., Worker must prove the supervisor had the requisite intent.
• NA: Acting recklessly or envisioning the type of accident that occurred

Question 33

Workers’ Comp: When there is an occupational disease & multiple ER’s involved, which ER pays?

Answer 33

Total compensation due is recoverable from the last employer.

Question 34

Workers’ Comp: Third Party Tortfeasor Liability

Answer 34

Anyone who tortuously caused the work-related injury who is someone other than the ER or a natural person in the same employ may be sued in tort.

If EE doesn’t file suit within 1 SOL, ER can enforce the liability.

Acceptance of comp bene’s isn’t an election of remedies. π can also proceed to enforce the liability of the third party for damages.

Any recovery, after deducting expenses for recovery, shall first reimburse the ER for bene’s paid.

Caution! This hits on “premises liability.” If there is real property-related fact pattern, need to distinguish invitee, trespasser, and licensee. Need to be a invitee. No duty if condition is open and obvious.

Question 35

Workers’ Comp: Examples of Potential Third Party Cases

Answer 35

1. Construction Cases & IC’s.
   • E.g., Electrician-EE who is injured due to the negligence of the Carpenter-IC on a job site can sue Carpenter.
   • Exception: Statutory Principal Rule-If (1a) an ER (Prinicipal) contracts w/any person who isn’t subject to the act or (b) has not complied with the act (ie failed to get insurance) and (2) an injury/death occurs, (3) the Principal shall be liable for workers’ comp as if the injured person had been immediately employed by the Principal.
2. Motor Vehicle Accidents. Remember this runs into No-Fault!
3. Products Liability
   • E.g., suits against a manufacturer of defective equipment which EE used in the factory
4. Landowner as a separate entity from the ER.
   • E.g., Defective stairs EE must use to traverse btw the first and second levels of the office.
5. ER under the dual capacity situation.

Question 36

Dram Shop: COA

Answer 36

KNOW COLD

The Dramshop Act provides a COA for plaintiffs injured by a visibly intoxicated person or minor against a retail establishment that unlawfully sells alcohol to the visibly intoxicated person or minor if the unlawful sale is a proximate cause of the injury. Proof of “visible intoxication” requires objective manifestations of intoxication.

Question 37

Dram Shop: Tactics & Specifics

Answer 37

Find visible intoxication in the facts.

Only applies to liquor licenseholders.

π has 120 days to serve notice upon ∆’s. / 2 years to actually file action.

∆’s – Both: retail establishment licensee & minor or visibly intoxicated person.

Indemnification. If Licensee has to pay damages, they can get an indemnification judgment against the visible intoxicated person. NOTE! NOT MINORS!

Question 38

Wrongful Death: COA

Answer 38

Know Cold

“A plaintiff must plead and prove a tort that caused the death of the decedent. Note that the court must appoint a personal representative who bring the COA–as the plaintiff–on behalf of the decedent’s estate and any persons who are entitled to damages under the wrongful death statute.

Question 39

Wrongful Death: Pregnancy

Answer 39

A person who committs a wrongful/negligent act against a pregnant individual is liable for damages if the act results in a miscarriage or stillbirth by that individual, or physical injury to or the death of the embryo or fetus.

Question 40

Wrongful Death: Damages

Answer 40

Potential Damages

• Medical, hospital, funeral, & burial expenses (paid by estate)
• Pain & suffering, while concious btw injury & death
• Loss of financial support, society, and companionship. (NOT Loss of consortium)

Damage Collection

• If settlement & there aren’t minors, the π parties can determine allocations.
• If jury award & if minors or no consensus, judge holds an allocation hearing.
• Payouts (first to last)
  
  • Economic damages
  • Pain & suffering
  • Pay to family members
    
    • loss of support
    • society
    • companionship

Question 41

Michigan’s MSD Standard

Answer 41

Has the plaintiff alleged sufficient facts to prove all the elements of the COA alleged?

Question 42

Govt. Immunity: Negligent Operation of a Motor Vehicle & Police’s Duties

Answer 42

Police owe a duty to innocent passengers, but no duty to passengers who are themselves wrongdoers.

If the police car doesn’t physically touch/cause an injury, no negligent operation.

Question 43

Govt. Immunity: Sidewalk Exception

Answer 43

Govt. agency had knowledge of at least 30 days

Rebuttable presumption of fulfilling duty to maintain the sidewalk in reasonable repair if there was vertical discontinuity of less than 2 inches.

Question 44

Michigan Premises Liability Law

Answer 44

Landowner’s duty to a visitor depends on that visitor’s status.

• A “trespasser” is a person who enters upon another’s land, without the landowner’s consent. Landowner owes no duty to a trespasser except to refrain from injuring him by willful and wanton misconduct.
• A “licensee” is a person who is privileged to enter the land of another by virtue of the possessor’s consent. A landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved; the landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee’s visit. Typically, social guests are licensees who assume the ordinary risks associated with their visit.
• An “invitee” is a person who enters upon the land of another upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make it safe for the invitee’s reception. Landowner has a duty of care, not only to warn an invitee of any known dangers, but the additional obligation to also make the premises safe, which requires the landowner to inspect the premises and, depending upon the circumstances, make any necessary repairs or warn of any discovered hazards. Applies only if invited for economic benefit to landlord. If you’re not an invitee, you’re a licensee.

Question 45

Workers’ Comp: ER vs. EE Benefits & Tradeoffs

Answer 45

EE gave up right to recover noneconomic damages for pain & suffering and loss of enjoyment of life. No loss of consortium damages for spouse or children.

EE’s Bene’s include only:

• Wage Loss. Capped at 90% of the state average weekly wage for the previous year (generally 80% of the after-tax weekly wage).
• Medical Treatment. Includes: medical, surgical, hospital & dental services, appliances, chiropractic treatment, and nursing care. Indefinite as long need relates to work injury.
• Vocational Rehab. Limited to 52 weeks. Certain bene’s only.
• Re: Death. Only dependents are entitled to receive wage loss. Children of deceased conclusively presumped dependent. Spouse and other individuals must prove. If no children or spouse, only bene is a burial allowance of up to $6,000.
• Scheduled Injuries. Specific losses where a disability is considered to continue for a specified period and compensation is paid for that period, regardless of whether the worker is disabled or has a wage loss.

Question 46

Loss of Consortium

Answer 46

• Spouses
• Children (under age of 18) can sue for loss of consortium of parent–NOT parent can sue for loss of consortium of child.

No Loss of Consortium in Workers’ Comp