No Fault

Question 1

Suing 3rd party in Tort for Non-Economic Damages (INTRO)**

Answer 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.

Permanent serious disfigurement*:
- depends on the physical characteristics of the disfigurement ( ie. ugly scar on forearm, 10 inch scar on forehead) rather than its effect on P’s ability to live a normal life

Serious impairment of a body function**
- separate flashcard

INSURANCE CARRIER MUST DEFEND insured (D, even if D is at fault) in a 3rd party serious impairment/disfigurement claim and cover his liability up to policy limits*

Question 2

**Who decides whether the injured person has suffered serious impairment of body function or permanent serious disfigurement? - 3RD PARTY CLAIM FOR NON-ECONOMIC DAMAGES

Answer 2

**The issues of whether the 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

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 whether the person has suffered a serious impairment of busy function or permanent serious disfigurement

Question 3

Serious impairment of a body function [MOST HIGHLY TESTED]

Answer 3

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.

TEST COURT USES for serious impairment of body function***:

1. Is there an objectively manifested impairment that is observable or perceivable from actual symptoms or conditions
2. of an important body function that is a body function of great value, significance or consequence to THE INJURED PERSON ( subjective) that
3. affects the person’s general ability to live his normal life

“ie. woman breaks leg, needs physio & misses work for 2 months”

Question 4

Who can P sue in 3rd party claim?

Answer 4

P can sue the operator of the vehicle, and the owner of the vehicle is also liable if she consented (expressly or impliedly) to let someone use it ( joint & several liability)**

Question 5

3rd party claims - standard used

Answer 5

Comparative negligence standard, so if P is more than 50% at fault, can’t receive anything

Question 6

3rd party claims - Dram shop act

Answer 6

provides cause of action against retail stores that unlawfully sell alcohol to a visibly intoxicated person, if the sale then BECOMES A PROXIMATE CAUSE OF THE INJURY
- “visible intoxication” requires objective manifestations of intoxication ie. slur speech, poor balance.

Question 7

Contract Claims against Insurer**

Answer 7

An insured driver looks to his own carrier for personal injury protection (PIP) benefits. These benefits are due without regard to fault** These benefits include payments for lost wages ( 85% of avg weekly wages up to 3 years), medical expenses, replacement services (up to 20$/ day), and reasonably necessary rehabilitation expenses (reasonable in amount changed).

They are payable on a demonstration that they were incurred as a result of the accident.

No recovery for non-economic losses in 1st party claims

Question 8

1ST PARTY CLAIMS: Hierarchy as to who you can recover PIP benefits

Answer 8

1. Your insurer
2. Spouse’s insurer
3. Insurer of the vehicle owner of the vehicle occupied
4. insurer of the driver of the vehicle occupied