No-Fault Flashcards
What issues are testing No-Fault?
- A third-party tort claim
Ex: Car driven by A injures B. B is looking for non-economic damages (P&S, lost wages, etc.) - A first-party claim against insurance
3P Tort Claims: Is the injured person entitled to economic damages?
Who decides whether non-economic damages are recoverable?
Under MI law, the operator of a motor vehicle is liable for injuries caused by their negligent operation of the vehicle.
The No-Fault Act bars actions for non-economic damages unless the injury suffered was:
- Death
- A permanent serious disfigurement; or
- A serious impairment of body function
Who decides whether the non-economic damages are recoverable?
- Court must determine whether there is a dispute as to material fact re: the extent and nature of the injury.
- If no issue: Court determines injuries as a matter of law
Ex: There is no material dispute if there is no plausible way the injuries could have occurred, other than the accident.
Permanent Serious Disfigurement
Assess the characteristics of the disfigurement.
Examples:
- Ugly scar on any body part is enough
- 10-inch scar on forehead/arm is enough
- Small scar below lip likely not enough
Serious Impairment of Bodily Function
This is an objectively manifested impairment of an important body function, which affects the person’s ability to lead their normal life.
This is assessed by using the serious impairment threshold test, which must be used to recover noneconomic damages.
Serious Impairment Threshold Test
- Is there an objectively manifested impairment that is observable, from actual symptoms or conditions,
- of an important body function that is of great value to the injured person
- that affects their ability to lead a normal life (in their normal manner).
- Focus on how the injury affects the body function
- No time requirement for how long injury must last
3P Tort Claims: Who can the Plaintiff Sue?
- Operator of the vehicle; and
- The owner of the vehicle if she consented to let someone use it
They will be J&S liable.
Insurance is only required to defend the party and cover the liability up to their policy limits.
Comparative Negligence and Uninsured Plaintiffs
MI uses modified comparative negligence for noneconomic damages.
- No non-economic damages if Plaintiff is >50% at fault.
Uninsured Plaintiffs
If you were operating your own vehicle without the proper insurance, you cannot recover.
- Unless you were an out-of-state resident not required to purchase the insurance
What if the person that was driving was drunk?
Dram-Shop Act: You can recover against retailers who sell alcohol to visibly intoxicated people, if the unlawful sale was the proximate cause of the injury.
Look for slurred speech, lack of balance, etc.
First-Party Contract Claims: Intro
Under Personal Protection Insurance (PIP), an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, maintenance, or use of a motor vehicle as a motor vehicle.
Two Questions:
- Was there accidental bodily injury?
- Did the injury arise out of owning, maintaining, or using a motor vehicle as a motor vehicle?
Was there accidental bodily injury?
Fault is irrelevant (even if you were stunt driving).
However, injuries caused intentionally are not covered, unless you acted to avoid injury to persons/property.
Did the injury arise out of owning, operating, maintaining, or using a motor vehicle as a motor vehicle?
There must be a causal connection between the use of the vehicle as a vehicle and the injury.
The injury should be related to the transportation function of the vehicle.
Injuries w/ a Parked Car
There are three main exceptions where these can be covered. For each, the Plaintiff must show three things:
- That the exception applies
- That their injury arose out of the ownership, maintenance, or use of a parked vehicle as a vehicle
- And that the injury had a causal relationship to the parked car that was more than incidental or but-for.
The three exceptions are:
- Unreasonably parked vehicle
- Equipment exception
- Occupying, entering, or exiting
Unreasonably Parked Vehicle
Test: the car was parked in a manner that caused an unreasonable risk of bodily injury, which occurred.
Ex: parked on train tracks and injured = compensable
Equipment Exception
Test: injury was direct result of physical contact with equipment mounted on the vehicle, while it was being used or lifted onto or from the vehicle.
MI Supreme Court: a person unloading their personal effects upon arrival at a destination is using the vehicle for its transportation function.
Occupying, Entering, Exiting
Test: injured while in, entering, or exiting the vehicle.
