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Motorcycling & Law (October 2018)

Duggan Lawsuit to Declare No Fault Unconstitutional
by Dondi Vesprini

    As the old saying goes, there is more than one way to skin a cat.  In the case of Detroit Mayor Michael Duggan, perhaps the saying should be there is more than one way to cap or repeal Michigan No Fault benefits.
    Anyone who has read my articles with any regularity or anyone who has been significantly injured in an accident involving a motor vehicle likely knows Michigan No Fault benefits are those benefits that injured people are given by law and relied upon to provide continued wage loss and payment for medical related expenses for their care, recovery and rehabilitation after an accident.  More specifically, no fault benefits provide for up to three years worth of wage loss, unlimited medical expenses, unlimited attendant care benefits, up to three years worth of household chore assistance and items such as home modifications as needed.
    Those that have kept an eye on Lansing will recall that there have been endless attempts by the insurance industry to work to get bills passed in Lansing to significantly cap or otherwise repeal Michigan’s No Fault benefits which would be devastating to those injured in accidents.  Those who have kept an even closer eye on Lansing will also recall that Detroit Mayor Michael Duggan was one of those who spearheaded one such bill being House Bill 5013, which if passed would have capped attendant care benefits and subjected injured motorcyclists to no fault caps that a motorist may have chose for themselves on their own auto insurance.  (Motorcyclists claim their no fault benefits primarily from the insurer of the motor vehicle involved in the accident).  It is thus no secret that Mayor Duggan is an advocate for capping these benefits which are so critical to an injured person’s care, recovery and rehabilitation.  Fortunately, House Bill 5013 and other bills aimed at modifying/repealing No Fault benefits have not gained enough support to pass into law in Lansing.
    However, Mayor Duggan has crafted a new strategy to accomplish in the court room what he has not been able to accomplish in the halls of the State Capitol.
    On August 23, 2018, Mayor Duggan and eight individuals from Oakland, Washtenaw, Wayne and Macomb Counties filed a lawsuit in United States District Court against Patrick McPharlin as Director of the Michigan Department of Insurance and Financial Services seeking a declaration that the Michigan No Fault Act in unconstitutional.
    Essentially, the lawsuit alleges that because Michigan No Fault insurance is mandatory in order to legally operate a motor vehicle and is not available to consumers at a fair and equitable rate, it unconstitutionally deprives Michigan residents who are unable to afford to pay for insurance the ability to drive a motor vehicle without due process of law.  The lawsuit goes on to allege and gripe about the cost of auto insurance in Michigan being higher than that of our surrounding states which “put significant economic pressure on an already financially-strapped population.”  The lawsuit goes on to allege that “no city in the United States has auto insurance rates as high as the rates in Detroit.”
    You won’t find many people in the State of Michigan who will argue against the notion that auto insurance premiums in Michigan are steep.  In fact, at first blush, it may seem like a good idea to take the insurance industry to task to answer for why premiums in Michigan are as high as they are.  After all it the insurance companies themselves, and no one else, that set the rates for the auto insurance policies they sell that we as auto owners in the State of Michigan are required to purchase.  However, when the lawsuit is examined on a deeper level, it would appear that Mayor Duggan’s allegations as to why the cost of insurance is as high as it is are completely misdirected in a way that one can’t help but consider that there are other motivations at work behind the lawsuit.
    Instead of calling insurance companies to task to answer why they have chosen to set auto insurance premiums as high as they have and to look into long rumored practices of redlining or discriminatorily setting higher rates for those with a Detroit address; or instead of calling for the insurance industry to pull down the shroud of secrecy being how much unused money sits in the catastrophic claims fund so we as consumers can see if there is any validly to the insurance industries cries of going broke from having to pay No Fault benefits to injured people, the lawsuit takes an entirely different direction in its allegations.
    Instead of alleging the insurance companies themselves are unnecessary price gouging consumers, the lawsuit instead alleges the reasons auto insurance premiums are so high are because among other things, the No Fault Act includes unlimited medical expenses with no fee schedules for auto accident related services which allows doctors to charge “exorbitant fees for medical procedures and services.”  In a similar vein, the lawsuit alleges that there are no meaningful limitations on attendant care coverage or transportation providers.  This is misleading.  The No Fault Act has a built in protection for auto insurance companies in that regardless what a medical provider charges, the Act only requires the insurer to pay “reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery or rehabilitation”  This means that if a medical provider charges a fee for care that the insurer believes is unreasonably high, the insurer need only pay what it deems to be a “reasonable charge” for the care rendered.  One only needs to look at an explanation of benefits issued by an insurance company with payment of a medical expense to see that is very common for the insurer to pay less than the full amount charged by a medical provider in a no fault case.
    Instead of alleging there are no effective protections against auto insurers who price gouge or set discriminatory rates, Mayor Duggan alleges in his lawsuit that auto insurance rates are unreasonably high among other things because of “auto accident attorneys who encourage over-treatment and who pursue large PIP (No Fault) recoveries for minor injuries.”  I am an attorney who proudly represents injured motorcyclists on a daily basis against the auto insurers who have made it a routine practice to unjustly deny payment of no fault benefits.  When I read that allegation, I wondered to myself how much money insurance companies could save if they would simply pay the no fault benefits they owe to an injured claimant instead of denying the benefits, getting sued, getting ordered by a court to pay the benefits and then additionally paying attorneys fees and costs of litigation necessitated by its failure to pay the benefits it owed in the first place.   Further, allegations about attorneys who encourage over treatment is a straw man argument.   I would have to believe that any occasions of an unethical attorney who would encourage an injured person to “over treat” likely pales in comparison to the occasions of an unethical insurance company sending an injured person to an “independent medical exam” by a doctor of the insurance companies choosing who it knows will provide an otherwise injured person a clean bill of health as a basis for the insurance company to unjustly terminate any continued medical benefits.  Further, in so far as any claim for benefits may be advanced which is fraudulent in nature, Michigan law provides insurance companies with a solid defense.  Not only does the No Fault Act provide for an insurer to recover a reasonable attorney fee from the fraudulent claimant in defending a fraudulent claim but the Michigan Court of Appeals has held that if a claimant presents a no fault claim which in any respect is fraudulent that the claimant loses its entire claim for no fault benefits.  Contrary to what Mayor Duggan’s lawsuit may imply, insurers are provided ample protection from a fraudulent claim.
    Finally, any allegation that that attorney s pursue large no fault recoveries for minor injuries demonstrates a lack of knowledge regarding how the No Fault Act works.  There is no subjectivity to a no fault claim.  It is a claim for unpaid medical expenses, wage loss, hourly attendant care and household services which are subject to a flat rate.  Whether a person has minor or major injuries, the value of the no fault claim lies in adding up the economic loss.  Thus there is no such thing as a large no fault recovery for a minor injury.
    Mayor Duggan’s allegations as to why auto insurance premiums are so high reveal a theme common to his past efforts to pass legislation regarding no fault reform:  No Fault benefits must be capped or eliminated.  In fact, the relief sought in the lawsuit asks the Court to order the No Fault Act unconstitutional and either give the State six months to amend the No Fault Act accordingly and if this is not accomplished then to repeal the No Fault Act.  Either way, given Mayor Duggan’s past attempts to cap No Fault benefits in Lansing, this lawsuit appears a thinly disguised attempt to get a Court to do what he couldn’t get done in Lansing.
    As always, if anyone has any questions or if I can be of legal assistance to you or anyone you know dealing with this issue or who has been injured in a motorcycle accident, please don’t hesitate to contact me as I deal with these types of claims on a daily basis on behalf of injured motorcyclists statewide.
    Further, for those readers who are members of any motorcycle organizations, clubs or groups, if you would like to have me come out to your group to speak or give a presentation on the legal rights of an injured motorcyclist or on any specific topic that your group may be curious about, please don’t hesitate to give me a call at (248-569-4646) or shoot me an e-mail at Dondi@buckfirelaw.com.  I give presentations state-wide and there is never a charge associated with having me out.  I enjoy having the opportunity to come out and meet motorcycle enthusiasts from all parts of our State!



Motorcycling & Law (September 2018)

MRE re: Admissibility of Criminal Convictions
by Dondi Vesprini

As many may know, in large part of my practice as a trial attorney, I represent motorcyclists who have been significantly injured in accidents.  A standard proceeding in any lawsuit is the taking of depositions of the parties involved in the accident.  This is where the attorney’s representing the parties have an opportunity to sit down and depose, or ask questions to, the parties involved in the accidents.  The questions asked at a depositon of an injured motorcyclist often include, but are not limited to, topics such as general backrdound information about the person; any pre-exisitng health issues; the accident at issue and the person’s injuries and treatment.  One common questons that comes up is regarding the person’s criminal history.  I have been asked many times what type of criminal history is admissible in a civil trial.  Hopefully this article will shed some light on this topic.
Under the Michigan Rules of Evidence, for the purposes of attacking the credibility of a witness, evidence that the witness has been conficted of a crime is admissible if the crime contained an element of dishonesty or false statement, or the crime contained an element of theft, was punishable by imprisonment in excess of one year or death and the Court finds  under the law under which the witness was convicted, and the court determines that the evidence has significant probative value on the issue of credibility.
However, in either case, if more than ten years has elapsed since the date of the conviction or the release of the witness from the confinement imposed for that convicton (whichever is later) than evidence of the conviction is not admissible.  For example, suppose you are in the midst of a trial in September of 2018.  If the witness was convicted of an otherwise admissible crime in December of 2007, but wasn’t released from prison until December of 2008, even thought the conviction was over 10 years ago it is still admissible because the release date was within 10 years prior. 
If an otherwise admissible conviction at issue was the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure and the witness has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, the conviction is not admissible.
While it depends on the circumsntaces, evidence of juvenile adjudications (convictions when the person was a minor) are generally not admissible.
If the conviction at issue is pending on appeal, this fact does not render evidence of the conviction inadmissible.  However, in that situation, evidence that the convicton is on appeal is admissible, so as to make a jury aware of the pending appeal.
As always, if anyone has any questions or if I can be of legal assistance to you or anyone you know dealing with this issue or who has been injured in a motorcycle accident, please don’t hesitate to contact me as I deal with these types of claims on a daily basis on behalf of injured motorcyclists statewide.
Further, for those readers who are members of any motorcycle organizations, clubs or groups, if you would like to have me come out to your group to speak or give a presentation on the legal rights of an injured motorcyclist or on any specific topic that your group may be curious about, please don’t hesitate to give me a call at (248-569-4646) or shoot me an e-mail at Dondi@buckfirelaw.com.  I give presentations state-wide and there is never a charge associated with having me out.  I enjoy having the opportunity to come out and meet motorcycle enthusiasts from all parts of our State! 



Motorcycling & Law (August 2018)

SB 787 re: PIP cap option for age 65 and over
& SB 1014 re: AC caps
by Dondi Vesprini, Attorney

As has been the trend in Lansing, and as any who read my article with any regularity know, the insurance industry continues to support bills seeking reform or complete revocation of no fault insurance in Michigan which would be devastating to injured persons.  The latest incarnation are Senate Bills 787 and 1014 which were passed by the Senate on June 7, 2018.  The bills are tie-barred which means in order for one to pass into law, they both have to pass into law. 

Below is a summary of salient points in Senate Bill 787

-When an individual age 65 or over applies or renews an insurance policy, he/she shall select to cap benefits at either a $50,000.00 or keep it at no maximum limit (Under the current state of the law, there is no maximum limit) If the insured selects to cap benefits at $50,000.00, such cap only applies to the insured and the insured’s spouse.  This is important to motorcyclists because when injured in an accident involving a motor vehicle, the first in priority to pay the motorcyclists no fault benefits is the insurer of the owner or operator of the motor vehicle.  Under this bill a motorcyclist who is injured in a motor vehicle accident where the motorist has chosen to cap benefits at $50,000.00 is entitled to instead claim benefits from the auto insurer of the operator or owner of the motorcycle or if unavailable then with the assigned claims plan. This will inevitably lead to a greater number of persons age 65 or over in enrolling in Medicare or Medicaid if they elected the $50,000.00 and their medical bills in an accident exceed the cap. 

-An insurance company employee or agent is insulated from liability for damages caused by their conduct related to providing information or the choice of benefits selected by an insured.

Below is a summary of salient points from Senate Bill 1014

-Attendant care provided in the home by a family or household member is capped at “a reasonable and customary amount” for the first 56 hours of care provided per week and capped at $15.00 per hour for each additional hour of care per week.  These caps are to apply regardless of the level of care provided.  Also, benefits are capped at 24 hours per day, regardless of the number of individuals providing care.  

-No Fault benefits payable by the assigned claims plan are capped at no more than $400,000.00.  When viewed in conjunction with SB 787, this means that if a motorcyclist is injured in a motor vehicle accident with someone 65 years old or over and the motorist capped benefits at $50,000.00 on his/her auto policy and the motorcyclist or owner of the motorcycle had no auto insurance, then the motorcyclist’s no-fault claim would go to assigned claims and be capped at $400,000.00.  As a trial attorney who represents a large number of significantly injured motorcyclists, I can tell you that those who are significantly injured run a very good chance of surpassing the cap when you add up the medical bills, wage loss, attendant care and household services that are usually incurred in these types of serious accidents.  In those situations, the injured motorcyclist will have to fall back on their own health insurance, Medicare or Medicaid to pay for continued expenses incurred beyond the cap.  You can guess what that is going to do to health insurance premiums and the cost that we all pay towards Medicare and Medicaid.  

-Creates the Michigan Automobile Insurance Fraud Authority which provides support to programs designed to reduce the incident of auto insurance fraud.  However, the bill makes no mention of providing or offering any support to reduce the incidence of fraud perpetrated by auto insurers. 

In keeping with the trend, these bills offer nothing but savings and protections to the insurance industry while imposing nothing but caps and limitations to the injured person.

As always, if anyone has any questions or if I can be of legal assistance to you or anyone you know dealing with this issue or who has been injured in a motorcycle accident, please don’t hesitate to contact me as I deal with these types of claims on a daily basis on behalf of injured motorcyclists statewide.

Further, for those readers who are members of any motorcycle organizations, clubs or groups, if you would like to have me come out to your group to speak or give a presentation on the legal rights of an injured motorcyclist or on any specific topic that your group may be curious about, please don’t hesitate to give me a call at (248-569-4646) or shoot me an e-mail at Dondi@buckfirelaw.com.  I give presentations state-wide and there is never a charge associated with having me out.  I enjoy having the opportunity to come out and meet motorcycle enthusiasts from all parts of our State!