Miller & Tischler, P.C.
28470 W. 13 Mile Rd. Ste. 300
Farmington Hills, MI 48334
(248) 945-1040
www.millertischler.com
|
|
M&T
No-Fault News
Summer 2016
|
|
|
|
|
Welcome to another edition of our Enewsletter. 43 years into our No-Fault insurance experiment, we continue to feel like we are on a roller coaster ride as developments continue to come fast and furious. This issue will summarize some of the most important developments.
Sincerely,
Wayne, Maureen and Milea
|
IMPORTANT LEGISLATIVE DEVELOPMENTS
We are pleased to report that no major legislative changes have occurred since our last report. However, efforts at dramatic and draconian changes continue. The most serious effort remains Mayor Duggan's appalling D-Insurance initiative. This would purport to cap No-Fault benefits at $25,000 in most cases, and up to $275,000 in only a few exceptional cases. This offensive legislation must be stopped.
Most recently, the legislature removed an $80 million tax credit that had inadvertently been available to No-Fault insurers for the last couple of years. In an effort to recoup this lost credit, insurers sought to amend several portions of the law, including portions relating to the Assigned Claims Plan (ACP). These efforts would attempt to further limit the availability of benefits to non-residents injured in Michigan motor vehicle accidents, but also to Michigan residents under the ACP. This effort has failed thus far.
The insurance industry has been relentless in its efforts to impose dramatic change on our No-Fault law. Please remain vigilant and in contact with the organizations that help protect No-Fault and with your legislators.
CASE LAW DEVELOPMENTS: PROVIDER RIGHT OF DIRECT ACTION IS IN JEOPARDY
The most important case law development this term involves the service provider's ability to sue a No-Fault insurer directly. This right of direct action allows service providers to bypass the injured patient and bring claims directly against the No-Fault insurer. This helps to preserve the provider/patient relationship, and is obviously a more efficient method of procedure.
The right of direct action was explicitly recognized by the Court of Appeals in 2002, and has been repeatedly confirmed ever since. However, the Supreme Court has never ruled on this issue.
Now, in the case of Covenant Medical Center v State Farm, the Supreme Court has granted leave to consider the following questions:
"(1) whether a healthcare provider has an independent or derivative claim against a No-Fault insurer for No-Fault benefits; (2) whether a healthcare provider constitutes 'some other person' within the meaning of the second sentence of MCL 500.3112; and (3) the extent to which a hearing is required by MCL 500.3112."
This leave order implicates a number of issues. But foremost among them is the continuing viability of the service provider's right of direct action. If the Supreme Court rules that there is no general right of direct action, our ability to pursue claims for service providers will be significantly hampered.
So what to do? One of the things that we advise our provider clients to do is to obtain "Assignments" from patients. An "Assignment" is a legal document by which the patient gives up his/her right to sue the No-Fault insurer for that provider only. Because Assignments of the right to receive benefits incurred in the future are not permitted under the No-Fault Law, valid Assignments must be limited only to benefits already incurred. We therefore recommend that Assignments be signed at the time of discharge. We believe that the following language will be effective:
"I, ____________________, do hereby assign my right to collect No-Fault insurance benefits, if any, for unpaid services rendered by __________ to date, to _______________ and attorneys operating on its behalf. This is not an assignment for benefits payable in the future or after the date of this document."
Because the Supreme Court's decision in Covenant is uncertain, we recommend that the Assignment document become part of your financial responsibility documents NOW.
ADMIRE CLARIFICATIONS
We continue to get questions about the terrible Admire decision (Admire v Auto-Owners Ins Co, 494 Mich 10 (2013). Admire holds that an insurer is not obligated to pay for a fully modified van. The Supreme Court in Admire reasoned that a No-Fault insurer is not obligated to pay for basic transportation that is not required as a result of the motor vehicle accident. Under Admire, modifications to an otherwise purchased van remain the insurers' responsibility, but purchase of the van itself is not a No-Fault benefit.
Even now, 3 years later, we routinely get questions about how an individual who is wheelchair bound can get the No-Fault insurer to pay for a fully modified van. Because of Admire, there are few situations where the base purchase price of the van will be covered by a No-Fault insurer. One such situation is where it is in the insurer's financial interest to do so. This can happen where the injured person's needs for medical transportation are so expensive that the cost of hiring a service exceeds the cost of paying for a fully modified van. Other than such very limited situations, it appears that we have only the dubious prospect of legislative relief from the Admire decision.
VERDICTS AND SETTLEMENTS
Mild Traumatic Brain Injury claim. Wayne Miller settled a case where a negligent driver collided with a driver parked at the side of the road to retrieve his mail. The liability problem with the case is that it is illegal to park facing traffic on the wrong side of the road. We were able to minimize the effect of this liability issue by gaining admissions from the defendant driver that he saw the headlights on our client's car from a substantial distance in advance. The collision resulted in a mild TBI with classic physical and emotional sequella, along with 2 cervical disc herniations. The matter settled shortly before trial for $300,000.
Post Traumatic Stress Disorder claim. Milea Vislosky represented a husband and wife who were seriously injured by a teenager who was running late for a date with his girlfriend. The teenager ran a stop sign and collided with our clients. Both husband and wife suffered various injuries including PTSD. Although often difficult to diagnose, Milea effectively marshaled the proofs and cross examined the Defendant's expert witnesses. The result: a $250,000 settlement shortly before trial.
M&T ABOUT TOWN
4/15/16. Wayne Miller spoke at the MAJ Rapid Fire seminar providing lawyers with an update on the No-Fault Law.
4/28/16. Maureen Kinsella spoke at the State Bar ICLE No-Fault Summit on procedural aspects of No-Fault claims.
4/29/16. Wayne Miller spoke at the State Bar ICLE No-Fault Summit on penalties under the No-Fault Law.
6/2/16. Wayne Miller spoke at the annual RIM seminar on Ethical Issues in Case Management Under the No-Fault Law.
|
 |  |  |
WELCOME ABOARD
Miller & Tischler would like to welcome the newest addition to our firm, attorney Amanda L. Winagar.
Amanda is a graduate of The University of Michigan (2008) where she received a Bachelor of Arts in Psychology and Criminal Justice and graduated with high distinction. She graduated, magna cum laude, from Western Michigan University Cooley Law School (2015) in the top 5% of her class. During law school, she received an Honor's Scholarship and was a consistent Dean's List and Honor Roll member. Amanda received the Certificate of Merit Award in the following courses: Workers' Compensation; Family Law; Juvenile Law; Interviewing, Counseling & Negotiation; and Pre Trial Skills.
Amanda has been a member of the State Bar of Michigan since 2015.
|
|
|
About Our Law Firm
Miller & Tischler, P.C., represents survivors of catastrophic brain and spinal injuries, their families and their professional service providers who are having difficulty pursuing their entitlement to receive No-Fault benefits for injuries sustained in motor vehicle accidents. We help our clients understand how their No-Fault insurance may coordinate with other kinds of insurances they have whether it be private health insurance, Medicaid, Medicare, Workers' Compensation, or Veterans benefits. We assist our clients in learning about and obtaining all of the benefits to which they are entitled, whether they be individuals or service providers. We also represent our clients with their auto negligence and wrongful death claims. In other words, we are a full service auto No-Fault law firm.
Let Us Help You.
|
|
|
|
|
|
|
|
|
|
|
|
|
