Three of the firm’s partners have been named “Top Lawyers” in metro Detroit for 2010 by DBusiness, Detroit’s premier business journal. William Day and Gerald Marcinkoski specialize in workers’ compensation law. Mr. Marcinkoski was also recognized for his expertise in appellate practice. Dennis Zacharski was designated as a litigator in the areas of insurance and personal injury law.

The Michigan Court of Appeals has overturned a trial court’s grant of summary disposition in favor of an insurance carrier with respect to a claim for uninsured motorist benefits. In Smith v MEEMIC Insurance, the defendant sought summary disposition of the plaintiff’s claim for uninsured benefits based upon an exclusionary provision of the policy. The exclusion precluded coverage when an insured obtained a settlement or judgment against an uninsured third party without the knowledge and consent of the carrier.

The plaintiff was involved in an accident with a vehicle that was believed to be uninsured. She filed a claim for uninsured motorist benefits. The defendant failed to respond to the plaintiff’s request to settle or arbitrate the uninsured motorist claim. The defendant received notice of the plaintiff’s intent to obtain a default judgment to which it also failed to respond. The plaintiff obtained a default judgment and filed suit against the defendant for uninsured motorist benefits. The defendant filed a motion for summary disposition based upon the exclusionary provision. Before the defendant’s motion was heard, the plaintiff had the default judgment against the third-party set aside. Despite the plaintiff’s corrective action, the trial court granted the motion and dismissed the case. The plaintiff then appealed.

The Court of Appeals unanimously reversed the trial court. The Court held that when the default judgment was set aside, it effectively became null and void so that the exclusion upon which the defendant relied did not apply. The Court recognized the public policy behind the exclusionary clause, which is to protect the subrogation rights of the insurance carrier, but noted that by the default judgment having been set aside, the defendant’s subrogation rights remained intact.

The Michigan Supreme Court has granted leave to appeal in McCormick v Carrier,which opens the door to the Supreme Court potentially overruling Kreiner v Fischer, 471 Mich 109 (2004), as it relates to the No-Fault Act’s serious impairment threshold for the recovering of non-economic damages.

The No-Fault Act defines serious impairment as an objectively manifested impairment of an important body function which affects a person’s general ability to lead his or her normal life. The Supreme Court in Kreiner narrowly interpreted the definition of serious impairment by finding that the impairment must affect the course or trajectory of the injured person’s normal life.

In McCormick,the plaintiff sustained a severe fracture to his ankle in a motor vehicle accident. As a result of the injury, the plaintiff was unable to stand or walk for a period of time and underwent two surgeries. One year after the accident, the plaintiff returned to work, although to a less strenuous job, but at the same rate of pay. He was able to golf and fish, but did so with considerable pain.

The Court of Appeals ruled in favor of the defendant, finding that the injuries sustained by the plaintiff did not affect the trajectory of his life. Initially, the Supreme Court denied the plaintiff’s Application for Leave to Appeal. However, on a Motion for Reconsideration, the Court granted leave. Justice Corrigan dissented on the basis that the law and facts of the case had not changed, and that the plaintiff was attempting to benefit from the recent replacement of a conservative justice with a more liberal justice.

Lacey & Jones is pleased to announce that two of the firm’s partners: Gerald Marcinkoski and Dennis Zacharski have been named “Michigan Super Lawyers” for 2009. This is the first time for this honor for Mr. Zacharski. Mr. Marcinkoski has been so recognized previously a number of times. Mr. Marcinkoski has also been appointed by the Governor, upon recommendation of the Michigan Supreme Court, to the State of Michigan Board of Law Examiners. Besides that role, Mr. Marcinkoski also serves as the Executive Secretary of the Michigan Self-Insurers’ Association and serves as a Special Assistant Attorney General. Mr. Marcinkoski has also received recognition as one of the “Best Lawyers in America,” “Best Lawyers in Michigan,” and “Best Lawyers in Metro Detroit.” Congrats to Gerald and Dennis!

In Johnson v Wausau Insurance Company, the plaintiff belatedly sought attendant care benefits under the No-Fault Act pursuant to a theory of fraud. The plaintiff claimed that delay was due to the insurer’s failure to advise the plaintiff of entitlement to the payment of attendant care benefits at an hourly rate. As the theory of recovery was based on fraud, as opposed to a claim under the No-Fault Act, the plaintiff alleged that the one-year back rule of the Act, MCLA 500.3145 was not applicable and did not prevent the recovery of attendant care benefits extending beyond one year from the date of service.

The Michigan Supreme Court’s decision in Cooper v ACIA has paved the way for a plaintiff to assert potential fraudulent denial of benefit claims as a means to circumvent the one-year back provision of the No-Fault Act. In Cooper, which involved a claim for attendant care benefits based upon the fraudulent misrepresentation of the insurance carrier, the Supreme Court held that the one-year back rule, as set forth in §3145, only applies to actions brought under the No-Fault Act and not to claims for fraud. A plaintiff suing under a theory of fraud could seek unlimited attendant care benefits. The Supreme Court, however, also cautioned that in assessing such a claim, special care must be used to determine whether a plaintiff’s reliance upon an alleged misrepresentation, an element necessary to a fraud claim, was reasonable.

In Johnson, the Court of Appeals followed the Supreme Court’s advisory and found that the plaintiff’s reliance was not reasonable. In so holding, the Court stated that plaintiff could have confirmed the insurer’s representations by consulting an attorney to establish what benefits were available under the No-Fault Act. By failing to do so, the plaintiff failed to meet the burden of proof as to reasonableness of the alleged reliance. The plaintiff has applied for leave to appeal to the Supreme Court.

The Michigan Supreme Court has recently ruled that any non-party must owe a duty to the plaintiff, for purposes of assessing the percentage of fault pursuant to MCLA 600.6304(8).

In Romain v Frankenmuth Mutual Ins. Co., et al, the plaintiffs sued several defendants, based upon a theory of negligence, for failing to remove toxic mold from their home. IAQ, the company that tested the air quality in the plaintiffs’ home, was named as a defendant, but was dismissed by the trial court, which found IAQ did not owe any duty to the plaintiffs. Thereafter, another defendant filed a notice of non-party fault as to IAQ. The trial court struck the non-party fault notice, again noting that IAQ owed no duty the plaintiffs. The Supreme Court affirmed the trial court’s ruling.

In reaching its decision, the Supreme Court narrowly construed the comparative fault statute, MCLA 600.6304(8). The comparative fault statute allows for the allocation of percentage of fault among parties, as well as non-parties. Fault under the statute includes a breach of legal duty that is the proximate cause of the damages. The Supreme Court then applied common law principles of negligence to interpret the term “proximate cause” as used in the statute. The Supreme Court then held that for a party to be found at fault, the party must have been negligent, which requires a duty owed to the plaintiff and a breach of that duty which proximately caused damages to person or property. Therefore, as comparative fault rests upon negligence, no fault may be allocated to any non-party which does not owe a duty to the plaintiff.

We are pleased to announce that Thomas H. O'Connor and Michael R. Sugar have become associated with the firm. You're invited to review their biographies in The Attorney section of our website.

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The Michigan Supreme Court has remanded a case to the Michigan Court of Appeals directing that court to determine if a health insurer provides services comparable to chiropractic treatment with respect to a no-fault insurance carriers’ liability under a policy providing for coordination of medical benefits.

In Michigan Rehabilitation Clinic v AAA, the plaintiff sought payment for services provided to numerous patients receiving treatment for injuries sustained in a motor vehicle accident. The patients all had no-fault insurance policies coordinated for medical expenses. The health insurance carriers, who were primarily liable for medical expenses, did not cover chiropractic treatment and the plaintiff submitted their expenses to AAA for payment. AAA denied the claims claiming that under the terms of the policy no obligation arises to pay for the services unless the health insurance carrier does not provide coverage for treatment comparable to the chiropractic treatment.

The trial court agreed with AAA and an the case was appealed. The Court of Appeals held that the issue was not whether comparative services were available through the health insurer, but rather whether the chiropractic treatment was reasonably necessary for the care, recovery, and rehabilitation of the injured person as provided in MCLA 500.3107. Both parties appealed to the Supreme Court.

The Michigan Supreme Court in lieu of granting leave, has remanded the case to the Court of Appeals. Pursuant to the remand order, the Court of Appeals is to determine whether the health insurer provides coverage for comparable services. However, the manner in which to determine whether comparable services exists has been left to the Court of Appeals. It is unclear at this time, how the Court of Appeals will determine the availability of comparable services. The Supreme Court has further directed in its remand order that the no-fault carrier will not be responsible for payment of the chiropractic expenses if other comparable services are available. If none are available, then the carrier will only be responsible if such treatment was reasonably necessary pursuant to §3107.

In the case of Rowland v Washtenaw County Road Commission, the Michigan Supreme Court  addressed the notice provision of the defective highway exception to the Governmental Tort Liability Act. 

With respect to a claim for damages under the defective highway exception, MCL 691.1404(1) provides that an injured party seeking to recover damages must provide notice of the injury and defect to the governmental agency within 120 days from the date of the injury.  However, two prior Michigan Supreme Court cases,  Hobbs v Department of State Highways and Brown v Manistee County Road Commission, held that a claim under the defective highway exception could proceed where the notice was not timely given, absent the showing of “actual prejudice.”

In Rowland, the plaintiff’s notice was provided 140 days after the injury.  The trial court and Court of Appeals both allowed Plaintiff’s claim to proceed despite the untimely notice, following the “actual prejudice” requirement set forth in Hobbs and Brown.  The Supreme Court, however, reversed, holding that a violation of the notice provision statute was a complete bar to plaintiff’s claim.  In reaching its decision the majority stated that the “plain language of the statue should be enforced as written ….”  The opinion, therefore, overruled the “actual prejudice” precedent.  The Supreme Court indicated that the “actual prejudice” requirement of Hobbs and Brown were wrongly decided and failed to uphold the Legislative intent of the notice statute. 

Justices Cavanaugh and Kelly issued dissenting opinions critical of the majority’s decision to overturn the holdings in Hobbs and Brown by failing to follow the doctrine of stare decisis regarding precedents of the Court.