NOTE THAT all claims have a Statute of Limitations, a time within which the lawsuit must be filled or the claim is lost. This time varies according to the nature of the claim and may be as short as three months from the date of injury or discovery. Some claims also have a statutory "notice" period, requiring that you alert the defendant to your potential claim in advance. NOTICE PERIODS MAY BE AS SHORT AS 60 DAYS. You should try to consult with an expert on these issues at the earliest opportunity.

 

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Handling a serious claim may require patience, but modern lawsuits may take less time than you think. After the initial investigation, the steps are set by the Michigan Rules of Court and the court, having jurisdiction, will manage the related deadlines.

Your lawyer has a duty to investigate the facts and research the law to assure you have a valid claim before advising you to file suit. We never turn away people who have a meritorious claim because they cannot afford the cost of investigation; normally we pay it.

In the case of medical malpractice claims, in particular, the preliminary investigation is extensive and expensive due to "tort reform" rules.

In many circumstances we need to gather extensive records and consult with forensic experts in order to evaluate both "fault" and "causation."

During this phase we normally order medical records and related police, weather or public records and talk to important witnesses. We will usually exchange information with the responsible insurer(s) and commence negotiations if the adjuster is cooperative. Very often, valuation of your claim must await medical developments, stabilization and a reasonable prognosis.

NOTICE: In some situations, the courts require that written notice of a potential claim be sent to a potential defendant within 60 or 90 days of an occurrence. This notice requirement is particularly demanding in cases involving defects in public roads or buildings or in cases involving illegal alcohol sales. In medical malpractice, the defendant must be advised that suit is pending six months before the complaint can be filed. The notice to the medical care provider must specify, in great detail, exactly what he or she did wrong and how it injured the patient.

If after the investigation we decide together that it is appropriate to file suit, a lawyer must determine the right court where a complaint is to be filed. The complaint states the facts of the incident, the legal theory, and makes a demand for damages or relief.

In medical malpractice claims, the Complaint must be accompanied by Affidavits of Merit from witnesses with very particular credentials, attesting to the breach of the standard of care and your resulting damages.

Once the complaint is filed with the court, it must be properly "served" or delivered to the defendant. This can be done by mail or in person, depending on circumstances.

After being served, the defendant has approximately 28 days to file an answer with the court. The answer will state the defendant’s position and any defenses. Frequently the answer is simply a collection of "boilerplate" allegations and self-serving nonsense from the defendant.

After the answer is filed, the parties will begin the discovery phase of the lawsuit, typically consisting of five different areas:

Witnesses are interviewed or recruited and evidence is obtained to prove your case. As plaintiff, we have the burden to back up your allegations with testimony or physical evidence wherever reasonably possible, and to anticipate the defendant’s strategy. We employ skilled investigators, and frequently we engage experts to assist with the complicated or technical issues which often arise when someone has been injured by a defective product or by medical negligence. We may need to work closely with your doctor to set the timing of your case and to educate the jurors or insurer about the ramifications of your injury.

In death cases or in self-employment situations, we may need to hire experts in accounting or economics to evaluate, quantify , and explain your loss.

Each party may ask the other for written answers to questions relating to the case. Interrogatories must be answered under an oath within approximately one month. The answers must be supplemented if a material change occurs.

Each party may request the opportunity to examine evidence the opposing party possesses, or records relevant to the lawsuit held by others. For example, records of corporations, employees, doctors, insurers, public agencies, or individuals may be requested.

When a victim files a personal injury claim, he or she ir required to allow the defendant’s very extensive access to medical records and treaters. The defendant also enjoys the right to send the victim to a doctor of the insurance company’s choosing (called an "IME" doctor) for an explanation.

Parties and subpoenaed witnesses must appear and testify under oath before trial, if either party demands their appearance. A time and place are agreed upon and each lawyer can question the witness. If your deposition is requested, we will be sure to help you understand this procedure and prepare you to answer the questions. Depositions are given under oath, but informally, usually in a lawyer’s office, in the presence of a "neutral" private court reporter who prepares a transcript. Parties have the right to be present at all depositions.

A party has the right to inspect premises or physical evidence, and may require an expert examination, if it is relevant. For example, independent medical exams are often requested where personal injuries are disputed, and "reconstructive" experts often inspect vehicles and download "black box" data on speed and impact.

If you do not preserve key evidence in its original condition for the other party to inspect, your own evidence may be excluded or your case dismissed.

Usually within a few months, the court will hold a pre-trial conference, and set strict deadlines for the lawyers to disclose the names of witnesses, finish discovery and exchange information. At this point, normally the court will set dates for facilitative mediation, case evaluation and trial. You usually are not required to attend any procedure other than the facilitative mediation, but you will be advised of all hearings and events and are always welcome to attend.

Facilitative mediation is now routinely ordered by most courts. It is a process where the parties and their attorneys meet with a trained facilitator in an effort to settle the case. The facilitator remains neutral and attempts to resolve the parties’ differences in an informal setting.

Case evaluation has become a common method of settling cases and one which is normally required by the court. After about six to eight months (usually on the eve of trial), the parties are ordered by the court to meet and present their case to a panel of three neutral lawyers. In advance, the panel must be provided with the parties’ briefs and exhibits. Testimony is not allowed; you need not attend; the lawyers argue their clients’ positions; then the panel meets in private and recommends an award. The process usually takes less than 90 minutes.

Within 28 days, each party must accept or reject the panel’s recommendation. If all parties accept the case evaluation award, the case is settled. If a party rejects the recommendation, that party must do better than the rejected award at trial, or pay significant penalties. About 95% of all civil cases settle before trial - usually after facilitative mediation or case evaluation. (And after significant expense and effort have been incurred to demonstrate your capacity to prove your case and document your damages.)

After facilitative mediation and case evaluation, settlement negotiations may continue and the court will usually meet with the parties to urge settlement. If trial is necessary, it will occur one to four months later at the discretion of the judge and the court administrator. A trial focuses on these basic issues: liability (or fault), causation (the connection between the alleged fault and the injuries suffered), and damages (monetary compensation). Usually, the factor amount of insurance coverage and any settlement negotiations are not admissible.

The trial begins with the lawyers selecting a jury of six persons, after first questioning them about possible biases. All of the lawyers then make opening statements to the jury, explaining to the jury what the case is about. Next, the plaintiff presents her or his entire case.

Witnesses are placed on the stand in a sequence that will provide the jury a logical story of what happened, why the opposing party is responsible, what the injury is, and what the damages are. Then the defendant presents her or his entire case. The victim may call a witness or two to "rebut" the plaintiff’s claims. After the cases are presented, the lawyers sum up their case and argue to the jury why their client should prevail. These summaries are called closing arguments.

Finally, the judge will instruct the jury about the law and the jury will meet privately to reach a verdict. Neither the statutory "caps," the mediation amount, nor the fact of insurance coverage is admissible at trial, and if a party deliberately interjects this information a new trial will be ordered at that party’s expose.

Each party has the right to appeal a jury’s verdict. A judgment must be appealed fairly quickly, but the appeal process itself may take years. The client has no direct role in the appeal, although settlement and compromise discussions may continue between the parties and lawyers during this process. After the Court of Appeals has responded to the claim of appeal, the losing party may ask the Supreme Court to consider overturning the decision: that appeal is not guaranteed.

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We specialize in trial practice - literally "going to court." You may think all lawyers go to court and have courtroom skills. In fact, many lawyers rarely set foot in a courtroom. Trial practice involves experience with the rules of evidence, rules of procedure, negotiation and pretrial and trial techniques. Furthermore, as in playing poker, sometimes your best means of avoiding litigation and trial is to demonstrate the capacity and willingness to try your case.

Within the field of trial practice, we have specialized in certain areas of personal injury, employment and commercial liability law:

Each area raises special issues. We have written the following summaries to acquaint you with some key issues. However, these summaries are not a substitute for consultation with a qualified attorney.

Historically, taverns and bars were called "dramshops" and the Michigan law involving alcohol liability is almost as antiquated as the name applied to the law. The Michigan Dramshop law makes certain sales of alcohol illegal and allows victims to be compensated for damages caused by an illegal sale. Unfortunately, the law is grounded on a common law assumption that it is not negligent for unlicensed individuals to furnish excessive amounts of alcohol to an adult.

As a result, the dramshop laws are applied only to licensed retail vendors of alcoholic beverages (usually bars or convenience stores, but also, sometimes, wedding receptions and other "events"). It is a statutory criminal offense for unlicensed persons to provide alcohol to underaged drinkers. Nevertheless, most homeowners’ insurance policies exclude coverage for "criminal acts" and therefore there is no practical source of compensation to victims for injuries caused by drunken kids driving away from house parties.

If a homeowner serves too much alcohol to an adult guest, the activity is not "criminal" under Michigan law. It also is not "negligent," under Michigan law, no matter how egregious the homeowner’s conduct.

In the case of licensed sellers of alcohol, illegal activities include serving a minor, or furnishing alcohol to someone who is already "visibly intoxicated." The rules involving providing alcohol to a minor are pretty straightforward and allow for few excuses. Even "indirect" furnishing–through an intermediary–is illegal if the licensed vendor was aware of the age of the ultimate purchaser.

On the other hand, the rules involving a sale to an intoxicated person have been "reformed" to an extent that almost eliminates vendors’ responsibility. In the late 1980s, the Legislature decided that bars and taverns would owe no responsibility to the excessive drinker, or his family, if he or she died or was injured as a result of over-consumption. Prior to that "reform," the dramshop "provider" could be held responsible for a share of the fault in the drunk’s consumption, depending on circumstances. Today, no amount of responsibility can be placed on the licensed provider: the fault is considered to be entirely the drunk’s, regardless of circumstances.

Another basic "reform" that has trapped many innocent families and deprived them of the right to seek compensation was the "name and retain" provision incorporated into the law in the 1980s. To guard against any form of collusion, the dramshop law requires that the victims not settle their claim against the drunk prior to suing the at-fault alcohol provider: the "drunk" must be maintained as a defendant throughout any litigation. If the at-fault drunk’s insurance company makes a settlement offer and the victims accept it–even in a court-approved mediation or case evaluation, the tavern will probably be dismissed by the court, without regard to the victim’s intent or circumstances.

The reform statute also requires the victim family to give written notice to any potential illegal providers of alcohol within a certain number of days of hiring an attorney. Failure to give this notice within the statutory time period results in a dismissal of any subsequent claim, regardless of its merits.

When the so-called "Engler Majority" controlled the Michigan Supreme Court early in this century, it issued a number of rulings that further circumscribed who could sue and what could be recovered. The most significant of these rulings excluded blood alcohol evidence from toxicologists when offered to prove "visible intoxication" in many cases. For the past forty years, victims’ families had been allowed to demonstrate that a drunk would have shown visible evidence of intoxication, based upon the level of alcohol in his blood at the time of the illegal sale.

If the family had access to blood testing of the alleged drunk and could prove his drinking history, they could establish with expert testimony whether his intoxication would have been "visible" through slurred speech, bloodshot eyes, boisterous or belligerent behavior, loss of coordination, and other trademark signs and symptoms of alcohol consumption. Alcohol sellers are obligated to train their servers to recognize these symptoms and to withhold alcohol from intoxicated patrons. The legislation governing alcohol testing of motorists was even amended by the Michigan Legislature to allow victims’ families to introduce a drunk’s test results in a civil action.

The Engler Majority reversed these holdings, however, and excluded expert toxicology testimony based on the drunk’s blood alcohol level, unless the intoxication was confirmed by an eyewitness. In other words, a neutral expert cannot confirm that a drunk was in fact drunk when he was last served at a bar or convenience store–even if his blood alcohol is sky-high, unless the victim’s family can also provide the testimony of an eyewitness to the sale. Not surprisingly, most servers and convenience store clerks won’t admit to an illegal sale (if they even remember it), and most drinking companions or "regulars" from one stool over, also won’t "rat out" their neighborhood tavern. Unless the drunk was drinking in the company of unrelated companions who weren’t close friends, it is almost impossible to provide the corroborating testimonial evidence required by the Engler Majority. As a result, numerous drunk-driving fatalities resulting from illegal sales to clearly-intoxicated individuals have gone uncompensated, despite clear statutory language requiring that the victims’ families be made whole.

If the victims’ families stand any chance of achieving a fair outcome, their claim must be investigated thoroughly and early, while the scope of the tragedy is fresh in the minds of participants and observers. On some occasions, usually involving auto fatalities, the criminal investigation by police will provide a sound foundation for the victims’ civil investigation and notice.

In a minority of situations, alcohol consumption liability may also result from other circumstances surrounding how it was "furnished." For example, employment activities where alcohol consumption is encouraged may create exposure on the part of the employer. In this kind of situation, the liability of the employer is based upon the master-servant, or principal and agent employment relationship, rather than focusing on the legality of the alcohol provision.

Michigan courts have also refused to allow compensation to anyone who was complicit in the drunk’s intoxication. For example, if a drinking companion purchased any of the alcohol consumed by the drunk and is subsequently injured on the ride home, he and his family are denied access to the courts, as well.

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Employment Claims

Employment rights arise from a mixture of state and Federal rules. Most Federal employment rules arise out of equal protection and discrimination promises, while most employment rules of the State of Michigan are a combination of Republican-inspired "at will" employment, and hold over 1960 and 1970s-era legislative protections of employees from particular wrongful acts. The "at will" rules mean that absent a specific promise to the contrary, any employer can fire any employee at any time for any reason (barring proof a discrimination on an illegal basis).

Employees have the right to demand a copy of their personnel file. As noted, they also have the right to be free from illegal discrimination, sexual harassment or retaliation. Many of the latter rights have been significantly compressed and Michigan courts have also allowed employers a standing "excuse" based upon "legitimate business purposes."

EMPLOYMENT RIGHTS

Employment rights are a complicated combination of Federal statutes, state statutes and privately-created contract rights. When someone is terminated, mistreated or injured at work, each case must be evaluated on its particular merits.

Worker’s compensation systems

First, with regard to work injuries, there are two potential systems of compensation. If the injury arises in the course of employment, the worker should have alternative rights under the workers’’ compensation system. This is a state system created in the early twentieth century in most states to offer minimal protections to injured employees. It is based on substantial compromises. In essence, employers had enjoyed the right to avoid paying compensation to an injured employee if he or she was comparatively negligent, or assumed the risk of injury, or suffered injury as a result of the mistake of a co-worker. Together this "unholy trio" of defenses precluded compensation to most employees. In return for eliminating these defenses and paying all injured workers, regardless of fault, the employees’ right to sue the employer for negligence were sacrificed and the actual benefits paid were reduced to a marginal level of economic loss. In essence, all workers who suffer injury arising out of employment receive minimal compensation, but even the most deserving do not receive full compensation. Recent "reforms" have further reduced the compensation paid by giving the employer credit for other family income, other governmental benefits, and retirement interests.

If an employer purchases workers’ comp insurance, employees have no other legal alternatives against the employer or co-workers if there is an injury at work. If the employer has not purchased comp insurance, the worker has the option of pursuing comp or negligence remedies––but often this is a hollow right if the employer is undercapitalized and underinsured.

Work injuries involving people who are not co-workers

If an injury suffered at work is the result of an independent actor’s (not a co-worker) negligence, the employee may pursue a claim against the at-fault individual. In many cases, the only impact of workers compensation in this situation is a lien created by law that requires any settlement proceeds be used first to repay the comp insurer. In these cases, the comp insurer frequently becomes a "silent partner" in any injury litigation or settlement; some insurers work well and fairly with the employee and his or her attorney; others can be a very frustrating stumbling block. They are obligated to pay their share of attorneys fees and costs in the event of recovery.

Pursuant to tort "reform" changes, the at-fault in an injury case can defend by arguing that the employer was at fault. (This is frequently the case where machine guards have been removed, for example, or a common work area has not been properly protected.) Even though the employer cannot be sued because it has comp immunity, the jury is allowed to assign it a percentage of fault which the employee cannot recover. Another "reform" extends the employer’s immunity to include even intentionally and willfully dangerous behavior, if the employer did not purposely intend to injure the employee.

When the Republicans took control of the Michigan Legislature and courts in the 80s, one of their first "reforms" was to eliminate a worker’s proprietary interest in his job. Prior to that time, Michigan workers enjoyed the right to keep their job if the employer had used an implied promise of continued employment to induce better employee performance. Michigan was converted to an"at will employment" state where no matter how long he or she has been employed, an employee can be discharged "at will" unless there is an explicit written contractual promise to the contrary. It has been our experience that since this change in the law, most corporate employers have taken thorough steps to insulate themselves from any promise of continued employment. Still, a minority of firms do make express promises of employment either in employee contracts, employment handbooks or employment discipline policies. When someone is unfairly discharged, these documents must be examined closely for their impact on employment rights.

Even when employment is "at will," the employer cannot punish or discharge an employee contrary to law. There are a handful of laws that establish a federal or state public policy protecting certain employees under varying circumstances. For example, employees cannot be discriminated against on the basis of age, race, gender or ethnic origin. If a person is "handicapped" or "disabled" but still able to perform a job with reasonable accommodation, the employer cannot discriminate against her or him. Unfortunately, in the past decade "reform" decisions have significantly reduced the employees who can claim such protection by tweaking the definitions of various terms. For example, under Michigan’’s Handicap Civil Rights Act, the hospital’s duty to accommodate an R.N. does NOT include a duty to transfer her to an administrative job with fewer physical requirements, even if such a job is readily available. (True but likely to change)

There are other public policy bases for employee protection in addition to discrimination based on physical characteristics. They include whistleblower statutes, protecting persons who report illegal activity; actions to remedy retaliation for filing a workers’ compensation claim, and all forms of sexual harassment, among others. MANY OF THESE EMPLOYMENT CLAIMS REQUIRE THAT THE EMPLOYEE TAKE ACTION WITHIN A VERY SHORT TIME PERIOD––SOMETIMES AS SHORT AS SIXTY DAYS, EVEN, IN ORDER TO PRESERVE THE EMPLOYEE’S RIGHTS.

Under these statutes, employees usually enjoy the right to a workplace free of mistreatment, financial penalty or unfair employment terms. On the other hand, under recent decisions, if the employer responds appropriately to a co-worker’s or supervisor’s improper conduct, it may be protected from liability. Further, most such employment litigation rights are curtailed if the employer extends a bona fide offer of re-employment to the victimized employee.

Most employment rights statutes prohibit any unfair employment action, practice or discrimination, including failing to hire, failure to promote, subjecting the employee to a hostile workplace environment, and, of course, wrongful discharge. The law has held that an employee who is subjected to an intolerable work environment is "constructively" discharged, even if it is the employee who finally terminates the employment relationship.

Recent "reform" decisions have greatly expanded the defenses available to allegedly discriminatory employers. One of the most difficult to address is the near-total defensive claim that an illegal discharge was actually the result of some other legitimate business decision and necessitated by a legal, rather than illegal purpose, such as market-driven "down-sizing". It can be very difficult to address this form of defense if the employer’s management has made a cynical attempt to cosmetically cloak its actions with legal justification.

For example, the courts have recently begun to allow employers to justify illegal actions by resort to defenses "they would have had, if they had but known". As a result, many employers now flyspeck an employee’s history, files, and behavior in an attempt to sully the employee sufficiently to claim that its own improper behavior would have been justified, had it only known the "truth" about the victimized employee. Thankfully, most courts are reluctant to place their imprimatur upon this form of after-the-fact muckraking.

Employment Records

Pursuant to Michigan law, all employees have the right to demand and receive a full copy of their employment file. When an inappropriate act is believed to have occurred, such a written demand should take place immediately, in order to reduce the employer’s opportunity to "stuff" the file with backdated or otherwise fictionalized justifications. Employees may also dispute negative information which has been placed in their file, and may force the employer to include their employee’s written explanation of an incident or discipline in the file, as well.

Governmental Agencies

It should be noted that some employment abuses can be addressed, without litigation, through resort to labor-related governmental agencies. Where these rights and remedies exist, they may well allow an inexpensive method of addressing inappropriate actions such as abuse of wage and hour provisions, for example. Before filing a complaint with a governmental agency, it is almost always a good idea to discuss the employee’s rights and alternatives with an attorney who is thoroughly versed in this area of law.

Whenever the law grants a right to seek recovery for wrongdoing, it also places restrictions on how long the victim has in which to take legal action. If the victim delays too long in seeking compensation, he is said to have "slept on his rights" and his claim will not be heard. These limits are called "statutes of limitations" and they vary depending on the nature of the wrong that was committed. In many cases, there are other limitations on taking legal action, as well.

Failure to take action within the time permitted by law can be fatal to your claim. This is particularly true in the context of employment law. Virtually all federal employment laws require that employee begin the claim process by filing a complaint or "charge" with the United States Equal Employment Opportunity Commission (EEOC). The charge must be filed within 180 days of the date of discrimination. (The deadline is extended to 300 days under certain circumstances, but to be on the safe side assume the 180-day deadline). Failing to file a charge with the EEOC in a timely manner will forever preclude you from the bringing a claim under federal law.

The EEOC will conduct an investigation and determine whether there has been illegal conduct by the employer. They will then determine how to resolve the dispute. They may issue a "Right to Sue Letter" advising you to find a lawyer and pursue the action yourself. Typically, when a Right To Sue Letter is issued you have 90 days to file suit. Failure to comply with that deadline will also result in the loss of your claim.

Do not be discouraged if the EEOC decides not to file suit for you and issues a Right to Sue Letter. The decisions of the EEOC are most often based on their limited resources and personnel as opposed the merits of your case. Because they do not have the means to address every complaint of discrimination, the EEOC focuses on the most egregious conduct and work rules or conduct that affect a significant number of workers. Each year the EEOC issues Right to Sue Letters on thousands of perfectly valid claims.

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Whether the cause is arson, faulty wiring or improper handling of combustibles, a house fire is a catastrophe for the homeowners usually resulting in significant structural damage and loss of property. An appropriate policy of fire insurance is a must--and is a requirement if the property is mortgaged. All homeowners policies sold in Michigan must contain coverage for fire loss and state law requires that every fire insurance policy contains certain provisions spelling out obligations of both the insured and insurer in the event of a fire. This does not mean that all fire insurance policies are identical and it is very important that you discuss your particular coverage needs with a competent insurance agent and understand what your policy does and does not cover and what your responsibilities are in the event of a fire.

Policies typically include the following types of coverage for fire loss:

*Dwelling--protects against loss to the structure of the dwelling. A loss

which occurs to the dwelling is typically settled on a replacement cost

*Appurtenant structures--other structures on the property such as a

detached garage, are typically covered for up to 10%of the dwelling

amount.

*Contents--this coverage protects against lost personal property in different amounts, depending on the policy form. Covered loss of personal property is usually settled on an actual cash value basis. Actual cash value means the current
replacement value of property less depreciation. However, some companies do now offer replacement
cost on personal property.

*Special Items--most policies contain special limits on coverage for items such as money, jewelry, computers, coin collections or furs. These limits vary by company and typically do not increase the total amount of coverage under the policy.

If you have a fire, your insurer will require you to prepare an inventory of the home’s contents listing what items were damaged or destroyed. We strongly urge that you take the time to inventory the items in your home prior to any loss to aid you in the unfortunate event of a fire. If possible, list all personal items in your home and be as descriptive as possible listing the make of the item, the model, the year it was purchased and, if possible, save the receipt. Photographs or videotapes are often very helpful in this process.

Every fire policy issued in the state of Michigan provides that an action against the insurer must be commenced within one year of the loss, or within the time period specified in the policy, whichever is longer. The time for beginning an action is tolled from the time the homeowner notifies the insurer of the loss until the insurer formally denies liability. Statutes of limitations and other time limits found within the policy can be complicated and it is imperative that you have an attorney review your policy as soon after the fire as possible so that your rights are not lost.

When workers are hurt while on the job, they almost always have access to workers compensation. At the turn of the 19^th century, most states adopted "work comp" schemes to provide injured employees and their families some form of safety net. Before that time, workers could sue if they were hurt on the job, but almost all claims were defeated by the "unholy trinity" of defenses, each of which was a complete bar to any recovery: the defenses were comparative fault, assumption of risk and the fellow servant rule. Basically, one of the three applied to protect an at-fault employer in almost every situation.

As with most states, Michigan’s work comp scheme dropped these three defenses in return for strict limitations on recovery against the employer. Employees were covered for any injury that occurred in an employment setting, however the coverage was limited to the very basic necessities: usually medical coverage and two-thirds of net pay (less any Social Security Disability or other collateral source). As a result, the family of an employee injured while at work will not starve, however, in many cases, they will be consigned to living just at the governmentally-defined poverty level. Even if the employer was guilty of "gross" negligence, the injured employee cannot supplement the work comp benefits with a lawsuit against the employer. The only exception to the employer’s work comp "immunity" is for injuries intentionally caused by the employer.

If an injured employee thinks he may have a claim, he should talk to a knowledgeable expert promptly. Free consultations are available to allow the victim to confirm that his benefits are complete and that they are calculated properly. Usually, the victim must give notice of the injury-causing incident within a certain time period, or the right to make a claim may be lost.

There are times when the victim or his family may be entitled to a more complete recovery. For example, if the injury occurs in a motor vehicle, rather than in a factory, the victim is entitled to collect no fault PIP benefits to complement his work comp benefits.

Furthermore, regardless of the site of the injury, if there is a third-party involved in causing it, the employee may have a claim against that person or entity. In an industrial setting, the third-party may be a consultant who designed the workplace, a manufacturer who designed a machine or its guards, or a service firm that removed guards, maintained equipment, or created a hazard. Sometimes the injury involves employees of another entity who work alongside the injury victim, such as delivery or transportation contractors, for example, or maintenance specialists, plumbers, electricians, or other outside contractors.

Frequently, injuries occur on a site where construction activities are on-going, and a contractor has either acted negligently or failed to protect workers in so-called "common areas" where multiple workers are exposed to danger.

In all of these cases, if the lack of due or reasonable care on the part of a third-party is one contributing factor in causing the injury, the victim or his family may be entitled to a more complete legal recovery. This would include, for example, collecting the entire wage loss, or collecting for pain and suffering or for the loss of the victim’s society and companionship, if the injury is fatal. In all of these cases, the work comp insurer would be entitled to repayment of its out-of-pocket expenses from the third-party, through the mechanism of a subrogation lien.

If the worker is injured at a job site that is not owned and controlled by the employer, the victim may have the right to sue the premises owner if the work site was "hazardous." For example, a pipe-fitter sent to a factory to make repairs might have the right to sue the factory owner, if he was injured by an unsafe condition.

Today, a frequent source of employment-related injuries is chemical exposure. The law governing the use and distribution of chemicals and other toxic or dangerous materials is often complicated by issues involving the relative sophistication of the users and governmental or industry standards or regulations. A manufacturer may not be required to disseminate adequate warnings or instructions if it only makes bulk sales and then, only to experienced commercial users of its products.

In the past, Michigan courts have also treated "inherently dangerous activities" as a special category of liability. Originating in cases involving explosives and blasting, the inherently dangerous or "ultrahazardous" activity doctrines held the entity involved in these activities strictly responsible for all injuries that resulted. During the 1970s and 1980s, activities such as tower-climbing, electricity management, tree-cutting and other work at heights or with dangerous instrumentalities were all deemed potentially "inherently dangerous" [the ultimate decision was often left to the jurors]. In the 1990s, however, the Engler Majority of the Michigan Supreme Court responded to Chamber of Commerce and insurance industry pressure by severely limiting the situations where strict liability can be imposed.

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Insurance Disputes

SUMMARY

The past ten years have seen an overwhelming sea-change in consumers’ insurance rights in Michigan. The longstanding "tort reform" majority on Michigan’s Supreme Court which may have ended with Justin Taylor’s 2008 defeat at the polls, significantly contracted the rights of consumers, through decisions denying any duty to write "reasonable" policy language, denying any duty by insurance agents to competently advise their clients, enforcing short statutes of limitation (as short as one year) and allowing insurers to avoid liability for any injury-causing act that can be characterized as "criminal in nature".

Together, these provisions and decisions require consumers with potential insurance claims to get expert legal advice early on, in order to protect and properly document their rights.

INSURANCE DISPUTES

Despite recording record profits, there has been a steady decline in the legal duty of Michigan insurers to compensate injury or loss victims. Most insurance issues are governed by state law, and in the 80s and 90s, former Governor Engler made it a point to hand select Republican Supreme Court nominees who favored insurers over victims. His appointments included people such as the Chief Counsel of AAA, for example. During the tenure of this majority in Michigan’s highest court, by objective estimate, more than 95 percent of insurance-related disputes decided by the Supreme Court have resulted in rulings against consumers and victims. Some of these defeats could have been avoided if victims had promptly retained well-qualified counsel. Every form of insurance policy must be considered distinctly, as several stem from statutory schemes, however, certain similarities in Supreme Court interpretation are found in all.

COMPREHENSION AND INTERPRETATION

In the 1970s, the Supreme Court of California held unanimously that a given insurance policy was virtually indecipherable for most insures. The court introduced a concept whereby insurance policies were interpreted in accordance with a "reasonable insured" standard. In other words, if consumers would reasonably expect coverage under particular circumstances, the policy would be interpreted to provide it, even if an obscurely-worded exception in the fine print of a 20-page document mailed weeks after the policy was purchased would eliminate coverage. This concept had broad appeal and spread to most states over the next few years.

In recent years, however, the conservative majority of the Michigan Supreme Court made a concerted attempt to repudiate this "reasonable insured" standard. It has held, in a series of cases, that all insures are presumed to have read their entire policy, even if it is only comprehensible to an industry professional. Furthermore, they have rejected a line of decisions that would interpret ambiguities in the insurance contract against its drafter. They have refused to take into account the fact that insurance policy language is simply "imposed" on purchasers and is not "bargained for." Ultimately, the Michigan Supreme Court claimed that it did not have the power to assess the "reasonableness" of an insurance policy, and, therefore, all policies would be interpreted according to their explicit terms––even if that meant that purported coverage would be illusory.

INSURANCE AGENTS

The Supreme Court went one step further, a few years later, holding that the issuer’s agent owes no duty to consumers and owes its only duty––to sell as much insurance as possible--to the insurance company. The court therefore held that except in very limited circumstances, the promises and assumptions of the insured’s agent are not actionable if the agency fails to arrange the type or amount of insurance intended.

In the event of a failure of coverage, it is IMPERATIVE that the insured explore these matters with an informed insurance attorney before engaging in any correspondence or investigation. If a special duty was undertaken by the agent, it must be carefully documented before the insurance representatives can undermine it.

PARTICULAR INSURANCE SCHEMES

NO-FAULT AUTO INSURANCE

We have addressed particular no-fault insurance benefits and rights in greater depth elsewhere on this site. It is of some value, however, to highlight some of the particularities of the No-Fault scheme as differentiated from other Michigan insurance issues. For example, no-fault liability insurance is required to be coextensive with residual no-fault auto liability. Therefore, auto insurers must provide liability coverage for intentional acts (they do not have to provide personal injury protection for intentionally - suffered acts, however) whereas in most liability situations, coverage is excluded where there has been an intentional injury-causing act.

Recently, the tort "reform" majority of the Supreme Court held that none of the statute of limitations savings provisions of the Revised Judicature Act apply to no-fault personal injury protection benefits. From 1974 through 2005, it had been assumed by all practicing attorneys and sitting judges and Justices that the tolling provisions relating to infants and persons who are mentally incompetent applied to all injury actions. As a result of this recent decision not to give legally-disabled people extra time, many forms oftlineof protection owed to injured children are no longer required to be provided if the child’s parents fail to take immediate action to preserve the child’s claim.

In a recent decision by the Supreme Court of Michigan, the majority held that the family of a horribly injured little girl could not sue for thousands of dollars of unpaid benefits, even though the adjuster lied to the family about what was owed. In any case of serious injuries, the family of the victim must consult with an ethically-responsible lawyer on a timely basis.

The no-fault scheme also includes a "one-year-back" rule that is unique to automobile injuries. In 2005, the Supreme Court majority also reversed a nineteen-year-old decision that allowed consumers to wait for their insurer to make a decision on paying benefits before filing suit. Pursuant to the Lewis case, consumers could wait for one or several insurers to investigate their obligation and even wait for a written denial before the consumer was obligated to file suit. The "reform" majority reversed this holding––retroactively [meaning with immediate effect]––and held that any benefit not sued upon within one year of incurring the expense is waived by the consumer.

This decision presents a particular hardship to insureds who have paid for health coverage and no-fault coverage and who are not informed of disputes between the health care provider, the health insurer and the auto insurer. These disputes can easily result in twelve months’ delay in payment of a medical expense, and once that occurs an insured who has purchased two forms of health coverage may find that he or she cannot collect from either––and now owes the medical billing personally.

One last unique feature of the no-fault scheme is its combination of statutorily-required benefits and optional benefits. Statutory benefits cannot be waived or distorted in the policy or by non-cooperation of the insured to the detriment of the injury victim. On the other hand, non-mandatory coverages such as uninsured and underinsured motorist coverage can be provided and defined in any matter the insurer wishes. As a result, for example, under a recent decision, a one-year limitation on the collection of uninsured motorist benefits was upheld, even though the purchaser of the insurance was not aware within the one-year time period that the wrongdoer was uninsured. The wrongdoer was initially represented by an insurer who declined coverage after the one-

year anniversary: when the injured party immediately sought uninsured coverage based on this late declination, the court upheld the UM insurer’s reliance on its one-year time limit to deny benefits.

Because auto insurance is mandatory for drivers on Michigan roads, it also contains other unique provisions that can influence coverage. For example, insurers who cancel without providing the necessary statutory ten-day notice to the consumer are not allowed to deny coverage. On the other hand, a motorist who fails to purchase his own PIP and liability coverage may also be denied the right to sue the drunk who causes him catastrophic injury for pain and suffering. In essence, failing to "participate in the insurance scheme" results in a punitive denial of significant civil rights. While this provision is claimed to encourage motorists to maintain their coverage, in fact, most Michigan drivers don’t even know that it exists. It is simply a windfall to the insurance company who represents the at-fault driver.

If coverage has been promised by fraud or materially false representations, the insurance company may have the right to reduce the coverage it sold to statutory minimums, and to deny any payment to its insured.

Download Thompson, O'Neil & VanderVeen's auto injury pamphlet.    [WORD]    [PDF] 

HOMEOWNER COVERAGE

*Contents--this coverage protects against lost personal property in different amounts, depending on the policy form. Covered loss of personal property is usually settled on an actual cash value basis. Actual cash value means the current
replacement value of property less depreciation. However, some companies do now offer replacement
cost on personal property.

A frequent source of insurance disputes over the past ten years has been the progressive expansion of the "criminal acts" exclusion from liability coverage. Most insurance policies exclude liability compensation to victims arising out of a criminal act of the insured. In almost every state except Michigan, these policy exclusions are expressly limited to intentional criminal acts. A majority of the Michigan Supreme Court has held on several occasions over the past four decades––and as recently as 2004––that liability insurance is intended for the benefit of victims as well as of the insured, and is expressly intended to protect innocent people from "stupid" acts.

Despite these holdings, "reforming" courts have expanded this exclusion from coverage to preclude coverage even for negligent criminal acts. Negligent criminal acts, by statute, include "endangering a child", "negligently discharging a firearm", "discarding a refrigerator without disabling the door", "creating a disturbance" or even sheltering an infant in an "adult" bed, to name just a few. Utilizing these provisions, Michigan insurers have recently avoided paying compensation (and thereby failed to protect their insureds from judgment) for injuries or deaths caused by one child negligently putting out the eye of another child with a BB gun; hunting and gun accidents between both friends and strangers; the accidental suffocation death of a child in day care and all sorts of other negligently caused––but unintentional––"criminal acts" where it was assumed there would be insurance coverage.

Business Pursuits

Insurers have also been far more aggressive––since they perceive that they have a sympathetic court––in claiming an exception for business pursuits. Whether a kid is delivering pizza with his dad’s car, or a volunteer fireman is "earning" $10.00 for making an ambulance run, the involved insurer is likely to claim a business pursuits exception. In a rare victory for insureds, the appellate court recently rejected the claim that baling hay for sale was a "business pursuit" rather than a "normal farming activity". Any income-generating activity––no matter how nominal the resulting income--puts the insured at risk of this running afoul of exception, and of course, unless the insured can prove a special relationship, it doesn’’t matter that the selling agent assured the homeowner that he would have coverage.

Fire and Property Insurance

Fire and property insurance are required to conform to certain state rules and regulations. These same rules also allow for short time periods to provide notice or to document losses. In the event of a property loss or fire, for example, the insured may have to provide a Proof of Loss, under oath, within a matter of months. If this document must include all insured property and provide values, often in the absence of any surviving records or evidence, the insured is faced with a very difficult and time-consuming obligation. Yet, the failure to comply with the short notice period, or a significant mistake in its content, may result in the forfeiture of the entire coverage.

WE STRONGLY RECOMMEND THAT ALL PERSONS CREATE SOME FORM OF "RECORD" OF PERSONAL PROPERTY IN THE HOME. A PRACTICAL MEANS OF CREATING THIS PRE-LOSS RECORD IS TO PERFORM A CURSORY VIDEO INVENTORY OF EACH ROOM OF THE HOME, WHICH CAN BE PRESERVED OUTSIDE THE HOME AND SERVE AS AN UNUSUALLY HELPFUL REFERENCE SOURCE IN THE EVENT OF FIRE OR DESTRUCTION.

Fees, sanctions and "bad faith"

In most insurance settings, the insured cannot collect the fees and costs he or she incurs to procure coverage. One potential exception is No Fault coverage, under which, if benefits are unreasonably denied, the court may award fees and costs and twelve percent interest. On the other hand, if the disputed benefit has not been incurred because the insured couldn’t afford to purchase it without an insurance commitment, no fees will be awarded; and if the insurer can document any arguable excuse for defending the claim, it may be able to avoid fees. Careful documentation of the loss or of the insurer’s actions is absolutely imperative in order to enable the insured to prove that the insurer’s failure to pay is "unreasonable".

When litigation results in any context, including insurance issues, injury claims and no fault situations, certain court rules create the potential for fees or costs by operation of "offers of judgment" or a procedure entitled "case evaluation". In these situations, if one party declines a proposed and documented settlement and then fails to improve his or her position at trial, the Court may be empowered to award fees and costs from the time of the settlement offer forward.

In other states, and prior to tort "reform" in Michigan, insurers are or were obligated to pay claims in good faith and could be punished in civil actions for refusing to act reasonably to protect the insured. In Michigan, however, the Supreme Court held that these obligations run only to insureds who are wealthy enough to have assets from which an ultimate judgment could be collected presently, thereby denying most insureds and most victims of any recourse against unreasonable or extortionate behavior by insurers. This is particularly a problem since insurers have followed Allstate’s example and sacrificed their fiduciary duty to insurers for higher profits.

Statutes of Limitation

Whenever the law grants a right to seek recovery for wrongdoing, it also places restrictions on how long the victim has in which to take legal action. If the victim delays too long in seeking compensation, he is said to have "slept on his rights" and his claim will not be heard. These limits are called "statutes of limitations" and they vary depending on the nature of the wrong that was committed. In many cases, there are other limitations on taking legal action, as well.

In cases involving disputes about insurance coverage, the time limits for taking legal action can be very short -- often as short as one year but occasionally as long as six-years. it is important that you promptly contact a qualified lawyer to investigate your rights so that you do not lose your right to recover damages if your insurer refuses to extend insurance coverage to you.

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Medical Malpractice

WHAT IS MEDICAL MALPRACTICE?

If you or your loved one has suffered injury because a physician, nurse, hospital, or HMO failed to provide care meeting the standards that a medical care provider is expected to meet, you may file a medical malpractice lawsuit. Medical negligence can take several forms. It might be a medication error –– the wrong choice of drug or the wrong dosage, for example. Or, it might be a failure to diagnose a life-threatening disease or a mistaken diagnosis. Medical negligence may also be a mistake in surgery or in other medical care. Everyone, from infants in utero to seniors at home or in a care facility, is vulnerable to medical negligence, but by the same token, doctors don’t and cannot "guarantee a good outcome or cure."

To be liable for medical malpractice, a doctor, a nurse, or a hospital employing the professional must have been responsible to care for the patient and the doctor’s or care provider’s negligence must have caused injury. It’s important that you know that there are strict time limitations that apply to medical malpractice actions. If you fail to file suit within those time limits, you will lose your right forever to recover damages for injury. Michigan law also requires strict adherence to other procedures. You should retain a lawyer who specializes in medical malpractice cases in order to be sure that your rights aren’t lost because one of the rules of practice was ignored.

TYPES OF MEDICAL MALPRACTICE

Medicine is a complicated matter and attempting to hold a health care professional responsible for a bad outcome is equally complicated. A recent report released by the Institute of Medicine revealed that as many as 98,000 persons each year die as a result of medical errors. Mistakes in prescribing medicine alone account for the deaths of up to 7,000 people a year. Medical error causes nearly as many deaths every year as traffic accidents (43,450) or breast cancer (42,300). Medical mistakes can also cause significant injuries such as disability, disfigurement, brain injury, amputation, and birth trauma. Nevertheless, medical malpractice is about more than numbers, dollars or statistics. Medical error takes a heavy toll on the lives of helpless people and their families.

If you look under medical malpractice in the Representative Cases section of our website, you will get a feel for the types of malpractice claims that can result in fair compensation. Note that the post tort "reform" cases in Michigan make some meritorious complaints too expensive to pursue.

HOW CAN I HELP DETERMINE WHETHER I HAVE A MEDICAL MALPRACTICE CLAIM?

There are a couple of steps you will need to take if you believe that you or a loved one has suffered from medical malpractice. You will need to do the following:

You can discuss your concerns without charge and without obligation with one of our medical malpractice lawyers if you suspect medical negligence. Something in your medical chart may be recognized as medical negligence by a lawyer who is experienced and knowledgeable about medical standards of practice or by a medical consultant. Lawyers with expertise in medical negligence law can also help you evaluate your potential for damages.

WHAT DO I HAVE TO PROVE IN A MEDICAL NEGLIGENCE CASE?

It isn’t enough to prove negligence. In a medical malpractice lawsuit, you must also prove that medical negligence caused a specific injury or a wrongful death, and that damages or losses occurred as a result. As an example, you might accidentally drop a heavy flowerpot from a window. But if the pot merely hits the sidewalk and does not cause harm to anyone, no one could sue you for negligence. Similarly, a doctor or nurse might commit medical negligence without causing any significant injury. Or a patient may have a poor outcome because of an underlying problem and a "normal" complication, through no fault of the doctor.

Establishing this link can often be the subject of great controversy. Patients in a medical malpractice lawsuit are usually sick, injured, or in need of care even before any malpractice occurs. That’’s why they went to a doctor or a hospital in the first place. So you will need your own expert –– a doctor who practices "the most relevant specialty" –– to help explain to the jury what part of the injury, and thus the patient’’s damage or loss, is due to the patient’’s original condition and how much is due to the medical negligence.

(a) non economic damages, such as pain and suffering. If the patient died, damages can be claimed by family members for loss of society and companionship, and these are "non-economic" damages, as well.

(b) economic damages, such as medical expenses, household services, and loss of earning capacity.

Laws were passed by the Michigan State Legislature in 1993 limiting the amount of non-economic damages that can be obtained in a medical malpractice lawsuit. These limitations are called "caps." Economic losses in a medical malpractice lawsuit are not, however, subject to any limitations or "caps." The jury is not told of the "Caps" or of insurance coverage or limits.

A higher cap applies to catastrophic injuries.

WHAT ARE THE LIMITS FOR FILING A MEDICAL MALPRACTICE LAWSUIT?

All medical malpractice cases seeking damages for personal injuries arising out of medical negligence must be filed within a certain period of time established by the State Legislature.

The time limits are called Statutes of Limitations. In Michigan, a Notice of Claim must be filed first, and there are strict time limits for filing. In general, you have two years from the date the medical malpractice occurred within which to file a medical malpractice lawsuit or, more precisely, to file your Notice of Claim. Because it takes time to properly examine your medical records and to evaluate your claim, it is important for you to consult a medical malpractice attorney as soon as possible if you believe medical malpractice has occurred.

Our attorneys see many cases where patients or families have come to us too late. The sad thing is that some of these people had perfectly legitimate and meritorious medical negligence claims. If you don’t act to protect your rights in a timely manner, however, your claim will be barred forever.

Recently, the tort "reform" Justices held that if a doctor makes the same error successive visits (contains the wrong script, for example, or fails to investigate a skin lesion) the statute of limitations begins to run on the date of the first error. This illogical decision denies may seriously aggrieved patients of their right to compensation.

There are a few exceptions to Michigan law that allow additional time after the two year period has expired. These exceptions are only applicable if in this situation, a patient "discovers" the medical negligence after two or more years have passed. The patient has six months from the date of discovery to file a medical malpractice lawsuit or Notice of Claim. Suppose, for example, that four years after surgery because of a routine x-ray a patient discovers that a foreign object such as a sponge was left in the abdomen. The patient still has the right to file a lawsuit, as long as that lawsuit or the Notice of Claim is filed within six months after the patient has "reason to suspect" the negligence of the surgeon. Six months is a very short time.

A common example of the delayed discovery involves the delayed in which to follow the tort "reform" requirements for following suit. Once the patient learns that the cancer was missed, the six month period starts to run in most instances. Because we are willing to consult with you and help you evaluate your claim without charge, you have nothing to lose by consulting us without delay. Our advice to you is, "Don't wait"!

Medical malpractice can cause the death of a loved one. If a patient dies as a result of medical malpractice, the Wrongful Death Act allows family members to file a lawsuit. The time limits that apply to other medical malpractice cases don’’t apply to wrongful death cases. The laws in this context are even more complicated, but generally a Personal Representative must be appointed within two years and he or she will have 18 months to file a Notice of Intent and 24 months in which to sue.. Loved ones may not be aware of a potential medical malpractice claim at the time a probate estate is opened. They may only be worried about handling the property and affairs of the estate. But all that time, the statute of limitations is running nevertheless! If you have any concerns that your loved one died as a result of medical malpractice and a probate estate has been opened, you should promptly consult a medical malpractice specialist.

CONTACT US

SUMMARY

Landowners are only responsible for injuries suffered on their property if they are "negligent" or act without "due care". Furthermore, even a negligent landowner’s duty may be limited if the injured person was not "invited" to the property: if a visitor is merely tolerated or if he or she is a trespasser, the landowner’s duty may be minimized. Recent tort "reform" decisions have also limited the liability exposure of landowners where the dangerous condition they have allowed would be "open and obvious" a "normal" person or "casual inspection."

These rules make it even more imperative that persons injured on the property of another seek experienced legal advice before discussing their claim with the landowner’s insurance representative.

Victim Status

"Trespassers"

If you control property, your responsibility for injuries suffered on the property is normally a function of the status of the person injured. In short, if the person injured is a trespasser, the landowner owes very little duty: basically, just the duty not to intentionally hurt the person. There are potential exceptions for situations such as the circumstance where children are drawn to the property by an "attractive nuisance".

If the person injured is tolerated on the property––say a social guest or a salesman––then the person controlling the property is normally responsible for dangerous conditions that the landowner actually knew about in advance. Under a recent decision, places such as churches fall into this social guest category; previously, they were analyzed more like a public building held open to "invited" visitors.

"Invitees"

If the injured person is actually a business invitee, that is, someone who enters the premises with permission for a business purpose, the person in charge of the land owes a duty to protect the victim from dangers the landowner knew of and also from dangers that the landowner should have discovered.

This basic "status" determination of liability, focusing on the nature of the visitor, is subject to many exceptions and exclusions.

It is important to note at the outset that premises liability must be distinguished from active negligence. "Premises liability" is an obligation to the injured visitor that arises from the control of the property and from hazardous conditions which exist on the property. Negligence based upon a particular unsafe act that causes injury is a different issue governed by different rules focused upon "reasonably safe" behavior or negligent behavior. For example, the Court may hold that a landowner is not responsible for a dangerous tree, or its removal, but that the person who owned the land is responsible for negligently falling it.

Governmental Immunity

One of the most basic exceptions to premises liability is for governmental immunity. There is a specific statute addressing when governments will be responsible for injuries suffered on governmental property. Basically, the Statute has been interpreted to exclude injuries suffered out of doors or caused by defective design. Only "maintenance" problems result in liability. {Keep in mind that a governmental actor may still be responsible for active negligence.} This doctrine of "sovereign immunity" is a holdover from the ancient days when English citizens could not sue the King in the courts that he had established and sponsored. There is little basis in modern thought or public policy for continuing to recognize this exception for legal responsibility, however, Michigan legislators have actually expanded governmental immunity in several situations during the past two decades of "reform".

"Open and obvious"

The major exception to premises liability has in recent years centered upon the "open and obvious" doctrine. Historically, if a landowner knew of a potential hazard, he or she could meet the legal duty to visitors by warning them of the hazard. Such a warning was not required, however, if the condition was so obvious that it should have constituted its own warning. For example, if I had a neon sign at eye level, I would not need to warn visitors of the presence of the sign: the condition constituted its own warning and an additional "warning" would be both redundant and perhaps even a distraction.

In the past few years, this logical exception to the premises occupier’s duty to warn of a known hazard has been expanded by tort "reformers" to eliminate an entire set of duties to visitors. Instead of merely constituting an exception to the landowner’s duty to warn, today if a hazard is characterized as "open and obvious", it may relieve the landowner of any duty to eliminate the hazard.

The description of "open and obvious" adopted by the "reforming" majority of the Supreme Court to exclude liability has focused upon the question of whether a reasonably diligent person "could have" discovered the dangerous condition if he or she had looked. The Court characterizes this as an "objective" test, meaning that it doesn’t take into account idiosyncracies of the situation or the observer/victim. The question of why a reasonable person would allow such an unsafe hazard to exist is not considered.

The adoption of this "objective" test and analysis has lead to many unfair and seemingly absurd outcomes.

Statutory Duty

About the only reliable exception to the Supreme Court’s "open and obvious" immunity from premises liability involves situations where the premises occupier is under a statutory legal duty to make the location safe. As a result, landlords in urban areas who must provide a reasonably safe apartment, for example, will still be held to the historical duty to eliminate unsafe conditions. On the other hand, Governor Engle’s activist judges have held that violation of building codes and city ordinances do not establish a duty!

On occasion, the injury victim can invoke the doctrine of "nuisance" to establish premises liability. Because this doctrine is an old and independent cause of action, the Supreme Court has imposed some arcane rules to limit "nuisance" liability.

Medical co-pay

Most insurance policies have a "medical co-pay" provision under which a certain level of medical expense will be paid to persons injured on the insured’s property, regardless of fault or cause. Previously, injured persons enjoyed standing to secure payment of this benefit if they did not wish to pursue a fault claim against the premises owner. A fairly recent "reform" decision held that only the premise owner can request that this payment be made and that the injured visitor does not have "standing" as a third-party beneficiary, to enforce these contract provisions. This has virtually eliminated one modest source of medical expense payments for victims (although homeowners continue to pay the premium for coverage).

As may be apparent from reading about the current state of premises liability in Michigan, the Supreme Court’s invention of new defenses and emphasis on historical concepts only where they limit or exclude liability, have placed a premium on legal "gamesmanship". It is foolhardy for an injury victim––or an attorney not well versed in this area––to attempt to manage a premises liability claim without specialized help.

Statutes of Limitation

Whenever the law grants a right to seek recovery for wrongdoing, it also places restrictions on how long the victim has in which to take legal action. If the victim delays too long in seeking compensation, he is said to have "slept on his rights" and his claim will not be heard. These limits are called "statutes of limitations" and they vary depending on the nature of the wrong that was committed. In many cases, there are other limitations on taking legal action as well.

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When a person is injured while engaged in a recreational pursuit, different kinds of issues come to the surface. Initially, it can be tougher to secure a fair recovery if the jury thinks a person was hurt while "frolicking"-- as opposed to working. There is simply less empathy and less sympathy for someone engaged in leisure time activities, and an unstated feeling that the victim has "assumed the risk" of injury. To overcome this form of prejudice can make for a more difficult proof and persuasion problem when compared with other injury claims.

In fact, however, in most examples of recreational activity, there is no distinct separate legal standard, and people are simply required to exercise "due care" for their own safety and the safety of others. The Engler Majority of the Supreme Court did significantly increase one defense to negligence, where a participant is injured while engaged in an organized sporting activity. The four Justices who controlled Michigan Supreme Court decisions at the beginning of the 21^st Century expanded a decision granting immunity to participants in sporting activities to include a broader class of potential defendants.

The original decision by an earlier court had held that when participants voluntarily engage in an organized sport, they cannot complain if they suffer an injury that can flow naturally from the participation–even if there is negligence involved. Ice hockey provides a simple analogy: if a player "negligently" and clumsily checks another player, causing injury, he cannot be held responsible. If, on the other hand, he intentionally raises his stick and bludgeons another player, the victim has not acquiesced in this kind of injury, which is not inherently and a foreseeable part of "the game."

The Engler Majority expanded this form of immunity to deny protection or compensation to children injured during horseplay, and to injuries suffered in a number of casual recreational pursuits. In order to secure a recovery in any context where the Court expanded immunity, the Michigan victim must now prove a form of "aggravated" or gross negligence tantamount to willful and wanton misconduct. Recently a local court used this construction to immunize one boy’s behavior when he fractured a younger boy’s neck by shoving him and the skateboard he was riding into a gymnasium wall.

In a number of fields of activity, the Legislature has granted special protections or immunity to particular individuals as a public policy matter (or because they have exceptional political pull). The first of these special interest statutes may have been

Under this statute, a person who is injured while on the land of another for a recreational purpose, cannot sue if he is injured as a result of a natural hazard on the land. This statute was enacted nearly fifty years ago, and our attorneys published two analyses of the act in the State Bar Journal. The act was intended to assure that vacant land would remain open for public recreational activity, and that owners who allowed access to their land would not be penalized. By its terms it does not apply in any situation where the victim has paid for access to or entry upon the land.

Unfortunately, the Act has been expanded well beyond its original intent in the past two decades. Today it may be applied to an injury suffered even in a suburban backyard, if the context of the injury is recreation. It has mistakenly been applied to non-natural hazards and to deny compensation to persons invited on the land and not merely "tolerated." Furthermore, it may protect from suit a utility easement holder who does not even enjoy the right to possession of the land (or the right to allow or prohibit entry). Application of the act is sought most often in northern Michigan in the context of snowmobiling and other motorized vehicle activities. If the Act applies, the usual "gross" or aggravated negligence standard must be proven to establish fault.

A number of commercial enterprises have secured special interest protection from lawsuit injuries. In some of these cases, any safety duty is eliminated entirely, while in other cases, the victim is held to the ubiquitous "gross negligence" standard. For example, in the case of injuries suffered on a ski hill, the operators’ duty to erect barricades or other fall protection around obstacles has been virtually eliminated. In the case of most of these statutory schemes, the legislation has not been carefully drafted and a careful examination of the statutory language and the facts of the injury may lead to surprising and unintended results.

For example, the Ski Area Safety Act has immunized several northern Michigan ski areas from any responsibility for recent deaths suffered by young people who collided with unbarricaded lift towers or stanchions. Prior to its enactment, and in states that do not have a similar act, there is a genuine effort to protect skiers from a collision with these unforgiving artificial obstacles. On the other hand, since they strap nothing to their feet in order to participate, persons injured while "tubing" at a commercial ski hill retain their full measure of protections in the event of injury.

Roller skating rinks and horse stables enjoy a similar form of protection, as do several other forms of organized recreation.

Most of these commercial recreational areas require patrons to sign away their injury rights in advance. If the patron is a juvenile, parents or guardians are asked to sign away the kids’ rights, and most of us oblige. For many years, and in many other states today, these releases are considered to be against public policy and unenforceable. Since the advent of tort "reform" in Michigan, however, our courts have shown an increased willingness to recognize and enforce these waiver documents, at least insofar as they are applied to consenting adults. They are still considered inappropriate and against the state’s public policy when applied to children, and some organizations, such as the Girl Scouts of America, will not allow children to participate in any event that requires such a release. It will not surprise you to learn that these documents are not enforced where a victim can prove aggravated or "gross negligence," but it does surprise most people to learn that the releases are effective to immunize the operators from their own clear fault or breach of due care.

Each year we encounter at least one or two victims of very serious injuries, suffered at the hands of the negligent operator of a snowmobile or 4 x 4. While these cases do not pose a distinct legal standard of liability, they frequently present an obstacle to fair compensation. Most at-fault operators are only collectible to the limit of their Homeowners Insurance Coverage and have no separate coverage on the recreational vehicle. In turn, many insurance policies provide coverage only if the vehicle is operated on the insured’s own real estate–and don’t provide coverage for injuries suffered on a road right-of-way or the land of another. As a result, we have observed that many tragically injured victims have no recourse for permanently disabling injuries. Many times in this kind of case, the investigation of insurance coverage is more important than the investigation of the actual injury.

We cannot emphasize enough that because of the awkward wording of these various statutes, the complicated phrasing of many insurance policies, and the highly fact-specific court decisions in many relevant cases, a serious injury suffered while engaged in a recreational activity must always be researched and investigated carefully. No one should ever jump to the conclusion that a particular event is or is not actionable.

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Michigan law has a statute governing when someone can sue as a result of a "wrongful death". All claims under this statute are brought by the Personal Representative of the decedent’s Estate after it is opened in the Probate Court. There are very few situations (dramshop claims and no fault PIP claims are the primary exceptions) where family members can bring a suit in their own name for damages suffered.

The Death statute defines who can collect damages for a death. The class of "Interested Persons" includes basically immediate family members, heirs under a will and children of a spouse. Normally only one death claim can be brought to court and the P.R. of the Estate must represent everyone who suffered a loss.

Suit can normally be maintained for all economic losses suffered by reason of the death and for non-economic losses to the maximum of any "cap" that may apply. Non-

economic damages are essentially the "loss of the society and companionship of the decedent" during the time the Interested Person would have expected to share with the decedent.

Money recovered by the Interested Persons is normally not available to satisfy creditors of the decedent. "Final expenses" for funeral and burial have priority of payment under the Action.

WRONGFUL DEATH

The wrongful death act

When someone dies as the result of another person’’s wrongful conduct, the potential civil liability of the wrongdoer is defined by statute. Sometimes this statute must be interpreted in conjunction with other laws addressing the particular behavior of the wrongdoer. In other words, one must take into account the wrongful death act and the no fault act or the medical malpractice statutes or the product liability or dramshop acts, to name several sources of liability.

It must be emphasized that no one is responsible for a death if they are not guilty of some form of wrongful conduct. For example, a lay person who responds to an emergency and accidentally causes a death is probably not responsible for the consequences of his or her rescue attempt, even if it is unsuccessful due to a mistake of the rescuer. That can be true for so-called Good Samaritan professionals, as well.

Michigan almost never imposes punitive damages for a wrongful death. While some states allow punitive damages in an attempt to deter dangerous behavior, Michigan law has long rejected that approach in all but a handful of situations. Normally, Michigan allows only "compensatory" damages for injuries and wrongful death.

Except in the case of the dramshop act (the act governing liability of alcohol sellers), all wrongful death actions must be pursued by the Estate of the decedent, through the Personal Representative. Only under the dramshop act does Michigan allow the individual family members of the decedent to bring a direct action such as is allowed in California, for example. In Michigan, the Estate must act on behalf of the entire family in a single action. Because the Estate must combine all family members’’ claims into a single action, there are due process and notice requirements and the Personal Representative and his or her attorney owe a fiduciary duty to surviving family members who are called "Interested Persons"..

The statute defines which persons can recover damages when there has been a wrongful death. Basically, damages can be broadly defined in three general categories:

1) damages to the Estate for the person’s suffering before death and for the medical, funeral and burial expenses;

2) damages suffered by the decedent’s dependents for loss of support in the form of lost wages or other "tangible things of economic value" including domestic services; and,

3) damages collectible by the immediate family or beneficiaries under the will for loss of the society and companionship of the decedent.

While economic damages are fairly straight-forward and subject to measurement, non-

economic damages are more vague and difficult to evaluate. As a general rule, they are quantified by the jury after recommendations are made by the adversary attorneys. The attorneys are not allowed to provide them with examples of recoveries in other legal cases. Also, there are no formal "yardsticks" by which non-economic damages are measured, although under certain statutes there are "caps" on the amount of non-

economic damages. These caps may vary by the type of cause of action and are frequently indexed to inflation.

The jury is usually informed that it should take into account two basic factors in assessing the loss of the society and companionship of a decedent. The first factor is the "closeness" of the relationship between the survivor and the decedent. This includes both their legal relationship and the factual ties between them. In other words, it a question of consanguinity, but also a question of how often they saw each other and how much the decedent will actually be missed. For example a sibling who lived under the same roof as the decedent might be expected to suffer a greater loss than a sibling who had moved away decades before and rarely had contact.

The second factor which the jury must consider is the amount of time which the premature death has denied to the survivor. A decedent’s grandparent who has a life expectancy of only ten years, for example, would not normally recover as much damages as would a sibling who enjoyed the same quality of relationship, but who would have been expected to enjoy the companionship of the decedent for sixty years. This measurement is calculated using the statistical life expectancy of the survivors and the decedent, normally.

Allocation

If a cases is "settled" before trial, the family members still have the right to a formal decision by the court with regard to allocating the damage recovery among family members or "Interested Persons". They also have the right to be represented by independent counsel.

We have found that we can usually achieve agreement among family members on how death recoveries should be shared. We believe that every effort should be made by the Estate’s attorneys to assure that a death recovery does not foment a public battle among the Interested Persons. Sometimes agreement cannot be achieved due to divorce or other problems that preceded the death, however, we have found that even in this situation, with careful planning a procedure for allocating the recovery through private arbitration or mediation can be accomplished. Most families ultimately prefer this form of resolution if possible.

When there are minor children who should share in the recovery, the Courts have established certain procedures which must be followed to protect their interest. First, a knowledgeable adult who is independent and has no interest in the recovery must be appointed to represent them. This person is called a guardian ad litem. If the children are similarly situated, we do not usually need to appoint separate representatives for each child: usually we can appoint one representative for the entire class. This is also true if the recovery is quite limited and we are making a legitimate effort to minimize the legal expenses. Some courts will allow us to select an experienced attorney to serve in this capacity, and some of our peers work with us to keep expenses to a bare minimum where, for example, there is only a very small insurance policy. Other courts, fearing collusion, insist upon making an independent appointment to represent the minor(s). Unfortunately, this also has a negative impact on our ability to control expenses.

While they are much simpler to compute and less open to interpretation and argument, economic damages are not always clear-cut. For example, when a motor vehicle is involved, the measure of lost earnings is "tangible things of economic value" and wages may be computed based on the decedent’s actual earnings history. In most other situations, the court is guided by the "earning capacity" of the decedent. For an unemployed or underemployed student or houseparent, for example, earning capacity may be a much more reasonable measurement.

Usually, there is also a great deal of argument with respect to how domestic services should be valued. Many insurance companies try to divide the decedent’’s normal life into very small segments and tasks, and then compensate the family only on the basis of those tasks, as though a replacement could be hired to help the survivors only on an as-needed basis. The insurers might argue, for example, that a mother spent only 5 hours in an average day, total, in getting children off to school, preparing three meals, washing clothes and putting the children to bed at night, even though it would be impossible to hire someone to make several trips to the home to fulfill these various tasks throughout the day.

The wrongdoer may also receive a credit for any personal injury protection benefits, workers compensation, wage continuation or Social Security benefits payable to the family as a result of the death. In some situations, the entity paying these benefits may also be legally entitled to claim a lien on any litigation recovery. Where the law allows such a lien, the insurer or government entity usually has the right to be re-paid first, before the family receives compensation. In practice, we can usually negotiate an arrangement to share the recovery and the legal costs and fees. Most health insurers have a similar lien right written into their insurance contracts with the family or the employer.

Statutes of Limitation

Whenever the law grants a right to seek recovery for wrongdoing, it also places restrictions on how long the victim has in which to take legal action. If the victim delays too long in seeking compensation, he is said to have "slept on his rights" and his claim will not be heard. These limits are called "statutes of limitations" and they vary depending on the nature of the wrong that was committed. In many cases, there are other limitations on taking legal action, as well.

If you or a loved one has been injured, it is important that you promptly contact a qualified personal injury lawyer to investigate your rights so that you do not lose your right to recover damages.

Damages are the compensation which the law authorizes for an injury, if you prove the defendant is at fault for your injury. Here are some examples:

In a bodily injury case, you may be entitled to compensation for one or more of the following losses:

A) Loss of Earning Capacity

B) Medical Expenses

C) Pain and Suffering

D) Disability and/or Disfigurement

E) Aggravation of Pre-Existing Conditions

Damages are award for the entire time you will suffer. Im many cases that means your natural life or your expected working life. Your attorney must proved adages through medical testimony, psychological testimony, economic rehabilitation testimony and/or other expert testimony.

Witnesses who are close friends or family members can testify as to how the injury has affected your life and changed you personally.

If a victim dies as a result of the accident, damages are awarded under Michigan’s Wrongful Death Act. The Probate Court will appoint a "personal representative" of the Estate to oversee the litigation and to protect the interests of the surviving members of the family.

The damages include all factors that are "fair and just under all the circumstances," including lost wages, support, cost of last hospitalization, funeral expenses, and most importantly, loss of society and companionship (that is, what each surviving family member lost in terms of friendship or nurturing by the death of the victim).

Damages may vary by the type of case and are determined by reasonable calculation.

In certain cases, in addition to damages, you may be entitled to attorney fees (for example, civil rights cases). After a verdict, you are usually entitled to interest on the damage award from the date of fling the complaint or from the date of judgment.

Before trial, the injured party controls the settlement amount requested. No case can be settled without the injured party’s approval of all the terms. A good attorney will make a recommendation with respect to a settlement amount and explain his or her recommendation. At trial, is the judge or jury who will decide whether and what amount will be awarded and to what extent damages are fair. Settlement discussions can continue throughout the trial and during the appeal process. But these discussions, like the mediation award, are not admissible as evidence in trial.

A qualified lawyer is there to protect your rights and explain potential benefits. Choosing a qualified lawyer is the most important task you have, because that choice will determine your chance for success. Here are some questions you should ask a lawyer:

Our firm enjoys:

2. Special listing in the 1995 volume of the Register of Preeminent Lawyers;

3. The Primerus distinction;

4. The leadership of a Board Certified Specialist

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