Michigan Personal Injury Blog - Michigan Supreme Court

Gang of Justice at the Michigan Supreme Court works for common good, not corporate greed

David Mittleman — Sat, 22 Aug 2009 10:18:00 GMT

The usual suspects are lining up to take shots at the new Gang of Justice on the Michigan Supreme Court. Don't buy the hype. The latest "outrage" seems to be the prospect that Michigan insurance premiums might go up by $20 per year and the blame is wrongfully being directed at Gang of Justice, consisting of Justices Weaver, Kelly, Cavanagh, and Hathaway.

This all stems from the Supreme Court decision in United States Fidelity Guarantee & Insurance Co v Michigan Catastrophic Claims Ass'n, where the Supreme Court ordered the Michigan Catastrophic Claims Association to fully reimburse insurance companies for all medical payments above $460,000. Under Michigan law, your insurance carrier is required to pay a lifetime benefit of all medical services that are reasonable and necessary for your recovery, care, or rehabilitation - but ask that to the thousands of people who often find their no-fault benefits terminated after a five minute "appointment" with a doctor who will gladly write a report to your insurer that you're good-to-go. If, however, you are one of the few people who suffer a truly catastrophic injury such that your medical bills go beyond $460,000, insurance companies in Michigan get reimbursed by the MCCA.

Many of these catastrophic claims usually involve settlements on services like attendant care, where a family member or other person actually takes on the "job" of caring for someone who is now paralyzed, severely injured, or otherwise incapable of doing the basics of life. These attendant care services are part of the "medical services" that a no-fault insurer must pay so long as they are related to the accident and necessary for your care. Because of that, up to the first $460,000 or benefits paid, they are without a doubt put in a position to negotiate a fair and reasonable wage (because until they cross that $460,000 threshold they are solely responsible). The MCCA wanted to be able to reduce the amount they paid back to insurance companies by saying that the insurance companies didn't try hard enough to keep costs low. The MCCA gets its money by charging all of the insurance companies operating in Michigan a fee - so in essence, the insurance companies themselves all share in paying the catastrophic claims of injured Michigan motorists and passengers. Naturally, insurance companies pass down that bill to us, their policyholders. Shockingly, this increase was decided on even before the decision was released by the Michigan Supreme Court! Makes you wonder just how hard the MCCA is working with no-fault insurers to negotiate reasonable benefits.

The next time you pick up your local paper and read the propoganda, think it through. Just what would have led to higher insurance rates? Imagine a scenario where insurance companies didn't get fully reimbursed by the MCCA, so that the MCCA didn't pass down a $20 yearly increase per policy? Then we'd have the insurance companies themselves saying "we're out of millions! Time to raise rates because we're not getting fairly reimbursed?" The truth is that conservatives need to find fault with any and all decisions made by the Gang of Justice, because legal change is coming that will undo the disasterous legacy of Gov. Engler's Gang of Four.

So while folks like Collen Pero will want to make this about Justice Hathaway and her supporters (nevermind the fact that he was a campaign manager for ex-Justice Cliff Taylor who gladly accepted contributions totalling nearly $100,000 from DaimlerChrysler from 1998 to 2000 before overturning a major jury verdict against DaimlerChrysler of $21 Million in 2002), have a conversation with your fellow Michigan residents, talk with them about their fears, and help them realize that what the Supreme Court is finally doing is putting their interests ahead of corporate greed. When Diane Hathaway beat Cliff Taylor despite Taylor's supporters giving him a bank account of $1.4 Million in campaign contributions, Michigan residents said loud and clear that they were fed up with the Supreme Court's staunch support of corporate interests over the public good. That's what this noise is all about - hot air from corporate goons staring at the prospect of knowing what life is like for real Americans.

Originally posted at InjuryBoard by David Mittleman

Michigan Supreme Court permits lawsuit against 911 dispatcher to continue

David Mittleman — Thu, 09 Jul 2009 08:45:35 GMT

The Michigan Supreme Court voted 4-3 today to deny the appeal of a Detroit 911 dispatcher who was accused of intentional infliction of emotional distress after she questioned a gunshot victim that called for emergency services. The operator apparently asked the injured and distraught woman, Lorraine Hayes, if she was a “mental patient” when Hayes called 911 twice on January 12, 2006 saying she had been shot in the head. Lorraine Hayes’ lawsuit will now go on to trial.

The Court of Appeals stated that the operator, Kimberly Langford, had berated and insulted Hayes during the emergency call. She did, however, dispatch police to the address eventually.

Unfortunately, the police could not find the location and EMS only reached Hayes after she called her son in Minnesota, who called Detroit police for her.

Originally posted at InjuryBoard by David Mittleman

Michigan Supreme Court Votes to Give Judges Greater Authority in Determining Court Dress Code

David Mittleman — Fri, 19 Jun 2009 08:52:19 GMT

Wednesday—the Michigan Supreme Court voted 5-2 to allow judges greater authority over the way witnesses dress in court after a Muslim woman refused to remove her head veil during a small claims case. However, the two dissenters felt that there should be an exception to that rule for clothing worn for religious purposes.

The issue arose in a small claims court in Hamtramck District after the judge asked the Muslim woman to remove her head scarf during a 2006 hearing because he said he needed to be able to see her face to judge her truthfulness. In response, the woman sued the judge. This spurred the Michigan Judges Association and the Michigan District Judges Association to support the court rule allowing judges “reasonable” authority to dictate the way witnesses and parties dress in court—enough so that a judge can identify an individual or determine the candidness of their testimony.

The head veil is grounded in an Islamic religious belief that women should cover their face around men that are not their husband or close male relative. The American Civil Liberties Union had attempted to argue for a religious exception to Michigan Rule of Evidence 611, but the Court ultimately decided otherwise.

Originally posted at InjuryBoard by David Mittleman

Michigan Moves to Protect Consumers Against Insurance Companies

David Mittleman — Fri, 05 Jun 2009 12:53:17 GMT

Kudos to Ken Ross, Michigan’s Commissioner for the Office of Financial and Insurance Regulation (OFIR) for doing something to protect homeowners, car owners, and average consumers. Mr. Ross recently signed an order requiring all insurance companies to submit new and revised insurance policies for homes and automobiles to OFIR before sending them directly to the policyholders. His order also gives OFIR the authority to prohibit the issuance of a policy if it contains unreasonable or deceptive exceptions in coverage as well as misleading clauses.

This wise and reasonable move allows the state agency to protect consumers, especially since the Michigan Supreme Court decided that Michigan’s trial courts themselves couldn’t amend insurance contracts on the basis of unreasonable clauses that left policy holders paying heavy premiums for a worthless document.

It’s been 12 years since OFIR has been able to review insurance policies, because previous Commissioner Joe Olsen felt that reviewing policies wasn’t necessary to protect the public. If there’s anything we’ve learned about the last few years, it definitely includes the fact that we can't count on insurance companies to police themselves.

This is the second major shift in policy under Ken Ross’s leadership of OFIR. Previously, he took on insurance companies who wanted to use credit scores as a basis for determining discounts - even during a time when credit scores were falling across the map due to the economic crisis.

Originally posted at InjuryBoard by David Mittleman

Long Legal Battle Ends With $3 Million Verdict

David Mittleman — Fri, 05 Jun 2009 07:27:00 GMT

Earlier this week, a jury awarded an Owosso, Michigan, woman $2.9 million in her medical malpractice action against an area hospital, two doctors, and their professional corporations. In the process, they have closed the latest chapter in the nearly nine-year-old case.

Sue Apsey and her husband commenced their lawsuit in November 2001, alleging that doctors negligently performed an exploratory laparotomy, resulting in serious medical complications including infection. The defendants successfully had the case dismissed, arguing that the Affidavit of Merit (a document required for all medical malpractice actions in Michigan) had been prepared out of state and had not been properly authenticated under Michigan law. The Michigan Court of Appeals upheld the dismissal.

At issue was the apparent conflict between two statutes - the Uniform Recognition of Acknowledgments Act (URAA) and a provision of the Revised Judicature Act (RJA). Each statute provides a different method of authenticating out-of-state documents, with the RJA provision requiring an additional certification Ms. Apsey and her husband had failed to include until after the statute of limitations had run. The Court of Appeals reasoned that the RJA controlled in this instance because it dealt more specifically with documents prepared for court (such as affidavits of merit) than did the URAA.

In 2007, the Michigan Supreme Court reversed the rulings of the lower courts, breathing new life into the Apseys' case. Writing the opinion for the Court was Justice Kelly (now Chief Justice), who convincingly explained that the URAA and RJA provide alternative, co-equal methods of authenticating out-of-state documents. The highly regarded opinion is well-founded on the language chosen by the legislature when drafting the URAA, which plainly states that "[n]otarial acts may be performed outside this state for use in this state with the same effect as if performed by a notary public of this state[.]" In addition, the URAA expressly provides that it is "an additional method of proving notarial acts[,]" not a replacement for or an invalidation of the method prescribed by the RJA. As a result of the Court’s ruling, the Apseys' Affidavit of Merit was valid and their case was allowed to continue. It was remanded to the trial court, where the jury ultimately reached its verdict in favor of the plaintiffs.

Unfortunately, the Apseys will never see all of the money to which the jury believes they are entitled. Even though a duly empaneled group of reasonable individuals agreed that $3 million would be adequate compensation for Ms. Apsey’s injuries, Michigan’s malpractice damage caps will reduce the award considerably.

Originally posted at InjuryBoard by David Mittleman

It’s Time To Rescue Michigan’s Consumer Protection Act

David Mittleman — Tue, 19 May 2009 15:48:13 GMT

Michigan’s once treasured Consumer Protection Act now sits in squalor thanks to the Engler dominated Michigan Supreme Court of the past few years. Last year marked the ultimate demise of any remaining teeth the law may have had when the Court, led by sleeping ex-Chief Justice Cliff Taylor exempted most, if not all, business regulated by state or federal law, such as home improvement contractors, mortgage companies, and plumbers.

In the midst of a housing fiasco the likes of which this society has never seen, consumers who were victims to the tactics of predatory mortgage companies find little solace in knowing that justice to the state’s highest court meant protecting big business instead of average citizens. Moreover, if you’re lucky enough to get financing for a new home, but you can only afford one that needs substantial renovations, you can forget about relying on the Consumer Protection Act as a guarantee that those roof shingles get fixed by builders.

With a new face on the state’s Supreme Court, and a chance to remove another justice (Robert Young) in 2010 who prefers corporate welfare over true justice, it’s time the Supreme Court roll up their sleeves and get to work on undoing the carnage of the past few years.

Originally posted at InjuryBoard by David Mittleman

GM-Certified Used or Welded Together Wrecks?

David Mittleman — Tue, 05 May 2009 10:59:56 GMT

State Consumer Protection Acts have been enacted in every state in the nation to protect consumers. Each state law varies in the degree to which they are effective. Michigan's Consumer Protection Act bans 29 unfair, deceptive or unconscionable business practices in the sale of goods and services. Once considered to be one of the best Consumer Protection Acts in the country, the Michigan Act has been rendered practically useless by two Michigan Supreme Court rulings. The first ruling, issued in 1999, was written by Justice Robert Young and supported by his conservative majority. That case ruled that businesses whose general conduct was specifically governed by another state law, were exempt from the act, even if the conduct was unfair or deceptive. Reaffirming its decision in 2007, but broadening the scope, the court exempted all businesses governed by federal or state law from the act, in effect, making Michigan a buyer beware state. Businesses exempt from the law include: banks, mortgage brokers, debt collectors, finance companies, home builders, home improvement contractors, new and used car dealers, auto repair shops, funeral homes, plumbers and electricians.

Back in 2004, Paulette Day, a 38-year-old Romulus homemaker, went to a Southgate dealership and purchased a $20,350, what she thought was practically brand new, GM-certified used, bright red Monte Carlo. She became suspicious about the car after a family member noticed blue paint on the gas cap. When Paulette attempted to return the vehicle under the GM satisfaction guaranteed policy, the dealership refused to honor the promise. Six months later, the Day’s hired an attorney, Dani Liblang of Birmingham, who had an expert examine the car. The expert determined that the car was actually two vehicles welded together as one and sold as a "demo". Now, while their case is pending in circuit court, the Days are stuck with a vehicle that makes funny noises and wears out tires quickly. Until the law is changed, consumers in Michigan will feel cheated and stuck fighting an uphill battle with little recourse.

Originally posted at InjuryBoard by David Mittleman

Michigan Supreme Court Will Determine Class Action Status in Dow Chemical Case

David Mittleman — Fri, 06 Mar 2009 11:28:24 GMT

The Michigan Supreme Court will hear arguments as to whether a 6-year-old lawsuit should have class-action status. Such a classification may raise the number of plaintiffs in the case from 173 to 2,000 residents of Midland, Saginaw and Bay City areas.

Dow Chemical is trying to have the lower court’s decision to grant class-action status reversed, arguing that each individual should have to prove their case because dioxin only contaminated some of the properties.

Dioxin is a chemical byproduct that may cause cancer and damage to reproductive and immune systems. Dow Chemical has admitted that it polluted the Tittabawasee and Saginaw rivers, their flood-plains, portions of the City of Midland and the Saginaw Bay with dioxins for much of the 20^th century. Dow Chemical first dumped the chemical directly in to the waters, and later incinerated them which contaminated the Saginaw Valley.

The lawsuit affects an area of about 13,000 acres surrounding the Tittabawasse River. The area is heavily populated, making the spread of dioxin throughout the flood-plain incredibly dangerous to humans and wildlife. The Court’s ruling will have broad implications on class-action environmental suits in Michigan. Allowing the plaintiffs to join in a class will allow them to consolidate cost, which give them a better chance to make their case against the giant, Dow Chemical.

Originally posted at InjuryBoard by David Mittleman

Supreme Court Justice Taylor's final slap in the face to Michigan

Timothy Smith — Fri, 02 Jan 2009 11:57:21 GMT

Justice Taylor was soundly beaten in the recent election. First time ever in Michigan that a sitting Chief Justice was defeated. Ever.

In interview after interview since the election, he has shown the true cut of his jib, his true colors, if you will. He has griped, and whined and "pissed and moaned" about how unfair the election was, about how his was mis-treated and mis-represented in the election. Maybe I missed, it but never once did he congratulate his competitor Judge Diane Hathaway - a former prosecutor and Circuit court Judge - for her victory.

So as most citizens in the state were saying, "Goodbye and good riddance...... don't let the door hit you in the ass", Justice Taylor and his fellow activist Judges Young, Corrigan and Markman gave one last parting shot to the citizens of Michigan before Taylor left the bench. On December 30th, these four justices authored Moore v. Secura. Here's how it all played out.

In a nutshell, it's a case about medical benefits under the Michigan No-Fault Act. The law says you're entitled to lifetime medical benefits when you're involved in an auto accident here in Michigan as long as the treatment was "reasonable and necessary". 'Reasonable" refers to the fee charged by the doctor for the procedure. "Necessary" refers to whether or not the treatment was "necessitated" by the injury from the car crash.

In almost every case, insurance companies will send you out to one of their insurance doctors if you need more than a few weeks of treatment. In fact, when the No-Fault Insurance statute was made law, the insurance companies, through their lobbyists fought hard to have it spelled out right in the statute itself that they have a legal right to send you to any doctor they choose.

In the Moore case, Secura Insurance Company sent Hattie Moore to see Dr. Charles Xeller, an insurance company doctor who's credentials and bias against plaintiffs is well known and well documented. Dr. Xeller examined Hattie and he authored a 7 page report which said plaintiff didn't need any more medical treatment. The problem was that this one-time exam by Dr. Xeller and his opinion that Hattie needed no more treatment, this totally contradicted plaintiff's own doctors who had been treating her for over a year. You see, in the accident, her knee was badly damaged. It was fractured and it needed surgery to be fixed.

So, based on Dr. Xeller's opinion that Hattie needed no more treatment, Secura cut off all medical benefits. Hattie asked them to reinstate benefits, but they refused so she had to get an attorney and sue them to reinstate her medical benefits. Her attorney argued that Secura had a duty to treat each of their insured fairly which required them to reconcile conflicting medical information before cutting someone off.

What Hattie's attorney argued to the jury was a simple bit of good old common sense. Insurance companies shouldn't be allowed to pick one of their doctors, have them do a one time exam and then cut-off benefits based on that one insurance doctor's biased opinion. Hattie's attorney argued that insurance companies have a duty to reconcile conflicts in the medical records that are created by the insurance companies doctors. Simply put, if Hattie's doctors have been saying for over a year that the car crash caused an injury to her knee and that she needed care and treatment, it wasn't fair for Secura to cut Hattie's benefits off based on Dr. Xeller's opinion, especially when it contradicted the opinions of all her treating doctors.

The argument was successful. The jury agreed. So did the trial judge and he sanctioned Secura and ordered them to pay Hattie's attorney fees. The case went up to the Court of Appeals. They agreed too. They held that insurance companies can't cut someone off based solely on their insurance company doctor when the insurance company doctor's opinion conflicts with all the treating physicians.

But, as has been the case so often with Justice Taylor, Justice Young and the other activist judges on the Michigan Supreme Court, they saw things differently. They held that it wasn't unreasonable for Secura to look only at Dr. Xeller's report when they decide to terminate Hattie's medical benefits. In doing this, they over-ruled the Michigan Court of Appeals AND prior case law in Liddell v. DAIIE, a case that had been standing precedent in Michigan since 1981. This wasn't unusual as Justices Taylor and Young have made a career out of overturning existing law in Michigan, especially when the existing law protected individuals from insurance companies and large corporations.

With the flick of a pen, 28 years of case law was thrown out the window. If that wasn't bad enough, for Justices Taylor and Young to further say that it was reasonable for Secura to rely on Dr. Charles Xeller......... well, that's just adding insult to injury.

Why? Here's what attorneys in Michigan have uncovered while deposing Dr. Charles Xeller over the last few years.....

1. He's an orthopedic Surgeon licensed in Michigan, Texas, California, New York, Nevada and New Jersey.

2. He lives in Houston Texas.

3. He was first licensed in Michigan in 1997. He stopped practicing in Michigan in 1999.

4. He was traveling to Michigan for one week per month for the purpose of performing exams for insurance companies. He does the same for one week per month in California.

5. He averages around 80 exams per month for insurance companies.

6. In 2004, he was paid $419,904.43 for doing workman's Compensation exams in Texas alone.

7. In the two years he practiced in Michigan, he was sued 5 timed for malpractice. He lost every case.

8. 15 malpractice suits against him in Texas.

9. The Michigan Attorney General filed an Administrative Complaint against him to revoke his Michigan license.

10. On October 23, 1997, he admitted during a deposition in his divorce that he had lied during his previous divorce deposition about his extra-marital affairs. In Michigan we call this perjury. It's a 4-year felony.

11. During his divorce proceedings, he was arrested by the Houston Police Department at gunpoint on August 28, 1997 for driving to his ex-wife's attorney's office and throwing a rock at the building. He was in his hospital scrubs at the time and had $10,000 cash in his car at the time he assaulted the building.

12. By the end of the divorce, his ex-wife obtained a $1,000,000 judgment against him for assaulting her during the marriage including choking her and shoving a rag down her throat....

According to Justices Taylor and Young, this kind of doctor - a doctor that lies under oath, that has Administrative Actions filed by state Attorney Generals to revoke his license, that travels from Texas, to California to Michigan to make a buck doing insurance exams - this kind of doctor is the type that insurance companies can rely on to cut-off benefits.

28 years of precedent, down the drain. 28 years of protection for the citizens of this state from unscrupulous doctors, out the window. 28 years of a rule that required insurance companies to simply play fair, gone. It's a wonder some of these Justices can even look at themselves in the mirror in the morning.

The citizens of this state took the first step to taking back their highest court from activist judges who are protecting the special interest groups that put them in power. The next step is Justice Young in 2010. Don't let the door hit you in the ass on the way out Cliff....... good riddance.

Originally posted at InjuryBoard by Timothy Smith

Yes We Can!

David Mittleman — Thu, 06 Nov 2008 10:34:59 GMT

From the start, everyone knew it would be an uphill battle to unseat a sitting Supreme Court Justice. It has only happened a half dozen or so times in the entire history of Michigan's highest court. The long odds did not deter Wayne County Circuit Court Judge Diane Hathaway from seeking to defeat Chief Justice Cliff Taylor, and in the end, she prevailed.

What is the most remarkable about this story is how unlikely it was to happen at the beginning. Michigan's supreme court was ranked dead last, thanks to Cliff Taylor, in a study of all 50 state supreme courts. In a survey of lawyers who have argued before Cliff Taylor (pdf), he was ranked lowest in preparedness, lowest in efficiency, lowest in thoroughness and lowest in overall knowledge of the law. While on the court, Cliff Taylor put the interests of businesses and corporations ahead of people. Yet despite all of these problems with Taylor's leadership, it was expected he would win and easily defeat Judge Hathaway because he was an incumbant.

What Taylor did not count on was the power of people to get out the vote and decide change was needed in all areas of Michigan government. Many long time incumbents lost their re-election bids based upon the idea that change was needed to get Michigan back on the right track. Diane Hathaway's message of being tough and fair resounded with Michigan residents who were tired of not receiving the justice they deserved from the supreme court. Judge Hathaway was able to win because she brought a message of change, something the supreme court needed to better represent this state. Another factor in Diane Hathaway's victory is her support from President-Elect Barack Obama, who had an impressive ground operation helping to get out the vote and educating people about why Judge Hathaway was needed on our high court.

Despite the long odds facing Judge Hathaway, she was victorious and will begin serving Michigan beginning next year on the supreme court. Thanks to the hard work and efforts of thousands of people, what was supposed to be impossible became possible. Yes we can and yes we did.

Originally posted at InjuryBoard by David Mittleman