Injuryboard Commentary - Michigan

Proposed Legislation Would Protect Consumers, Hold Insurance Companies Accountable

David Mittleman — Wed, 02 Dec 2009 16:42:55 GMT

Earlier this week, Democrats in the Michigan House of Representatives introduced a package of bills that would strengthen consumer protection and prevent auto insurance companies from engaging in unfair trade practices. The proposed law, which is made up of ten separate bills, represents a significant step toward safeguarding consumers' interests.

Under the current law, insurance companies can consider someone's credit history, education, and occupation when setting insurance rates. The new law would prohibit this practice, as well as prevent auto insurance companies from raising an individual's rate following an accident if he or she was not at fault. In addition, the state insurance commissioner would have to sign off on any potential rate increases.

The new bill package essentially adopts the recommendations put forth by consumer advocates in February of this year. Despite its brutal economic climate, Michigan ranks in the top quarter of all states in terms of total auto insurance premiums.

Until now, auto insurance companies have been able to fix rates based on irrelevant and discriminatory information. Hopefully, that is about to change and consumers will be able to enjoy a fair and reasonable method of determining auto premiums.

Originally posted at InjuryBoard by David Mittleman

Pair of Holiday-Weekend Accidents Result in Death, Injury

David Mittleman — Sun, 29 Nov 2009 20:16:28 GMT

Two young Lansing, Michigan residents fell victim to car crashes over the Thanksgiving holiday - a sobering reminder of the hazards of one of the busiest travel seasons of the year.

Christy Luckett, 30, died Thursday morning, one day after a two-vehicle crash at the intersection of Waverly Road and Phoenix Drive in Lansing. The driver and one passenger in the other vehicle were also treated for injuries. The collision is still under investigation.

Some 50 miles away in Oceola Township, Zachery Warren was injured when he swerved to avoid a pickup truck driven by Clem Plowman on M-59 in Livingston County. Warren, a 23-year-old Lansing man, is still receiving treatment at University of Michigan Medical Center in Ann Arbor.

Remember to use extreme caution when driving. Careful driving behaviors should be a year-long habit, but they become especially important during periods of heavy travel.

Originally posted at InjuryBoard by David Mittleman

Older NFL Players More Proof That Concussions Have Long Term Dangers?

Mike Bryant — Sun, 29 Nov 2009 09:18:00 GMT

I've written a number of times about concussions. We see them in our practice very often and they need to be taken seriously. Little bumps on the head have lead to serious brain damage and even death. The more the medical community looks at these injuries, the more damage is being found long term.

This past week, the New York Times looked into the long term affect of these injuries on former NFL players. They used a study from the University of Michigan’s Institute for Social Research that interviewed 1,063 former players and found that 6.1 percent of players aged 50 and older reported that they had received a dementia-related diagnosis. The percentage is five times higher than the national average of 1.2 percent.

The NFL has been quick to point out that there are holes in the study, considering that it relies upon self reporting. They are presently working on their own study to look at the issue. But, looking at the concussion research out there already, it doesn't seem to be a big leap to the connections or at least to accept that there is enough of a concern that the issue needs to be looked into further.

Originally posted at InjuryBoard by Mike Bryant

Deer Involved in Lansing 2 Car Crash

Devon Glass — Wed, 25 Nov 2009 10:39:28 GMT

With deer hunting season officially open in Michigan for nearly 2 weeks, most of the talk about deer has to do with how big a buck you shot or taking your children for their first hunt. I'm pretty sure that opening day for deer hunting is one of the biggest holidays in Michigan. Sometimes, however, the deer are out to get you and not the other way around.

Just this morning a car near Jolly and Waverly in Lansing hit another car after a deer came onto the road. According to the police, just after 6 am the driver of a Chevy Impala was either hit by a deer or swerved to miss hitting a deer and crashed into a van. The driver of the Impala was ejected from her car during the crash. Both drivers and one passenger were transported to the hospital for treatment.

Here are some tips from the Michigan State Police to keep you safe if you encounter a deer and how to avoid them. Have a safe and happy holiday.

Michigan State Police Troopers remind you to Don't Wreck Your Life! Keep your eyes on the road, never drink and drive, always wear your safety belt, and consider the following tips to help you avoid a car-deer collision:

Use special caution in those areas marked with deer crossing signs.

If you see one deer, expect there will be others. Slow down and be alert.

Do not swerve your vehicle to avoid striking a deer. It is better to strike a deer than another vehicle or a fixed object.

Continually scan the fields and area adjacent to the roadway for deer. Often you can see them approaching the roadway and can slow down.

During hours of darkness use your bright lights when no traffic is approaching. The high beams will illuminate the eyes of deer on the roadway or approaching the roadway much sooner, allowing a greater reaction time.

Always drive at a safe and prudent speed.

Originally posted at InjuryBoard by Devon Glass

Car Crash in Oneida Township Kills DeWitt Teenager

Devon Glass — Wed, 25 Nov 2009 09:51:50 GMT

Travis Rademacher, a 19 year old DeWitt teenager, was killed in a car accident last Saturday in Oneida Township when his vehicle collided with another car driven by Matthew Merrill of Lansing. The crash occurred after Mr. Rademacher stopped at a stop sign on St. Joseph Highway before turning onto M-100. Both Mr. Rademacher and his passenger were wearing their seatbelts at the time of the crash. Mr. Rademacher was transported to a Lansing area hospital, but unfortunately he passed away a short time after the crash.

It's not entirely clear what caused this crash. Darkness could have played a factor in the crash since it happened after sunset. Another factor could have been the speed of the car traveling on M-100. Or it could be that both drivers are inexperienced, given they were both under the age of 20, and also not paying attention to the other cars on the road. Our blog has talked a number of times about the dangers of distracted driving, most recently concerning text messaging.

While we don't know what caused this crash to occur, we should nonetheless be mindful of the potential causes of accidents and do our best to be attentive drivers. Please be careful when driving this holiday season so you can make it home safe and sound.

Originally posted at InjuryBoard by Devon Glass

Dog Bite Basics in Michigan

Timothy Smith — Tue, 24 Nov 2009 15:13:50 GMT

DOG BITE

In Michigan, when a dog bites a person, the person must sue the owner of the dog within three years from the date of the dog bite under MCL 600.5805(10). Proper plaintiffs would include:

· Person the dog bit and injured, as well as their spouse, child, or parent;

· Personal representative of the person killed in a dog attack, who would be a stand-in for the deceased and could recover on behalf of the dead person’s estate.

The proper defendant in a dog bite case includes:

1) the “registered owner” of the dog, or person who has represented him or herself to be the “owner”;

2) the “keeper,” or the “temporary caretaker” of the dog.

The jury will determine the fact question of whether the defendant having possession of the dog rises to “keeper” status and is usually defined as exercising the type of control over the dog that the owner would exert.

Three common potential causes of action for dog bite cases include:

1) The dog bite statutory action, applying to an owner of a dog

The good news in these cases is that generally if a dog bites a plaintiff, the plaintiff must only prove these facts:

· The dog bit the plaintiff and the plaintiff was injured as a result;

· The plaintiff did not provoke the bite, typically a fact question for your jury;

· The defendant owned the dog; and

· The plaintiff was lawfully at the location where the dog bite occurred.

2) Common law strict liability action against the dog owner and “keeper”

When the dog bite occurs while the dog is under the control of an owner or a “keeper,” who knew or should have known of the dog’s dangerous propensities, the plaintiff must prove in addition to the facts listed above.

3) Common law negligence

The same facts as listed under number 1 above plus that the owner or “possessor,” or temporary caretaker of the dog had the dog long enough to know of the dog’s dangerous propensities, breached a duty to the plaintiff of controlling the dog, and therefore was negligent.

More good news for Michigan victims related to defense of dog bite cases:

· Provoking the dog, an issue the jury will decide, is the only defense under a statutory claim

· Reacting to a dog’s viciousness does not constitute provocation under the statute.

If you or someone you know has been attcked by a dog, click here for a prior article I authored on how to treat bite injuries.

Originally posted at InjuryBoard by Timothy Smith

Disbursing Funds under Michigan's Wrongful Death Statute

Timothy Smith — Sun, 22 Nov 2009 15:01:22 GMT

Recently, we've resolved a number of wrongful death cases here in Northern Michigan. In Michigan, these types of cases are governed by a statute that controls every aspect of the case, including how the recovered funds are distributed to the family members that survive the deceased. One of the families that I represent asked me to explain to them how the distribution of the monies we recovered would take place.

In order to fully answer their question, I turned to Andrew Shotwell, a probate specialist with my office here in Traverse City, Michigan. I asked Andrew to draft an informative letter to the family to answer the question and thought I'd share the substance of it with my readers in case they were facing a similar issue.

The procedure and applicable law depends on various facts. First, if a complaint has been filed in circuit court, the distribution is governed by MCL 600.2922. Essentially under that statute, if no conscience pain and suffering was present or to the extent an award is for other than conscience pain and suffering, the circuit can distribute under 600.2922. The Court approves distributions “to those…who suffered damages and to the estate of the deceased for compensation for conscious pain and suffering, if any, in the amount as the court or jury considers fair and equitable considering the relative damages sustained by each of the persons and the estate of the deceased.”

If there is conscience pain and suffering awarded, the award passes to the estate and is distributed in accordance either with the decedent’s last will and testament, or by intestate succession [this is the law that governs how an individual's estate passes when they have no will]. There is no precise formula for determining the damages for the loss of a loved one’s society and companionship. In re Claim of Carr, 189 Mich App 234, 471 NW2d 637 (1991). The measure of damages is gauged by the relationship the decedent had with the claimant, including the amount of time the decedent and the claimant spent together. McTaggart v Lindsey, 202 Mich App 612, 509 NW2d 881 (1993).

If a complaint has not been filed and settlement has been reached, the distributions occur pursuant to MCL 700.3924, which is similar to 600.2922, requiring the distributions to be fair and equitable. The persons entitled to notice and an opportunity be heard in a wrongful death case under both 700.3924 and 600.2922 are as follows:

1) The deceased's spouse, children, descendants, parents, grandparents, brothers and sisters, and, if none of these persons survive the deceased, then those persons to whom the estate of the deceased would pass under the laws of intestate succession determined as of the date of death of the deceased.

2) The children of the deceased's spouse; and

3) Those persons who are devisees under the will of the deceased, including beneficiaries of a trust under the will, those persons who are designated in the will as persons who may be entitled to damages under this section, and the beneficiaries of a living trust of the deceased if there is a devise to that trust in the will of the deceased.

In any case, an estate would need to be opened with the probate court in the county of residence for the decedent. If a will exists, it is submitted to probate and a Personal Representative appointed, as nominated in the will. If no will exists, or the will fails to nominate a Personal Representative, the Court will appoint one according to the priority schedule, starting with the surviving spouse. Notice is required to be sent to all the people indentified above as having an interest in the distribution.

Once a settlement or an award has been granted, if all of the potential distributees are competent, nondisappeared adults, they may stipulate to a specific distribution scheme. If all of the interested persons stipulate to a proposed allocation, the court must order that distribution. However, if a disagreement exists, a hearing would be required.

If a minor is involved a guardian ad litem may be required to advocate on the minor’s behalf.

If after reading this summary of the approaches to distribution under the wrongful death statute, you still have questions, feel free to shoot me an email or call with further questions.

In my next article, I'll address and give some examples of what happens when the family can't agree on the distribution and an evidentiary hearing is required.

Originally posted at InjuryBoard by Timothy Smith

Homicides Predict Traffic Deaths

Jon Lewis — Sun, 22 Nov 2009 12:42:37 GMT

Do State Homicide rates predict traffic fatalities? According to a University of Michigan study, they do. The study found that there was a parallel with the number of homicides and the number of traffic deaths. What seems to be the reason for this? Aggression.

The study looked at ten factors and "found that seven of them accounted for 71 percent of the variance in traffic fatality rates." Those seven are "homicide rates, proportion of male drivers, proportion of older drivers, number of alcohol-related liver failures (as a proxy for intoxicated driving), density of physicians, seat-belt use rate, and income." Apparently, the strongest predictor of these seven are homicides because homicides relate to aggression which relates to aggressive driving.

What does this teach us? We need to respect others on the roadways. We can't be in a hurry all of the time. We cannot drive while we are doing several other things: texting, playing with the radio, putting on makeup, using the telephone, changing CD's, and having too much noise and distractions in the car. We need to realize that we share the road with others, and we need to understand that different people have different driving styles just as different people have different psychological makeups.

During this holiday season, think before you act. Take a few miles per hour off your speedometer. Leave a little early for that appointment or meeting so you aren't in a rush. Be more passive on the roadways, and maybe you will save a life.

Originally posted at InjuryBoard by Jon Lewis

Recent Michigan Taser Incidents Cause Concern for Safety, Use of Force

David Mittleman — Tue, 17 Nov 2009 17:11:31 GMT

Two recent incidents involving the use of Tasers have grabbed headlines throughout Michigan and around the country, again raising doubts about the safety of the product and its use by law enforcement officials. Generally considered a "less-lethal" way of subduing unruly suspects, the use of Tasers has engendered serious controversy in recent months.

Earlier today, a young man in East Grand Rapids, Michigan, died in police custody after being Tasered. Early reports suggest that Matthew Bolick, 30, was Tasered twice during a struggle with local police officers.

Late last week, a Lansing, Michigan, police officer was reprimanded for Tasering a suspect who had already been handcuffed. Rocky Allred, 43, fell to the ground after the weapon was used on him, fracturing his jaw, chipping a tooth, and requiring eight stitches. The incident occurred back in August, and charges against Allred have been dismissed. The officer has been suspended for two weeks without pay for the appalling violation of police policy.

In late October, police in Traverse City, Michigan Tasered a 17-year-old girl following a traffic stop.

The recent spate of Taser-related injuries and deaths is by no means limited to Michigan. Injuries stemming from the use of the device have been reported across the country.

Originally posted at InjuryBoard by David Mittleman

Michigan Supreme Court’s New Policy Enhances Credibility, Avoids Conflicts

David Mittleman — Tue, 17 Nov 2009 15:15:04 GMT

Earlier this month, Michigan’s Supreme Court adopted a fair and reasonable new policy to govern the disqualification of justices in the event of a potential conflict of interest. By a 4-3 vote, Michigan’s Gang of Justice approved rules that will, in some cases, take the decision out of the potentially conflicted justice’s hands.

Judicial disqualification, also known as recusal, is an incredibly important component of the impartiality and integrity of the legal system. Under the old, unwritten tradition, each individual justice essentially had the final say on whether or not to step aside on a given case due to a conflict of interest. While most judges and justices do the right thing and step aside when they face a conflict of interest, the few who do not can seriously undermine the public’s trust.

A stunning and well–known example can be found in West Virginia, where a state Supreme Court justice was elected to the state’s highest court with the help of $3 million donated by the chairman of Massey Energy Company. That justice later decided in favor of Massey in two key decisions, despite calls for his disqualification.

The new rules adopted by the Michigan Supreme Court will help avoid any actual or perceived injustice. Now, a party whose request for disqualification is refused by an individual justice can appeal to the entire seven-member Court for a ruling.

An excellent editorial by the Lansing State Journal underscores the importance of the change in policy, especially in this era of big-money judicial campaigns. The four justices who voted in favor of the measure - Justices Hathaway, Cavanagh, Weaver, and Chief Justice Kelly - clearly understand the importance of fairness and impartiality. The minority, on the other hand, would prefer the old way of doing things.

Justice Robert Young, who in the past almost always voted with the “Sleeping Judge” Cliff Taylor, was among the dissenters. Last year the people of Michigan voted Taylor off the bench. In 2010, voters will get to have their say about Justice Young.

Originally posted at InjuryBoard by David Mittleman