Understand Your Michigan No-Fault Rights

If you have been in a car accident, you need to know your rights.
I am a Michigan lawyer hanlding Michigan car accident litigation.   This web site will help you understand your first-party and third party no-fault  rights and fight for the money and benefits to which you are entitled.

THE BASICS:  I was in a Michigan automobile, car, truck or bus accident.  What should I do?

1.    Don’t sign anything given to you by an insurance company without consulting a Michigan automobile accident lawyer first. Insurance companies don't represent your interests.  Your best decision is to educate yourself about your legal rights and speak to an attorney.  You may have to sue to obtain the money to which your are entitled.

2.   Document your injuries early, get competent medical treatment and take photographs in the hospital, or when you get home.

3. Don’t be fooled by insurance adjusters who pretend to represent your interest. They will often attempt to convince you to sign papers and take settlement offers which are well below the compensation to which you are entitled

Michigan is a 'no-fault' insurance state. The laws that govern Michigan automobile accidents are very complex but essentially involve First-Party Benefits and Third-Party Benefits. 

You should contact a Michigan automobile accident attorney to fully understand your no-fault rights. Insurance companies are very skilled at taking your premium payments every month.  Unfortunately, they are also very skilled at avoiding payments even when a legitimate claim is made. Such bad faith denial of benefits forces good people into litigation where having an aggressive, experienced lawyer can make all the difference.

First Party Rights

MICHIGAN NO-FAULT ACT

MICHIGAN’S INSURANCE LAW FOR AUTOMOBILE ACCIDENTS

Automobile accidents can result in injury, death and disability. A person injured in a car/automobile accident in Michigan has legal rights which are defined by Michigan’s No-Fault Act. There are two types of no-fault claims, a “first-party” claim to claimants own insurance company and a "third-party" claim against the negligent driver.

FIRST PARTY CLAIMS:

First-Party benefits are payable to anyone who suffers an injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. Michigan auto accident first-party claims are made to a claimant's own no-fault insurer. The claimant's insurer, by thhe terms of the insurance contract and under the no-fault law, must pay no-fault benefits for expenses resulting from the automobile, truck, bus or motorcycle accident. First-party auto accident coverage inludes reimbursement for medical expenses, wage loss, replacement services, mileage, survivor's loss, funeral expenses, and attendant care.


Specific Michigan First-Party No-Fault Benefits that you should be entitled to from your own insurance company include:

Lifetime Payment Of Medical Bills
Michigan auto accident law provides that medical coverage is provided for life as long as the treatment received is related to the automobile accident. The allowable expense benefit is payable for life and is unlimited in amount. The only requirement is that the expense be "reasonable" in amount and that the service, product or accommodation for which the expense is charged is reasonably necessary for the injured person’s care, recovery or rehabilitation.

To qualify for medical expense reimbursement, a bill must be reasonable and the bill must actually be incurred. Payable medical expenses include "all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery or rehabilitation." Allowable medical expenses include hospital and physician charges, prescriptions, in-home nursing care, physical therapy and rehabilitation, vocational rehabilitation, medical mileage, artificial limbs, orthopedic appliances, etc. In order to avoid payment of legitimate medical expenses, insurance companies will often claim a procedure ordered by your physician to be unnecessary, or that the doctor or medical service provider billed too much.
Michigan insurance companies have two basic kinds of medical coverage in the event of an accident, un-coordinated polcies and coordinated policies. The terms of your policy control which benefits you will receive. An uncoordinated policy pays benefits regardless of the presence of other health insurance. A coordinated policy requires secondary health insurance to pay first, and provides that residual amounts are paid by the auto insurance.

It is common for a primary health insurance policy and an automobile insurance policy to contain contradictory language about who has the first obligation to pay medical bills. If there are any questions in this area, or bills are not being paid in a timely manner, an attorney should be promptly consulted. If a bill is not submitted within one year of the date it is incurred, the insurance company will likely argue that it is no longer obligated to pay.

Wage Loss Benefits

An accident victim is also entitled to recover no-fault PIP benefits for a loss of income the injured person "would have performed" had he or she not suffered injury in the accident. This work loss benefit is payable for three years and is limited to 85% of the victim’s gross income. Furthermore, the monthly benefit is subject to a monthly maximum which is adjusted each year.

Michigan No-Fault law allows for an injured individual to receive 85% of their salary if a doctor has disabled the injured party from working due to the injuries suffered in the automobile accident. This benefit cannot exceed a period of 3 years. There are reductions for taxes and a cap on the total amount which an insurance company need pay for wage loss.

Attendant Care Benefits

Attendant care benefits are sometimes referred to as Nursing Services. Severe Injuries often require the injured person to receive supervision and assistance for prolonged periods of time. It is not uncommon for a physician to state that a severe injury warrants around the clock supervision. There is no firm guideline that indicates how much an insurance company must pay for attendant care. Often, the quality of care and ability to choose the care provider are dependent upon an insurance carrier fulfilling its obligations under its contract of insurance. You should contact our office to secure premium attendant care benefits for yourself or a loved one.

Replacement Services

This benefit is called the "replacement service expense" benefit and is typically payable when an injured person can no longer perform domestic related tasks such as house cleaning, lawn work, cooking, babysitting, etc. In these situations, the injured person is allowed to be reimbursed up to $20 per day to hire other people, to perform these services. Under the Michigan system, an injured person is also entitled to receive a personal service allowance not to exceed $20 per day to reimburse the victim for expenses reasonably incurred in obtaining ordinary and necessary services in lieu of those that the victim would have performed for the benefit of the victim or the victim’s dependents had the victim not been injured. If you paid or promised to pay for household services, chores, errands, etc. that you would have accomplished on your own, then you may be entitled to reimbursement for these expenses. The person performing the services could be a family member, friend or stranger. A physician needs to document that you are unable to do these tasks on your own, and your insurance company may require documentation of who performed what services for you and when. Michigan law allows for only three years of replacement service benefits.



In cases of severe injury, benefits include an obligation to pay for renovations to a home or apartment, and in some cases, to even construct a new residence if such accommodations are now reasonably necessary. Room and board expenses may also be recovered if an accident victim would otherwise require institutionalization were it not for the fact that the victim is cared for at home. If special transportation is required such as handicapper equipped automobiles, specially equipped vans, or other accomodations, your first party carrier must pay for the cost of those vehicles. The allowable expense benefit also includes reimbursement for mileage to and from reasonably necessary medical care. In the cases of severely injured victims who require the appointment of a guardian or conservator, Michigan courts have held that such probate related expenses are also included as part of the allowable expense benefit.

Survivor Loss

In the case of death, the no-fault statute provides for payment of survivor’s loss benefits to the dependents for a three year period . Survivor’s loss benefits compensate a decedent’s dependent for a loss of contributions of tangible things of economic value that the dependents would have received for support during their dependency. Survivor’s loss benefits include the after tax income of the decedent and the value of fringe benefits which the decedent’s dependents have lost as a result of the death.

Mileage Reimbursement
Medical treatment and physical therapy often require an injured person to travel to and from appointments. Michigan No-Fault Law provides for the reimbursement for mileage traveled to and from doctor's appointments. You should keep track of all doctor vists so that you can obtain the correct reimbursement.

Michigan First-Party Order of Priority

Although your own insurance is first in line to pay in a Michigan automobile accident, there are occasions where an uninsured individual is an innocent passenger in a motor vehicle. The No-Fault Act sets forth the priority under which the proper insurance company is legally responsible.

Third-Party Rights

THIRD PARTY CLAIMS:

The third-party claim compensates a person injured in an auto accident for damages, such as his or her past, present, and future non-economic losses and any excess economic losses if applicable. A third-party plaintiff is not entitled to sue the negligent driver for compensation for any economic damages which have already been paid or are owed by the plaintiff's own first-party insurance company.

Michigan auto accident third-party claims involve automobile negligence claims. In a third-party claim, a plaintiff sues the driver or owner of a vehicle, alleging negligence causing an auto accident injury. If the driver or owner of the vehicle has no-fault insurance, the person injured in the auto accident may sue him or her for certain damages such as pain and suffering, as long as the claimant's injuries meet the threshold requirement of death, permanent serious disfigurement, or serious impairment of body function. The plaintiff may also sue for any economic losses resulting from the auto accident that exceed the statutory no-fault maximum amount. Claims cannot be made for loss of earning capacity.
The Statute of Limitations or time a person has to file a Third Party lawsuit is 3 years. Minors are allowed until one year past their 18th birthday and there are certain other exceptions for military personnel and those judged mentally incompetent.

If a person sustains bodily injury in a motor vehicle accident caused by the fault (i.e., negligence) of another driver, the Michigan No-Fault Act permits the victim to pursue a liability claim. This liability claim (also called the tort claim or the negligence claim) permits the victim to recover compensation for two types of damages: excess economic loss and non-economic loss. Damages for "excess economic loss" consist of those out of pocket losses that are not compensable by no-fault benefits, i.e., wage loss in excess of the monthly maximum or lasting beyond the three year wage loss benefit period and replacement service expenses in excess of $20 per day or lasting beyond the three year benefit period. Damages for "non-economic loss" consist of those losses that affect a person’s quality of life, such as pain and suffering; incapacity, disability and loss of function; diminished social pleasure and enjoyment; mental anguish and emotional distress, etc. However, under the Michigan no-fault law, an accident victim is only entitled to recover damages for non-economic loss if the victim sustained a "threshold injury." Under the statute, a threshold injury is any one of three things: (1) serious impairment of body function; (2) permanent serious disfigurement; or (3) death. The threshold element of "serious impairment of body function" was recently defined by a statutory amendment to require "an objectively manifested impairment of an important body function that affects the injured person’s general ability to lead his or her normal life." The threshold element of "permanent serious disfigurement" is not defined in the statute. Whether an injury rises to the level of "serious impairment of body function" or "permanent serious disfigurement" is a matter that depends upon the facts and circumstances of each individual case. Obviously, the more serious the injury, the more likely that the injury "crosses the threshold." The best way to determine whether a particular injury satisfies the threshold requirements of the Michigan act is to consult attorneys who specialize in auto no-fault cases. The Michigan statute further provides that non-economic damages are not recoverable if the victim is more than 50% at fault, or if the victim was driving an uninsured vehicle at the time of the accident which was owned by the victim.

Even though a threshold injury is required in order to recover non-economic damages under the Michigan No-Fault Act, a threshold injury is not required in order to recover damages for excess economic loss. Therefore, if a person sustains work loss in excess of the monthly no-fault work loss benefits or sustains a loss of income beyond the three year no-fault work loss benefit period, a liability claim can be pursued regardless of whether the injury constitutes a threshold injury.

Since no-fault PIP benefits often do not fully compensate auto accident victims for all of the economic damages they sustain, the liability claim is oftentimes the only way a victim can recieve all of the economic damages they have suffered. If a person sustains a serious injury in a motor vehicle accident caused by the fault of another driver, the injured person should contact an attorney about pursuing a lawsuit for excess economic loss and non-economic losses and damages.

Frequently Asked Questions About Michigan Automobile Accident Law

Question: How many traffic related accidents occur each year?
Answer: Statistics on car accidents indicate that annually there are over 6 million motor vehicle accidents involving cars, trucks, SUVs and motorcycles in the United States alone. In addition, the Federal government estimates that there were at least 10 million unreported accidents.

Question: How many people are injured in these accidents?
Answer: In 2000 over 3.2 million people were injured on our Nation's roadways.

Question: How many were killed?
Answer: Unfortunately, over 40,000 people died in traffic related accidents during 2000. In fact, traffic accidents are the leading cause of death for those between the ages of 6 and 33. 90% of all transportation related fatalities are associated with cars, trucks and motorcycles.

Question: What is the monetary cost associated with all of these accidents?
Answer: The Federal government estimates that automobile and motorcycle accidents cost society over $150 billion each year.

Question: What should I do if I am involved in a traffic accident?
Answer: Obviously, the most important thing for you to do after an accident is to seek medical attention. At the accident scene, you should get the driver's license numbers and vehicle registration information along with the names and addresses of vehicle passengers and bystanders who may have witnessed the accident. Also, make sure to record the names of any emergency personnel such as police officers or paramedics who respond to the scene. Remember, many people are in shock after a collision and fail to realize they are injured. Others injuries don’t start to hurt for 24 hours or more after the accident.

Question: Should I contact an attorney if I have been seriously injured in an automobile accident?
Answer: It may be important for you to contact an attorney who can help you protect your legal rights. Only a licensed attorney can evaluate whether you have a case that is worth pursuing. It is critical that you understand that there may be time limits (Statute of Limitations) which impact on your ability to sue.

Question: How much does an attorney evaluation cost in these types of cases?
Answer: Nothing. I will evaluate your case free of charge. If a participating attorney agrees to handle your case, you will owe no fees or other costs unless that attorney recovers money for you.

Question: My carrier is not paying or reimbursing the full amount of the wages I was making from my employer. They say they don't have to pay 100% of my lost salary, it that true?
Answer: Your insurance company’s position may be correct. There are two limits on the amount of reimbursement for wage loss. The first is the limit that they only have to pay 85% of you lost wages. However, you do not have to pay state or federal taxes on this benefit like you would your regular wages. The second is a cap under Michigan law. Essentially, there is a maximum monthly payout of No-Fault wage loss benefits. If you were making a high salary or income, you will not be reimbursed even at 85%. This maritimum amount or cap amount is adjusted every year for inflation. You should know that you may have a claim against the at-fault driver for excess wage loss, beyond the amount reimbursed by your insurance company

Question: I did not have insurance on my car when the other guy crossed the centerline and struck me head on. The accident was not my fault. What are my legal rights?
Answer: The law requires you to have insurance and there are penalties under the PIP law for failing to have insurance. In effect, you are denied certain, but not all, benefits if you fail to carry the mandated insurance. For instance, the no-fault statute excludes owners of vehicles who violate the law by failing to have insurance from receiving first party benefits. You should contact an attorney to determine what rights may still be available.

Question: A driver changed lanes into me when I was driving my motorcycle. The other driver was clearly in the wrong. Does the no-fault statute cover motorcycles?
Answer: The short answer is yes in your case. As long as .you are injured in an accident involving a "motor vehicle", there is not difference between in your first or third party rights regardless of whether you are driving a truck, bus, car or motorcycle.

Question: I caused the accident which injured two people in the other car and the passenger in my car. I also went to the hospital by ambulance and received x-rays, pain medications and other treatment. Do I have to pay for my own medical bills since I was at fault?
Answer: No. As long as you are insured, your insurance carrier will pay all of the first party benefits to you, regardless of who caused the accident. That is why we call it ‘no-fault’ insurance. When it comes to first party benefits, fault is irrelevant and benefits must be paid.

Question: What is Uninsured Motorist Coverage?
Answer: Uninsured Motorist Coverage is an insurance coverage option which allows you possible recovery from your insurance policy if the at-fault driver does not have insurance coverage, or, importantly, if the at-fault driver can not be identified (i.e. hit and run driver). It is recommended that all drivers carry uninsured coverage.

Question: Is there a difference between uninsured motorist coverage and underinsured motorist coverage?
Answer: Yes. Underinsured coverage provides an additional means of collection when one is seriously injured in an accident. It is distinguishable from uninsured coverage which is available when there is no identifiable insurance on an at-fault vehicle. For example, if you carried a policy of $100,000 underinsured coverage and there was a $20,000 policy of insurance on the at-fault diver, it would be possible to seek up to $80,000 in additional compensation from your own insurance company. This is provided that your attorney has secured a tender offer of the underlying policy of insurance. These claims must be handled carefully. Premature acceptance of an underlying policy in full settlement of a claim could forfeit your right to an uninsured policy. Note that an uninsured endorsement on a policy does not necessarily include an underinsured endorsement.

Question: What if I already have health insurance or other medical coverage which is paying for my medical treatment?
Answer: No-fault benefits may be coordinated with other health and accident coverages if the injured person has purchased a coordinated policy. There may be a set off of governmental benefits from no-fault benefits and for the coordination of private insurance benefits. The no-fault statute states that any benefits "provided or required to be provided" by the laws of any state or federal government (such as workers compensation or social security disability benefits) shall be a dollar for dollar reduction from like kind no-fault benefits. In those situations where the injured person’s no-fault coverage is coordinated, the no-fault insurer only pays those allowable expenses and work loss benefits that are not paid by private health and disability insurance coverages. If, however, the victim has purchased uncoordinated no-fault coverage, it is sometimes possible for the victim to recover under both the no-fault policy and the other health and disability policy.

Question: What are the Notice Provisions Under Your Policy / Other Limitation Periods?
Answer: The Michigan no-fault statute also contains very specific provisions addressing how no-fault benefits must be claimed and when they are payable. In this regard, there are two important rules to remember. First, an accident victim must give his or her no-fault insurance company written notice in order to be legally entitled to receive PIP benefits. This written notice must be provided within one year of the date of the accident and must set forth the name and address of the claimant and a summary of the time, place and nature of the injuries. Second, the statute also contains a one year enforcement rule. This means that if a particular expense has not been paid by the no-fault insurance company, legal action must be filed within one year of the date that particular expense was incurred or payment for that particular expense will not be enforceable. Therefore, it is very important for accident victims to process their PIP claims expeditiously and to seek legal advice if a benefit has not been fully paid within a few months after it has been submitted. There are exceptions to these one year time rules. For example, if an accident results in catastrophic injury which renders the victim incapable of fully appreciating his or her legal rights, then the one year rules may very well not apply. This is often the case with persons sustaining serious traumatic brain injury. In addition, the courts have held that the one year rule does not apply to children. You should contact an attorney and make sure your claims are processed correctly within the correct time periods, even with minors and incapacitated persons.

Question: Should I take photographs?
Answer: Yes. Take photos of the accident scene and the injuries, even while you are still in the hospital. The most powerful evidence inmost cases are the photographs or video. Pictures really do speak a thousand words, especially for hospital treatment, burns, cuts, scars, physical therapy, broken bones, x-rays, CT scans, etc.

Question: Should I speak with the Insurance adjuster if he/she calls?
Answer: NO! As previously indicated, the insurance company for the party at fault will be conducting an investigation soon after the accident. One of the first things that is typically done in connection with such an investigation is to contact the victim and ask the victim to give a statement, either in writing or by tape recorder. The victim should absolutely refuse to do this unless he or she has first consulted with an attorney specializing in personal injury law regarding the advisability of such an interview. In this regard, it is important to remember what the police tell suspects in criminal cases prior to taking statements: "What you say can and will be used against you!"

Question: My insurance company called and asked me to sign medical releases so they can get my medical records? Do I have to give them my records?
Answer: It depends on which insurance company is asking for the release, yours or the at-fault driver. For your first-party benefits, the insurance company does not have to pay PIP until they receive adequate documentation to support the claim for benefits. If it is your insurance company, you should consult an attorney. I do not recommend signing medical releases or having any contact with the other driver’s insurance company. I typically handle all such requests directly on behalf of my cleint.

Question: What if the insurance company calls me on the phoen and says they want to pay me money to settle?
Answer: Many times the insurance company representing the party at fault will approach a seriously injured victim and offer to make a settlement of the bodily injury tort claim in exchange for the victim signing a full release of liability. Typically, you should not sign such settlement agreement without consulting an attorney first.

Call Me / Free Consultation

Attorney Enrico Schaefer

You may call me, or email me directly, for a free consultation.

Contingency fee and alternative biliing representation in a variety of lawsuits.

No Settlement or Recovery = No Legal Fee in contingency fee cases.

by dialing 1-231-313-0564.

Michigan’s “Move Over” Law

Michigan’s “Move Over” law requires drivers to move over one lane, or slow down if they can’t move over, when they see a police car, fire truck or emergency vehicle on the side of the road with its lights flashing. The "Move Over" law, enacted in 2001, requires motorists passing an official roadside emergency to drive in the lane farthest away or to slow down. It's meant to protect emergency workers.

In 2004, the Michigan Legislature and Gov. Jennifer Granholm amended the law to include emergency vehicles like tow trucks, placing them on the same level as police cars and ambulances.

The amended law, which goes into effect in about three months, says that motorists passing tow trucks that are pulled to the side of the road and have their red or amber lights flashing must move over one lane if possible, or slow down just as they must for other emergency vehicles. If you don’t, you could face a $50 fine and 90 days in jail. Anyone injuring a tow-truck driver, or other personnel working on the side of the road, faces up to two years behind bars and a $1,000 fine. That penalty rises to 15 years and a $7,500 fine for killing an emergency worker.

Be careful out there and when it comes to emergency workers and construction workers, 'Give Em A Brake!."

Dram Shop Actions

Chapter 75: Dram Shop Actions
Introduction
Instructions
M Civ JI 75.01 Dram Shop—Explanation of Statute
M Civ JI 75.02 Dram Shop—Definitions
M Civ JI 75.11 Dram Shop—Sale to Minor: Burden of Proof
M Civ JI 75.12 Dram Shop—Sale to Visibly Intoxicated Person: Burden of Proof
M Civ JI 75.13 Dram Shop—Contributing to Occurrence Not a Defense
Chapter 75: Dram Shop Actions—Introduction
In 1986 (1986 PA 176), the legislature made substantial modifications to the Dram Shop Act. The act was renumbered in 1998 as part of the repeal and recodification of the Michigan Liquor Control Code. Subsection (3) of MCL 436.1801, sets forth the cause of action as follows:

(3) Except as otherwise provided in this section, an individual who suffers damage or who is personally injured by a minor or visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of alcoholic liquor to the minor or visibly intoxicated person, if the unlawful sale is proven to be a proximate cause of the damage, injury, or death, or the spouse, child, parent, or guardian of that individual, shall have a right of action in his or her name against the person who by selling, giving, or furnishing the alcoholic liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the damage, injury, or death. In an action pursuant to this section, the plaintiff shall have the right to recover actual damages in a sum of not less than $50.00 in each case in which the court or jury determines that intoxication was a proximate cause of the damage, injury, or death.

I. Elements of a Cause of Action

A. Unlawful Selling, Giving, or Furnishing of Alcoholic Liquor

The transaction giving rise to liability under the Dram Shop Act is an “unlawful selling, giving, or furnishing of alcoholic liquor to the minor or visibly intoxicated person.”

Although most of the cases have involved an actual “sale,” the statute makes clear that “giving, or furnishing” will also suffice. In King v Partridge, 9 Mich App 540; 157 NW2d 417 (1968), the court of appeals decided that a bar employee’s serving herself intoxicating liquor constitutes an unlawful “giving or furnishing” where there was no indication that the taking of the liquor was in violation of the employer’s orders.

A sale of liquor that is illegal due to its time or day (i.e., a Sunday sale) is not the type of illegal sale that gives rise to liability under the Dram Shop Act. Pesola v Pawlowski, 45 Mich App 516; 206 NW2d 780 (1973).

The requirements of the statute vary depending on which of the two types of unlawful sales is involved: an unlawful sale to a minor, or an unlawful sale to a visibly intoxicated person. (The term “minor” is defined in the act to mean a person under 21 years of age. MCL 436.1109(3).)

Direct and Indirect Sales

“Unlawful” sale to a minor may be interpreted with reference to subsection (2) of MCL 436.1801, which says that a retail licensee shall not directly sell (give or furnish) to a minor. (The pre-1986 statute prohibited indirect as well as direct sales to minors.) If indirect sale means a situation where a licensee sells to a buyer who then furnishes the liquor to a minor, the licensee may not be liable under the present statute if the minor became intoxicated and injured someone. This may represent a departure from case law that recognizes the potential liability of a licensee who knew or had reason to know that the purchase of liquor was being made for the minor who ultimately caused the injury. Maldonado v Claud’s, Inc, 347 Mich 395; 79 NW2d 847 (1956); Meyer v State Line Super Mart, Inc, 1 Mich App 562; 137 NW2d 299 (1965); Verdusco v Miller, 138 Mich App 702; 360 NW2d 281 (1984).

Where a dram shop action is based on an unlawful sale to a visibly intoxicated person, if “unlawful” is to be construed with reference to subsection (2) of MCL 436.1801, that subsection prohibits both indirect and direct sales, giving, or furnishing to visibly intoxicated persons.

State of Intoxication at the Time of Sale

In an action based on a sale to a minor, it is not necessary to show that the minor was intoxicated at the time of the sale. Maldonado.

Where the cause of action is based on a sale to one other than a minor, it is necessary to show that the person is “visibly intoxicated” at the time of the sale. MCL 436.1801(3). See also MCL 436.1801(2). The requirement of “visibly” intoxicated dates back to a 1972 amendment to the act. See Hollis v Abraham, 67 Mich App 426; 241 NW2d 231 (1975); McKnight v Carter, 144 Mich App 623; 376 NW2d 170 (1985).

B. Causal Relationship Issues

Two issues of causal relationship may arise under the act: (1) whether the injury or damage was caused by the minor or visibly intoxicated person, and (2) whether the unlawful sale was a proximate cause of the plaintiff’s injury or damages.

(1) Injury Caused by a Minor or Visibly Intoxicated Person

The statute requires that the plaintiff “suffers damage or … is personally injured by a minor or visibly intoxicated person.” The issue suggested by this language is whether the visibly intoxicated person or minor caused the injury or damage. In some cases, it is contended that the injury was caused by someone or something else. Duma v Janni, 26 Mich App 445; 182 NW2d 596 (1970). Where the injury was not caused by the intoxicated person, the conclusion must also be that the sale was not a proximate cause of the injury. See discussion under 1(B)(2) Sale as a Proximate Cause of the Injury, infra.

(2) Sale as a Proximate Cause of the Injury

Before the 1972 amendment to the Dram Shop Act, which added the proximate cause requirement, the statute provided for an action against a licensee who “caused or contributed to the intoxication of said person or persons or who shall have caused or contributed to any such injury.”

Although this language remains a part of the statute, the question of the sale’s contributing to the intoxication is seldom an issue and is obscured by the current express requirement of a proximate cause relationship between the unlawful sale and the injury or damage.

Before the 1972 amendment, it apparently was not necessary to show that the unlawful sale was a proximate cause of the injury or damages. In Heikkala v Isaacson, 178 Mich 176, 182; 144 NW 508, 510 (1913), the court said: “[T]here was no question before the jury whether the intoxication of Lund was or was not the natural cause of the act which caused the injury. The act itself by a person intoxicated, to whom liquor has been sold unlawfully, fixes the liability for the damage upon the person furnishing the liquor which caused or contributed to the intoxication.” See also Brockway v Patterson, 72 Mich 122, 128; 40 NW 192, 195 (1888). (It should be noted, however, that several Michigan cases construed the pre-1972 version of the Dram Shop Act to require a causal connection between the unlawful sale and the injury. Rizzo v Kretschmer, 389 Mich 363, 370 n 4; 207 NW2d 316, 319 n 4 (1973); Durbin v K-K-M Corp, 54 Mich App 38, 58; 220 NW2d 110, 121 (1974).

The present version of the statute continues the express requirement that “the unlawful sale is proven to be a proximate cause of the damage, injury, or death.” The effect of the proximate cause requirement is that in addition to proving that the intoxicated person caused the injuries or damages, the plaintiff must prove that the conduct, act, or omission that caused the injury or damages was the natural and probable result of the selling, giving, or furnishing of alcoholic liquor. Since the probable effect of the alcoholic liquor on the person’s behavior may be difficult to establish by objective evidence, this element of the case will have to be supplied by an inference to be drawn by the trier of fact from the circumstances as shown by the evidence. Cases have considered the proximate cause requirement where there is no indication that the person continued to be intoxicated or sobered up before the injury occurred. Bryant v Athans, 362 Mich 17; 107 NW2d 389 (1960).

This added requirement of proximate cause has potential for denying recovery in some of the factual situations described in early cases. See Dice v Sherberneau, 152 Mich 601; 116 NW 416 (1908), where the court said it was not necessary for the plaintiff widow to show that the intoxication was the cause of her husband’s suicide.

C. What Types of Injuries Are Covered by the Act?

See discussion under III Who Has a Cause of Action Under the Act?, infra.

D. “Visibly Intoxicated”

See Comment to M Civ JI 75.02 Dram Shop—Definitions

II. Who Can Be Held Liable Under the Act?

Only retail licensees can be held liable under the Dram Shop Act. Tennille v Action Distributing Company, Inc, 225 Mich App 66; 570 NW2d 130 (1997) (act not applicable to wholesale licensees). MCL 436.1801(2), (3). This class also includes those who fail to obtain or maintain the required licensing. Guitar v Bieniek, 402 Mich 152; 262 NW2d 9 (1978).

Suit may be maintained against each of several bars that sold liquor to an intoxicated person. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). However, the statute provides that: “There shall be a rebuttable presumption that a retail licensee, other than the retail licensee who last sold, gave, or furnished alcoholic liquor to the minor or the visibly intoxicated person, has not committed any act giving rise to a cause of action under subsection (3).” MCL 436.1801(8).

An owner of an establishment is liable for unlawful sales made by employees even if the sale was not authorized or was contrary to instructions. Dice v Sherberneau, 152 Mich 601; 116 NW 416 (1908).

Under prior law, a surety could be sued under the Dram Shop Act. Browder v International Fidelity Insurance Co, 413 Mich 603; 321 NW2d 668 (1982). While the 1986 amendments (MCL 436.22a(6)) prohibit naming a surety or insurer as a defendant, a new section was added permitting suit, including recovery of punitive damages, where an insurer fails to pay a judgment against the insured within 90 days. MCL 436.22e. (See now MCL 436.1803(4), .1809.)

One with only a security interest in assets of a bar who becomes a co-receiver after an unlawful sale cannot be sued under the Dram Shop Act. Ray v Taft, 125 Mich App 314; 336 NW2d 469 (1983).

A plaintiff must name and retain in the action the alleged intoxicated person or minor who caused the injury. MCL 436.1801(5). (The name-and-retain provision is excused under certain circumstances. Green v Martin, 455 Mich 342; 565 NW2d 813 (1997).) Settlements or agreements to limit recovery preclude a suit against the dram shop defendant. Putney v Haskins, 414 Mich 181; 324 NW2d 729 (1982), reh denied, 414 Mich 1111 (1982); Riley v Richards, 428 Mich 198; 404 NW2d 618 (1987).

Private individuals who supply alcoholic liquor to social guests are not liable under the Dram Shop Act, but are subject to common-law negligence liability based on violation of section 33 (now section 701, MCL 436.1701) of the Michigan Liquor Control Act, MCL 436.1101 et seq., if they serve liquor to a minor. Longstreth v Gensel, 423 Mich 675; 377 NW2d 804 (1985). However, a common-law negligence action based on violation of section 26c(2) of the Michigan Liquor Control Act (now section 913(2) of the Michigan Liquor Control Code of 1998) may not be maintained against an unlicensed banquet facility operator who allows liquor consumption on the premises. Gardner v Wood, 429 Mich 290; 414 NW2d 706 (1987).

III. Who Has a Cause of Action Under the Act?

An individual (or the spouse, child, parent, or guardian of an individual) who sustains injury or damage as a result of the conduct of a minor or visibly intoxicated person to whom liquor has been unlawfully sold has a cause of action under the act. However, 1986 PA 176 made a substantial departure from prior law regarding claims for damages by relatives of a visibly intoxicated person who has injured himself or herself.

Prior law allowed a suit by a relative of an adult intoxicated person for damages such as loss of support, loss of society and companionship, etc. caused by the intoxicated person injuring himself or herself. O’Dowd v General Motors Corp, 419 Mich 597; 358 NW2d 553 (1984); Eddy v Courtright, 91 Mich 264, 51 NW 887 (1892). The amended Dram Shop Act expressly excludes actions by relatives for these kinds of damages:

… and a person shall not have a cause of action pursuant to this section for the loss of financial support, services, gifts, parental training, guidance, love, society, or companionship of the alleged visibly intoxicated person.

MCL 436.1801(9). (The constitutionality of this limitation on the types of damages that relatives may recover has been upheld. Roy v Rau Tavern, Inc, 167 Mich App 664; 423 NW2d 54 (1988).) The amendment, however, does not preclude an action by a relative of the alleged visibly intoxicated person for other kinds of damages, or for personal injury to the relative that was caused by the intoxicated person. See Podbielski v Argyle Bowl, Inc, 392 Mich 380; 220 NW2d 397 (1974).

Cases construing the prior statute permitted actions by relatives of minors for damages, including loss of support, caused by the minor injuring himself or herself. La Blue v Specker, 358 Mich 558; 100 NW2d 445 (1960). However, the present statute has been construed to preclude such actions by relatives of an intoxicated minor. LaGuire v Kain, 440 Mich 367; 487 NW2d 389 (1992).

Visibly Intoxicated Person and Minor

The 1986 amendments to the Dram Shop Act (recodified in 1998) explicitly exclude the alleged visibly intoxicated person from those who have a cause of action against a licensee. MCL 436.1801(9). This codifies prior case law. Malone v Lambrecht, 305 Mich 58; 8 NW2d 910 (1943) (intoxicated person injured himself falling down flight of stairs in bar); Brooks v Cook, 44 Mich 617; 7 NW 216 (1880) (opinion by Justice Cooley; plaintiff who had pockets picked while drunk was denied recovery under dram shop statute). But see Heikkala v Isaacson, 178 Mich 176, 144 NW 508 (1913) (recovery possible where innocent intoxicated person injured by another intoxicated person).

Subsection (3) of MCL 436.1801, which provides a cause of action to “an individual who suffers damage or who is personally injured by a minor,” has been construed to preclude an action by the imbibing minor or the minor’s estate. LaGuire. However, the minor does have a common-law negligence action against a social host. Longstreth v Gensel, 423 Mich 675, 696; 377 NW2d 804 (1985).

IV. Defenses to a Cause of Action Under the Act

All Defenses of the Visibly Intoxicated Person or Minor Available to Licensee

A 1972 amendment to the Dram Shop Act, 1972 PA 196, allowed the licensee to raise “all factual defenses open to the alleged intoxicated person or minor.” Comparative negligence is a factual defense based on causation; where plaintiff sues a licensee in a dram shop action and sues an intoxicated person on a negligence theory, the intoxicated person’s defense that plaintiff was contributorily negligent is equally available to the licensee. Lyman v Bavar Co, 136 Mich App 407; 356 NW2d 28 (1984). (Thus, the licensee is entitled to have the judgment against it reduced by the percentage of plaintiff’s negligence.) A licensee is also entitled to have a judgment against it reduced by the percentage of the plaintiff’s fault in an altercation with the defendant to whom the illegal sale was made. Brown v Swartz Creek Memorial Post 3720—Veterans of Foreign Wars, Inc, 214 Mich App 15; 542 NW2d 588 (1995).

1986 PA 176 (recodified in 1998) broadened defenses available to licensees by deleting the word “factual”: “All defenses of the alleged visibly intoxicated person or the minor shall be available to the licensee.” MCL 436.1801(7). The most probable and significant impact of this change is to allow the licensee to assert the no-fault threshold defenses.

The 1986 amendment giving the licensee “all” defenses available to the alleged visibly intoxicated person or minor also eliminates the potential, which existed under prior law, for the licensee to be liable to a plaintiff injured in an affray even though the intoxicated person would escape liability because he or she acted in self-defense. See Archer v Burton, 91 Mich App 57, 61; 282 NW2d 833 (1979); see also Doty v Postal, 87 Mich 143; 49 NW 534 (1891); Morgan v Backseat Saloon Country Cousin, Inc, 114 Mich App 89; 318 NW2d 617 (1982). Under the statute, a successful defense of self-defense by an alleged intoxicated person will eliminate any liability of the licensee.

Noninnocent Person—Actively Contributing to Intoxication

One who actively contributes to the intoxication of a person and is subsequently injured by that person is precluded from recovery. Kangas v Suchorski, 372 Mich 396; 126 NW2d 803 (1964); Morton v Roth, 189 Mich 198; 155 NW 459 (1915). These noninnocent person cases have usually involved purchasing liquor for or supplying liquor to the intoxicated person, but in Larrow v Miller, 216 Mich App 317; 548 NW2d 704 (1996), the court determined that plaintiff’s decedent who supplied defendant with an illegal drug (marijuana cigarettes) actively contributed to defendant’s intoxication. The mere act of buying drinks for an adult before he or she becomes visibly intoxicated does not as a matter of law make that person a noninnocent party. Arciero v Wicks, 150 Mich App 522; 389 NW2d 116 (1986). (The court distinguished the case of minors for whom supplying alcohol at any time is illegal.) Where the plaintiff merely drinks liquor with the intoxicated person, that is not the active participation in the actor’s intoxication that would preclude recovery. Dahn v Sheets, 104 Mich App 584; 305 NW2d 547 (1981), lv denied, 412 Mich 928 (1982).

The Michigan Supreme Court has rejected the argument that in light of the adoption of comparative negligence, contributing to the intoxication should no longer be a bar but rather should be a partial defense to a dram shop action. Craig v Larson, 432 Mich 346; 439 NW2d 899 (1989). This noninnocent party rule applies equally to minors as to adults who actively participate in the intoxication of the tortfeasor. Id.

Identification Card As Defense to Sale to Minor

Under subsection (7) of the statute (MCL 436.1801(7)), it is a defense to an action based on unlawful sale to a minor that the defendant retail licensee (agent or employee) demanded and was shown a Michigan driver’s license or official state personal identification card, appearing to be genuine and showing that the minor was at least 21 years of age. In a case where this defense is proved but where the minor also happened to be visibly intoxicated at the time of the sale, the plaintiff would presumably have the option of showing an unlawful sale based on the fact of visible intoxication (as well as the other elements of the action) and succeed despite the defense.

V. Damages and Allocation of Fault

Dramshop actions against retail licensees are subject to the provisions of the Revised Judicature Act. MCL 436.1801(11). The sections of the Revised Judicature Act that require specific findings of past and future damages and types of damages (MCL 600.6305) and postverdict adjustments by the trial judge (MCL 600.6306) apply to dramshop actions. Weiss v Hodge, 223 Mich App 620; 567 NW2d 468 (1997), lv den, 457 Mich 886; 586 NW2d 231 (1998). If there are multiple defendants, including a dramshop defendant, the allocation of fault provisions of MCL 600.6304 apply. Brown; see also Weiss, in which the court of appeals upheld the jury’s allocation of a greater percentage of fault to the licensee and lesser fault to the intoxicated defendant.

Prior to 1972, the Dram Shop Act allowed for recovery of “damages actual and exemplary.” The word “exemplary” was deleted and the current version of the statute provides for “actual damages in a sum of not less than $50.” MCL 436.1801(3). For a discussion of actual and exemplary damages as they pertain to mental distress and other injury to feelings, see Hink v Sherman, 164 Mich 352; 129 NW 732 (1911); Veselenak v Smith, 414 Mich 567; 327 NW2d 261 (1982).

VI. Dram Shop Action As Exclusive Remedy for Unlawful Sale

The 1986 amendments to the Dram Shop Act (recodified in 1998) expressly provide that it is the “exclusive remedy for money damages against a licensee arising out of the selling, giving, or furnishing of alcoholic liquor.” MCL 436.1801(10). This was previously well recognized in case law but not embodied in the statute. See, e.g., Brownier v International Fidelity Insurance Co, 413 Mich 603; 321 NW2d 668 (1982); Verdusco v Miller, 138 Mich App 702; 360 NW2d 281 (1984); Rowan v Southland Corp, 90 Mich App 61; 282 NW2d 243 (1979).

The exclusive remedy provision precludes an injured intoxicated person from bringing a common-law action for gross negligence, willful and wanton, or intentional misconduct against a liquor licensee, notwithstanding the fact that the licensee knew that the person was an alcoholic or intoxicated to the point of helplessness. Jackson v PKM Corp, 430 Mich 262; 422 NW2d 657 (1988).

The Dram Shop Act is also the exclusive remedy where a licensee furnishes alcoholic beverages to an employee and the common law does not recognize a separate claim for negligent supervision of the employee to whom alcohol has been served. Millross v Plum Hollow Golf Club, 429 Mich 178; 413 NW2d 17 (1987).

But the exclusive remedy provision does not preclude common-law actions against the dram shop defendant for unlawful or negligent conduct other than the selling, giving, or furnishing of alcoholic liquor. Manuel v Weitzman, 386 Mich 157; 191 NW2d 474 (1971) (count in negligence against bar owner for failure to keep premises safe for business invitee may be maintained in addition to dram shop count). TOP

M Civ JI 75.01 Dram Shop—Explanation of Statute

We have a state law known as the Dram Shop Act which provides that persons who are injured or damaged by a minor or a visibly intoxicated person may, under certain circumstances, receive damages from the person who sold, gave or furnished the alcoholic liquor.

Note on Use

The instructions in this chapter should be given only where there is some evidence of a Dram Shop Act violation and that the injured party is within the class intended to be protected by the statute.

History

M Civ JI 75.01 was SJI 27.01.
Amended May 1982, May 1988. TOP

M Civ JI 75.02 Dram Shop—Definitions

“Intoxicated”

A person is “intoxicated” when, as a result of drinking alcoholic liquor, his or her mental or physical senses are impaired.

Visibly Intoxicated”
A person is “visibly intoxicated” when his or her intoxication would be apparent to an ordinary observer.

“Alcoholic Liquor”

“Alcoholic liquor” includes beer and wine as well as other alcoholic beverages.

Note on Use

The court may wish to precede this instruction with M Civ JI 10.01 Definitions Introduced.

Comment

In Lafler v Fisher, 121 Mich 60, 62–63; 79 NW 934, 935 (1899), the Michigan Supreme Court approved the following definition of “intoxication,” which had been given by the trial court:

When it is apparent that a person is under the influence of liquor, or when his manner is unusual or abnormal, and his inebriated condition is reflected in his walk or conversation, when his ordinary judgment and common sense are disturbed, or his usual will power is temporarily suspended, when these or similar symptoms result from the use of liquors, and are manifest, then, within the meaning of the statute, the person is intoxicated, and anyone who makes a sale of liquor to such person violates the law of the State. It is not necessary that the person be so-called “dead drunk”, or hopelessly intoxicated; it is enough that his senses are obviously destroyed or distracted by the use of intoxicating liquors.

See also Groth v DeGrandchamp, 71 Mich App 439; 248 NW2d 576 (1976), where the Court of Appeals approved the trial court’s use of the Lafler instruction.

The thrust of the instruction in Lafler is that a person is intoxicated when, as a result of drinking liquor, there is an impairment of his or her mental or physical senses.

Other than actions involving sales to minors, the Dram Shop Act requires injury or damage by an intoxicated person by reason of an unlawful selling, giving, or furnishing of alcoholic liquor to the “visibly” intoxicated person. A person is visibly intoxicated when his or her intoxication would be apparent to an ordinary observer. Miller v Ochampaugh, 191 Mich App 48; 477 NW2d 105 (1991); Heyler v Dixon, 160 Mich App 130; 408 NW2d 121 (1987).

The definition of alcoholic liquor is found in the statute. MCL 436.1105(2).

History

M Civ JI 75.02 was SJI 27.02.
Amended May 1988. TOP

M Civ JI 75.11 Dram Shop—Sale to Minor: Burden of Proof

The plaintiff has the burden of proving each of the following:

a. that [name of plaintiff] was [injured / damaged] by [name of minor];

b. that [name of defendant / name of agent / name of employee]
*(directly) [sold / gave / furnished] alcoholic liquor to [name of minor];

c. that [name of minor] was under the lawful drinking age of 21 years at the time [he / she] was [sold / given / furnished] alcoholic liquor by [name of defendant / name of agent / name of employee];

d. that the [selling / giving / furnishing] of the alcoholic liquor was a proximate cause of [name of plaintiff]’s [injury / damage].

The defendant has the burden of proving the defense(s) that:

e. plaintiff purchased for or gave or furnished alcoholic liquor to [name of minor];

f. †[name of defendant / name of agent / name of employee] demanded and was shown [a Michigan driver’s license / an official state personal identification card] that appeared to be genuine and showed that [name of minor] was 21 years of age or older.

If [name of minor] was visibly intoxicated at the time of the [selling / giving / furnishing] of alcoholic liquor, then it is not a defense that [name of defendant / name of agent / name of employee] demanded and was shown [a Michigan driver’s license / an official state personal identification card] that appeared to be genuine and showed that [name of minor] was 21 years of age or older.

The court will provide you with a Special Verdict Form. Your answers to the questions on the Special Verdict Form will provide the basis on which this case will be resolved.

Note on Use

*If there is an issue whether the retail licensee directly sold, gave, or furnished alcoholic liquor to the minor, the word “directly” should be read to the jury and the trial judge may give an additional instruction on the meaning of “directly.” See the Comment below.

†The statute (MCL 436.1801(7)) does not define “official state personal identification card,” e.g., other state or foreign driver’s license, etc.

All defenses of the minor or alleged visibly intoxicated person are available to the licensee. MCL 436.1801(7). See Introduction to this chapter, part IV.

Comment

“Unlawful sale” to a minor may be interpreted with reference to subsection (2) of MCL 436.1801, which says that a retail licensee shall not directly sell, give, or furnish alcoholic liquor to a minor. (The pre-1986 statute prohibited indirect as well as direct sales to minors.) If indirect sale means a situation where a licensee sells to a buyer who then furnishes the liquor to a minor, the licensee may not be liable under the present statute if the minor became intoxicated and injured someone. This may represent a departure from case law that recognizes the potential liability of a licensee who knew or had reason to know that the purchase of liquor was being made for the minor who ultimately caused the injury. Maldonado v Claud’s, Inc, 347 Mich 395; 79 NW2d 847 (1956); Meyer v State Line Super Mart, Inc, 1 Mich App 562; 137 NW2d 299 (1965); Verdusco v Miller, 138 Mich App 702; 360 NW2d 281 (1984).

History

M Civ JI 75.11 was added May 1988 to replace M Civ JI 75.03 and 75.04.
Amended November 1989, January 2001. TOP

M Civ JI 75.12 Dram Shop—Sale to Visibly Intoxicated Person: Burden of Proof

The plaintiff has the burden of proving each of the following:

a. that [name of plaintiff] was [injured / damaged] by [name of alleged intoxicated person];

b. that [name of alleged intoxicated person] was visibly intoxicated at the time [he / she] was [sold / given / furnished] alcoholic liquor by [name of defendant / name of agent / name of employee];

c. that the [selling / giving / furnishing] of the alcoholic liquor was a proximate cause of [name of plaintiff]’s [injury / damage].

The defendant has the burden of proving the defense that plaintiff actively contributed to the intoxication of [name of alleged intoxicated person].

The court will provide you with a Special Verdict Form. Your answers to the questions on the Special Verdict Form will provide the basis on which this case will be resolved.

Note on Use

All defenses of the minor or alleged visibly intoxicated person are available to the licensee. MCL 436.1801(7). See Introduction to this chapter, part IV.

Subsection (2) of the statute (MCL 436.1801) prohibits both direct and indirect sales (giving or furnishing) to visibly intoxicated persons. This instruction and the corresponding form of verdict, M Civ JI 190.02 Form of Verdict: Dram Shop—Sale to Visibly Intoxicated Person, may have to be modified if there is an issue whether the sale, giving, or furnishing was indirect.

History

M Civ JI 75.12 was added May 1988 to replace M Civ JI 75.03 and 75.04.
Amended November 1989, January 2001. TOP

M Civ JI 75.13 Dram Shop—Contributing to Occurrence Not a Defense

There has been evidence that [plaintiff / plaintiff’s spouse / [other]] was [description of conduct]. I instruct you that such conduct is not a defense to a claim under the Dram Shop Act.

Note on Use

This instruction should not be used to describe conduct that is a defense to a dram shop action. See Comment in Section IV of Introduction, Defenses to a Cause of Action Under the Act.

In cases where there is evidence of conduct by the plaintiff, plaintiff’s spouse, or other person that would not be a defense, this instruction should be used to distinguish such conduct. See the Comment below.

Comment

Prior case law held that the licensee cannot raise a defense that the intoxicated person was contributorily negligent in actions that are brought by a relative of the intoxicated person for damages (i.e., loss of support, consortium) caused by the intoxicated person injuring himself or herself. Genesee Merchants Bank & Trust Co v Bourrie, 375 Mich 383; 134 NW2d 713 (1965); James v Dixon, 95 Mich App 527; 291 NW2d 106 (1980). Other wrongdoing by the alleged intoxicated person has also been held not to be a defense. Weatherbee v Byam, 160 Mich 600; 125 NW 686 (1910) (plaintiff’s husband unlawfully fishing when he drowned).

Under the 1986 amendments to the Dram Shop Act, claims for these types of damages have been eliminated for relatives of the alleged intoxicated person. But insofar as relatives of intoxicated minors may still sue for such damages, the licensee does not have a defense that the minor was contributorily negligent.

History

M Civ JI 75.13 was added May 1988 to replace M Civ JI 75.05. TOP

Kreiner Decision Tortures Michigan No-Fault Law

Here we go again. Our Michigan Supreme Court, recently referred to as on of the most activist court in the union, recently issued an opinion which may dramatically affect Michigan no-fault law. Kreiner disregarded the Michigan legislature's plain language under the no-fault language and added yet new hurdles to receiving benefits under our no fault statute. While bills have been introduced to the Michigan Legislature in order to restore Michigan’s no-fault law to allows claims of permanent disability, it is clear that the damage done by the Engler dominated Supreme Court of Michigan will be felt by Michigan citizens for many years into the future ….

Auto Safety Links

Automobile Safety is important.   Accidents cost society hundreds of millions of dollars every year.  Every year, millions of Americans are injured in car accidents. Many of these accidents are avoidable.  If everyone focused on being just a little safer behind the wheel, we could save a lot.  Our automobile insurance premiums and our health care costs would drop.  By reducing accidents, we save lives and money.

So remember to drive safely.  Use your seat belts.  Use child seats correctly.  Always use child restraints and boosters for children. Drive the speed limit. Pay attention to the road when you are driving.

Here are some important automobile safety links:

• Who's Who in Traffic Safety

• Insurance Institute for Highway Safety

• Automotive Coalition for Traffic Safety

• ATSSA - American Traffic Safety Services Association

• Welcome to AAA Foundation for Traffic Safety

• Vince & Larry's Safety City For Kids

• NHTSA - National Highway Traffic Safety Administration

Auto Insurance Coverage Types

There are 6 types of common coverages in automobile insurance. Your insurance policy may include all six or only some of them. Each coverage is priced differently/separately.

1. Bodily Injury Liability:   Pays for bodily injuries or death the policyholder causes to someone else.

2. Medical Payments:   Pays for medical expenses to the driver and passengers of the policyholder's car. Also called as Personal Injury Protection or (PIP).

3. Property Damage Liability:   Pays for someone else's property damage caused by the policyholder.

4. Collision:   Pays for damage to the policyholder's car caused by a collision. The collision could be with another car, a light post or any other objects including and not limited to a house.

5. Comprehensive:   Pays for damages to the policyholder's car that are not caused by a collision with another car. Covered risks include theft, fire, hail, flood, vandalism, and other causes.

6. Uninsured or Underinsured Motorist Coverage:  Pays for costs related to injuries as a result of collision with an uninsured, or underinsured driver. Underinsured motorist coverage comes into play when an at-fault driver has auto liability insurance, but the limit of insurance is inadequate to pay for your damages.

Your State's Requirements:

Each state requires that you have certain types of auto insurance coverages with minimum liability limits. These limits vary from state to state. Information about each state's insurance requirements and minimum liability limits are listed below in a table. (The first two figures refer to bodily injury liability limits and the third figure refers to property damage liability. For example, 25/50/10 means coverage up to $25,000 for one individual and $50,000 for all persons injured in an accident, and up to $10,000 for property damage.)

The insurance industry recommends that your bodily injury liability limits be $100,000/person and $300,000/occurrence.

The Insurance Company Wants Money Back

Sometimes, the PIP insurer will contact you saying that they overpaid some benefit and requesting reimbursement.  Whether or not you have to pay back money depends on the facts of your case.   Here are some guidelines for your review.

In MEEMIC v. Morris, 460 Mich 180 (1999), the Court stated without  discussion or citation that the statute of limitations in a claim for  reimbursement of no-fault benefits was 6 years.

In Wilson v Newman, 463 Mich 435, 441 (2000) the Michigan Supreme Court
summarized the principals regarding restitution of payments made by mistake:
"As a general rule, a payment made under a mistake of fact which induces the
belief that the other party is entitled to receive the payment when, in fact,
the sum is neither legally nor morally due to him, may be recovered, provided
the payment has not caused such a change in the position of the payee that it
would be unjust to require the refund." 

"If the Plaintiffs can demonstrate a change of position or detrimental
reliance as a consequence of having received the mistaken payment, they may be
entitled to retain all or part of the funds mistakenly paid by Allmerica.

Suing For Medical Bill Balances

McGill v. Automobile Ass'n, 207 Mich. App. 402  (1994)

The insureds were involved in claims where their insurance companies had paid a portion of their medical bills, but denied payment of the balance as being unreasonable charges. The insureds sought declaratory relief and an injunction ordering the insurance companies to pay the full amount of their medical bills, and to certify their suit as a class action. The insureds contended that the insurance companies' failure to pay their full medical bills could result in health care providers bringing legal action against them for the balance of their bills. The court disagreed, and affirmed the judgment of the trial court. The court held that a review of the record revealed no evidence that the insureds had suffered injury as a result of the insurance companies' partial payment of their medical bills, nor was any injury threatened. The court stated that where no case or actual controversy existed, the trial court lacked subject matter jurisdiction to enter a declaratory judgment, and properly granted the insurance companies' motions for summary disposition. Further, because the action was dismissed, the insureds' request for certification of the suit as a class action was properly denied.

Michigan Wrongful-conduct rule

The wrongful-conduct rule bars a claim where “‘a plaintiff’s action is based, in whole or in part, on his own illegal conduct.’” Hashem v Les Stanford Oldsmobile, Inc, 266 Mich App 61, 89; 697 NW2d 558 (2005), quoting Orzel v Scott Drug Co, 449 Mich 550, 558; 537 NW2d 208(1995). In a wrongful death action, the plaintiff, as the representative of the decedent’s estate, “has no better claim than the decedent would have had.” Hashem, supra at 88 n 10, citing Toth v Goree, 65 Mich App 296, 298; 237 NW2d 297 (1975). Thus, where there is “a sufficient causal nexus between” the decedent’s illegal conduct and the decedent’s damages, which in this case are her death, the wrongful-conduct rule will bar any recovery by plaintiff. Hashem, supra at 89. However, the rule will not apply merely because she engaged in illegal conduct, and the rule only applies to some kinds of illegal conduct. Id. at 89-91.
Barth v Goal Tender, Unpublished. September 22, 2005, No. 262605.