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As noted by my blog partner David Mittleman, the Michigan Supreme Court heard oral arguments on a very important case regarding the future of car accident victim’s rights. The outcome of this case will likely change the legal landscape for everyone who has been injured in an automobile accident, hopefully restoring fairness and equity to the law.

The law in Michigan changed in 2004 with the Michigan Supreme Court’s decision in Kreiner v Fischer. From that point forward, the legal rights of innocent injured victims in Michigan have slowly eroded and all but disappeared. A good summary of the rights of people injured in automobile accidents was provided by David, so I’ll repost the pertinent part here:

In 1973, Michigan’s "no fault" insurance legislation took effect. The law was meant to make it easier for injured people to receive certain insurance benefits from their own auto insurance carrier without the need and expense of litigation. Regardless of fault, accident victims would receive lifetime medical benefits for injuries resulting from the accident as well as up to three years’ worth of wage loss and replacement services related to the accident.

In exchange, it would be slightly more difficult to recover "non-economic" damages, such as those for pain and suffering. In order to recover for those injuries against the at-fault driver, an accident victim would have to show that he or she suffered a "threshold" injury.

Over the last 5 yeasr there were approximately 246 cases that went before the Michigan Court of Appeals on the issue of whether a person has suffered a threshold injury. Of those cases, the Court found against the innocent injured person 196 times. That is an astonishing statistic, especially given that in the first 31 years prior to Kreiner resulted in only 150 total cases being appealed. Prior to Kreiner, there was an average of 4.8 appeals per year; after Kreiner it was an average of 49.2. That is more than 10 times as many appeals, with nearly 80% of the decisions favoring the negligent driver.

Quite clearly, then, what the Kreiner decision represents is a textbook case of judicial activism. This results when a judge, or in this case, the gang of four, decide they know what’s best and ignore the law. The written opinion in Kreiner added language and requirements that were not part of the law they were supposed to be interpreting. The legislature, who is responsible for writing laws, did not include any of the restrictive requirements imposed by the gang of four in the Kreiner decision. The justices who wrote the Kreiner decision clearly had a bias in favor of limiting innocent victims rights and decided to re-write the law to fit their conservative ideology, regardless of what the law actually said.

It is expected the decision by the new majority of the Michigan Supreme Court will help restore the serious damage done to the institution of trial by jury. Michigan’s court rules permit a judge to dismiss a case without a jury having the opportunity to hear it under very specific circumstances. However, when we are dealing with claims like Mr. McCormick’s, where he underwent two surgeries and was off work for over a year, it is best left for a jury to determine whether the injuries meet the threshold as defined under Michigan law. The jury system is the best way to sort out claims and whether or not someone is entitled to compensation; it should not be up to a judge to make this call unless there are very specific circumstances that make it appropriate.

The Kreiner decision basically tells the citizen’s of Michigan they are unable to properly determine these issues. Do you believe you are incapable of hearing the story of how someone’s life was changed by an automobile accident, being told what the law says, and making a decision on whether that person deserves to be compensated? The justices who wrote the decision in Kreiner said you were not capable, I have more faith in you then they do. I know that it’s always better to have a jury hear all the facts and make a decision, even if that decision is against my client.


  1. Gravatar for Devon Glass

    It can take a while sometimes. In his case, it's expected the majority opinion is likely to be done soon. However, the justices who don't agree with the majority have an opportunity to write a dissent of why they disagree. The justices in the dissent have no incentive to do the job quickly, mostly because they don't want things to get better for innocent injured victims too soon, so it will be a while. The latest the opinion would likely be issued is in June.

    It's terrible that a few justices have the ability to continue to deny justice and a fair hearing to the citizens of Michigan, but we have already made a difference and we can continue to do so by helping to retire Justice Robert Young in the fall of 2010.

  2. Gravatar for Jon Lewis

    Great post Devon! Juries were supposed to decide these issues, but more and more of these cases are being decided by court decisions, and consumer cases are being decided by arbitration. Hopefully, Michigan will see the light.

  3. In Michigan to Judges grant Summery judgment both ways? Meaning that there is or isn't a threshold or is the jury issue only if it's to find a threshold? Very interesting issue.

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