Personal Injury Blog
Kalamazoo - Personal Injury and Tort Law Blog

Third Party Claim:

Posted January 10, 2017

In a third-party claim, a plaintiff sues the driver of a vehicle, alleging the breach of a duty that resulted in a serious injury. Basically, the injured person may sue the at-fault driver for noneconomic damages, provided the claimant’s injuries meet the threshold requirement of death, permanent serious disfigurement, or serious impairment of a body function. MCL 500.3135(1). The plaintiff may also sue for any economic losses that exceed the maximum statutory no-fault first-party benefits, without having to meet the no-fault threshold. Thus, the third-party claim compensates the injured person for noneconomic losses, such as past, present, and future pain and suffering, and for economic losses in excess of the statutory first-party maximums. See form 4.1 for a sample no-fault third-party complaint. However, not all negligence cases involving motor vehicles are subject to the limitations imposed by the no-fault act.

MCL 500.3135

 

Michigan Auto Accidents: Some Issues to Consider

Posted December 4, 2016

Michigan law provides for a comprehensive no-fault auto insurance system. It is one of the most comprehensive auto insurance systems in the nation. If you maintain an insured vehicle in Michigan, you and your family are entitled to unlimited medical and rehabilitation benefits, wage loss benefits and $20 per day for replacement services for up to three years if you are injured in an auto accident. These benefits are yours regardless of who is at fault in a motor vehicle accident.

Michigan law requires no-fault insurance. Every registered vehicle must be insured by an insurance company approved to sell automobile insurance in Michigan. Driving a motor vehicle in Michigan without basic no-fault insurance makes a person liable for damages. It is a misdemeanor and the driver may be fined from $200 to $500, or put in jail for up to one year, or both. Additionally, driving a vehicle without insurance may cost you the right to sue an at-fault driver for personal injury damages.

 

No-Fault Threshold for Tort Claim:

Posted November 6, 2016

A major distinction between third-party motor vehicle negligence litigation and other negligence suits is that the plaintiff in a motor vehicle negligence suit must show that his or her injury is serious enough to warrant filing a suit to recover noneconomic damages. No-fault immunity bars the plaintiff from recovering any noneconomic losses such as pain and suffering or mental anguish unless he or she demonstrates one of the three classes of injury stated in MCL 500.3135 or, in no-fault parlance, unless the injured party crosses the no-fault threshold. A motor vehicle accident victim has met the statutory threshold if he or she has suffered death, permanent serious disfigurement, or serious impairment of a body function.

Once the threshold has been crossed, a plaintiff does not have to maintain a continuing level of threshold injury to recover noneconomic damages. Byer v Smith, 419 Mich 541, 357 NW2d 644 (1984). In other words, if a serious impairment subsides over time to a point where it is no longer a serious impairment but still causes pain and suffering, noneconomic damages remain available. The no-fault tort immunity provision in MCL 500.3135 does not bar a loss of consortium claim as long as the principal claimant meets the threshold.

MCL 500.3135

 

Proof of Negligence under No-Fault:

Posted October 21, 2016

The requisite proofs of motor vehicle negligence are essentially the same as for a typical negligence case, except that in addition to proving the basic elements of negligence duty, breach, causation, and damages, the plaintiff must establish a threshold injury of death, permanent serious disfigurement, or serious impairment of a body function.

Duty of Care

The degree of care owed depends on multiple factors, such as the size, type, and condition of the involved vehicles, the nature and character of the road surface, weather conditions, the amount of traffic, the time of day, the presence of pedestrians, and the age of the pedestrians or the nonoperators of motor vehicles. All of the factors and acts leading to the accident and injury must be carefully evaluated in assessing the proofs of negligence.

Generally, a motor vehicle driver owes a duty of care to anyone who may reasonably and foreseeably be injured as the result of negligent acts or omissions, regardless of whether the person is actually physically located on the roadway. Typically, this duty extends to other individuals using the highways, including motorcyclists, bicyclists, pedestrians, guests or passengers, persons stopped along the roadway in disabled vehicles, and persons performing highway maintenance at or near the highway.

Statutory Duties

Many Michigan statutes regulate the use of motor vehicles on the highway. See MCL 257.1 et seq. The most common statutory violations are of the traffic regulations found at MCL 257.601–.714b. In Michigan, the violation of a statute creates a case in which a jury may infer negligence. However, this is a rebuttable presumption. For example, where defendant, while recognizing that the road was icy, hit a patch of ice and as a result skidded across the centerline, the court held that her violation of the statute requiring drivers to keep to the right was excused. Young v Flood, 182 Mich App 538, 452 NW2d 869 (1990);

Seat Belt Statute

This statute has an impact on comparative negligence issues in third-party vehicle negligence cases. The statute provides that the failure to wear a seat belt may be considered evidence of negligence but may only reduce the recovery for damages arising out of the failure to wear a seat belt by not more than 5 percent. MCL 257.710e(6). This provision reverses earlier common law, which held that failure to wear a seat belt was not considered evidence of negligence.

Owner Liability

In Michigan, the owner of a motor vehicle is, by statute, liable for any negligent acts committed by a driver of the automobile if the owner has expressly or impliedly consented to or has knowledge of the use of that vehicle by the negligent operator. See MCL 257.401. Knowledge and consent are presumed if at the time of the accident, the motor vehicle is being driven by a parent, a sibling, a child, or another immediate family member of the owner. MCL 257.401(1). However, the operation of a motor vehicle by a person who is not a member of the owner’s family gives rise to a rebuttable common-law presumption of consent even when the owner has leased or rented out the vehicle. This presumption is not conclusive and the existence of the presumption does not shift the ultimate burden of proof.

 

 

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Understanding your rights is essential when you suffer a personal injury. The Southwest Michigan Personal Injury Attorneys at Hettinger & Hettinger, P.C. have experience in nearly every facet of civil litigation and personal injury law.