Drastic changes to the existing landscape of premises-liability law may be on the horizon. The fate of the open-and-obvious doctrine in general and the special-aspect exception in particular hang in the balance as the Supreme Court recently entertained mini-oral argument on the application for leave to appeal in Kandil-Elsayed v F&E Oil on March 2,...

What happens when two appellate panels issue opposing published opinions on the same issue? That’s the current state of the law in Encompass Healthcare, PLLC v Citizens Insurance and Spine Specialist of Michigan v Memberselect Insurance Company when the panels addressed the one year back rule and the new tolling provisions under the one year...

The right expert can make or break a case.  Expert testimony comes with a certain aura of credibility and inherently carries more weight than other witness’s testimony.  Experts are often deemed more reliable because of the specialized knowledge and experience behind their opinions.  To no surprise then, discovery centered around an expert’s background and how...

“A Bridge Too Far” is a 1977 epic film regarding the failed Allied operation in Nazi-occupied Netherlands during World War II.  No, this is not a post reviewing the film. However,  the title of the film applies to a Court of Appeals ruling that limited the extension of “other health and accident coverage” under MCL 500.3109a. In Meemic...

In Estate of Brenda Bowman and Derick Bowman v Larry Walker, et al, No. 355561 (Mich. Ct. App. Feb. 10, 2022), the Michigan Court of Appeals considered whether a hazard (snow-covered ice in front of front and back doors of tenant’s apartment) was effectively unavoidable when she was required to confront it for purposes of employment. Background on...

Introduction Most claims under the Michigan No-Fault Act involve injuries resulting from a moving vehicle. However, injuries resulting from maintenance of a motor vehicle, and injuries occurring while a vehicle is parked may also be compensable. These scenarios are fact specific and must meet certain exceptions to the general rule that accidents resulting from a...

Introduction When the Michigan No-Fault Act was reformed on June 11, 2019, the new legislation introduced, among other changes, limitations on the amounts that a medical provider could charge for treatment as well as the hours that a family member could charge for attendant care.  A question arose almost immediately as to when these changes...

Introduction In Secura Ins Co v Stamp, the Michigan Court of Appeals determined how interpleaded uninsured motorist benefits should be distributed and who decides the distribution.  In Secura, Brian Stamp and Rhonda Mahaffy lost their lives after an auto accident.  Both estates sued Secura Insurance Company to recover uninsured motorist (UM) benefits. After resolution of...

What happens when a no-fault carrier identifies a higher priority carrier during litigation, and after the one year notice period has expired?  We recently learned the answer from the Michigan Supreme Court in Griffin v Trumbull.  While the claimant is required to exercise reasonable diligence to identify the highest priority, it is ultimately up to...

When a person is injured in a motor vehicle accident while working on the job, that individual usually carriers Worker’s Compensation insurance through his employer in addition to No-Fault PIP insurance on the vehicle. What happens when the Worker’s Compensation carrier goes bankrupt in this situation? In Mathis  v Auto-Owners et al, unpublished per curiam...

The cases of Grady v Wambach and Skwierc v Whisnant both tackle the issues of claims for allowable expenses under MCL 500.3107(b) when the treatment was provided in violation of Michigan Law. Many insurers base denials on MCL 500.3157, which requires that treatment be lawfully rendered in order to be payable. MCL 450.4904 requires that...

What avenues does an insurance carrier have when paying no-fault benefits to a claimant when another carrier is higher in the order of priority?  The Michigan Supreme Court’s opinion in Esurance v. MACP, __ Mich __ (2021) provides much needed guidance. On January 10, 2016, Roshaun Edwards was driving a Dodge Challenger when he crashed...

Last year, Michigan’s Court of Appeals issued three unpublished opinions that shed some light on how a plaintiff’s claim may fail to meet the Michigan no-fault tort threshold due to just a few, specific, missing pieces of evidence. Certainly, medical records containing a diagnosis relating a plaintiff’s pain to the accident and disability certificates listing...

In every insurance claim, the paramount issue is whether there is applicable coverage for the claimed loss.  Coverage is key.  Without it, an insured may be exposed.  If coverage is applicable, the insurer may face varying levels of exposure depending on the claims. Accordingly, when insurers seek to cancel an insured’s policy, it is vital...

Claims for work-loss benefits under § 3107 of the no-fault act are par for the course in personal injury protection (PIP) litigation. Two common defenses to this type of claim are insufficient proof of employment and fraud, but courts often conclude that the trier of fact must decide these issues. The Michigan Court of Appeals...

In law school, every student learns about subject-matter jurisdiction during first-year civil procedure. In a nutshell, subject-matter jurisdiction is a court’s authority or power to hear a specific type of case or claim. It is a prerequisite to a valid judgment. If the court lacks subject-matter jurisdiction, any order or judgment it enters—except to dismiss...

Oftentimes, a no-fault claimant will file a lawsuit asking the court to adjudicate all of their no-fault claims and award all unpaid benefits. Sometimes, though, that claimant is still seeking treatment for their alleged injuries while their lawsuit is pending. When that’s the case, it’s not uncommon for one of their medical providers to also...

In Tyson v Dawkins (Docket No. 346595), the Court of Appeals analyzed a business’s duty to patrons and the role that an incident’s location plays in that analysis. The defendant bar failed to call the police after two patrons got into a fight right outside the front door. The same two patrons engaged in another...

After a revamp of the court rules pertaining to discovery, the Supreme Court shifted attention to the court rules pertaining to case evaluation. Earlier this month, the Court issued ADM File No. 2020-06, which amends MCR 2.403, MCR 2.404, and MCR 2.405. Some justices believe that the amendments will facilitate docket management. Other justices don’t...

The Court of Appeals’ examination of the plaintiff’s arguments and the trial court record in Hahn v Vanduker (Docket No. 349427) shows that trial counsel’s anticipation of and response to discovery- and evidence-related issues may have a dispositive effect on the outcome of a trial. The Court’s analysis highlights motions that insurers and their attorneys...

Statutory and common-law dog-bite claims don’t always rise and fall together. In Costanza v Limon (Docket No. 353910), the Court of Appeals reversed a trial court’s grant of summary disposition on a plaintiff’s statutory claim while affirming summary disposition of the plaintiff’s common-law claims. The Court’s analysis reveals the differences between each type of claim...

The line between premises liability and ordinary negligence is often clear, but it can become blurred when an invitee is injured by overt acts taken by a premises possessor. In Sundberg v Oberstar (Docket No. 350876), the Court of Appeals analyzed the open-and-obvious doctrine and the viability of an ordinary-negligence claim in a case arising...

The no-fault act allows individuals to make claims for allowable expenses and replacement services. Attendant care (e.g., assistance with grooming and showering) falls under the umbrella of allowable expenses. Replacement services are services that the injured person required before and after the injury but can no longer provide for himself or herself because of the...

The showing an injured party must make for an incurred no-fault expense to be “reasonably necessary” under MCL 500.3107(1)(a) is not always clear. It becomes increasingly difficult to establish reasonable necessity as more time passes after an accident and objective evidence of an injury wanes. This was the precise situation the Court of Appeals addressed...

Introduction One of the many changes under the Legislature’s reform of the Michigan no-fault act is a modification to the order of priority that makes the Michigan Assigned Insurance Placement Facility (MAIPF) responsible for more claims. The Michigan Department of Insurance and Financial Services (DIFS), however, issued orders that prevented insurers from implementing that change...

Sometimes, lawyers try to stretch a defendant’s liability by attempting to create a duty where one hasn’t existed previously, or by fashioning a negligence claim out of an ill-defined duty. In all negligence cases, the issue of duty is an important consideration for summary disposition. In the unpublished Court of Appeals case of Olshansky v...

An insurer’s decision to rescind a no-fault insurance policy because it was fraudulently procured does not automatically result in a rescission applicable to all claimants. Rather, the court must perform a separate balancing of the equities between the insurer and each third-party claimant. In El-Achkar v Sentinel Ins Co, Ltd (Docket No. 348380), an unpublished...

Someone slips on spilled juice in your grocery store. Or they trip over a broken shelf protruding into an aisle. Or they fall on ice in the parking lot. As the owner of the premises, are you liable for their damages? The answer is: it depends. What did you know about the condition? Even more...

Introduction Disputes over whether treatments and services are reasonably necessary for an injured person’s care, recovery, or rehabilitation—and are therefore compensable under MCL 500.3107(1)(a)—are plentiful in the Michigan no-fault world. An unpublished opinion issued by the Michigan Court of Appeals, Integrated Cognitive Rehab, LLC v Zurich American Ins Co (Docket No. 353114), provides additional guidance...

Ever since the Michigan Supreme Court issued Bazzi v Sentinel Ins Co, 502 Mich 390; 919 NW2d 20 (2018), courts have wrestled with balancing the equities in rescission cases involving third parties to an insurance contract. In Mullen v Progressive Marathon Ins Co (Docket No. 350015), an unpublished decision, the Court of Appeals ruled that...

Under Michigan’s open-and-obvious doctrine, injured plaintiffs generally cannot recover damages for dangerous conditions that they knew about or should have known about. In Rivera v Lowe’s Home Center, LLC (Docket No. 348032), the Michigan Court of Appeals emphasized that the doctrine only comes into play after the plaintiff identifies a defect in the land that presents an...

Since the Michigan Supreme Court released Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich 191; 895 NW2d 490 (2017), the assignment of no-fault benefits to medical providers has been an area of contention. Previously, many insurance carriers included anti-assignment clauses in their policies. But in 2018, the Michigan Court of...

Only “the real party in interest” can maintain a lawsuit under Michigan law. Who’s the real party in interest in a no-fault case after an assignee medical provider is sold? The Court of Appeals’ decision in Southeast Mich Surgical Hosp, LLC v Farm Bureau Mut Ins Co of Mich (Docket No. 351298), reveals that the...

The no-fault act prohibits the filing of a lawsuit for benefits more than one year after an accident unless the insurer received written notice of the injured person’s injuries within the first year or the insurer previously paid benefits. In Jawad A. Shah MD v State Farm Mut Auto Ins Co (Docket No. 351156), the...

Assignments have become a popular mechanism for medical providers to collect their bills on behalf of patients injured in car accidents. As a result, insurers frequently dispute whether medical providers have valid assignments. MCL 500.3143 prohibits assignments for benefits payable in the future, but it does not provide any temporal restrictions on the meaning of...

Preliminary injunctive relief has long been recognized in commercial contract disputes, particularly where a dispute has the potential to disrupt a commercial supply chain. A party to litigation can file a request for a preliminary injunction and seek an order from the court to maintain the status quo until the dispute is resolved. Recently, the...

Michigan’s no-fault act doesn’t allow an injured person to claim benefits for a limitless chain of injuries or conditions. Benefits are payable for injuries “arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.” MCL 500.3105(1). They’re not recoverable for injuries that are only incidentally or fortuitously related...

On occasion, a plaintiff will sue an insurance company for uninsured motorist (UM) benefits after a no-contact/no-collision accident involving an unknown at-fault driver. UM benefits are not a statutory requirement in Michigan, but rather a contractual benefit. So the litigants often ask the court to review the policy language and provide an opinion regarding its...

We all know that a plaintiff must prove four elements to succeed on a negligence claim: a duty owed, a breach of that duty, causation, and damages. A fact-intensive analysis is required to determine whether a defendant breached a legal duty. And to win a motion for summary disposition arguing that no duty was breached,...

In a recent published decision, Griffin v Trumbull Ins Co (Docket No. 344272), the Michigan Court of Appeals clarified the proper analysis for courts faced with priority issues in no-fault actions. If a higher-priority insurer is “identifiable” under one of the exceptions in MCL 500.3114, the claimant’s own insurer isn’t liable for no-fault benefits under...

Insurers frequently dispute the application of MCL 500.3114(3) (the employer-furnished vehicle exception) in cases involving commercial vehicles. In Miclea v Cherokee Ins Co (Docket No. 344694), the Michigan Court of Appeals clarified that an individual’s status as an independent contractor does not have any impact on whether the individual is an “employee” of another person...

When the Legislature reformed the Michigan no-fault act on June 11, 2019, one of the many changes was the implementation of a utilization review process. This new procedure allows insurers and the Michigan Catastrophic Claims Association (MCCA) to seek further information and make determinations regarding treatment, training, products, services, or accommodations that were potentially overutilized...

In Ravenell v Auto Club Ins Assoc, unpublished per curiam opinion of the Court of Appeals, issued October 15, 2020 (Docket No. 348436), the Court of Appeals considered NGM Insurance Company’s claim for reimbursement of mistakenly paid personal protection insurance (PIP) benefits from Auto Club Insurance Association (ACIA). The Court followed Amerisure Cos v State...

Comprehensive changes to MCL 500.3151—the statute governing insurer-requested physical and mental examinations under the no-fault act—have prompted insurers and attorneys alike to consider the potential impact that the amendments will have on independent medical evaluations (IMEs). But a reasoned interpretation of the amended statute does not require starting from scratch. Conveniently, the requirements now adopted...

In Campau v Renaud, unpublished per curiam opinion of the Court of Appeals, issued August 6, 2020 (Docket No. 347622), the Court of Appeals analyzed the reckless-misconduct standard in a case arising out of a youth soccer game. The Court’s analysis centered on Ritchie-Gamester v Berkley, 461 Mich 73; 597 NW2d 517 (1999), and it...

In Price v Austin, unpublished per curiam opinion of the Court of Appeals, issued April 30, 2020 (Docket No. 346145), the Court of Appeals upheld the trial court’s grant of summary disposition based on the sudden-emergency doctrine. The Court’s decision demonstrates that a defendant may rely on the doctrine to rebut the presumption of negligence...

Michigan law recognizes four types of invasion-of-privacy claims. In Foundation for Behavioral Resources v WE Upjohn Unemployment Trustee Group, ___ Mich App ___; ___ NW2d ___ (2020) (Docket No. 345415), the Michigan Court of Appeals recently clarified the elements for “false light invasion of privacy” (i.e., the cause of action for “publicity that places the...

A Whole New World: Advice for Remote Depositions If you’re anything like me, you spent the early days of the stay-at-home order pushing back a deposition or two, assuming that you’d be better off waiting until they could be conducted “properly” (i.e., in person). By now, it’s clear that we must adapt during these bleak...

In 2020, back pain isn’t just something that we experience as we social distance and sit on our couches watching a Tigers game instead of going to Comerica Park. It’s also one of the most common complaints that no-fault insurers see following an automobile accident. For years, the no-fault act has excluded certain chiropractic services...

In July 2020, the Michigan Court of Appeals issued Haydaw v Farm Bureau Ins Co (Docket No. 345516), an opinion with significant consequences for insurance companies defending against fraudulent claims. As explained in our earlier blog post, Haydaw held that an insurer can’t rely on an insured’s misrepresentations during discovery to void an insurance policy...

Parties argue about what is “reasonable” in nearly every legal context. The same holds true for no-fault litigation, especially when it comes to personal protection insurance (“PIP”) benefits. While the no-fault act itself and the supporting case law firmly establish that no-fault insurers are only obligated to pay reasonable charges, the act doesn’t define “reasonable.”...

In Duckworth v Cherokee Ins Co, ___ Mich App ___ ;___ NW2d ___ (2020) (Docket No. 347865), the Court of Appeals analyzed whether James Duckworth was an employee or independent contractor of Speed Express, LLC, to resolve a priority dispute between Speed Express’s no-fault insurer and Duckworth’s personal no-fault insurer. The Court held that trial...

In Redmond v Heller, ___ Mich App ___; ___ NW2d ___ (2020) (Docket No. 347505), the Michigan Court of Appeals held that several statements made on the internet about a funeral home and its staff constituted defamation per se. In other words, the internet isn’t quite the freewheeling “Wild West” as is often depicted. You...

In Life Skills Village, PLLC  v Nationwide Mut Fire Ins Co, ___ Mich App ___; ___ NW2d ___ (2019) (Docket No. 345237), the Court of Appeals emphasized the highly factual nature of determining whether a facility provides adult foster care services that trigger Michigan licensure requirements. The published opinion is important for ascertaining whether residential...

In Meemic Ins Co v Fortson, ___ Mich ___; ___ NW2d ___ (2020) (Docket No. 158302), released July 29, 2020, the Michigan Supreme Court held that the antifraud provision in Meemic Insurance Company’s no-fault policy was invalid and unenforceable as applied to coverage mandated by the no-fault act. The antifraud provision failed because it was...

Since the Michigan Supreme Court released its Covenant opinion[1] in 2017, Michigan courts have issued inconsistent decisions regarding a medical provider’s rights under an assignment after the assignor settles his claim for no-fault personal injury protection (PIP) benefits. The Michigan Court of Appeals heeded the calls for direction on this issue and approved Physiatry and...

It may be summer, but the consequences of wintertime fun are likely manifesting themselves now as legal claims. Michigan registers one of the highest numbers of snowmobilers in the country, second only to Wisconsin. Nearly 6,500 miles of State-groomed snowmobile trails cover the middle and northern parts of Michigan. In fact, in some parts of...

In early July 2020, the Michigan Court of Appeals held in Haydaw v Farm Bureau Ins Co, ___ Mich App __; ___ NW2d ___ (2020) (Docket No. 345516), that an insurer can’t rely on an insured’s misrepresentations during discovery to void an insurance policy under a fraud provision. Haydaw preserves insurers’ ability to void policies...

Introduction The amendments to Michigan’s no-fault act were filed with the Secretary of State on June 11, 2019. At that time, certain changes went into effect immediately. However, the Legislature set a later effective date for the most impactful amendments. The second phase of reform went into effect on July 2, 2020. Here’s what you...

In MemberSelect Ins Co v Flesher, ___ Mich App ___; ___ NW2d ___ (2020) (Docket No. 348571), the Michigan Court of Appeals considered the insurable-interest requirement for auto policies. It held that Kelly Fetzer had a sufficient interest in her adult son’s well-being to support her insurance policy, which covered a vehicle owned by and registered to...

Collins Einhorn Farrell is pleased to announce the launch of Driving Forward, a blog discussing the latest issues impacting automotive and general liability law.  The attorneys from our General and Automotive Liability practice group have obtained excellent results throughout the State of Michigan, and will be providing their perspectives on various legal issues.  The blog will...