Under Michigan law, we do not have an unlimited right to sue a negligent party, after an auto accident. There must not only be accident scene liability (e.g., the other vehicle rear-ended you, or blew through a red light, etc), but there must be a showing of “injury threshold”. The threshold is set up by statute, specifically, MCLA 500.3135.
If the injury threshold is not met, there is no right to sue, no matter how negligent the other party is. It does not even matter if the other party was drunk, or stoned; if your injuries do not meet the threshold, there is no right to sue. In fact, if there is no threshold injury, the case is subject to being dismissed.
Why is the right to sue important, if you really do not want to sue at all, or if you do not want to have the case tried before a jury?
The right to sue is important, because the threat of suit is one of the few “hammers” a lawyer can hold over an insurance company. If there is no right to sue, there is no bargaining power with the insurance company. So, it is important to know about injury thresholds.
MCLA 500.3135(1) makes clear that there is potential liability only when one of three injury thresholds is met:
2) Serious Permanent Disfigurement; or
3) Serious Impairment of body Function.
Death is easily enough understood. If someone died in a motor vehicle accident, as a result of someone else’s negligence, that negligent party can be sued, and held responsible. Sometimes, though rarely, causation may be an issue; did the accident really cause the death? However, if someone did die as a result of an auto accident, threshold will not be an issue.
Serious Permanent Disfigurement
“Serious Permanent Disfigurement”, refers to physical scars that result from a vehicle accident. The scars must be both “permanent” and “serious”, to form the basis of a “scar” claim. In turn, that usually requires a two-step analysis, first by the experienced attorney, taking photos of the scars over time, to document as best can be done, the development of the scar. Is the scar “going away”, or becoming less visible?
Secondly, scar cases usually require the analysis and expert testimony of a plastic surgeon or other medical professional, who regularly works with scars on their patients. Is the scar visible/invisible? Can the scar be “revised”, or made invisible/less noticeable? The “seriousness” of a scar, depends on where it is located. Is the scar grotesque or “off-putting”? Is it obscured by hair on the top of one’s head, or is it located on a part of the body, normally covered by clothing?
These are not hard and fast rules. Obviously, the more serious the scar, the less likely will there be a dispute as to whether the scar meets threshold. There are cases holding that even scars obscured by hair or clothing, might meet the Michigan threshold of “permanent serious disfigurement”. See, e.g., Fisher v Blankenship, 286 Mich App 54; 777 NW2d 469 (2009).
I have had my own clients’ scar cases challenged by insurance companies on threshold motions, or motions to dismiss based on the alleged failure to meet the “serious & permanent disfigurement” threshold”. The insurers argued that my clients’ scars were not “serious”, or were not “permanent”. I have not lost one of these motions; I kept my clients’ claims alive, to enable some discussions leading to significant monetary recoveries.
The bottom line: you need to be careful hiring a lawyer to handle a scar case, resulting from a car/truck accident. You need someone experienced in this area of the law, like Jon Frank.
Serious Impairment of Body Function
This third category, is the most litigated and disputed area of Michigan injury threshold law, both at the appellate and trial court level. Again, if there is no death or scarring, and the injuries do not meet this third and last threshold, the case is subject to dismissal — no matter how negligent, drunk, or even stoned the at-fault driver may have been.
Under MCLA 500.3135(5), a “serious impairment” injury is one involving:
1) An “objectively manifested impairment”;
2) Of an “important body function”
3) That affects the person’s general ability to lead his/her normal life.
To be “objectively manifested”, an injury must be subject to independent confirmation. Typically, this involves an x-ray, EMG, MRI, CT Scan, etc; this is not a complete list, but it does give you an idea. Clinical findings, such as palpable spasm, positive results on generally accepted clinical tests, such as straight leg raising, may also constitute “objective manifestation”.
The objective manifestation must relate to an impairment of an “important body function”. This second category may seem pointless, or even silly, given that to each one of us, ALL body functions are considered important. Who among us, is willing to give up the pinky tip on their non-dominant hand? (Not me, I will tell you!!)
However, Michigan’s appellate courts, under the guidance of a biased state Supreme Court, has over the years, and has actively sought out areas in which the rights of Michigan accident victims can be limited. While there has not been a great deal of litigation, explaining the extent of what makes a body function “important”, our State’s current appellate courts may use it as a source of upcoming law, to limit injury victims’ access to the courts, to obtain compensation for their injuries.
Finally, to be a “serious impairment” injury, it must “affect the person’s general ability to lead his/her normal life”. What does that mean? That will depend on an analysis of what activities the person did before the accident, and on what activities the person was able to do before that he/she can no longer do, or cannot do nearly as well. How important were these activities to the injured person? Maybe it is the inability to maintain a clean house; maybe, the inability to do physical sports pursuits, resulting in a diminution of the person’s social life; maybe it is an inability to get up/down stairs, to walk, to bike, to make love, etc., etc.
There are simply too many facets to a person’s life, and even more when multiplied by the millions of people in our society. The bottom line is this: did the loss of the activity, or the new limits on the person’s ability to do the activity, affect the person’s general ability to lead his/her normal life.
These seem like case-by-case, fact-driven inquiries, right? Did the accident impact on your ability to do the daily bike ride, or walk? Can you no longer exercise as a result of a back injury, and now have a weight problem, because you cannot exercise? Or are these limitations due to pre-accident arthritis, or a previous unrelated injury? Again, this seems like a factual inquiry, appropriate for resolution, only by a fact-finder, such as a jury.
However, under MCLA 500.3135(2), these factual questions are made “questions of law” for resolution by a trial judge. In other words, a judge gets to decide how important it is for you to walk your dog, make love to your partner with a certain frequency, work, recreate, etc.
This was one of many shameful aspects of the trend called “tort reform”, which is really a race to the bottom, driven by the agendas and biases of insurance companies who are paid well, to compensate injury victims, yet often refuse to comply with their insuring agreements to do so, when called upon.
However, this is Michigan law, and thus all the more reason, you need a seasoned experienced lawyer in your auto/truck accident matter. Whether your accident was in Mecosta or Macomb County, Oakland or Ontonogan County, call Jon Frank today, your Michigan auto accident attorney.