JOVON AUSTIN and CHANITA KING, Co Personal Representative and Co Guardians of the Estate of Chavonna Laquoia Austin King, Deceased v FARM BUREAU MUTUAL INSURANCE COMPANY OF MICHIGAN This first party no fault action was brought seeking payment of medical bills allegedly incurred by Plaintiff's decedent. After discovery was completed it was determined that the hospital bill in question ($52,823.00) had been paid by Medicaid. Plaintiff's attorney argued that Defendant was first in priority for this payment. Plaintiff also alleged that Medicaid was entitled to, and would seek, reimbursement from his client. Medicaid had not yet taken any action to seek reimbursement. Defendant filed a Motion for Summary Disposition arguing that the claim belonged to Medicaid only, Plaintiff was not presently liable for any expenses and could not maintain a lawsuit against the Defendant. Judge Sapala of the Wayne County Circuit Court found in favor of the Defendant and dismissed the lawsuit with prejudice. Christina Hough v Mid America Shows Delaware, Inc.
Defense Verdict - November 2008 This was a Genesee County Circuit Court Action (Flint, Michigan) in which Plaintiff alleged she sustained her injuries when exiting the Scrambler at the Genesee County Fair on August 16, 2006. Plaintiff claimed Defendant, Mid America Shows, was negligent in the manner in which they operated the Scrambler and specifically the procedures for exiting the Scrambler. Plaintiff testified she was forced to jump from the tub in which she was riding at the end of the ride to the ground sustaining a tear to the ligaments in her knee necessitating arthroscopic surgery for which she remained permanently disabled. The ride in question was a trailer mounted Scrambler owned and operated by Mid America Shows. Once this ride is assembled at the carnival site, the bed of the trailer serves as a platform which connects the operator’s position of the ride to the center hub around which the ride circulates. Plaintiff contended that Defendant’s operational procedures were negligent in failing to stop each tub over the platform so as to allow entry and exit from a position closer to the step of each tub as opposed to the ground surface or providing a portable step for passengers to enter/exit each tub when the tubs are not positioned over the platform. Plaintiff in fact presented “expert” testimony in support of such propositions. Plaintiff admitted on cross-examination that she was well aware of the distance to the ground regardless of the height she contended. She further acknowledged many years of experience entering and exiting such trailer mounted Scramblers with no problems. Mr. Anselmi’s cross-examination of her expert demonstrated he had absolutely no experience relative to the mechanics or operations of the trailer mounted Scrambler and revealed himself to be a less than knowledgeable “hired gun”. Conversely, Defendant’s ride operator presented as a knowledgeable witness who explained operation of the trailer mounted Scrambler consistent with the operations manual which was followed by Mid America Shows during the course of the Genesee County Fair where Plaintiff contended she was injured. After several hours of deliberation, the jury returned a verdict finding Mid America Shows was not negligent as both Mr. Anselmi and Mr. Sowle argued throughout the Trial and in closing argument. A Judgment of No-Cause of Action was entered in favor of Mid America Shows Delaware, Inc. Plaintiff did not pursue an Appeal. Steven Fairley v. Farm Bureau Mutual Insurance Company In Fairley v. Farm Bureau, Joseph Mierzejewski of our office represented the Defendant, Farm Bureau Mutual Insurance Company in a first party no-fault claim arising out of an automobile accident occurring on March 24, 2004. Plaintiff was operating an uninsured 1988 Pontiac Bonneville which was registered to his brother. As a result of the accident, Plaintiff claimed that he injured his neck, back and knees causing him the inability to work and perform household chores. He sought medical expenses, replacement service benefits and wage loss in his lawsuit. Since Plaintiff claimed he had no other insurance available to cover his loss, he applied to the Michigan Assigned Claims Facility for no-fault benefits which assigned his claim to Farm Bureau. Following its investigation, Farm Bureau determined that Plaintiff was an owner of the uninsured motor vehicle as that term is defined in the No-Fault Act. Pursuant to the No-Fault Act, an owner of an uninsured vehicle is not entitled to no-fault benefits. The case of Twichel v. MIC General Insurance Corp. held that: "It is not necessary that a person had actually used the vehicle for a thirty day period in order to qualify as an owner. Rather, what matters is the persons right to use the vehicle for a 30 day period." Plaintiff claimed that he did not own the vehicle involved in the accident since he only used the vehicle twice prior to the accident. According to Plaintiff's testimony and the testimony of his sister and friends, he only used the vehicle on the day of the accident and once approximately one year prior to the accident. Plaintiff's brother left the Pontiac Bonneville at Plaintiff's friend's house where Plaintiff was staying over thirty days before the accident. Mr. Mierzejewski convinced the jury that even though Plaintiff may not have used the vehicle regularly, he had access to the vehicle and the right to use the vehicle for a period that would extend beyond thirty days. Pursuant to Michigan law, an individual who has the right to use a vehicle for a period exceeding thirty days is an owner of the vehicle. Since the jury determined that Plaintiff was an owner of the vehicle, he was not entitled to no-fault benefits pursuant to MCL §500.3113. Mr. Mierzejewski convinced the Court to read a special jury instruction with regard to the definition of "owner." Goins v Clifton In Goins v Clifton, Kurt Anselmi of our office represented the Defendants, Lisa Clifton and Alexander Kapetan in an auto negligence action arising out of a January 11, 2001 single vehicle accident. Plaintiff was a passenger in a vehicle owned by Alexander Kapetan and driven by Lisa Clifton. Lisa Clifton lost control of the vehicle in the early morning hours of January 11, 2001, resulting in a roll over accident. Plaintiff, Goins sustained an undisplaced fracture of the proximal fibula which was treated by nonweight bearing for a period of weeks. She filed her Complaint alleging Defendant, Clifton was negligent in driving the vehicle and also asserted an owners liability claim against Alexander Kapetan. Plaintiff claimed her undisplaced fracture of proximal fibula constituted a "serious impairment of body function." Prior to trial, Defendant moved for Summary Disposition contending the Plaintiff's injuries did not constitute a serious impairment of body function as a matter of law. The Court denied Defendant's Motion and the matter proceeded to trial. At trial, Defendant admitted negligence and again maintained that Plaintiff's injuries did not constitute a serious impairment of body function as a matter of fact and law. The Trial Court again denied Defendant's Motion for Directed Verdict and the matter proceeded the jury verdict resulting in an award of $20,000.00 in favor of Plaintiff. Following the assessment of fees and costs, Judgment was entered against Defendant in the amount of approximately $25,000.00, after which Defendant sought an Appeal. The Court of Appeals recently issued its opinion (April 7, 2004) reversing the Trial Court's denial of Defendant's Motion for Summary Disposition. The matter has now been remanded to the Trial Court for entry of an Order Granting Defendant's Motion for Summary Disposition, thereby vacating the jury verdict for Plaintiff. Attached is a copy of the Court of Appeals unpublished Opinion in Goins v Clifton. Co-Defendant, Alexander Kapetan, as owner of the vehicle was insured by Auto-Owners who also provided the defense to the driver, Lisa Clifton. Flucker v Parker Attorney, Kurt A. Anselmi and his associate, Mark Sowle, represented Defendant, Bryan Parker in this third-party no-fault case. This matter went to Trial before the Honorable John McDonald of the Oakland County Circuit Court on January 2006. Plaintiff claims she sustained significant lower back injuries necessitating surgeries as a result of a low impact rear end collision. Following the collision, Plaintiff and Defendant stopped and exchanged information both acknowledging that they had not been injured. Subsequent to that, Plaintiff claims she developed severe debilitating back pain which necessitated surgery and significantly impaired her lifestyle. Defendant introduced photographs of the limited damage to both the Plaintiff and Defendant's vehicle as well as his observations at the accident scene that Plaintiff not only admitted she was not injured, but did not appear to be injured or in any pain. The Jury returned a verdict of No-Cause of Action in Defendant's favor following a three day Trial finding, as Mr. Anselmi argued, the motor vehicle accident was not a proximate cause of Plaintiff's claimed injuries. Johnson v. Soper Attorney, Kurt A. Anselmi, obtained a defense verdict of No-Cause of Action in January 2006 in this negligence and premises liability case in front of Macomb County Circuit Judge Ed Servitto. Plaintiff alleged that the minor Plaintiff was injured after employees of Defendant's roller skating rink removed the brakes from his roller blades. Attorney Anselmi established for the Jury that the Plaintiff had a history of deliberately skating at and sliding into the roller rinks' walls. The Jury agreed that it was this activity, rather than the removal of Plaintiff's brakes, which led to his injuries. Cottrell v The Holiday Inn Southfield Attorney, Kurt A. Anselmi, represented The Holiday Southfield in this premises liability action arising from a slip-and-fall incident. Ms. Cottrell claimed to have slipped on a pool of standing water over a tile surface near an ice machine. This matter proceeded to Jury Trial before Judge Rudy Nichols of the Oakland County Circuit Court in September 2006. Plaintiff sought damages in excess of $150,000.00. The Court denied Defendant's Motion for a Directed Verdict pursuant to the Open and Obvious Danger Rule. While Plaintiff argued she did not see the water before she slipped, some of her family members/friends acknowledged they did in fact see the water. In spite of this, the Trial Court denied Defendant's Motion for Directed Verdict pursuant to the Open and Obvious Danger Rule. One of Plaintiff's witnesses (her niece) testified she had brought the presence of the wet tile surface to the attention of the front desk. However, the same witness also acknowledged several inconsistent versions of her alleged report to the front desk as well as acknowledging she purgered herself in an Affidavit presented in response to Defendant's Motion for Summary Disposition which had been argued prior to Trial. The Jury returned a verdict of $40,000.00 in favor of Ms. Cottrell. Defendant sought Appeal of the Trial Court's Order Denying its Motion for Directed Verdict pursuant to the Open and Obvious Danger Rule. The Court of Appeals recently issued its unpublished Opinion affirming the Trial Court's denial for Defendant's Motion for Directed Verdict. Defendant has decided not to seek Appeal to the Michigan Supreme Court. Al-Baaj v Auto-Owners Insurance Company Attorney, Kurt A. Anselmi, represented Auto-Owners in this Wayne County Circuit Court action seeking uninsured motorist benefits. On September 8, 2006, attorney Anselmi obtained Summary Disposition in favor of Auto-Owners by demonstrating to the Court that Mr. Al-Baaj had not sustained a serious impairment of body function. Mr. Anselmi, with the assistance of his associate, Mark Sowle, obtained records from the Social Security Administration which noted several attempts to obtain disability benefits by Mr. Al-Baaj.These records were used to demonstrate to the Trial Court that Mr. Al-Baaj had not sustained a change to the course or trajectory of his life as a result of the accident in question. Goodwin v. Barrett Attorney, Kurt A. Anselmi, represented Daniel Barrett, the Defendant in this third-party no-fault action. Mr. Anselmi obtained Summary Disposition in the week before Trial (December 2006) by establishing, through photographic evidence and an algebraic equation that Mr. Goodwin's vehicle could not have been reasonably parked on the shoulder of Eastbound Interstate 94 at the time this accident occurred. This fact established that Mr. Goodwin's uninsured vehicle was involved in the accident in question, barring him from the recovery of both first and third-party no-fault benefits. Regents of the University of Michigan v Titan Insurance Company Attorney, Mark D. Sowle, represented Titan Insurance Company in this action brought by the University of Michigan to recoup payment for a 1999 hospital bill. This case began with a 1999 motor vehicle accident causing bodily injury and resulting in the underlying claimant being treated at the University of Michigan Medical Center. Seven years later, the University of Michigan filed suit against Titan Insurance Company, asserting an exception to the No-Fault Statute of Limitations. On February 14, 2007, attorney Sowle obtained Summary Disposition in Titan's favor through the citation of recently decided Appellate Law. The University of Michigan has appealed the Trial Court's decision. Court of Appeals affirms Summary Disposition" in favor of Citizens Insurance Company in a published decision interpreting MCL 500.3113(b). In Wasim Iqbal v Bristol West Insurance Group, Auto Club Insurance Association and Citizens Insurance Company, the Court of Appeals has issued a significant Opinion that has been issued for publication. In Iqbal, Plaintiff was the driver of a motor vehicle that was rear‑ended at a stop light and suffered accidental bodily injury. Plaintiff received medical treatment and surgery for his injuries. At the time of the accident, Plaintiff resided with his sister and fell under her household policy of no‑fault insurance issued by Bristol West. The vehicle Plaintiff was operating was insured by Defendant Auto Club Insurance Association. Citizens Insurance Company was appointed by the Assigned Claims Facility to handle Mr. Iqbal's claim for no‑fault benefits. In the underlying action, Bristol West argued that the Plaintiff should be considered the owner of the involved motor vehicle because he had use of his brother's vehicle for a period greater than 30 days. Therefore, Bristol West argued that Plaintiff was required to maintain insurance on the vehicle pursuant to the No‑Fault Act. Bristol West contended that because the Plaintiff failed to insure the vehicle, Plaintiff was not entitled to collect no‑fault benefits pursuant to MCL 500.3113(b). It should be noted that Plaintiff's brother, the titled owner of the vehicle, had procured insurance through Auto Club Insurance Association. The Court of Appeals in a published decision held that the language in MCL 500.3113(b) precluding the recovery of PIP benefits links the security or insurance requirements to the vehicle only and not the person. The Court of Appeals held that the trial court correctly ruled that Plaintiff was entitled to PIP benefits because the vehicle involved in this accident was, in fact, insured, regardless of whether the Plaintiff was the owner of the vehicle. John Ruth of our office, representing Citizens Insurance Company of America, successfully argued this matter to Summary Disposition in the lower court. Mr. Ruth also successfully participated in the appeal of this matter and a published decision affirming the lower court's ruling was entered February 14, 2008. Recent Decision: Court of Appeals' No-Fault IMEs The Court of Appeals in the published decision Hattie Moore v Secura Insurance held that a no-fault insurance carrier must "go beyond" the IME's doctors' opinion and "and should have sought further information before exercising the draconian termination of critical benefits to one who is injured." In Moore, the no-fault carrier paid certain no-fault benefits for roughly one year then stopped paying benefits based upon the opinion of an IME physician. Plaintiff filed suit seeking additional no-fault benefits. Plaintiff, at the end of Trial, was awarded no-fault benefits, interest and significant attorney fees. The jury found in favor of Plaintiff and awarded $42,755.00 in unpaid wage loss. Plaintiff was also awarded interest totaling $98.71. More significantly, the Court awarded Plaintiff attorney fees in the amount of $79,415.00. The lower court and the Court of Appeals found that Secura's denial of benefits was unreasonable due to the conflict between the treating physicians' opinions and that of the IME physician. The Court of Appeals ruled that it was incumbent upon the no-fault carrier to contact Plaintiff's treating physician to attempt to clarify the conflict in the physicians opinions. The Court found that it was "incumbent upon the carrier to go beyond" just the IME doctor's opinion and "could have sought further information before exercising the draconian termination of critical benefits for one who is injury." The Court of Appeals upheld the award of significant attorney fees finding that Secura, having failed to contact the treating physicians to attempt to rectify the conflict in opinions and failure to disclose the IME report to the treating physician was unreasonable and subjected them to the award of attorney fees.
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