Facts – Plaintiff’s lawsuit arose out of personal injuries sustained while visiting Defendant’s home. He was attacked by Defendant’s dog and seriously injured. There was evidence that Plaintiff’s father observed his son’s actions before the mauling and yelled for him to stop approaching the dog. By the time he intervened it was too late to prevent the attack.

Plaintiff brought suit under a negligence theory and under the dog-bite statute. Defendants filed a Notice of Non-Party Fault, asserting that Plaintiff’s father’s negligence caused the child to be injured. This action went to the Jury based solely on a theory of liability under the dog-bite statute. The Jury found that Plaintiff was injured, that damages were sustained, and that Plaintiff was bitten without provocation. They also found that Plaintiff’s father was 75% negligent.

On appeal, the Court indicated that the dog-bite statute places absolute liability on the dog owner, except where the dog bites after having been provoked. Absolute liability equates to liability without fault. Under a clear reading of the dog-bite statute, comparative negligence principles are non-applicable. As such, the statute does not allow for consideration of any comparative negligence on the part of the dog bite victim, except where negligence may relate to the defense of provocation. It was improper to allow the Jury to consider negligence of a third person (i.e., not the dog owner or direct victim of the dog bite). Hill, et al, v Sacka, Michigan Court of Appeals Published Decision dated May 6, 2003, Docket No. 227715.

Recommendation – Conceivably, a dog can be provoked by a negligent act of the victim. The law on whether provocation requires an intentional act to provoke or whether negligent or unintentional provocation is sufficient to give rise to a complete defense, is presently unsettled in Michigan. In any event, where Plaintiff’s claim is based on the dog-bite statute, an expert should be retained to determine whether there was provocation. Defendant will not be allowed to "place the blame" on third parties, as illustrated above.

Facts – Plaintiff was driving a friend’s car in Ohio. The left rear tire became flat. To change the tire, Plaintiff left the car, loosened the lug nuts and began to walk toward the trunk area. An oncoming automobile struck Plaintiff, injuring him. The insured admitted that he had not been touching his friend’s car and that he had been approximately six inches from it when struck.

Mr. Rednour contended that he was "occupying" the vehicle as that term had been defined in Defendant’s policy, and was thus entitled to PIP benefits.

The Michigan Supreme Court stated that Section 3111 of the No-Fault Act sets forth the circumstances in which benefits are payable for out-of-state accidents. In this particular case, Plaintiff was not a named insured or a spouse or relative of a named insured. Thus, the statute provides that to obtain PIP benefits, Plaintiff must qualify as an "occupant" of an insured vehicle involved in the accident. The No-Fault Act does not define the word "occupant". The insurance policy at issue, defined "occupying" as "in, upon, getting in, on, out or off."

The Court discussed prior holdings which had dealt with the issue of "occupying", before making its determination in this case that a person must be physically inside a vehicle to be an "occupant" of it under the No-Fault Act. Physical contact by itself does not establish that a person is "upon" a vehicle such that the person is "occupying" the vehicle. Thus, this Court’s prior ruling in Nickerson v Citizens Mutual Insurance Company [393 Michigan 324 (1975)] (A case involving pre-No-Fault issues) was overruled to the extent that it is inconsistent with the analysis in this case. Rednour v Hastings Mutual Insurance Company, Michigan Supreme Court Published Decision dated May 30, 2003, Docket No. 119187.

Recommendation – It is important to note that the Court not only looked to the No-Fault Act for guidance regarding the definition of "occupying", but to the insurance contract in effect on the date of the accident as well. It felt that the terms of the contract were clear and precise, and that there was no ambiguity. This case is of significance for the reason that the Supreme Court appears to be unwilling to extend benefits to those individuals who do not fall within its strict interpretation of the No-Fault Act.

Facts – Plaintiff filed this action to recover damages for injuries sustained in an automobile accident. The Circuit Court dismissed her Complaint, finding that Plaintiff had failed to meet the injury threshold requirement of the Michigan No-Fault statute. The evidence in this case established that Plaintiff had right knee pain, swelling, joint effusion, crepitation and arthritis before the accident. The treating doctor concluded that Plaintiff’s ongoing problems with the right knee were most likely the result of rheumatoid arthritis. Thomas v Sistrunk, et al, Michigan Court of Appeals Unpublished Decision dated May 20, 2003, Docket No. 234847.

Recommendation – As illustrated in this case, a treating doctor must be able to literally or substantively indicate the degree of injury to satisfy the threshold requirement. Because Plaintiff’s doctor could not definitively attribute Plaintiff’s condition to her accident (stating that arthritis was most likely the cause), Plaintiff’s claim was properly dismissed. When analyzing a serious impairment claim, one must always make a determination as to what degree the claim will be supported by a treating doctor. If in doubt, obtain a supplemental report, or schedule the physician’s discovery deposition.

Facts – Plaintiff was collecting shopping carts in a store parking lot when he was struck by Defendant’s vehicle. The initial lawsuit claimed injuries to the back as well as "depression". Plaintiff apparently offered no documentary evidence to show that he had been excused from work or that he had been officially identified as disabled because of his mental distress.

The Court determined that Plaintiff’s "injury" was not objectively manifested. Because Plaintiff abandoned his claim at Trial that the accident caused back pain, Plaintiff could not now claim that his depression (triggered by back pain) affected his ability to function. Plaintiff’s treating doctor had testified that while back pain did affect Plaintiff’s activities, Plaintiff was never disabled because of his depression. In summary, no record evidence existed which would suggest the Plaintiff’s feelings of hopelessness led to any significant life change. Rivera v Loye, Michigan Court of Appeals Unpublished Decision dated May 20, 2003, Docket No. 236212.

Recommendation – The Court also analyzed this case on the basis of whether the depression was "serious" for purposes of the statutory threshold injury requirement. Because Plaintiff did not seek treatment for his depression for more than one and one-half years after the accident; visited his treating doctor only seven times; and was treated with anti-depressants (which improved the condition), the condition clearly did not amount to a serious impairment. When attempting to analyze a serious impairment claim, it is very important that a detailed analysis be made of Plaintiff’s treatment records.

Facts – Defendant’s insured took his automobile to a dealership for repairs. While it was at the dealership, a faulty wire in the automobile caused it to catch fire, resulting in property damage to the facility. The dealership’s insurer sued the No-Fault insurer, claiming that Defendant was primarily responsible for coverage.

The Michigan Court of Appeals held that the No-Fault insurer was not responsible for damages under a plain reading of MCL 500.3121(1). The statute states that damage occurring within the course of a business that involves repairing, servicing or otherwise maintaining automobiles is excluded from coverage. Universal Underwriters Insurance Group v Auto Club Insurance Association, Michigan Court of Appeals Published Decision dated May 15, 2003, Docket No. 236657.

Recommendation – When attempting to determine whether any particular claim is covered, one must thoroughly review the policy which was in effect at the time of the incident, as well as the applicable portion of the Michigan No-Fault Insurance Code. Although Plaintiff argued that the statute did not bar recovery from Defendant because the fire occurred for reasons completely unrelated to the work being performed on the vehicle, the Court was not willing to apply anything other than a strict interpretation of Section 3121(1).

Facts – Plaintiff took over an existing car dealership which went out of business after four years. Plaintiff claimed that it was not until three years later that it was learned that the dealership was under capitalized.

In reversing the prior judgment of the Court of Appeals, the Michigan Supreme Court stated that Plaintiff’s cause of action accrued when the wrong was done. Because they failed to file their claim within six years thereafter, the cause of action was barred. Boyle, et al v General Motors Corporation, et al, Michigan Supreme Court Published Decision dated May 28, 2003, Docket No. 121661.

Recommendation – When analyzing a claim which may involve a right of subrogation under the insurance policy in effect, it is extremely important that a prompt determination be made as to when the potential cause of action accrued.

Should you have any questions or comments regarding this or any of our newsletters, please feel free to contact us by voice 989.799.3033, e-mail jtc@saginaw-law.com or write to Collison & Collison, P.C., 5811 Colony Drive, North, P.O. Box 6010, Saginaw, MI 48608-6010.

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