Facts – Plaintiff (a seven-year-old), was bitten by Defendants’ German shepherd dog while playing with friends on Defendants’ property. One of Plaintiff’s friends had teased the dog. Plaintiff then walked toward the animal (while eating a peanut butter and jelly sandwich). The dog’s leash broke. Plaintiff and her friend ran. She tripped over a stick and the dog bit her on the back.

According to the Michigan dog bite statute (MCL 287.351), absolute liability is placed on the dog owner, except where the animal bites after having been provoked. However, the statute also requires an individual to be lawfully upon Defendants’ premises. There was no evidence presented to support Plaintiff’s contention that Defendants gave Plaintiff implied permission to enter their land.

A common law action for damages against an animal’s owner is based on the theory that whoever keeps an animal accustomed to attacking and injuring mankind, with knowledge that it is so accustomed, is prima facie liable. The common law requires proof that the owner or keeper of an animal know of its vicious nature. There was no such evidence in this case.

Lastly, this Court also determined that there was no evidence that the animal in question constituted an attractive nuisance [the elements of which are set out at 178 Mich App 735 (1989)]. Lieding, et al v Blackledge, Michigan Court of Appeals Unpublished Decision dated May 13, 2004, Docket No. 243850.

Recommendation – As in this case, a thorough investigation should be conducted with respect to the claimant’s prior use of the premises. The owner’s knowledge of the animal’s propensities should also be explored.

Facts – Defendant was Plaintiff’s automobile insurer. In addition to required no-fault benefits, the parties contracted for supplemental and voluntary insurance coverage including uninsured or underinsured motorist benefits. The insurance policy was accompanied by written endorsements changing specific terms. The latest amendment contained language indicating that no action could be brought against the insurance company more than one year after the date of accident.

Plaintiff was injured in a multiple car collision. Defendant was promptly notified. The insured applied for and received no-fault benefits. He ultimately underwent shoulder surgery. More than one year after the accident, Defendant was first notified of Plaintiff’s claim for underinsured motorist benefits. The claim was rejected on the basis that it was tardy.

In reversing the Trial Court’s denial of Defendant’s Motion for Summary Disposition, the Court of Appeals held that the terms of an insurance policy are to be enforced as written when no ambiguity is present. A contract is ambiguous when its words may be reasonably understood in different ways. In this particular case, the contractual language was not ambiguous and clearly barred actions for underinsured motorist benefits brought after one year from the date of the accident. Hellebuyck v Farm Bureau General Insurance Company of Michigan, 262 Mich App 250 (2004).

Recommendation – An insurance policy is nothing more than a contractual agreement to pay certain benefits. Where you are dealing with mandatory coverages, the Michigan No-Fault Insurance statutes will control. Where claim is made under optional coverages (for example, uninsured or underinsured motorist), the terms of the policy will control. Quite often, the insuring agreement will contain limitations on the filing of litigation, including an agreed upon statute of limitations.

Facts – Plaintiff was a resident of Indiana and her vehicle was registered and licensed in that state. While traveling in Michigan, she was involved in an automobile accident with a Michigan resident. At the time of the occurrence, Plaintiff did not maintain any type of insurance policy on her automobile. She filed suit alleging that she had sustained a serious impairment of body function or permanent serious disfigurement.

The Trial Court granted Defendant’s Motion for Summary Disposition holding that it would be irrational to allow an uninsured non-resident motorist to recover non-economic damages where the No-Fault Act precludes an uninsured resident motorist from recovery of such damages. In reversing the Trial Court’s ruling, the Court of Appeals held that Section 3101 of the No-Fault Code specifically indicates that the owner or registrant of a motor vehicle required to be registered in this State, shall maintain security for payment of benefits. Because Plaintiff’s vehicle was not required to be registered in Michigan, the statute did not require her to carry no-fault automobile insurance. Under Section 3102(1), a non-resident owner or registrant of a motor vehicle not registered in Michigan, must maintain security if the vehicle is operated in Michigan for an aggregate of more than 30 days in any calendar year. Plaintiff did not exceed this 30-day period. Thus, Section 3135(2)(c) does not apply to this case and did not preclude Plaintiff from recovering non-economic damages. McGhee v Helsel, 262 Mich App 221 (2004).

Recommendation – Again, the Michigan Court of Appeals has applied a strict statutory interpretation to the facts of this case. The Court recognized that its application of the unambiguous language of the No-Fault Act appears to lead to a result whereby it is financially safer to drive an uninsured out-of-state vehicle in Michigan than it is to drive an uninsured Michigan vehicle in Michigan. However distasteful, the Court found that its decision did not lead to an "absurd result". Given the foregoing, each claim must be analyzed by using a clear, unambiguous interpretation of the applicable No-Fault provisions at issue.

Facts – Farmers Insurance Company implemented a PPO endorsement option whereby policyholders would receive a reduction in their PIP premium in exchange for agreeing to obtain medical treatment exclusively from providers in the PPO network. The Circuit Court concluded that this endorsement inherently conflicted with Michigan’s No-Fault Insurance scheme. The Michigan Court of Appeals agreed. This case presented an issue of first impression.

Deference is given to an administrative agency’s decisions, provided that the agency’s construction is consistent with the purpose and policies of the statute itself. In this case, the Insurance Commissioner did not act on the policy forms submitted by Farmers and consequently, the PPO option was automatically approved after 30 days. The Court agreed that the authority to incorporate managed care into the No-Fault system is a matter for the legislature to decide. The No-Fault Act’s silence in regard to a particular matter does not necessarily preclude its use. An insurer’s provision that facilitates the rules of the Act and is harmonious with the legislature’s No-Fault Insurance regime is valid. Conversely, a provision that is not in harmony with the No-Fault scheme established by legislature must be rejected. Michigan Chiropractic Council, et al v Commissioner of the Office of Financial and Insurance Service, et al, 262 Mich App 228 (2004).

Recommendation – This case contains a very good discussion of the various features of Michigan’s No-Fault system as it would pertain to wide-ranging medical benefits available. It would not appear as if managed care, in the form of a limited provider network, will be implemented any time soon, (except by legislative approval).

Facts – Plaintiff sought to recover first-party no-fault benefits from Defendant, arising out of an automobile-parked car accident. Plaintiff’s claim for benefits was based on the unreasonably parked vehicle exception [MCL 500.3106(1)(A)].

On the evening in question, Plaintiff had been operating a snowmobile. On his way home, he collided with the rear of an automobile that had been parked near a snow bank. Because a snowmobile is not a vehicle for purposes of the No-Fault statute, Plaintiff’s claim for first-party benefits was based upon the unreasonably parked vehicle exception. Specifically, under Section 3106(1)(A), accidental bodily injury does not arise out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle unless the vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred.

In the present case, Plaintiff was illegally operating his snowmobile on a city street in violation of a city ordinance prohibiting snowmobiles between the hours of midnight and 8:00 a.m. Because the Court concluded that Plaintiff was not within the class of persons protected by the unreasonably parked vehicle exception, it did not decide whether the motor vehicle was parked unreasonably in a manner to cause the bodily injury which occurred. Although Plaintiff’s actions with regard to speeding and impaired driving were evidence of negligence, Plaintiff was barred from operating his snowmobile on city roads after midnight. Because of that fact, he was not within the class of persons to be protected by the city parking ordinance and Plaintiff was not within the class of persons to which the automobile owner owed a duty in regard to the parking of her vehicle. Kennedy, et al v State Farm Mutual Automobile Insurance Company, Michigan Court of Appeals Unpublished Decision dated May 27, 2004, Docket No. 251004.

Recommendation – During any investigation, a review of local ordinances should be made so as to determine whether the claimant may have violated one or more provisions. As illustrated above, an ordinance violation may result in denial of benefits.