Facts – In this case, the worker was injured in an accident while driving a vehicle owned by the Defendant and insured by the Plaintiff insurance company. The worker submitted a claim for first-party benefits to the insurer, who paid approximately $37,000.00 in benefits. The employer/Defendant did not carry workers’ compensation insurance.

The insurance company brought an action in the Workers’ Disability Compensation Bureau for determination that the worker was an "employee" under the Workers’ Disability Compensation Act. The Workers’ Compensation Magistrate determined that the worker was in fact an employee as defined in the Act. Defendant appealed that decision to the Workers’ Compensation Appellate Commission as well as the Court of Appeals, which both affirmed the Magistrate’s determination.

The insurer brought an action in Circuit Court claiming it was equitably subrogated to the worker’s rights against the Defendant employer regarding workers’ compensation benefits. The employer argued that the worker was not their employee at the time of the accident, but rather an independent contractor.

The Court affirmed the Circuit Court’s decision based upon the Doctrines of Collateral Estoppel and Res Judicata. Going further, the Court analyzed whether the worker was in fact an employee stating that the employee/independent contractor determination must be made by evaluating the facts presented and whether they meet the statutory definition, and not the labels the parties applied to the situation or what forms they used to report income. The Court analyzed the definition of "employee", under the Workers’ Compensation Act, provided at MCL 418.161 (l) and (n) which provide:

(l) Every person in the service of another, under any contract of hire, express or implied . . .

. . .

(n) Every person performing service in the course of the trade, business, profession or occupation of an employer at the time of the injury, if the person in relation to this service does not maintain a separate business, does not hold himself or herself out to and render service to the public, and is not an employer subject to this Act.

 

In this case, the Court held that as the worker did not hold himself out independently in the course of selling Kirby vacuum cleaners, he was an employee. Further, that equitable subrogation was proper in allowing the insurer to recover for those benefits paid from the employer, even though the employer did not carry workers’ compensation insurance. A direct cause of action is provided against the employer where no workers’ compensation insurance is provided. State Auto Property and Casualty Insurance v A-3, Inc., Chris Cortese and Lisa Cortese, Unpublished Michigan Court of Appeals Decision dated September 25, 2008, Docket No. 276535.

Recommendation – When analyzing whether an individual is an employee when injured in an automobile accident during the course of his or her employment, detailed analysis of the relationship between the worker and the employer should be taken, rather than looking solely at how the parties define the relationship.

Facts – In this case, the Plaintiff was injured in a bicycle/motor vehicle accident and Farmers Insurance initially paid no-fault benefits believing he was covered under a policy that was issued to the Plaintiff’s girlfriend or fiance¢ . Upon further investigation, it was determined that the Plaintiff was not covered under the policy and Farmers ceased paying benefits. Suit was filed against Farmers, and Farmers filed a Third-Party Complaint against Allstate Insurance Company, the insurer of the driver of the vehicle involved in the accident, alleging that Allstate was liable for Plaintiff’s PIP benefits in seeking recovery of benefits previously paid by mistake. The Trial Court determined that Farmers failed to provide timely notice of its claim within the one year limitations period of the No-Fault Act, MCL 500.3145(l), and granted Allstate’s Motion for Summary Disposition.

The Court of Appeals affirmed, holding that actions between insurers for the recovery of no-fault benefits mistakenly paid are governed by the one-year limitations period of MCL 500.3145(l). Although log notes from an Allstate adjuster indicated that it might possibly be liable for PIP benefits as an insurer of the driver of the vehicle involved in the accident, there was no evidence that Allstate received notice of any actual claim. Since Allstate was not notified that a claim would be pursued for PIP benefits on behalf of the injured Plaintiff until more than one year after the accident giving rise to the claim, the claim from Farmers for reimbursement of benefits mistakenly paid was barred. Sidhu v Farmers and Allstate, Unpublished Michigan Court of Appeals Decision No. 277472, Dated September 11, 2008.

Recommendation – If there is a possibility that another insurer may be liable for the benefits paid, a claim must be submitted within the one-year period pursuant to MCL 500.3145(l).

Facts – In this case, the 18 year old Plaintiff, was catastrophically injured in a motor vehicle accident. His father received extensive training while at a rehabilitation hospital in learning how to care for Plaintiff. His doctor indicated upon discharge from the rehabilitation hospital that he would require 24-hour attendant care from an LPN or RN. The Plaintiff was discharged home to his father’s care.

The insurer, using a survey of home care salary and benefits, determined that $19.00 per hour was reasonable compensation for Plaintiff’s father. Plaintiff demanded a $34.00 per hour rate for the father. The Court of Appeals affirmed the narrow issue before it, in determining whether the jury was presented with sufficient evidence to support the $2.5 million verdict in favor of Plaintiff. Going further, analyzing the issue of whether the Jury should have heard evidence of "agency rates", the Court held that compensation paid by healthcare agencies to their licensed healthcare employees can be considered when determining reasonable compensation to a family member providing similar services. The Court of Appeals went further noting that it is not unreasonable to pay an unlicensed family member, without a degree in a health specialty, a lesser amount than what would be paid to a licensed healthcare professional. Bonkowski v Allstate, 281 Mich App 154 (2008).

Recommendation – Based upon this opinion, it is reasonable to look to what the actual healthcare provider is being paid, in determining a rate for a family member. However, the hourly rate charged by the agency is not pertinent to this determination. The status of this ruling is in flux, as an application for leave to the Supreme Court was filed on November 13, 2008. We will advise of the ongoing status of this appeal.

Facts – In this case, the Plaintiff tripped and fell as she exited the MGM Grand Casino in Detroit. Although she could not identify the cause of her trip and fall, Plaintiff testified that other patrons indicated that a floor mat was the cause of her fall. In analyzing the situation, the Court noted that an ever changing and uncorroborated account is nothing more than speculation and conjecture, and does not demonstrate that the Defendant knew or had reason to know of the existence of a dangerous condition. In Michigan, it is the overriding public policy to encourage people to take reasonable care for their own safety and watch where they are walking. In the case presented, the Plaintiff presented no more than speculation and conjecture. Accordingly, the Trial Court erred in denying Defendant’s Motion for Summary Disposition.  Cooper v MGM Grand Detroit, LLC, Unpublished decision of the Michigan Court of Appeals No. 278320, Dated September 9, 2008.

Recommendation – As the Plaintiff could not identify the cause of her fall, and merely theorized that there were special aspects of the floor mat, is merely speculation. Detailed investigation should take place when advised of a slip and fall situation from the injured party, to determine if he or she knows what allegedly caused them to slip, trip or fall.

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