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7 Reasons to Vote Against Justices Markman and Zahra for the Michigan Supreme Court

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Scorecard: Republican Justices Zahra and Markman of the Michigan Supreme Court have 100% record of voting FOR insurance companies and against victims A summary of the 2012 No-Fault insurance cases and rulings against auto accident victims

The Michigan Supreme Court

Michigan Supreme Court Justices

Front row (left to right): Justice Michael F. Cavanagh, Chief Justice Robert P. Young, Jr., Justice Marilyn Kelly Back row (left to right): Justice Mary Beth Kelly, Justice Stephen J. Markman, Justice Diane Marie Hathaway, Justice Brian K. Zahra

You’ve probably seen the ads on television by Justices Markman and Zahra, claiming that they respect the Constitution and rule of law. But the cases that they have ruled on tell a different story. These Justices, as part of an activist Republican majority, have voted 100% in favor of insurance companies over auto accident victims.

Here is a scorecard of how the Court has ruled in 2012 in favor of insurance companies, even creating new law and overturning decades of well-settled precedent in order to do so.

Atkins v. Smart, August 20, 2012

The majority held that application of No-Fault benefits does not constitute written notice of third-party tort claim.

Elevating form over substance and technicalities over justice, the Court majority reversed the Court of Appeals decision that a No-Fault application submitted by Atkins to SMART was sufficient legal notice.

Spectrum Health v. Farm Bureau, July 3, 2012

This case involves a single-car accident in which a family member who was expressly told could not drive a family vehicle and taken off the family’s policy was denied PIP benefits.

The majority discarded well-settled Michigan case law on point, and denied PIP benefits to anyone (including family members) that use a car without permission. Judge made law and judicial activism?

Only when it favors insurance companies.

Douglas v. Allstate, July 30, 2012

A family member caregiver is denied attendant care payments.

The Majority creates a series of new requirements (read: hurdles) for seriously injured people in Michigan who recover attendant care benefits.

The dissent points out that the majority is creating unnecessary obstacles to receiving owed PIP benefits and attendant care. Here’s more information about Douglas v. Allstate.

Johnson v. Recca, July 30, 2012

Michigan auto accident victims cannot sue for excess No-Fault replacement services.

Again, creating new judge made law in Michigan, and overturning nearly 40 years of allowing seriously injured accident victims to recover third-party replacement services, the Majority eliminates completely the entire claim for third party replacement services in Michigan (even though they had affirmed in Kreiner v. Fischer that this claim could still be made in auto tort cases).

Dissent believes that the Majority is dismantling the intent of the statute by not including ordinary and necessary services as benefits transferrable to an innocent third party. They would recognize legislative intent and allow replacement services to be transferred to third party. Here’s more information about Johnson v. Recca.

Titan v. Hyten, June 15, 2012

Creates a double standard that makes it very easy for auto insurance companies to allege fraud and void coverage against their own customers, but makes it near impossible for innocent customers to turn around and allege fraud when an insurance company cheats, lies and steals against the unsuspecting, the innocent and the vulnerable.

Hyten’s driver’s license was suspended because of multiple violations and accidents. A policy was signed August 22, 2007 and delayed until August 24, 2007, when Hyten expected the restoration of her license. Therefore, the question about suspended or revoked licenses in the household was marked “no” in anticipation of said restoration. Hyten’s license wasn’t restored until September. In February, 2008, Hyten was in MVA. Though, her license was restored before the accident, Titan sought indemnity saying that the application filed on August 24, 2007 was a fraudulent application. The Court of Appeals denied indemnity, holding that an insurer may not avoid liability for fraud that is easily ascertainable and it would have been easy to ascertain that Hyten’s license had yet to be restored.

Majority overruled Kurylowicz and all the cases that subsequently cited to it, getting rid of the easily ascertainable rule in Michigan. Here’s more information on Titan v. Hyten.

DeFrain v. State Farm Mutual Auto Insurance Company, May 30, 2012

Uninsured motorist benefits are denied after a hit-and-run case.

New law created again that favors insurance companies.

An unambiguous Notice of Claim provision is enforceable without showing an insurance company suffers any actual prejudice. Uninsured motorist benefits are sought after 30 days in a hit-and-run case. State Farm policy contained a 30-day notice provision regarding hit-and-run motor vehicle claims (a limitation that most other states have already ruled is on its face an unreasonable time period). But not in Michigan. Even though the Court of Appeals had relied on Koski in ruling that State Farm was unreasonable and must establish actual prejudice, our Michigan Supreme Court majority found otherwise, ruling that an unambiguous notice-of-claim provision is enforceable without showing that an insurance company was prejudiced and despite any unfair burden this places on the injured.

The Justices in the Minority noted that the Majority, in finding for State Farm, were creating new law and would have relied upon Koski and other cases that requires insurer to show it was prejudiced.

Joseph v. ACIA, May 15, 2012

No-Fault PIP benefits are denied over Michigan’s draconian one-year back rule.

Perhaps the saddest case of 2012, and certainly the one that has the worst public policy for the citizens of this state. This case is about one-year-back rule in PIP benefits. The plaintiff believed her insanity over the past 32 years operated to toll the one-year-back rule pursuant to the minority/insanity tolling provision and attempted to receive benefits from years before she filed her claim.

The Majority ruled that the tolling provision addresses when an action may be brought, so the one-year-back rule, which limits the amount of benefits does not apply. They overrule Regents, reinstate Cameron, and in effect basically say to hell with the very young, the brain injured, the medically incapacitated and anything else that would equitably toll the one-year-back rule.

The final scorecard and our future referees

The 2012 scorecard shows that there have been seven auto No-Fault cases where the Michigan Supreme Court has ruled against auto accident victims and FOR insurance companies. In several of these cases, the 4 Justice Majority created brand new judge-made law that now favors insurance companies and overturned well settled case law in this state.

Hat tip to Arnie Grinblatt, a No-Fault victim’s rights activist from West Bloomfield, Michigan for providing this to Michigan Auto Law.

It’s very important to restore our Court to one that is fair and balanced to both accident victims and to the insurance companies.

9 Comments

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  1. Vern Dennis says:
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    Other than the UM case, it doesn’t look like any of the cases were incorrectly decided.

    By the way, wouldn’t overturning these cases also represent judicial activism ?

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    I can say with confidence that nearly every lawyer, law professor and judge in Michigan (excluding those working on the re-election campaigns of Justices Zahra and Markman, or who are related to them by blood) strongly disagree with your statement.
    In these cases we see a distinct trend where these Republican Justices, who claim they respect the rule of law, are quickly willing to overturn well-settled precedent and stare decisis and create new judge-made law when it means the insurance companies win. Politics clearly trumps precedent. Moreover, the public policy in this state could not be worse, and is clearly at odds with the rest of the country. Are you really saying that a brain injured child should have the rest of their life determined by whether a claim was filed within one year on their behalf? No one goes that far. And SMART, which has a No-Fault application in hand, and knows of a terrible bus accident injury on the day it occurs, shouldn’t be able to claim lack of notice to avoid responsibility. In the Titan v. Hyten case, we see a very clear double-standard on what consumers and victims must prove to show fraud against an insurance company, and a much less onerous standard when the insurance company claims fraud against an individual. I encourage you to read my comments on this case in Michigan Lawyers Weekly or to the State Bar Negligence Section.

  3. Arnie Grinblatt says:
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    Who is “Vern Dennis”?

    I am always curious who posts comments on articles. As such, I ran a Google search using “legal examiner” and “vern dennis”. He has posts everywhere – FL, AL, MI , MO +. Paid lobbyist? I don’t know. All I can tell you, Mr. Dennis, is that I know MANY MANY MANY democrats AND republicans who will NOT be voting for Zahra or Markman.

  4. Karen Amick says:
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    There is fear about bringing ANF cases to the Supreme Court. I have a company that provides case management to those who have been injured in auto accidents. Over the past 22 years of working with accident injured individuals, I have seen over and over the plight of the person who cannot work, is completely disabled and is relying on the courts fairness to decide their fate. In addition, I have been in a car accident whereby my medical benefit payments were denied. I was a plaintiff that went to court over the matter and was quickly educated on the bias of the Judge who sat on my case. Before the trial even started, he stated “oh I know this case.” Apparently his son worked as a defense attorney with the carrier I had and had spoken to his Dad about my case. I didn’t stand a chance in court. I could have cut the judges disdain with a knife. It was a moment of somber and many tears as I learned that justice is an illusion within the Michigan court system. Integrity is for sale and the truth is often missed. My case never would have made it to the Supreme Court in Michigan, but I can easily see how it starts at the top and filters down. With my case, I settled out of court fearful that I would otherwise lose my business. I signed-off on all future medical; something I completely advise against. My attorney advised that I do so as the judge sat on both civil and criminal cases. If asked to requise himself, the fear was that he would retaliate by bringing me up on criminal charges. One wrong word, one contradiction in my testimony could lead to criminal prosecution. Not valid prosecution, just a judge who could bring charges against me. Attorney fees, a discredit of my character, etc led me to settle. Then, the same judge, ordered that I had to sign a settlement, or be held in contempt, that stated I could never sue my carrier again for any reason and, in that same settlement, stated that I could not sue my carrier for defamation of character – something they had done flagrantly. The whole experience left me shell shocked. I learned to think twice and to never pursue a civil case again.

    The courts are no place for bias, lack of integrity or narcissism. Michigan needs judges that are insightful, follow the law and implement the law as written.

  5. jessica says:
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    Forget which side of the political isle you might be on. If what Mr. Gursten says is true (that the Supreme Court’s Republican majority rules for defendants and insurance companies 100% of the time), then we should all be frightened and these biased judges should be replaced. I don’t hear Mr. Gursten demanding that judges rule in his favor 100% of the time, or lobbying for judges who would always rule his way. I hear him and other attorneys, on both sides of personal injury cases, saying, simply: “Can we just have a fair and unbiased shot at justice?”. I, for one, don’t want a Supreme Court that rules 100% one way, whichever side I am on. I want a fair court and a fair interpretation of the law. Don’t you, Mr. Dennis?

  6. Arnie Grinblatt says:
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    I was in a life-changing auto accident 11 years ago. I am not an attorney, and I do not work for an insurance company. I have not sued the insurance company. Why? I simply cannot afford to settle out of court. My claim easily exceeds $300,000 per year. My full time job for the past 11 years has been a self-advocate. Insurers love litigation. They can deny and delay payment. And when they settle out of court, their obligation is discounted. When they choose not to settle, they ride on the coattails of the current state supreme court. Victims do not stand a chance. This is the reason we need dethrone the kings sitting on the bench.

    Last, the current auto no fault system in MI, paid for by drivers for the benefit of drivers, does not allow for punitive damages for an insurer’s bad faith. Despite this, most insurers favor the system. If they were so greedy, this would not be the case.

    Attorneys are fighting for auto accident victims. Insurers are fighting to maximize their profits. The current system in MI is out of balance. We have to play by the insurers’ rules, and with the current supreme court, the rules can change in favor of the insurers after the game began.

  7. Arnie Grinblatt says:
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    correction to last post – “most LAWYERS favor the current system”

  8. Mark Bello says:
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    Steve: You are being too kind to these incredibly biased jurists. Only 7 REASONS???!!!!! I can think of a lot more than that! How about accepting large contributions from a billionaire who owns the only bridge to Canada from Detroit and then voting to stop the construction of a competing bridge, at his request, putting the issue to the voters and engaging in a deceptive ad campaign just to prevent competition and lower tolls? How about remaining silent when an ad falsely accuses one of their opponents of defending terrorism when she was only defending everyone’s right to counsel? How about overturning years of precedent, over and over and over again, just to help insurance companies increase profits while rewarding deep pocket campaign contributors and leaving severely disabled people without a remedy and without compensation? How about approving ads that say you “stand up to special interests” when you are in bed with them? The only “special interests” that the Republican majority stands up to is “Michigan Citizens”; this majority rules against that “special interest” 100% of the time. And that “special interest” should vote these guys right out of office.

  9. Arnie Grinblatt says:
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    Vern- they have NOT yet predicted winners in the MI Supreme Ct. There remain uncounted votes in numerous precincts. As of 10:30am Wednesday–

    Bridget Mary McCormack 1,433,879 23
    Stephen Markman 1,433,383 23
    Colleen O’Brien 1,327,903 22
    Connie Kelley 1,310,008 21