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If it were a Sherlock Holmes mystery, it might be titled “A Supreme Contradiction.” Surely that is how to describe the case of the now “missing” cause of action for economic loss damages in auto accident lawsuits in Michigan, and how the four Republican justices were able to contort the legal reasoning behind the recent decision that now eliminates this important right. Sadly, the ruling now gives Michigan auto insurance companies a huge victory at the expense of its most seriously injured policyholders. And it does so by contradicting language written by these same Republican justices just a few short years before.

A mystery it is, however, at least to the Michigan auto accident lawyers who have been bringing these Excess Replacement Services claims for nearly 30 years.

As recently reported by David Eggert MLive:

A divided Michigan Supreme Court ruled Monday that people injured in car accidents cannot sue another driver to cover the cost of household chores – cooking, cleaning and the like.

You can read the Michigan Supreme Court’s Opinion in Johnson v. Recca on the Court’s website.

Unfortunately, it is likely that the result in this case won’t lead to much discussion. I suspect that many will agree with the Court’s analysis that expenses for replacement services are not included in the statute’s definition of allowable expenses. And while I strongly disagree with this outcome, there’s a more interesting observation to be made here.

You see, as noted by Justice Diane Hathaway in her dissent, in 2004, the Michigan Supreme Court’s decision in Kreiner v. Fischer, included a footnote with a directly contrary conclusion:

An injured person may file a tort claim against the party at fault seeking to recover excess economic losses (wage losses and replacement expenses beyond the daily, monthly, and yearly maximum amounts). M.C.L. § 500.3135(3)(c).

(emphasis added.)

Strange, right?

In any event, the Court reasons that replacement services expenses are expressly articulated in a separate sub-paragraph of the statute and, therefore, weren’t intended by legislators to be included in allowable expenses.

Of course, the statute’s definition of allowable expenses:

Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.

It certainly would seem that a person seriously injured by another’s negligence should be able to include expenses related to caring for them.

Unfortunately, at least for now, this is the law and the Court composition we’re stuck with.

A mystery, indeed.


  1. Steve: What's the mystery? The Michigan Supreme Court majority rules in favor of insurance companies and against private, seriously injured, citizens the vast majority of the time. It will almost always rule when it can harm the injured public and benefit the insurance industry.

    Kreiner v. Fisher was an anti-citizen ruling, limiting what constituted a serious enough injury to permit an injured person to sue the at-fault driver for pain and suffering. Thus, because there was no harm done to the public and no benefit to insurance companies in adding the gratuitous footnote, the majority did so. Johnson v. Recca is an opinion that benefits insurance companies and hurts injured people. Thus, opining on excess replacement services in a 3rd party context TO THE HARM OF THE INJURED CITIZEN is ENTIRELY CONSISTENT of this majority's previous behavior.

    The rule of law doesn't matter; years of precedent do not matter. Inconsistency with previous statements? Doesn't matter! All that matters to this majority is granting as many victories as it can to insurance companies. This is "Michigan Supreme Court Majority 101".

    The Majority will stop at nothing to limit a private, injured citizen's right to justice. Likewise, this same majority will stop at nothing to aid insurance companies. That is why each of them need to be unseated. As you know, three very qualified women are running for seats currently occupied by two of these anti-citizen justices. Michigan citizens are encouraged to educate themselves on recent Michigan Supreme Court history and vote for pro-citizen choices in November.

    We, each one of us, are one horrible accident away from being victims, ourselves, and this Supreme Court majority makes the seriously injured victims TWICE, first of the negligence of the at-fault driver or insurance carrier and, second of a biased,anti-citizen, Supreme Court majority. To be seriously injured without compensation from the at-fault person excuses the insurance company that accepted the risk and shifts it to the taxpayer.

    Conservatives who favor "personal responsibility" are on the wrong side of this issue. Shouldn't insurance companies who profit from premiums and accept risk be required to compensate those who pay their premiums for years and now, for the first time, need the benefits they were promised for the premiums they paid? That's only fair, right?

    So, the three ladies who deserve citizen support for Michigan Supreme Court this November? Bridget Mary McCormack, Judge Shelia Johnson, and Judge Connie Kelley. Michigan citizens are encouraged to vote this November. Together, we can make a difference and restore justice, impartiality and sanity to the Michigan Supreme Court.

  2. Gravatar for jack

    this show the people of michigan how stupid these anti-nazis judges we have here in the state of michigan thank are neid governor.

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