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Instead of providing specifics, Senate Republicans use Senate Bill 1 to grandstand on auto No-Fault reform

Senate Bill 1 was introduced by Sen. Aric Nesbitt (R-Lawton) on Tuesday.

But in reality Senate Bill 1 is nothing more than a CliffsNotes version of the same auto No-Fault wish list that the insurance-industry has been pushing Michigan Republicans to enact for them for years.

However, in some ways, it is even worse than the many failed auto No-Fault insurance reform bills that have preceded it over the last several years.

Why worse?

It’s devoid of all specifics and actual details. It offers no actual plans or concrete proposals.

It’s politicians grandstanding for the insurance companies who contribute to their political campaigns.  Senate Bill 1 reads more like a press release than an actual piece of legislation.

But grandstanding can be dangerous. Even without specifics, there is much in SB 1 that will be very bad for car crash victims and Michigan drivers if it becomes law.

It starts off well enough.

I even found myself nodding my head in agreement as I read the beginning goals of SB 1:

  • Providing “rate relief for consumers” through “savings on his or her automobile insurance premium . . .” (SB 1, page 1)
  • “[R]educing the number of uninsured drivers in this state . . .” (SB 1, page 1)
  • “[R]educ[ing] fraud and conflicts of interest in the No-Fault system . . .” (SB 1, page 4)

All of these goals are important and I’ve discussed ways to accomplish each of these on the pages of this auto law blog.

But in SB 1, the only means that lawmakers have chosen to try to accomplish these ends are the same old, insurance-industry-boondoggles of eliminating No-Fault insurance protections that car crash injury victims desperately depend upon to survive.

Due to the absence of any details and specifics of a No-Fault reform plan in SB 1, I, like everyone else, will have to wait and see whether lawmakers actually take action on this insurance industry wish list, or whether SB 1 is all just talk. It certainly does not take a balanced approach to reforming auto insurance. For example, even though insurance industry profit margins are widely believed to be significantly higher than the national average in Michigan (a nice benefit of selling a product that the law makes compulsory to purchase), there is nothing in the bill about insurance industry profits, or widespread fraud and denial of claims, or redlining and credit scoring, or gender discrimination against women.

Senate Bill 1: eliminating unlimited necessary catastrophic injury coverage

SB 1 says it would be the “intent of the legislature” to create caps on auto No-Fault insurance benefits and, thus, eliminate the unlimited, catastrophic injury coverage that the law currently guarantees to severely injured car crash victims.

Also, SB 1 would allow drivers to “choose an amount of personal injury protection coverage that suits the individual’s needs, lifestyle” and, thus, “enjoy a corresponding savings on his or her automobile insurance premium that corresponds with the chosen benefit level.” (SB 1, page 2)

As I explained in my recent blog post, “House Bill 4024 eliminates No-Fault benefits,” this is in reality a horrible idea:

“[C]apping auto No-Fault insurance benefits carries with it serious, harmful consequences (none of which are acknowledged by the insurance-industry-beholden politicians who push them) . . . .”

In that blog post, I go into great detail about the consequences of capping auto No-Fault in Michigan.

Senate Bill 1 supports utilization review to make No-Fault even more like a managed care health system

There are plenty of misleading billboards we see on the highways that talk about the inflated charges for things like MRIs in Michigan. What the billboards don’t show is what the insurance companies actually PAY for these medical charges, which is very different from the charge. Auto insurers only have to pay the reasonable and customary charge.

In practical terms, that involves aggressive auditing of every bill by insurers already. Each bill or charge for service is reviewed, often slashed, and then paid.

If you like getting your health care and treatment through a managed care system, such as an HMO, then you’ll love SB 1’s proposed for implementing an even more aggressive utilization review process for medical providers that bill No-Fault insurers for services they provide to car crash victims.

Specifically, SB 1 would:

Require “an annual utilization review” to “reduce overutilization of medical treatments, products, and services related to No-Fault insurance claims.” This would consist of having “an independent party . . . identify utilization above the usual range for the treatment based on medically accepted standards, with consequences for providers that knowingly provide false or misleading information.” (SB 1, page 3)

Translation: The same company bean counters who micromanage every charge will now be replacing all medical service charge audits with even more aggressive auditing protocols, aggressive medical fee schedules, and a one-size-fits-all payment approach for every bill they receive.

My own guess is that somewhere along the line (in the not-too-distant future) the results of the new aggressive utilization review will give rise to the inevitable resurrection of past proposals that No-Fault should include an HMO-type of pre-approval and doctor network similar to what Detroit Mayor Mike Duggan wanted with his disastrous D-Insurance.

The insurance industry will say it’s necessary because innocent car accident victims must be prohibited from using a doctor of their choice because a doctor who puts the patient first is more expensive than a doctor who puts the insurance company first. Caring for a patient and following a Hippocratic oath results in physicians who “overutilize” medical care. Who would know this better than the auto insurance companies?

Talk about letting the foxes guard the henhouse!

Senate Bill 1 supports eliminating No-Fault benefits for older drivers

Medicare is no substitute for No-Fault when it comes to providing medical care and treatment to a car crash victim who has been seriously injured.

That’s why I’ve been opposed to proposals encourage drivers (of Medicare-eligible age) to drop their auto No-Fault coverage and rely on Medicare in the event that tragedy strikes.

The consequences can be disastrous. As I explained last year when a bill to push senior drivers off auto No-Fault insurance and onto Medicare was introduced:

“Excluding seniors from No Fault insurance would actually work to take away vital legal protections that senior citizens currently have, and it will increase Michigan taxpayers’ Medicare burdens … Seniors who are seriously hurt in automobile accidents will lose everything. Any senior who is seriously injured in an auto accident will quite literally be driven into financial ruin if this proposed legislation becomes law.”

Nevertheless, this is precisely what SB 1 wants:

“Allow seniors and other individuals over 62 years of age with lifetime health care benefits” (presumably through Medicare) to save money by allowing them to opt out of No-Fault PIP coverage. (SB 1, page 2)

Buyer beware, I assume?

Seniors who get warehoused in Medicare facilities for catastrophic injuries in pure tort states would have some important words of advice and wisdom for Michigan drivers who are willing to give up the broad access to superior medical care that is available to seniors in Michigan who are seriously injured in car crashes.

Read the full blog post online: Senate Bill 1: All talk on auto No-Fault.

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In guise of temporary savings, House Bill 4024 eliminates unlimited necessary medical care and gives insurers way to avoid reducing premiums

It didn’t take some insurance company-beholden lawmakers very long to resume their efforts on changing No-Fault in a way that helps insurers at the expense of Michigan drivers and car accident injury victims.

Last Thursday, January 10, 2019 – just days into the new 2019-20 legislation session – House Republicans introduced House Bill 4024, which proposes to change Michigan’s auto No-Fault insurance law as follows:

  • Eliminate the existing necessary unlimited catastrophic medical coverage that’s guaranteed by the No-Fault law and replacing it with caps on all No-Fault benefits at levels of $250,000 and $500,000 (which means that all benefits and protections, such as medical, wage loss, replacement services and attendant care, must be covered by the cap). However, drivers would still have the option of retaining No-Fault coverage with “no maximum limit.” (HB 4024, page 16)
  • Impose a No-Fault medical-provider fee schedule that will boost auto insurance company profits while saddling car crash injury victims with reduced access to necessary medical care. (HB 4024, page 21)
  • Requires temporary, indefinite savings that apply only to the No-Fault portion of people’s auto insurance bills. (HB 4024, page 23)
  • Requires all drivers – including those who choose to forfeit their catastrophic injury coverage – to continue to pay into the Michigan Catastrophic Claims Association (MCCA). (HB 4024, pages 6 and 12)

Like the abysmal – and, fortunately, failed – proposals from the last legislative session, such as the Duggan-Leonard-Theis plan which was roundly defeated by a 63-45 vote in the House, House Bill 4024 will hopefully be shelved in favor of more responsible proposals that could both preserve benefits and protections and lower insurance prices.

Below I will discuss in detail the aspects of HB 4024 that drivers, car crash injury victims and voters need to know about.

To read more about the No-Fault reforms that I have proposed, please check out my “No Fault reform guide for new lawmakers on how to lower car insurance rates and preserve No Fault benefits.”

To read more about past No-Fault reform efforts by lawmakers, please check out “Michigan No Fault reform: Everything you need to know.”

Capping No-Fault benefits

House Bill 4024 proposes the following caps on all No-Fault benefits – medical expenses, wage loss, replacement services and attendant care, etc.:

  • $250,000 limit (new 3109a(2)(A))
  • $500,000 limit (new 3109a(2)(B))
  • “No maximum limit” (3109a(2)(C)). (HB 4024, Page 16)

Notably, the first two cap levels eliminate all catastrophic injury coverage for car crash victims whose injuries are so severe and life-altering that they will need medical care and coverage – which is currently guaranteed by the No-Fault law.

Consequently, the amount that car accident victims will need to cover what they’ve lost in wages because of injuries and not being able to work is part of the same pie available for necessary medical care and treatment, leaving car accident victims in a horrible Catch 22: Use the limited coverage to pay bills, put food on the table and pay your mortgage, or use the coverage to pay for the necessary medical care to live and try to recover.

In other words, if you have tens of thousands of dollars lost because you can’t work, it is all taken out of the same cap amount that is used to pay for critical medical care.

Additionally, as I’ve discussed over the years, capping auto No-Fault insurance benefits carries with it serious, harmful consequences (none of which are acknowledged by the insurance-industry-beholden politicians who push them) such as:

  • Caps push victims onto health insurance, Medicaid and Medicare for their medical care coverage, yet the coverage the victims need may not be available to auto exclusions in insurance policies, non-coverage or limitations of coverage for necessary services and treatment, restrictions imposed by managed care systems such as HMOs.
  • Caps actually cause more car accident lawsuits by forcing victims to sue at-fault drivers for the “excess” medical coverage they need, which exceeds the auto No-Fault cap in their insurance policy. Significantly, HB 4024 at least does appear to acknowledge this reality by authorizing tort lawsuits to recover damages for unpaid medical benefits that are “in excess of” of the No-Fault cap. (HB 4024, page 19)
  • However, as one of the few Michigan auto accident lawyers who has litigated cases both in No Fault states like Michigan and in other “pure tort” states that do not have a No-Fault law, I can say that depending on the wrongdoer who causes a serious car or truck wreck to pay economic loss is more akin to playing Russian Roulette than it is a sound compensation mechanism for accident victims. It works when you have a Tracy Morgan situation with a defendant with essentially unlimited insurance policy limits and assets. It doesn’t work at all in most states where the wrongdoer driver has minimum insurance policy limits and little or no assets and further has the ability to seek bankruptcy protection if the medical bills and economic loss is significant.
  • Caps force victims to pay out-of-pocket (using savings, retirement, college accounts, etc.) for necessary medical care or to just go without needed care.
So-called insurance premium savings from HB 4024’s No-Fault reform plan?

On paper, HB 4024 appears to be promising an “average” amount of savings to drivers.

Specifically, this No-Fault reform bill provides:

  • Average savings of 40% for policies with a $250,000 cap on No-Fault benefits
  • Average savings of 20% for policies with a $500,000 cap on No-Fault benefits
  • Average savings of 10% for policies with “no maximum limit” on No-Fault benefits (HB 4024, page 23)

But as is so often the case with these insurance company lobbyist-inspired No-Fault reform bills, the devil is in the details.

Below is what drivers and victims need to know about HB 4024’s so-called savings:

  • It’s temporary because the assurance of “savings” disappears in five years. (HB 4024, pages 23 and 25)
  • Auto insurers have a loophole to avoid providing price reductions by asserting that the “required deductions are not justified.” (HB 4024, pages 23-24)
  • The savings only apply to the No-Fault portion of people’s auto insurance bill – leaving untouched the ever-increasing rates for liability, property damage, collision and comprehensive.
  • Savings will be offset or cancelled out by corresponding increases in health insurance prices and taxpayer burdens for Medicaid and Medicare. As the burden of medical claim costs for car crash victims shift from No-Fault to these entities, their costs will naturally rise (significantly in the case of catastrophically injured victims) and, thus, those increased costs will be passed along to insurance consumers and taxpayers.
  • Savings will be offset by increased litigation costs due to lawsuits being filed to recover “excess” medical benefits.
  • Savings will be offset by increased auto insurance costs for liability coverage (yes, you read that correctly) which drivers will need to protect themselves and their families financially if they’re sued by a crash victim for “excess” medical benefits.
  • Savings will be offset or cancelled out ERISA liens (filed by self-funded, employer-provided ERISA health insurance plans) which would allow a health insurer to take money from a victim’s pain and suffering settlement as reimbursement for what the insurer paid for the victim’s accident-related medical care.
  • Savings will be offset or cancelled out by expenses paid out-of-pocket for medical care in “excess” of the No-Fault cap that isn’t available through health insurance or Medicaid or Medicare and/or through a tort lawsuit against the at-fault driver.
Proposed No-Fault medical-provider fee schedule is not enough

HB 4024 proposes a fee schedule that is 100% of the Workers’ Compensation fee schedule.

That’s not enough. To assure that car crash victims are able to have access to the medical care and treatment they need, the fee schedule will need to be increased.

I believe a No-Fault medical-provider fee schedule that’s set at 185% of the Workers’ Compensation – which is the level that’s been proposed by CPAN – would do justice for everyone.

Read the full blog post online: House Bill 4024 eliminates No-Fault benefits.

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After Zichichi v. Mull, will Michigan Supreme Court Chief Justice Markman finally give up his one-man crusade to overrule McCormick v. Carrier?

It’s strange that a self-proclaimed conservative jurist like Chief Justice Stephen J. Markman of the Michigan Supreme Court, who has claimed to be against “judicial activism” and “legislating from the bench,” is so quick to abandon these principles to overrule settled Supreme Court precedent.

It’s no secret that Chief Justice Markman loathes the Michigan Supreme Court’s landmark auto accident injury threshold ruling in McCormick v. Carrier.

First, a quick history lesson.

Once upon a time, a group of four justices on the Michigan Supreme Court, often referred to as the “Gang of Four,” wreaked havoc on our law.

These four justices, armed with an assortment of different dictionaries, would engage in all sorts ways to rule on cases based on politics rather than on precedent. They would call themselves strict statutory constructionists, but, in reality, they would engage in all sorts of judicial activism and outcome-determinative reasoning to find a result they wanted. See Exhibit A.

Nowhere was this judicial activism more obvious than in the ugly Kreiner v. Fischer case – a judicial travesty that caused several thousand completely innocent and injured car accident victims (including those with broken bones and extensive surgeries like spinal fusions and total knee replacements) to be thrown out of court.

In my blog post, “McCormick is ‘most compatible’ with Michigan’s No Fault law,” I criticized then-Justice Markman’s surprising move, explaining:

“What made Kreiner so bad, and so worthy of scorn by auto attorneys such as myself, is that it was clearly political. Instead of interpreting a very simple, unambiguous statutory definition of serious impairment of body function, Kreiner was an activist, outcome-oriented political decision. Its judge-made hurdles created for auto accident victims and their attorneys, found nowhere in the statute, represented a radical departure from the simple, unambiguous statutory definition created by the Michigan Legislature. It created additional very high legal hurdles, restrictions to legal recovery that aren’t found in the real world of medicine (physician-imposed restrictions being the most notorious) and added temporal and durational requirements for automobile accident victims seeking legal compensation for their pain and suffering.”

Kreiner v. Fischer was judicial activism on steroids.

In 2010, Kreiner was finally overturned. A new majority of justices returned Michigan law to a truer judicial interpretation of the No-Fault law’s “serious impairment of body function” threshold law, overruling the Court’s disastrous Kreiner decision from 2004.

But Markman wasn’t finished with Michigan’s auto accident threshold law just yet.

He penned a 64-page dissenting opinion in McCormick which concluded not with precedent and strict statutory construction, but with a doom-and-gloom prediction of what a post-Kreiner world of auto accident litigation in Michigan would be like.

Now, Chief Justice Markman will not let the McCormick issue die – despite the ruling having become settled law.

Even though none of his fellow justices share in his contempt for the Legislature’s statutory definition of Michigan’s auto accident threshold, and even though none of his predictions he made in his 64-page McCormick dissent have proved true, Chief Justice Markman still persists in calling for McCormick to be overturned by the Court.

Chief Justice Markman questions whether McCormick is ‘most compatible’ with No-Fault law

Most recently, Markman did so in the case of Patrick v. Turkelson, where the Michigan Court of Appeals concluded that, under McCormick, a jury – not a judge on a motion to dismiss – should determine whether a car crash victim’s hearing loss constituted a “serious impairment of body function” such that she would be entitled to pain and suffering compensation.

In a November 16, 2018, order, Chief Justice Markman conceded that the victim in Patrick satisfied “the no-fault act’s ‘serious impairment’ threshold for tort liability as construed by McCormick,” but then he went to insist that the victim would not have satisfied “the same threshold as construed by Kreiner.”

Based on that, he advocated for the Supreme Court to review the Patrick case so the justices could revisit whether McCormick and its overruling of Kreiner was actually the right thing to do:

“Therefore, this would seem to be an appropriate case in which to assess both McCormick and Kreiner, which set very different standards for tort liability, and to determine which of these standards is most compatible with MCL 500.3135.”

There are several problems with what Chief Justice Markman proposed in Patrick.

First, as a conservative justice who claims he is averse (to say the least) to any form of judicial activism, it makes no sense that he’s now proposing to overrule a long-standing, well-settled precedent of the Court. That is, there is  no reason at all, except that he wants to do so.

Although it may not be legally significant, it’s interesting that Chief Justice Markman wants to do away with McCormick even though it has already been the law of the state for two years longer than Kreiner was.

Second, by virtue of the justices’ ruling in McCormick, they established that their interpretation of the “serious impairment of body function” threshold was the “standard” that was “most compatible” with the statute as set out in the No-Fault law.

Third, none of the Chief Justice’s colleagues appear to doubt that the McCormick standard, rather than the Kreiner standard, is the one that’s “most compatible” with the No-Fault statute. Otherwise, they would’ve joined him in his dissent.

Chief Justice Stephen Markman really doesn’t like McCormick v. Carrier

His dissenting opinion in Patrick was not the first time that Chief Justice Markman has been the solitary voice making an out-of-left field call for overruling McCormick v. Carrier.

This judicial activism was also evident in an April 1, 2016, order in Hall v. Miko, where he voted for the Court to hear the case so the justices could:

“[C]onsider … [whether] this Court should overrule McCormick v. Carrier … and reinstate Kreiner v. Fischer …, which itself was overruled by McCormick.”

Zichichi v. Mull won’t provide Chief Justice with opportunity to overrule McCormick

Kreiner has been gone eight years now . . . thankfully. Hundreds, maybe thousands, of innocent and severely injured car accident victims in Michigan have been able to have their day in court and receive compensation for their injuries.

But “it ain’t over ‘til it’s over.”  Earlier this year in April, I started having flashbacks to Kreiner’s judge-made rules and requirements for car crash victims when the Michigan Court of Appeals handed down its abysmal ruling in Zichichi v. Mull.

As I wrote in my blog post about the case, “Zichichi v. Mull is worst example of ‘Judge made law,’ sows confusion for car accident attorneys and judges”:

“Rather than following and applying the law as they are required to do, one Wayne County trial judge and three appellate judges in Zichichi v. Mull decided to make up their own law. To do this, they created a completely new “judge made law” to ignore and disregard what the Michigan Supreme Court said in McCormick v. Carrier so they could throw out a serious car accident injury lawsuit involving multiple fractures, a surgery, screws implanted into bone, and a closed head injury.”

Fortunately, the Michigan Supreme Court declined to hear the Zichichi v. Mull case in its October 30, 2018, order denying leave to appeal.

As a result, the Court of Appeals unpublished opinion applied only to the parties in the case and carries no precedential value for other courts, meaning that neither trial courts nor the Court of Appeals is bound by the opinion’s holding or its reasoning.

If only one could say the same for Justice Markman.

Read the full blog post online: When will Justice Stephen Markman accept McCormick v. Carrier is the law?.

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Michigan House Republicans are planning a vote, perhaps as early as today – but I’ve just heard it is more likely to take place tomorrow – on new No-Fault reform legislation in lame duck. It is anticipated that lawmakers in the Michigan House of Representatives’ Insurance Committee will introduce a substitute bill for the No-Fault reform plan contained in Senate Bill 1014, which had been gathering dust since it passed the Senate earlier in June.

At the time, I denounced the proposals in SB 1014 – as well as those in its companion bill, Senate Bill 787 – explaining:

“The full Michigan Senate has passed two No-Fault bills – Senate Bill 787 and Senate Bill 1014 – which, if passed by the House and enacted into law, will substantially alter the rights and benefits guaranteed to car, truck and motorcycle accident victims.”

I fear the same is true, but even more so, if House Republicans get their way now and they’re able to ram through this next round of insurance-company sponsored No-Fault “reform” proposals onto an unsuspecting public in the lame duck legislative session.

Specifically, according to a draft of the anticipated, 58-page “House Substitute for Senate Bill No. 1014,” that I just finished reviewing, House GOP lawmakers aim to make these changes to the Michigan No-Fault system:

  • Capping No-Fault benefits: Never ones to let a horrible, terrible, unpopular idea go by the wayside, the GOP is recycling the cornerstone of the failed Duggan-Theis-Leonard plan (House Bill 5013)(which was emphatically rejected in a 63-45 House vote) which is the $25,000 cap on all No-Fault insurance benefits.
  • While most of the news media that is reporting on this bill calls this a $250,000 lower cap on No-Fault benefits, this is clearly incorrect. For the overwhelming majority of people who are seriously hurt in car accidents, $25,000 is all that they will have available to them for No-Fault PIP benefits. The remaining $225,000 is only for emergency room care, in a crass political effort to sway the powerful hospital association to support the legislation.
  • That $25,000 in PIP No-Fault benefits is intended only as a “bridge” (Rep. Lana Theis’s words, not mine) from No-Fault insurance to private health insurance or to Medicaid and Medicare.
  • Additionally, this draft bill is hugely punitive to innocent car accident injury victims if it turns out that an innocent and severely injured car accident victim is UNABLE to sue the wrongdoer, negligent driver who causes the car crash for medical expenses in “excess” of the $25,000 No-Fault cap. In other words, the innocent victim could be left to financial devastation and bankruptcy under the weight of hundreds of thousands of dollars in medical bills, while the at-fault driver who caused the crash gets full immunity and protection from the harms and medical bills that he or she caused.
  • There is still the same games being played on promised savings – as in, there aren’t any. The savings will be temporary and uncertain (with a built-in loophole for auto insurers). For what Michigan motorists will be giving up, this lack of guarantees of savings is woefully inadequate, especially when compared with the massive profits that auto insurance companies will enjoy by unloading most of their No-Fault liability onto Medicaid or Medicare.
  • Even drivers who choose to forfeit catastrophic injury coverage by voluntarily agreeing to cap their No-Fault benefits will still have to pay into the Michigan Catastrophic Claims Association (MCCA).
  • New and unprecedented restrictions on family provided attendant care. (Draft page 40)
  • Duping older drivers (62 years of age or older) into believing it’s safe to give up all of their No-Fault benefits and going onto Medicare (despite its inability to cover the treatment and care that car crash victims need) in return for an indefinite assurance of a “reduced automobile insurance premium rate.” Again, there is no guarantee of savings.  (Draft pages 40-42)
Dan Gilbert’s Grand Compromise on No-Fault Isn’t Much of One

The bill is being brought to a vote in lame duck largely through the efforts of Dan Gilbert, who senses that Republicans in lame duck might be more willing to take a vote on a bill that heavily favors the insurance companies over people.

But, on the bright side, the draft bill is expected to outlaw insurers’ use of non-driving-related factors such as sex, occupation, education level attained marital status and credit score in setting auto insurance prices. (Draft pages 6-8)

These are all things that I have been writing about for the last several years on the pages of this auto law blog.

Replacing catastrophic injury coverage with caps on No-Fault benefits

The most significant and most damaging aspect of the proposals in the draft substitute bill for SB 1014 is its proposal to allow drivers to forfeit their catastrophic injury coverage in return for No-Fault benefit caps that will result in shifting their medical care and costs to private health insurance, Medicaid and Medicare – or just going without necessary care and treatment.

Here are the caps on No-Fault benefits (“coverage levels for the personal protection insurance benefits”) that are expected to be proposed:

  • $250,000 limit ($225,000 for emergency room medical care and $25,000 “for all other personal protection insurance benefits,” i.e., medical expenses, wage loss and replacement services. (New MCL 500.3109B(1)(A))
  • $250,000 limit “on personal protection insurance benefits,” i.e., medical expenses, wage loss and replacement services. (New MCL 500.3109B(1)(B))
  • $500,000 limit “on personal protection insurance benefits,” i.e., medical expenses, wage loss and replacement services. (New MCL 500.3109B(1)(C))
  • “No maximum limit . . . on personal protection insurance benefits,” i.e., medical expenses, wage loss and replacement services. (New MCL 500.3109B(1)(D))(Draft pages 37-38, 43)
Promise of savings? Not a guarantee of savings that you can take to the bank

Below are the proposed “savings” that drivers will receive depending on what level of No-Fault benefits they choose:

  • Average premium savings of 40% or greater for drivers who opt for $25,000 cap on post-ER benefits.
  • Average premium savings of 30% or greater for drivers who opt for $250,000 cap on No-Fault benefits. (Presumably, even though it’s not stated in the draft.)
  • Average premium savings of 20% or greater for drivers who opt for $500,000 cap.
  • Average premium savings of 10% or greater for drivers who opt for no cap.

Significantly, the savings are “guaranteed” for only 5 years and auto insurers can squirm out of having to provide savings they can convince the Insurance Commissioner that the “required reductions in premiums . . . are not justified.”

(Source: Draft pages 55-56, 58)

Lest there be any confusion about the significance of the amount of savings being promised, the savings to drivers needs to be considered in light of what they’re giving up.

It also needs to be contrasted with the savings to auto insurers.

For instance, even if a driver saves 40%, he or she is still paying 60% of his or her current bill, yet he or she will have next to no coverage because they will be limited by the $25,000 post-ER cap on ALL No-Fault benefits (which means for the next three years and beyond, all medical bills and wage loss and replacement services will have to be paid for out of that $25,000 – which anyone and everyone knows is utterly impossible).

Additionally, the inadequacy of the 40% in savings for drivers becomes clear when one realizes that the No-Fault cap that triggers those savings allows an auto insurer to jettison approximately 95% of its No-Fault liability for benefits (e.g., No-Fault coverage liability dwindles from the $555,000 retention rate down to the measly $25,000 cap).

Still paying the Michigan Catastrophic Claims Association

Although there will be no more catastrophic coverage for drivers who opt for No-Fault caps, they will continue to have to pay money to the MCCA for that portion of the annual assessment that is “attributable to an adjustment for a deficiency in a previous period.” (Draft pages 26-27, 33-34, 36)

No-Fault medical-provider fee schedule

I’ve supported this idea for a long time. Not only will it do wonders in terms of reducing auto insurance rates by reducing No-Fault medical claim costs, but it will work miracles in terms of eradicating the out-of-control fraud that’s rotting the No-Fault system from the inside out.

In particular, I’ve agreed with the proposal from CPAN that a fee schedule pegged at 185% of the Workers’ Compensation fee is optimal.

Although the proposed draft bill to replace SB 1014 proposes a fee schedule, I believe it’s overly restrictive and unrealistically frugal.

Specifically, the draft bill provides that doctors, hospitals, medical providers who treat and care for car accident victims cannot be paid or reimbursed for “more than 100% of the amount for treatment, training, product, service or accommodation” under the Workers’ Compensation fee schedule.

However, the fee schedule will not apply to “trauma care” provided at a “Level I Trauma Care Center,” city hospitals in some communities and “emergency medical services rendered by an ambulance operation.”

(Source: Draft pages 38, 52-54)

Read the full blog post online: Last-minute No-Fault bill waddles into legislative lame duck session.

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Michigan Auto Law attorney Brandon Hewitt talks to WZZM of Grand Rapids about free drivers license reinstatement after waiver of Driver Responsibility Fee 

Michigan Auto Law attorney Brandon Hewitt recently appeared on WZZM 13 of Grand Rapids to talk about Michigan’s elimination of the Driver Responsibility Fee, how it affects drivers and how drivers with fee-related suspensions can get reinstated for free through December 31, 2018.

As I noted in my October 11, 2018, blog post, “No more…Michigan Driver Responsibility Fee Waived in 2018,” the elimination of the Michigan Driver Responsibility Fee on October 1st means that no driver ever has to pay the fee, again:

  • “No more Michigan Driver Responsibility Fee: Starting October 1, 2018, the fee has been eliminated.”
  • “You don’t have to pay your outstanding fee: Drivers can no longer be forced to pay the Driver Responsibility Fee, nor can they be held liable for outstanding, unpaid fees. You don’t have to go into a Secretary of State office to fill out forms or sign anything. You can just stop paying.”

During his recent on WZZM’s “Just Drive” program, Brandon elaborated on these points:

  • “[I]f you have driver responsibility fees that you are responsible for, you’re not responsible . . . . They’re gone . . . . You don’t have to do anything. They’re just gone.”

Brandon also went deeper into the ramifications of eliminating the Driver Responsibility Fee, discussing the logistics of how people can go about getting their drivers licenses reinstated and, especially, how they can do so for FREE if they act by December 31, 2018.

Brandon Hewitt tells WZZM about free drivers license reinstatement for suspensions due to non-payment of Driver Responsibility Fees 

Brandon explained that drivers who have had their licenses suspended due to non-payment of the Michigan Driver Responsibility Fee can get their driving privileges reinstated for free through December 31, 2018.

Brandon Hewitt Presents the Michigan Driver Responsibility Fee | Michigan Auto Law - YouTube

 Specifically, Brandon made the following important points:

  • Drivers license reinstatement after a suspension for failure to pay a Driver Responsibility Fee is going to “be free until December 31st.”
  • “If your license has been suspended because you hadn’t paid them, get to the Secretary of State right away before December 31st 2018 and you can get your license reinstated without having to pay the $125 [reinstatement] fee.”
  • “After December 31st – on January 1st 2019 – you can go get your license reinstated, but you have to pay that hundred $125 reinstatement fee.”
  • To get a drivers license reinstated after a Driver Responsibility Fee-related suspension, “[j]ust go online [to the Secretary of State’s website], get an application for license reinstatement. Very, very simple. You can just send that in. You can also go to the Secretary of State branch and just go in there and fill out the application and you should be all set.”

Read the full blog post online: Hewitt tells WZZM about FREE drivers license reinstatement.

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As President of the American Association for Justice’s Traumatic Brain Injury Litigation Group, Michigan Auto Law’s Steve Gursten leads cutting-edge TBI seminar

Michigan Auto Law attorney Steve Gursten being presented with one of American law’s most prestigious honors – the Melvin M. Belli Society annual Mel Award – at the American Association for Justice’s annual meeting in Boston in 2017.

In July, I had the honor of being elected President of the American Association for Justice’s Traumatic Brain Injury Litigation Group.

Now, I will be joining some of the best trial lawyers and TBI lawyers in the nation in putting on a cutting-edge seminar. The program is with the AAJ Traumatic Brain Injury Litigation Group and it is a special Members Only Seminar taking place in Washington, D.C., on December 1-2, 2018.

My mission this year is education. I want to leverage our expertise, knowledge and experience to seek real justice for TBI survivors, and this starts with education and helping the lawyers who take on these cases be able to more effectively represent and help the victims of brain injury.

The seminar faculty consists of 36 terrific brain injury lawyers from around the nation.

Here are the topics and the lawyers who will be presenting:

wdt_IDTimeSpeakersPresentation Topics
6 08:00 AM Complimentary breakfast
7 08:50 AM Steven Gursten Welcome, Introduction & Announcements
8 09:00 AM Andy Young Helping Your Client Tell a Compelling Story
9 09:20 AM Bryan Roberts Understanding Who They Were to Understand What They’re Left with – Lessons from a $9.5 Million TBI Settlement
10 09:40 AM Tim Whiting Managing the Difficult (and Unlikeable) Brain Injured Client
11 10:00 AM Andy Abraham Videotaping the DME and Getting the Judge to Agree
12 10:20 AM 10 Minute Break and Bloody Mary Bar Sponsored by Robson Forensic
14 10:30 AM Larry Simon Finding (and Maximizing) Recovery for the Hidden TBI in the Truck and Bus Case
15 10:50 AM Morgan Adams The Hidden Need for Attendant Care in TBI Cases
16 11:10 AM James Amaro Novel Lessons from TBI Focus Groups and Tried and True Methods for Striking Defense Experts

wdt_IDTimeSpeakersPresentation Topics
50 08:00 AM Complimentary Breakfast
51 09:00 AM Robert collins Protecting the TBI Client from the Defense Witness Interview at Deposition
52 09:20 AM David Holt Attention! How to Draw in a Jury in the First 30 Seconds of an Opening
53 09:40 AM Ken Trombly Damages for Senior Citizens and Why It Matters
54 10:00 AM Ken Berger Laying the Foundation for Trial Success with Lay Witnesses
55 10:20 AM Ten Minute Break
56 10:30 AM Maxey Scherr What’s a Couple Zeros? Fighting for the Value of a Child’s Brain
57 10:50 AM Robert Wagoner Can You Really Settle a TBI Case at the Adjuster Level for Full Value? Yes You Can.
58 11:10 AM Marion Munley A Holistic Approach to the Preparation and Trial of a Brain Injury Case
59 11:30 AM Jen Ojeda Proving Tinnitus and Depression

Read the full blog post online: Gursten leads TBI litigation seminar for elite trial lawyers.

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