Our office helps a number of brain injury survivors. It’s an area of injury that Michigan Auto Law has become known for, and we receive a number of referrals from other Michigan personal injury lawyers for people who have suffered brain injuries in car accidents around the state.

One thing I’ve noticed from my own practice helping brain injury survivors is that the divorce rate in the years following is extremely high. I’ve heard from TBI specialists that the statistic approaches 80 percent, and it is sadly common for the stresses and changes in personality to cause devastation for both the victim and the spouse.

As attorneys who focus on helping  brain injury accident victims, we would like to share a compelling New York Times article with our readers. This story addresses the obstacles brain injury survivors and their partners face as they try and figure out a new way of life that’s consumed by the stresses of brain injury recovery  – and the issues that therefore arise in their relationships due to personality changes from the traumatic brain injury (TBI).

I often discuss the cognitive impairments and physical pain and fatigue of healing from traumatic brain injury after a car crash. But the emotional consequences are just as serious, especially when all of an accident victim’s personal relationships are jeopardized, as the TBI victim’s brain undergoes changes that cause significant personality change.  Behavior becomes very different for many brain injury survivors.  The most common thing I hear from co-workers, close friends, and spouses is that after a crash, a TBI victim acts like a completely different person.

Doctors who specialize in TBI  say it’s extremely common for car accident victims with traumatic brain injury to be divorced shortly after, but  according to this New York Times article, the relationships that  survive are also damaged.

Psychologists at Virginia Commonwealth University are trying to develop marriage counseling technologies tailored to couples dealing with a spouse who has suffered traumatic brain injury. This means teaching uninjured or able-bodied partners to recreate a relationship with a person who has gone through immense changes, and helping them accept that they are changed — instead of looking back on the past, which could be very painful because TBI victims are no longer the same person.

Behavioral symptoms of traumatic brain injury from a car accident

Here are some of the behavioral symptoms of traumatic brain injury, which signal different moods and personalities:

•    Decreased ability to initiate responses
•    Verbal and physical aggression
•    Agitation
•    Learning difficulties
•    Shallow self-awareness
•    Altered sexual functioning
•    Impulsivity
•    Social dis-inhibition
•    Mood disorders
•    Personality changes
•    Altered emotional control
•    Depression
•    Anxiety

It’s not difficult to see how relationships could be strained when one partner is experiencing many of these symptoms at different times.

Take a look at this resource, which lists many of the other TBI symptoms, such as neurological, cognitive and social.

Brain injury symptoms that change

This article also points out that the  symptoms and effects of a brain injury last well beyond when the obvious injuries have healed. This is a point that brain injury attorneys must remember, as many defense lawyers and insurance companies take the approach that if you can no longer see it, it doesn’t exist, even though the devastating effects (both emotional and physical) continue long after.

While most car accident victims with TBI  appear “normal,” in that they speak well and do not display obvious signs of a disabling traumatic brain injury, the effects can be severe, disabling and devastating.  Even medical classifications for brain injury are misleading. A lot of people are diagnosed with “mild” traumatic brain injury. But this is a medical classification. It does not mean the person’s disabilities and impairments are also “mild.”

An additional challenge to proving TBI for brain injury attorneys is that the diagnostic testing most doctors use is an MRI or CT scan. Yet these tests do not show mild and moderate TBI and are often “normal,” as are gross neurological exams.

Here’s the full story in the New York Times: When injuries to the brain tear at hearts.

I’m glad to see the emotional toll of TBI being addressed. The National Institutes of Health (NIH) estimates that nearly 2 million people suffer TBI each year in the United States, mainly from car accidents. With so many people suffering from this debilitating injury every year, it’s important  to see this population and the challenges they face being addressed in the media, so the general public can be more knowledgeable and understanding.

- Steven M. Gursten is a brain injury attorney and partner of Michigan Auto Law. He is a member of the Executive Board of the American Association for Justice Traumatic Brian Injury Lawyer Litigation Group. Steve has received the highest reported  trial verdict and settlement for a TBI victim in Michigan in multiple years.

Related information to protect yourself:

How common is TBI, who’s getting it and how?

Steps TBI victims must take after a car accident

Choosing a brain injury attorney in Michigan

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. Call (800) 777-0028 to speak with one of our Michigan brain injury attorneys today.

I’ve written in the past about  the  attorney solicitation that I see. Attorney solicitation now occurs constantly, as a  growing group of Michigan injury  attorneys basically pounce on car accident victims  after a car crash with various forms of advertising, solicitation packages, and sadly even phone calls. This last group doesn’t even pretend to care about the ethics rules in this state.  This problem is growing and becoming rampant in Michigan.

I can now name nearly a dozen personal injury lawyers in Michigan who get on the computerized police report databases, pull accident reports, and then send solicitation packages - or call the victim’s house - immediately after a car accident.

It is not good for the ethical  attorneys in this state. And it’s very bad  for  car accident victims, who may mistake the attorneys who solicit to be the most qualified to help them (instead of often the most desperate, the most unethical, or both). In most cases, these injury attorneys who send these obnoxious advertisements are under-qualified  and exactly the type of lawyers who give most of us a black eye in the public. These are the lawyers that  car accident injury victims should be avoiding at all costs.

Here are some of the recent actions taken — or not taken, as the case may be — by the Michigan Supreme Court concerning lawyer solicitation and advertising:

In December 2011, the Michigan Supreme Court rejected a proposed change to Rule 7.3 of the Michigan Rules of Professional Conduct that would have imposed a 30-day prohibition on targeted written solicitations following an injury, death or accident that may give rise to a claim. It also required the labeling of letters and circulars, whether targeted or non-targeted, as advertising material.

Simultaneously, the Court proposed a 14-day waiting period for contact or solicitation, but that time restriction only applies in family law cases.

Sadly, the Supreme Court missed another excellent opportunity to close the loophole in Rule 7.3 which allows some of the most aggressive and unscrupulous attorneys to prey on seriously injured accident victims when they are most vulnerable — in the days, and now even hours, after an accident occurs.

If the Supreme Court were truly serious about cleaning up the shameful attorney solicitation practices in Michigan, they would have at least proposed a 90-day prohibition for attorney solicitation in all cases — especially personal injury cases. At a minimum, the Court should have pursued a 30-day prohibition.

Accordingly, I urge my fellow accident attorneys to respond to the Supreme Court’s current proposed changes to Rule 7.3 by urging the justices to put some teeth in the rule by amending it to include either a 90-day or, at least, a 30-day prohibition on attorney solicitation.

When sending your comments and letters to the Michigan Supreme Court, remember to include the proposed rule’s administrative file number, ADM 2010-22. Here’s a link to the Supreme Court’s website where, under “Proposed Rule Amendments” and “Other,” you can see the proposed rule.

Now, that brings us back to the original problem of unknowing car accident victims hiring the first attorney who sends them a letter, when in reality, that injury attorney is most likely not the best qualified to help.

This week, a friend of mine was actually in a rear-end car accident. Within two days,  he received several phone calls from Michigan accident attorneys (for those of you who do this, and who left your name and phone numbers on his machine, you are really jeopardizing your license to practice law and I would suggest you stop now) as well as a few packets of solicitation materials in the mail from other attorneys saying he should  hire them.

My friend was very  surprised, given the nature of his car crash and the immediacy of the attorney solicitations. He said he felt violated and didn’t like  the “big brother” feeling he had of predatory lawyers watching him after a misfortune had occurred.  He also definitely didn’t like how this reflected on lawyers. Now we have one more member of the public who has a negative association toward the legal profession.

This really needs to stop, for all of our sakes.  We need to protect the public and we certainly need to protect the image of our profession.  The new proposal by the Michigan Supreme Court is woefully inadequate to protect accident victims from predatory lawyers, especially in this day and age where lawyers can now access police reports the same day a car accident occurs and send a solicitation letter from their office within minutes.

The Supreme Court can do more to protect accident victims. It needs to do more.

Here’s my comment to the Michigan Supreme Court.

- Steve Gursten is one of the nation’s top accident attorneys. He is head of Michigan Auto Law and president of the Motor Vehicle Trial Lawyers Association. Michigan Auto Law has received the highest-reported verdict or pain and suffering settlement in the state for a car accident or truck accident victim in 2008, 2009, 2010 and 2011, according to Michigan Lawyers Weekly.

Related information to protect yourself:

How to choose the most qualified car accident lawyer

Evaluate your car accident lawyer

Michigan Supreme Court backs down on attorney solicitation

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights to better serve you. Call (800) 777-0028 for a free consultation with one of our Michigan accident attorneys.

Yesterday, I wrote about the most dangerous, unfair loophole in our Michigan No-Fault law today. A quick recap: under Michigan No-Fault law, a completely innocent driver is required to pay the medical bills and wage loss of the “at fault” driver who causes an auto accident — even when the “at fault” is a drunk driver who has caused serious personal injury.

And this loophole preys on those who largely belong to a group that’s already struggling financially: Michigan’s approximately 1,520,000 drivers who have no auto insurance. Often the reason these people drive “bare” or without insurance is because of cost.

How can we fix this problem? Certainly 1.5 million people in Michigan driving on our roads without auto insurance is not good for anyone.  It is devastating for the people they injure in auto accidents. It is devastating for themselves if they are hurt in an auto accident.

The devastating penalty of being injured and uninsured

An uninsured driver under Michigan law has no PIP coverage, and therefore, no legal right to vital No-Fault benefits, such as lifetime medical care, lost wages and in-home nursing services (attendant care), even when they are completely innocent and injured by someone else.  Worse still, they are also barred from suing the “at fault” driver who causes a car accident, a draconian measure that our state courts have already upheld as constitutional.  So the penalties for driving without auto insurance in Michigan are very harsh indeed.

If you are injured by an uninsured driver

If you are an insured driver and injured by an an uninsured driver, there is often no source of legal recovery for your injuries and pain and suffering.  Yes, you can file a lawsuit against the at-fault, uninsured driver for his or her personal assets.  But our own auto lawyers find that,  with most people without sufficient personal net worth to compensate a person that they have injured, it is often only a paper judgment.

Just how many uninsured drivers are there in Michigan?

In Michigan today, there are approximately 1,520,000 uninsured drivers. According to USA Today’s September 11, 2011, story, “One in seven drivers have no insurance.”

In Michigan, cities that have been ravaged by tough economic conditions, such as Detroit, Flint, and Pontiac, the numbers of uninsured drivers on the road approach or surpass 50 percent of all drivers on the road, according to published reports.

Unemployment and uninsured driving

Victims of Michigan’s economic meltdown are also very likely victims of Michigan’s punitive No-Fault law.

As more people lose their jobs, more people cannot afford No-Fault auto insurance, and, thus, more people join the ranks of Michigan’s “uninsured drivers.”

The Insurance Research Council confirmed the cause and effect relationship between unemployment and being unable to afford auto insurance in its January 21, 2009, news release “Economic Downturn May Push Percentage of Uninsured Motorists To All-Time High.”

There is “a strong correlation between the percent of uninsured motorists and the unemployment rate” such that “[a]n increase in the unemployment rate of one percentage point is associated with an increase in the uninsured motorist rate of more than three-quarters of a percentage point.”

Consider for a moment Michigan’s record unemployment rate. We went from just 4.6 percent unemployment in January 2001 to 9.3 percent in December 2011 (according to the Bureau of Labor Statistics).

It is no wonder that nearly one out of five Michigan drivers are being financially foreclosed from  No-Fault auto insurance.

What to do about Michigan uninsured drivers?

For the people who can afford auto insurance, the good news is, there is protection in case of a crash with an uninsured driver: uninsured and underinsured motorist coverage (UM/UIM). This coverage provides a valuable source of legal recovery when someone is injured in a car accident by another driver who is uninsured or does not have adequate insurance. As I always say, any auto insurance policy sold in Michigan today without UM and UIM is not enough to protect you and your family.

But what about the drivers who simply cannot afford Michigan No-Fault insurance, and therefore put themselves and all other Michigan drivers in jeopardy every time they get behind the wheel?

I’ve written often about the real reasons why auto insurance is so expensive in Michigan. The reason is that insurance companies are allowed to reap record-breaking profits here, and we have an insurance commissioner that allows this instead of regulating excessive profit margins for these insurance companies.

I also blame the Secretary of State’s office. With computers, there is no reason to allow this public crisis of uninsured drivers on our roads. They can do far more to solve this problem if there was any political will to do so.

Do I have sympathy for uninsured drivers?

Yes and no.  I feel terrible for uninsured drivers who are completely innocent, such as  in my real-life example above, where they can be stopped at a red light, hit by a drunk driver, paralyzed for life, and they cannot recover one dime for their lifetime of pain and suffering and losses, because our law is so punitive that it bars uninsured drivers from even suing a negligent drunk driver.

But I also see the other side nearly every week.  I feel terrible for the real people who are seriously hurt by uninsured drivers, and for whom I can do nothing to help them for their injuries, human losses, and pain and suffering, because the driver who caused the auto accident is uninsured, has no assets, and the injured person did not have uninsured motorist coverage to protect them.

Every year, the lawyers in my law firm handle a number of pro-bono wrongful death auto accident cases, mostly for people who have lost loved ones to uninsured drivers. And as a No-Fault insurance lawyer in Michigan, I see the human toll that is otherwise completely hidden from the public.

The news does a terrible job of warning people of the problem of uninsured motorists. And insurance agents don’t warn their clients about the dangers of 1.5 million uninsured drivers in Michigan (who are largely immune from lawsuits), as they fail to inform people to purchase uninsured and underinsured motorist coverage to properly protect them and their families.

Hence the absurd situation I see daily of people who wanted to do the right thing, who have $1 million dollars in liability coverage — which is great if they ever cause an auto accident — but then have no or only a minimum of $20,000 in uninsured motorist coverage.  These people could have paid the couple dollars more, sometimes the cost of a movie ticket and popcorn, to have $500,000 or $1 million in uninsured and underinsured motorist coverage.

So, the real answer is that we need to fix this problem. It is time our state politicians (and fault lies here more with the Republicans in Lansing then the Democrats), to stop coddling the insurance companies and to allow our insurance commissioner the power to regulate profit-gouging by insurance companies in this state, as they do in the vast majority of states in the U.S.

Next, with more people insured and the cost of auto insurance lower, let’s start having our secretary of state make sure people are insured and they stay insured (stop playing the temporary binder game with these ridiculous storefront insurance agencies selling a couple months of auto insurance to people).  We can then avoid all of these problems, and insurance becomes what it is meant to be — a safety net when an unforeseen and devastating event occurs.

- Steve Gursten is one of the nation’s top insurance attorneys handling auto accident lawsuits. He is head of Michigan Auto Law and president of the Motor Vehicle Trial Lawyers Association. Steve frequently writes about Michigan No-Fault and insurance company abuse, and is available for comment.

Related Information:

You need to buy uninsured motorist coverage - NOW!

Why is UM/UIM important?

3 potential cases in Michigan for auto accidents

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. Call (800) 777-0028 to speak with one of our Michigan insurance attorneys.

Here’s a Ripley’s Believe it or Not: under Michigan No-Fault insurance law, a completely innocent driver  may actually be required to pay the medical bills and lost wages of the “at fault” driver who causes an auto accident!

That’s right. You can be completely innocent, be injured in a motor vehicle accident, and then also be required under the Michigan No-Fault law to pay for the medical bills and wage loss of the driver who causes the auto accident.

And, to prove reality is stranger than fiction, if the innocent driver-victim does not pay within 30 days, the Michigan Secretary of State may suspend or revoke his or her driver’s license.

Not only does this dangerous loophole in Michigan’s No-Fault law defy common sense and all notions of fairness by allowing innocent auto accident victims to be penalized, but the law weighs heaviest on those who largely belong to an already financially beleaguered  group: Michigan’s approximately 1,520,000 “uninsured motorists.”

In many cases, Michigan’s “uninsured motorists” are people who are financially struggling. And it is no surprise that in some cities, such as Detroit, approximately 50 percent of drivers are driving without any auto insurance at all, simply because the majority just cannot afford the cost. See here the real reason why your auto insurance is so high. Virgil Smith, are you listening?

Defying common sense

Consider the following all-too-common scenario that I see so often as a Michigan No-Fault insurance lawyer:

•    Suppose a driver who has stopped his car for a red light is rear-ended by a drunk driver. Both the innocent driver and the drunk driver are seriously injured.

Suppose also that the innocent driver happens to be uninsured. Here is how the above scenario plays out:

•    The innocent driver who was rear-ended by a drunk driver is denied all No-Fault benefits to cover medical expenses and lost wages, because Michigan’s law prohibits uninsured drivers from collecting No-Fault benefits.

•    Here’s where, in my opinion, it becomes a question of fairness and justice: The innocent driver is also barred from suing the drunk driver who rear-ended him for his injuries, no matter how catastrophic these injuries are. The drunk gets off without ever taking any responsibility for his negligence, even if the innocent driver who the drunk rear-ended is paralyzed or killed.

•    Adding major insult to injury, the drunk driver’s No-Fault auto insurance company now sues the innocent driver to recover the money the auto insurer has paid for the drunk driver’s medical bills, lost wages and other No-Fault benefits (even though the drunk caused the accident, and was, well, drunk!).

Ah, I hear what you’re thinking - you don’t believe me?  Here’s the Michigan law that allows such an bizarre outcome to occur (MCL 500.3177(1):

“An insurer obligated to pay personal protection insurance benefits for accidental bodily injury to a person arising out of the ownership, maintenance, or use of an uninsured motor vehicle as a motor vehicle may recover such benefits paid and appropriate loss adjustment costs incurred from the owner or registrant of the uninsured motor vehicle or from his or her estate. Failure of such a person to make payment within 30 days after judgment is a ground for suspension or revocation of his or her motor vehicle registration and license …” (MCL 500.3177(1))

- Steve Gursten is one of the nation’s top insurance lawyers handling auto accident lawsuits. He is head of Michigan Auto Law and president of the Motor Vehicle Trial Lawyers Association. Steve has received the highest verdict in the state for a car accident or truck accident victim in 2008, 2009, 2010 and 2011, according to Michigan Lawyers Weekly. He frequently writes about Michigan No-Fault and insurance company abuse, and is available for comment.

Related Information:

You need to buy uninsured motorist coverage - NOW!

Your 3 potential cases after an auto accident

Free book: Guide to Michigan No-Fault law

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. Call (800) 777-0028 to speak with one of our Michigan insurance lawyers.

In my post Super Bowl glow, I thought the Clint Eastwood commercial from Chrysler about Detroit was absolutely fantastic, and by far the best commercial in the Super Bowl.

It was a great ad to a great super bowl.

As to the game, I went to law school, lived, and worked my first job as a personal injury lawyer in New York, so I know on the inside how annoying Giants fans can be (think Yankee fans, but slightly less annoying and you get the point). As a Michigan football fanatic, however, I was very happy for Manningham, who should have won MVP with that catch.  And of course as a Michigan football fan, I will always root for Tom Brady, which I guess makes me a Patriots fan by default.

What did you think of the Halftime in America commercial? Do you think it captures the spirit of Detroit, and that Detroit and Michigan really are in the “second half,” as Clint Eastwood says?

Note - I’m a bit biased here, so in my first and only act of editorial discretion (or abuse) since I’ve been writing this blog, I probably just won’t publish any negative anti-Detroit or anti-Michigan football comments.

Hope you enjoyed the ad and the Super Bowl too.  Tomorrow, more on auto safety tips.

- Steve Gursten is head of Michigan Auto Law, an 18 attorney personal injury law firm with offices in Detroit, and throughout Michigan. Steve is president of the Motor Vehicle Trial Lawyers Association.

Related information to protect yourself:

Detroit auto accident help center

2011 Chrysler Super Bowl commercial - Imported from Detroit

Warning to Detroit drivers: insurance scam

Michigan Auto Law is the largest law firm in the state exclusively handling car accident, truck accident and motorcycle accident cases. The lawyers at Michigan Auto Law have received the highest-reported jury verdict or pain and suffering settlement for a car accident or truck accident injury victim in 2008, 2009, 2010 and 2011, according to year-end reports by Michigan Lawyers Weekly.

I was quoted in a Grand Rapids Press article last week written by Zane McMillin, about how many West Michigan truck drivers – and their motor carrier employers – are completely unaware of the new cell phone ban for commercial truckers.

Here’s the full story: Police are trying to alert West Michigan truck drivers to cell phone ban.

According to the new Federal Motor Carrier Safety Administration ban, commercial truck drivers are not allowed to use cell phones while driving. This means no texting, no talking on speaker, no surfing the Internet and no talking on the phone.

There are Federal civil penalties up to $2,750 for each offense and commercial truck and bus companies will face a maximum penalty of $11,000. States will also suspend a truck driver’s CDL after two or more serious traffic violations and disqualify a trucker for multiple offenses.

The Grand Rapids Press also interviewed a business owner with a fleet of trucks, and she had no clue the new cell phone ban for truckers was in existence. A police source in the story said that the first three months of the new law’s implementation is more like an “educational period” rather than enforcement, and he too said that most truckers likely have no idea about the new truck cell phone ban.

I told the Grand Rapids Press that this is a case where ignorance really isn’t an excuse and police throughout Michigan must start enforcing this law. Now is the time. Why - when it has been proven that the risk of a serious truck accident injury or death increases substantially when a truck driver is using a cell phone - should we delay enforcement?  The entire reason for the new regulation is because of just how dangerous it is to use a cell phone, and if motor carriers are not educating truck drivers on this, then it is up to the police, as a distracted driver puts everyone on the road at risk.

And while distracted driving is a serious issue for passenger vehicles as well, the sheer mass and weight of big trucks was what finally made the FMCSA  act now.  Why should we wait for one more truck accident to occur, at the hands of a trucker who is distracted from a cell phone or texting while driving behind the wheel of an 80,000 pound truck?!

It is the trucking companies’ responsibility to inform their drivers that they are no longer allowed to use cell phones while behind the wheel. The enforcement of this important safety rule  has to start somewhere, and that onus is on the trucking companies who employ these drivers to properly train, supervise and monitor how they drive.

- Steven Gursten is a partner of Michigan Auto Law and one of the top truck lawyers in the country. He is past president of the American Association for Justice Truck Accident Litigation Group, and has received the top-reported jury verdict in Michigan for a truck accident case. Steve was named a Michigan Lawyers Weekly Leader in the Law for his work to promote national truck safety.

Related information to protect yourself:

Cell phone ban in effect for truckers NOW

Support for truck drivers

Finding the best truck lawyer

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout the entire state of Michigan. We have offices in Farmington Hills, Sterling Heights, Ann Arbor, Grand Rapids and Detroit. Call (800) 777-0028 or to speak with one of our Michigan truck lawyers now.

I was recently interviewed about the train that crashed with a semi-truck in Jackson, Michigan this week, and about what the various legal rights are for the injured people involved. Afterward, I wrote a quick blog to explain the unusual insurance loophole that exists in Michigan that will allow injured train accident victims to collect Michigan No-Fault insurance benefits — even though they were passengers on the Amtrak train when the crash occurred.

But this then raises an interesting second legal issue. Even though injured train passengers can collect Michigan No-Fault insurance benefits, should they?

The answer is, it depends (sorry for having to talk like a lawyer here, but I’ll explain below).

For injured train passengers, No-Fault is the right choice

For injured train passengers — who would have the choice to sue in tort or collect Michigan No-Fault —the better answer would be to collect No-Fault insurance benefits. There are several reasons for this.

First, they can still sue in tort. But in addition to being compensated in tort for their injuries and pain and suffering, they can also collect No-Fault and receive incredibly important protections that they cannot recover in any other state.

As an aside, I have this same discussion with out-of-state attorneys every time there’s a Michigan resident who is injured in a motor vehicle accident out of state, especially when that state does not have No-Fault and the same choice arises.

To begin with, Michigan No-Fault insurance benefits (also called personal injury protection or PIP) offer a lifetime benefit for necessary medical care. If someone has suffered a serious neck injury, back injury or traumatic brain injury, that alone should be the deciding factor in choosing to collect No-Fault.

With serious spinal cord and brain injuries, the medical treatment can be extremely expensive, and these people may need care over the course of a lifetime. Or, as is often the case, the person with the brain injury goes on to develop conditions from the trauma, such as dementia years later, or the person with a neck injury goes on to have surgery for a ruptured or herniated disk years later. With No-Fault, there will be insurance to pay for it, whereas the same is certainly not the case if that person chose to sue in tort.

No-Fault insurance offers other important benefits as well, such as wage loss for three years, replacement services (help around the house), attendant care (nursing services), and mileage reimbursement. But the medical protections are by far what separates it from every other state and makes this, to me, generally an easy choice.

The sad reality is that many injury lawyers, whether they be FELA lawyers or out of state personal injury lawyers looking at an auto accident case, prefer to sue in tort and avoid No-Fault because the lawyer can then collect the cost of medical as part of his or her attorney fee. That’s not the case with No-Fault. And even though every case is different, and the unique facts and liability and insurance policy limits have to be looked at in each and every case. For most people who suffer serious injuries – whether it be in a train accident or an auto accident, they will almost always be better off collecting Michigan No-Fault if they are able to.

I can say I’ve passed up on attorney fees of what would be millions of dollars in medical for my seriously injured clients by recommending they pursue a PIP No-Fault claim instead of suing in tort, and I’m happy I’ve done it every single time because I know I’ve put my client’s best interests ahead of my own.

For injured Amtrak train crew members, the answer may be different

If the question relates to one of the Amtrak crew members who may have been injured, then the answer is, it’s probably not best for them to opt for collecting Michigan No-Fault. The Amtrak crew members who may have suffered injury would be protected under the Federal Employer’s Liability Act (FELA).

When a railroad worker or train crew member is injured on the job, legal compensation is governed by a Federal law known as the FELA, or the Federal Employers’ Liability Act.

Before the FELA, when an injured railroad worker attempted to recover compensation for injuries and pain and suffering damages for railroad negligence, the odds of any legal recovery or compensation were slim.

Compensation for negligence under FELA

To recover under the FELA, it is necessary to first establish negligence on the part of the railroad. This differs from state workers’ compensation laws, where no such proof of negligence is required.

However, in Michigan FELA cases, as in all other states, the amount of negligence required to be shown against the railroad is very small. All that needs to be shown is that a railroad failed to provide a reasonably safe place to work. When Amtrak or railroads act negligently, recoveries under the FELA will generally be higher than under workers’ compensation.

FELA is intended to provide injured railroad workers and families of railroad employees and crew members with fair compensation for injuries. I would strongly recommend you discuss your case with an experienced FELA lawyer so you can better understand all of the unique legal benefits that FELA provides to train crew and railroad workers.

Suffice it to say, as I’ve seen the interconnection between FELA, work comp, and No-Fault for now almost 20 years of practice, that the protections and benefits offered by FELA are substantial.

- Steven Gursten is a head of Michigan Auto Law and one of the accident lawyers in the country. He is president of the Motor Vehicle Trial Lawyers Association. Steve frequently writes and speaks on catastrophic accidents, and is available for comment.

Related information to protect yourself:

Your 3 potential cases after an auto accident

Michigan No-Fault insurance resource center

The Michigan No-Fault Act

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout the entire state of Michigan. We have offices in Farmington Hills, Sterling Heights, Ann Arbor, Grand Rapids and Detroit. Call (800) 777-0028 or to speak with one of our accident lawyers today.

The Amtrak train passengers who were injured  this morning in a crash in Jackson, Michigan, are entitled to collect No-Fault benefits, even though they were not in a car or truck.

Under Michigan’s No-Fault law, if a person is injured in an accident that involves a “motor vehicle,” the person is entitled to receive Michigan No-Fault PIP benefits to pay for the person’s accident-related medical expenses, lost wages, replacement services, attendant care services, medical mileage and any home or vehicle modifications.

And this is the key: it does not matter whether the injured person was an occupant of the motor vehicle involved in the accident, a pedestrian or, as in the case of the Amtrak crash in Jackson, Michigan, a passenger on a train.

Instead, what matters is that the vehicle involved in the accident is a “motor vehicle” as defined by Michigan’s No-Fault law.

Here, the tractor-trailer involved in the Amtrak crash is without question a “motor vehicle” for No-Fault insurance purposes.

While many lawyers would make the mistake of assuming a train passenger would never be entitled to No- Fault insurance, an experienced Michigan insurance lawyer should recognize the loophole exception that will still allow injured Amtrak train passengers to qualify for No-Fault PIP benefits. The loophole is explained in more detail below, but suffice to say that the train accident in Jackson qualifies as a  “motor vehicle” accident under Michigan’s No-Fault law and, thus, any of the train passengers who were injured as a result of the crash will be eligible to collect No-Fault benefits under the law.

No-Fault and train accidents involving motor vehicles

Michigan’s No-Fault law makes clear that No-Fault benefits are payable only to people who have been injured in “motor vehicle” accidents:

“[A]n insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle …”  (MCL 500.3015(1))

And, Michigan’s No-Fault law defines “motor vehicle” as:

“[A] vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels.” (MCL 500.3101(2)(e))

Finally, combining both of those definitions, the No-Fault law describes a “motor vehicle accident” as:

“[A] loss involving the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle …” (MCL 500.3101(2)(f))

Who will pay for the injured train passengers’ No-Fault benefits?

Under Michigan law, a Michigan No-Fault auto insurance company will pay for the injured train passengers’ benefits.

And, under Michigan’s No-Fault Law, the “priority” rules will determine which No-Fault insurer will be required to pay for which injured train passenger.

There are six possibilities and the rules for determining which one applies to any injured  train passenger are listed below in descending order of priority:

•    First priority: If an injured train passenger has a No-Fault insurance policy in which she is the named insured, then the passenger should file a claim for No-Fault PIP benefits with her insurance company. (MCL 500.3114(1))

•    Second priority: If an injured train passenger doesn’t have No-Fault insurance, but her spouse has a No- Fault insurance policy in which the spouse is the named insured, then the passenger should file a claim for benefits with her spouse’s insurance company. (MCL 500.3114(1))

•    Third priority: If neither the injured train passenger nor her spouse has No-Fault insurance, but a relative of theirs who lives with them has a No-Fault insurance policy in which the relative is the named insured, then the passenger should file a claim for No-Fault benefits with the relative’s insurance company. (MCL 500.3114(1))

•    Fourth priority: If neither the injured train passenger nor her spouse nor a relative have No-Fault insurance, then the passenger should file a claim for No Fault benefits with the insurance company for the owner or registrant of the tractor-trailer involved in the accident. (MCL 500.3115(1)(a))

•    Fifth priority: If neither the injured train passenger nor her spouse nor a relative nor the owner or the registrant of the tractor-trailer involved in the accident have No-Fault insurance, then the passenger should file a claim for  benefits with the insurance company for the tractor-trailer’s operator, i.e., driver. (MCL 500.3115(1)(b))

•    Sixth priority: If there is no No-Fault insurance available through any of the above sources, then the injured train passenger should file a claim for No-Fault benefits with the Michigan Assigned Claims Facility. (MCL 500.3172(1))

Our insurance attorneys extend their deep sympathy for everyone involved in this serious train crash.

- Steven Gursten is a partner of Michigan Auto Law and one of the top insurance attorneys handling auto accidents in the country. He is president of the Motor Vehicle Trial Lawyers Association. Steven frequently speaks and writes about No-Fault insurance and is available for comment.

- Photo courtesy of Creative Commons, by Martin Cathrae

Related information to protect yourself:

Michigan No-Fault Insurance Resource Center

Your 3 potential cases after a motor vehicle accident

Finding the best accident lawyer

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout the entire state of Michigan. We have offices in Farmington Hills, Sterling Heights, Ann Arbor, Grand Rapids and Detroit. Call (800) 777-0028 or to speak with one of our Michigan insurance attorneys now.

CPAN, a coalition opposing Michigan No-Fault insurance “reform” has filed a lawsuit against the insurance industry association that handles medical bills for seriously injured auto accident victims, the MCCA.

For those of you who are unfamiliar with these two groups, CPAN is the Coalition Protecting Auto No-Fault. The MCCA is the Michigan Catastrophic Claims Association. The MCCA currently provides lifetime benefits for people who sustain debilitating injuries in auto accidents after their medical treatment exceeds $500,000.

CPAN is claiming the law that created the MCCA improperly left out information about how much it is paying out on catastrophic personal injury claims from auto accidents in Michigan.

According to published reports, CPAN officials say that money paid into the catastrophic claims fund  is the public’s money, and that information related to the cost of claims and age of claimants is needed, so legislators can make informed decisions before voting on stripping away vital protections from citizens as part of No-Fault “reform.”

Remember, a portion of your No-Fault insurance that you pay as part of your premium  goes into the MCCA fund.

CPAN and its attorneys previously attempted to obtain information on the fund through the Freedom of Information Act, but were rejected. Michigan No-Fault attorneys who handle PIP attendant care claims (including the lawyers here at Michigan Auto Law ), have been trying for years to access this information, as the MCCA ends up calling all the shots in major No-Fault and attendant care litigation cases. But until now, there has been no accountability for their decisions.

As such, our Michigan No-Fault attorneys couldn’t agree more that there is a serious need for this information. This information has been hidden, and abused, for decades. Hundreds of the most seriously injured and vulnerable members of our society have paid the price.

A little sunlight now is past due - when some legislators (and the auto insurance companies that contribute to them) are trying to dismantle the Michigan No-Fault system at the expense of stripping away valuable protections in favor of Michigan insurance companies that already lead the nation in profitability.

Before we rob Michigan drivers of the best auto insurance protections in the nation, let’s take a good look at how our current system is working. As far as I can see, providing lifetime medical care for necessary PIP benefits and attendant care (nursing care services) to auto accident victims with life-altering spinal cord injuries and traumatic brain injuries is the better way than throwing these people onto Medicaid and leaving it to the taxpayers. Especially when these insurance companies are far more profitable than they’ve been letting on.

If every person in the state with an auto insurance policy pays a reasonable fee into the fund annually ($145 per vehicle as it is now), then this fund will not disintegrate, as insurance industry advocates contend. It will continue to serve its purpose of covering people with the most serious auto accident injuries for life.

There are many, many  more questions that  need answers before we turn our No-Fault insurance system on its head.

Why fix a system that is  has been proven in study after study to work better than in any other state in the nation? Why save insurance companies who are already amazingly profitable additional millions upon millions of dollars (approximately $100 million a year according to one recent study) in exchange for sacrificing our drivers’ valuable insurance protections? And what possible compelling public policy reason is there to move this burden away from these insurance companies and onto  taxpayers, which is exactly what happens when the responsibility to care for catastrophic injury accidents is shifted from No-Fault insurance to Medicaid?

Here’s a recent article about the CPAN’s Ingham County Lawsuit in the Detroit Free Press.

Let the MCCA lawsuit proceed!

- Steve Gursten is one of the nation’s top No-Fault attorneys handling auto accident lawsuits. He is head of Michigan Auto Law and president of the Motor Vehicle Trial Lawyers Association. Steve has received the highest verdict in the state for a car accident or truck accident victim in 2008, 2009, 2010 and 2011, according to Michigan Lawyers Weekly.

- Photo courtesy of Creative Commons, by 401k

Related information to protect yourselves:

CPAN study highlights dangers of No-Fault “reform”

Charade over No-Fault reform “savings” has stopped

Your Michigan No-Fault benefits

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. Call (800) 777-0028 to speak with one of our Michigan No-Fault attorneys.

It may not seem like a big deal for you to use your personal car or truck on the job. Or to let your teen driver use the family car every day after-school or to drive to and from a summer job.

But if you or your teen driver causes an accident in either event,  it may be a huge problem.

Depending on whether your personal auto insurance policy contains a “business-use” exclusion, your liability insurance may not cover the car accident and you may be personally liable for damages to anyone who was injured in the crash.

The reason is because “business-use” exclusions — which are included in most personal auto insurance policies in Michigan, and in many other states now as well — allow the insurance company to deny liability coverage for accidents caused by the insured person while using her personal car or truck for business purposes.

As such, the failure to be aware of and comply with the provisions of a “business-use” exclusion can be financially devastating for you, personally, and/or as the responsible parent of a teen-driver who mistakenly thinks it would be “no big deal” to use your family’s personal car for non-family, income-generating business.

Business-use exclusion for Michigan auto insurance

Under Michigan law, an automobile insurance company can set its premium rates based on whether an insured person intends to use her vehicle for business purposes, i.e., “for transportation of passengers for hire, for rental purposes, or commercial purposes.” (MCL 500.2118(2)(f))

If an insured person reveals that she plans to or may use her vehicle for “business purposes,” then her insurer may charge a higher premium on her personal auto insurance policy:

“It is reasonable to conclude that a commercial vehicle would command a higher insurance premium because it would likely accumulate more mileage and be used in circumstances more likely to result in accidents.” (Amerisure Insurance Company v. Graff Chevrolet, Inc., et al., Michigan Court of Appeals, July 22, 2003 (published))

On the other hand, if an insured person states she plans to use her personal car only for personal matters, then her auto insurance premium will likely be lower, reflecting the insured person’s anticipated, limited use.

How the ‘business-use’ exclusion ‘at work’ has hurt insured drivers

Below are three examples of how Michigan courts have interpreted the “business-use” exclusion to deny liability coverage to otherwise properly insured drivers.

The rulings provide a jarring illustration of how “business-use” exclusions operate and how clear-cut their effect is:

•    The “business-use” exclusion in Henry Dobbs personal auto policy denied him liability coverage when he, while driving his employer’s uninsured truck, killed motorcyclist Richard Husted Jr.. (Husted v. Dobbs, et al., Michigan Supreme Court, April 27, 1999)

•    The “business-use” exclusion in a rental car contract denied liability coverage to Richard Threehouse after he collided with another car while he was delivering pizzas for his employer, Hungry Howie’s. (Amerisure Insurance Company v. Graff Chevrolet, Inc., et al., Michigan Court of Appeals, July 22, 2003 (published))

•    The “business-use” exclusion in Anthony Nicholas Alcini’s mother’s personal auto insurance policy denied liability coverage to Mr. Alcini after he struck and injured Don Edwin Lease while he was delivering pizzas for his employer, Pizza Czars. (Amerisure Mutual Insurance Company, et al. v. Farmers Insurance Exchange, et al., Michigan Court of Appeals, May 4, 2004 (unpublished))

What to look for in your auto insurance policy to protect yourself from ‘business-use’ exclusions

To give you some idea of what you are looking for when you begin examining your personal auto insurance policy to determine if it contains a “business-use” exclusion, examples are provided below.

Typically, “business-use” exclusions will provide that liability coverage is excluded when the car or truck in question is used:

•    “[I]n a business or occupation of the named insured, spouse or relative …” (Husted v. Dobbs, et al., Michigan Supreme Court, April 27, 1999)

•    “To carry passengers or property for consideration, express or implied.” (Amerisure Insurance Company v. Graff Chevrolet, Inc., et al., Michigan Court of Appeals, July 22, 2003 (published))

•    “[To] carry persons or property for a charge.” (Amerisure Mutual Insurance Company, et al. v. Farmers Insurance Exchange, et al., Michigan Court of Appeals, May 4, 2004 (unpublished))

- Steve Gursten is one of the nation’s top insurance attorneys handling auto accident lawsuits. He is head of Michigan Auto Law and president of the Motor Vehicle Trial Lawyers Association. Steve has received the highest verdict in the state for a car accident or truck accident victim in 2008, 2009, 2010 and 2011, according to Michigan Lawyers Weekly.

Related information to protect yourselves:

The best auto insurance coverage for teen drivers in Michigan

No-Fault and your car accident

Your 3 potential cases after a car crash

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. Call (800) 777-0028 for help from one of our Michigan insurance attorneys.