Michigan Long Term Disability Insurance Lawyer Blog

In addition to our work on Long Term Disability cases, Serafini, Michalowski, Derkacz & Associates (SMDA) also handles personal injury cases. This is the story of one such case.

Our client, James Hawthorne was rear ended by a semi-truck owned and operated by a Kentucky based Trucking company. Mr. Hawthorne hired our firm to pursue a claim against the at-fault driver when he was unable to return to work due to a serious neck injury (due to whiplash).

SMDA filed a lawsuit against the trucking company in the Wayne County Circuit Court. Despite being served with the complaint by the local sheriff, the trucking comapny failed to appear in the case and was defaulted. Despite receiving notice of the default, the Trucking company again failed to appear in the case and a default judgment ($942,000) was entered by the Court.

Continue reading "SMDA OBTAINS TRUCKING ACCIDENT JUDGMENT AGAINST INSURANCE COMPANY DUE MCS90 ENDORSEMENT" »

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Recently, the new majority of 4 Michigan Supreme Court Justices upheld a decision by the Court of Appeals in Thorn v Mercy Memorial Hospital. In Thorn, a mother of young children died as a result of a medical error. When the family sued the defendant's argued that the children could not recover any of the economic cost of paying to try and replace the services that their mother would have provided during their lifetime. The Court of Appeals rejected this argument.

The Defendant's appealed this decision to the Michigan Supreme Court. The Supreme Court decided that the Court of Appeals got it right and upheld the decision.Justice Robert Young (who is up for re-election in 2010) strongly disagreed.

Continue reading "Does a parent's life have value for a child? (A Thorn in the side of the Gang of Three)" »

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Justice Taylor Falsely Claims Wall Street Journal Backing

In what turns out to be a desperate campaign strategy, Justice Taylor has been claiming that the Wall Street Journal said the Michigan Supreme Court under his leadership is the best in the nation.

Guess what-this claim is totally false!!!

If you expected better from a sitting Michigan Supreme Court Justice, you would be disappointed. You see, it turns out that the reference to the Michigan Supreme Court was not contained in a Journal editorial. It was not the conclusion of a survey or comparative study of the various state Courts in the US.

Instead, it seems that in October, 2005, Mr. Patrick Wright, who worked for Justice Taylor, wrote an opinion piece in which he voiced his opinion that the Michigan Supreme Court "may be the finest court in the nation." The quote, attributed to the Journal "best in the nation", never appears, not even in Mr. Wright's viewpoint piece. The opinion expressed in the piece is Mr. Wright's, not the opinion or finding of the Wall Street Journal ownership, staff, or editorial board.

The plain meaning of the words used in Mr. Taylor's bio, on the other hand, is that the Wall Street Journal, as a paper, has made a determination that the Michigan Supreme Court is the best in the US. This is patently false. Not only were these words never used, though the Taylor site portrays them as a direct quote, they are obviously only the opinion of the opinion piece's author, a former member of Mr. Taylor' legal staff.

If you think this kind of misrepresentation is wrong, vote to restore fairness by voting for Judge Hathaway for the Michigan Supreme Court on the nonpartisan section of the ballot this November. Remember, you have not cast a vote for the supreme court until you check the box next to Judge Hathaway's name.

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If you get hit by a drunk driver and break your arm or leg, do you think you should be able to sue the drunk who caused the accident, even if you make a good recovery?
If you get in a car accident but only miss three months of work, or a few semesters of school think you should be able to recover from the at-fault driver?

Not in Michigan, Not anymore. Why not? Because Cliff Taylor says so, that’s why.

In the case of Kreiner v. Fischer the court overruled decades of established law in order to make it harder for injured car accident victims to recover. The worst part of the decision is that the court simply fabricated a new rule requiring that the injuries affect the victims “course and trajectory” of their life. Taylor goes so far as to describe the law protecting insurance companies as the “no-fault temple.”

Since this decision, hundreds of cases have been dismissed for not meeting this new standard. I wonder how much money the Insurance Companies have saved? No wonder the Michigan Chamber of Commerce is running TV ads for Taylor.

I have pasted a few excerpts below from Supreme Court Justices Cavanaugh, Weaver and Kelly’s dissent.

By importing the concept of permanency of injury into MCL 500.3135—a concept
that is nowhere referenced in the text of the statute—the majority of four (Chief Justice
Taylor, and Justices Corrigan, Young, and Markman), in Kreiner v Fischer, 471 Mich
109 (2004), actively and judicially legislated a permanency and temporal requirement to
recover noneconomic damages in automobile accident cases. The Kreiner interpretation
of MCL 500.3135 is an unrestrained misuse and abuse of the power of interpretation
masquerading as an exercise in following the Legislature’s intent.
**************************************************
The majority suggests that my approach is sacrilegious to the “no-fault temple”
and is an exercise predicated on “studied ignorance.” Ante at 35. While
admittedly unaware that I was required to worship the no-fault insurance gods,
I believe that my “studied ignorance” is more properly labeled as “judicial
restraint.” If ignorance comes from applying this unambiguous statute as written
and not substituting my own view for that of the Legislature, I must say that
ignorance is bliss. If so-called wisdom comes from rewriting this unambiguous
statute to comport with my own preference on how the statute should be
written and applied, in this instance I must choose “ignorance.” Today’s
decision serves as a chilling reminder that activism comes in all guises,
including so-called textualism.

If you think this kind of judicial activism is wrong, vote to restore fairness by voting for Judge Hathaway for the Michigan Supreme Court on the nonpartisan section of the ballot this November. Remember, you have not cast a vote for the supreme court until you check the box next to Judge Hathaway's name.

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If the City plows the snow off the street and blocks the sidewalk and a child who is forced off the sidewalk is hit by a car and killed, do you think the City has any responsibility?

Not in Michigan, not anymore. Why not? Because Cliff Taylor says so, that's why.

In the case of Chantelle Buckner v City of Lansing, 480 Mich 1243 (2008) Justice Taylor's court told the dead child's family that the City of Lansing had no responsibility for plowing the snow off the street and blocking the sidewalk forcing the children into the street where she was struck and killed.

If you think this kind of judicial activism is wrong, vote to restore fairness by voting for Judge Hathaway for the Michigan Supreme Court on the nonpartisan section of the ballot this November. Remember, you have not cast a vote for the supreme court until you check the box next to Judge Hathaway's name.

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Think a landlord has a duty to fix the electrical wiring in a home.
What about if the tenant repeatedly tells the landlord that the electrical outlet sparks and smokes.
What if the landlord ignores the tenants repeated complaints and there is a fire which results in the death of six children? Think the family should be able to file a lawsuit?

Not in Michigan. Not anymore.
Why not? Because Cliff Taylor says so, that’s why.

In the case of McDowell v City of Detroit, Taylor’s court threw the family of six dead children out of court by finding that the landlord had no duty to fix the electrical system even though the family had repeatedly complained about sparks and smoke coming from the outlet. Defendants were on actual notice of the problems with the electrical outlet that eventually caught fire and other electrical components of the home as evidenced by nearly two years’ worth of complaints made by the tenant to defendants.

Taylor simply chose to ignore the lease and the law which respectively required that the landlord

Maintain electrical, plumbing, sanitary, heating, ventilating and
other facilities and appliances, supplied or required to be supplied by
Management in good and safe working order and condition.

Likewise, the law- MCL 125.471

requires that “[e]very dwelling and all the parts thereof including plumbing, heating,
ventilating and electrical wiring shall be kept in good repair by the owner.”

So even though the law and the lease clearly required the landlord to fix the wiring. Even though the family could not, by law, fix the wiring, Cliff Taylor lets the landlord off scott free.

If you think this kind of judicial activism is wrong, vote to restore fairness by voting for Judge Hathaway for the Michigan Supreme Court on the nonpartisan section of the ballot this November. Remember, you have not cast a vote for the supreme court until you check the box next to Judge Hathaway's name.

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If your loved one dies as a result of bad medical care, but lives for more than two years, do you think you can still sue the doctor who provided the poor care?

Not in Michigan. Not anymore

The Taylor led supreme court in Wickens v Oakwood Healthcare System, 465 Mich 53 (2001) changed well established law and held that a person cannot sue for the loss of an opportunity to survive until after they die, and they must die within the two year statute of limitations or the person's heirs will be denied court access.

In Wilson v Plyler, No. 268567 (Mich App 2007) the court implemented the Wickens decision and dismissed the families lawsuit because the patient died more than two years after the malpractice. The court noted “This leads to the rather odd result that a plaintiff who has the good fortune—or misfortune, depending on one’s point of view—to survive more than 2 years and thirty days after an act or omission that significantly reduces his or her chances of long term survival will be barred from suing a medical malpractice tortfeasor before he or she even has an enforceable claim.”

This is a particularly odious decision for cancer victims. Say the radiologist just misses the breast cancer on a mammogram. Three years later the patient dies from the cancer which has now spread throughout her body. Guess what Justice Taylor says to the family. Sorry, no case. To late to file a lawsuit, even though you could not file the lawsuit before they died.

If you think this kind of judicial activism is wrong, vote to restore fairness by voting for Judge Hathaway for the Michigan Supreme Court on the nonpartisan section of the ballot this November. Remember, you have not cast a vote for the supreme court until you check the box next to Judge Hathaway's name.

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Think you should be able to sue a rapist no matter how long it takes to catch him?
Think gender based discrimination is actionable?
Think your employer has an ongoing responsibility to prevent sexual harassment in the workplace?

Not in Michigan. Not anymore.

Trentadue v Buckler Automatic Lawn Sprinkler Co 479 Mich 378, 738 NW2d 664. In November 1986, Dr. Margarette F. Eby was raped and murdered at her home in Flint. The killer was not caught until identified by DNA evidence in 2002. Ms. Eby’s family then sued. Justice Taylor’s court overruled years of established case-law and told her family- sorry you lose! Even though you didn’t know who the murderer was, it is to late to sue-the statute of limitations has run. So the moral of this sad story for rapists and murderers is-if you don’t get caught right away, your victim cannot sue for your terrible crime. Very nice!!!!! Bet you had no idea criminals had it so good in Michigan. Tell Justice Cliff Taylor thanks but no thanks for this ruling.

Gilbert v DaimlerChrysler Corp, 470 Mich 749 (2004).The court overturned a jury verdict in favor of Plaintiff, the first female millwright at Chrysler's Jefferson Avenue Plant, who overwhelmingly proved that male employees sexually harassed her and that her employer failed to conduct a proper investigation and did very little to try to make the harassment stop. According to the dissenting justices the decision was motivated by the court's dislike of the plaintiff's attorney. So this woman loses because the court doesn’t like her attorney. See the dissenting opinion starting on page 57.

Garg v Macomb Mental Health, 472 Mich 263 (2005). The court reversed decades of law and overruled the continuing violations doctrine, allowing an employer to escape liability for sexual harassment because it had been going on for a long time.

Magee v DaimlerChrysler Corp, 472 Mich 108 (2005). The court found that even though the plaintiff's claims of sexual harassment, sex and age discrimination and retaliation were filed within three years of the date she resigned, the suit was too late because none of the alleged conduct occurred within the three years before filing the complaint. More of the same.

Haynie v State, 468 Mich 302 (2003). The court's decision causes women to lose work place protections. Harassment of female coworkers that is gender-based, but not sexual in nature, is no longer actionable in Michigan. So, as long as the harasser doesn’t demand sex, its ok to treat a woman poorly because she is a woman. Unbelievable.

Guess what each of these cases has in common? The injured worker or victim loses. The Defendant, the employer and their insurance companies win.

If you think this kind of judicial activism is wrong, vote to restore fairness by voting for Judge Hathaway for the Michigan Supreme Court on the nonpartisan section of the ballot this November. Remember, you have not cast a vote for the supreme court until you check the box next to Judge Hathaway's name.

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Think the State has a duty to fix a defective traffic light?
How about a defective guardrail?
Broken stop sign?
A bridge which is falling apart and dropping broken concrete onto traffic?

Think again.
Not in Michigan. Not anymore.

In Nawrocki v Macomb Co Road Commn, 463 Mich 143 (2000). The court virtually eliminated the government's responsibility to maintain public roads. Taylor’s court specifically overturned decades of precedent in ruling that the State had no duty to provide adequate warning signs or traffic control devices at known points of hazard. Instead, the Court ruled that the State only has a responsibility to maintain the traveled portion of the actual roadbed. Essentially, the Taylor court is saying since the traffic light, stop sign, guardrail and underside of the bridge are not the actual road bed there is no duty=no responsibility=so sorry your loved one was injured or killed even though we knew about the defect, but it is not our problem.

If you think this kind of judicial activism is wrong, vote to restore fairness by voting for Judge Hathaway for the Michigan Supreme Court on the nonpartisan section of the ballot this November. Remember, you have not cast a vote for the supreme court until you check the box next to Judge Hathaway's name

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Think a store owner has any responsibility to maintain their premises?
To fix a pothole?
To shovel the snow? To spread salt on the ice?

Not in Michigan. Not anymore.

Justice Taylor decides store owners do not have to keep their premises safe for their customers. In Lugo v Ameritech, 464 Mich 512 (2001) Justice Taylor overuled more than 25 years of caselaw and adopted the “open and obvious" doctrine in all slip and fall cases in Michigan. Basically, the court has determined in advance that you should see and avoid anything that could cause you to slip or trip and fall. And if you don't, too bad, it's your own fault.

The court also declared that no typical person could ever be seriously injured from any slip and fall. Ever since this case of clear judicial activism the courts have thrown out hundreds of slip and fall cases.

In fact a blind man’s case was thrown out because he should have seen the water on the floor!!!! In the case of Sidorowicz v Chicken Shack the court threw Mr. Sidorowicz, who was blind, out of court because the law now requires him to avoid the water on the floor which was “open and obvious” to a sighted person.

If you think this kind of judicial activism is wrong, vote to restore fairness by voting for Judge Hathaway for the Michigan Supreme Court on the nonpartisan section of the ballot this November. Remember, you have not cast a vote for the supreme court until you check the box next to Judge Hathaway's name.

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This Blog is normally devoted to issues surrounding long term disability insurance and other related issues. However, in case you haven't noticed we have an election just around the corner and I want to try to provide some information to the public about the state of the law in Michigan and in particular how one judge up for reelection has affected the legal landscape. I hope to post new enties regularly as we approach election day.

Michigan Supreme Court Justice Cliff Taylor, who is up for reelection, has repeatedly turned the law on its head to the benefit of insurance companies and big business at the expense of the average Michigan citizen. Following is one example.

JUSTICE TAYLOR EVISCERATES ENVIRONMENTAL LAWS

According to Republican Michigan Supreme Court Justice Elizabeth Weaver-

Fellow republican Justice Taylor has “eviscerated environmental laws intended to protect Michigan’s natural resources, leaving Michigan residents helpless to protect those resources threatened by environmental harm.

Justice Weaver continues that Taylor has taken the opportunity to finish what was started in Nat’l Wildlife: to deprive the people of Michigan of the ability to protect the natural resources of this state:

[t]he majority disregards the intent of the Legislature, erodes the
people’s constitutional mandate, and overrules 30 years of Michigan
case law that held that the Legislature meant what it said when it
allowed “any person” to bring an action in circuit court to protect
natural resources from actual or likely harm.

In the Nestle Waters decision Justice Taylor turns logic on its head in a classic case of judicial activism determines that MCL 324.1701(1), which authorizes “any person” to bring a MEPA (Michigan Environmental Protection Act) claim doesn’t really mean that “any person” can bring a MEPA claim.

To read the decision go to http://coa.courts.mi.gov/documents/opinions/final/sct/20070725_s130802_168_nestle130802-op.pdf

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Patrick Derkacz, an attorney and partner with the firm attended the 11th National Advanced Forum on Litigating Disability Insurance Claims which was held in Boston. The conference provided an opportunity to hear from industry insiders on the latest trends involving Long Term Disability Insurance Claims.

The three day conference included presentations from various respected advocates on a range of topics including developing discovery strategies to expand the record and an in-depth discussion about the pending Supreme Court opinion in Metlife v Glenn.

Counsel were able to share various litigation tips and strategies that have proven effective in an effort to increase the likelihood of a favorable outcome and increase the amount of each recovery.

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In a recent study by the University of Chicago School of Law, the Michigan Supreme Court was ranked dead last in Independence. The academic study determined that the justices on this court (including Taylor, Markman, Young and Corrigan) demonstrated the least ability of the hundreds of state supreme court judges to withstand partisan pressures.

The results of this study come as no surprise to attorneys actively practicing in Michigan. These justices have consistently ruled in favor of the insurance companies, the chamber of commerce and the corporations who fund their reelection campaigns. This Court has overturned more cases faster than any other court in memory.

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