Articles Posted in Other Stuff

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While this blog is normally devoted to all things Long Term Disability, I wanted to give a shout out to my legal partner, Phil Serafini who obtained an outstanding result in a automobile no-fault case.

SMDA was contacted by the mother of a minor who was involved in a serious one car MVA on 7/23/12 one day before a lawsuit had to be filed to force their car insurance company, Home – Owners, to pay her daughter’s Michigan No-Fault Insurance Benefits. Their insurance company denied the claim because at the time of the MVA, the client was 15 years old and driving, contrary to Michigan law, without a parent in the car and her mother had given a statement to Home-Owners that her daughter did not have permission. Her father allegedly made a comment at the scene that could be construed as meaning that his daughter did not have permission as well.

The primary issue for trial was whether the minor had her parents’ permission to take their car on the date of the MVA. If she had taken the vehicle without permission, she would be barred from no fault benefits under MCL 500.3113(a). Her mother testified at trial that Alison had permission and that she wasn’t initially truthful with the Home-Owners adjuster as she was concerned she could go to jail as the owner of the vehicle and be unable to care for her catastrophically injured daughter. Her father testified at trial that Alison had permission the day of the MVA and that he didn’t recall the alleged statement at the accident scene. However, if such statement was made, it would have been directed towards her mother as he initially disagreed with her decision to let Alison take and operate the vehicle without a parent present. Alison’s discovery deposition, now deceased, was read at trial. She also testified she had parents’ permission to regularly take and use the car before and on the date of the MVA.

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While this Blog is usually devoted to issues involving LTD claims and cases, I felt I needed to go off topic for a minute.

The Michigan Supreme Court issued a decision this past week in a case where a disabled young man drowned in a public swimming pool. Investigation revealed that the lifeguard on duty was distracted, not in his designated position, and ignored several calls for help from another student who saw the disabled young man under water.

In an opinion written by (Justice) Brian Zahra the Court dismissed the claim finding that the lifeguard’s failure to act was not the proximate cause of the young man’s death even though timely action might have prevented his death. Instead, and I am not making this up, the Court determined the proximate cause of death was “that which caused him to remain submerged in the deep end of the pool without resurfacing.”

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The Michigan Department of Insurance and Financial Services released its list of complaint ratios for 2013 recently. Leading the pack by a wide margin, with 101 complaints, State Farm Mutual Auto Insurance Company had more than twice the volume of complaints than its nearest competitor. Although, to be fair, if you added up all of the complaints against Allstate and related entities it is pretty close. By my count there were (14+27+7+46=94) complaints against Allstate and Esurance.

These results come as no surprise as our firm frequently sees claims denied by each of these companies.

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SMDA partner Patrick Derkacz recently attended the America Conference Institute’s Long Term Disability Insurance Seminar in New York City. The two day conference was attended by some of the top practitioners in the Long Term Disability Insurance Arena.

The conference agenda included many cutting edge topics including:

Discovery Scope & Limitations “360”: Key Strategies to Make Discovery Useful and Meaningful to Your Case and How to Tailor and Narrow Broad Requests
Innovative Pre-Trial Strategies for Disability Insurance Claims: Settlement, Mediation, Attorney’s Fees and More
The Current Role of the IME’s Evaluation‚ the Treating Physician’s Opinion‚ the FCE‚ and Medical Records in the Disability Claims Process Continue reading

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According to a CDA press release disability companies paid out more than 8 billion dollars in disability insurance payments in 2010. This included more than 139,000 new disability claim approvals, a small increase over the previous year’s numbers.

Diseases of the musculoskeletal system and connective tissue–such as arthritis, spine disorders and back pain were the leading cause of both new and continuing claims. The overwhelming majority of claims (90%) were caused by illness rather than accicdent.

For more information visit the CDA’s website here.

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Michigan Lawyers Weekly recently published an article “Long term Disability Insurance and ERISA” written by SMDA Partner, Patrick Derkacz. Following is an excerpt from the article.

THE SET-UP

So your client got sick or hurt and hasn’t been able to work for months. They applied for LTD benefits when their doctor told them they cannot work anymore and haven’t had a paycheck for months. They are behind on their mortgage and car payment. They are getting hammered by late fees and might lose the house. They are holding on by their fingernails. They call in a panic because they just received a letter from the LTD insurer, explaining that the claim has been denied because the Insurer’s in-house nurse determined “there is no objective evidence that you are unable to perform the material and substantial duties of your occupation.”

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Justice Robert Young is up for re-election in November. Each and every worker in the State of Michigan should remember his decision in the recent Alderman v. J.C. Development Communities case.

On October 9, 2006, Randy Alderman was part of a crew of six men working on a homesite in a new subdivision, adjacent to some power lines. As the crane lowered one of the forms onto the foundation, it contacted a power line. A jolt of electric current flowed through the crane and down the chain to the form and the metal “whaler” plaintiff was using to control the form from the ground. Plaintiff was knocked unconscious and his hands and feet were severely burned, requiring skin grafts.

Justice Young reversed the Court of Appeals decision and threw out Randy’s case. Why? Because “The only employees exposed to the risk of electrocution were two to six employees of one subcontractor, including the plaintiff, and therefore there was not a high degree of risk to a significant number of workers.” I guess in Justice Young’s world since only 6 people were at risk of electrocution and only one guy actually got electrocuted its no big deal. I suspect that Randy Alderman and his family might disagree.

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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.
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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.
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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!!!