Miller & Tischler, P.C.
28470 W. 13 Mile Rd. Ste. 300
Farmington Hills, MI 48334
(248) 945-1040
www.millertischler.com
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M&T
No-Fault News
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Volume I, Issue 3
September 2017
IN THIS ISSUE
Legislative Developments
Judicial Developments Part I: Covenant News
Judicial Developments Part II: No-Fault Legislation
Verdicts and Settlements
Miller & Tischler, P.C. About Town
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LEGISLATIVE DEVELOPMENTS
JUDICIAL DEVELOPMENTS PART I: COVENANT NEWS
Just before our summer began, the Michigan Supreme Court dropped the biggest bombshell we've seen in years: the Covenant decision. This decision held that service providers have no right to directly sue No-Fault insurers. We are now 4 months into this Covenant era. The preferred response to the Covenant rule is to bring our service provider claims based on assignments of the right to sue from our patients. The law seems to require that these assignments be signed by the patient after treatment. This technical requirement is based on the language of section 3143 of the No-Fault Law:
"An agreement for assignment of a right to benefits payable in the future is void."
While we continue to believe that this language is for another purpose entirely, it is prudent to obtain the assignments post-treatment. We have recommended form assignments in the past with the understanding that these will evolve over time and as we continue to get guidance from court decisions. Here is our current recommended form:
"I, ____________________ (patient), do hereby assign my right to collect (including the right to sue for) No-Fault insurance benefits and penalties, for unpaid services rendered by __________ (provider) to date, to _______________ (provider). This is an assignment for services already rendered only; this is not an assignment of benefits for services rendered in the future or after the date of this document. Patient agrees that as consideration for this assignment, Provider assumes the burden, otherwise born by the Patient, to pursue payment for services rendered by Provider, from the insurance company or payor entity responsible to pay for such services. This assignment shall be irrevocable unless terminated by mutual agreement of Patient and Provider in writing."
Insurers continue to aggressively challenge these assignments, often by use of anti-assignment clauses that appear in most insurance policies. We believe that anti-assignment clauses are not effective as against assignments of benefits signed after injuries have occurred. This is the law nationally and in Michigan. Most courts are agreeing with us in these first few months post-Covenant. However, there will remain uncertainty until we get decisions from the appellate courts in this area, probably not until next year. Stay tuned!
JUDICIAL DEVELOPMENTS PART II: NO-FAULT LEGISLATION
Now that the summer has turned to fall, the legislature returns. No-Fault insurance will be high on the list of action. Mayor Duggan continues his efforts to take dramatic action to lower insurance premiums. While we applaud his goals, his proposals are simply misguided. His current proposal is a form of "PIP Choice." That is, he plans to offer customers three options for PIP auto insurance:
1. $250,000 limits. This option is basically his old "D Insurance" proposal. Of the $250,000, only $25,000 is available for anything other than initial emergency care.
2. $500,000 limits.
3. Unlimited PIP.
Simply put, this proposal will destroy our No-Fault system. Most people will choose the cheapest option. Nothing will be available for long term custodial care and rehabilitation (other than the paltry $25,000). Compare this to the federal Affordable Care Act (ACA, also known as "Obamacare"). The ACA only works when everyone participates fully. The concept is that healthy people must buy into the system so as to have a complete pool to pay for all. When we don't get complete buy-in, the ACA faces problems and instability. So it is with our No-Fault system. It works because it is mandatory for all.
CPAN has prepared a sensible reform package that should be carefully reviewed. It will maintain the stability of the No-Fault system, while still offering reforms that should result in lower premiums.
Please continue your informed and persistent vigilance as we face perhaps the gravest threat yet to our No-Fault system.
VERDICTS AND SETTLEMENTS
Wayne Miller settled two cases this summer just prior to jury trial. In one, a 13 year old girl attempted to cross the street in front of her school as school let out for the day. She was hit by a car and suffered hip, back and facial injuries. We alleged that the driver of that car was going too fast for conditions in a school zone. The case settled for $300,000.
In Wayne's second case, a 74 year old woman was lawfully operating her car in an intersection on a green light. Another driver ran the red light and collided with our client. This very nice lady suffered a severely fractured collarbone, resulting in 2 surgeries. The case settled for $400,000.
Maureen Kinsella settled a home modification case this summer for her client who is a double amputee as a result of a motorcycle verses motor vehicle accident. Prior to retaining M&T, her client spent years trying to get modifications paid by the insurance company. The insurance company did little to respond and no modifications were completed. After hiring M&T and with Maureen's direction, a thorough home modification plan was created based on an Occupational Therapy home assessment; and the cost to modify the home was incurred with the contractor. Faced with trial and exposure to No-Fault penalties, the insurance company agreed to pay $435,000 for modifications to the home.
Milea Vislosky settled an auto negligence case that involved a "white-out" snow storm resulting in a 100 car pile-up in February 2013. Milea's client was struck by another car that was unable to stop. He suffered neck and shoulder injuries that required surgery. Liability was highly disputed, with the at-fault driver claiming it was a "sudden emergency." Milea was able to settle this matter for $150,000.00 before trial.
Milea represented a brain injury rehabilitation facility that had been treating a man who was injured in a car accident in November 1978. The man suffered a traumatic brain injury with resulting cognitive deficits, hemiparesis, hemiplegia and behavioral deficits. Milea's client treated this man for years and his auto insurer refused to pay for some of the services that were provided claiming: 1. They were not needed because of his car accident, 2. The charges were unreasonable, 3. The provider fraudulently billed for services that were not performed, and 4. The provider did not submit proper documentation to support payment under the No-Fault Act. After four years of contentious litigation, Milea obtained an Arbitration award for her client of $165,000, that consisted of $135,000 in outstanding benefits owed, $20,000 in No-Fault interest, and $10,000 in penalty attorney fees.
M&T ABOUT TOWN
- 6/8/17 Wayne Miller spoke at the BIAM legal seminar on Covenant
- 6/13/17 Wayne Miller was the moderator at the MAJ evening forum on Covenant
- Wayne Miller and Maureen Kinsella published an article in The Journal of Insurance & Indemnity Law, in July, 2017 entitled "The Covenant Case: The Past and Future of The Service Provider's Right of Direct Action"
- 7/19/17 Wayne Miller, Maureen Kinsella, Milea Vislosky, and Kevin McNeely spoke at the BIPC Provider boot camp
- 7/21/17 Wayne Miller spoke at the Wayne County Circuit Court bench/bar conference on Covenant
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Miller & Tischler will be at the Annual Brain Injury Conference in Lansing on September 14th and 15th. This is our 36th year as a sponsor and we hope you were able to attend!
- 9/25/17 Wayne Miller will be a co-moderator at the MAJ No-Fault Institute
- Wayne J. Miller to dance (YES! Not speak or write!) at the RIM Foundations Dancing With Our Stars event on 9/23/17. Please support him by going to: regonline.com/DWOS17
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Miller & Tischler welcomes two new Wayne State Law School graduates to our team; Brooke N. Mathis and Justin L. Rostker. Both took the Bar in July and we eagerly await the results!!
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| About Our Law Firm
Miller & Tischler, P.C., represents survivors of catastrophic brain and spinal injuries, their families and their professional service providers who are having difficulty pursuing their entitlement to receive No-Fault benefits for injuries sustained in motor vehicle accidents. We help our clients understand how their No-Fault insurance may coordinate with other kinds of insurances they have whether it be private health insurance, Medicaid, Medicare, Workers' Compensation, or Veterans benefits. We assist our clients in learning about and obtaining all of the benefits to which they are entitled, whether they be individuals or service providers. We also represent our clients with their auto negligence and wrongful death claims. In other words, we are a full service auto No-Fault law firm.
Let Us Help You.
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