Miller & Tischler, P.C. 

28470 W. 13 Mile Rd. Ste. 300
Farmington Hills, MI 48334
(248) 945-1040


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No-Fault News
Fall 2015

Dear Friends,

Welcome to the "back to school" edition of our newsletter for Fall 2015. We hope you find the information below timely and useful.

Wayne, Maureen and Milea
Notwithstanding the frenzied activity in the spring, the summer fortunately was a relatively quiet period for legislative developments on the no-fault law. The Courser/Gamrat scandal coupled with the emphasis on a solution on road maintenance and repair dominated discussion over the summer. Now that the fall term has begun however, we can expect renewed attention to state-wide efforts at dismantling our no-fault system. Of particular concern is Mayor Duggan's "D-Insurance" proposal. With its optional approach to coverage and an offer of a lower maximum of $275,000 in coverage, this proposal promises a certain demise to the protections we have long enjoyed under the no-fault law. Therefore, as we have counseled for a long time, continued vigilance and activism at the highest levels remain indicated.
A common question that comes our way relates to how the 1 year back rule works while an insurer is "investigating"  the claim.  Often, insurers don't pay the claim nor do they formally deny it.  Rather, they respond to inquiries by the repeated mantra that the claim is under "investigation."  Sometimes claimants are lulled into awaiting the outcome of the investigation. WARNING: an insurer investigation does NOT toll the running of the 1 year back rule. It used to be the law that an investigation would toll the 1 year back rule until there was a formal denial. That rule was reversed by the Supreme Court in 2005. Therefore, the only reliable way to stop the running of the 1 year back rule is to start a lawsuit.  A good rule of thumb is to refer the claim for litigation at the 9 month point if you are getting the "claim is under investigation" line from the insurer.
Many people are by now aware of the terrible "Admire" decision from 2013 that restricts a person's ability to purchase adaptive transportation. Admire held that, in most circumstances, an insurer is only obligated to modify a van that is otherwise purchased by the injured person.  Related to this issue is the purchase of transportation services for non-medical purposes. Another terrible decision in this regard is the case of ZCD Transportation v State Farm, a 2012 Court of Appeals decision. In ZCD, plaintiff's customer was wheelchair bound and was able to operate a van with hand controls prior to his motor vehicle accident. After his motor vehicle accident, he became too weak to transfer himself from his wheelchair to the driver's seat of the van. Accordingly, he retained the services of plaintiff transportation company for both medical appointments and for personal trips unrelated to medical treatment. The Court of Appeals held that:
"...transportation expenses unrelated to medical treatment are not recoverable even if prescribed by a doctor as being 'necessary for the patient's care, recovery, and rehabilitation.' Those transportation services, which were not directly related to [the patient's] medical treatment but were solely to maintain his pre-injury quality of life, constituted replacement services, not allowable expenses, because [the patient] did his own pleasure driving before the accident and, but for the injuries sustained in the accident, would have continued to do so."
This decision is in our opinion simply wrong both on the law and from the rehabilitation perspective. We believe that the Court's  emphasis on maintenance of "pre-injury quality of life" misperceives the nature of the role of transportation in rehabilitation. The Court dismissed in a footnote the treating physician's testimony that the social and community aspects of rehabilitation were necessary for a patient's complete recovery. Such transportation allows the patient to access his community, and therefore assists the process of rehabilitation to that pre-injury lifestyle. We see little difference between such transportation, and barrier free home accommodations that allow injured patients to more fully access their home, i.e., their "pre-injury quality of life."  This holding also appears to be inconsistent with Admire, which was decided a year later. Although the Court in Admirefound that the base purchase price of a van was not compensable, the Court recognized that a modified van may well be compensable, and not just for trips to the doctor. Unlike Admire, which was a Supreme Court decision and therefore unlikely to be overturned, we hope that the ZCD Court of Appeals decision will be subject to review in a proper case in the future. For now, sadly, it remains the law.  

Motorcycle negligence. M&T handled a claim for severe injuries to a motorcyclist injured when an elderly driver pulled suddenly out into traffic. The defendant claimed that the motorcyclist was speeding. Wayne Miller litigated the case and settled it for $175,000.
Service provider claim involving a defense of attempted suicide. M&T handled a claim where the service provider treated a severely injured patient. The insurer initially claimed that the patient intended to hurt himself by sitting down in the middle of the road. We were able to better explain these actions on the basis of severe intoxication. Wayne Miller settled the claim for $185,000 on charges of about $165,000, with the settlement including about $20,000 in no-fault penalties.
Service provider claim involving a motor vehicle fire. The patient was injured in an unusual manner when his vehicle caught fire, resulting in severe burn injuries. The insurer investigated whether the fire was caused by the a vehicle malfunction or by the patient's smoking. Ultimately the claim settled for $350,000, virtually all of the charges for services rendered.

Service provider claim involving whether the injured party was a relative domiciled in the household of the No-Fault insurance policy holder. M&T handled a claim where the service provider treated a severely injured patient. The insurer claimed the injured patient was not a resident relative of the named insured on the No-Fault insurance policy and, as such, was not entitled to No-Fault personal protection insurance benefits.  The trial court found that the injured patient was a resident relative entitled to No-Fault benefits and the Michigan Court of Appeals affirmed that decision.  Sean Kelly then settled the claim for $1,614,114.85 on charges of $1,309,295.61, with the settlement including over $300,000.00 in No-Fault penalties.

No-Fault insurance claim involving underpaid attendant care, unpaid medical and case management services for a young man who suffered a severe traumatic brain injury and orthopedic injuries in a car accident.  The insurance company chose to stop paying all medical benefits, case management services and reduced attendant care to 8 hours a day, relying upon 2 well-known insurance cut-off doctors.   Milea Vislosky litigated the case and settled the outstanding claims for $165,000.
Auto negligence and underinsured motorist claim.  Our client was rear ended by a drunk driver and suffered a mild traumatic brain injury, as well as other injuries.  Milea Vislosky litigated the case and obtained a $230,000 settlement. 
Wayne Miller was quoted on the status of the No-Fault legislation in The Detroit Free Press on May 3, 2015, and on NPR, check it out at:  http://n.pr/1QMTFBn 
Wayne Miller was selected by the Michigan Lawyers Weekly as among the 2015 Leaders in the Law.
Wayne Miller was named Chairperson of the No-Fault Committee for the Michigan Association for Justice (MAJ).
Wayne Miller is once again co-moderator of the September, 2015 Michigan Association for Justice No-Fault Institute and will also be speaking at the seminar.
Wayne Miller was a participant in the April, 2015 ICLE No-Fault Summit, on a panel discussion on the status of service provider claims under the No-Fault law.
Wayne Miller spoke at the June, 2015 Brain Injury Association of Michigan Legal Seminar.
Maureen Kinsella was selected to join the University of Detroit Mercy Law School's chapter of the American Inns of Court as a Master of the Bench.  The Inn of Court was founded in 1984 through the work of Judge Julian Cook, Jr.  This is an outstanding group of judges and lawyers ("Masters of the Bench") teaching advocacy and professionalism to young lawyers ("Barristers") and law students.  As a Master of the Bench, Maureen will work with a team to design a program simulating a challenge of litigation practice.  One of the chief aims of the Inn of Courts is to "renew and inspire joy and zest in legal advocacy."
Maureen Kinsella was invited by the Institute of Continuing Legal Education (ICLE) to speak at its 2016 Annual No-Fault Summit.  Maureen will speak on navigating the pitfalls of Settlement Agreements and Releases.

Milea Vislosky will speak at the September 2015 MAJ No-Fault Institute regarding the reasonable charge issue in medical service provider cases. 

Miller & Tischler would like to welcome the newest addition to our firm, attorney Meri D. Kligman.
Meri has a Bachelor of Science in Legal Studies, with English Honors from John Jay College of Criminal Justice, she graduated from Western Michigan University Cooley Law School in 2014, magna cum laude. During law school, she received an Honor's Scholarship and Robert Stocker Business Law Scholarship, and was on the Dean's list and Honor Roll every semester. Meri has a Certificate of Merit Award in Torts, Civil Procedure, and Property and has been a m ember of the State Bar since 2015.

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.