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
Holiday 2016

Dear Friends,

Hello Friends and Happy Holidays! Welcome to the 2016 holiday edition of our newsletter. So much has happened since our last newsletter. This is a great opportunity for a status report.

Wayne, Maureen and Milea
We are very pleased (but very relieved) to be able to say that 2016 passed without major changes to our No-Fault Law. We survived a last ditch effort in lame duck to enact yet another horrific demolition of our rights under the No-Fault Law. The essence of this effort, among other things,  was to place a cap on No-Fault benefits of $400,000 for those who become entitled to No-Fault benefits by operation of law, but who have not paid for those benefits. Examples include: uninsured occupants of insured cars and uninsured non-occupants who claim from insured cars. Presently these uninsured people may claim full entitlement to No-Fault benefits. The defeated (for now) proposal would have limited those claimants to $400,000. Any reader of this newsletter will readily appreciate how devastating that change would have been.
While this proposal was defeated at the end of the 2016 legislative term, it is yet another stark reminder of the absolutely imperative need to remain vigilant.
The following are developments in the courts. There have been several decisions recently that merit discussion, including the Covenant case, which is probably the most important No-Fault decision in the courts in recent years.
In October 2015, the Court of Appeals issued a remarkable decision in the case of Covenant v State Farm. As a result of this decision, service providers have been inundated with so-called Covenant Apportionment motions.  When an injured individual settles his case for No-Fault benefits, there is often a motion to have the court approve an apportionment, i.e., an allocation, of the settlement proceeds among those providers who have rendered services to the injured person. Often, the apportionment will call for the provider to take a fraction of the services rendered. It is very difficult for a provider to challenge the apportionment once a settlement has occurred. Therefore, it is strongly advised that an attorney be consulted well in advance of any such settlement.

One of the problems of course is that providers may not know if your injured patient's claim is even under insurance dispute. It is always advisable to contact the No-Fault insurer at the earliest stages to confirm coverage and that payment will be forthcoming.
While Covenant with its apportionment mechanism remains the law at this time, the Supreme Court has agreed to review the case. Oral arguments occurred on December 7, 2016. It is expected that the apportionment hearing mechanism will be abolished. However, this does not change the above advice to be vigilant as to collection of your claims.
The bigger problem with the Covenant case is that the Supreme Court may take away the provider's right of direct action. For many years we have been able to bring our claims for No-Fault benefits directly against the No-Fault insurers. I.e., we have not had to do any procedural gymnastics, including suing our own patients. This is known as the "Right of Direct Action." This right has been upheld by a consistent body of Court of Appeals decisions dating back at least to 2002.  Upon review of the Covenant case, the Supreme Court is considering whether to retain or remove the Right of Direct Action. While it is always difficult to predict the outcome of a case based on the comments and questions of the Justices in oral argument, I believe it is prudent to plan for the demise of the direct action.
RECOMMENDATIONS . There are many techniques and legal issues that we are contemplating as this future will be very uncertain. However, of immediate importance is the need to have your patients sign effective ASSIGNMENTS OF BENEFITS FORMS.  This is not as simple as it sounds. For one, the No-Fault Law renders void any Assignments of the right to future benefits.  So any Assignments that are executed on admission are suspect. It will be far better to have Assignments that are executed upon discharge. Here is my suggested language:
"I, ____________________, do hereby assign my right to collect No-Fault insurance benefits,  for unpaid services rendered by __________ to date, to _______________. This is not an assignment for benefits payable in the future or after the date of this document."
There is very little law on the effectiveness of such Assignments.  That is because we have used the Right of Direct Action for so long. Now that the Right is in jeopardy it is absolutely imperative to obtain these Assignments on discharge. I am sure that we face procedural uncertainty as the use of this device expands. However, if we do not use Assignments, we may face the prospect of litigating directly against patients. That is a most unpleasant prospect indeed. We conclude by once again urging in the strongest possible way that discharge procedures be amended to include the above Assignment.
Though not at the Supreme Court level, the Court of Appeals issued a really unfortunate opinion earlier this year that merits mention. In Farm Bureau v Blue Cross Blue Shield, et al, 314 Mich App 12 (2016), one Julie Klein was catastrophically injured in a motor vehicle accident. Klein received treatment at a skilled nursing care facility. Klein had medical insurance coverage with Blue Cross/Blue Shield (BCBS), and No-Fault auto insurance coverage with Farm Bureau. BCBS paid for the first 14 days of the nursing facility's services, but denied everything thereafter pursuant to its internal criterion. The nursing facility did not appeal or otherwise contest BCBS' decision. Rather, the nursing facility simply looked to Farm Bureau for payment. The Court of Appeals noted a provision in the BCBS policy that the nursing facility assumed "full financial responsibility" for claims denied by BCBS as being medically unnecessary under the circumstances of this case.  The Court interpreted this clause as relieving Farm Bureau of responsibility for payment:
"...the effect of [the nursing facility's] participating provider agreement is to relieve Klein from responsibility for paying for [the nursing facility's] services, and, because Klein has no legal responsibility for the medical costs, Farm Bureau has no obligation to pay for these expenses under MCL 500.3107(1)(a)."
The Court criticized the nursing facility for taking no action to context BCBS's denial, noting that "[the nursing facility] had any number of options open to it under the participating provider agreement to avoid assuming liability for Klein's expenses." Id at fn3.
So the result of the Court's analysis in Farm Bureau is that the nursing facility goes without payment for substantial services rendered, even though the nursing facility's patient had 2 separate insurance coverages! The Court in Farm Bureau noted that purpose of No-Fault §3109a "...is to eliminate duplicative recovery for services and to contain insurance and health care costs."  While certainly the Farm Bureau holding will serve to contain costs (nonpayment will tend to do that), is a holding that eliminates payment altogether consistent with an intent to eliminate duplicative payment? The main lesson of the decision is clear: do not simply accept without challenge the determination of the primary insurer.         
An important but unpublished decision in this area is Riverview Macomb Home and Attendant Care et al v State Farm, Ct App #327030 (October 20,2016). This case is another in a long line of cases discussing the No-Fault requirement that services must be "lawfully rendered." In this case, the question was whether a residential facility was required to be licensed as an adult foster care (AFC) home. The Court answered YES! Dan Richardson was severely injured as a pedestrian. He could not return to his previous residence, as it was a basement room. Instead, he was referred to a facility called "Group 1 Home." Group 1 was not licensed as an adult foster care (AFC) home, but claimed it wasn't providing AFC services. The Court cited MCL 400.703(4)(h) to define AFC facilities as including "...foster care family homes for adults who are aged, mentally ill, developmentally disabled, or physically disabled who require supervision on an ongoing basis but who do not require continuous nursing care." "The term 'foster care' is defined as 'the provision of supervision, personal care, and protection in addition to room and board, for 24 hours a day, 5 or more days a week, and for 2 or more consecutive weeks for compensation.' MCL 400.704(7). The Court found that there was no question of fact to contest that Richardson required AFC services and that Group1 provided those services without a license. Therefore, the plaintiff's services were not compensable under the No-Fault Law.
In Revive Therapy v State Farm, Ct App #324378 (April 28, 2016), the Court of Appeals discussed the new licensure requirements for massage therapy services contained in MCL 333.17959 and regulations promulgated thereunder. The Court made clear that the failure to be properly licensed will prevent the massage therapist from lawfully rendering service under §3157 of the No-Fault Law.
Sean Kelly gets improper Attorney Lien discharged and payment delivered to provider.  Recently, M&T received a referral from a hospital where the injured party's attorney was holding hostage more than $426,000 in checks that were intended by the No-Fault insurer to pay the hospital.  The No-Fault insurer made the checks payable to the hospital and the injured party's attorney after the attorney claimed a lien on all medical payments.  Sean Kelly was able to quickly get the No-Fault insurer to reissue the checks made payable to the hospital alone and gain an agreement from the injured party's attorney to release without payment the improper attorney lien claim that had been asserted.   
Maureen Kinsella gets award of 100% of Wage Loss plus interest and attorney fees for a self-employed client .  Maureen represented a self-employed client who was injured in a rear-end accident.  He was off work for a number of months and his No-Fault insurer would not voluntarily pay his wage loss despite proof from his medical doctor that the injury was disabling and resulted in the inability to work for a period of months.  After depositions of the medical doctor hired by the insurance company and the insurance adjuster, the Court agreed that the insurance company owed 100% of the wage loss claim plus No-Fault interest and attorney fee penalty because the insurance company conduct was unreasonable. 
Claire Vergara gets MACP assigned carrier to pay claim quickly.  M&T represented a medical provider for emergency room treatment, orthopedic surgery, and follow-up care. The patient was in a motorized wheelchair traveling on a Freeway service drive at 4am when she was struck head-on by a motor vehicle. The crash resulted in bilateral subdural hematomas, clavicle and scapular fractures.  We were able to obtain an accelerated payment of $189,000 by extremely aggressive handling and the threat of No-Fault penalties.

On September 17, 2016, we all participated in the Gilda's Club walk-a-thon to benefit breast cancer awareness and research.  The day was cool and drizzly but hundreds showed up in Royal Oak for a wonderful cause and a festive occasion.
Wayne Miller had the honor of writing the annual Insurance Update for the Spring 2016 edition of the Wayne State University Law Review.
In September, 2016, Wayne co-moderated the Michigan Association of Justice No-Fault Institute in Detroit.  This two-day, annual seminar was attended by more than 200 attorneys from across the state.  Maureen Kinsella spoke with an analysis of Covenant Medical Center v State Farm and Milea Vislosky spoke regarding black-box technology in motor vehicles and its use in auto-negligence lawsuits.     
In October, 2016, Wayne spoke at the annual Case Management Society of America, Detroit chapter meeting.  His topic, "A Whirlwind Tour Through The No-Fault Law" provided an overview of the law and an update on controversial issues.  

Several M&T attorneys attended the CPAN Dinner Gala on October 22, 2016 at Eagle Eye Golf Club and Banquet Center, Bath Township, Michigan, celebrating Michigan's model auto No-Fault system and those that work to protect and preserve the system. This year's gala honored:  Michael F. Dabbs, President Brain Injury Association of Michigan (Leadership Award), and Jane Bailey, Executive Director of the Michigan Association for Justice, (Protection and Preservation Award). Both Jane and Mike are members of the CPAN Executive Committee, Board of Directors and founding member of CPAN.  We were honored to be in attendance!
Attorneys from left to right:  Milea M. Vislosky, Maureen H. Kinsella, Wayne J. Miller, Claire D. Vergara, Christopher J. Adams, Meri D. Kligman, and Andrew J. Horne.  

Looking ahead, both Wayne and Maureen have been invited to speak at ICLE's annual No-Fault Symposium to be held in April, 2017. 

M&T is growing!  We welcome Patrick C. Cassidy, III to our firm as our newest attorney.  Patrick is a Michigan native who has been practicing in the area of No-Fault litigation and collection since 2012 when he graduated from Cooley Law School.   He is a 2007 graduate of Alma College with degrees in biology, chemistry and a concentration on medical sciences.  Welcome Patrick!

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.