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Question 9: What should Michigan auto accident victims do to protect their rights?

Even though the Michigan No-Fault Act, as written, creates broad and expansive legal rights for seriously injured persons, those rights can be jeopardized if injured persons do not clearly understand the nature of their rights and the many things that should be done to protect them.  Set forth below are some specific suggestions for protecting an injured person’s claim for PIP benefits and the injured person’s tort liability bodily injury claim.

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A. Protecting The PIP Benefit Claim

It is very important for an injured person to move quickly to establish their right to receive no-fault PIP benefits so that necessary medical treatment is not delayed or denied.  Among other things, the PIP benefit claimant should do the following:

(1)        ELIGIBILITYDetermine whether the injury occurred in such a manner as to create eligibility for no-fault PIP benefit coverage.

(2)        PRIORITYDetermine the appropriate insurer that has priority responsibility for payment of the PIP claim.

(3)        NOTICESubmit appropriate written notice of the claim that fully complies with §3145 of the Michigan No-Fault Act.  This is particularly important with regard to the description of injuries, which must be thorough and comprehensive.

(4)        PHOTOGRAPHSTake photographs of the patient’s injuries and the vehicular damage sustained by all vehicles involved in the collision.

(5)        CASE MANAGERSIn cases of serious injury, determine whether the accident victim would benefit from the services of an independent case manager.  If so, the patient’s primary physician should be asked to write a prescription for case management services, and the patient should be the one to decide who will serve as the Case Manager.

(6)        TIME LIMITSBe mindful of the time limitations applicable to enforcing claims for PIP benefits—particularly the one-year-notice rule and the one-year back rule.

(7)        COORDINATIONIf the no-fault policy is a coordinated policy, determine whether the patient’s health insurance plan is applicable to auto injuries and, if so, any limitations with respect to coverage under that plan.

(8)        PROOFSubmit all claims for no-fault benefits in writing, with proper documentation complying with the “reasonable proof” rule.  Copies of all submitted correspondence should be retained to document the fact that it was submitted.

(9)        LEGAL CONSULTAt the first sign of claim denial or claim dispute, consult with a professional who has specialized expertise in matters dealing with the Michigan No-Fault Law.

B. Protecting The Bodily Injury Tort Liability Claim

When motor vehicle accidents result in serious injury or death as a result of the fault of another driver, the injured person or the person’s estate should immediately determine whether a tort liability claim should be pursued.  Many accident victims significantly weaken their liability claim by not moving quickly to protect it.  This is unfortunate, because it is a virtual certainty that in serious injury cases, the insurance company for the party at fault will indeed be taking quick action to conduct a thorough investigation for purposes of building a defense to the claim.  Therefore, the injured person should also move quickly and do certain things to protect the tort liability claim, which include the following:

(1)        INVESTIGATIONThe injured person should initiate a thorough investigation through an appropriate investigator or legal representative.  Such an investigation should include interviewing witnesses, photographing the scene and the vehicles involved in the accident, taking measurements, collecting physical evidence, interviewing police officers, etc.

(2)        PHOTOGRAPHSThe injured person should arrange for photographs to be taken that fully show the injuries suffered by the victim and various aspects of the victim’s care and treatment.  This is particularly true in cases involving visible injuries such as burns, wounds, surgical scarring, etc.  Such photographs should be taken with excellent equipment, so as to ensure proper detail.

(3)        NON-COMMUNICATION(a) the injured person should avoid speaking with investigators or insurance adjusters representing the interest of the party at fault, as such discussions are frequently contrary to the best interests of the injured person; and (b) the injured person should refuse to sign any documents, releases, or other types of authorizations that have been requested by investigators or insurance adjusters representing the interest of the party at fault.

(4)        NON-NEGOTIATIONThe injured person should avoid conducting any premature settlement negotiations without proper legal advice.  Many times the insurance company representing the party at fault will approach a seriously injured victim and offer to make a settlement of the bodily injury tort claim in exchange for the victim signing a full release of liability.  It is absolutely foolhardy to consider entering into such settlement negotiations with an insurance company unless all of the following facts have first been established:  (a) the victim is reasonably certain that he or she has fully recovered from all accident-related injuries; (b) the victim has fully investigated the accident and knows the identity of any and all potential defendants and insurance companies who may have liability; (c) the release is only a release of the liability claim and not a release of any other rights the victim may have; (d) the victim has completely researched whether such a settlement will jeopardize other claims the victim may have against other parties or against the victim’s own insurance company for additional benefits, such as uninsured or underinsured motorist benefits; and (e) the victim has obtained competent legal advice from a motor vehicle personal injury specialist regarding the wisdom of entering into such a settlement.  Remember, once a release is signed, the victim cannot “undo the deal.”

C. The Big Point

As of July 2020, accidents resulting in serious injury will become much more complicated than they ever were under the original law.  If a victim has purchased limited coverage that is not enough to pay for the victim’s medical expenses, then the victim must seriously consider promptly pursuing a tort liability claim against the at‑fault driver to recoup some of the excess loss.  Such liability claims will typically involve an analysis of “fault allocation,” which means that the victim will only be able to recover that portion of the victim’s excess medical expenses that corresponds to the percentage of fault allocated to the other driver.  These fault allocation issues can be complicated and will frequently require the attention of an experienced attorney.  In addition, there will be disputed liability situations where both drivers incur excess medical expenses and are making a claim against one another for those uncompensated losses.  These situations create complexities beyond the scope of this summary.  Suffice it to say, however, that the new law will usher in an era of complicated questions that will require all victims to proceed with great caution and with a full understanding of their legal rights.  One thing is clear:  if there is any uncertainty, don’t go it alone.

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