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Personal injury attorney says Michigan’s No-Fault Insurance Act is uniquely set up to handle autonomous vehicle accidents

Personal injury attorney says Michigan’s No-Fault Insurance Act is uniquely set up to handle autonomous vehicle accidents

Southfield, Mich. —March 22, 2018— A. Vince Colella, a civil rights and personal injury attorney at Moss & Colella, P.C., say the recent incident where a pedestrian in Arizona was killed after being hit by an autonomous Uber vehicle has sparked conversation in Michigan about how individuals here would be legally protected in a similar scenario.

“It’s interesting that Michigan, a state taking the lead in autonomous vehicle development

and safety and testing legislation, is actually already uniquely positioned to handle injury claims through its No-Fault Insurance Act without adjusting for the type of vehicle,” Colella said. “This is true for both vehicle to vehicle and vehicle to pedestrian injuries and deaths.”

Colella explains that No-Fault benefits for medical, wage loss, and attendant care and replacement services are payable regardless of fault.   The carrier responsible for payment of benefits is prioritized by the No-Fault Act. A pedestrian victim would obtain benefits from an insurance company in this order:

  • Their own insurance company;
  • Insurer of a household relative;
  • Insurer of the owner of the autonomous vehicle;
  • Insurer of the operator of the autonomous vehicle; this would be bypassed in a total autonomous situation or would go to the insurer of the so-called “safety driver” within the autonomous vehicle; or
  • Random assignment of the claim to a Michigan auto insurance company.

In the case of third party claims of negligence, for example in a semi-autonomous accident where there is a safety driver, Colella says that negligence claims for pain and suffering could be pursued against the safety driver and their insurance carrier, as is now done with operators of non-autonomous vehicles. With no safety driver, the situation changes.

“In a total autonomous situation, presuming there is no driver in control or partial control of the vehicle, I would presume that an accident would be the result of vehicle failure, which would leave only a claim for product liability,” Colella said. “The victim would then be forced to file claims under Michigan’s product liability laws against the vehicle manufacturer or seller.”

In the case of product liability, it must be established that the product was not reasonably safe at the time the product left the control of the manufacturer or seller (according to the generally accepted production practices); and that a feasible alternative was available and would have prevented the accident without significantly reducing its usefulness.

“Limitations on damages in the case of product liability is $455,000, unless the result was death or permanent loss of vital bodily function, when the limitation is approximately $812,500,” Colella said.

Because Michigan law already requires emergency human intervention to be accessible during all testing, Colella does not believe the recent Arizona death will prompt any changes to the current law. He says determining liability when someone is harmed or killed by an autonomous vehicle will depend on the following considerations:

  • If the vehicle is completely or semi-autonomous
  • If there is a vehicle operator, did the operator fail to comply with the Michigan Traffic Code?
  • If there is no operator, was an operator required under law?
  • If no operator was required, was the vehicle defective?

“I doubt if Michigan legislators had autonomous vehicles in mind when they wrote Michigan’s No-Fault Act in 1973, but it turns out they may have been ahead of their time,” Colella said.

About Moss & Colella

Established in 1997, Moss & Colella represents the victims of personal injury, civil rights violations, discrimination and wrongful death.   The firm is recognized as a leader in complex tort litigation, including excess and deadly force, jail death, sexual abuse and harassment, auto and truck accidents, and other serious injury and wrongful death claims.   To learn more about the firm and its diverse areas of practice, visit the Moss & Colella website.

Attorney who has sought to ease Michigan’s government immunity protections sees challenges ahead for proposed   SB-0877 and SB-0872 legislation on sexual assault

Attorney who has sought to ease Michigan’s government immunity protections sees challenges ahead for proposed SB-0877 and SB-0872 legislation on sexual assault

Southfield, Mich. —March 1, 2018— A. Vince Colella, a civil rights and personal injury attorney at Moss & Colella, P.C., has spent years seeking to ease the far-reaching protections offered to employees and entities covered by government immunity. With proposed Michigan Senate Bill SB-0877, introduced on Feb. 27 and seeking to eliminate government immunity protections in cases involving sexual assault, Colella is hopeful, but doubtful.

“This is an interesting proposal for what has become an archaic protection of government,” Colella said. “Under the government immunity statute, the state and any of its political subdivisions (city, village, town, school district, court, public college, etc.) are immune from civil liability.  However, there are exceptions: (1) the failure to maintain and repair highways, (2) the negligent operation of government-owned vehicles, (3) dangerous or defective conditions in public buildings, (4) the performance of proprietary functions, and (5) the ownership or operation of a government hospital. Michigan SB – 877 would provide for an additional exception, “sexual misconduct while in the course and scope of employment while acting on behalf of the government agency.””  

Although it’s not completely clear what the legislative intent is, Colella explained that wording of Section 2 of the bill presumably imposes vicarious liability on the state and its political subdivisions for the sexual misconduct of its employees. Should the bill become law, a victim would no longer have to establish that a government agency was “the” proximate cause of an injury as required under a gross negligence cause of action.  Rather, the victim would merely have to show that the agency was “a” proximate cause of the injury resulting from the sexual misconduct. Further, the language of the legislation calls for the law to be retroactive.  Under section 3, “[sexual mis]conduct that occurred after December 31, 1992” would not be immune from civil liability.   Colella says that’s where one of the biggest challenges arises.

“Should SB-0877, along with SB-0872, which extends the statute of limitations to 30 years for criminal sexual conduct, be universally adopted in both criminal and civil cases, it could open the flood gates to a tidal wave of litigation – including hundreds of cases against Michigan State University for the conduct of Larry Nassar,” Colella said.  

 

While in favor of the government immunity legislation, Colella is doubtful it will pass.

 

“The legislation is laudable, but SB-0877 exposes the state and its political subdivisions to incredible economic exposure” Colella said.  “Lawsuits arising out of sexual misconduct are predicated on the intentional acts of the persons perpetrating the crimes.  Nearly all insurance policies, including those covering the local cities, schools, municipal corporations, and agencies, exclude “intentional acts,” meaning judgments arising from this legislation would likely not be insured. I think when the legislature researches the impact of this bill, it will be scrapped.  The State of Michigan and its governmental units would be vulnerable to monetary exposure of epic proportion.”

Interestingly, Colella is currently working on a high profile case where he has been successful in arguing against government immunity.  In Nov. 2017, the Michigan Supreme Court declined to grant governmental immunity to a Mid-Michigan public school teacher in the governmental gross negligence case, Bellinger v Kram.  The Michigan Supreme Court decision means the Michigan Court of Appeals ruling from May 2017, allowing the firm to proceed with a lawsuit on behalf of the student, stands.

The Michigan Court of Appeals decision, in denying governmental immunity to the teacher, found there was substantial evidence from which a jury could find in favor of the student, including testimony from the student that she was pressured to use the saw by her shop class teacher, that she had requested assistance from the teacher but had been rejected, and that the teacher had advised her that the saw guards were optional and only necessary for insurance inspections. A jury trial in Bellinger v Kram is expected to take place in spring 2018.

About Moss & Colella

Established in 1997, Moss & Colella represents the victims of personal injury, civil rights violations, discrimination and wrongful death.   The firm is recognized as a leader in complex tort litigation, including excess and deadly force, jail death, sexual abuse and harassment, auto and truck accidents, and other serious injury and wrongful death claims.   To learn more about the firm and its diverse areas of practice, visit the Moss & Colella website.

Settlement reached in $10-million police shooting lawsuit

Settlement reached in $10-million police shooting lawsuit

It appears Dearborn has reached a settlement in a $10 million-plus lawsuit filed last year after the fatal police-shooting of 31-year-old Janet Wilson.

The parties are asking U.S. District Judge Bernard Friedman to approve the settlement and keep the terms confidential.

Wilson, after causing a disturbance at Dearborn’s Fairlane Mall and trying to run down security guards with her vehicle, according to police, disobeyed officers’ orders to stop her vehicle, and was shot four times as she drove forward in close proximity to Dearborn officers, who were ordering her to stop.

Wayne County Prosecutor Kym Worthy in December 2016 cleared the officer of wrongdoing and deemed the shooting self defense.

Attorney Vince Colella of the Moss & Colella law firm, on behalf of Janet Wilson’s sister, Lori Wilson, and her estate, filed a motion asking the judge to approve the confidential settlement agreement Thursday, Dec. 14.

“To preserve the confidentiality of this resolution, the amount of the settlement, costs of litigation, attorney’s fees and net disbursement to plaintiffs will be provided to the court on the date of hearing via a confidential exhibit,” the court filing says.

Dearborn has previously denied MLive’s attempts to obtain records related to litigation costs in the case, claiming the records could be withheld from the public under attorney-client privilege.

Dearborn Deputy Corporation Counsel Laurie M. Ellerbrake did say the costs would be released once the lawsuit was resolved.

The city declined to release results of the internal investigation conducted following the shooting. All members of City Council, Dearborn Police Chief Ronald Haddad and Mayor John B. O’Reilly, Jr. have declined comment on details of the shooting.

Haddad, in a deposition he gave in the case, confirmed an internal investigation was being conducted in relation to Wilson’s shooting.

Based on available meeting minutes and agendas posted to the Dearborn website, it’s not clear when City Council approved a settlement in the case. While discussions on legal matters may be held behind closed doors, any resolution or vote resulting from those discussions must be public under state law.

MLive has filed a Freedom of Information Act request for settlement details and the resolution approved by City Council in the case.

Depositions and exhibits, including past police reports, filed in the civil case indicate Wilson had a history of aggressive behavior.

“Ms. Wilson frequently engaged in assaultive conduct,” says a Nov. 22 motion for dismissal filed by Dearborn. “She struck her mother, father, nieces and nephews, kicked doors and walls in her house, and had ‘fits of rage’ in which she threw objects such as forks around the residence …

“When Ms. Wilson’s family took steps to have her committed, she threatened to kill them as well.”

The motion says Wilson had previously been “institutionalized” for mental illness and was described as a “baseline psychotic” who was receiving outpatient treatment at the time of her death.

Wilson was killed a little more than a month after a Dearborn police officer shot 35-year-old Kevin Matthews nine time during a struggle in the backyard of a Detroit home. He also died, the officer was cleared and a civil lawsuit is pending.

source: http://www.mlive.com/news/detroit/index.ssf/2017/12/dearborn_reaches_settlement_in.html

 

Attorney David M. Moss discusses long-time advisory role at Downtown Boxing Gym as founder Khali Sweeney vies for CNN’s Hero of the Year for championing Detroit youth

Attorney David M. Moss discusses long-time advisory role at Downtown Boxing Gym as founder Khali Sweeney vies for CNN’s Hero of the Year for championing Detroit youth

‘Being a member of the legal profession brings with it both privilege and responsibility’

Media contact: Barbara Fornasiero, EAFocus Communications, 248.260.8466; barbara@eafocus.com

Southfield, Mich. —Nov. 27, 2017— It’s proving to be a banner year for attorney David. M. Moss, founding partner of Moss & Colella, P.C., a law firm representing clients in the areas of personal injury and civil rights.

First, the firm has been commemorating the 20th anniversary of its formation; in 1997, Moss joined with A. Vince Colella to establish what they hoped would be a different kind of personal injury law firm. That has happened, with Moss developing specialty areas in railroad, trucking and medical malpractice and Colella developing expertise in the modern era of civil rights, gross negligence and governmental immunity cases. Moss has argued in front of the Michigan Supreme Court and both attorneys are mentoring three associate attorneys in the firm.

The second celebration for Moss takes him beyond the law–sort of. Around the same time Moss was forming his law firm, he was asked to advocate for a young woman who lost her father as a pre-teen. Supporting her journey through high school and providing counsel and advocacy through college and beyond, Moss, who has two children of his own, was pleased to play a small part in her successful transition to adulthood. Her name is Jessica Hauser and she’s been the Executive Director of Downtown Boxing Gym in Detroit since 2010.  

Established in 2007, Downtown Boxing Gym is the brainchild of Detroit native Khali Sweeney, who wanted the gym to serve as a safe haven for youth in Detroit to gather and focus on academics first and boxing second. Today, the gym’s mission is: Books Before Boxing, transforming lives through education, mentorship, enrichment, community service and the discipline of boxing. It serves 156 students with 850 on the waiting list and has a 100% high school graduation rate for ten straight years. In recognition of his efforts, Sweeney is now one of ten national finalists for CNN’s “Hero of the Year.” Voting for the finalists is open through December 12, 2017.

Moss’ affiliation with the Downtown Boxing Gym goes back several years. Hauser approached Moss in 2012, introducing Sweeney and seeking legal advice to help the nonprofit organization grow. Moss then helped establish the Downtown Boxing Gym’s original board of directors, serving as one of the first official members and gathering executives from international and local powerhouse organizations to serve. He continues his efforts with the gym to this day.

“Khali Sweeney’s national recognition as a CNN finalist for Hero of the Year is a gift to the organization and a testament to how committed he is in his vision for Detroit youth,” Moss said. “It may sound cliché, but I knew him when–and it’s been a highlight of my career to have played even a small role in helping strengthen the Downtown Boxing Gym and its mission.”

Moss says he’s learned through his own law firm and his 30+ years as an attorney that being a member of the legal profession brings with it both privilege and responsibility.

“Attorneys are frequently in a position to make a positive impact on the community, whether directly or indirectly, and I think we have a responsibility to do so,” Moss said. “We understand the importance of the law in securing and protecting individual and organizational rights, we have connections to people of influence who can support and further a community initiative, and we have the financial means and leadership experience to support an organization like Downtown Boxing Gym in expanding its outreach to kids who need it most.”

To make a donation in support of the Downtown Boxing Gym, visit the website.

About Moss & Colella

Established in 1997, Moss & Colella represents the victims of personal injury, civil rights violations, discrimination and wrongful death.   The firm is recognized as a leader in complex tort litigation, including excess and deadly force, jail death, sexual abuse and harassment, auto and truck accidents, and other serious injury and wrongful death claims.   To learn more about the firm and its diverse areas of practice, visit the Moss & Colella website.

Michigan Supreme Court declines to grant governmental immunity to teacher in high school shop class injury case

Michigan Supreme Court declines to grant governmental immunity to teacher in high school shop class injury case

Court of Appeals opinion stands; gross negligence lawsuit against Michigan public school teacher may proceed to a jury trial

Southfield, Mich. —Nov. 2, 2017— A. Vince Colella, a civil rights and personal injury attorney at Moss & Colella, P.C., announced the Michigan Supreme Court has declined to grant governmental immunity to a Mid-Michigan public school teacher in the governmental gross negligence case, Bellinger v Kram. The Michigan Supreme Court decision means the Michigan Court of Appeals ruling from May 2017, allowing the firm to proceed with a lawsuit on behalf of the student, stands.

The Michigan Court of Appeals decision, in denying governmental immunity to the teacher, found there was substantial evidence from which a jury could find in favor of the student, including testimony from the student that she was pressured to use the saw by her teacher, that she had requested assistance from the teacher but had been rejected, and that the teacher had advised her that the saw guards were optional and only necessary for insurance inspections.

“Typically, the defense of government immunity excludes most claims from trial or litigation and bars a large number of claims, so this is a huge win for the young victim in this case,” Colella said. “This decision by the Michigan Supreme Court will allow the student to pursue her claims at trial, where a jury will rightly decide the issue of liability.”

The jury trial in Bellinger v Kram is expected to take place in spring 2018.

About Moss & Colella

Established in 1997, Moss & Colella represents the victims of personal injury, civil rights violations, discrimination and wrongful death.   The firm is recognized as a leader in complex tort litigation, including excess and deadly force, jail death, sexual abuse and harassment, auto and truck accidents, and other serious injury and wrongful death claims.   To learn more about the firm and its diverse areas of practice, visit the Moss & Colella website.