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Court Upholds “Plain Meaning” of Statute; Proves Major Victory For Injured Snowboarder

Court Upholds “Plain Meaning” of Statute; Proves Major Victory For Injured Snowboarder

On December 19, 2014, Shane and his friends ventured out for a day of snowboarding and fun at Boyne Mountain. Unbeknownst to him, there were snow making operations in progress producing large amounts of un-groomed “snow whales” that create a hazardous condition for skiers and snowboarders alike. Tragically, Shane encountered the hazard area and was launched from his board onto his back resulting in paralysis from his chest down. Shane was 27 years old. Young, handsome, educated… and now, confined to a wheel chair.

The Ski Area Safety Act (SASA) was enacted for the purpose of “safety, reduction in litigation, and economic stabilization of an industry which substantially contributes to the Michigan economy.” [MCL 408.321] Essentially, it gives immunity to a ski resort (operator) from damages sustained by a skier/snowboarder who has been injured on the slopes. The impunity given to ski resorts by our legislature has made it virtually impossible to hold an operator liable for a skier or boarder’s injuries. To make matters worse for the recreational skier/snowboarder, lawyers for ski resort operator’s took the position that the 50% comparative negligence bar under the 1995 Tort Reform Act, [MCL 600.2959] prevented injured skiers or snowboarders from recovery if it were determined that they were more than 50% at fault for their own injuries (referred to as “modified comparative negligence”). That is, until now!

After a year of litigation, the case came to a screaming halt over whether Shane could recover damages if he was found to be more than 50% at fault for his accident. The parties briefed the issue and presented oral argument on February 5, 2016 before a Charlevoix County Circuit Court Judge. Emphasizing the clear language of the statute, we argued that an injured skier could still recover damages even if they were more than 50% at fault, but less than 100% (a standard recognized as “pure comparative negligence”). The court agreed, stating, that in applying the principles of statutory interpretation, “specific statutes are given priority over general ones.” The Court declined to adopt the “modified” approach and recognized that the “pure” standard was required. Despite prior ancillary opinions that merely suggested the 50% bar did not apply, this is the first time in the 54 year history of the statute that a court expressly ruled in favor of a pure comparative standard.

While this may not be watershed moment for recreational skiers to slam the industry with litigation, it is certainly a victory for those skiers and boarders who have been injured and foreclosed from recovering a fair proportion of their damages.

For more information on the incredible spirit and resolve of Shane, you may find his story at #shanewill.

D-Insurance: an “f” Grade Idea

D-Insurance: an “f” Grade Idea

by Victor Balta

Over the past few weeks, you may have heard new radio ads extolling the so-called virtues of a new plan to reform Michigan’s No-Fault System called “D-Insurance”. These ads cite the high number of hard-working people who are unable to afford car insurance and are forced to illegally drive because they cannot afford it. But the ads take a sinister twist – and surprisingly blame the medical industry for the high rates of insurance. Radio ads claim that hospitals charge five times the cost of an MRI for auto-patients as compared to others. The D-Insurance Facebook page quotes a similar statistic: “Hospitals and medical providers are charging car accident victims 200-500% for the same care other patients are receiving.”[1]

Unsurprisingly, these ads place no blame on the automobile insurance industry for the current state of affairs. These publications make it seem as though automobile insurers are helpless at the hands of an overwhelmingly powerful and corrupt medical system. But these ads do not mention that automobile insurers can and regularly do negotiate bills with hospitals and medical care providers. Throughout my practice, I regularly see reductions in medical bills obtained by auto carriers. Automobile insurers also have significant tools at their disposal including contesting whether a medical expense is covered as “reasonable and necessary”, whether a patient has reached “maximum medical improvement”, or has a “pre-existing condition” which is currently the cause of their pain, suffering, and need for medical care. The auto insurance industry is far from helpless and has just as much incentive to seek profits as the medical industry – should we further empower them?

Although many D-Insurance ads claim that a reduction in premiums will necessarily follow if the plan is adopted, it can be argued that the loss of benefits may not be matched by a corresponding drop in premiums. Some online studies indicate that although Michigan is currently the highest for average automobile insurance premiums, many states trail closely behind including several states which do not have a No Fault scheme.[2] As with all issues, in-depth thought is required before taking action. It is important to remember that the insurance companies have control over premiums. For these reasons, if you have been injured in a car accident, it may be unwise to place blind faith reliance on your insurance company. Adequate representation may be necessary to obtain a fair value for your claims and ensure that all of your benefits are paid. For a FREE telephone consultation regarding auto accident injuries, please call contact Vince Colella or Victor Balta at Moss & Colella, P.C. at (248)-945-0100. Nothing in this article should be construed as creating an attorney-client relationship or advising as to the viability of any legal claim.

[1] D-Insurance, Facebook (October 11, 2015), https://www.facebook.com/MIDInsurance/?fref=nf

[2] Barabara Maraquand, Car Insurance Rate by State – 2015 Edition, Insure, http://www.insure.com/car-insurance/car-insurance-rates.html. See also E-Coverage, What Is No Fault Auto Insurance and Which States Have It, https://www.ecoverage.com/articles-what-is-no-fault-auto-insurance-and-which-states-have-it.php.

Receptionist/File Clerk Position Available

Receptionist/File Clerk Position Available

Moss & Colella is looking for a receptionist/file clerk. Immediate position avaible. Salary commensurate with position. If interested, please send resume to jmathias@mosscolella.com.

Law Day 2015

Law Day 2015

Today, I will be in Birmingham, Michigan at the Goodwin Scieszka Law Firm for its 28th Annual Law Day. My trial team and I will be here until 4:30 p.m. along with a number of other lawyers from different practice areas, including, divorce, probate, criminal, estate planning, employment, personal injury and automobile accident law. There are “goodies” for the kids, a live simulcast by WMUZ 103.5, play stations, and a hot dog bonanza! #lawyerswhowin #inthecommunity #probonolegal

Why Complainers May Be the Biggest Winners

Why Complainers May Be the Biggest Winners

In the realm of personal injury law, the injuries you sustain from an accident are what trigger the amount of money you may be entitled to in a lawsuit. Many times, the shock or horror of an accident can mask the full extent of a person’s injuries. However, the ones who immediately complain (or report) their pain symptoms are more likely to “link up” injuries that may eventually be the lynch pin of their case.

For example, a woman is involved in a rear end accident, however, only feels like she is “shaken up” and refuses medical treatment at the scene. A week later, she begins to feel a sharp burning sensation in her shoulder that radiates into her hands causing numbness. The woman toughs it out a few more days and then goes to see his primary care doctor. She reports the problem to her doctor and is referred for MRI testing. The testing reveals she has a herniated disc in her neck. A claim is filed against the insurance company, however, is DENIED because the injury was not reported at the scene of the accident.

The same holds true for those who “downplay” their injuries. From an early age, we are rewarded for not complaining, holding it in, or brushing it off. Unfortunately, “complaints” are the cornerstone of any personal injury case. Therefore, those accident victims that are able to articulate their pain complaints and disabilities often times achieve higher settlements and verdicts. Of course, whiners are often penalized by insurance companies for “over-magnifying” their symptoms. There is certainly a fine line between reporting one’s complaints and regurgitating each and every ache and pain.

Unfortunately, not all personal injury victims are able to artfully communicate their injuries to defense lawyers and juries. This may be attributed to a weak grasp of the English language, the desire to appear “tough,” or simply because the pain is so great that it becomes indistinguishable in origin. Skilled trial lawyers have the ability to effectively communicate with their clients and elicit colorful and poignant statements that tend to accurately portray pain and suffering. Being hurt is not enough. To be properly compensated, you must be able to convey your pain through words.