How HB 5864 Will Eliminate Most Car Accident Lawsuits in Michigan

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Proposed new law eliminates Constitutional 7th Amendment right for nearly everyone and grants auto insurance companies immunity on tort claims, says auto accident attorney Steven Gursten

It is quite conceivable that if this bill becomes law, it would eliminate almost all pain and suffering lawsuits against negligent drivers and drunk drivers in Michigan.

HB 5864 was introduced on September 11, 2012 by Representatives Lisa Lyons and Joe Haveman, and it will essentially wipe out auto accident lawsuits in Michigan, said attorney Steven M. Gursten, head of Farmington Hills-based Michigan Auto Law.

"HB 5864 keeps the profits intact for the state’s auto insurance companies, but then grants them immunity by raising the tort threshold so high that virtually everyone would be barred from the courtroom," Gursten said.

Gursten has spoken and written extensively on Michigan’s current “serious impairment of body function” threshold law, and is available for comment.

"My main concern is that HB 5864 intentionally destroys the balance in Michigan that our No-Fault system is based upon. We are a No-Fault state, where people recover No-Fault insurance benefits if they're injured in a car accident. But the balance is that our law requires that injuries from a car accident must be sufficiently serious to bring a lawsuit for pain and suffering compensation against a negligent driver and his insurance company," Gursten said.

"HB 5864 destroys this balance. HB 5864 codifies into law the previous misinterpretation of 1995 PA 222 under Kreiner v. Fischer, but then goes way beyond even that. It is quite conceivable that this bill if it becomes law would eliminate almost all pain and suffering lawsuits against negligent drivers and drunk drivers in Michigan," he said.

Below is Gursten's analysis of the proposed language of HB 5864.

According to Gursten, the bill seeks to redefine all three injury threshold elements that currently exist under Michigan law:

1. Objective manifestation – HB 5864 seeks to redefine objective manifestation to require a “medically identifiable” injury or medically identifiable physical condition. It also now requires that this medically identifiable physical condition be “caused by the accident” and further that it “substantiates” a car accident victim’s complaints, restrictions and impairments.

"This means people who suffer very common injuries from car accidents will now be barred from the courtroom," Gursten said, noting people who suffer incapacitating injuries such as disabling post-traumatic headaches, tinnitus, Chronic Pain Syndrome, Reflex Sympathetic Dystrophy (RSD) and Complex Regional Pain Syndrome (CRPS).

"Why would we allow someone driven almost to the point of suicide and who will never be able to return to work again because of a tinnitus injury, for instance, to have his 7th Amendment right to a jury trial under the U.S. Constitution arbitrarily be taken away?"

Preexisting medical conditions will likely also be wiped out, Gursten said. "This new objective manifestation requirement would arguably disqualify many car accident victims who suffer from preexisting medical conditions that were not caused by the car accident, but which were significantly aggravated by the car accident."

2. Important body function – The new definition is that a body function is only important if it is “important to an average person, rather than important to the injured person.”

"This new definition will certainly disqualify accident victims whose ordinary, normal life requires abilities that the “average person” does not require," Gursten said. "For example, “important body function” is the fractured finger injury that causes loss of motion. That fractured finger may be utterly devastating to the neurosurgeon or the violinist, but most likely will not be “important” to an “average person.""

3. Normal life – What is most alarming is that this new definition would impose far more restrictive concepts than ever existed even under Kreiner v. Fischer and its progeny of cases, Gursten said.

Specifically, HB 5864 requires that the impairment be “of sufficient severity and duration to affect the course and trajectory of the injured person’s entire pre-accident normal life.”

"This return to the “course and trajectory” language from Kreiner v. Fischer is deliberate. In using these words, very serious surgeries, fractures, and other injuries that will require months and months - maybe even years of disability - will still fail if this becomes law," he said.

“Course and trajectory” is meant to impose very long durational/temporal elements that will cause horrible injuries that caused almost total disability but that resolved within a year or so, to be dismissed. But HB 5864 then goes even further," Gursten added.

“Entire pre-accident normal life” is also completely new. "And it is the worst language by far in a bill that is itself a near complete destruction of people’s constitutional rights," he said.

"Arguably, it would mean that almost no injury – no matter how devastating it may be to an innocent car accident victim – could survive if that injured person is able to return at some point and still do many of the things that they could pre-accident. An office worker who loses a leg or an office manager who suffered paraplegia or other catastrophic personal injury, but who could return within a year back to his or her job, could still be barred from the courthouse, even though the pain and impairments will be permanent."

The real danger is that a judge with a political agenda can now use “course and trajectory” and “entire pre-accident normal life” to dismiss nearly any injury or case or person they don’t like, Gursten said.

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About Steven M. Gursten: Steven M. Gursten is an attorney and head of Michigan Auto Law. He is president of the Motor Vehicle Trial Lawyers Association and serves as an executive board member of the American Association for Justice Traumatic Brain Injury Lawyer Group.

About Michigan Auto Law: Michigan Auto Law has 18 lawyers exclusively handling auto accident and No-Fault insurance litigation throughout the state. The law firm has received the top-reported jury verdict for a car accident or truck accident victim in 2009, 2009, 2010 and 2011, according to published reports by Michigan Lawyers Weekly. Michigan Auto Law has offices in Farmington Hills, Sterling Heights, Detroit, Ann Arbor and Grand Rapids. For more information, call Michigan Auto Law at (800) 777-0028.

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Natalie Lombardo
Michigan Auto Law
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