As of the date that I am writing this article, the signs of Spring are becoming more and more apparent with increasing sunshine, somewhat warmer temperatures, Detroit Tigers opening day and the appearance of more and more motorcycles on the road. While these signs are welcome with open arms, there are also some sure signs of a Michigan Spring that are not welcome at all. As if Michigan roads weren’t bad enough (right Governor Whitmer?), continuing jumps and dips in temperatures that we often see in the early Spring can cause road conditions to deteriorate. This is the concept of “freeze-thawing” where water seeps into the cracks or crevices of the road surface and then expands when it freezes. This results in the road surface worsening and eventually causes raised areas which break away when driven over leaving potholes in the road surface. The sad reality I have noticed from my experience representing bikers who have been injured when they hit these potholes is that many times these roads go unrepaired by the responsible agencies until after an accident has happened. Remarkably, despite the fact that many of these potholes will have been there for weeks or even months before the accident without repair, work crews in some of my cases have been known to repair a pothole within 24 hours after an accident happens. If the defective highway is under the jurisdiction of a governmental agency (i.e., Michigan Department of Transportation or a county road commission) and the injury is due to the governmental agencies failure to maintain the highway in reasonable repair and in a condition reasonably safe and fit for public travel, the injured person may make a claim against the governmental agency for his/her damages. It is always important to get an attorney involved as early as possible in any type of motorcycle accident, but it is perhaps no more important than in an accident involving a road defect. Besides the obvious advantages of having an attorney involved to investigate the claim early on while the evidence is “fresh” and hopefully the defect is not repaired yet, a failure to contact an attorney immediately after the accident puts the injured person at risk of being totally barred from making a claim for compensation at all. This is because Michigan law requires that as a condition to any recovery for injuries sustained due to a defective highway, the injured person must serve a notice upon the responsible governmental agency of the occurrence of the injury and the defect. The notice must specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant. If this notice is not provided within 120 days from the date of the injury, the injured person is barred from any recovery from the governmental agency! Further, if the defect is of a county road under the jurisdiction of a county road commission, the notice must be provided within 60 days of the date of the injury or the injured person is barred from making a claim! Many times, especially in cases of severe injury, an injured person may not be physically capable or may not have it as a priority to contact an attorney within the first 120 days, let alone 60 days, after an accident. Likewise, when the injured motorcyclist is killed due to a highway defect, the family may not contact an attorney within the first 120 days, let alone 60 days, after the accident. The law does not afford any sympathy in these situations. If a notice was not provided within the applicable timeframe, the claim is barred. Period. Therefore, it is vital to contact an attorney immediately after an injury due to a highway defect. Not only can an attorney assist you with getting a notice in within the applicable timeframe, but the attorney can draft a proper notice with you. The law requires very specific information to be included in the notice and courts have been increasingly critical on inspecting notices to make sure the required information is included. Also, depending on the circumstances, the notice may also need to be provided to other judicial or governmental agencies in addition to that responsible for the defect itself. Given the specific information that is required by law to be in the notice, it can take some time for an attorney to gather said information to properly draft a notice that will pass judicial muster. So, contact an attorney as early as possible as opposed to waiting until days before the timeframe runs, thinking that will be enough time. If you are involved in an accident due to a highway defect, get an attorney involved early so your otherwise valid claim is not barred by this incredibly harsh technicality! As always, if anyone has any questions or if I can be of legal assistance to you or anyone you know dealing with this issue or who has been injured in a motorcycle accident, please don’t hesitate to contact me as I deal with these types of claims on a daily basis on behalf of injured motorcyclists statewide. Further, if you would like to have me come out to your Region to speak or give a presentation on the legal rights of an injured motorcyclist or on any specific topic that your region may be curious about, please don’t hesitate to give me a call at (248-569-4646) or shoot me an e-mail at Dondi@buckfirelaw.com. I give presentations to Regions state-wide and there is never a charge associated with having me out. I enjoy having the opportunity to come out and meet motorcycle enthusiasts from all parts of our State!
As you may be aware, HB 5013 was recently introduced which proposes various changes to Michigan’s No Fault system. If you could put me on the agenda to discuss this at our meeting coming up I would appreciate it.
While there are a number of bad items in the bill, there is one that stands out as incredibly unfavorable to motorcyclists that I would suggest ABATE take a position in strong opposition to. The sections of the bill at issue are as follows
IF THE INSURED PERSON NAMED IN THE POLICY SELECTS A COVERAGE LIMIT UNDER SUBSECTION (2)(A) OR (B), THE COVERAGE LIMIT UNDER SUBSECTION (2)(A) OR (B) APPLIES TO PERSONAL PROTECTION INSURANCE BENEFITS PAYABLE UNDER THE POLICY TO THE INSURED PERSON, THE INSURED PERSON'S SPOUSE, A RELATIVE OF EITHER DOMICILED IN THE SAME HOUSEHOLD, AND ANY OTHER PERSON WITH A RIGHT TO CLAIM PERSONAL PROTECTION INSURANCE BENEFITS UNDER THE POLICY.
The insurer of the owner or registrant of the motor vehicle involved in the accident, SUBJECT TO THE APPLICABLE COVERAGE LEVEL FOR PERSONAL PROTECTION INSURANCE BENEFITS UNDER SECTION 3109A(2).
The insurer of the operator of the motor vehicle involved in the accident, SUBJECT TO THE APPLICABLE COVERAGE LEVEL FOR PERSONAL PROTECTION INSURANCE BENEFITS UNDER SECTION 3109A(2).
Currently, under our no fault law, if a motorcyclist in involved in an accident with a motor vehicle, the motorcyclist is entitled to get his/her medical expenses, wage loss, attendant care, household chores and mileage paid by the insurer of the owner or operator of the motor vehicle involved in the accident. As our law currently stands, medical expenses and attendant care are unlimited and wage loss and household chores are payable for 3 years.
In the proposed bill, insurance companies will be allowed to offer their insureds a choice of capping benefits at $250,000.00, $500,000.00 or opting to keep unlimited medical and attendant care and wage loss and household chores for 3 years as the law currently allows. Herein lies the great danger to motorcyclists. Under the proposed bill, if a motorcyclist is hit by a motor vehicle, the motorcyclist will be subject to cap that the owner/operator of the motor vehicle has chosen for themselves. IE, if the owner/operator of the motor vehicle chose to cap benefits at $250,000.00 on their policy then that the injured motorcyclist is bound by that cap too, even though the motorcyclist did not choose this cap and even though the motorcyclist may have more than $250,000.00 in medical bills! . This is a hammer to motorcyclists, and unfairly allows an insurance company to cap a motorcyclists benefits even though the motorcyclist had no say whatsoever in choosing the cap!
I have highlighted and underlined in red above the language that must be removed from this bill regarding this issue.
I will go over this in more detail at the upcoming meeting, but strongly suggest that ABATE actively oppose this bill, especially the portion I discussed in this e-mail. This ramification is not evident from a plain reading of the bill. It’s found in the details and through references to other portions of the bill. Given the nuances of Michigan’s No Fault law, I believe there is a better than not chance that a legislator not familiar with no fault law will not pick up on or understand the ramification. As always, I have no problem in assisting the Legislative committee in doing what I can to meet with legislators to discuss this issue. Just let me know.
Very Truly Yours,
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