Lansing Personal Injury Lawyer - Supreme Court

Michigan Supreme Court’s New Policy Enhances Credibility, Avoids Conflicts

David Mittleman — Tue, 17 Nov 2009 15:15:04 GMT

Earlier this month, Michigan’s Supreme Court adopted a fair and reasonable new policy to govern the disqualification of justices in the event of a potential conflict of interest. By a 4-3 vote, Michigan’s Gang of Justice approved rules that will, in some cases, take the decision out of the potentially conflicted justice’s hands.

Judicial disqualification, also known as recusal, is an incredibly important component of the impartiality and integrity of the legal system. Under the old, unwritten tradition, each individual justice essentially had the final say on whether or not to step aside on a given case due to a conflict of interest. While most judges and justices do the right thing and step aside when they face a conflict of interest, the few who do not can seriously undermine the public’s trust.

A stunning and well–known example can be found in West Virginia, where a state Supreme Court justice was elected to the state’s highest court with the help of $3 million donated by the chairman of Massey Energy Company. That justice later decided in favor of Massey in two key decisions, despite calls for his disqualification.

The new rules adopted by the Michigan Supreme Court will help avoid any actual or perceived injustice. Now, a party whose request for disqualification is refused by an individual justice can appeal to the entire seven-member Court for a ruling.

An excellent editorial by the Lansing State Journal underscores the importance of the change in policy, especially in this era of big-money judicial campaigns. The four justices who voted in favor of the measure - Justices Hathaway, Cavanagh, Weaver, and Chief Justice Kelly - clearly understand the importance of fairness and impartiality. The minority, on the other hand, would prefer the old way of doing things.

Justice Robert Young, who in the past almost always voted with the “Sleeping Judge” Cliff Taylor, was among the dissenters. Last year the people of Michigan voted Taylor off the bench. In 2010, voters will get to have their say about Justice Young.

Originally posted at InjuryBoard by David Mittleman

Georgia Supreme Court Considers Whether "Tort Reform" Equals Crooked Justice

David Mittleman — Wed, 16 Sep 2009 16:04:16 GMT

The Georgia Supreme Court heard oral arguments on a case that could invalidate the insurance industry's attempts to provide immunity to the most negligent doctors and deny recovery to the most devastatingly injured patients.

When 75-year-old Betty Nestlehutt's skin on her face started to die after her plastic surgeon cut off blood flow to her face, the gaping wounds from her temple to her chin paled in comparison to the permanent scarring endured in her heart. Surely, a jury would do their very best to fully compensate her for her pain and suffering.

A Fulton County jury did, in fact, award her a substantial $1.15 Million verdict for non-economic damages (including $900,000 for her own pain and suffering) along with $115,000 for past and future medical expenses. This was precisely the type of result that juries spend hours deliberating, missing days of work, hearing evidence, determining the facts of the case. Little did they know that their decision would be undercut by Georgia's "Tort Reform" law.

Under Georgia's law, which mirrors the laws in many other states and which Republicans in Congress are all too ready to impose nationally, the role of the jury is unilaterally undermined because no matter what their findings are for noneconomic pain and suffering, Georgia had a maximum damages cap of $350,000 ($550,000 less than what this jury thought Ms. Nestlehutt merited).

Courts all over the country are handcuffed by the laws, which often conflict with Constitutional protections for the right to jury trials. Lawyers are challenging a similar law in Indiana where the cap is higher than in Georgia.

Ultimately, these "tort reform" caps are really nothing more than Crooked Justice for insurance companies and negligent doctors. As the lawyers for Ms. Nestlehutt argued, the most injured patients are blocked from gaining their full compensation, and the most egregiously negligent doctors will never have to full pay for their negligence. In a country that values the right to a trial by jury, we should not let insurance lobbyists devalue that time honored and cherished tradition.

Originally posted at InjuryBoard by David Mittleman

Insurance Companies, Not the Supreme Court, to Blame for High Rates

David Mittleman — Tue, 15 Sep 2009 13:07:00 GMT

It’s a common refrain we hear over and over in Michigan: "My auto insurance rates are too high." Almost everyone agrees that consumers should be paying less for auto insurance, but there has been a great deal of misinformation about who is responsible for the high rates. A recent Michigan Supreme Court decision has added fuel to the fire.

The case - actually two separate cases that were consolidated due to the similar legal issues involved - deals with two individuals who suffered horrific injuries in automobile accidents. As a result of their injuries, these accident victims required around-the-clock nursing care. Anyone who reads the factual description of the injuries would concede that they are "catastrophic" in the ordinary sense of the word. As it turns out, the injuries were "catastrophic" in the legal sense of the word, as well.

In Michigan, an accident victim's own no-fault personal injury protection carrier is responsible for paying medical expenses, wage loss, and replacement services related to an auto accident. In the event these expenses exceed a certain amount (currently about $460,000) the Michigan Catastrophic Claims Association (MCCA) steps in to reimburse insurance companies for the balance. The MCCA was created by the legislature in 1978 to help defray the costs borne by any one individual insurance company.

The MCCA challenged the reasonableness of the care provided to the two injured accident victims. It claimed that it should not have to pay the entire amount agreed to by the no-fault insurance carrier. Fastidiously applying Michigan law, the Michigan Supreme Court ruled that the MCCA must pay the amount agreed upon by the no-fault insurer and the accident victims.

Insurance companies have emphatically decried this decision. They now claim that they have no choice but to increase the rates charged to all Michigan policy holders. An editorial in a major Michigan newspaper recently echoed these sentiments, essentially blaming the Supreme Court for the insurance rate increase.

Fortunately, the insurance companies’ attempts to pull the wool over consumers’ eyes has not been entirely successful. When put to the test of common sense, the insurer’s argument begins to unravel. The recent $20 rate increase is far in excess of what would be necessary to cover the claims at issue in the recently-decided case. Given that the increase was announced before the Court released its decision, it is hard to believe that the increase was the result of the decision. Furthermore, Michigan law permits insurance companies to review settlements for reasonableness before they are finalized. Once they have been finalized, however, insurers should be bound to the agreement, just as consumers are.

Insurance exists to spread the risk of loss, so one individual accident victim is not left with a crushing, unpayable debt. Simply put, insurance companies and the MCCA must be held accountable to the people they are meant to serve. It alone sets the rate it charges, and it should have to explain in detail why it charges the rate it does. Then will it be obvious that the insurance companies are responsible for higher rates, not the Justices who apply the law as written.

Originally posted at InjuryBoard by David Mittleman

Michigan Supreme Court To Review Auto Injury Law

David Mittleman — Sun, 23 Aug 2009 07:47:00 GMT

In a 4-3 order released on Thursday, the Michigan Supreme Court decided to reconsider a case that could make it easier for victims of automobile accidents to recover fair compensation for their injuries. The Court will be taking a second look at McCormick v. General Motors, which has been slowly working its way through the legal system since late 2006.

In 1973, Michigan’s "no fault" insurance legislation took effect. The law was meant to make it easier for injured people to receive certain insurance benefits from their own auto insurance carrier without the need and expense of litigation. Regardless of fault, accident victims would receive lifetime medical benefits for injuries resulting from the accident as well as up to three years’ worth of wage loss and replacement services related to the accident.

In exchange, it would be slightly more difficult to recover "non-economic" damages, such as those for pain and suffering. In order to recover for those injuries against the at-fault driver, an accident victim would have to show that he or she suffered a "threshold" injury.

In the decades that followed the passage of the No Fault Act, there was a great deal of dispute in the courts about what type of injuries met the threshold. Then, in 2004, the Michigan Supreme Court decided Kreiner v. Fischer, a case that substantially raised the bar on what sorts of injuries and limitations plaintiffs would have to prove in order to recover non-economic damages. In the ensuing five years, the threshold has been placed further and further out of reach of most victims, thus denying them adequate compensation for their injuries.

The Supreme Court’s recent order for reconsideration of McCormick may be an indication that this is about to change. Given the current composition of the Court, there is some hope that individual rights will again receive protection under the law while insurance companies must bear some risk of loss, as they are meant to.

Originally posted at InjuryBoard by David Mittleman

Gang of Justice at the Michigan Supreme Court works for common good, not corporate greed

David Mittleman — Sat, 22 Aug 2009 10:18:00 GMT

The usual suspects are lining up to take shots at the new Gang of Justice on the Michigan Supreme Court. Don't buy the hype. The latest "outrage" seems to be the prospect that Michigan insurance premiums might go up by $20 per year and the blame is wrongfully being directed at Gang of Justice, consisting of Justices Weaver, Kelly, Cavanagh, and Hathaway.

This all stems from the Supreme Court decision in United States Fidelity Guarantee & Insurance Co v Michigan Catastrophic Claims Ass'n, where the Supreme Court ordered the Michigan Catastrophic Claims Association to fully reimburse insurance companies for all medical payments above $460,000. Under Michigan law, your insurance carrier is required to pay a lifetime benefit of all medical services that are reasonable and necessary for your recovery, care, or rehabilitation - but ask that to the thousands of people who often find their no-fault benefits terminated after a five minute "appointment" with a doctor who will gladly write a report to your insurer that you're good-to-go. If, however, you are one of the few people who suffer a truly catastrophic injury such that your medical bills go beyond $460,000, insurance companies in Michigan get reimbursed by the MCCA.

Many of these catastrophic claims usually involve settlements on services like attendant care, where a family member or other person actually takes on the "job" of caring for someone who is now paralyzed, severely injured, or otherwise incapable of doing the basics of life. These attendant care services are part of the "medical services" that a no-fault insurer must pay so long as they are related to the accident and necessary for your care. Because of that, up to the first $460,000 or benefits paid, they are without a doubt put in a position to negotiate a fair and reasonable wage (because until they cross that $460,000 threshold they are solely responsible). The MCCA wanted to be able to reduce the amount they paid back to insurance companies by saying that the insurance companies didn't try hard enough to keep costs low. The MCCA gets its money by charging all of the insurance companies operating in Michigan a fee - so in essence, the insurance companies themselves all share in paying the catastrophic claims of injured Michigan motorists and passengers. Naturally, insurance companies pass down that bill to us, their policyholders. Shockingly, this increase was decided on even before the decision was released by the Michigan Supreme Court! Makes you wonder just how hard the MCCA is working with no-fault insurers to negotiate reasonable benefits.

The next time you pick up your local paper and read the propoganda, think it through. Just what would have led to higher insurance rates? Imagine a scenario where insurance companies didn't get fully reimbursed by the MCCA, so that the MCCA didn't pass down a $20 yearly increase per policy? Then we'd have the insurance companies themselves saying "we're out of millions! Time to raise rates because we're not getting fairly reimbursed?" The truth is that conservatives need to find fault with any and all decisions made by the Gang of Justice, because legal change is coming that will undo the disasterous legacy of Gov. Engler's Gang of Four.

So while folks like Collen Pero will want to make this about Justice Hathaway and her supporters (nevermind the fact that he was a campaign manager for ex-Justice Cliff Taylor who gladly accepted contributions totalling nearly $100,000 from DaimlerChrysler from 1998 to 2000 before overturning a major jury verdict against DaimlerChrysler of $21 Million in 2002), have a conversation with your fellow Michigan residents, talk with them about their fears, and help them realize that what the Supreme Court is finally doing is putting their interests ahead of corporate greed. When Diane Hathaway beat Cliff Taylor despite Taylor's supporters giving him a bank account of $1.4 Million in campaign contributions, Michigan residents said loud and clear that they were fed up with the Supreme Court's staunch support of corporate interests over the public good. That's what this noise is all about - hot air from corporate goons staring at the prospect of knowing what life is like for real Americans.

Originally posted at InjuryBoard by David Mittleman

California Supreme Court Allows Disabled Law Student to Take Bar Exam

David Mittleman — Sun, 02 Aug 2009 13:24:43 GMT

The California State Bar initially refused a disabled law student to take the bar exam, but thankfully, the State Supreme Court sent last-minute approval for her to take the test last Monday, July 27.

Sara Granda, who graduated from the University of California, Davis last May, and who had been studying for the bar exam ever since, had arranged for accommodations for her handicap in advance. However, the California State Bar claimed there were “registration problems”—that she had not properly registered by the June 15 deadline—and that she would not be admitted to take the bar exam as planned.

The state had agreed to pay the approximately $600 fee for Ms. Granda, as part of her disability support, which she had confirmed with the state bar. However, the online registration requires the fee to be paid with a credit card. Ms. Granda lives solely on her disability benefits and has no credit card, so the application was never processed—even though she had discussed the complex negotiations for the fee with the state bar in advance.

The case caught the attention of The Sacramento Bee and then also received notice from the Governor of California, Arnold Schwarzenegger, who sent the letter to the State Supreme Court. The court’s order was made without explanation, but Gail Murphy, a bar association official, said applicants whose fees were paid by a state agency normally asked for the registration forms on paper and that the law governing the exam prohibited bar examiners to accept applications past the deadline.

Granda stated that she is tired of being on public assistance, and looks forward to beginning her career as an attorney. She was paralyzed from the neck down after an automobile accident in July 1997, and breathes with the help of a ventilator. She earned her law degree with the help of aides.

Originally posted at InjuryBoard by David Mittleman

Michigan Supreme Court rightfully decides that domestic labor has economic value

David Mittleman — Fri, 10 Jul 2009 16:21:32 GMT

In a 4-3 decision, the new Gang of Justice at the Michigan Supreme Court stood up to conservative Justice Robert Young and ruled that backbreaking domestic work is, in fact, work.

Michigan Supreme Court Justice Robert Young is showing us once again how little he knows about the lives of average Americans. His dissenting opinion in Thorn v Mercy Memorial Hospital shows that he thinks the day-to-day efforts of a mother and wife do not have an economic value. Not surprisingly, any mother or wife reading this right now might beg to differ. As anyone who has to pick up after kids, change diapers, fold laundry, prepare three meals, make the bed, walk the dogs, buy the groceries, vacuum the carpet, wipe the windows, clean out the fridge, mop the floors, sanitize the toilet, etc., already knows: it’s a J - O - B. Even the folks at Salary.com agreed, saying a stay-at-home mom, in 2006, would earn $134,121 a year if they were actually paid for all the work they do (a "working mom" would still rake in $85,876 a year, thanks to the Second Shift effect).

Young’s dissent really comes down to one thing. When it comes to the relatives of a deceased or injured loved one up against the corporation who hired the doctors that killed or injured the loved one, Young thinks average Americans should get no assistance from the corporation or doctor to replace all the tasks that person used to do before the malpractice. He’d like to lump it together with the idea that all that back-breaking work is just a part of the "companionship" of a spouse or relative.

Are we really back in the 1950s, that we’re discounting the actual labor people do in their homes? Is "women’s work" really a value-less activity that wives and mothers do because it’s their lot in life? Of course not, but Justice Robert Young has no other option to argue that because we all know who he really cares about - insurance companies and corporations.

Thanks to the wisdom and modern views of the majority members of the Michigan Supreme Court, if your spouse of relative is injured as a result of someone’s medical negligence, there won’t be a "cap" on how much you can recover for the loss of their labor value when it comes to all the things they did to be a "super-mom".

Originally posted at InjuryBoard by David Mittleman

Michigan Supreme Court permits lawsuit against 911 dispatcher to continue

David Mittleman — Thu, 09 Jul 2009 08:45:35 GMT

The Michigan Supreme Court voted 4-3 today to deny the appeal of a Detroit 911 dispatcher who was accused of intentional infliction of emotional distress after she questioned a gunshot victim that called for emergency services. The operator apparently asked the injured and distraught woman, Lorraine Hayes, if she was a “mental patient” when Hayes called 911 twice on January 12, 2006 saying she had been shot in the head. Lorraine Hayes’ lawsuit will now go on to trial.

The Court of Appeals stated that the operator, Kimberly Langford, had berated and insulted Hayes during the emergency call. She did, however, dispatch police to the address eventually.

Unfortunately, the police could not find the location and EMS only reached Hayes after she called her son in Minnesota, who called Detroit police for her.

Originally posted at InjuryBoard by David Mittleman

Supreme Court rules in favor of white firefighters in Employment Discrimination Case

David Mittleman — Mon, 29 Jun 2009 15:28:40 GMT

The Supreme Court ruled 5-4 that white firefighters in New Haven, Connecticut were unfairly denied promotions because of their race, reversing a decision that high court nominee, Sonia Sotomayor, endorsed during her role as an appeals court judge.

In Ricci v. DeStefano, twenty white firefighters accused New Haven of employment discrimination when the city scrapped the results of an exam administered for promotions. Frank Ricci was one of those twenty men who had passed the test, and had also spent money on study aids because of his dyslexia. The city alleged that they dismissed the results of the exam to avoid a lawsuit from minorities because no African-Americans and only two Hispanic firefighters were likely to receive promotions based on the results.

Justice Kennedy wrote the majority's opinion and was joined by Justice Roberts, Scalia, Thomas and Alito. Justice Ginsburg read her dissenting opinion from the bench, questioning the fairness of the test. She was joined in dissent by Justices Breyer, Stevens and Souter. This ruling will most certainly be a topic at Sotomayor’s confirmation hearing next month. While reversing the decision of Sonia Sotomayor and her 2nd Circuit Colleagues, Justice Kennedy's opinion admitted that this was "a difficult inquiry" and that the Court's holding today helped to clarify how Title VII operates in discrimination cases.

Originally posted at InjuryBoard by David Mittleman

Supreme Court Rules in Favor of Teenage Student in School Strip-Search Case

David Mittleman — Sun, 28 Jun 2009 12:38:50 GMT

June 25—The Supreme Court voted 8-1 that a teenage student’s Fourth Amendment rights were violated by the Safford Middle School when she was strip-searched in an attempt to locate prescription-strength ibuprofen. The school district bans prescription and over-the-counter drugs, and school officials suspected Savana Redding of harboring pills after a schoolmate implicated her.

To investigate the accusations, the vice principal ordered the girl, then thirteen, to his office, where he initially searched her backpack and found nothing. He then proceeded to take her to the nurses’ office, where the nurse told her to remove her pants and shirt and when they still found nothing, they ordered her to move her bra “to the side” and to stretch the elastic waistband of her underpants.

In the Court’s opinion, the school’s search of the girl’s backpack and outer clothing was permissible and consistent with their 20-year precedent that a school may perform searches based on reasonable suspicion. However, they stated that the school officials went “too far” when they asked her to remove her underwear because it was “excessively intrusive”. While the Court ruled that the school officials could not be held financially liable in a lawsuit for the search, the justices ruled that the school district itself may be held liable and sent the case back to the lower courts to complete litigation on that issue.

Justice Thomas was the sole dissenting vote on the question of the school board’s immunity, stating that he found the search legal and that the Court had previously given school officials “considerable leeway” under the Fourth Amendment in school settings. Justice David Souter, perhaps writing one of his final opinions as a Supreme Court Justice, wrote that the school district exceeded the Constitution’s limits because of the lack of “facts that pointed to Savana” being “any indication of danger to the students from the power of the drugs of their quantity” as well as the lack of “any reason to suppose that Savana was carrying pills in her underwear.”

Originally posted at InjuryBoard by David Mittleman