Supreme Court to Address Interplay (If Any) Between the No-Fault Act and the Governmental Tort Liability Act

Last Friday, September 19, 2014, I participated in a panel discussion at the Negligence Law Section breakout at the state bar conference in Grand Rapids to discuss the Michigan Supreme Court’s upcoming (October 8) hearing of oral arguments in the calendar cases of Hunter v. Sisco, et al, and Hannay v. MDOT, the latter in which I submitted an amicus curiae brief for Michigan Townships Association, and the counties of Macomb, Oakland and Wayne (99705.sc.amicus.curiae.br).

Here is the two-paged handout distributed at the session. (Hunter-Hannay Venn Diagram Final.9.17.2014.1226 and Hunter Hannay page 2).

Based on the outcome of that event, there is still much debate about the result in Hunter (no noneconomic damages can be awarded against the government under the motor vehicle exception to governmental immunity, MCL 691.1405, even though such damages are ordinarily available against “civilian” defendants under Michigan’s Automobile Insurance “No-Fault” Act, MCL 500.3135).

Of course, Hannay came to the opposite conclusion, only with respect to “excess” economic (wage loss) and future earning potential, which is why the cases have been consolidated.

Some issues raised at the discussion concern how to quantify or identify “bodily injury” damages.

I believe this would be medical expenses related to the physical injury, only.  However, such “damages”, and liability therefor, are ordinarily borne by the first-party, no-fault carrier, not the third-party tortfeasor under MCL 500.3135.

Thus, how can any liability be imposed against the government when you mesh the outcome of applying the GTLA and the No-Fault Act to motor vehicle accidents in which the government’s negligent operation of a motor vehicle causes injury.  See the Venn Diagram I created (the overlap, if any, is the real sticking point and where the case law and/or the legislation will have to be reconciled, eventually).

One suggestion I have made is that perhaps the first-party, no-fault carrier can bring a subrogation action against the government if the PIP carrier can prove negligence and injury, just as a PIP carrier might seek subrogation under MCL 500.3109 from another carrier that is otherwise liable according to the law.  In my work on worker’s compensation cases, we see this a lot.  The no-fault carrier will seek to implicate the worker’s compensation carrier claiming the injuries incurred in an auto accident arose out of and in the course of employment, and thus, are the primary responsibility of the worker’s compensation carrier. Under the statute, the no-fault carrier steps into the shoes of the plaintiff seeking recovery of the benefits, and thus, the no-fault carrier would have to prove negligence and liability on the part of the government under the motor vehicle exception.  I think it could be argued MCL 500.3109 would work the same way vis-à-vis the government.  Although, this is just a theory.  Hunter / Hannay are not likely to address this latent issue.

Another issue that arose was the indication that even before the 1965 GTLA accidents caused by government owned/operated motor vehicles allowed for recovery of damages that were similar, if not identical in nature to noneconomic damages, i.e., pain and suffering, mental anguish, etc.

Why is the term “bodily injury” in the GTLA now restricted only to physical injury?  My answer would be the strict construction of statutes waiving the government’s immunity forbid court’s from expanding the meaning of terms.  Although, the counter to that is that the legislature adopted the term in the motor-vehicle exception with the “common law” definition allowing for such expanded damages in the first place.  This would be a good argument if not for the fact that we are discussing governmental immunity from liability and suit.  The assumption is only the legislature can waive the government’s immunity, and therefore, if the liability is to be “expanded” it has to come in express language.  The courts can restrict or limit the meaning of the terms in the GTLA exceptions, but they cannot expand the meaning.  This is well-established in Michigan case law.

Another theory I raised in my amicus brief for MTA / Oakland, Wayne, and Macomb counties was whether the government can ever be liable for first-party PIP benefits under the no-fault act when the motor vehicle exception requires a demonstration of “fault” on the part of the government.

This is also not an issue that will be addressed by Hunter / Hannay, but given the jurisdictional nature of government immunity, and the fact the government is immune from liability unless within the explicit legislative exceptions of the GTLA, it is a question that will have to be answered eventually (even thought the government has presumed it is subject to the No-Fault Act for the more than 40 years of the latter’s existence, and of course, continues to participate in the system as both a No-Fault “PIP” carrier (either self-insured, or through an auto insurance carrier (or both))), and as a presumptive third-party tortfeasor.

The question was also raised why, if Hannay came out as a published opinion before Hunter, which it did, why Hunter did not follow Hannay under the “first out” rule.  Although, that matters little if the Supreme Court has consolidated the cases to address the issues.

Finally, as I noted in my presentation, Hunter actually retained the “threshold injury / serious impairment” analysis even though it rules there are no noneconomic damages available under the No-Fault Act.

What does this mean?  Why would the threshold injury analysis even matter if the government is only responsible for “bodily injury”?  Does this mean that the government is only responsible for serious impairment or threshold “bodily injury” and nothing below, or less than that?

I doubt this is what the COA panel in Hunter meant, but it was a curious statement that they made at the end of the opinion.  Perhaps they were trying to reconcile their opinion with the Hardy v. Oakland County case in which the Supreme Court held that a plaintiff suing under the motor vehicle exception, MCL 691.1405, still had to prove threshold injuries under MCL 500.3135 of the No-Fault Act.

It will be interesting to see oral argument in the case on October 8.

Carson J. Tucker has participated in and argued some of the most significant governmental immunity cases in Michigan during the past decade.

Mr. Tucker presented direct representation to the governmental defendants and prosecuted the entire appeal, including all appellate briefings and oral arguments before the Court of Appeals and Supreme Court in the following cases:

  • Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
  • Atkins v. SMART, 492 Mich. 707 (August 20, 2012), application granted, and briefed and argued by Carson J. Tucker in the Supreme Court
  • Gentry v. Wayne County Deputy Sheriff Daniel Carmona, unpublished opinion of hte Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580), briefed and argued by Carson J. Tucker in the Court of Appeals
  • Hamed v. Wayne County, 490 Mich. 1 (July 29, 2011), briefed and argued by Carson J. Tucker in the Court of Appeals and Supreme Court
  • Odom v. Wayne County, 482 Mich. 459 (December 30, 2008), application for leave to appeal granted, and briefed and argued by Carson J. Tucker in the Supreme Court

In addition, Mr. Tucker has provided direct support to governmental entities in filing “friend of the court”, i.e., amicus curiae briefs in support of the governmental defendants in the following cases:

  • Yono v. MDOT, ___ Mich. App. ___ (2014), after remand order, amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
  • State Farm v. MMRMA, amicus curiae in Supreme Court for Oakland County, Wayne County, Macomb County, and Wayne County in support of MMRMA’s application, by Carson J. Tucker
  • Hannay v MDOT, ___ Mich ___ (2014), application granted and consolidated with Hunter v. Sisco, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
  • Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae in Michigan Supreme Court for Michigan Municipal League, et al., by Carson J. Tucker

Effective appellate representation demands different skills than those required by litigation attorneys.  Appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying errors for appeal, and developing a strategy to raise those issues that will be addressed by appellate courts, appellate attorneys are capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.

We are also experienced at navigating through all appellate courts to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.

Below are some of the recent significant cases prosecuted by the Appeals and Legal Research Group.

  • Omian v. Chrysler, LLC, Michigan Court of Appeals Docket No. 310743, remanded by Supreme Court as on leave granted, Supreme Court No. 146908, oral argument presented July 16, 2014 by Carson J. Tucker for Chrsyler, LLC
  • Moore v. Nolff’s Construction and Travelers Ins., Michigan Court of Appeals Docket No. 313478 and 313440 (consolidated), application and cross-application granted and oral argument in Court of Appeals presented July 2014 by Carson J. Tucker for Nolff’s Construction and Travelers Insurance
  • Arbuckle v. GM, Michigan Court of Appeals Docket No. 310611, oral argument in Court of Appeals presented May 2014 by Carson J. Tucker for GM
  • Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
  • Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
  • Omian v. Chrysler Group, LLC, 495 Mich. 859 (2013), application filed by Carson J. Tucker, Supreme Court remand to Court of Appeals on leave granted, oral argument to be held in July 2014
  • Ghanam v. John Does, 303 Mich. App. 522 (2013), application to appeal filed in Supreme Court by Carson J. Tucker
  • State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
  • Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
  • Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
  • Huddleston v. Trinity Health, et al., 495 Mich. 976 (2014), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
  • Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
  • Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
  • Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
  • Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
  • McMurtrie v Eaton Corp, 490 Mich 976 (2011)
  • Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
  • Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
  • Stokes v Chrysler, 481 Mich 266 (2008)
  • Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
  • Rakestraw v Gen Dynamics, 469 Mich 220 (2003)

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