Court Rules Mental Health Commitment Constitutional – Case Dismissed

Attorney Kali Lester recently received a dismissal in Federal Court where the plaintiff alleged a local police department had an unconstitutional policy for mental health commitments. The policy permits officers to rely on statements from witnesses to evaluate an individual’s mental condition. The plaintiff argued that Michigan’s Mental Health Code requires officers to personally observe the individual exhibiting dangerous behavior before seizing the individual for the purpose of a mental health commitment.

Ms. Lester successfully argued that it is the United States Constitution, not the state legislature, that establishes constitutional standards for purposes of liability under 42 U.S.C. § 1983. The Court ruled that the proper standard requires only probable cause that the individual presents a danger to himself or others, and the probable cause determination is based on all facts known to the officers at the time – not just those personally observed by the officers. The department’s policy was found to be constitutional and the lawsuit, which included seven claims in total, was dismissed in full.

Blamer Prevails in First Party No-Fault Case

In 2014, Robert L. Blamer handled a first party no-fault case which on its surface was very easy, but made very difficult by fighting insurance companies. Mr. Blamer won both at the trial court level and the Court of Appeals level where the Court of Appeals awarded Mr. Blamer and CMDA substantial attorney fees because of the insurance companies’ failure to act reasonably and also awarded the Plaintiff all first party no-fault benefits to which she was entitled.

This case went to the Supreme Court, which would not set aside the Court of Appeals award of attorney fees and benefits.

Public and Private Employers Subject to 50 Employee Threshold Under the FMLA: Does Unconditional Language in Employee Manual Create a Jury Question?

Both private and public employers are subject to the Family Medical Leave Act (FMLA), which allows eligible employees to take up to 12 weeks of unpaid leave from their employment if they meet certain statutory requirements (employed for at least 12 months, and worked 1250 hours within the preceding 12 months). The FMLA defines a “covered employer” as being “any person engaged in commerce or in any industry or activity affecting commerce, who employs 50 or more employees for each working day during each of 20 or more calendar work weeks in the current or preceding calendar year.” The FMLA specifically includes public agencies within this definition.

The Federal Regulations have complicated the issue for public agencies, however. For example, 29 CFR 825.104(a) confirms the 50 employee threshold language for employers, but then adds: “Public agencies are covered employers without regard to the number of employees employed.” 29 CFR 825.108(d) then goes on to state, “All public agencies are covered by the FMLA regardless of the number of employees; they are not subject to the coverage threshold of 50 employees carried on the payroll each day for 20 or more weeks in a year.” An ambiguity is then created in the second half of 29 CFR 825.108(d) which states, “However, employees of public agencies must meet all of the requirements of eligibility, including the requirement that the employer (e.g. State) employ 50 employees at the work site or within 75 miles.”   So which is it? Are public agencies with less than 50 employees covered or not?

The Sixth Circuit recently cleared up this ambiguity in Tilley v Kalamazoo County Road Commission, 2015 WL 304190 (decided January 26, 2015). In Tilley, the Court of Appeals interpreted 29 CFR 825.108(d) as meaning that even though a public agency is considered to be a covered employer under the FMLA, the public employee himself is only eligible for FMLA leave if his employer, the public agency, meets the 50/75 employee threshold.

The Court of Appeals rejected Tilley’s argument that applying the FMLA 50/75-employee threshold would create “the oxymoron that a public employer with less than 50 employees is covered under the FMLA, but none of its employees would ever be eligible to take a leave under the FMLA.” The Court reasoned that it is an “entirely sensible conclusion that public employees, like their private counterparts,” are only eligible under the FMLA if their employers meet the 50/75 employee threshold. In other words, the Court of Appeals has addressed the ambiguity directly, and has resolved it in favor of treating both private and public employees equally. The Court also clarified that the determination of the 50/75 threshold is as of the date of the employee’s application under the FMLA.

This holding should have resulted in an immediate dismissal of Tilley’s claims against the Kalamazoo Road Commission. However, the Court held that a jury must decide whether the Commission should be estopped from asserting the 50/75 threshold, because of the following language in the Commission’s employee manual:

“Employees covered under the Family and Medical Leave Act are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.”

The Court found this to be a material misrepresentation upon which Tilley could have reasonably relied. The Court found that the Commission should have used qualifying language to inform employees of their rights under the FMLA, such as that they “could be eligible for FMLA benefits “if, among other things, there are at least 50 employees within 75 miles [at the time of the FMLA application].” (Emphasis added). Because the Commission did not use such qualifying language, Tilley’s case against it had to be presented to a jury for determination, instead of being summarily dismissed based on the 50/75 employee threshold.

Linda Davis Friedland is an attorney in our Livonia office where she concentrates her practice on commercial litigation, employment and labor law, corporate and business law, estate planning, utilities Law and municipal Law. She may be reached at (734) 261-2400 or lfriedland@cmda-law.com.

Testani Named Partner of the Firm

We are pleased to announce that Carla Testani has been named a general partner of the Firm.

Ms. Testani joined CMDA in 2011 and works out of the Firm’s Livonia office. She focuses her practice on family law issues, including divorce, annulment, separate maintenance, adoption, paternity, child custody, parenting time, child support, spousal support, pre-nuptial agreements, non-marital agreements, property division, qualified domestic relations orders, and domestic personal protection orders. Additionally, she serves as a neutral mediator collaborative practitioner.

Chris Schultz, managing partner of the Firm, explains, “Carla has displayed exceptional leadership qualities, has an outstanding reputation, and tirelessly promotes the best interests of the Firm.”

The Michigan No-Fault Law: An Explanation of Your Rights When an Accident Occurs

Michigan’s No-Fault Law was designed to take care of certain financial needs of an injured person or injury party when the injury occurs during the ownership, operation, or maintenance of an automobile accident regardless of who caused the injury. These financial losses, more commonly referred to as economic losses, can arise not only in the traditional sense when one is driving or riding in a motor vehicle, but also when you are a pedestrian involved in a motor vehicle accident, when you are entering or exiting a vehicle, filling up a vehicle with gas, changing the oil, or under many other circumstances. There is a system of priorities set forth in the law to determine which insurance company is responsible for these benefits so it is advisable to consult with an attorney to determine if the No-Fault Act applies, and who is responsible for damages that occur. Regardless if you are actually in a car or truck, on a motorcycle or bicycle, or simply a pedestrian, these benefits are available to you.

The only exception is if you were operating your vehicle and did not have insurance when an accident occurred. The law requires you to have insurance on any vehicle that is being operated on the roadway. If you do not have insurance when an accident occurred, you may not have any rights of recovery under the No-Fault Law.

The automatic economic benefits that are available, also known as no-fault benefits or PIP benefits, consist of four basic categories, three of which apply to bodily injury and one to property damage. Below is a brief description of these benefits.

  1. Medical and Rehab Expenses

All of an injured party’s medical expenses and rehabilitation expenses are available for reimbursement under the No-Fault Act as long as they are reasonable and related to a motor vehicle accident. The law provides that benefits are payable for all allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery or rehabilitation. This does not only include doctor and hospital charges, but allowable expenses can also include transportation costs in an effort to obtain medical treatment. When an injured person is being cared for at home, the no-fault carrier can be responsible for those charges as well, with certain limitations.

“Reasonably necessary products” has been defined to include such things as prescription and non-prescription drugs, pain medication, orthopedic devices, prosthetic devices, beds, even van modifications. An insurance company may be responsible for going into a home and making modifications if one has suffered severe injury that does not allow for mobility in a house.

“Services” may include medical doctors and hospital services, chiropractic treatment, attendant care services often performed by spouses or other relatives who are providing care in the household necessary for the injury person’s care, recovery, or rehabilitation. Services also include medical tests reasonably necessary to insure a proper diagnosis, the costs of medical reports if required by the insurance carrier, practical nursing services which could include home aid care, guardian and/or conservator fees. Keep in mind, the no-fault insurer is not relieved paying no-fault benefits for products, services, and accommodations when the injured person is a child or has a spouse merely because the parent or spouse is legally obligated for the maintenance.

“Recovery” for rehabilitation has been defined to include not just physical and occupational rehabilitation, but vocational rehabilitation as well, and may include apartment rental costs if one has to leave their home to seek the necessary medical treatment.

  1. Lost Income

Work loss benefits are payable to an injured person if the injury is a result of an accident, and the injured person has a loss of income from work that the person would have performed during the first three years after the date of the accident.

Work loss is not based upon future earning capacity, but rather actual lost earnings. This means that if an injured person can show he or she would have been employed at a certain rate, then work loss benefits are payable at that rate. An injured person may also be eligible for work loss benefits if they are temporarily unemployed at the time the accident occurred. Additional benefits are available if an injured person is required to work fewer hours or lighter duty for less pay. Under those circumstances, the no-fault carrier must pay a wage differential.

The rate of reimbursement is 85% of the gross up to a certain maximum per month, which varies from year to year. There is a 15% reduction because work loss benefits are not taxable income. Benefits may be available whether you miss one hour, one day, or one year of work because of an accident related injury, but cannot exceed three years.

  1. Replacement or Household Services

An injured person is entitled to expenses not exceeding $20/per day that are reasonably incurred in obtaining ordinary necessary services in lieu of those that would have normally been performed for the benefit of an injured person or their dependents. What this means is if you had to hire someone to do things you normally would have done yourself, you can seek reimbursement from the insurance carrier but only up to $20/per day. This must be supported by a doctor and itemization is necessary for the insurance company in establishing what services were being performed, who performed the services, when they were performed, how long they took.

  1. Survivor and Funeral Expenses

The No-Fault Act has a small funeral expense allotment if one is killed as a result of a motor vehicle accident. A survivor such as a spouse or child can receive benefits consisting of loss of contributions of tangible things of economic value (not including services) if one is dependent on a deceased and would have received that support were it not for the accident. This potentially could include $20.00 per day replacement services for expenses reasonably incurred by the dependent in order to obtain services to replace those provided for by the decedent.

  1. Property Damage

The law allows one to recover from a negligent driver for damage done to a vehicle, but on a very limited basis. The No-Fault Mini-Tort Act allows for a recovery up to $1,000 or the extent of the deductible not waived by the insurance company, whichever is less.

Time Limitations. There are other detailed and complex issues that you may have to deal with when involved in an accident. Most important is the specific time limitations that must be adhered to or an injured party can forever lose their rights for recovery. No-fault benefits are payable within 30 days after an insurer receives reasonable proof of the loss sustained. However, the insurance carrier must be notified within one year of the date of the accident, and, once they are notified, the insurance carrier must be notified within one year after each expense is incurred or that expense will not be reimbursed. There are multiple one year back-rules that need to be explained by an experienced attorney to make sure your rights are protected.

Coordinated Coverages. There is also an issue of coordinated coverage when policy language specifies such coordination. This issue involves which insurance company is responsible: the auto carrier or the medical insurance company that is often provided through employers. If there is no coordination, there may be a chance for benefits to be paid directly to the injured person despite the fact that the traditional insurance company has paid benefits. However, these issues have become more and more complicated by such federal acts as the ERISA Plan Acts that can shift the first priority for payment in a coordinated policy from the medical insurance company to the car insurance company.

  1. Non-Economic Benefits/Pain and Suffering

There may be a right for an injured person to recover for non-economic loss, such as pain and suffering or economic loss that exceeds the available benefits under the No-Fault Act, such as wage losses that exceeded the no-fault carrier’s compensation because of the monthly maximums.

To recover for non-economic loss, an injured party must sustain a threshold injury of either death, permanent serious disfigurement, or a serious impairment of body function. Sometimes these injuries are readily apparent and sometimes they can be subtle and may rise to the threshold some months or even years after an accident. Therefore, it is important whenever you sustain any type of injury to consult an attorney to determine in more detail what your rights are under Michigan’s No-Fault law.

UNINSURED/UNDERINSURED BENEFITS

What happens if another driver is negligent and causes you serious injuries, but has no insurance on their vehicle or has a small policy limit for liability protection? If you have optimal coverage under your own policy, you may still have rights and a source from which to collect compensation.

If you are unsure of your current coverage, we strongly encourage you to contact your insurance agent to confirm you have optimal coverage. Obtaining optimal coverage is reasonable in cost, and most importantly, provides you with an extra level of protection.

Robert L. Blamer is a partner in our Livonia office and head of the Firm’s plaintiff’s practice group. He focuses his practice on helping injured people in many types of negligence actions, workers’ compensation claims, and Social Security disability claims. He may be reached at (734) 261-2400 or rblamer@cmda-law.com.  

Automobile Accident Report Form: Steps to Take if you are Involved in an Accident

If an accident occurs:

  • Try to remain calm and thoughtful. If you or anyone in your car is injured, stay in the car unless there is danger of fire or another accident.
  • Use your cell phone to get help from the police and medical personnel.
  • Avoid making statements about responsibility to other drivers, witnesses, the police or insurance representatives without talking to your own insurance representative. Assist the police with their official report. Confirm that you and passengers wore seat belts.
  • Michigan law requires motorists involved in minor car accidents to move their vehicles off of the main roadway, as failure to do so could cause a secondary accident.

In any accident, you should obtain the following:

  • Information about the accident: You may wish to take notes about how the accident occurred, such as the date, time and location of the accident, direction of travel of the vehicles involved in the accident, impact location of both cars, length of car skids, if applicable, and what the cars were doing at the time of the collision.  If there are any physical damages to either vehicle, take photographs of the damages.
  • Information about the other driver: Name, address, driver’s license number, insurance information, license plate number, and vehicle make and model.
  • Information about witnesses: Name, address, telephone number, and any statements made by witnesses.
  • Information about the location: You may wish to take notes about where the accident occurred, the road conditions, speed limits, traffic control devices, weather, and lighting.
  • Information about police officers: Ask the police officers who investigate the traffic scene to provide you with a business card with the “incident number” so that you can obtain an accident report. Most officers will provide this information to you, even if you don’t ask.

Keep in mind; if litigation results from the accident, you may have to share your notes with somebody you are suing or somebody who is suing you.

Following an accident, you should do the following:

  • Even if you think you are at fault, do not admit liability. There may be factors that you don’t know, which played a role in the accident, and it may turn out that the other driver was more at fault than you.
  • Do not make statements to anybody at the accident scene, except for the police. When you speak to the police, tell them only the facts of what happened. Let the officers draw their own conclusion from the facts.
  • If you or your passengers receive injuries, insist on being transported to a hospital in an ambulance. In all instances, obtain medical treatment immediately. Tell medical personnel about everything you feel may be physically wrong.
  • Report the accident to your insurance agent immediately. Do not speak to the other driver’s insurance representatives.
  • If there are serious medical injuries or property damage, seek counsel of a lawyer as soon as you can. Make an appointment and report all injuries to your family doctor within a day or two. Also, write a daily injury condition journal. Comply with your doctor’s instructions for faster recovery.
  • Retain copies of all medical bills and related accident expenses, such as towing and repair, as well as costs for travel, parking, etc.
  • Document any income loss associated with the accident.

Robert L. Blamer is a partner in our Livonia office and head of the Firm’s plaintiff’s practice group. He focuses his practice on helping injured people in many types of negligence actions, workers’ compensation claims, and Social Security disability claims. He may be reached at (734) 261-2400 or rblamer@cmda-law.com.  

 

Do You Have Appropriate Motor Vehicle Coverage?

Since 1972 Michigan has operated under a no-fault law for accidents that occur involving the use, operation, or maintenance of a motor vehicle. This article explains the no-fault law, along with some tips to ensure you have appropriate motor vehicle coverage.

When you purchase automobile insurance you obtain certain minimum, standard coverages. If you do not buy motor vehicle insurance for a vehicle you own and are injured while driving that vehicle, you do not have any rights to no-fault benefits or rights against a negligent driver. Automobile insurance is mandatory.

 No-fault benefits cover three main areas of economic loss:

  • Medical expense that are reasonable, related to the accident and necessary for your care, and rehabilitation treatment for the rest of your life;
  • A certain percentage of your wage loss for three years to a maximum dollar amount; and
  • Household services for things you used to do around the home, but no longer can due to the accident. Household services are limited to $20/per day for a maximum of three years.

If another driver is negligent and you sustain injury as a result of that negligence, you may have other rights against that driver for your pain and suffering and other non-economic losses if you injury is serious enough. In the event of a death, there may also be survivors’ benefits.

Keep reading for an explanation of three important motor vehicle coverages.

Liability Protection
Liability protection is the amount you are insured in the event you get sued for causing injury to another person. The minimum coverage automatically included in your policy is referred to as a 20/40 policy, meaning insurance coverage is for $20,000 per injured person and $40,000 per accident total. This amount is certainly not sufficient should you become liable to someone who has sustained lifelong injuries or is disabled for more than three years. Coverage can be increased from 20/40 to 100/300 ($100,000 per injured person and $300,000 per accident total) with very little adjustment to your premium.

If you do not have the following two coverages, you are strongly encouraged to get them. If your insurance company does not offer these coverages, switch companies. They are that important.

Uninsured Motorist Coverage
The first type of coverage is uninsured motorist (UM) coverage. If you get struck by an uninsured motorist, you might not be able to recover any money for your injurgies from the uninsured motorist, even if they are entirely at fault. UM coverage would step in to cover your pain and suffering and non-economic loss to the extent of the policy limits. Keep in mind you can only get UM coverage to the extent of your liability coverage. This is another reason why increasing from a 20/40 policy is important.

Underinsured Motorist Coverage
Underinsured motorist coverage is a valuable coverage that is crucial for your protection. If a driver is negligent and causes you, or someone in your car, serious injury, your underinsured motorist coverage steps in to make up the difference between what is available on the negligent driver’s policy and the amount of your coverage. For example, it you have $100,000 underinsured motorist coverage and are seriously injured by a negligent driver who has a 20/40 minimum, once the negligent driver’s insurance company pays you the $20,000, you now have under your own policy, an additional $80,000 of coverage.

There are some steps you must go through to be eligible for payment under the underinsured coverage, so be careful and consult an attorney if you think this will be an issue. Underinsured motorist coverage is often written into the policy as part of the uninsured protection.

The minimal cost to obtain additional liability protection, uninsured, and underinsured motorist coverage can be the most valuable investment when you are insuring your vehicles.

Robert L. Blamer is a partner in our Livonia office and head of the Firm’s plaintiff’s practice group. He focuses his practice on helping injured people in many types of negligence actions, workers’ compensation claims, and Social Security disability claims. He may be reached at (734) 261-2400 or rblamer@cmda-law.com.  

Determining Coverage Under the Michigan No-Fault System

The Michigan No-Fault system provides two mechanisms of recovery when a person is injured in a motor vehicle accident. First party benefits provide the claimant with medical expenses, wage loss, replacement services and, in the case of death, survivors’ loss benefits. Meanwhile, third party benefits provide the claimant with compensation for pain and suffering. The focus of this article is on first party benefits only.

With regard to first party benefits, at its most fundamental level, the Michigan No-fault system provides that each driver’s personal insurance company is responsible for the damage and injuries that driver sustains in a car accident, regardless of fault. This principle can been seen at work in the classic scenario where two insured drivers collide, file claims with their individual no-fault insurers, and receive benefits pursuant to the terms of their individual no-fault insurance policies.

But, consider a different scenario: Imagine that a pedestrian with the right-of-way is struck in a crosswalk by a driver who has run a red light. Whose insurance company is responsible for the pedestrian’s injuries? The answer is not as clear as it may first appear.

Though it may seem as though the driver should be responsible for the pedestrian’s injuries, in reality, there is very little chance that this will be the case. This is because the Michigan No-fault system is governed by a series of priorities, which assign responsibility for damage and/or injuries that arise out of the operation of a motor vehicle.

The list of standard priorities is relatively straightforward, even if — as the scenario described above demonstrates — the facts of a motor vehicle are not.

The first order of priority is the injured party’s own no-fault insurance policy. Returning to the example, our pedestrian would file a claim for injuries arising out of the accident with his own no-fault insurance carrier — even though his vehicle was not involved in the accident in any capacity. This is because in Michigan, no-fault insurance actually attaches to the individual, rather than the vehicle.

But, what happens if our pedestrian does not have a vehicle covered by a no-fault policy of insurance? In that circumstance, we must turn to the second level of priority, which would be a no-fault policy of insurance maintained by our pedestrian’s resident relative, i.e., a spouse or over familial relative residing in the same home as our pedestrian.

Assuming our pedestrian has no resident relative with an applicable no-fault insurance policy, the next level of priority available is the no-fault insurance policy of the owner of the vehicle, regardless of whether of the owner was driving the vehicle at the time of the accident. We look to the owner instead of the driver because, as noted previously, No-fault insurance in Michigan flows through the individual, rather than the vehicle.

Only if the owner of the vehicle fails to carry an active policy for No-fault insurance — or, if the owner and driver are one-and-the-same — would our pedestrian be entitled to file at claim for injury with the driver’s insurance. That is, in our pedestrian versus motor vehicle scenario, the vehicle driver’s insurance is actually the fourth order of priority, even if the driver is 100 percent at fault for the accident.

Recognizing that situations may arise where even after sifting through four levels of priority, no insurance would be available to cover a claimant’s injuries, the Michigan Legislature provided a fifth and final priority to serve as a “catch all” for any remaining, valid claims for first party no-fault insurance benefits. The Assigned Claims Plan, managed by the Michigan Automobile Insurance Placement Facility, is a mechanism by which the State of Michigan will assign a claim to a no-fault insurer to provide benefits, even though that no-fault insurer otherwise has no relationship to the accident. The purpose of the Assigned Claims Plan is to insurance that persons such as our pedestrian are not left holding the bag for injuries arising out of the operation of a motor vehicle.

Importantly, the order of priority, as applied to our pedestrian, is equally applicable to an individual injured while riding as a passenger in a motor vehicle. Meaning, the first level of priority would be the passenger’s own insurance, followed by the insurance of a resident relative, the insurance of the vehicle owner, the insurance of the driver and, finally, the Assigned Claims Plan.

A final, critical caveat to our analysis is this: Michigan law requires the owner of a vehicle to maintain a valid policy of no-fault insurance. If a driver fails to do so, he will not be entitled to any no-fault benefits — including pain and suffering — nor will he be entitled to make a claim with the Assigned Claims Plan, even if the other driver is totally at fault. Thus, it is essential that all vehicle owners in Michigan maintain proper no-fault coverage.

As this exercise clearly demonstrates, determining the precise no-fault carrier responsible for providing coverage for damage and injuries arising out of the operation of a motor vehicle can be a complex endeavor. Accordingly, it is advisable to consult with an attorney whenever you are involved in an injury accident — regardless of your personal fault — to ensure that your rights are protected.

A Roadmap to Priority: Follow these Five Steps

  1. Turn to the claimant’s own insurance. If no such policy exists …
  2. Turn to the insurance of the claimant’s resident relative. If no such policy exists …
  3. Turn to the insurance of the vehicle owner. If no such policy exists …
  4. Turn to the insurance of the driver. If no such policy exists …
  5. Turn to the Assigned Claims Plan.

Robert L. Blamer is a partner in our Livonia office and head of the Firm’s plaintiff’s practice group. He focuses his practice on helping injured people in many types of negligence actions, workers’ compensation claims, and Social Security disability claims. He may be reached at (734) 261-2400 or rblamer@cmda-law.com.  

 

Dear Colleague Letter Issued Regarding Third-Party Servicer Institutional Requirements and Responsibilities

On January 9, 2015, the U.S. Department of Education issued a Dear Colleague Letter providing guidance to institutions that contract with third-party servicers to administer any aspect of the institution’s participation in Title IV student services programs. Title IV of the Higher Education Act and related regulations require these institutions to report the names of any individual or entity that performs for, or on behalf of, the institution any of the listed Title IV functions. However, the Department has determined that a significant number of institutions have failed to report or update this information or have reported incorrect information due to confusion relating to which entities should be reported as third-party servicers.

The Dear Colleague Letter addresses the following regarding third-servicers:

  1. The actions of a third-party servicer which trigger reporting requirements;
  2. Institutional requirement for report third-party servicer contracts;
  3. The requirements for contacts with third-party servicers;
  4. The actions which must be taken by third-party servicers to comply with FERPA requirements; and
  5. The obligations of post-secondary educational institutes to comply with Federal Trademark Commission requirements related to handling of secure information by financial institutions.

Additional information from the U.S. Department of Education can be found here: U.S. Dept of Education Third Party Servicer

Patrick R. Sturdy is a partner in our Livonia office where he concentrates his practice on education law, employment and labor law, corporate and business law, and intellectual property. He may be reached at (734) 261-2400 or psturdy@cmda-law.com.