Tuesday, August 11, 2009

Why It's Important To Read The Bills

Our poor men and women in Congress have a tough life. Flitting from fundraiser to fundraiser, they can hardly be expected to sit down and actually read the laws they're voting to impose on the rest of us, especially 1000-page monstrosities like the stimulus package or the current health care proposal. Like John Conyers said, you'd need two days with two lawyers to understand it, and who wants to spend that much time in the company of lawyers?

At the state level, things might at first seem a little more sedate. Given the smaller size and scope of state government, you would think that our representatives would read the bills that come before them. Even more basic, you'd think they would read the bills they sponsor.

Gretchen Whitmer must be an exception. Perhaps she is too busy organizing her nascent attorney general campaign. Perhaps she is too busy promoting voter fraud. Whatever the reason, it's obvious she hasn't read Senate Bill No. 83, which she (alone) sponsored and introduced on January 27, 2009.

The operative portion of SB83 is section 7, which works a radical, fundamental, and wholly illogical change in Michigan no-fault insurance law. To understand that, we need a brief primer on no-fault insurance.

No-fault insurance was designed to replace the old system, where recovering for auto accidents from the other driver took a long time and cost a lot of money to litigate. In 1973, this tort system was replaced by the no-fault system, in which a person injured in an automobile accident is entitled to compensation from his own insurance company regardless of fault. In exchange for prompt payment, the legislature limited an injured person's ability to sue the other driver for noneconomic damages (i.e., pain and suffering). An injured person can sue for pain and suffering, however, if he suffers "death, serious impairment of body function, or permanent serious disfigurement.” This has been termed the "threshold issue," since a plaintiff must demonstrate it to the judge's satisfaction before he can proceed to have the case heard by a jury.

Death and permanent serious disfigurement are fairly straightforward concepts, but defining "serious impairment of body function" has been an ongoing struggle in the courts and the legislature, with the Michigan Supreme Court reversing itself at least twice, and the legislature amending the no-fault act to address Supreme Court rulemaking. The law now says that "serious impairment of body function" means "an objectively manifested impairment of an important body function that affects the person's general ability to lead his or her normal life."

So, how does a court decide if a plaintiff has suffered a serious impairment of body function? The last word on the issue was the Supreme Court's 2004 decision in Kreiner v Fischer. In that case, the Supreme Court established a three-part test -- (1) whether there is any factual dispute over the plaintiff's injuries, (2) whether an important body function has been impaired and whether it is objectively manifested, and (3) whether the impairment affects the plaintiff’s general ability to lead his or her normal life. In deciding the last part, the court listed some of the factors a court should consider:

In determining whether the course of a plaintiff’s normal life has been affected, a court should engage in a multifaceted inquiry, comparing the plaintiff’s life before and after the accident as well as the significance of any affected aspects on the course of plaintiff’s overall life. Once this is identified, the court must engage in an objective analysis regarding whether any difference between plaintiff’s pre- and post-accident lifestyle has actually affected the plaintiff’s “general ability” to conduct the course of his life. Merely “any effect” on the plaintiff’s life is insufficient because a de minimus effect would not, as objectively viewed, affect the plaintiff’s
“general ability” to lead his life. The following nonexhaustive list of objective factors may be of assistance in evaluating whether the plaintiff’s “general ability” to conduct the course of his normal life has been affected: (a) the nature and extent of the impairment, (b) the type and length of treatment required, (c) the duration of the impairment, (d) the extent of any residual impairment, and (e) the prognosis for eventual recovery.

Seems reasonable, right? Well, to paraphrase one of my best friends from college Kreiner has been met by the plaintiffs' bar with all the ardor of a hemophiliac maiden who opens the door to discover her blind date is Count Dracula. To hear plaintiffs' lawyers tell it, Kreiner is the death knell of Western civilization. Not to worry, though -- Gretchen Whitmer will fix it with SB 83.

SB83 starts by changing the definition of "serious impairment of body function" to mean "an objectively manifested INJURY OR impairment INVOLVING an important body function that HAS AFFECTED, affects, OR MAY AFFECT IN THE FUTURE the person's ability to lead his or her normal life." The changes (shown in all caps here) remove the requirement for an impairment, since all that will be required is an injury, not necessarily an impairment, and there will be no requirement that the person show any actual effect, only something that "may in the future affect" the ability to lead a normal life. Could anything be more vague?

Even worse is the next part of SB83, which states that in order to show a serious impairment of body function, a plaintiff is not required to show "at any point in time" that "the person's life after the injury [is] substantially different from the person's life before the injury," that the injury or impairment was "permanent, severe, substantial, extensive, or pervasive or lasted for a significant period of time," or that there were physician's restrictions.

If a person's life is the same before and after an injury, how can that person allege serious impairment of body function? Under the Whitmer plan, a person with any objectively manifested injury (i.e., an expert witness will say, "Yeah, I saw it,") can recover, regardless of the extent, severity, or impact of the injury. This is completely contrary to the balance struck by the no-fault law and would leave us with both a no-fault system and the tort system no-fault was intended to replace. SB 83 is a gift to the plaintiffs' bar.

But, not only is it bad policy poorly written, SB83 is internally inconsistent and contradictory. Section 7B says that in determining whether a person's ability to lead his or her normal life has been affected (something section 7A says is irrelevant), a court must consider, among other things, "the duration of the injury, impairment, or treatment" and "the impact of the injury or impairment on the injured person's quality of life."

Hey, wait a minute -- how can a court consider the duration of the injury when the bill says that a person cannot be required to show that the injury "lasted for a significant period of time"? And how can the court look at the impact on a person's quality of life when the bill also says that the court cannot examine whether "the person's life after the injury [is] substantially different from the person's life before the injury"?

SB83 is a mess. Has Whitmer read it? Who knows? Still, we expect more from someone who wants to be Michigan's chief law enforcement officer.

1 comment:

  1. Incredible. Thanks for your work on exposing this charade of a politician. How do such people get elected?