New HB 4936 No-Fault “reform” bill extremely punitive to motorcyclists’ legal rights

Hidden in the new No-Fault “reform” bill  HB 4936 is a very nasty surprise for motorcycle owners. HB 4936 would devastate Michigan motorcyclist legal rights.

As a Michigan lawyer, I write often about motorcycle safety and the issue of motorcycle helmets. And even though I’m a strong proponent of helmets, HB 4936 goes far beyond this and is extraordinarily punitive to motorcycle operators who will choose not to wear a helmet (I already assume the Michigan helmet law will be overturned this year or early next - as does, ominously, this legislation).

HB 4936 says that any motorcycle operator or passenger who does not wear a helmet conforming to Motor Vehicle Code requirements is now completely disqualified from receiving any kind of auto No-Fault PIP benefits.  [§3113(D)]

Motorcyclists who do not wear legally conforming motorcycle helmets are not also not entitled to collect any economic loss damages from the at-fault driver who causes the motorcycle accident and the injuries to the motorcyclist.  Again, this is regardless of whether the motorcycle operator is completely innocent and not at fault for the motorcycle accident. There is no relationship between liability, causation, or injuries suffered by the motorcyclist. Simply the failure to wear a motorcycle helmet will deprive the injured motorcyclist from being able to pursue any economic loss damages against an at-fault driver who caused the motorcycle accident. [§3135(3)(c)]

Comment: these new extremely punitive legal provisions being aimed at motorcycle operators seem set out to punish Michigan motorcyclists. There isn’t really any other explanation for a completely innocent motorcycle operator being barred from even collecting excess wage loss from, for example, a drunk driver who paralyzes him for life as would happen under this bill.  Much like the horribly punitive auto accident law that already exists and so severely penalizes an owner and operator of a motor vehicle who is uninsured (where uninsured drivers lose their right to sue the wrongdoer driver who caused the accident without regard to how catastrophic the injuries are, even if the uninsured driver is entirely without fault), the same draconian legislation is now being aimed at motorcycle owners who choose not to wear helmets.

Therefore, under HB 4936, regardless of whether a motorcycle helmet would have had anything to do with causing the motorcycle crash itself, and without any regard to  the injuries suffered by an innocent motorcycle operator, there will be no PIP protection or viable claim for excess economic loss.

Currently, under our law, an injured motorcycle rider can collect No-Fault insurance benefits, including all available PIP coverage, from the car that causes the motorcycle accident. Insurance companies don’t like this because it eats into their profits. They see an opportunity now to shift this long-settled Michigan law, and the entire cost of medical care from the insurance companies to the taxpayers.

This is great for state’s auto insurance companies, since motorcycle accidents make up a significantly higher percentage of significant medical claims for insurance companies and for the Michigan Catastrophic Claims Fund.  Since these motorcycle accidents will still happen, and catastrophic injury accidents will  occur at the same (or probably significantly higher rates with the repeal of the state’s helmet law, the costs of these catastrophic spinal cord and traumatic brain injuries will now be shifted to taxpayers — as a lifetime of future medical care is shifted to Medicare.

Further Analysis: Under HB 4936, even if a motorcyclist wears a helmet, a motorcycle operator is still only entitled to the lowest minimum PIP coverage available. In  HB 4936, that amount is $250,000 for medical and rehabilitation expenses. In the other pending No-Fault bills, that amount is a ridiculous $50,000 for medical and rehabilitation expenses - an amount that is wiped out in a weekend hospital stay.  Whatever lower insurance limit that will be enacted in Michigan will apply regardless of whether the motorcyclist wears a helmet, obeys the law, and even if that motorcycle owner has purchased higher insurance coverage protection on his or her own personal auto No-Fault insurance policy. [§3114(6)]

Motorcycle operators or passengers who do not wear conforming motorcycle helmets will be deemed at least 35 percent at fault if they make for noneconomic (pain and suffering) damages in a lawsuit against a driver who causes them to be injured.  This is a minimum 35 percent allocation of comparative fault, regardless of whether any true fault exists with the motorcycle operator and regardless of whether the lack of a helmet played any causal role or relationship to the accident or the injuries suffered by the motorcycle operator. [§3135(2)(b)]

Comment: you almost have to read this one twice to grasp how nasty this provision is.  A completely innocent motorcycle operator who bears no fault whatsoever for causing an accident that he or she is injured in would see the monetary recovery for injuries and pain and suffering slashed by at least 35 percent - for no explicable reason.

As a lawyer, I have been helping injured motorcycle accident owners and operators for almost 20 years.  I have certainly seen more than my share of anti-motorcyclist bias by police, insurance companies, and juries.  But I have never seen anything that is inexplicably this discriminatory to a group that has done nothing wrong.

HB 4936 will destroy the legal rights of safe and legal motorcycle owners in Michigan.  I hope the safe and legal owners and operators of motorcycles will let their voices be heard so these draconian and discriminatory provisions can be changed.

- Steven M. Gursten is a motorcycle accident attorney and partner of Michigan Auto Law. He is president of the Motor Vehicle Trial Lawyers Association and lectures to lawyers around the nation on how to win motorcycle accident and injury cases.  Steve received the highest motorcycle settlement in Michigan last year, according to published year-end reports by Michigan Lawyers Weekly.

Related information to protect yourself:

Motorcycle helmet repeal will result in more motorcycle accidents, deaths and costs

What to do after a motorcycle accident in Michigan

15 motorcycle driving tips

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights to better serve you. Call (800) 777-0028 for a free consultation with one of our motorcycle accident attorneys.

Michigan Auto Lawyers

Who’s really behind Sen. Virgil Smith’s plan to destroy Detroit residents’ No-Fault insurance rights?

The Detroit Free Press reported on June 6, 2011 that Detroit could become a test for a much less expensive, bare-bones form of new No-Fault auto insurance.  The plan is sponsored by State Sen. Virgil Smith. Sadly, the new plan Virgil Smith is considering is terrible for Detroit residents injured in auto accidents.

Virgil Smith’s plan would devastate the legal rights of Detroiters seriously injured in auto accidents.  It takes the worst of Michigan’s No-Fault insurance benefits (also called first-party or PIP benefits)  and third-party pain and suffering benefits, and lops off accident victims’ ability to purchase currently optional uninsured and underinsured motorist coverage. In other words, the “basic” No-Fault that Smith envisions is so ridiculously low,  it would be wiped out before someone leaves the emergency room if they’ve suffered serious personal injury from an auto accident.

In turn, the costs for the injured driver would be shifted to Medicaid, and the burden of medical care shifted to the public taxpayers. Also, as the government through Medicaid and Medicare would presumably have a lien on the amount of medical care it has paid, injured accident victims would then get nothing for their injuries and pain and suffering in their lawsuit against the at-fault driver. As I said, Smith’s plan takes the  worst of both worlds.

Ironically, none of this deters Virgil Smith. Consumer groups have been telling him for years that his No- Fault insurance proposals are terrible for Detroit residents. Others, such as the Coalition Protecting Auto No-Fault and nearly every member of the Democratic Party in Detroit, have also told him his ideas are  devastating for Detroit residents seriously injured in auto accidents. It seems the only people who really like this idea are the auto insurance companies.

Smith says auto insurance premiums for Detroit residents must be lowered. I agree. But there are better and more effective ways of accomplishing this. Smith says he wants to take away important legal rights, such as life-time medical benefits, to lower the price of auto No-Fault insurance for City of Detroit residents.

But why is Smith not taking on the auto insurance companies?  For example, even though Michigan’s auto insurance companies enjoy some of the highest profitability margins in the nation here, Michigan is one of the few states without an insurance commissioner that can regulate the amount of profits insurance companies can make - for a product that we as drivers are legally required to buy.

If Smith truly cared about Detroiters as he says he does, and wants to lower insurance rates as he says he does, wouldn’t this be a better way to lower premiums instead of crushing the legal rights of Detroiters?

And what about red-lining and credit scoring?

Since the only ones who seem to be supporting Smith in this effort to destroy the legal rights of Detroiters seriously injured in auto accidents is the Insurance Institute of Michigan, doesn’t it beg the question of who really is putting Virgil Smith up to this?

Here’s the full story in the Detroit Free Press: Cheaper auto insurance that limits injury coverage in the works

- Steven M. Gursten is head of Michigan Auto Law. He is recognized as one of the nation’s top insurance lawyers handling serious auto injury cases and No-Fault litigation. Michigan Auto Law has received the top jury verdict for a car accident or truck accident in 2008, 2009 and 2010, according to Michigan Lawyers Weekly.

Additional resources to protect yourself:

Show us the money from proposed changes to Michigan’s No-Fault law

Why Detroit papers are falling for the proposed elimination of Michigan No-Fault law

Michigan No-Fault insurance resource center

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident,  motorcycle accident and No-Fault insurance lawsuits throughout the entire state. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights to better serve you. Call (800) 777-0028 for a free consultation with an insurance lawyer. We are here to help you.

Michigan Auto Lawyers