Car & Truck Accidents

Attached here is a flow chart that gives you a birds-eye view of how Michigan’s civil litigation system works; this is how the system works in both auto lawsuits, and all other suits as well.

There are features to an auto injury lawsuit that, while common to other types of matters, merit some discussion here. I think of an auto claim/lawsuit, as taking place in successive steps, or stages:

Pre-Suit Investigation

Investigating the merits of a claim, begins with your phone call to me. I want to know why the other driver(s) were at fault, and why you were not. I want to know how this accident has impacted on your ability to live your normal daily life, and whether there are diagnostic tests that confirm your injuries. These are important considerations, in deciding whether an accident meets Michigan’s injury threshold (see MCLA §500.3135(5).

Preservation Letters

Sometimes, the evidence we need, is in the hands of the target defendants, meaning the people whom we will be suing. They and their insurers often do not want to share that information. If they destroy, or get rid of evidence, after I sent a “preservation letter”, that disposal/destruction of evidence may be held against them later on, in a jury trial. The critical evidence, could be a “black box recorder”, or the employment file for the at-fault driver in a trucking case; it could be anything.

Insurance Claims

Once the medical records are in hand, as well as witness statements, etc, most lawyers (including me) will submit a “demand package” to the insurance company involved. If the matter can be settled at this point, it is usually best for the client, while attorney costs generated by experts, records production, etc, are minimal. Those costs will increase once suit is filed, and particularly as trial approaches.

Pleadings

A lawsuit is begun by the filing of a “Complaint”, which is then answered within 21 or 28 days, or whatever time period is agreed-upon by the parties. MCR 2.110 defines “pleadings” as a complaint, cross-claim, counterclaim, third-party complaint, answer, and a reply to an answer.

Discovery

The “Discovery” phase of litigation, is where the parties formally exchange information, and learn about each other’s cases. This is necessary, to streamline the presentation of the case to a jury. There are various “discovery” devices, designed to obtain information from “the other side”, including

1. Interrogatories – written questions which require written responses;

2. Requests for Production – requests for specific documents and tangible things; and

3. Requests for Admission – requests that certain things be admitted; this is used to authenticate documents, and also to limit the scope of what needs to be tried

Depositions

A question and answer session under oath, transcribed by a court reporter. Perhaps the single most important thing that happens in civil litigation, because one party or another is committed by their under-oath testimony, to a version of the accident, or their injuries, etc.

Defense Medical Examinations (“DME”)

Insurance companies will often commission medical exams, where they send you, the injured person, to a doctor of their choosing. Insurance companies and their lawyers refer to them as “IME’s”, meaning “independent” medical exams, but the doctors who do these exams, and earn significant money by doing them, are in no way truly independent. These exams are used to justify benefit cutoffs, or to justify an argument that you were not hurt as badly as you are.

A DME is potentially as adversarial as a court hearing. That means YOU MUST PREPARE IN ADVANCE, FOR YOUR DME. If you get set for a DME, call me, and I will help you prepare for this exam (unless you are represented by a lawyer already; if that is the case, ask them how they will prepare you for a DME).

Dispositive Motions

These are Motions to dispose of the case, most commonly filed by the Defendant, to dismiss your lawsuit. They could be based on any number of factors, such as failure to meet the injury threshold, or maybe there is a claim that accident-scene liability favors the Defendant, and not you. Sometimes, though not often, these “Motions for Summary Disposition” are filed by Plaintiffs, i.e., us, to establish “as a matter of law”, that accident-scene liability, or threshold, is in our favor, precluding arguments to the contrary.

Case Evaluation

This is a court-mandated mediation procedure, by which your case will be submitted to three attorneys who practice (in this case) in the areas of auto accident and personal injury litigation. The attorney panel will then submit a non-binding recommendation, officially called an “award”, which can jump start settlement negotiations for the first time.

Court-Ordered Settlement Conferences

In times past, judges used to conduct meaningful conferences at which they would exhort and cajole the parties into settling their cases. Now, these “conferences”, are little more than a pro forma occasion for the judges to order cases into “Facilitation”

Facilitation

A “facilitation” is where real settlement discussions often begin; unfortunately, they are quite expensive, because the parties have to pay the mediating, or facilitating attorney. Some insurance companies insist on withholding settlement discussions until facilitation, because they want to hold onto their money, and/or the adjuster wants to hold onto their job. If our case gets that far, I will explain the procedure to you, in greater depth

Trial

The point at which your case is tried to a judge or jury, with formal presentation of evidence and witnesses. It is usually the end of the case, and ideally, the point at which the jury or judge indicates their agreement with our view of the case. Preparing for trial is expensive and intense; fortunately, only 1-3% civil cases go to trial. Most others are settled before that time.

First-Party PIP and Third-Party Liability Claims

A first-party PIP claim seeks benefits such as allowable medical expenses, work loss, and replacement services from the insurer responsible under Michigan’s policy and priority rules. That insurer is not always the injured person’s own company. See the separate No-Fault Insurance page for details.

A third-party claim seeks tort damages from one or more legally responsible parties. Depending on the evidence, those parties may include a negligent driver, a consenting vehicle owner under MCL 257.401, an employer or motor carrier, or a person who negligently entrusted a vehicle. Liability is not established merely because a crash occurred; negligence and legal responsibility must be proved.

For noneconomic damages, MCL 500.3135(5) generally requires death, permanent serious disfigurement, or serious impairment of body function. A ‘serious impairment’ requires: (1) an objectively manifested impairment; (2) of a body function important to that injured person; and (3) an effect on some of the person’s capacity to live in the person’s normal manner. The statute does not require the impairment to be permanent, and the comparison is person-specific.

A wrongful-death claim is governed additionally by MCL 600.2922; where the “Wrongful Death Act” applies, there are additional procedures, such as notification to next of kin, and the filing of a Motion to the Court to approve a wrongful death settlement.

The third type of threshold involves scarring, or a “permanent serious disfigurement”. Such claims depend on whether the change in appearance is both serious and permanent; location, size, visibility, fixability, and physical characteristics matter. Photographs over time and appropriate medical evidence are often very important in establishing scar claims.

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Under Michigan law, we do not have an unlimited right to sue a negligent party, after an auto accident. There must not only be accident scene liability (e.g., the other vehicle rear-ended you, or blew through a red light, etc), but there must be a showing of “injury threshold”. The threshold is set up by statute, specifically, MCLA 500.3135.

If the injury threshold is not met, there is no right to sue, no matter how negligent the other party is. It does not even matter if the other party was drunk, or stoned; if your injuries do not meet the threshold, there is no right to sue. In fact, if there is no threshold injury, the case is subject to being dismissed.

Why is the right to sue important, if you really do not want to sue at all, or if you do not want to have the case tried before a jury?

The right to sue is important, because the threat of suit is one of the few “hammers” a lawyer can hold over an insurance company. If there is no right to sue, there is no bargaining power with the insurance company. So, it is important to know about injury thresholds.

MCLA 500.3135(5) makes clear that there is potential liability only when one of three injury thresholds is met: 1) Death 2) Serious Permanent Disfigurement; or 3) Serious Impairment of body Function.

Death

Death is easily enough understood. If someone died in a motor vehicle accident, as a result of someone else’s negligence, that negligent party can be sued, and held responsible. Sometimes, though rarely, causation may be an issue; did the accident really cause the death? However, if someone did die as a result of an auto accident, threshold will not be an issue.

Serious Permanent Disfigurement“

Serious Permanent Disfigurement”, refers to physical scars that result from a vehicle accident. The scars must be both “permanent” and “serious”, to form the basis of a “scar” claim. In turn, that usually requires a two-step analysis, first by the experienced attorney, taking photos of the scars over time, to document as best can be done, the development of the scar. Is the scar “going away”, or becoming less visible?

Secondly, scar cases usually require the analysis and expert testimony of a plastic surgeon or other medical professional, who regularly works with scars on their patients. Is the scar visible/invisible? Can the scar be “revised”, or made invisible/less noticeable? The “seriousness” of a scar, depends on where it is located. Is the scar grotesque or “off-putting”? Is it obscured by hair on the top of one’s head, or is it located on a part of the body, normally covered by clothing?

These are not hard and fast rules. Obviously, the more serious the scar, the less likely will there be a dispute as to whether the scar meets threshold. There are cases holding that even scars obscured by hair or clothing, might meet the Michigan threshold of “permanent serious disfigurement”. See, e.g., Fisher v Blankenship,, 286 Mich App 54; 777 NW2d 469 (2009).

I have had my own clients’ scar cases challenged by insurance companies on threshold motions, or motions to dismiss based on the alleged failure to meet the “serious & permanent disfigurement” threshold”. The insurers argued that my clients’ scars were not “serious”, or were not “permanent”. I have not lost one of these motions; I kept my clients’ claims alive, to enable some discussions leading to significant monetary recoveries.

The bottom line: you need to be careful hiring a lawyer to handle a scar case, resulting from a car/truck accident. You need someone experienced in this area of the law, like Jon Frank.

Serious Impairment of Body Function

This third category, is the most litigated and disputed area of Michigan injury threshold law, both at the appellate and trial court level. Again, if there is no death or scarring, and the injuries do not meet this third and last threshold, the case is subject to dismissal — no matter how negligent, drunk, or even stoned the at-fault driver may have been.

Under MCLA 500.3135(5), a “serious impairment” injury is one involving:1) An “objectively manifested impairment”;2) Of an “important body function”3) That affects the person’s general ability to lead his/her normal life.

To be “objectively manifested”, an injury must be subject to independent confirmation. Typically, this involves an x-ray, EMG, MRI, CT Scan, etc; this is not a complete list, but it does give you an idea. Clinical findings, such as palpable spasm, positive results on generally accepted clinical tests, such as straight leg raising, may also constitute “objective manifestation”.

The objective manifestation must relate to an impairment of an “important body function”. This second category may seem pointless, or even silly, given that to each one of us, ALL body functions are considered important. Who among us, is willing to give up the pinky tip on their non-dominant hand? (Not me, I will tell you!!)

However, Michigan’s appellate courts, under the guidance of a biased state Supreme Court, has over the years, and has actively sought out areas in which the rights of Michigan accident victims can be limited. While there has not been a great deal of litigation, explaining the extent of what makes a body function “important”, our State’s current appellate courts may use it as a source of upcoming law, to limit injury victims’ access to the courts, to obtain compensation for their injuries.

Finally, to be a “serious impairment” injury, it must “affect the person’s general ability to lead his/her normal life”. What does that mean? That will depend on an analysis of what activities the person did before the accident, and on what activities the person was able to do before that he/she can no longer do, or cannot do nearly as well. How important were these activities to the injured person? Maybe it is the inability to maintain a clean house; maybe, the inability to do physical sports pursuits, resulting in a diminution of the person’s social life; maybe it is an inability to get up/down stairs, to walk, to bike, to make love, etc., etc.

There are simply too many facets to a person’s life, and even more when multiplied by the millions of people in our society. The bottom line is this: did the loss of the activity, or the new limits on the person’s ability to do the activity, affect the person’s general ability to lead his/her normal life.

These seem like case-by-case, fact-driven inquiries, right? Did the accident impact on your ability to do the daily bike ride, or walk? Can you no longer exercise as a result of a back injury, and now have a weight problem, because you cannot exercise? Or are these limitations due to pre-accident arthritis, or a previous unrelated injury? Again, this seems like a factual inquiry, appropriate for resolution, only by a fact-finder, such as a jury.

However, under MCLA 500.3135(2), these factual questions are made “questions of law” for resolution by a trial judge. In other words, a judge gets to decide how important it is for you to walk your dog, make love with your partner with a certain frequency, work, recreate, etc.

This was one of many shameful aspects of the trend called “tort reform”, which is really a race to the bottom, driven by the agendas and biases of insurance companies who are paid well, to compensate injury victims, yet often refuse to comply with their insuring agreements to do so, when called upon.

However, this is Michigan law, and thus all the more reason, you need a seasoned experienced lawyer in your auto/truck accident matter. Whether your accident was in Mecosta or Macomb County, Oakland or Ontonogan County, call Jon Frank today, your Michigan auto accident attorney.

Excess Medical Expenses and Other Economic Loss

MCL 500.3135(3)(c) permits recovery of specified excess economic losses in a third-party action. These can include allowable medical expenses exceeding the applicable PIP medical limit, expenses for persons who lawfully elected an exclusion or opt-out, work loss exceeding PIP’s three-year or monthly limitations, and other categories authorized by the current statute. Excess “Replacement service compensation” is no longer collectible in a suit for economic loss damages, under Johnson v Recca, 492 Mich 169 (2012).

What happens though if you opt for one of these lower coverages, and you get struck by an at-fault driver motorist (who rear-ends you, or blows through a red light)? Let’s say you opted for the $250,000.00 limit, which is not a small amount of money, but we all know what health care costs these days. Let’s say your bills total, e.g., $400,000.00. What about the uncovered $150,000.00? Under the new revisions to the law, you can now sue for this uncovered margin.

While that sounds great, it isn’t; that claim will be tied up, until resolved either by a court, or by the parties. Let’s say you were an uninsured pedestrian, struck by a fully insured motorist; I recently handled just such a case, where the accident victim was hospitalized for two weeks. The hospital bill alone was $200,000.00. One of the other revisions to the law, was that an uninsured person like my client, must now get his coverage through the “Assigned Claims Plan”, which you can find out more about, on the No-fault page of this website. Unfortunately, the limits are only $250,000.00, again, a figure which sounds big, but really isn’t.

Moreover, recovery is not automatic. The plaintiff must prove liability, causation, the nature and amount of the loss, and that the claimed medical charges meet the governing standard. Available liability insurance and the defendant’s collectability also matter.

Canty v Mason, a published 2026 Michigan Supreme Court decision, addresses post-reform medical-expense claims under MCL 500.3135(3)(c). It held, among other things, that claimed allowable expenses must be reasonable, rejected a duty to use Medicare to mitigate those expenses on the record presented, and held the no-fault fee schedule applicable to the tort recovery analyzed there. Because this is a developing area, you will definitely need counsel experienced in no-fault law. Call me, Jon Frank, at (586) 727-1900, if you have any questions.

Potential Liability of a Vehicle Owner or Other Party

You just got rear-ended by someone who was driving their parents’ car, and you are hurt badly. Apart from whatever claims you have against the at-fault driver, can you sue the parents who own the vehicle?

The short answer is yes, and for a number of reasons, too. This could become important, if either of these two theories, for suing the owner does not work, legally.

The first is “owner liability”, under MCLA §257.401, which holds that an owner of a vehicle can be sued, when he/she has given permission to use that vehicle, to a driver, who then drives negligently. If that driver took the vehicle without consent, either by theft, or by “joyriding”, there may be a way for the owner of the vehicle to escape liability. Members of the same family, at least those of sufficiently close family, are presumed to have given/obtained consent to use the motor vehicle.

The other theory is one of “negligent entrustment”. Just as a driver who rear-ends you in traffic is negligent, for rear-ending you in traffic, so too, is someone who loaned out their vehicle to someone who should never have been allowed to borrow a car. What is an example? I just concluded a six-figure settlement on a matter, where a mother loaned her adult daughter a vehicle. The adult daughter had no fewer than six arrests for driving under the influence of either alcohol, or heroin/pills, etc. The adult daughter also had an arrest for a theft offense, involving breaking & entering, where she was evidently borrowing her mother’s vehicle on a previous occasion.

When you need to make sure the responsible party pays, give Jon Frank a call at (586) 727-1900, or email at jon@jonfranklaw.com

When You Rent the Vehicle

We often find ourselves traveling out of town, in renting cars. Do we really have to buy the auto insurance that they try to sell us, when we rent the cars? Maybe, maybe not.

If you are at fault for an out-of-town accident, your policy’s liability coverage usually will extend to a rental vehicle. For example, if a claim is filed against you for rear-ending someone out-of-town, your policy usually will provide coverage for you, meaning they will pay in the event of an insured loss. Moreover, if you get sued they will provide you with a defense attorney, under the terms of your policy, same as they would if the accident took place in Michigan. Under the terms of the Michigan No-Fault Act, specifically MCLA §500.3111, your policy will cover you for accidents throughout the USA and Canada, although coverage limits might be different.

When Someone Else Rents the Vehicle That Hit You

Assuming that you were not at fault, yes, you do have a right to sue the at-fault driver, and you may have a right to sue the rental car company, as well. As to the driver of the rental vehicle, hopefully, that person has permission to drive the vehicle, and is not an excluded driver; if the rental vehicle was taken without permission, or if the driver was excluded in the rental agreement, you may have some problems.

As with any accident caused by someone permissibly driving someone else’s vehicle, the owner of the vehicle (in this case, the rental car agency) can be sued on an “Owner Liability” theory. This is based on a Michigan statute, MCLA §257.401, that allows injured persons to sue the owners, when the driver they allow to drive their vehicle, causes an accident. Conceivably, they may also be liable for renting the vehicle to someone who had no business renting a vehicle, e.g., someone with a suspended license.

Which Insurance is Primary – Yours or The Rental Car Company’s

In this context, “priority”, addresses the question of which insurance company has the duty to pay first. As you can imagine, like a game of “hot potato”, neither insurance company wants that responsibility. The question of priority between your insurance company, and that of the rental car company will depend on the fine print in both insurance policies.

Normally, their “collision damage waiver” takes priority for covered damage to the rental car; a “waiver” in this instance means that the rental car has waived their right to charge you for damage to their car. Purchasing liability insurance from the rental car company will depend entirely on the fine print; it does not replace your auto insurance.

What happens if the at-fault driver has no insurance, or if he/she flees the scene? Who do you collect from in that case?In Michigan, there is an optional (non-mandatory) coverage, for just this type of occurrence.

It is called “uninsured motorist coverage”. If you are struck by someone who has no insurance, or if you are struck by someone like my client in Dearborn Heights, whose at-fault driver fled the scene, then you and I must contact your insurance company, who legally “stands in the shoes” of the uninsured motorist.

Where the accident was a hit-and-run, there may be an evidence battle; is there proof of a collision, such as a transfer of paint left by the hit-and-run driver? Are there witnesses who will corroborate that a hit-and-run accident, as defined in the policy, actually occurred?

“Standing in the shoes” is a legal term, that means that they defend the claim, as though they themselves were the at-fault motorist, with all of the defenses that would be available to that person. For example, if the at-fault motorist has a plausible claim that you did not sustain a serious impairment injury, then your insurance company, as the “uninsured motorist (or UM) carrier” would be entitled to assert that defense.

If they wanted to contend that you stopped short, causing the rear-end vehicle collision, or e.g., that you were the one who blew the red light, they could do that.

One thing to be careful about, and that is that because this coverage is not mandatory in Michigan, as it is in some other states, its terms are considered “contractual”. In plain English, that means that if you do not comply with all of the terms of the insurance contract, you get no coverage, no matter how much you paid for this policy. This becomes important, where insurance companies (State Farm in particular) set up hoops that we have to jump through, as uninsured motorist claimants. This also becomes important, in the context of a hit-and-run, where insurance contracts typically require proof of contact (a dent, paint transfer, or something of the like).

This is a complex area of the law, with a lot of “traps for the unwary”. How do you deal with it, then? Give Jon Frank a call at (586) 727-1900, or email at jon@jonfranklaw.com

Commercial Truck Accidents Require Immediate Evidence Preservation

A commercial-truck collision may involve claims against the driver, motor carrier, vehicle owner, employer, shipper, broker, maintenance provider, manufacturer, or another responsible party. Liability depends on the relationships and evidence; the presence of a commercial truck does not make every entity in the transportation chain liable.

Important evidence may include electronic logging-device data, engine-control or event-data information, driver-qualification and training files, hours-of-service records, dispatch messages, bills of lading, inspection and maintenance records, post-crash testing, onboard camera footage, mobile-device records, and carrier safety materials. Federal regulations require retention of some records for limited periods—for example, many ELD (electronic logging device) records are retained for six months—so a targeted preservation notice should be considered promptly.

Federal Motor Carrier Safety Regulations may address driver qualification, hours of service, alcohol and controlled-substance testing, inspection, repair, maintenance, cargo securement, and other safety duties. Applicability and any exception depend on the vehicle, cargo, route, carrier, and operation.

A regulatory violation may be relevant evidence but does not automatically establish every element of a Michigan negligence claim.

This is a complex area of the law, with a lot of “traps for the unwary”. How do you deal with it, then? Give Jon Frank a call at (586) 727-1900, or email at jon@jonfranklaw.com