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Volume XXV, No. 4, February 19, 2013         

 

From the Law Offices of Garan Lucow Miller, P.C.

From the Co-Editors

James L. Borin & Simeon R. Orlowski

 

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PERSEVERANCE AND DOCUMENTATION PAY OFF AT SUPREME COURT

MCL 500.3148 ATTORNEYS FEE CASE

CO-CONTRIBUTORS – DAVID CAMPOS and DANIEL SAYLOR

 

In USAA v Rimbey/Park and Spectrum Health Hospitals, __ Mich __ (February 16, 2013) (S Ct No. 145188) (reversing Court of Appeals unpublished opinion No. 299307, April 19, 2012), Rana Reyes was catastrophically injured when she exited a motor vehicle traveling at a high rate of speed during an emotional dispute with her boyfriend. USAA, insurer of Mrs. Reyes’ estranged husband, immediately undertook an investigation as to whether Mrs. Reyes’ injuries amounted to “accidental bodily injury” or were “suffered intentionally by the injured person.”  MCL 500.3105(1), (4).

From the onset of USAA’s investigative efforts, family members of Mrs. Reyes, including her estranged husband, refused to cooperate in providing facts and information concerning the occurrence and even instructed other friends and witnesses to refuse to cooperate with USAA’s efforts to adjust the claim.  Notwithstanding the hurdles placed before it by Mrs. Reyes’ family members, USAA retained an investigator and its adjusters dutifully continued their efforts to contact witnesses and obtain information necessary to determine whether the claim was compensable.  Thankfully, in addition to undertaking significant efforts to investigate the claim, USAA also thoroughly documented its claim logs as to its activities.  These log notes and documentation of correspondence and communications established not only USAA’s investigative efforts, but the difficulties it encountered in investigating the claim.

USAA, which never actually denied the claim, ultimately filed a declaratory judgment action seeking assistance from the court in obtaining discovery information and a determination as to whether the voluntary jump from the speeding car amounted to accidental bodily injury or whether such injury was suffered intentionally by Mrs. Reyes.  Consistent with the obstacles placed before USAA by the claimants’ family members, counsel for USAA was required to file numerous motions requesting and compelling discovery and investigation.  Many facts were known and learned by USAA showing that the act of jumping from the car itself was voluntary, but as the claimant Mrs. Reyes had been severely brain damaged and was unable to communicate, USAA also undertook to obtain information that would assist in determining whether Mrs. Reyes intended to cause her injuries, as well.  Amerisure Ins Co v Auto Owners Ins Co, 262 Mich App 10 (2004); Schultz v Auto Owners Ins Co, 212 Mich App 199 (1995).

As pointed out in the  Court of Appeals opinion, USAA voluntarily paid over $800,000 in allowable expenses shortly following the last depositions taken by counsel for USAA.  Not satisfied with a voluntary payment on an otherwise disputable claim, claimants sought awards of attorneys fees and interest from the trial court.  After a hearing as to the amount of attorneys fees, the trial court ordered USAA to pay $142,495.72 in attorneys fees.  The Court of Appeals, after providing an accurate rendition of the facts of the claim and the hurdles USAA faced during its investigation, nonetheless stated that, while reasonable minds could differ on the question of whether the Reyes’ injuries were suffered intentionally, it was required to accord deferential review and determine whether the trial court’s conclusions “constituted clear error.”  It held that the findings were not clearly erroneous and affirmed the attorney fee awards.

Following the Court of Appeals’ decision, USAA sought leave to appeal to the Michigan Supreme Court.  In lieu of granting leave to appeal, the Court issued a peremptory order on February 6, 2013, reversing the judgments of the Court of Appeals and trial court, stating:

The trial court clearly erred in awarding the defendants attorneys fees pursuant to MCL 500.3148(1), because the plaintiff’s initial refusal to pay benefits under the no fault act was based upon a legitimate question of factual uncertainty as to whether Rana Reyes suffered “accidental bodily injury” pursuant to MCL 500.3105(1) and (4).  Ross v Auto Club Group, 481 Mich 1, 11 (2000).

This procedural course and ultimate outcome of this catastrophic no fault claim are important insofar as they confirm the significance of prompt investigation of difficult claims, perseverance in attempting to obtain necessary investigation, and documentation of the efforts and results of investigation. Many insurers, and perhaps insurance counsel, routinely refuse to disclose log notes and investigation with regard to investigation of first party no fault claims.  While it is true that some of the communications may well be protected as either attorney client privilege or work product, such documentation nevertheless can go far in establishing and proving the efforts made by a no fault insurer in investigating difficult claims which may later result in a request for attorneys fees under MCL 500.3148.

In the instant case, USAA was tenacious in investigating the claim under adverse conditions presented by the claimant’s family, but nonetheless continued to persevere and document its investigative efforts, which it is believed the Supreme Court  must have considered as supportive of its finding that there was no unreasonable refusal or delay by USAA in payment of the claim.

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MLS LASER THERAPY IS EXPERIMENTAL AND, THEREFORE, NOT COMPENSABLE

UNDER THE NO-FAULT ACT

CONTRIBUTOR – EMILY PARTRIDGE

 

Insureds and medical providers are beginning to submit claims for a medical  treatment called MLS  (multi-wave locked system) laser therapy.  This procedure can be done by orthopedic surgeons, orthopods, chiropractors, podiatrists, and physical therapists.  It is a type of low level laser therapy that specifically uses the wavelengths of 808 nm and 905 nm.   The MLS laser is starting to be more widely used, as I found no less than ten different medical providers throughout the State of Michigan who are advertising the availability of this device and this treatment on their websites.  My understanding is that providers are recommending approximately 10 sessions, although I imagine that a provider could recommend more if called for, and are charging anywhere from $75 to $150 per session.

The issue presented is whether MLS therapy is an allowable expense under MCL 500.3107(1)(a) of the Michigan No-Fault Act.

As you may recall, the Michigan Supreme Court, in Krohn v Home-Owners Ins Co, 490 Mich 145 (2011), held that in order to conclude that an experimental procedure is reasonably necessary, the injured person or medical provider must present evidence that the procedure will be “efficacious” in the injured person’s care, recovery, and rehabilitation with expert testimony.  As an aside, “efficacious” is defined in the dictionary as “capable of having the desired result or effect; effective as a means, measure, remedy, etc.”  Also, the trial court has an obligation, under MRE 702, to ensure that any expert testimony or scientific evidence admitted is based on sufficient facts or data, is the product of reliable principles and methods, and that the witness has applied the principles and methods reliably to the facts of the case.

MLS therapy is an experimental procedure as it does not appear to be a treatment that is generally accepted by the medical community for the treatment or care of a specific and diagnosed injury.  In fact, several health insurers, such as Cigna, Aetna, and Blue Cross Blue Shield, have studied “low level laser therapy” in order to determine whether there should be coverage for these types of procedures, and considered them experimental, investigational, and unproven.

MLS Laser Therapy does not meet the evidential burden of establishing that this experimental procedure is reasonably necessary by proving that MLS Laser Therapy is efficacious for the injured person’s care, recovery, and rehabilitation.  Therefore, this procedure is not compensable under MCL 500.3107(1)(a).

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Garan Lucow Miller, P.C., is offering a traveling Deposition and Trial Boot Camp.

The Deposition and Trial Boot Camps would be presented to a group of 10 or more in your office, half day sessions. If interested in scheduling this informative in-house seminar, please contact Eileen Carty at ecarty@garanlucow.com  or 248-641-7600.

 

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GARAN LUCOW MILLER

GRAND RAPIDS SPRING BREAKFAST SEMINAR

April 18, 2013 at Frederik Meijer Gardens and Sculpture Park

The Grand Rapids office of Garan Lucow Miller P.C. is pleased to present its Annual Spring Breakfast Seminar on April 18, 2013 at the Frederik Meijer Gardens and Sculpture Park, located at 1000 East Beltline, NE in Grand Rapids (616) 957-1580. Comprehensive written materials will be distributed to all who attend.  After the seminar, feel free to enjoy all of the open indoor and outdoor garden areas as our guest, including the exciting Butterfly Exhibit!

If you are able to attend this complimentary annual event, please register via e-mail to: lbeatty@garanlucow.com  or phone Lynn Beatty at (616) 742-5500 or (800) 494-6312 for reservations.  We look forward to seeing you!

 

8:00 – 8:25 am Registration and Continental Breakfast

8:25 – 8:30 am Welcome and Introduction

David N. Campos, Moderator

8:30 – 9:00 am Trial Technology – Using the CSI Factor To Your Advantage

Speaker: John J. Gillooly

9:00 – 9:30 am Premises Liability Update

Recent extension of the Open and Obvious Doctrine beyond cases involving premises owners and invitees as well as other updates on how to successfully defend a premises liability claim that a plaintiff calls “negligence” in an effort to avoid Lugo v Ameritech.

Speaker: David A. Couch

9:30 – 10:00 am Update on Catastrophic Claims Cases

Housing    Transportation    Attendant Care

Speaker: Tara L. Velting

10:00 – 10:15 am Break

10:15 – 10:45 am Third-Party Auto Threshold & Renewed Importance of Surveillance

Life After “McCormick”   Surveillance and “The Pay Off”

Speaker: L. Ladd Culbertson

10:45 – 11:15 am Handling Assigned Claims Cases

Speaker: David N. Campos

11:15 – 11:25 am Housekeeping of a Claims File

Discoverability     Strategy for Including Information

Speaker: Timothy M. Swan

11:25 – 12:00 noon Michigan Auto No-Fault Update

Case Law Update    Year in Review and Anticipated

Future Case Law Development

Speaker: Emily L. Partridge

12:00 – 12:15 pm Questions and Answers