Volume XXIII, No. 10
April 11, 2011

From the Co-Editors
James L. Borin & Simeon R. Orlowski

SERIAL SUITS AND SETTLEMENTS WHEN
IS THE CAUSATION ISSUE NO LONGER IN DISPUTE?
CONTRIBUTOR – JUDITH A. MOSKUS
It is not uncommon for claims involving significant injuries and lingering consequences to result in more than
one lawsuit. What happens when there is no clear and unequivocal resolution of which accidental bodily injuries arose out of the motor vehicle accident at issue between the claimant and the insurer? One answer is given in the following scenario.
In Collier v Liberty Mutual Insurance Company (Docket #294965, released 2/24/11), Plaintiff Michelle Collier was involved in an automobile accident on March 19, 2001. She did not immediately seek medical treatment, but later doctors suspected meningitis and advised her to see her family doctor for further care. After some follow-up care, the plaintiff did not seek further medical help until June 2002.
At that time, Collier reported certain symptoms and was treated for lumbar disc disease. In February 2004, she was diagnosed with Chiari malformation and underwent surgery. A Chiari malformation is a congenital structural defect in the cerebellum, where the skull joins the spine. After the surgery, the plaintiff reported worsening weakness in her legs and, in September 2004, she was diagnosed with transverse myelitis, a neurological disorder causing inflammation in a segment of the spinal cord. The condition progressed to the point that Collier began using a wheelchair.
After an independent medical examination, Liberty Mutual stopped paying medical benefits in September 2001.
Collier filed a lawsuit, but the matter was resolved through arbitration in December 2004. The arbitration award contained no findings of fact or conclusions of law, but specified that it included all outstanding benefits from March 19, 2001 through December 22, 2004.
Plaintiff subsequently filed a second lawsuit against Liberty Mutual, and the parties entered into a settlement
agreement for benefits through December 12, 2006. The settlement explicitly excluded any claims for wheelchair lifts and a handicap van, but contained no statements about causation.
Yet another lawsuit was filed in January 2008 and alleged that, although the insurer continued to pay attendant care benefits, it failed or refused to pay for reasonably necessary products or accommodations, including an interior stair lift and an exterior wheelchair lift. Plaintiff later asserted that she was also entitled to payment for a van that could accommodate her wheelchair.
After the completion of discovery, Collier’s counsel filed a motion for summary disposition, arguing that collateral estoppel precluded relitigation of the question of whether plaintiff’s injuries were related to the motor vehicle accident. Plaintiff took the position that this issue was decided in a valid final judgment of the arbitration panel.
In response, Liberty Mutual asserted that collateral estoppel did not apply, since the arbitration panel never
issued a valid final judgment and did not make a finding that plaintiff’s current medical problems were caused
by the 2001 automobile accident. However, the trial judge ruled that the arbitration panel had, in fact, determined causation, precluding relitigation of causation in the pending action.
Not so fast said the Court of Appeals in this unpublished opinion. Determining that the trial court was incorrect, the panel held that for purposes of collateral estoppel, the arbitration award contained no factual determinations.
Generally, for collateral estoppel to apply, three elements must be satisfied: (1) A question of fact essential to the judgment must have been actually litigated and determined by a valid and final judgment; (2) the same
parties must have had a full [and fair] opportunity to litigate the issue, and; (3) there must be mutuality of
estoppel. The doctrine of collateral estoppel applies only when the ultimate issue to be determined in the
subsequent action is identical, and not merely similar, to the issue involved in the previous action.
While the appellate court acknowledged that collateral estoppel does apply to factual determinations made by
the arbitrators, there was no “valid and final judgment” on an essential question, since the arbitrators’ award
specifically limited entitlement to benefits up to December 22, 2004. Thus, there is no showing that the
arbitration panel resolved the question of whether there was a causal connection between the automobile
accident and any expenses at issue after the panel rendered its decision.
Perhaps the lesson to be learned from this case is not to leave the causation issue unresolved in either
settlement negotiations or when resorting to arbitration to determine entitlement to benefits. If you want to
leave the causation issue open for future proceedings, this should be made clear in some form. Otherwise,
there is the risk of what occurred in this case at the trial court, and no guarantee of “rescue” from the Court
of Appeals.

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GARAN LUCOW MILLER
GRAND RAPIDS SPRING BREAKFAST SEMINAR
April 13, 2011 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 13, 2011 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! In addition, a membership to Frederik Meijer Gardens and Sculpture Park will be
presented to two lucky seminar attendees, along with day passes to enjoy this lovely venue.

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 The Three Phases of Surveillance
Speaker: Bob Chapman
Blue Diamond Investigations, LLC
9:00 – 9:20 am Premises Liability Update
Lugo v Ameritech – Chinks in the Armor Who will be Deemed an
Owner of an Animal that Causes Injury? Social Host Claims – Narrow
Avenues for Recovery if the Facts are Right
Speaker: David A. Couch
9:20 – 9:40 am Adjusters and Their Estate Planning
How to Avoid the 6 most Common Estate Planning Mistakes Medicaid
Planning Special Needs New Tax Laws
Speaker: Tara L. Velting
9:40 – 10:00am Coverage Issues
Fraud Theft Joyriding Excluded Drivers Excluded Drivers
Priorities Parked Vehicles Alighting ORV’s UM/UIM
Speaker: Thomas G. Herman
10:00 – 10:15 am Break
10:15 – 10:35 am The Medical Marihuana Controversy
Overview of Michigan Medical Marihuana Act How to Obtain It Compensable Benefit in
Michigan under the No-Fault Act?
Speaker: Sarah L. Walburn
10:35 – 10:55 am No-Fault Home Accommodation Claims
Griffith v. Wilcox
Speaker: Emily L. Partridge
10:55 – 11:15 am Third-Party Auto Threshold & Renewed Importance of Surveillance
Life After “McCormick” Surveillance and “the Pay Off”
Speaker: L. Ladd Culbertson
11:15 – 11:45 am Michigan Auto No-Fault Update
Case Law Update Year in Review and Anticipated
Future Case Law Development
Speaker: David N. Campos
11:45 – noon Questions and Answers

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GARAN LUCOW MILLER
INDY CITY SEMINAR – INDIANA & MICHIGAN LAW
May 18, 2011 at the Marriott Downtown Indianapolis
Garan Lucow Miller, P.C. is pleased to present our sixth annual seminar covering Indiana and
Michigan Law on May 18, 2011 at the Marriott Downtown Indianapolis, 350 W. Maryland Street,
Indianapolis, IN 46225 (317) 822-3500. The day will begin with a continental breakfast and registration at
8:30 a.m. followed by the program. Comprehensive written materials will be distributed to all seminar
attendees.
If you are able to attend this complimentary event, please register via e-mail to Eileen Carty at:
ecarty@garanlucow.com or phone Ms. Carty at (800) 875-7600 for reservations. We hope to see you there!
8:30 – 8:55 Continental Breakfast & Registration
8:55 – 9:00 Welcome and Introduction
Speaker: David A. Couch
9:00 – 9:30 First Party Indiana Law Updates
Speaker: Gregory M. Bokota
9:30 – 10:00 Third Party Indiana Law Updates
Speaker: Jennifer L. McCloskey
10:00 – 10:30 Using Social Networking Sites as a Discovery Tool
Speaker: David A. Couch
10:30 – 10:45 Break
10:45 – 11:15 Michigan First Party No-Fault (PIP) Updates
Speaker: David N. Campos
11: 15 – 11:45 Criminal Defense in Catastrophic Injury Cases,
& the Impact of Criminal Restitution on Civil Liability and Subrogation
Speaker: L. Ladd Culbertson
11:45 – 12:00 Michigan Third Party Automobile Negligence Updates
Speaker: David A. Couch
12:00 – 12:30 Panel Discussion on Deposition Strategies and Tips for Testifying Effectively
Moderator: David A. Couch
12:30 – 1:00 Question and Answer Session

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UPCOMING SEMINARS
The Troy Breakfast Seminar will be held on Thursday October 27, 2011 at the Troy Marriott.
Please watch Law Fax for further information.