The First Call If You Fall Is
The Law: What Drivers Need To Know About Motor Vehicle Laws
In a Motor Vehicle* accident there are basically two types of claims:
The First Party Claim deals with an auto insurance company paying for the following benefits:
First Party Benefits are payable to anyone who suffers an injury "arising out of* the ownership*, operation*, maintenance* or use* of a motor vehicle* as a motor vehicle*". First Party benefits are available regardless of fault. Even if the accident was 100% your fault you are entitled to No-Fault benefits if you fit the definition above.
The Third Party Claim deals with the negligent driver/owner potentially paying the victim or family compensation for pain and suffering or other applicable damages.
"Allowable Medical Expenses" means:
The Third Party claim is against the driver and/or owner of the other vehicle* involved and may compensate and pay restitution to the victim(s) (or family, if deceased) for their pain and suffering, disfigurement*, death and/or excess wage loss. The other driver and/or owner of the other vehicle must have been negligent in some way that caused the injury.
In order to receive even a dollar for your pain and suffering in a Third Party case, even if a drunk driver rear ends you, you must have a "Threshold Injury" which is defined as one of the following:
Most cases fall into the third category of Serious Impairment of an Important Bodily Function*. This is a legal term and is defined by statute as follows:
The Statute of Limitations or time a person has to file a Third Party lawsuit is three years. If you do not bring a lawsuit within three years of the date of the accident, a Court will bar (not allowed by law) you from bringing a suit afterwards. If alcohol is involved, see the later section entitled, "Dramshop Actions."
Excess wage loss (economic loss which exceeds the statutory No-Fault maximum) is available if you are restricted from work for more than three years and/or if you make more than the maximum benefit amount for wage loss per month. The maximum amount goes up each year. It presently is $5451 (2018). It goes up on the average of $60 - $100.00 per year.
(WAGE LOSS, MEDICAL BILLS, MILEAGE & REPLACEMENT SERVICES)
To ascertain which auto insurance company is responsible for paying your First Party Benefits, you must
first determine which TYPE of victim you are. The following are your choices:
If you are an OCCUPANT of a privately owned motor vehicle, the order of priority* as to which company is responsible for paying your First Party benefits is:
The order of priorities for a NON-OCCUPANT* (pedestrian, jogger, bicyclist, etc.) of a motor vehicle is:
The order of priorities for anyone on a MOTORCYCLE is as follows:
The above numbered terms have legal definitions; the circumstances in which you were injured determine the category you fall under. Unusual circumstances like entering or exiting a vehicle, riding on top of a vehicle, riding on a trailer attached to a vehicle, pushing a motorcycle, hanging out of the sunroof of a vehicle, or driving an unusual vehicle like a forklift, bulldozer, or bicycle may affect which category you fall into, if any. Further, the law will have special ramifications with unusual situations like these. All of the possible scenarios are too numerous to distinguish and discuss here.
WARNING: All bills and requests for payment must be submitted to the responsible automobile insurance company within one year of the date that they are incurred. It is important to know that the Statute of Limitations for First Party Benefits is one year from the date of the expense. This means that in order to protect your rights and force the insurance company to pay a medical bill, a lawsuit must be filed within one year of incurring the expense. Medical treatment and care in Michigan is provided for life.
Writer's Tip: I recommend contacting the First Party Insurance adjuster two months before the year anniversary of the automobile accident and ask them specifically if the emergency room bill and other medical bills submitted to the automobile insurance company have been paid. I further recommend calling each facility/doctor that treated you to inquire if they have a bill not yet paid by the automobile insurance company. If so, you must proceed to file a lawsuit within one year of the outstanding bill. It must be noted that the victim is barred, (cannot recover) from receiving No-Fault benefits that are more than one year old of the date the suit was filed. This is called a One Year Back Rule.
The one year Statute of Limitations applies to all First Party Benefits, not just medical bills. If you are owed wage loss, replacement services or medical mileage, a lawsuit must be filed within one year.
Exclusions: Certain individuals are excluded from receiving First Party Benefits:
After determining which automobile insurance company is responsible for paying your First Party benefits, (wage loss, medical bills, replacements and medical mileage) you must make a claim with the correct auto insurance company or Facility.
You must fill out an Application for No-Fault Benefits Form (Benefits Form). It is obtained from the automobile insurance company responsible for paying your First Party Benefits. This Benefit Form has 3 places for you to sign, two on the bottom front and one on the back. Many people forget to sign the back page and it holds up payment of their benefits.
Writer's Tip: It is important to fill out this piece of paper accurately for it may be obtained and used against you by the at-fault driver's insurance company to discredit you as to your version of the accident and the injuries you are claiming. Many people do not give an all encompassing list of everything that hurts them. As a result, some may argue that you are claiming a "new injury" that is not listed on the Benefit Form.
Once the Benefits Form is received by the insurance adjuster, there are two important documents that the adjuster needs before s/he can pay wage loss and other benefits:
The Wage Verification Form is filled out by your employer or payroll department swearing that you were working at the time of the accident or had an Expectation of Employment* with their company, the hours that you worked, the amount you made, etc. It is this form the adjuster will use to figure out how much to pay you.
The doctor's Disability Certificate is filled out by your doctor, and indicates that you are restricted from doing certain things because of your injury and that your injury is related to the motor vehicle accident.
Writer's Tip: Many doctors simply write "patient can't work from (date) to (date)." This form is not complete enough to pay you Replacement Services because it does not specifically state "restricted from Household Activities or chores".
Individuals that have their own businesses are generally looked at with great scrutiny. Usually they cannot show pay stubs and the adjuster may request copies of past tax returns, 1099's, etc. Further, they may forward the job of ascertaining wage loss to an accounting firm who will ask you to sign IRS authorization forms so they can directly access all tax documents.
Once the adjuster receives the Wage Verification Form and the Disability Certificate and/or any other documentation necessary to evaluate whether you are entitled and how much to pay First Party benefits, they have 30 days to not pay or deny the claim. Failing to pay these items within 30 days subjects the auto insurance company to having to pay interest.
SUMMARY: The adjuster needs the following before they can pay:
The assigned claims facility may reimburse the following:
- Reasonable* charges for medical care, recovery & rehabilitation;
- Up to $1,750.00 for funeral and burial expenses;
- Lost wages for up to 3 years after the accident;
- Lost wages and expenses to a survivor for up to 3 years after the victims death;
- Up to $20.00 per day for services such as transportation, home maintenance or other tasks the victim cannot perform because of their injury;
- The Plan does not cover property damage claims.
If there is a Will, the deceased probably has named someone as his or her Personal Representative; that person would probably be appointed by the Probate Court. In the absence of a Will, the following is a list of the people who have priority of becoming Personal Representative:
WARNING/CAVEAT: Letters of Authority are issued by the Probate Court giving the Personal Representative the power to sue. The date of the issuance of the Letters of Authority is a significant date because a two year Statute of Limitations period may begin to run when the Personal Representative has the capacity to bring a lawsuit. Check with an attorney for specifics.
Arrangements can be made to have the Court order Co-Personal Representatives (more than one person) to serve as Personal Representative. The person with the highest priority under the law can waive his/her right to be Personal Representative and appoint someone else who has priority; this is subject to Court approval.
The Personal Representative of the deceased's Estate has the power to hire a personal injury attorney and make decisions on behalf of the Estate such as payment of debts.
The damages that can be sued for in a Wrongful Death action include:
The applicable auto insurance company is liable for certain benefits to the surviving dependents* of the deceased. There are two types of Survivor's loss benefits.
The first, replaces "contributions of tangible things of economic value." This has been held by courts to cover more than just wage or salary income. The second covers replacement services. There are many factors to consider, but this generally brakes down to potentially receiving:
• Replacement services $600 a month for 3 years;
• Up to the Maximum Wage Loss Amount ($5,451 for 2018) per month for 3 years;
The monthly combined maximum for BOTH will not exceed the Maximum Wage Loss Amount. Therefore, in a 2018 claim, the surviving dependents will never receive more than $5,451per month
If the at-fault driver in your accident was under the influence of alcohol*, you may have an additional claim or suit against an additional defendant or defendants. This may open the door to more individuals or entities that have insurance policies that could pay compensation.
The name for the cause of actions that involve alcohol are called Dramshop Actions. A Dramshop Action is an action for personal injuries and/or property damage arising out of the unlawful furnishing of alcohol by someone or some company with a liquor license.
If the person furnishing the alcohol did not have a liquor license they may still be responsible under the general theories of negligence and/or social host liability law. There are certain unique aspects of Dramshop cases. Some include:
An adult driver must have been visibly intoxicated at the time s/he was served alcohol. This is not required if a minor was served alcohol.
Michigan's No-Fault law does not allow you to sue for the full damage to your vehicle. There are some exceptions. You can sue the at-fault driver for your vehicle's damage:
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