The following are recent cases where an injured person sued a negligent motor-vehicle operator who caused the accident and subsequent injury. Bicyclists and motor-vehicle drivers are subject to exactly the same No-Fault Law analysis. Remember: only injuries that meet a certain threshold are eligible for compensation for pain and suffering (“non-economic injuries”). According to the Michigan No-Fault Statute, the threshold to recover must be met in one of three ways: death; serious impairment of a bodily function; or a permanent serious disfigurement. The Michigan Supreme Court sets the minimum threshold for the three ways to recover through its written decisions. If an injured party (all bicyclists included) does not meet the threshold, he or she is only eligible for reimbursement for medical treatment from his/her own motor-vehicle insurer and cannot recover damages from the negligent driver or his/her insurer for any pain and suffering.
In Davis v Buie (Wayne County Circuit Court, 2009), a 44-year-old automobile driver was injured when she was rear-ended. The plaintiff did not complain of any injury at the scene of the accident and damage to her vehicle was minimal. She did not go to the hospital immediately, but went later the same day.
Her first treatment was from a chiropractor, who treated her for several months for neck and back pain. MRI tests showed bulging and herniated discs in her neck and back. She also suffered from chondromalacia (an anterior knee pain stemming from irritation of the cartilage on the undersurface of the kneecap) and eventually underwent two right knee surgeries, consisting of arthroscopy, tricompartmental chondroplasty, medial arthroplasty and synovectomy. She also suffered from depression, anxiety, sleep disturbance, pain, fatigue, anger and frustration, all secondarily from the accident. She was also treated by a psychologist for these injuries.
The motor-vehicle insurer for the negligent driver sent the plaintiff for an independent medical examination, which found that some of her injuries were indeed accident-related and ultimately restricted some of her activities. The plaintiff was allowed to recover money for her pain and suffering.
In Plaggemeyer v Lee (Michigan Court of Appeals, 2008), the Court found that plaintiff’s fractured femur and its temporary effect on his ability to walk was not a serious impairment of a bodily function. The Court stated that “although plaintiff first used a walker, then crutches, and finally a cane when needed, he was able to walk. Walking with assistance is not the same as being unable to walk at all.” Plaintiff’s broken femur has not affected his general ability to live his normal life. Plaintiff can walk without assistance, perform unrestricted duties at his job, do some yard work and home maintenance, and engage in recreational activities.
Plaintiff also argued that he suffered a permanent serious disfigurement because he has a surgical scar on his thigh and his leg is now smaller in diameter due to atrophy. The Court did not allow compensation. They acknowledged that the scar in question is approximately eight inches long, fairly narrow, is situated on plaintiff’s upper left thigh and is slightly different in color than the surrounding skin and stated that by “all indications, the scar is permanent.” However, applying “common knowledge and experience,” the Court ruled that the scar is not a serious disfigurement because it “will generally be concealed and will not be readily apparent.”
In Minter v City of Grand Rapids (Michigan Supreme Court, 2008), a person sustained a facial scar due to the negligence of a motor-vehicle operator. The scar was above the plaintiff’s eyebrow and prevented her from moving her eyebrow normally. The Supreme Court held that the plaintiff’s facial scar did not meet the no-fault standard for serious disfigurement.
Bottom Line: Since 2002, the Michigan Supreme Court has set the threshold to recover damages for pain and suffering very high. Arguably, the threshold is much higher than was originally meant by the legislature when it passed the No-Fault Statute in 1972. Even though the same no-fault analysis applies to both bicyclists and motor-vehicle drivers as far as meeting the threshold to recover for pain and suffering, there are subtle differences in proving negligence when a bicyclist sustains an injury in a motor-vehicle accident. It is imperative to seek experienced legal counsel as soon as possible after you have been injured in an accident, so you can best ensure that you receive a fair chance to recover all the compensation to which you may be entitled. For more information on this topic, please refer to our previously published article entitled, “The Pitfalls of Representing Yourself.”
As always, feel free to e-mail us at firstname.lastname@example.org with your questions and comments. Enjoy the summer and ride safely!
Categorised in: Legal