Automobile Insurance SubrogationAutomobile Total Loss ThresholdsDeductible ReimbursementDiminution of ValueFuneral Procession Traffic LawsImputing Contributory Negligence of Driver to Vehicle OwnerLaws Regarding using Cell Phones/Headphones/Texting While DrivingLoss Of UseMed Pay/PIP SubrogationNo Pay, No Play LawsOwner Liability For Stolen VehiclesPayment of Sales Tax After Vehicle Total LossPedestrian and Crosswalk LawsRental Car Company Physical Damage and Loss of Use ClaimsRental Car Company’s Liability Insurance Primary or ExcessSlower Traffic Keep RightSudden Medical Emergencies While DrivingSuspension of Drivers’ LicensesUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Federal , State, and Local Governmental EntitiesMunicipal/County/Local Governmental Immunity and Tort LiabilityState Sovereign Immunity And Tort Liability
General Tort Laws/StatutesAnti-Indemnity StatutesContribution ActionsContributory Negligence/Comparative FaultDog Bite LawsEconomic Loss DoctrineParental ResponsibilitySpoliationStatute of LimitationsStatute of Limitations Exceptions
Health Insurance SubrogationHealth and Disability Insurance
InvestigationAdmissibility of Expert TestimonyPre-Suit Disclosure of Liability Policy Limits in Third-Party ClaimsRecording Conversations
Product Liability SubrogationProduct Liability Law
Property Subrogation“Matching Regulations” And Laws Affecting Homeowners Property ClaimsCondominium/Co-Op Waiver of Subrogation LawsDamage to Property Without Market ValueGeneral Contractor Overhead And Profit Payments In First-Party ACV Property Damage ClaimsLandlord/Tenant Subrogation
Subrogation GenerallyAnti-Subrogation RuleCriminal RestitutionMade Whole DoctrineMedical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Workers’ CompensationEmployee Leasing LawsHospital Lien LawsOCIP/CCIP Subrogation In Workers’ Compensation Construction CasesRecovery Of Increased Workers’ Compensation Premiums By EmployerWhich Workers’ Compensation “Benefits” Can Be Subrogated?Workers’ Compensation Subrogation Waiver EndorsementsWorkers’ CompensationWorkers’ Compensation Claims by Undocumented Employees
Automobile Insurance Subrogation
Automobile Total Loss Thresholds
Percentage of Value: 75%
If cost of repair, including parts and labor, is between 75% and 91% of the actual cash value, then a salvage title is given. It then is a “distressed vehicle.” M.C.L.A. §257.217c(2)(b)(I).
Automobile and Property: No applicable statute, Administrative Code provision or case law exists.
Diminution of Value
First Party: Insurers’ obligation under auto policies to “repair or replace” did not require payment for diminution in value of vehicle as result of accident, where provisions expressly limited coverage to lesser of actual value or cost of repair. Driscoll v. State Farm Mut. Auto. Ins. Co., 227 F. Supp.2d 696 (E.D. Mich. 2002).
Third Party: No court decisions regarding recovery allowed for diminution in value of a damaged vehicle in a third-party claim.
Funeral Procession Traffic Laws
Michigan law gives funeral processions the right-of-way at intersections, but it is not specific with respect to traffic signals. Funeral processions have the right-of-way over all other vehicles, except emergency vehicles, when it is going to a cemetery. The vehicles in the procession must display a special orange flag to be accorded this privilege. The law contains no provision requiring lighted headlights. The Michigan courts have apparently defined “place of burial” to include the procession to both the place where the services are conducted and the cemetery. However, the law is not specific with respect to intersections controlled by traffic lights, but Michigan courts have interpreted it to include signalized intersections as well, although the driver in the procession is expected to exercise due care. Mentel v. Monroe Public Schools, 209 N.W.2d 506 (Mich. App. 1973). Michigan law prohibits passing through a funeral procession. Mich. Comp. Laws § 257.654.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Driver’s contributory negligence could not be imputed to owner in owner’s suit for damage to vehicle caused by third party, but the driver’s negligence is imputed to owner if owner is employer of driver. Nagele-Kelly Mfg. Co. v. Hannak, 164 N.W.2d 540 (Mich. App. 1968).
Driver’s negligence is not imputed to owner by virtue of vicarious liability statute. M.C.L.A. § 257.401; Id.
Co-ownership of vehicle by husband and wife does not give a realistic right of control so as to allow imputed contributory negligence. Stover v. Patrick, 459 S.W.2d 393 (Mo. 1970).
Vicarious Liability/Family Purpose Doctrine: Owner is liable for an injury caused by the negligent operation of the motor vehicle driven with owner’s express or implied consent or knowledge. It is presumed that the motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of the injury by his or her spouse, father, mother, brother, sister, son, daughter, or other immediate member of the family. M.C.L.A. § 257.401.
No Family Purpose Doctrine. Shaler v. Reynolds, 360 Mich. 688, 104 N.W.2d 779 (1960).
Sponsor Liability for Minor’s Driving: No sponsorship liability statute. However, liability can be statutorily imposed on parents if a minor willfully and maliciously causes damages to property or injury to a person under M.C.L.A. § 600.2913.
Laws Regarding using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: No person shall read, manually type, or send a text message on a wireless communication device in a hand-held manner while operating a motor vehicle. M.C.L.A. § 257.602b(1).
An individual with a level 1 or level 2 graduated license shall not use a cell phone in a hand-held manner while operating a motor vehicle. Voice operated use is allowed if it is integrated into the vehicle. Exceptions include emergency situations, reporting an accident, or road hazard. M.C.L.A. § 257.602c(1).
Other Prohibitions: No Applicable Laws*
Comments: All local and city laws are preempted by state law. M.C.L.A. § 257.602b(6).
*You can be cited for careless driving if it is deemed the headphones caused the accident.
Loss Of Use
Loss of Use: Yes. The plaintiff may present the reasonable value of the use of their car while it is being repaired. Andries v. Everitt, Metzger, Flanders Co., 142 N.W. 1067 (Mich. 1913). No other guidance is provided on how to calculate loss of use damages. No case law information regarding whether a rental vehicle must actually be rented in order to use a rental value as a loss of use calculation. There is no case law expressly disallowing recovery for loss of use on a total loss claim. Accordingly, there is a strong argument that such a claim can be sustained, especially with favorable policy language
Lost Profits: No case law or statutory support for lost profits as a measure of loss of use damages.
Med Pay/PIP Subrogation
Med Pay: No. Same as PIP.
PIP: Yes. Subrogation allowed only if (1) for damage to parked vehicle (M.C.L.A. § 500.3123(1)(a)) or building or other property (M.C.L.A. § 500.3121); (2) third-party uninsured (M.C.L.A. § 500.3135); (3) can recover from insurer of operator of vehicle uninsured by owner if no policy exclusions; (4) accident occurs out-of-state (M.C.L.A. § 500.3116(2)); (5) intentionally-caused harm to persons or property (M.C.L.A. § 500.3116(2)); or (6) third party is out-of-state vehicle. State Auto Ins. Co. v. Velazquez, 703 N.W.2d 223 (Mich. App. 2005) (Note that the availability of subro when third party is out-of-state vehicle as per Velazquez has been called into question in the unpublished opinion in Grange Ins. Co. of Michigan v. Benteler Automotive Corp., 2017 WL 2704911 (Mich. App. 2017) (unpublished).
*No-Fault State. Verbal threshold. No-fault benefits cover medical costs, lost wages up to three years, and replacement services. No third-party suit allowed unless (1) intentional act; (2) non-economic damages for death, serious impairment or disfigurement; or (3) loss of wages and survivor’s loss in excess of daily, monthly and specified time limitations in the No-Fault Act. M.C.L.A. § 500.3135. If threshold is met, can sue for economic damages above and beyond no-fault benefits received and non-economic damages. Limited property damage liability (“mini-tort”) allows victim to recover up to $500 of vehicle repair costs (deductible). Primary focus of third-party litigation involves non-economic damages.
The three (3) year personal injury statute of limitations runs from date of insured’s accident. M.C.L.A. § 600.5805. The statute of limitations runs one year after accident to make first-party PIP claim. M.C.L.A. § 500.3145.
No Pay, No Play Laws
Rule: Damages shall not be assessed in favor of an injured motorist who, at the time of the accident, did not have the requisite insurance by law.
Authority: M.C.L.A. § 500.3135(2)(c).
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: Mich. Admin. Code R. § 28.1458.
Common Law Rule: The act of the thief stealing a car is too attenuated to impose a duty on the defendant. Terry v. City of Detroit, 573 N.W.2d 348 (Mich. Ct. App. 1997).
Payment of Sales Tax After Vehicle Total Loss
First-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax.
Third-Party Claims: No third-party collision litigation allowed due to no fault.
Pedestrian and Crosswalk Laws
Note: There is no state statute governing crossing at sidewalks.
Mich. Admin. Code R 28.1438 (Uniform Traffic Code for Cities, Townships, and Villages): A driver may not enter an intersection or a marked crosswalk unless there is sufficient space on the other side of the intersection or crosswalk to accommodate the vehicle he or she is operating without obstructing the passage of other vehicles or pedestrians, notwithstanding any traffic-control signal indication to proceed. Traffic safety groups are calling for a universal Michigan state crosswalk law.
Summary: Michigan does not have a state crosswalk law. Instead, the Michigan State Police recommend that municipalities adopt the Michigan Uniform Traffic Code wherein drivers are required only to yield to pedestrians, and not necessarily stop for them, when they are attempting to enter the street from the curb and not a crosswalk. Most municipalities have adopted the Code, but some have their own ordinances. For example, Ann Arbor requires that all vehicles stop, and not just yield, for pedestrians standing at the curb, curb line, ramp leading to a crosswalk, or within a crosswalk. Ann Arbor Ord. No. 10-148. Traverse City requires drivers to yield to pedestrians in unmarked crosswalks and stop for pedestrians in marked crosswalks. Pedestrians have the right to cross the street at street crossings even on a through street. They are not required to anticipate that drivers will violate ordinances, statutes, or rules of safety. Drivers must anticipate the presence of pedestrians at street crossings, and, when they so drive that they cannot see whether the crossing is clear, they must have their car under such control as to meet conditions which may be reasonably expected. Wisnaski v. Afman, 67 N.W.2d 731 (Mich. 1954).
Rental Car Company Physical Damage and Loss of Use Claims
Recovery From Renter: Even if Property Protection Insurance (PPI) coverage (no-fault) covers accident-related damage to a rental car, the renter’s personal auto policy will likely not cover renter’s liability for physical damage, repair costs, and loss of use damage. Recovery of physical damage and loss of use are not prohibited or otherwise regulated. Terms of rental agreement control.
Recovery From third-Party: Property Protection Insurance (PPI) benefits consist of the lesser of reasonable repair costs or replacement costs less depreciation and, if applicable, the value of loss of use. Due to no-fault laws traditional loss of use damages not recoverable from third party.
Rental Car Company’s Liability Insurance Primary or Excess
Summary: Under Michigan No-Fault Act, a car rental company must provide primary liability coverage to renters. Mich. Stat. § 500.3101; State Farm Mutual Automobile Ins. Co. v. Enterprise Leasing Co., 549 N.W.2d 345 (Mich. 1996). A rental contract may lower the liability limit requirement of the owner’s insurer, as long as the owner’s insurer remains primary and provides coverage equal to or above the minimum amounts required by the No-Fault Act. Ryder Truck Rental, Inc. v. Auto-Owners Ins. Co., Inc., 597 N.W.2d 560 (Mich. App. 1999). Any coverage provided by the car rental company above the minimum limits it was required by statute to provide was not primary because it was not “valid and collectable insurance” available to the insured. Church Mutual Ins. Co. v. Save-a-Buck Car Rental. Co., 151 F.Supp.2d 905 (W.D. Mich. 2000). Under No-Fault Law, a person suffering damage must first claim benefits from the vehicle owner, and then from the vehicle operator. Mich. Stat. § 500.3125.
Slower Traffic Keep Right
Statute: M.C.L.A. § 257.634 and M.C.L.A. § 257.637.
Summary: Drivers must drive in the right lane except when passing another vehicle; when the right lane is closed due to construction, repair, or an obstruction; when a vehicle operated by state agency or local authority is working on the roadway; and upon a roadway with three marked lanes. Trucks with gross weight over 10,000 lbs., truck tractors, or combination of vehicle and trailer or semi-trailer must use two right lanes on freeways with three or more lanes, except to turn left or where a special hazard exists. Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal.
Sudden Medical Emergencies While Driving
Sudden Emergency Doctrine. If a driver acts according to his or her best judgment, or who, because of lack of time in which to form a judgment, omits to act in the most judicious manner is not chargeable with negligence if the emergency was not brought about by the party’s own negligence. 9 Mich. Pl. & Pr. § 65:111 (2nd Ed.); White v. Taylor Distrib. Co., 753 N.W.2d 591 (2008).
Although not included in the Sudden Emergency Instruction, a sudden emergency must have been unusual or totally unexpected in order for a jury to receive the Sudden Emergency Instruction. 9 Mich. Pl. & Pr. § 65:111 (2nd Ed.).
Suspension of Drivers’ Licenses
Administrative Suspension: Once the Secretary is in receipt of the application needed, he will forward notice of the application to the owner and/or driver of the uninsured vehicle. M.C.L.A. § 257.1106(2). The uninsured driver’s license will be suspended until the damages are repaid or installment agreement has been entered into. M.C.L.A. § 257.1106(5).
Judgment: If a judgment debtor fails to satisfy a judgment within thirty (30) days, the court will send a certified copy of an unsatisfied judgment to the Secretary of State, who will thereafter suspend the driver’s license/registration of the judgment debtor. M.C.L.A. § 257.512. Suspension will remain in effect until the judgment is satisfied, and the debtor files installment repayment agreement. The maximum is 20 years. M.C.L.A. § 257.513.
Contact Information: State of Michigan, Department of State, Lansing, MI 48918, (888) 767-6424, http://www.michigan.gov/sos.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: M.C.L.A. §§ 257.1361 to 1364.
Summary: If an insurer requests the repair shop to use non-OEM parts, those parts may only be used if the insured receives a written estimate that clearly identifies the non-OEM parts and informs the insured that the part’s manufacturer, distributor, or insurer warrants the parts.
Federal , State, and Local Governmental Entities
Municipal/County/Local Governmental Immunity and Tort Liability
Governmental Tort Liability Act: M.C.L.A. §§ 691.1401 through 1419 (1986). Governmental agency (including political subdivisions) is immune if engaged in a governmental function (activity expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law). M.C.L.A. §§ 691.1407(1). Governmental immunity is to be broadly construed, unless a narrowly drawn exception applies in a claim. Nawrocki v Macomb County Road Comm., 615 N.W.2d 702 (Mich. 2000).
Notice Deadlines: Notice of claim must be filed within 120 days and served on the municipal employee appointed to accept service of complaints, (extended up to 180 days if disability). Substantial compliance is okay. M.C.L.A. § 600.1404. All claims must be filed with the Clerk of the Court of Claims within one year after such claim has accrued. M.C.L.A. § 600.6431. Court of Claims has exclusive jurisdiction over claims made against the State. M.C.L.A. § 600.6419.
Claims/Actions Allowed: Governmental agency is immune from tort liability if engaged in the exercise or discharge of a governmental function. A State employee will be immune from tort liability if: (1) acting or reasonably believes they are acting within the scope of employment; (2) the governmental agency is engaged in the exercise of a governmental function; or (3) does not involve gross negligence or an intentional act. M.C.L.A. § 691.1407. Immunity does not apply when engaged in a proprietary function (any activity which is conducted primarily for the purpose of producing a pecuniary profit for the governmental agency). M.C.L.A. § 691.1413.
Comments/Exceptions: Specific exceptions to immunity: (1) maintenance of public highways (knew or should have known of defect), M.C.L.A. § 691.1402; (2) negligent operation of a government-owned motor vehicle,* M.C.L.A. § 691.1405; (3) public building defects, M.C.L.A. § 691.1406; (4) performance of proprietary functions by government entities, M.C.L.A. § 691.1413; (5) medical care or treatment provided to a patient, M.C.L.A. § 691.1407(4); and (6) sewage disposal system events, M.C.L.A. § 691.1417. *Municipal employee’s personal liability when driving his own vehicle or the municipality’s vehicle is restricted to actions found to be “grossly negligent.” Alex v. Wildfong, 594 N.W.2d 469 (Mich. 1999).
Damage Caps: None. Punitive damages are generally not recoverable unless authorized by statute. Casey v. Auto Owners Ins. Co., 729 N.W.2d 277 (2006).
State Sovereign Immunity And Tort Liability
Tort Claims Act: Governmental Tort Liability Act. M.C.L.A. §§ 691.1401 through 1419 (1986).
Governmental agency (including state) is immune if engaged in a governmental function (activity mandated or authorized by constitution, statute, local charter or ordinance, or other law). M.C.L.A. §§ 691.1407(1). Governmental immunity is to be broadly construed, unless a narrowly drawn exception applies in a claim. Nawrocki v Macomb County Road Comm., 615 N.W.2d 702 (Mich. 2000).
Notice Deadlines: Notice of claim must be filed within 120 days and served on the municipal employee appointed to accept service of complaints, (extended up to 180 days if disability). Substantial compliance is okay. M.C.L.A. § 600.1404. All claims must be filed with the Clerk of the Court of Claims within one year after such claim has accrued. M.C.L.A. § 600.6431. Court of Claims has exclusive jurisdiction over claims made against the State. M.C.L.A. § 600.6419.
Claims/Actions Allowed: The State is immune from tort liability if engaged in the exercise or discharge of a governmental function. A State employee will be immune from tort liability if:
(1) acting or reasonably believes they are acting within the scope of employment;
(2) the governmental agency is engaged in the exercise of a governmental function; or
(3) does not involve gross negligence or an intentional act.
M.C.L.A. § 691.1407.
Immunity does not apply when engaged in a proprietary function (any activity which is conducted primarily for the purpose of producing a pecuniary profit for the governmental agency).
M.C.L.A. § 691.1413.
Comments/Exceptions: Specific exceptions to immunity:
(1) maintenance of public highways (knew or should have known of defect), M.C.L.A. § 691.1402;
(2) negligent operation of a government-owned motor vehicle,* M.C.L.A. § 691.1405;
(3) public building defects, M.C.L.A. § 691.1406;
(4) performance of proprietary functions by government entities, M.C.L.A. § 691.1413;
(5) medical care or treatment provided to a patient, M.C.L.A. § 691.1407(4); and
(6) sewage disposal system events, M.C.L.A. § 691.1417.
*Municipal employee’s personal liability when driving his own vehicle or the municipality’s vehicle is restricted to actions found to be “grossly negligent.” Alex v. Wildfong, 594 N.W.2d 469 (Mich. 1999).
Damage Caps: None.
Punitive damages are generally not recoverable unless authorized by statute. Casey v. Auto Owners Ins. Co., 729 N.W.2d 277 (2006).
General Tort Laws/Statutes
Prohibits Broad Indemnity. Applies to Construction Contracts. Mich. Comp. Laws § 691.991.
Applicable to all contracts entered into before and after enactment of statute, but only when act of negligence occurs after statute enactment.
Pure Several Liability. Several liability, but with many exceptions, including medical malpractice cases. Mich. Comp. L. § 600.6304; Driver v. Naini, 802 N.W.2d 311 (Mich. 2011).
Judgment. Contribution plaintiff who satisfies all or part of a judgment for which he is jointly liable is entitled to contribution only if the contribution defendant was made a party to the original action and a reasonable effort was made to notify him of the commencement of the action. M.C.L.A. § 600.2925 a, b, c. A separate action must be filed within one year after judgment has become final by lapse of time for appeal or after appellate review for statute of limitation.
Settlement. A tortfeasor who enters into a settlement with the claimant is entitled to bring an action for contribution when the contribution defendant’s liability was extinguished by the settlement, a reasonable effort was made to notify him of the settlement negotiations, and he was given a reasonable opportunity to participate in the settlement negotiations. A separate action barred unless contribution plaintiff has paid within three year statute of limitations applicable to plaintiff’s right of action against him and has commenced his contribution action within one year after payment – unless contribution plaintiff has agreed while underlying action is pending against him to discharge common liability and, within one year after the agreement, paid liability and commenced his contribution action. M.C.L.A. § 600.6304.
Contribution may be enforced by motion or a separate action. Liability insurer is subrogated to rights of contribution plaintiff. Gerling Konzern Allgemeine Versicherungs AG v. Lawson, 684 N.W.2d 358 (Mich. 2004)
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 51% Bar. At 51% fault, plaintiff’s economic damages reduce and non-economic damages are barred. Damaged party cannot recover if it is 51% or more at fault. If 50% or less at fault, it can recover, although its recovery is reduced by its degree of fault. Plaintiff’s recovery may be reduced by percentage of loss attributable to him, and at 51% fault, plaintiff’s economic damages are reduced and non-economic damages are barred. M.C.L.A. § 600.2959.
Dog Bite Laws
Dog owner will be liable for all damages resulting from a dog bite when the victim is either on public property, or lawfully on private property. Mich. Comp. Laws Ann. § 287.351.
Economic Loss Doctrine
Intermediate Rule. Commercial Purchase. Michigan employs the ELD, but only when the transaction involves two commercial parties. Niebarger v. Universal Cooperatives, 486 N.W.2d 612 (Mich. 1992). By stating that the ELD applies to the sale of goods for commercial purposes as opposed to the sale of goods to consumers, the court in Niebarger appeared to limit the ELD to cases involving only commercial parties. The Doctrine does not operate to bar tort claims in lawsuits concerning “the sale of defective products to individual consumers who are injured in a manner which has been traditionally been remedied by resort to the law of torts”. Frankenmuth Mut. Ins. Co. v. Ace Hardware, 899 F.Supp.2d 348 (W.D. Mich. 1995). Michigan recognizes, even between commercial parties, a fraud-in-the-inducement exception to the ELD, which addresses situations where one party was tricked into contracting. Huron Tool & Eng’g Co. v. Precision Consulting Services, Inc., 532 N.W.2d 541 (Mich. App. 2001). In addition, Michigan will not extend the ELD to cover the tort of the implied covenant of good faith and fair dealing in performance of a contract. Masters Grp. Int’l, Inc. v. Comerica Bank, 2015 WL 4076816 (Mont. 2015).
In State Farm Fire & Casualty Co v. Ford Motor Co., 2010 WL 866149 (Mich. App. 2010), the plaintiff purchased a used 1994 Ford F-150 pick-up truck which started on fire some years later in his garage as the result of a defective cruise control. Ford filed a motion for summary judgment based on the ELD as set forth in Niebarger. The Court held that the ELD did not bar the claim because the loss by fire was not anticipated or contemplated by the plaintiffs when they, or even a previous owner, first purchased the vehicle.
When it does apply, the Michigan ELD is broadly applied because it applies to bar recovery of damage to even other property when this damage was within the contemplation of the parties to the agreement. Quest Diagnostics, Inc v. MCI Worldcom, Inc., 656 N.W.2d 858 (Mich. 2002). The ELD does not apply to service contracts. Id. However, the ELD will not bar a claim for damage to “other property” resulting from a defective product. State Farm Fire and Casualty v. General Electric Company, 2020 WL 39992 (Mich. App. 2020).
In applying Michigan’s ELD, courts have had to go beyond the UCC to define “commercial transaction,” because “nothing about Article 2 [of the UCC] addresses the distinction between commercial purchases and consumer purchases.” Vincent A. Wellman, Assessing the Economic Loss Doctrine in Michigan: Making Sense Out of the Development of Law, 54 WAYNE L. REV. 791 (2008).
In a 2022 federal court decision, the issue was whether a water supply line which caused damage to a commercial building was part of a commercial transaction. Liberty Ins. Corp. v. LSP Products Group, Inc., 582 F. Supp. 3d 496 (E.D. Mich. 2022). In that case, the court asked whether, drawing all inferences in the light most favorable to the plaintiff (subrogated carrier), was the damaged building a commercial enterprise that purchased the water supply lines and used them in a commercial setting? The court answered “yes” and denied the claim due to the ELD. The ELD will apply merely if a building owner purchases the water supply lines for a commercial purpose; it does not matter whether the seller was the manufacturer or some third-party installer. What matters is that the commercial purchaser of the supply lines had “the opportunity to negotiate the terms and specifications, including warranties, disclaimers, and limitation of remedies.” Wellman, supra, 802–03. If there was such an opportunity, the ELD will apply and bars the claim.
As the 6th Circuit recently explained, “A long line of Michigan cases has applied the economic-loss doctrine to bar a commercial plaintiff’s tort suit against a product manufacturer even though the plaintiff did not directly contract with the manufacturer.” Crossing at Eagle Pond, LLC v. Lubrizol Corp., 346 F. Supp. 3d 1048 (E.D. Mich. 2018), aff’d, 790 F. App’x 775 (6th Cir. 2019) (unpublished). In the cases cited by the 6th Circuit decision, a series of commercial decisions and transactions separated the commercial plaintiff from the commercial defendant, and the court still rejected tort suits. The court applied the ELD because the commercial plaintiff could have “protect[ed] itself through ‘ordinary contractual remedies,’ even if those remedies r[a]n against an entity in the distribution chain other than the manufacturer itself.” Id. The 6th Circuit emphasized that “Michigan courts have not allowed a downstream commercial purchaser to avoid the [economic-loss] doctrine merely because of ‘the fortuity of a resale’ of the product.” Id. at 780 (quoting Affiliated FM Ins. ex rel. Motor City Stamping v. Abolite Lighting, Inc., 1998 WL 1997669, (Mich. App. 1998) (unpublished) (per curiam). In this way, although the Eagle Pond case involved a verifiable series of commercial transactions, such a verifiable series is not necessary for the ELD to apply. Instead, the crux of the ELD inquiry is whether the plaintiff was a commercial entity that purchased the allegedly defective product for a commercial purpose.
As the Michigan Court of Appeals has explained, when the plaintiff “is a commercial enterprise that used the [product] in a commercial setting,” its “losses are commercial losses that arise out of defendant’s commercial sale of defective goods.” Motor City, supra.
Consumer Purchase. Ten years after Neibarger, Michigan extended the ELD to cover individual consumer transactions. Sherman v. Sea Ray Boats, Inc., 649 N.W.2d 783 (Mich. App. 2009). It expanded the ELD to the sale of consumer goods, even when the plaintiff consumer enters into a transaction with an entity of greater knowledge or bargaining power. But the ELD involves in consumer cases only when the plaintiff has disappointed economic expectations, NOT where the product bursts into flames. Michigan product liability law defines “economic loss” as including “loss of use of property” and “costs of repair or replacement of property.” M.C.L. § 600.2945(c). In order for the ELD to apply, there must be an underlying transaction which provides the plaintiff an opportunity to negotiate to protect himself. Quest Diagnostics, supra.
Willful Misconduct. Liability imposed on parents when child willfully or maliciously causes injury to person or damage to property. M.C.L.A § 600.2913.
The limit of liability is $2,500.00. Child must be unemancipated and under 18-years-old.
Tort of Spoliation: Michigan does not recognize spoliation of evidence as a separate tort. Panich v. Iron Wood Prods. Corp., 445 N.W.2d 795 (Mich. Ct. App. 1989). However, Michigan has never explicitly refused to consider spoliation of evidence as an actionable tort claim if the right facts were present. Wilson v. Sinai Grace Hosp., 2004 WL 915044 (Mich. App. 2004).
Adverse Inference/Presumption: Spoliation of evidence is controlled by a jury instruction, M. Civ. J.I.2d 6.01(d), which provides that a trier of fact may infer the evidence not offered in a case would be adverse to the offending party if: (1) the evidence was under the offending party’s control; (2) could have been produced by the offending party; (3) that no reasonable excuse is shown for the failure to produce the evidence. When these three elements are shown, a permissible inference is allowed that the evidence would have been adverse to the offending party. However, the trier of fact remains free to determine this issue for itself. Lagalo v. Allied Corp., 592 N.W.2d 786, 789 (Mich. Ct. App. 1999).
When there is evidence of willful destruction, a presumption arises that the non-produced evidence would have been adverse to the offending party, and when left unrebutted, this presumption requires a conclusion that the unproduced evidence would have been adverse to the offending party. Trupiano v. Cully, 84 N.W.2d 747, 748 (Mich. 1957). Generally, where a party deliberately destroys evidence, or fails to produce it, courts presume that the evidence would operate against the party who destroyed it or failed to produce it. Johnson v. Secretary of State, 406 Mich. 420, 440, 280 N.W.2d 9 (Mich. 1979); Berryman v. K Mart Corp., 193 Mich.App. 88, 101, 483 N.W.2d 642 (Mich. 1992); Ritter v. Meijer, Inc., 128 Mich.App. 783, 786, 341 N.W.2d 220 (Mich. 1983). It is well-settled that only when the complaining party can establish “intentional conduct indicating fraud and a desire to destroy [evidence] and thereby suppress the truth” can such a presumption arise. Trupiano v. Cully, 349 Mich. 568, 570, 84 N.W.2d 747 (Mich. 1957), quoting 20 Am. Jur., Evidence, § 185, p. 191; Lagalo v. Allied Corp., 233 Mich.App. 514, 520, 592 N.W.2d 786 (Mich. 1999).
Statute of Limitations
Personal Property3 YearsM.C.L.A. § 600.5805(10)
Personal Property/Against No-Fault Carrier1 YearM.C.L.A. § 500.3145
Personal Injury/Death3 YearsM.C.L.A. § 600.5805(10)
Personal Injury/Medical Malpractice/After Act2 YearsM.C.L.A. §§ 600.5805(6), 600.5838
Personal Injury/Medical Malpractice/After Discovery6 MonthsM.C.L.A. §§ 600.5805(6), 600.5838
Personal Injury/Medical Malpractice/Against No-Fault Carrier1 YearM.C.L.A. § 500.3145
Personal Injury/Medical Malpractice/PIP Claim1 YearM.C.L.A. § 500.3145
Breach of Contract/Written6 YearsM.C.L.A. §600.5807
Breach of Contract/Oral6 YearsM.C.L.A. §600.5807
Breach of Contract/Sale of Goods4 YearsM.C.L.A. §440.2725
Statute of Repose/ProductsN/AN/A
Statute of Repose/Real Property6 YearsM.C.L.A. § 600.5839*
Breach of Warranty/U.C.C.4 YearsM.C.L.A. § 440.2725
Workers’ Comp Third Party Case3 YearM.C.L.A. § 418.827
Strict Product Liability3 YearsM.C.L.A. § 600.5805(13)
Statute of Limitations Exceptions
*An action arising out of the defective and unsafe condition of an improvement to real property against an architect, professional engineer, or contractor, must be brought within six (6) years after occupancy, use, or acceptance of the improvement, or one (1) year after the defect is discovered. M.C.L.A. § 600.5839(1)(a). If defect results from gross negligence of architect or engineer, action must be brought within one (1) year after defect discovered. However, no such action can be brought more than ten (10) years after substantial completion, use, or acceptance of improvement. M.C.L.A. § 600.5839(1)(b).
Health Insurance Subrogation
Health and Disability Insurance
Statute of Limitations: 3 Years. M.C.L.A. § 600.5805(10). Medical Malpractice: The later of 2 years after alleged act or 6 months after injury discovery. M.C.L.A. §§ 600.5805(6) and 600.5838.
Subrogation of Medical and Disability Benefits are not allowed. Crawford v. Anderson Trucking Serv., Inc., 2009 WL 1259987 (E.D. Mich. 2009). Made Whole and Common Fund apply. Washtenaw Mut. Fire Ins. Co. v. Budd, 175 N.W.2d 231 (Mich. 1919); Foremost Life Ins. Co. v. Waters, 337 N.W.2d 29 (Mich. App. 1983).
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: MRE § 702
Comments: Court must consider eight (8) criteria before ruling upon the admissibility of expert testimony. A court must consider the following: (1) whether the expert’s opinion has been previously tested, (2) whether the opinion has been subjected to peer review publication, (3) whether the opinion is consistent with generally accepted standards, (4) the known or potential error rate of the expert’s opinion and its basis, (5) whether the opinion has been generally accepted within the relevant expert community, (6) whether the opinion is reliable and (7) whether experts in the same field would rely on the same basis to reach the type of opinion and (8) whether the opinion has been relied upon outside the context of litigation. These requirements make it more difficult to introduce expert testimony. MCL§ 600.2955(1)(a)-(g).
Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims
Duty To Disclose: No.
Failure To Disclose A Basis For Bad Faith: Unlikely, but possible. See Commercial Union Ins. Co. v Liberty Mutual Ins. Co., 426 Mich 127, 138-139; 393 N.W.2d 161 (1986).
One-Party Consent: The recording, interception, use or disclosure of any conversation, whether in person or electronic or computer-based system, without the consent of all the parties is prohibited. Mich. Comp. Laws Ann. § 750.539(c).
This looks like an “all party consent” law, but one Michigan court has ruled that a participant in a private conversation may record it without violating the statute because the statutory term “eavesdrop” refers only to overhearing or recording the private conversations of others. The Michigan Court of Appeals interpreted that the eavesdropping statute only applied to third-party inception of a conversation; a participant in a communication does have the right to record the same. Michigan law is often misinterpreted as requiring the consent of all parties to a conversation. Sullivan v. Gray, 117 Mich. App. 476, 324 N.W.2d 58 (1982).
Product Liability Subrogation
Product Liability Law
Statute of Limitations/Repose: 3 Years for personal injury and wrongful death. M.C.L.A. ֻ§ 600.5805(13). Statute of Repose is 6/10 years. M.C.L.A. § 600.5839(1)(a),(b).
Liability Standards: Negligence, Wrongful Death.
Fault Allocations: Pure Comparative. M.C.L.A. § 600.2959.
Non-Economic Caps/Limits On Actual Damages: Non-Economic Cap.
Punitive Y/N and Limits: No.
Heeding Presumption?: No.
Innocent Seller Statute: Yes. M.C.L.A. § 600.2947 (6).
Joint and Several Liability: No. M.C.L.A. § 600.6304.
Available Defenses: Assumption of Risk; Misuse; Alteration; State of the Art; Presumption; Compliance With Government Standards; Seatbelts; Alcohol/Drugs; Sophisticated User.
Restatement 2nd or 3rd?: Restatement 3rd
“Matching Regulations” And Laws Affecting Homeowners Property Claims
Caselaw: Insured’s antique teak floors and plaster ceiling was damaged after a pipe burst and insured sought to be reimbursed for the full cost of replacing the antique floor and ceiling. Insurer had a “Common Construction” provision that insurer argued only required insurer to pay the significantly lower cost associated with replacing the damaged teak flooring and plaster ceiling with their modern equivalent. The court ruled for the insurer and found that the insurer did not have to match the plaster and teak. Bernert v. State Farm Fire & Cas. Co., No. 10- 12359, 2012 WL 1060089, at *2 (E.D. Mich. Mar. 29, 2012).
Condominium/Co-Op Waiver of Subrogation Laws
Association by-laws may contain provisions for insuring the co-owners against risks affecting the condo, but must also allow each unit owner to obtain their own insurance. There is nothing in the Michigan Condominium Act pertaining to waiver of subrogation. M.C.L.A. § 559.156.
Damage to Property Without Market Value
Service Value: No Case Law
Intrinsic Value: “… there is no market value for such property … therefore its real or ordinary cash value at the time of the fire should be ascertained… from…the cost, uses it has been put to, its age, condition, and location.” Fite v. North River Ins. Co., 165 N.W. 705 (Mich. 1917).
In the case of family pictures or heirlooms of special value to the plaintiff that cannot be replaced and do not have a market value, the measure of damages may include the value to the owner. Bernhardt v. Ingham Reg’l Med. Ctr., 641 N.W.2d 868 (Mich. App. 2002).
Sentimental Value: “Accordingly… if they do not have a standard or market value, then their value to the owner, so far as they are susceptible of pecuniary measurement that is not fanciful or merely speculative, furnishes the true test.” 6 Mich. Civ. Jur. Conversion § 40. Measure of damages where there is no fair market value; value to owner. (citing Allen v. Kinyon, 1 N.W. 863 (Mich. 1879)).
General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims
Payment and Depreciation Of GCOP/Sales Tax: Follows “replacement cost less depreciation” rule. ACV allows the deduction of depreciation but not of contractor’s overhead and profit. Salesin v. State Farm Fire & Cas. Co., 581 N.W.2d 781 (Mich. App. 1998).
Michigan follows “Sutton Rule” (see Oklahoma). The fire insurer is not entitled, as subrogee, to bring an action against the tenant to recover for amounts paid to landlord for fire damage to rental premises caused by the tenant’s negligence in absence of an express agreement between the landlord and tenant to the contrary. The landlord and tenant are co-insureds under the fire policy. N.H. Ins. Group v. Labombard, 399 N.W.2d 527, 531 (Mich. App. 1986). However, more recent decisions indicate that the Labombard decision applies only to negligence cases – not to cases based on breach of contract. Laurel Woods Apartments v. Roumayah, 734 N.W.2d 217 (Mich. App. 2007). In Roumayah, the lease stated, “Tenant shall also be liable for any damages to the Premises…that is caused by the acts or omissions of Tenant or Tenant’s guests.” The Court held that the tenant was contractually liable for “any damage” caused by their acts, and that this was not limited to negligent acts. The landlord was allowed to pursue the tenant based on a breach of the lease agreement, notwithstanding Labombard. This was later extended to specifically include subrogation claims. American States Ins. Co. v. Hampton, 2008 WL 4724279 (Mich. App. 2008).
In Westfield Inc. Co. v. Ritcher, No. 20-CV-12692, 2021 U.S. Dist. Lexis 94926 (E.D. Mich. 2021), a federal court limited the scope of a tenant’s protection from a subrogation suit by virtue of being an implied coinsured. The court held that the tenant was an implied coinsured—and thus shielded from a subrogation suit by the landlord’s insurance company—but only with regard to the tenant’s apartment. The implied coinsured doctrine did not shield the tenant from a subrogation claim for damages to the rest of the buildings, the contents of other residents, and the landlord’s loss of profits/rents.
An insurer cannot recover from its insured for a loss covered by the policy. American Special Risk Ins. Co. v. City of Centerline, 69 F.Supp.2d 944 (E.D. Mich. 1999) (applying Michigan Law). A “subrogee cannot sue the subrogor to enforce its subrogation rights.” Attard v. Detroit Edison Co., 1998 WL 1988579 (Mich. App. 1998).
Michigan statute states that criminal defendants may be liable for restitution to “victims” of their criminal conduct, and applicable case law has clarified that an insurer will be able to qualify as a “victim” for purposes of recovering restitution payments. M.C.L.A. § 771.3; People v. Norman, 454 N.W.2d 393 (Mich. Ct. App. 1989).
Made Whole Doctrine
Since 1919, Michigan has adhered to the Made Whole Doctrine and provided that an insurer has no right of subrogation where the insured’s loss exceeds his recoveries from his insurer and the one causing the fire, after deducting attorney’s fees and costs. Washtenaw Mut. Fire Ins. Co. v. Budd, 175 N.W. 231 (Mich. 1919). This decision notes that the insured was not invited to take part in the action against the third party, and the policy involved was a “valued policy” which paid only two-thirds of the value of the loss. Id.
There doesn’t appear to be any authority indicating that a Plan/Insurer can contract around the Made Whole Rule, but there likewise is no authority indicating that they cannot. In Union Ins. Soc. of Canton v. Consolidated Ice Co., 245 N.W. 563 (Mich. 1932), the Michigan Supreme Court considered a purely equitable subrogation case, and didn’t make any mention of a contractual right of subrogation, or whether there was a subrogation provision in the subject policy. Nonetheless, the Court seemed to hold that an insurer is not entitled to subrogation against an insured for a judgment recovered against the wrongdoer if the total amount received by insured, after deducting attorney’s fees and costs, does not fully compensate insured. Id.; Mich. Mut. Ins. Co. v. Shaheen, 300 N.W.2d 599 (Mich. Ct. App. 1980) (holding that agreement providing that insured would hold, for the benefit of insurer, all rights and claims which he had against any other parties involved in the action should be interpreted to compel insured to reimburse insurer only for that amount of insured’s recovery which exceeds damages defendant has suffered, including costs and attorney’s fees).
Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Collateral Source Rule: Michigan’s CSR is statutory and states that when plaintiff seeks medical expenses, evidence of collateral source is admissible after a verdict and before judgment entered on that verdict. Court reduces any portion of the judgment representing medical expenses paid or payable by a collateral source. M.C.L.A. § 600.6303.
Recovery Of Medical Expenses Rule:
Private Insurance: A write-off “has not been paid, nor is it payable, such that it is not a collateral source.” Detary v. Advantage Health Physicians, PC, 2012 WL 6035024 (Mich. App. 2012) appeal denied, 829 N.W.2d 862 (Mich. 2013).
Medicare/Medicaid: Medicaid payments are not a collateral source. Shinholster v. Annapolis Hosp., 660 N.W.2d 361 (Mich. App. 2003), aff’d in part, 671 N.W.2d 539 (Mich. 2004).
Related Law/Comments: M.C.L.A. § 600.6303(4) defines “collateral source” as: “…benefits received or receivable from an insurance policy; benefits payable pursuant to a contract with a health care corporation, dental care corporation, or health maintenance organization; employee benefits; social security benefits; worker’s compensation benefits; or Medicare benefits.” Not a collateral source if: (1) life insurance, (2) subject to subrogation, and (3) subject to a lien.
Medical Malpractice: Effective 4/10/17, M.C.L.A. § 600.1482 limits recovery to amounts actually paid.
Employee Leasing Laws
The employee leasing company and its client company are both considered employers and immune from third-party actions under the Exclusive Remedy Rule. Renfroe v. Higgins Rack Coating & Mfg. Co., 169 N.W.2d 326 (Mich. App. 1969).
Hospital Lien Laws
Statute: No statutory provision in Michigan.
OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases
OCIP Law: A contractor does not have exclusive remedy protection merely because a subcontractor is enrolled in an OCIP. Burger v. Midland Cogeneration Venture, 507 N.W.2d 827 (Mich. App. 1993). However, a contrary outcome was reached in Stevenson v. HH & N/Turner, No. 01-CV-71705-DT, 2002 U.S. Dist. LEXIS 26831 (E.D. Mich. 2002).
Statutory Employer Law: A contractor who contracts with a subcontractor for the whole or any part of any work undertaken by the contractor is liable to pay workers’ compensation benefits for all employees of the subcontractor. M.C.L.A. § 418.171. If the contractor must pay benefits to the employee of a subcontractor because the subcontractor failed to provide for workers’ compensation coverage, then the contractor will be deemed to be a “statutory employer” and subject to the Exclusive Remedy Rule within Michigan. Dagenhardt v. Special Mach. & Eng’g, Inc., 345 N.W.2d 164 (Mich. 1984), reh’g denied, 362 N.W.2d 217. The contractor benefits from the exclusive remedy protection only if it ultimately ends up becoming liable for the subcontractor’s failure to provide benefits. Drewes v. Grand Valley State Colleges, 308 N.W.2d 642 (Mich. App. 1981).
Comments: OCIPs allowed for workers’ compensation only if construction costs exceed $65 million and must be authorized by Michigan insurance director. Mich. Laws Ann. § 418.621(3). The first decision in the U.S. regarding the effect of an OCIP program on workers’ compensation subrogation was the 2002 federal district court unpublished opinion of Stevenson v. HH & N/Turner, No. 01-CV-71705-DT, 2002 U.S. Dist. LEXIS 26831 (E.D. Mich. 2002), which stated that an OCIP effectively transforms all enrolled contractors into the employer of the injured plaintiff.
Recovery Of Increased Workers’ Compensation Premiums By Employer
Recovery For Increased Premiums? No, but only because of exclusive remedy protection.
Statute/Case Law: Pro–Staffers, Inc. v. Premier Mfg. Support Servs., Inc., 651 N.W.2d 811 (Mich. App. 2002) (temporary employment agency sued client company for injury resulting in increased premiums).
Rule Summary: Exclusivity of Worker’s Disability Compensation Act (WDCA)’s subrogation provision precluded agency from recovering increased workers’ compensation premiums and any lost profits that arose therefrom from client, as third-party tortfeasor.
Which Workers’ Compensation “Benefits” Can Be Subrogated?
The Michigan Workers’ Compensation Appellate Commission has specifically held that nurse case management fees can be reimbursable – depending on circumstances. In Ziebell v. Wal-Mart, 2001 WL 566162 (Mich. Work. Comp. App. Com. 2001), the TPA hired a nurse case manager and then fired him when he recommended the claimant have an independent medical evaluation. The nurse case manager stayed on working for the plaintiff (non-cat injuries) and the Magistrate later ordered the carrier to pay his $7,713.10 in nurse case management fees. The Appellate Commission reversed because the plaintiff and the nurse case manager did not provide proof that the services were “reasonable”, but specifically stated:
Although the Act makes no specific reference to ‘case management services,’ we believe that those services, if reasonable and needed, are contemplated in the types of services provided for under section 315(1).
Unlike “case management services,” there is at least a provision in the Act that contemplates payment of nursing care services, §§ 418.315(1) and 17.237(315)(1). A condition precedent to an award of nursing care or attendant services, however, is a determination that such services are “needed”, not merely desired. Section 418.315(1) provides in pertinent part:
The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable medical, surgical, and hospital services and medicines, or other attendance or treatment recognized by the laws of this state as legal, when they are needed.
However, it remains the burden of the carrier seeking to subrogate for such services that they were reasonable and necessary. In Andrew Lefko v. Walter Toebe Construction Company and Maryland Casualty Company, 2008 WL 5122473 (Mich. Work. Comp. App. Comm. (2008), a 19-year-old employee was rendered a spastic quadriplegic as the result of a work-related accident. Liberty Mutual provided workers’ compensation benefits including nurse case managers. The Commission stated that case management fees are routinely paid in appropriate cases and constitute a “benefit” under Michigan law.
Workers’ Compensation Subrogation Waiver Endorsements
Subrogation Statute: M.C.L.A. § 418.827
Waiver Allowed? Nothing in the Michigan Workers’ Compensation Act or applicable case law prohibits the use or efficacy of a waiver of subrogation.
Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: The effect of a waiver of subrogation on the carrier’s rights, including its right to enforce its statutory lien, has not yet been decided.
Other Applicable Law: None.
Statute of Limitations: 3 Years. M.C.L.A. § 418.827.
Can Carrier Sue Third Party Directly: Yes, after 1 year.
Right to Intervene: Yes.
Recovery from UM/UIM Benefits: UM – Yes | UIM – No
Subrogation Against Medical Malpractice: Yes.
Subrogation Against Legal Malpractice: No.
Recovery Allocation/Equitable Limitations: The carrier gets first money, less fees and costs. Subrogated to economic damages only if no-fault involved. No Subrogation for medical expenses if no-fault.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: Pro-Rata.
Future Credit: Franges Formula.
Auto No-Fault: Yes.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute expressly includes “aliens.” Mich. Comp. Laws § 418.161(1)(l).
Case Law: Sanchez v. Eagle Alloy, 254 Mich. App. 651 (Mich. Ct. App. 2003).
Comments/Explanation/Other: *Sanchez held that illegal aliens are entitled to medical benefits, but are not entitled to disability benefits, because they committed a crime in violating the IRCA.