Bill Text: MI SB0083 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Insurance; no-fault; serious impairment of body function; define, and provide for general amendments. Amends sec. 3135 of 1956 PA 218 (MCL 500.3135).

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2009-01-27 - Referred To Committee On Government Operations And Reform [SB0083 Detail]

Download: Michigan-2009-SB0083-Introduced.html

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SENATE BILL No. 83

 

 

January 27, 2009, Introduced by Senator WHITMER and referred to the Committee on Government Operations and Reform.

 

 

 

     A bill to amend 1956 PA 218, entitled

 

"The insurance code of 1956,"

 

by amending section 3135 (MCL 500.3135), as amended by 2002 PA 697.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 3135. (1) A person remains subject to tort liability for

 

noneconomic loss caused by his or her ownership, maintenance, or

 

use of a motor vehicle only if the injured person has suffered

 

death, serious impairment of body function, or permanent serious

 

disfigurement.

 

     (2) For a cause of action for damages pursuant to subsection

 

(1) filed on or after July 26, 1996, all of the following apply:

 

     (a) The issues of whether an injured person has suffered

 

serious impairment of body function or permanent serious

 

disfigurement are questions of law for the court if the court finds

 

either of the following:

 

     (i) There is no factual dispute concerning the nature and

 

extent of the person's injuries.

 

     (ii) There is a factual dispute concerning the nature and

 

extent of the person's injuries, but the dispute is not material to

 

the determination as to whether the person has suffered a serious

 

impairment of body function or permanent serious disfigurement.

 

that there is no genuine issue as to any material fact, and the

 

moving party is entitled to judgment or partial judgment as a

 

matter of law. However, for a closed-head injury, a question of

 

fact for the jury is created if a licensed allopathic or

 

osteopathic physician who regularly diagnoses or treats closed-head

 

injuries testifies under oath that there may be a serious

 

neurological injury.

 

     (b) Damages shall be assessed on the basis of comparative

 

fault, except that damages shall not be assessed in favor of a

 

party who is more than 50% at fault.

 

     (c) Damages shall not be assessed in favor of a party who was

 

operating his or her own vehicle at the time the injury occurred

 

and did not have in effect for that motor vehicle the security

 

required by section 3101 at the time the injury occurred.

 

     (b) Economic and noneconomic damages shall be assessed on the

 

basis of comparative fault, except that noneconomic damages shall

 

not be assessed in favor of a plaintiff who is more than 50% at

 

fault or reduced in favor of a defendant who is more than 50% at

 

fault.

 

     (c) Noneconomic damages shall not be assessed in favor of a

 

party who was operating a motor vehicle titled or registered in the

 

name of that party at the time the injury occurred if there was not

 

in effect for that motor vehicle the security required by section

 

3101 at the time the injury occurred.

 

     (3) Notwithstanding any other provision of law, tort liability

 

arising from the ownership, operation, maintenance, or use within

 

this state of a motor vehicle with respect to which the security

 

required by section 3101 was in effect is abolished except as to:

 

     (a) Intentionally caused harm economic or noneconomic damages

 

of any nature or extent to persons or property. Even though a

 

person knows that harm to persons or property is substantially

 

certain to be caused by his or her act or omission, the person does

 

not cause or suffer that harm intentionally if he or she acts or

 

refrains from acting for the purpose of averting injury to any

 

person, including himself or herself, or for the purpose of

 

averting damage to tangible property.

 

     (b) Damages for noneconomic loss as provided and limited in

 

subsections (1) and (2).

 

     (c) Damages for allowable expenses, work loss, and survivor's

 

loss as defined in sections 3107 to 3110 in excess of the daily,

 

monthly, and 3-year limitations contained in those sections and

 

damages for loss of earning capacity. The party liable for damages

 

is entitled to an exemption reducing his or her liability by the

 

amount of taxes that would have been payable on account of income

 

the injured person would have received if he or she had not been

 

injured.

 

     (d) Damages for economic loss by a nonresident in excess of

 

the personal protection insurance benefits provided under section

 

3163(4). Damages under this subdivision are not recoverable to the

 

extent that benefits covering the same loss are available from

 

other sources, regardless of the nature or number of benefit

 

sources available and regardless of the nature or form of the

 

benefits.

 

     (e) Damages up to $500.00 to motor vehicles, to the extent

 

that the damages are not covered by insurance. An action for

 

damages pursuant to this subdivision shall be conducted in

 

compliance with subsection (4).

 

     (4) In an action for damages pursuant to subsection (3)(e):

 

     (a) Damages shall be assessed on the basis of comparative

 

fault, except that damages shall not be assessed in favor of a

 

party who is more than 50% at fault.

 

     (b) Liability shall not be a component of residual liability,

 

as prescribed in section 3131, for which maintenance of security is

 

required by this act.

 

     (5) Actions under subsection (3)(e) shall be commenced,

 

whenever legally possible, in the small claims division of the

 

district court or the municipal court. If the defendant or

 

plaintiff removes the action to a higher court and does not

 

prevail, the judge may assess costs.

 

     (6) A decision of a court made pursuant to subsection (3)(e)

 

is not res judicata in any proceeding to determine any other

 

liability arising from the same circumstances as gave rise to the

 

action brought pursuant to subsection (3)(e).

 

     (7) As used in this section, "serious impairment of body

 

function" means an objectively manifested injury or impairment of

 

involving an important body function that has affected, affects, or

 

may affect in the future the person's general ability to lead his

 

or her normal life. In making this determination, all of the

 

following apply:

 

     (a) Notwithstanding anything to the contrary, serious

 

impairment of body function does not require a showing, at any

 

point in time, of any of the following:

 

     (i) That the injury or impairment, or its effect, altered the

 

course or trajectory of the person's life, caused the person to be

 

generally unable or for the most part unable to live his or her

 

normal life, or caused the person's life after the injury to be

 

substantially different from the person's life before the injury.

 

     (ii) That the injury or impairment, or its effect, was

 

permanent, severe, substantial, extensive, or pervasive or lasted

 

for a significant period of time.

 

     (iii) That there were physician-imposed restrictions.

 

     (b) In determining whether the person's ability to lead his or

 

her normal life has been affected at any point in time, the trier

 

of fact or a court deciding this issue as a matter of law under

 

subsection (2)(a) shall consider all of the following factors,

 

which factors shall not be exclusive and no individual factor shall

 

be dispositive:

 

     (i) The nature of the injury or impairment.

 

     (ii) The type of treatment required.

 

     (iii) The duration of the injury, impairment, or treatment.

 

     (iv) The existence of, or the prognosis for, any residual

 

injury or impairment.

 

     (v) The impact of the injury or impairment on the injured

 

person's quality of life.

 

     (vi) Any other relevant factors.

 

     (8) An injured person who has sustained serious impairment of

 

body function and who is otherwise entitled to recover damages for

 

noneconomic loss in a tort liability claim as a result is entitled

 

to all damages for noneconomic loss suffered by that person as a

 

proximate result of the incident giving rise to the tort liability

 

claim, regardless of whether the injured person has ceased to

 

suffer, or in the future will cease to suffer, serious impairment

 

of body function.

 

     (9) If an injured person recovers damages under this section

 

for noneconomic loss or excess economic loss and is required to pay

 

all or a portion of that recovery to any person or entity claiming

 

a lien or right of reimbursement, subrogation, recoupment, or

 

offset against the recovery, the insurer responsible to pay

 

personal protection insurance benefits to the injured person shall

 

reimburse the injured person for the amount he or she is required

 

to pay the person or entity to the extent that the payment would

 

have been payable by the insurer if the person or entity had not

 

paid those amounts.

 

     (10) The changes made in subsection (7) by the amendatory act

 

that added this subsection are curative and intended to correct the

 

misinterpretation of law and legislative intent that occurred in

 

the Michigan supreme court decision in Kreiner v Fischer and Straub

 

v Collette and Heil-Wylie, 471 Mich 109; 683 NW2d 611 (2004), and

 

subsequent appellate cases implementing that decision.

 

     (11) The changes made by the amendatory act that added this

 

subsection apply to cases pending in the trial or appellate court

 

on the effective date of the amendatory act that added this

 

subsection and cases filed on or after the effective date of the

 

amendatory act that added this subsection.