Michigan Subrogation Laws | MWL Law Website (2022)

Statute of LimitationsStatute of Limitations ExceptionsContributory Negligence/Comparative FaultMed Pay/PIP SubrogationDeductible ReimbursementMade Whole DoctrineEconomic Loss DoctrineLandlord/Tenant SubrogationSpoliationParental ResponsibilityContribution ActionsSuspension of Drivers' LicensesAnti-Indemnity StatutesDiminution of ValueRecording ConversationsCriminal RestitutionHealth and Disability InsuranceFuneral Procession Traffic LawsWorkers’ CompensationDog Bite LawsEmployee Leasing LawsCondominium Waiver of Subrogation LawsAutomobile Total Loss ThresholdsSudden Medical Emergencies While DrivingState Sovereign Immunity And Tort LiabilityRecovery of Sales Tax After Vehicle Total LossDamage to Property Without Market ValueMunicipal/County/Local Governmental Immunity and Tort LiabilityNo Pay, No Play LawsLaws Regarding using Cell Phones/Headphones/Texting While DrivingAdmissibility of Expert TestimonyWorkers’ Compensation Claims by Undocumented EmployeesProduct Liability LawImputing Contributory Negligence of Driver to Vehicle OwnerOwner Liability For Stolen VehiclesAnti-Subrogation RuleUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles

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’ Compensation3 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).

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.

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 tothree 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.

    Thethree (3) year personal injury statute of limitations runs from date of insured’s accident. M.C.L.A. § 600.5805. The statute of limitations runsone year after accident to make first-party PIP claim. M.C.L.A. § 500.3145.

Deductible Reimbursement

  • Automobile and Property: No applicable statute, Administrative Code provision or case law exists.

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).

Economic Loss Doctrine

  • Intermediate Rule 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).

    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.

Landlord/Tenant Subrogation

  • 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).

Spoliation

  • 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).

Parental Responsibility

  • 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.

(Video) Michigan Automobile Subrogation: The Nuts and Bolts

Contribution Actions

  • 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 withinone 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 withinthree year statute of limitations applicable to plaintiff’s right of action against him and has commenced his contribution action withinone year after payment – unless contribution plaintiff has agreed while underlying action is pending against him to discharge common liability and, withinone 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)

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. 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.

Anti-Indemnity 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.

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.

Recording Conversations

  • 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).

Criminal Restitution

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).

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.

Workers’ Compensation

  • Statute of Limitations: 3 Years. M.C.L.A. § 418.827.

    Can Carrier Sue Third Party Directly: Yes, after 1 year.

    Intervene: Yes.

    Recovery from UM/UIM Benefits: UM – Yes | UIM – No

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    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.

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.

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).

Condominium 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.

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).

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.).

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;

    (Video) Recognizing Subrogation and Third Party Liability

    (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).

Recovery 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.

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)).

Municipal/County/Local Governmental Immunity and Tort Liability

  • Legal Authority:

    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).

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).

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.

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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).

Workers’ Compensation Claims by Undocumented Employees

  • Y/N/U: Y*

    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.

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

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.

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).

Anti-Subrogation Rule

  • 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).

    (Video) California Automobile Subrogation: The Nuts and Bolts

Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles

FAQs

How do you defend against a subrogation claim? ›

defenses to defeat an insurer's subrogation rights, including asserting that the statute of limitations has run or that a valid waiver of subrogation exists or other limitations of liability. Additionally, defense counsel may contest the amount and measure of recoverable damages.

How does subrogation work in Michigan? ›

Subrogation is a process that essentially allows an insurance company to college payments from another insurance company. One insurance company can collect money from the at-fault driver's insurance company for expenses they paid after the accident.

Is subrogation legal in Michigan? ›

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.

What are subrogation responses? ›

What Is Subrogation? Subrogation is a term describing a right held by most insurance carriers to legally pursue a third party that caused an insurance loss to the insured. This is done in order to recover the amount of the claim paid by the insurance carrier to the insured for the loss.

Can subrogation be negotiated? ›

Yes, you can negotiate a subrogation claim in some circumstances, though it may not be necessary if your insurance company is handling the claim. Subrogation claims are claims filed by insurance companies against an at-fault party to recover any costs paid out for their not-at-fault policyholder's claim.

Can subrogation be waived? ›

A Waiver of Subrogation is an endorsement that prohibits an insurance carrier from recovering the money they paid on a claim from a negligent third party. An Owner Client may require this endorsement from their vendors to avoid being held liable for claims that occur on their jobsite.

What is a subrogation questionnaire? ›

COMPENSATION QUESTIONNAIRE. Your health coverage contains language regarding subrogation and contractual right of recovery, which allows us to pursue recovery of benefits that have been paid for injury or illness when another party is responsible.

What is the Michigan mini tort law? ›

What is a mini tort claim? A mini tort claim in Michigan is an auto accident victim's right to recover a maximum of $1,000 for vehicle damage from the at-fault driver who caused the crash – either through his or her automobile insurance company or from him or her personally.

Who pays medical bills after car accident in Michigan? ›

If someone gets injured in a motor vehicle accident, the victim's health insurance company should pay first, then the auto insurance company follows afterwards by paying the remaining balance. This happens when citizens have excess medical benefits on their auto insurance policies in Michigan.

What is a medical lien Michigan? ›

As we have previously discussed, a medical lien is a written agreement between an individual or company who worked on a patient after a car accident and the patients who agree to pay for the services of a doctor out of any insurance benefits settlement or award that they will receive.

What happens if I hit a parked car in Michigan? ›

If someone hit your parked car in Michigan you need to call the police to report the accident and document the damage to your vehicle. If possible, get the at-fault driver's name, address, e-mail, phone and auto insurance information.

Should I respond to a subrogation letter? ›

You have no legal obligations to respond to a subrogation letter. You can put the letter in the garbage and ignore additional notices, but it's not in your best interest. Immediately dealing with a subrogation letter allows you to resolve a claim sooner than later.

What are the three important reasons of subrogation? ›

Top Three Reasons Subrogation and Arbitration Processes...
  • Incorrect Personnel.
  • Inefficient Processes.
  • Lack of Corporate Strategic Support.
May 12, 2010

How do subrogation claims work? ›

Subrogation allows your insurer to recoup costs (medical payments, repairs, etc.), including your deductible, from the at-fault driver's insurance company, if the accident wasn't your fault. A successful subrogation means a refund for you and your insurer.

What happens if subrogation fails? ›

What happens if you don't pay a subrogation claim? If you choose to not pay a subrogation, the insurer will continue to mail requests for reimbursement. Again, they may file a lawsuit against you. One way to avoid an effort to subrogate from the victim's insurance company is if there is a subrogation waiver.

Does subrogation affect credit? ›

Besides causing you the financial burden of having to pay back a defaulted student loan, student loan subrogation will also have a negative impact on your credit score.

Can I ignore a subrogation letter? ›

Although the letter itself does not affect the recipient's legal rights, it does represent a chance to attempt settlement of the dispute without litigation. If the recipient ignores the letter, the insurer may continue to mail requests for reimbursement or may choose to file a lawsuit against the responsible party.

What is a blanket waiver of subrogation? ›

The blanket waiver of subrogation gives the insured (you) the right to waive subrogation when required by contract — avoiding the hassle of asking for it each time you enter into a contract. In some types of business operations, the blanket waiver of subrogation is commonly requested and reciprocal.

What are the two different versions for a waiver of subrogation? ›

There are two basic types of waiver endorsements used on liability policies: scheduled and blanket.

What is an example of waiver of subrogation? ›

Similarly, if the lighting fixture fell on the tenant's expensive, antique table, the waiver of subrogation prevents the tenant's insurance company from asserting a claim against the landlord for the amount paid to the insured for the damage to the table.

What is a subrogation demand letter? ›

A subrogation letter is a written notification sent by a subrogation adjuster to a person or organization that seems to be responsible for reimbursing expenses to an insurance company.

Can car insurance company ask for money back? ›

Under California law, if a provider does not contest a notice of overpayment, he or she is required to reimburse the insurance plan for the amount requested, within 30 working days of receipt of the notice.

Is subrogation good or bad? ›

Is subrogation good or bad? Subrogation is good because it provides a way for insurers to recover costs from at-fault drivers, which helps to keep overall car insurance costs lower. Subrogation benefits both good drivers and insurance companies by making sure the at-fault party is responsible for the damage they cause.

Can I file a mini tort claim in Michigan? ›

To file a mini tort claim in Michigan you have to be “less than 50% at fault” in causing the accident, or you will be disqualified.

What is a threshold injury in Michigan? ›

In Michigan, a threshold injury is defined as a “serious impairment of body function,” “permanent serious disfigurement,” or death.

What is Michigan no-fault law? ›

Michigan's no-fault insurance protects insured persons from being sued as the result of an automobile accident, except in certain situations. This includes when the injured party does not have enough coverage to pay for treatment or payment must be made to compensate someone that was killed or seriously injured.

Is Michigan still a No-Fault state? ›

NO-FAULT INSURANCE is required by law in Michigan. Every owner of a car must buy certain basic coverages in order to get license plates. It is against the law to drive or let your car be driven without no-fault insurance.

Why is Michigan a No-Fault state? ›

Why does Michigan have No-Fault insurance? Michigan has No-Fault insurance because the tort liability system that preceded it was hurting car accident victims, not helping them. Seriously injured victims were denied compensation or they were systematically under-compensated.

Does my health insurance cover auto accidents Michigan? ›

Yes. Health insurance covers car accident injuries in Michigan. Generally, it will pay when a person has coordinated No-Fault auto insurance or when medical bills exceed a certain dollar amount.

Is Michigan a collateral source state? ›

Michigan statute contains provisions that require a plaintiff's recovery in a personal injury action to be reduced by amounts paid by other sources, subject to certain exceptions. This "collateral source rule" is found in Section 6303 of the Revised Judicature Act (MCL 600.6303).

What is a subrogation lien mean? ›

A lien or subrogation interest is the right of a third party to receive reimbursement directly from your settlement or judgment in a personal injury claim.

What is a medical lien? ›

A medical lien, in short, is the ability of a healthcare provider (doctor, radiologist, hospital, etc.) to place request for payment on your personal injury claim to recoup any money that is owed to them for treatment as a result of that specific accident.

What happens if you hit a car on private property in Michigan? ›

If a parking lot accident on private property in Michigan results in death, injury and/or property damage in excess of $1,000, then it must be reported to the police who must complete a UD-10 Traffic Crash Report for the Michigan State Police. There are criminal penalties for fatal and injury-related collisions.

Do you need a police report to file an insurance claim in Michigan? ›

“In Michigan, you are required to call the police or submit a report immediately following an accident that involves death, injury, or damages totaling more than $1,000.

What happens if someone hits your car and drives off? ›

If somebody hits your parked car and drives away without leaving a note, you should call your insurance provider. Even if you don't intend to make a claim, it's important to update your provider about any damage to your car. If you don't, you could end up invalidating your cover.

How do you respond to a subrogation letter? ›

You have no legal obligations to respond to a subrogation letter. You can put the letter in the garbage and ignore additional notices, but it's not in your best interest. Immediately dealing with a subrogation letter allows you to resolve a claim sooner than later.

What happens if subrogation fails? ›

What happens if you don't pay a subrogation claim? If you choose to not pay a subrogation, the insurer will continue to mail requests for reimbursement. Again, they may file a lawsuit against you. One way to avoid an effort to subrogate from the victim's insurance company is if there is a subrogation waiver.

Does subrogation affect credit? ›

Besides causing you the financial burden of having to pay back a defaulted student loan, student loan subrogation will also have a negative impact on your credit score.

Is subrogation good or bad? ›

Is subrogation good or bad? Subrogation is good because it provides a way for insurers to recover costs from at-fault drivers, which helps to keep overall car insurance costs lower. Subrogation benefits both good drivers and insurance companies by making sure the at-fault party is responsible for the damage they cause.

What is a subrogation questionnaire? ›

COMPENSATION QUESTIONNAIRE. Your health coverage contains language regarding subrogation and contractual right of recovery, which allows us to pursue recovery of benefits that have been paid for injury or illness when another party is responsible.

Why am I getting a subrogation letter? ›

A subrogation letter is a written notification sent by a subrogation adjuster to a person or organization that seems to be responsible for reimbursing expenses to an insurance company.

How do subrogation claims work? ›

Subrogation allows your insurer to recoup costs (medical payments, repairs, etc.), including your deductible, from the at-fault driver's insurance company, if the accident wasn't your fault. A successful subrogation means a refund for you and your insurer.

What are the three important reasons of subrogation? ›

Top Three Reasons Subrogation and Arbitration Processes...
  • Incorrect Personnel.
  • Inefficient Processes.
  • Lack of Corporate Strategic Support.
May 12, 2010

What is insurance estoppel? ›

Estoppel — a legal doctrine restraining a party from contradicting its own previous actions if those actions have been reasonably relied on by another party.

Should I respond to a subrogation letter? ›

Responding to the Letter

While it's important to respond to the subrogation letter, don't do so lightly. Lawyers caution not to reveal too much information in response to a subrogation letter in case a lawsuit results later on.

What is subrogation in simple words? ›

Definition of subrogation

: the act of subrogating specifically : the assumption by a third party (such as a second creditor or an insurance company) of another's legal right to collect a debt or damages.

Can legal subrogation exist without the debtors knowledge? ›

Article 1302 lays down the presumption of legal subrogation: (1) When a creditor pays another creditor who is preferred, even without the debtor's knowledge; (2) When a third person, not interested in the obligation, pays with the express or tacit approval of the debtor; (3) When, even without the knowledge of the ...

What are the types of subrogation? ›

Traditionally, there are three types of subrogation: (1) Equitable, also known as legal or judicial; (2) Conventional or contractual subrogation, and; (3) Statutory subrogation. Equitable subrogation arises by operation of law. Conventional subrogation arises out of a contract, such as an insurance policy.

What is a blanket waiver of subrogation? ›

The blanket waiver of subrogation gives the insured (you) the right to waive subrogation when required by contract — avoiding the hassle of asking for it each time you enter into a contract. In some types of business operations, the blanket waiver of subrogation is commonly requested and reciprocal.

What does not pursuing subrogation mean? ›

The insurance company has no subrogation rights against the person that paid for the insurance policy, meaning the insurance company can't pay money to you and later ask you to pay it back.

Can car insurance company ask for money back? ›

Under California law, if a provider does not contest a notice of overpayment, he or she is required to reimburse the insurance plan for the amount requested, within 30 working days of receipt of the notice.

Videos

1. Improving Plan Subrogation Language
(Matthiesen, Wickert & Lehrer, S.C.)
2. Introduction To Property and Casualty Subrogation
(Matthiesen, Wickert & Lehrer, S.C.)
3. Introduction To Cargo Subrogation
(Matthiesen, Wickert & Lehrer, S.C.)
4. FEHBA Subrogation Update 2017
(Matthiesen, Wickert & Lehrer, S.C.)
5. Avoiding The Made Whole And Common Fund Doctrines
(Matthiesen, Wickert & Lehrer, S.C.)
6. Top Ten Subrogation Mistakes Carriers Keep Making
(Matthiesen, Wickert & Lehrer, S.C.)

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