Negligence Law Section
Issue No. 4 August 2011
Message from the Chair
David E. Christensen
David E. Christensen

David E. Christensen
Gursten, Koltonow, Gursten, Christensen & Raitt PC

State Budget Cuts Threaten Justice System

State budgets across the nation are facing the most severe shortfalls since the Great Depression. According to the Center for State Courts, 29 states are cutting their court's budgets. In many states, the cuts have been deep and sustained. Five of them are facing cuts of ten percent or more.

These cuts come at a time when there are upticks in filings nearly everywhere. In tough economic times foreclosures, divorces and domestic violence increase, as do employment, contract and collection matters. Businesses must wait far longer to get their disputes resolved, which ripples into the economy. Judicial systems are severely stressed, yet asked to do more with less.

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ERISA Health Insurance Liens Asserted Against Third-Party Auto Tort Recoveries: How to Make Sure Your Clients Don't Get Stuck Paying Their Own Medical Bills

Troy Haney
Troy Haney

Troy W. Haney
Haney Law Office PC

In Glover v. Nationwide Mutual Fire Ins Co., 676 F.Supp.2d 202 (WD Mich 2009), Magistrate Judge Joseph Scoville summarized a major and burgeoning issue in tort law in his usual articulate fashion on which the present writer cannot improve:

For over twenty-five years, insured parties have been caught in the crossfire between ERISA health plans and Michigan no-fault carriers, each of which contends that the other is primarily responsible for medical bills arising from an automobile accident. This case. . . proves once again the truth of the adage that the only thing worse than having no insurance policy is having two.

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Insurance Coverage Advisor
Hal O. Carroll
Hall O. Carroll

Hal O. Carroll
Vandeveer Garzia PC

Named Insureds & Additional Insureds

When the liability lawsuit is filed, every defendant wants the defendant to have insurance coverage. The defendant may want it more than everyone else, but the plaintiff likes the defendant to be insured as well, because from the plaintiff's point of view, the best defendant is the collectible defendant.

From the defendant's point of view, it is natural to ask the question "am I covered?" but for the defendant's (or plaintiff's) attorney, the questions need to be precise. The analysis has to go in stages: (1) is the defendant an insured under the policy, (2) is this a covered claim within the terms of the insuring agreement, (3) do any exclusions apply, and (4) are there any conditions that affect coverage.

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Thomas W. Waun
Thomas W. Waun

Thomas W. Waun
Waun & Parillo PC

Loweke v. Ann Arbor Ceiling: Supreme Court Clarification of Fultz

On June 6, the Supreme Court issued an opinion in Loweke v. Ann Arbor Ceiling and Partition Company, ____ Mich ____ (2001) (No. 141168) which significantly impacts members of the Negligence Section. The court in Loweke readdressed its decision in Fultz v. Union-Commerce Association, 470 Mich 460 (2004) and corrected the direction that a number of post-Fultz court of Appeals decisions had taken in light of two peremptory orders issued in Mirzejewski v. Torre and Bruglio, Inc., 477 Mich 1087 (2007) and Banaszak v. Northwest Airlines, Inc., 477 Mich 895 (2006).

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Lansing Free for All

Todd Tennis
Captiol Services, Inc.

Todd Tennis
Todd Tennis

Death by a Thousand Bills

By the time this article goes to print, the Legislature will be nearly finished with its summer recess. The first six month of Governor Snyder's administration and the Legislature saw numerous accomplishments. These include passage of legislation expanding the powers of Emergency Financial Managers, and the earliest completion of the state budget in nearly a decade. As state lawmakers look toward the fall session, much of their focus will be on unfinished business, such as the international bridge project and legislation that will implement many deals tied to the aforementioned budget.

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Jules Olsman
Olsman Mueller Wallace & MacKenzie PC

Jules Olsman
Jules Olsman

Never: "Medicare" as a Payee Name on a Settlement Draft

In the current morass of misinformation regarding Medicare liens is the morbid fear on the part of the plaintiff's bar that a carrier will insist on putting Medicare's name on a settlement draft and the baseless concern on the part of defendants that they need to make Medicare a payee.

There is absolutely no language in the Medicare Secondary Payer statute, 42 USC ยง1395y(b)(2)(B)(ii), that permits or requires a carrier or other payer paying money on a claim where Medicare may have paid bills to place Medicare's name on the check as a payee.

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John Zevalkin
John Zevalking

John Zevalking
Collins Einhorn Farrell & Ulanoff PC

Fultz Lives Despite Loweke's "Clarification"

[This issue contains two articles on the Michigan Supreme Court's recent decision in Loweke v. Ann Arbor Ceiling & Partition Co., LLC. The first article focuses on the way that lower courts became "misguided" in the application of Fultz v. Union-Commerce Assoc. by two subsequent peremptory orders from the Michigan Supreme Court. The second article focuses on the effect of Loweke on the future application of Fultz.]

The Michigan Supreme Court's recent decision in Loweke v. Ann Arbor Ceiling & Partition Co., LLC, ___ Mich ___ (2011), has clarified the "separate and distinct duty" analysis the Court set out in Fultz v. Union-Commerce Assoc., 470 Mich 460 (2004).

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IN THIS ISSUE
Chair's Message
Insurance Coverage Advisor
Legislative Update
Executive Committee

State Bar of Michigan Negligence Council

CHAIR
David E. Christensen
Gursten, Koltonow, Gursten, Christensen & Raitt PC

VICE CHAIR
Paul J. Manion
Rutledge, Manion, Rabaut,Terry & Thomas PC

SECRETARY
Thomas W. Waun
Waun & Parillo PLLC

TREASURER
Steven B. Galbraith
Galbraith, Delie & James PC

COUNCIL
Jody L. Aaron
McKeen & Associates PC

Mark Bernstein
The Bernstein Law Firm

Ronald F. DeNardis
DeNardis & Miller PC

Jennifer M. Grieco
Neuman Anderson PC

Michael R. Janes
Martin, Bacon & Martin PC

Ven Johnson
Johnson Law

David Mittleman
Church Wyble PC

Gerald V. Padilla
Padilla-Kostopoulos

Anne L. Randall
Portnoy & Roth PC

Michael J. Sullivan
Collins, Einhorn, Farrell & Ulanoff PC

EX OFFICIO
Jose' T. Brown
Cline, Cline & Griffin PC

COMMISSIONER LIAISON
Brian D. Einhorn
Collins, Einhorn, Farrell & Ulanoff PC

LOBBYIST
Todd N. Tennis, Lansing

EDITORS
Anne L. Randall
Michael J. Sullivan

EXECUTIVE DIRECTOR
Madelyne Lawry

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Negligence Law Section
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Grand Ledge, MI 48837
E-mail: neglawsection@comcast.net