Today I want to talk to you about a defense that the other side may have in your personal injury case called comparative negligence.

It is applicable in any type of case whether you filed an automobile accident case, the slip, trip and fall, construction case, the other side may say you are comparatively negligent. In other words, they will allege that you were partially, if not fully, at fault for the accident. The reason why the defense always tries to make this claim is that under Michigan law, if the plaintiff, that’s the person that was injured and sues, if they are 51% at fault, their case in terms of their pain and suffering damages, is thrown out. There is no case. So, please bear in mind if you are more than half at fault your case will be kicked out of court, but that really only goes to your pain and suffering and your non-economic claims.

With respect to any economic claims you have, such as wage loss, and then you could be 99% at fault but still recover that 1% of whatever economic damages that you have.  Also, if you’ve been drinking, the law is very strict in this regard. If the plaintiff or the injured person has a blood alcohol level that is not condoned in the Motor Vehicle Code such as a.08, there is a presumption that you are more than half at fault just because your blood alcohol at a level that is against what the no-fault law says, .08, at a level that is prohibited in the motor vehicle code.

Let me give you an example. Let’s say you are a passenger in a car, front seat, back seat, you got your seat belt on, and you’ve had too much to drink. The defense is going to say, well, you were intoxicated and therefore, you should not be able to make a recovery. You are more than half at fault. But the other part of the law about comparative negligence and intoxication is that the intoxication also has to be a proximate cause of the accident. So, if you were sitting there, minding your own business in the backseat, then it really shouldn’t have any relevancy to your case.  It may have relevancy though if the driver was intoxicated and you knew that and got in the car with him because you couldn’t think straight and you were intoxicated then there may be some relevancy.

What is a class action case? A class action case happens when a person is cheated out of their money either by an insurance company or just a regular company selling a product. The problem occurs when somebody loses 1, 2, 3, 4 or 5 dollars and that is too small of an amount of money to actually make a claim in court.

As an example, last year we represented a person that bought automobile insurance and paid four dollars for under insured motorist coverage. A four dollar premium for a benefit that was illusory. In other words, she was not going to receive this benefit. It was a bunch of hocus pocus. That four dollars that she spent was too small a claim to file a law suit and try to get her money back.

Instead, we filed a class action claim for her in federal court. At that point the judge will look at the claim, and see if there are many other small claims like this. The judge will look to see if they are identical. If they are the then they could all join this class or it becomes one lawsuit against the insurance company.

Our client who lost out of approximately four dollars, was joined by thousands of other insureds who also lost four dollars. We were able to send notices to all the other customers of this insurance company, approximately 135,000 of them. They all joined this class and then the claim became much larger against the insurance company. Even though the insurance company aggressively defended this case, we won. They realized they did something wrong, and they not only refunded all the money to the customers, but they agreed not to have this type of insurance product or take people’s money with this product ever again.

What are some of the restrictive personal injury laws in Michigan? And when I say restrictive, I mean it’s restrictive of citizens rights and conversely the companies and insurance companies have all kinds of rights.

The first one, is there’s caps on damages. I don’t know if you know that. In medical malpractice cases and in products liability cases there’s only a certain amount of money a judge, or jury can award to a person for non-economic damages such as pain and suffering. Despite having a jury trial and a jury awarding all kinds of money that they feel the victim should be compensated. The judge will reduce the award if it is above the cap. Because that is what the law says.

Now, I personally believe that it is a violation of our constitutional rights and about half the states have this law and half the states don’t. In states that don’t, they said that it is a violation of our right to have a jury trial.

Another law in Michigan is called the Drug Immunity Law, and this is to protect big pharmaceutical companies. And what this law says is, if a drug is approved by the FDA, yet is still dangerous and still harms people, then the person harmed has no claim against the pharmaceutical company. Unless they can show that the pharmaceutical company lied to the FDA during the approval process, and if they can’t prove that, then they have no claim. I believe we’re the only state in the union to have this very restrictive law, and it was enacted years ago to try to attract pharmaceutical companies and so forth, but we have found since then that the one large pharmaceutical company here has left and gone to a different state.

Another law says if somebody is involved in an automobile accident then they have to show what is called a threshold injury. It is not how much pain you are in, it is not what your injury is, it is if your day to day activities have been significantly impacted. So you could break a bone, you could break a hip or whatever. But you have no claim against the other driver or the insurance company unless your day to day activities have been impacted.

There’s another restrictive law in Michigan concerning trip and falls or slip and falls. There is a defense available to landowners called the open and obvious defense, which says if the defect is in the open and it is obvious, then the land-owner has no duty to protect or warn of the person that injured himself of the defect. For example, the grocery store has slippery grapes or bananas on the floor, the classic example. That is open and obvious and there is no claim. The problem with that is that it promotes disrepair of properties. In other words you’re better off if your property is in more disrepair and has more hazard because it is in the open and it is obvious. So, socially it is not a good law.

What is a deposition? If you’ve been injured in Michigan, whether by auto accident, slip, and fall, construction accident, you probably have retained an attorney, and filed a lawsuit, and have sued the person that has caused your injury. Well, at some point in time, during the lawsuit, the defense is going to take your deposition, and I’m going to tell you how to survive this deposition. There are a couple rules to remember. First rule is to remember that they are your enemy, they are not your friend. It’s very easy to engage in conversation. They’ll be nice, they’ll be friendly, they’re going to want you to talk a lot and give up a lot of information. But the first rule, other than knowing that they’re really your enemy, is to answer the question that they ask and stop talking. If they ask you your name, you just say your name and stop talking. If they ask your address, you say your address and you stop talking. I’ll give you an example.

I had a client who didn’t abide by that rule. They had a question; they asked her where did you live at? She said 123 street back in 1999. And the attorney said, well where did you live before that? “Oh, I lived at XYZ Street but we rented an apartment and the landlord kicked us out, because we had too many late night parties”. Well, he didn’t ask her about late night parties, the attorney just asked where she lived. So you could imagine, the next 30 minutes were questions about her social habits, drinking habits, and party habits. So answer the question that they ask and stop talking. Also, don’t volunteer any information, otherwise it will give them more information to ask about, and you’ll be there a lot longer. Another rule is, don’t guess. If you’re not sure about something, that’s fine but if you guess and you guess wrong the attorney later on in the lawsuit will make you look like a liar. They will tell everyone that you intentionally lied even though you were guessing about the answer.

Your credibility is very important in a lawsuit and you don’t want to lose that. And obviously, tell the truth, especially about your prior injuries. The attorney’s going to be asking you questions about prior injuries. Let’s say you injure your back in an auto accident but you say, oh, he doesn’t need to know about that prior back injury. But you need to mention it, because he will find out about it when he gets your medical records. And if you don’t disclose it, again, you’ll look like a liar. So always tell the truth, and don’t volunteer information. Answer only the questions that they ask, and you’ll do fine.