Bill Text: MI HB5864 | 2011-2012 | 96th Legislature | Introduced

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Bill Title: Insurance; no-fault; serious impairment of body function; revise statutory requirements. Amends sec. 3135 of 1956 PA 218 (MCL 500.3135).

Spectrum: Partisan Bill (Republican 2-0)

Status: (Introduced - Dead) 2012-09-12 - Printed Bill Filed 09/12/2012 [HB5864 Detail]

Download: Michigan-2011-HB5864-Introduced.html

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HOUSE BILL No. 5864

 

September 11, 2012, Introduced by Reps. Lyons and Haveman and referred to the Committee on Insurance.

 

     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.

 

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.

 

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

 

arising from the ownership, 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 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. 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 under this subdivision shall be conducted in

 

compliance with subsection (4).

 

     (4) In an action for damages pursuant to under 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 in an action for

 

damages under 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 under

 

subsection (3)(e).

 

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

 

function" means an objectively manifested impairment of injury that

 

impairs or impaired an important body function and that affects or

 

affected the person's general ability to lead his or her normal

 

life.

 

     (8) To establish a serious impairment of body function, the

 

injured person must satisfy all of the following:

 

     (a) For an injury to be objectively manifested, there must be,

 

or must have been, a medically identifiable injury or physical

 

condition caused by the accident that substantiates the injured

 

person's claimed impairment, physical or mental complaints, and

 

self-imposed restrictions.

 

     (b) The body function that is or was impaired must be

 

important to an average person, rather than important to the

 

injured person.

 

     (c) The injury and impairment must be, or must have been, of

 

sufficient duration and severity to affect the course and

 

trajectory of the injured person's entire preaccident normal life.

 

     (9) All of the following factors shall be considered by a

 

court under subsection (2)(a) or by a jury or trier of fact if a

 

material factual dispute exists in determining whether the injured

 

person suffered a serious impairment of body function. The factors

 

are not exclusive and no individual factor is dispositive. The

 

factors to be considered under this subsection are as follows:

 

     (a) The nature and extent of the injury and impairment.

 

     (b) The type and duration of treatment required.

 

     (c) The duration of the injury and impairment.

 

     (d) The extent of any residual injury and impairment.

 

     (e) The prognosis for eventual recovery.

 

     (f) The differences between the person's life before and after

 

the accident that were caused by the injury and impairment and the

 

significance of any differences.

 

     (g) Any other relevant factors.

 

     Enacting section 1. This amendatory act applies to actions

 

filed on or after and actions pending in a trial or appellate court

 

on the effective date of this amendatory act.