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Client Information

Welcome to Thompson O'Neil, P.C.

The follwing is a brief guide to your rights, an introdcution to our firm, the types of cases we handle and the areas of the law in which we specialize.  Use it as a way to familarize yourself with the topics.

If you have additional questions, please call for a free, no obligation, consultation.

 

George R. Thompson
Daniel P. O'Neil

Law Office
309 East Front Street
Traverse City, Michigan 49684
Local Phone: 231-929-9700
Toll Free: 1-800-678-1307
Fax: 231-929-7262
email info@tovlaw.com

 

The legal claims process, the progression of a typcial claim.

Contents

Our Specialties

 

An Important Warning About Statutes of Limitation

All claims have a Statute of Limitations, a time within which the lawsuit must be filed or the claim is lost. This time varies according to the nature of the claim and may be as short as three months from the date of injury or discovery. Some claims also have a statutory "notice" period, requiring that you alert the defendant to your potential claim in advance.  LEGAL NOTICE PERIODS MAY BE AS SHORT AS 60 DAYS.  PRIVATE INSURERS MAY REQUIRE NOTICE WITHIN 30 DAYS.  The Republican majority of the Michigan Supreme Court has approved these short deadlines, even when the insured is badly hurt and the insurer has suffered no resulting prejudice.  You should try to consult with a qualified attorney on these issues at the earliest opportunity.

The Claims Process

Claims, Procedures and Lawsuits

Handling a serious claim may require patience, but modern lawsuits probably take less time than you think. After the initial investigation, the steps are set by the Michigan Rules of Court and the court, having jurisdiction, will manage the related deadlines.

Investigation

Your lawyer has a duty to fully investigate the facts and research the law to assure you have a valid claim before advising you to file suit.  While an investigation can be very expensive, we never turn away people who have a meritorious claim because they cannot afford the cost of investigation; normally we pay it.

In most circumstances, we will gather extensive records, interview witnesses and consult with relevant experts in order to evaluate what caused an injury and who might be at fault.  We normally order medical records and related police, weather or public records and talk to important witnesses. We sometimes exchange information with the responsible insurer(s) and commence negotiations if the adjuster is cooperative. Very often, valuation of your claim must await medical developments, stabilization and a reasonable prognosis.  

In some situations, the courts require that written notice of a potential claim be sent to a potential defendant within 60 or 90 days of an occurrence. This notice requirement is particularly demanding in cases involving defects in public roads or buildings or in cases involving illegal alcohol sales. In medical malpractice, the defendant must be advised that suit is pending six months before the complaint can be filed. The notice to the medical care provider must specify, in great detail, exactly what he or she did wrong and how it injured the patient.  As noted above, private insurers may require notice within 30 days of injury.  Sadly, to be safe, families probably need to talk to a lawyer expert within weeks of an injury in order to be sure their rights are pursued.  

COMPLAINT

If after the investigation we decide together that it is appropriate to file suit, we will prepare a Complaint to be filed with the court.  The complaint states the facts of the incident, the legal theory, and makes a demand for damages or relief.

In medical malpractice claims, the Complaint must be accompanied by Affidavits of Merit from doctors with very particular credentials, attesting to the breach of the standard of care and your resulting damages.

Service

Once the complaint is filed with the court, it must be properly "served" or delivered to the defendant. This can be done by mail or in person, depending on the circumstances.

Answer

After being served, the defendant has approximately 28 days to file an answer with the court. The answer will state the defendant's position and any defenses. Frequently the answer is simply a collection of "boilerplate" allegations and self-serving nonsense from the defendant having very little to do with the actual case.

Discovery

After the answer is filed, the parties will begin the "discovery" phase of the lawsuit. Typically discovery consists of five distinct phases:

A) Informal Discovery or "Investigation" continues 

Witnesses are interviewed and evidence is obtained to support your case. As plaintiff, we have the burden to back up your allegations with testimony or physical evidence wherever reasonably possible, and to anticipate the defendant's strategy. We employ skilled investigators, and frequently engage experts to assist with the complicated or technical issues which often arise when someone has been injured by a defective product or by medical negligence. We may need to work closely with your doctor to set the timing of your case and to educate the jurors or insurer about the ramifications of your injury.

In death cases or in self-employment situations, we may need to hire experts in accounting or economics to evaluate, quantify , and explain your loss.

B) Interrogatories

Each party may submit to the adversary written questions which must be answered in writing and under oath relating to the case.

 

C) Request to Produce

Each party may request the opportunity to examine evidence the opposing party possesses, or records relevant to the lawsuit held by others. For example, records of corporations, employees, doctors, insurers, public agencies, or individuals may be requested.

When a victim files a personal injury claim, he or she ir required to allow the defendant very extensive access to medical records and treaters. The defendant also enjoys the right to send the victim to a doctor of the insurance company's choosing for an "independent medical evaluation" ("IME").   Needless to say, this evaluation is rarely "independent" or objective: insurers employ doctors from where they will receive the answers they desire, typically.  If an insured or a litigator does not cooperate with an IME, he or she may be disqualified from benefits.  

 

D) Depositions

Parties and subpoenaed witnesses must appear and testify under oath before trial, if either party demands their appearance. A time and place are agreed upon and each lawyer can question the witness. If your deposition is requested, we will help you understand this procedure and prepare you to answer the questions. Depositions are given under oath, but informally, usually in a lawyer's office, in the presence of a "neutral" private court reporter who prepares a transcript. Parties have the right to be present at all depositions.

E) Inspections and Examinations

A party has the right to inspect premises or physical evidence, and may require an expert examination, if it is relevant. For example, independent medical exams are often requested where personal injuries are disputed, and "reconstruction" experts often inspect vehicles and download "black box" data on motor vehicle speed and impact.

F) Preservation of Evidence

If you do not preserve key evidence in its original condition for the other party to inspect, your own evidence may be excluded or your case dismissed.

Pretrial

Usually within a few months, the court will hold a pre-trial conference, and set strict deadlines for the lawyers to disclose the names of witnesses, finish discovery and exchange information.  Normally the court will also set dates for facilitative mediation, case evaluation and trial. You usually are not required to attend any procedure other than the facilitative mediation, but you will be advised of all hearings and events and are always welcome to attend.

Facilitative Mediation

Facilitative mediation is now routinely ordered by most courts. It is a process where the parties and their attorneys meet with a trained facilitator in an effort to settle the case. The facilitator remains neutral and attempts to resolve the parties' differences in an informal setting.

Case Evaluation

Case evaluation is a process designed to help settle cases and one which is required by some courts. After about six to eight months (usually on the eve of trial), the parties are ordered by the court to meet and present their case to a panel of three neutral lawyers. In advance, the panel must be provided with written case summeries and exhibits prepared by their lawyers. Testimony is not allowed; you need not attend; the lawyers argue their clients' positions; then the panel meets in private and recommends an award. The process usually takes less than 90 minutes.

Within 28 days, each party must accept or reject the panel's recommendation. If all parties accept the case evaluation award, the case is settled. If a party rejects the recommendation, that party must do better than the rejected award at trial, or pay significant penalties. About 95% of all civil cases settle before trial - usually after facilitative mediation or case evaluation. (And after significant expense and effort have been incurred to demonstrate your capacity to prove your case and document your damages.)

Trial

After facilitative mediation and case evaluation, settlement negotiations may continue and the court will usually meet with the parties to urge settlement. If trial is necessary, it will occur one to four months later at the discretion of the judge and the court administrator. A trial focuses on these basic issues: liability (or fault), causation (the connection between the alleged fault and the injuries suffered), and damages (monetary compensation). Usually, the existence or amount of insurance coverage and any settlement negotiations are not admissible.  The jury doesn't know if the defendant has insurance or how much.

The trial begins with the lawyers selecting a jury of six persons, after first questioning them about possible biases. All of the lawyers then make opening statements to the jury, explaining to the jury what the case is about. Next, the plaintiff presents her or his entire case.

Witnesses are placed on the stand in a sequence that will provide the jury a logical story of what happened, why the opposing party is responsible, what the injury is, and what the damages are. Then the defendant presents her or his entire case. The victim may call a witness or two to "rebut" the plaintiff's claims. After the cases are presented, the lawyers sum up their case and argue to the jury why their client should prevail. These summaries are called closing arguments.

Finally, the judge will instruct the jury about the law and the jury will meet privately to reach a verdict.

Appeal

Each party has the right to appeal a jury's verdict. A judgment must be appealed fairly quickly, but the appeal process itself can often take years. The client has no direct role in the appeal, although settlement and compromise discussions may continue between the parties and lawyers during this process. After the Court of Appeals has responded to the claim of appeal, the losing party may ask the Supreme Court to consider overturning the decision: that appeal is not guaranteed.

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Our Specialties

We specialize in trial practice - literally "going to court." You may think all lawyers go to court and have courtroom skills, but, in truth, many lawyers rarely set foot in a courtroom. Trial practice involves experience with the rules of evidence, rules of procedure, negotiation and pretrial and trial techniques. Furthermore, as in playing poker, sometimes your best means of avoiding litigation and trial is to demonstrate the capacity, skill, and willingness to try your case.

Within the field of trial practice, we have specialized in certain areas of serious personal injury, employment and commercial liability law:

Each area raises special issues. We have written the following summaries to acquaint you with some key issues. However, these summaries are not a substitute for consultation with a qualified attorney.

Alcohol and Dramshops

Alcohol and Dramshops

Historically, taverns and bars were called "dramshops" and the Michigan law involving alcohol liability is almost as antiquated as the name applied to it. The Michigan Dramshop law makes certain sales of alcohol illegal and allows victims to be compensated for damages caused by an illegal sale. Unfortunately, the law is grounded on a common law assumption that it is not negligent for unlicensed individuals to furnish excessive amounts of alcohol to an adult.

As a result, the dramshop laws are applied only to licensed retail vendors of alcoholic beverages (usually bars or convenience stores, but also, sometimes, wedding receptions and other "events"). It is a statutory criminal offense forunlicensed persons to provide alcohol to underaged drinkers. Nevertheless, most homeowners' insurance policies exclude coverage for "criminal acts" and therefore there is no practical source of compensation to victims for injuries caused by drunken kids driving away from house parties.

If a homeowner serves too much alcohol to an adult guest, the activity is not "criminal" under Michigan law. It also is not "negligent," under Michigan law, no matter how egregious the homeowner's conduct.

In the case of licensed sellers of alcohol, illegal activities include serving a minor, or furnishing alcohol to someone who is already "visibly intoxicated." The rules involving providing alcohol to a minor are pretty straightforward and allow for few excuses. Even "indirect" furnishing–through an intermediary–is illegal if the licensed vendor was aware of the age of the ultimate purchaser.

Unfortunately, the rules involving a sale to an intoxicated person have been so watered down of late that vendor's liability has been nearly abolished.  As a result, we are all at greater risk for the dangers created by drunk drivers.  In the late 1980s, the Legislature decided that bars and taverns would owe no responsibility to the excessive drinker, or his family, if he or she died or was injured as a result of over-consumption. Prior to that "reform," the dramshop "provider" could be held responsible for a share of the fault in the drunk's consumption, depending on circumstances. Today, no amount of responsibility can be placed on the licensed provider: the fault is considered to be entirely the drunk's, regardless of circumstances.

The reform statute also requires the victim family to give written notice to any potential illegal providers of alcohol within a certain number of days of hiring an attorney. Failure to give this notice within the statutory time period results in a dismissal of any subsequent claim, regardless of its merits.

When the "Engler Majority" controlled the Michigan Supreme Court early in this century, it issued a number of rulings that further limited who could sue and what could be recovered. The most significant of these rulings excluded blood alcohol evidence from toxicologists when offered to prove "visible intoxication" in many cases. For the past forty years, victims' families had been allowed to demonstrate that a drunk would have shown visible evidence of intoxication, based upon the level of alcohol in his blood at the time of the illegal sale.  If the family had access to blood testing of the alleged drunk and could prove his drinking history, they could establish with expert testimony whether his intoxication would have been "visible" through slurred speech, bloodshot eyes, boisterous or belligerent behavior, loss of coordination, and other trademark signs and symptoms of alcohol consumption. Alcohol sellers are obligated to train their servers to recognize these symptoms and to withhold alcohol from intoxicated patrons. The legislation governing alcohol testing of motorists was even amended by the Michigan Legislature to allow victims' families to introduce a drunk's test results in a civil action.

The Engler Majority reversed these holdings, however, and excluded expert toxicology testimony based on the drunk's blood alcohol level, unless the intoxication was confirmed by an eyewitness.

If the victims' families stand any chance of achieving a fair outcome, their claim must be investigated thoroughly and early, while the scope of the tragedy is fresh in the minds of participants and observers. On some occasions, usually involving auto fatalities, the criminal investigation by police will provide a sound foundation for the victims' civil investigation and notice.

In a minority of situations, alcohol consumption liability may also result from other circumstances surrounding how it was "furnished." For example, employment activities where alcohol consumption is encouraged may create exposure on the part of the employer. In this kind of situation, the liability of the employer is based upon the master-servant, or principal and agent employment relationship, rather than focusing on the legality of the alcohol provision.

 

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Automobile Accident Injuries

Automobile Accident Injuries

No-fault insurance will normally provide victims coverage regardless of fault. The insurance will pay:

  • Related medical costs, including the cost of equipment and necessary attendant care
  • Self-insured property damage,
  • 85% of wage loss for three years (even if you are temporarily unemployed), and
  • Up to $20.00 per day for replacement services, for three years.

If you are seriously injured in an auto accident, you may have excess losses which are not automatically covered by no-fault insurance. Excess losses may be covered by others if they acted negligently, including:

  • Another driver,
  • The car's manufacturer,
  • A bar or other furnisher of alcohol,
  • The highway agency, or
  • Others who negligently did something - or failed to do something - that was a contributing cause of the accident.

Your attorney can help you to obtain the best care available - no matter the cost - and the fullest compensation for your long-term residual problems.

You can help your attorney accomplish this by:

  • Keeping careful records of expenses,
  • Writing down the names of witnesses and taking photographs of all property damage and injuries,
  • Retaining any physical evidence involved in the accident (including the automobile), and
  • Informing the lawyers of all the facts surrounding your injury.

A negligence lawsuit may be filed against a careless driver only if the victim has suffered death, a serious physical injury, or a permanent serious disfigurement. During the lawsuit, the injured person must establish the defendant's negligence, while the defendant must establish any "comparative negligence" on the part of the victim. The victim's award will be reduced by his or her percentage of fault, or "comparative negligence." If the negligence of the victim exceeds 50% of the total, he or she may lose the right to sue entirely.

Auto No-Fault Claims

Generally, suit for personal no-fault benefits (that is, medical and the first three years of lost wages or services) must be filed within one year of the accident. Suit for negligence against the other driver must be filed within three years of the accident. These rules, however, are subject to numerous exceptions. Do not wait too long, but do not assume you have waited too long even if time has passed. Discuss your case with a knowledgeable attorney. The statute of limitations does not run during infancy or periods of incompetence, for example. There are special Statues of Limitation for children and those who are incapable of managing their affairs.

 

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Employment Claims

Employment Claims

Summary

Your employment rights are based on a combination of State and Federal laws.  Federal employment laws derive from equal protection and your anti-discrimination promises contained in the United States Constitution and a series of Civil Rights laws.  Your rights under State Law are set out in a similar Civil Rights Act commonly referred to as "Elliott Larsen."  Unfortunately, the "pro-business" and "anti-labor" attitudes that have permeated Washington and Lansing for the past decade greatly reduced the rights of working people to demand fair treatment from their employers. 

Employees always have the right to demand a copy of their personnel file.  An employer may charge a reasonable fee for reproducing the file and must be given a reasonable time to produce a copy.  Typically, five to ten days is more than adequate.   

Employment Rights

Employment rights are a complicated combination of Federal statutes, state statutes and privately-created contract rights. When someone is terminated, mistreated or injured at work, each case must be evaluated on its particular merits to determine what, if any, remedies may be available or compensation owed.

Worker's compensation systems

If a person is injured at work, there are two potential systems of compensation. If the injury arises in the course of employment, the worker should have alternative rights under the workers'' compensation system. This is a state system created in the early twentieth century in most states to offer minimal protections to injured employees.  In this system, all injured workers are entitled to payment of their basic economic loss regardless of who is at fault for the injury.  In "exchange," the worker is precluded from filing a claim against his or her employer for damages.  In essence, all workers who suffer injury arising out of employment receive minimal compensation, but even the most deserving do not receive full compensation. Recent "reforms" have further reduced the compensation paid by giving the employer credit for other family income, other governmental benefits, and retirement interests.

If an employer purchases workers' comp insurance, employees have no other legal alternatives against the employer or co-workers if there is an injury at work. If the employer has not purchased insurance, the worker has the option of pursuing a negligence action—but often this is a hollow right since uninsured employers are typically undercapitalized and enjoy the financial protection of their corporate status.

Work injuries involving people who are not co-workers

If an injury suffered at work is the result of a third party's (not a co-worker) negligence, the employee may pursue a claim against the at-fault individual.  (For example, a worker who is injured in a car accident while making deliveries for their employer. In many cases, the only impact of workers compensation in this situation is a lien created by law that requires any settlement proceeds be used first to repay the workers compensation insurer for the benefits it has paid. In these cases, the comp insurer frequently becomes a "silent partner" in any injury litigation or settlement; some insurers work well and fairly with the employee and his or her attorney; others can be a very frustrating stumbling block. They are obligated to pay their share of attorneys fees and costs in the event of recovery.

"At will" Employment

When the Republicans took control of the Michigan Legislature and courts in the 80s, one of their first "reforms" was to eliminate a worker's right to his or her job. Prior to that time, Michigan workers enjoyed the right to keep their job if the employer had used an implied promise of continued employment to induce better employee performance. Michigan was converted to an"at will employment" state where no matter how long he or she has been employed, an employee can be discharged "at will" unless there is an explicit written contractual promise to the contrary. It has been our experience that since this change in the law, most corporate employers have taken thorough steps to insulate themselves from any promise of continued employment. Still, a minority of firms do make express promises of employment either in employee contracts, employment handbooks or employment discipline policies. When someone is unfairly discharged, these documents must be examined closely for their impact on employment rights.

Discrimination and public policyDiscrimination and public policy

Even when employment is "at will," the employer cannot punish or discharge an employee contrary to law. There are a handful of laws that establish a federal or state public policy protecting certain employees under varying circumstances. For example, employees cannot be discriminated against on the basis of age, race, gender or ethnic origin. If a person is disabled but still able to perform a job with reasonable accommodation, the employer cannot discriminate against her or him.

There are other public policy bases for employee protection in addition to discrimination based on physical characteristics. They include whistleblower statutes, protecting persons who report illegal activity; actions to remedy retaliation for filing a workers' compensation claim, and all forms of sexual harassment, among others. MANY OF THESE EMPLOYMENT CLAIMS REQUIRE THAT THE EMPLOYEE TAKE ACTION WITHIN A VERY SHORT TIME PERIOD—SOMETIMES AS SHORT AS SIXTY DAYS, EVEN, IN ORDER TO PRESERVE THE EMPLOYEE'S RIGHTS.

Under these statutes, employees usually enjoy the right to a workplace free of mistreatment, financial penalty or unfair employment terms. On the other hand, under recent decisions, if the employer responds appropriately to a co-worker's or supervisor's improper conduct, it may be protected from liability. Further, most such employment litigation rights are curtailed if the employer extends a bona fide offer of re-employment to the victimized employee.

Discharge or "Constructive Discharge"

Most employment rights statutes prohibit any unfair employment action, practice or discrimination, including failing to hire, failure to promote, subjecting the employee to a hostile workplace environment, and, of course, wrongful discharge. Under the law, if you leave your job because you are exposed to conditions no reasonable worker would tolerate, you have been "constructively" discharged even if it is the employee who finally terminates the employment relationship. 

 

Employment Records

 

Pursuant to Michigan law, all employees have the right to demand and receive a full copy of their employment file. When an inappropriate act is believed to have occurred, such a written demand should take place immediately, in order to reduce the employer's opportunity to "stuff" the file with backdated or otherwise fictionalized justifications. Employees may also dispute negative information which has been placed in their file, and may force the employer to include their employee's written explanation of an incident or discipline in the file, as well.

Governmental Agencies

It should be noted that some employment abuses can be addressed, without litigation, through resort to labor-related governmental agencies. Where these rights and remedies exist, they may well allow an inexpensive method of addressing inappropriate actions such as abuse of wage and hour provisions, for example. Before filing a complaint with a governmental agency, it is a good idea to discuss your rights and alternatives with an attorney who is thoroughly versed in this area of law.

Statutes of Limitation

Whenever the law grants a right to seek recovery for wrongdoing, it also places restrictions on how long the victim has in which to take legal action. If the victim delays too long in seeking compensation, he is said to have "slept on his rights" and his claim will not be heard. These time limits are called "statutes of limitations" and they vary depending on the nature of the wrong that was committed. In many cases, there are other limitations on taking legal action, as well.

Failure to take action within the time permitted by law can be fatal to your claim. This is particularly true in the context of employment law. Virtually all federal employment laws require that employee begin the claim process by filing a complaint or "charge" with the United States Equal Employment Opportunity Commission (EEOC). The charge must be filed within 180 days of the date of discrimination. (The deadline is extended to 300 days under certain circumstances, but to be on the safe side assume the 180-day deadline).

Failing to file a charge with the EEOC in a timely manner will forever preclude you from the bringing a claim under federal law.

If you file a charge, the EEOC will conduct an investigation and determine whether there has been illegal conduct by the employer. They will then determine how to resolve the dispute. They may issue a "Right to Sue Letter" advising you to find a lawyer and pursue the action yourself. Typically, when a Right To Sue Letter is issued you have 90 days to file suit. Failure to comply with that deadline will also result in the loss of your claim.

Do not be discouraged if the EEOC decides not to file suit for you and issues a Right to Sue Letter. The decisions of the EEOC are most often based on their limited resources and personnel as opposed the merits of your case. Because they do not have the means to address every complaint of discrimination, the EEOC focuses on the most egregious conduct and work rules that affect a significant number of workers. Each year the EEOC issues Right to Sue Letters on thousands of perfectly valid claims.

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Fire InsuranceFire Insurance

Whether the cause is arson, faulty wiring or improper handling of combustibles, a house fire is a catastrophe for homeowners usually resulting in significant structural damage and loss of property. An appropriate policy of fire insurance is a must--and is a requirement if the property is mortgaged. All homeowners policies sold in Michigan must contain coverage for fire loss and state law requires that every fire insurance policy contains certain provisions spelling out obligations of both the insured and insurer in the event of a fire. This does not mean that all fire insurance policies are identical and it is very important that you discuss your particular coverage needs with a competent insurance agent and understand what your policy does and does not cover and what your responsibilities are in the event of a fire.

Policies typically include the following types of coverage for fire loss:

  • Dwelling--protects against loss to the structure of the dwelling. A loss which occurs to the dwelling is typically settled on a replacement cost basis. Replacement cost is the cost necessary to replace, repair or rebuild damaged property to its original condition with materials of the same kind and quality. For example, a hardwood floor would be repaired or replaced with the same kind of wood.
  • Appurtenant structures--other structures on the property such as a detached garage, are typically covered for up to 10%of the dwelling amount.
  • Contents--this coverage protects against lost personal property in different amounts, depending on the policy form. Covered loss of personal property is usually settled on an actual cash value basis. Actual cash value means the current replacement value of property less depreciation. However, some companies do now offer replacement cost on personal property.
  • Special Items--most policies contain special limits on coverage for items such as money, jewelry, computers, coin collections or furs. These limits vary by company and typically do not increase the total amount of coverage under the policy.

If you have a fire, your insurer will require you to prepare an inventory of the home's contents listing what items were damaged or destroyed. We strongly urge that you take the time to inventory the items in your home prior to any loss to aid you in the unfortunate event of a fire. If possible, list all personal items in your home and be as descriptive as possible listing the make of the item, the model, the year it was purchased and, if possible, save the receipt. Photographs or videotapes are often very helpful in this process.

Every fire policy issued in the state of Michigan provides that an action against the insurer must be commenced within one year of the loss, or within the time period specified in the policy, whichever is longer. The time for beginning an action is tolled from the time the homeowner notifies the insurer of the loss until the insurer formally denies liability. Statutes of limitations and other time limits found within the policy can be complicated and it is imperative that you have an attorney review your policy as soon after the fire as possible so that your rights are not lost.

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Industrial InjuriesIndustrial Injuries

  • Workers Compensation

    When workers are hurt while on the job, they almost always have access to workers compensation. Employees are covered for any injury that occurs in an employment setting, however the coverage is limited to the very basic necessities: usually medical coverage and two-thirds of net pay (less any Social Security Disability or other collateral source).  If an injured employee thinks he may have a claim, he should talk to a knowledgeable expert promptly. Free consultations are available to allow the victim to confirm that his benefits are complete and that they are calculated properly. Usually, the victim must give notice of the injury-causing incident within a certain time period, or the right to make a claim may be lost.

  • More Complete Recoveries

    There are times when the victim or his family may be entitled to a more complete recovery. For example, if the injury occurs in a motor vehicle, rather than in a factory, the victim is entitled to collect no fault PIP benefits to complement his work comp benefits.

    Furthermore, regardless of the site of the injury, if there is a third-party involved in causing it, the employee may have a claim against that person or entity. In an industrial setting, the third-party may be a consultant who designed the workplace, a manufacturer who designed a machine or its guards, or a service firm that removed guards, maintained equipment, or created a hazard. Sometimes the injury involves employees of another entity who work alongside the injury victim, such as delivery or transportation contractors, for example, or maintenance specialists, plumbers, electricians, or other outside contractors.

    Frequently, injuries occur on a site where construction activities are on-going and more than one contractor is at work. If another sub-contactor has acted negligently or the General Contractor has failed to provide safe "common work areas" they may be liable for your injury.

    In all of these cases, if the lack of due or reasonable care on the part of a third-party is one contributing factor in causing the injury, the victim or his family may be entitled to a more complete legal recovery. This would include, for example, collecting the entire wage loss, or collecting for pain and suffering or for the loss of the victim's society and companionship, if the injury is fatal. In all of these cases, the workers ompensation insurer would be entitled to repayment of the benefits it has paid from the third-party, through the mechanism of a subrogation lien.

    If the worker is injured at a job site that is not owned and controlled by the employer, the victim may have the right to sue the premises owner if the work site was "hazardous." For example, a pipe-fitter sent to a factory to make repairs might have the right to sue the factory owner, if he was injured by an unsafe condition.

    Today, a frequent source of employment-related injuries is chemical exposure. The law governing the use and distribution of chemicals and other toxic or dangerous materials is often complicated by issues involving the relative sophistication of the users and governmental or industry standards or regulations. If you have become sick or injured as a result of exposure to hazardous chemicals, you should promptly consult with an attorney to review your rights.

    In the past, Michigan courts have also treated "inherently dangerous activities" as a special category of liability. Originating in cases involving explosives and blasting, the inherently dangerous or "ultrahazardous" activity doctrines held the entity involved in these activities strictly responsible for all injuries that resulted. More recently, activities such as cell-phone tower-climbing, electricity management, tree-cutting and other work at heights or with dangerous instrumentalities have been deemed potentially "inherently dangerous."

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Insurance DisputesInsurance Disputes

Summary

The past ten years have seen an overwhelming sea-change in consumers' insurance rights in Michigan. The result of the "pro-insurance," and "anti-consumer" attitudes of the government in Lansing has been a significant loss of the rights of individuals.

Together, these provisions and decisions require consumers with potential insurance claims to get expert legal advice early on, in order to protect and properly document their rights.