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Activist judges re-write no fault statute to deny PIP benefits to injured man

The insurer's best friend, Henry Saad, managed to re-write the no fault act this month in order to deny PIP medical benefits to Daniel Kemp, who tore a calf muscle unloading his personal effects from his pickup truck.  The no fault statute says that PIP benefits will be payable whenever an injury is suffered "as a direct result of physical contact being lifted onto or lowered from the [parked] vehicle in the loading or unloading process."  On the basis of this language, Kemp sought the limited wage and medical protection of the no fault act.

His insurer, Farm Bureau, refused to pay benefits.  It argued that he lied to his doctor about how the injury happened because his doctor merely recorded that the injury happened "at home," even though Kemp maintained that it did happen, in fact, "at home," as he unloaded personal effects in his driveway after work.  The physician signed an affidavit confirming his opinion that the injury was, in fact, suffered when Kemp bent into his truck to unload property, but the trial judge refused to consider the affidavit because the physician didn't witness the injury.

Judge Saad, whom some would say is a pimp for the insurance industry, described the injury as an "alleged" injury that Kemp "supposedly" incurred while unloading his truck.  His cynicism and pejorative treatment of Kemp's legitimate claim continued as he ruled that the plain language of the No Fault law did not apply to Kemp's injury because transporting personal items in a vehicle is not part of the "transportation function" of the truck.  In reaching this conclusion, Saad stretched existing precedent beyond the language of the Michigan Supreme Court and ignored the plain meaning of the Act, itself. 

In a blistering dissent, Judge Beckering pointed out that transporting personal effects has always been considered part of the "transportation function" of a vehicle and that the judges who upheld summary disposition of Kemp's claim were improperly assessing his credibility--which is properly a function for the jury.    Judge Beckering emphasized that the plain language of the No Fault Act--which judges are required to enforce--applied to Kemp's actions in reaching into his vehicle to remove personal items he was transporting. 

It would be interesting to see whether Judge Saad would make a claim for benefits if he injured himself lifting a heavy briefcase out of his car.  But probably he has a law clerk to do that.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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