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Car accident claim without a lawyer? Read this.

None of us like the ads some lawyers run on TV, seeking clients with personal injury claims.  The alternative, though, can be catastrophic.  Here is one example, taken from the Michigan Court of Appeals in April of 2009:  The case is Tammy Johnson, Guardian of Nancy Eastman v. Wausau Insurance Company and Nationwide Indemnity, Inc.

In 1983, Nancy Eastman suffered profound brain injury at ten months old in a car accident.  Under Michigan law, she was entitled to full lifetime medical benefits, including hourly attendant care, as needed.  It is undisputed that the brain injured child required 24 hour care.  Her parents could not provide that care when she came home from the hospital, so Dorothy Bencheck assumed her care and ultimately became her guardian.  Bencheck was paid $20.00 per day by Wausau/Nationwide to care for Nancy.  She repeatedly asked if she was entitled to any other financial support and was told by the adjuster, one Albert Abdey, that she was not entitled to anything else.

 Abdey admitted this was true and justified his misrepresentations by asserting that he didn't want to turn the guardianship into a "job".  He never informed Bencheck of her right to receive hourly attendant care, told her she had received all she would get from Wausau/Nationwide, and told her that if she needed money, she should raid the $37,000 "pain and suffering" settlement the insurer had paid the child.  The Probate Court rejected that request and in financial difficulty, Bencheck had to give up caring for Nancy in 1989.  In 1990, Tammy Johnson assumed Nancy's care; Wausau/Nationwide did not tell her of Nancy's entitlement to lifetime attendant care, but it did make the generous gesture of increasing her per diem from $20.00 per day to $21.00!

In 2006, Johnson spoke to a lawyer and learned for the first time that she should have been paid about $10.00 per hour for caring for Nancy.  She learned for the first time that she could hire respite care for vacations or weekends at a reasonable market rate, or even retain someone on a regular basis to take a shift caring for Nancy.  She sued Nationwide/Wausau for fraud and misrepresentation and sought payment of the (literally) hundreds of thousands of dollars that it had improperly refused to pay her.

The Court of Appeals rejected Johnson's claim for benefits more than one year old.  Even though Judge Henry Saad (the compassion-less insurance apologist who never met a consumer claim or victim that he didn't enjoy repudiating) and his panel of the Court of Appeals acknowledged that Nancy's guardians had been lied to by Wausau/Nationwide, it refused to allow the claim to go to a jury.  It held that "assuming Abdey made a fraudulent misrepresentation...[the guardians] cannot establish that [they] relied" on his lie.   The panel suggested that since Nancy's guardians could have consulted with a lawyer and learned that they were being lied to, they had no recourse against the insurer.

So, the next time an insurer suggests you are "in good hands" and don't need independent advice in dealing with adjusters or agents, give this case some thought.  Not only does the insurer have no duty to tell you what you are owed; you can't even hold it responsible for fraudulent misrepresentations.  Even if you are a brain-damaged child owed hundreds of thousands of dollars of daily care.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
Fax: 231-929-7262