Court of Appeals majority reverses trial judge; denies injury victim's discovery of catastrophic claims fund

Michael Demery lost his left arm and suffered a closed head injury in a 2003 car accident.  Since that time, he has been engaged in on-going litigation with AAA, his insurance company, over PIP attendant care benefits.  He won a 2004 case for attendant care benefits but in 2008, AAA reduced his attendant care pay to $11.00 per hour. In 2009, he won a trial for attendant care benefits, but the Court of Appeals reversed his win in an unpublished opinion.  While that action remained pending, he filed a third action in 2011, again pressing for fair attendant care payments.  As part of that action, he sought to take the deposition of representatives of the Michigan Catastrophic Claim Association; he argued that the MCCA was "calling the shots" in his case and that its underwriting analysis and decision-making process was relevant to the management of his claim.  The trial judge agreed.  He pointed out that he now required the MCCA to all similar settlement conferences because it was frequently the real party in interest.

The Defendant filed an emergency appeal to prevent the deposition of the MCCA representatives.  It argued that the MCCA, an organization created by the state's auto insurers to manage  and pay catastrophic claims, had no role in the Demery litigation and therefore the Plaintiff should be denied discovery of its underwriting practices.  For years, Michigan's auto insurers have fought "tooth and nail" to prevent any state investigation or regulation of the MCCA's practices.  And it has been successful:  Republican jurists and legislators reject any argument that there should be transparency in the actions of this insurance operation that is supported by mandatory no fault premiums.

Not surprisingly, the insurers won again.  Two judges of the Court of Appeals overturned the lower court judge and held that the injury victim had no right to depose the MCCA representatives.  To his credit, a third judge, Peter O'Connell, dissented from the decision.  He would have ruled that the trial judge did not abuse his discretion in allowing the discovery to go forward.