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Insurer-friendly Judge issues "Saadistic" dissent aimed at denying wage loss

Henry Saad was the first in a generation of insurer-friendly judges who managed to secure nominations, appointments and elections to Michigan appellate judgeships.  Since he became a Court of Appeals Judge, his decisions nearly always mimic the insurance industry's line for denying benefits to injury victims or consumers.  This week he out-did himself.

The model No Fault Act which Michigan adopted with few changes in 1974 eliminated an injury victim's right to collect for injury-induced loss of "earning capacity."  Instead, the victim was allowed to collect PIP benefits based on actual wages to a statutory maximum, if employed; or based on the last month employed, if "temporarily unemployed."  Needless to say, the system was a huge burden on college students and others whose current wage did not fairly represent their probable future income, but the system survived constitutional challenge.  It survived, in part, because it provided immediate payment (underwritten by the insured) of three years of replacement income from one's own insurer.

This week, Home-Owners Insurance Company lost its appeal of a jury verdict in Jones v. Home-Owners.  The injured party in Jones was a mother who had been moved in September of 2008 from a full-time patient care technician to "on call"  status.  As a single mother of four children, including one with special needs, Jones could not work the irregular "on call" shifts and applied for other work.  She signed up for unemployment, fielded more than one promising lead and was due to interview for a job she had been recommended for, when she was injured in a car wreck.

Home-Owners paid her wage loss for 11 months, but then decided that she could not prove that her unemployment was merely "temporary" and refused her PIP benefits.  She sued and secured a jury verdict for the remaining 25 months of wage loss she had paid for under her No Fault auto insurance.  Home-Owners argued that since she couldn't point to a likely permanent, certain future job, she should be denied benefits due under the "temporary unemployment" statute.

The Court of Appeals majority rejected Home-Owners' argument.  It noted that Jones had provided enough evidence that her unemployment was merely temporary to warrant the jury's conclusion to that effect.  Henry Saad, however, dissented and followed the insurance industry policy line:  he argued that "although plaintiff provided 'independent corroboration' of both intent and actions taken to secure employment, she provided no 'evidence showing [her]unemployed status would not have been permanent if the injury had not occurred."  Thus, on behalf of the insurance industry, Saad would impose upon temporarily unemployed persons a new duty never before recognized--the duty to prove that a job would have existed for her each day of the remaining three-year PIP obligation.  This duty is contained no where in the statute and has never been recognized by any other court.  As Saad himself recognized, prior decisions described the statute as applying "when a claimant suffers an unavailability of work at the time of the accident."

If there were any doubt about the integrity of Saad's work on the Court, the majority pointed out that Saad would have granted Home-Owner's appeal because Jones "failed to 'show that her accident-related injuries prevented her from taking a position.'"  As the majority noted, Home-Owners never raised this issue, never argued this point, and did not brief that issue or present it as a question on appeal.  There was no basis to consider this point as an appellate court--and furthermore, it was unfounded based on the trial record.  Jones suffered multiple fractures of the bones in her foot and underwent two surgeries:  Home-Owners didn't raise the issue because it was unfounded.  But still available for an insurance apologist judge to use to further his own agenda.

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