April 25, 2007, Introduced by Senators WHITMER, BRATER, PRUSI, JACOBS, GLEASON, CLARKE, SWITALSKI, CLARK-COLEMAN, HUNTER, BASHAM, BARCIA, SCOTT, SCHAUER, THOMAS, ANDERSON, OLSHOVE and CHERRY and referred to the Committee on Judiciary.
A bill to amend 1956 PA 218, entitled
"The insurance code of 1956,"
by amending section 3135 (MCL 500.3135), as amended by 2002 PA 697.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 3135. (1) A person remains subject to tort liability for
noneconomic loss caused by his or her ownership, maintenance, or
use of a motor vehicle only if the injured person has suffered
death, serious impairment of body function, or permanent serious
disfigurement.
(2) For a cause of action for damages pursuant to subsection
(1) filed on or after July 26, 1996, all of the following apply:
(a) The issues of whether an injured person has suffered
serious impairment of body function or permanent serious
disfigurement are questions of law for the court if the court finds
either
of the following:
(i) There is no factual dispute concerning the nature
and
extent
of the person's injuries.
(ii) There is a factual dispute concerning the nature
and
extent
of the person's injuries, but the dispute is not material to
the
determination as to whether the person has suffered a serious
impairment
of body function or permanent serious disfigurement.
that there is no genuine issue as to any material fact, and the
moving party is entitled to judgment or partial judgment as a
matter of law. However, for a closed-head injury, a question of
fact for the jury is created if a licensed allopathic or
osteopathic physician who regularly diagnoses or treats closed-head
injuries testifies under oath that there may be a serious
neurological injury.
(b)
Damages shall be assessed on the basis of comparative
fault,
except that damages shall not be assessed in favor of a
party
who is more than 50% at fault.
(c)
Damages shall not be assessed in favor of a party who was
operating
his or her own vehicle at the time the injury occurred
and
did not have in effect for that motor vehicle the security
required
by section 3101 at the time the injury occurred.
(b) Economic and noneconomic damages shall be assessed on the
basis of comparative fault, except that noneconomic damages shall
not be assessed in favor of a plaintiff who is more than 50% at
fault or reduced in favor of a defendant who is more than 50% at
fault.
(c) Noneconomic damages shall not be assessed in favor of a
party who was operating a motor vehicle titled or registered in the
name of that party at the time the injury occurred if there was not
in effect for that motor vehicle the security required by section
3101 at the time the injury occurred.
(3) Notwithstanding any other provision of law, tort liability
arising from the ownership, operation, maintenance, or use within
this state of a motor vehicle with respect to which the security
required by section 3101 was in effect is abolished except as to:
(a)
Intentionally caused harm economic
or noneconomic damages
of any nature or extent to persons or property. Even though a
person knows that harm to persons or property is substantially
certain to be caused by his or her act or omission, the person does
not cause or suffer that harm intentionally if he or she acts or
refrains from acting for the purpose of averting injury to any
person, including himself or herself, or for the purpose of
averting damage to tangible property.
(b) Damages for noneconomic loss as provided and limited in
subsections (1) and (2).
(c) Damages for allowable expenses, work loss, and survivor's
loss as defined in sections 3107 to 3110 in excess of the daily,
monthly, and 3-year limitations contained in those sections and
damages for loss of earning capacity. The party liable for damages
is entitled to an exemption reducing his or her liability by the
amount of taxes that would have been payable on account of income
the injured person would have received if he or she had not been
injured.
(d) Damages for economic loss by a nonresident in excess of
the personal protection insurance benefits provided under section
3163(4). Damages under this subdivision are not recoverable to the
extent that benefits covering the same loss are available from
other sources, regardless of the nature or number of benefit
sources available and regardless of the nature or form of the
benefits.
(e) Damages up to $500.00 to motor vehicles, to the extent
that the damages are not covered by insurance. An action for
damages pursuant to this subdivision shall be conducted in
compliance with subsection (4).
(4) In an action for damages pursuant to subsection (3)(e):
(a) Damages shall be assessed on the basis of comparative
fault, except that damages shall not be assessed in favor of a
party who is more than 50% at fault.
(b) Liability shall not be a component of residual liability,
as prescribed in section 3131, for which maintenance of security is
required by this act.
(5) Actions under subsection (3)(e) shall be commenced,
whenever legally possible, in the small claims division of the
district court or the municipal court. If the defendant or
plaintiff removes the action to a higher court and does not
prevail, the judge may assess costs.
(6) A decision of a court made pursuant to subsection (3)(e)
is not res judicata in any proceeding to determine any other
liability arising from the same circumstances as gave rise to the
action brought pursuant to subsection (3)(e).
(7) As used in this section, "serious impairment of body
function"
means an objectively manifested injury
or impairment of
involving an important body function that has affected, affects, or
may
affect in the future the person's general
ability to lead his
or her normal life. In making this determination, all of the
following apply:
(a) Notwithstanding anything to the contrary, serious
impairment of body function does not require a showing, at any
point in time, of any of the following:
(i) That the injury or impairment, or its effect, altered the
course or trajectory of the person's life, caused the person to be
generally unable or for the most part unable to live his or her
normal life, or caused the person's life after the injury to be
substantially different from the person's life before the injury.
(ii) That the injury or impairment, or its effect, was
permanent, severe, substantial, extensive, or pervasive or lasted
for a significant period of time.
(iii) That there were physician-imposed restrictions.
(b) In determining whether the person's ability to lead his or
her normal life has been affected at any point in time, the trier
of fact or a court deciding this issue as a matter of law under
subsection (2)(a) shall consider all of the following factors,
which factors shall not be exclusive and no individual factor shall
be dispositive:
(i) The nature of the injury or impairment.
(ii) The type of treatment required.
(iii) The duration of the injury, impairment, or treatment.
(iv) The existence of, or the prognosis for, any residual
injury or impairment.
(v) The impact of the injury or impairment on the injured
person's quality of life.
(vi) Any other relevant factors.
(8) An injured person who has sustained serious impairment of
body function and who is otherwise entitled to recover damages for
noneconomic loss in a tort liability claim as a result is entitled
to all damages for noneconomic loss suffered by that person as a
proximate result of the incident giving rise to the tort liability
claim, regardless of whether the injured person has ceased to
suffer, or in the future will cease to suffer, serious impairment
of body function.
(9) If an injured person recovers damages under this section
for noneconomic loss or excess economic loss and is required to pay
all or a portion of that recovery to any person or entity claiming
a lien or right of reimbursement, subrogation, recoupment, or
offset against the recovery, the insurer responsible to pay
personal protection insurance benefits to the injured person shall
reimburse the injured person for the amount he or she is required
to pay the person or entity to the extent that the payment would
have been payable by the insurer if the person or entity had not
paid those amounts.
(10) The changes made in subsection (7) by the amendatory act
that added this subsection are curative and intended to correct the
misinterpretation of law and legislative intent that occurred in
the Michigan supreme court decision in Kreiner v Fischer and Straub
v Collette and Heil-Wylie, 471 Mich 109; 683 NW2d 611 (2004), and
subsequent appellate cases implementing that decision.
(11) The changes made by the amendatory act that added this
subsection apply to cases pending in the trial or appellate court
on the effective date of the amendatory act that added this
subsection and cases filed on or after the effective date of the
amendatory act that added this subsection.