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Court Holds "Bodily Injury" Damages Include "Pain and Suffering" and "Non-economic Damages" In "Motor Vehicle" Accident Claims Against Government
on December 27, 2014 May 12, 2020 By Carson J Tucker, JD MSEL
I previously wrote a short post about this case, but since I authored an amicus curiae brief for Michigan Townships Association, and the counties of Oakland, Wayne and Macomb, I have engaged in a bit more analysis.
The Supreme Court released its long awaited opinion in Hannay v. MDOT and Hunter v. Sisco, on December 19.
The underlying facts in both cases arose from motor vehicle accidents in which government owned vehicles were involved. In Hannay, the plaintiff was injured when she was involved in an accident with a snowplow owned and operated by the Michigan Department of Transportation. In Hunter the plaintiff was injured when his vehicle was struck by a dump truck owned and operated by the City of Flint.
Both plaintiffs sued, claiming they suffered bodily injury and economic damages and were entitled to tort damages in excess of the minimum benefits available to all individuals injured by the operation, use or maintenance of a motor vehicle under Michigan's No-Fault Automobile Insurance Law (the No-Fault Act), Compiled Laws, MCL 500.3101 et seq. However, for those injured by ownership or operation of a government-owned vehicle, the additional layer of the Governmental Tort Liability Act (the GTLA) (Compiled Laws, MCL 691.1401 et seq.) limits a person's causes of action and recovery of damages to the more narrowly construed confines of the "motor vehicle" exception to governmental immunity. See MCL 691.1405. Under this latter provision, a person injured by the negligent operation of a government-owned motor vehicle may only recover "bodily injury" and "property" damages.
The main issue in these cases addressed an apparent conflict in the law from the two separate opinions issued by the Court of Appeals. In Hunter v. Sisco, the Court of Appeals ruled that a person may not recover noneconomic tort damages that are available to claimants under the No-Fault Act when filing a claim against the government under the motor vehicle exception. Since that exception only allowed recovery for "bodily injury" and "property" damage, and since the courts have construed the provision narrowly, recoverable damages were limited to those associated only with the physical injury to the person, i.e., medical expense damages. Thus, "pain and suffering" and "emotional distress" damages that are ordinarily recoverable in a tort action under the No-Fault Act were not available under the GTLA in actions against the government under the motor vehicle exception to immunity.
In Hannay v. MDOT, the Court of Appeals ruled that a person could claim excess tort damages (in that case excess economic benefits damages like wage loss and lost earning potential). The Court of Appeals affirmed the trial court's award for lost wages and for lost future potential earnings damages because the plaintiff had claimed that she was prevented from completing her education to become a dental hygienist.
Since both cases were published, and both rulings came to opposite conclusions about the extent and scope of recovery of damages under the motor vehicle exception of the GTLA, there was a conflict in the law.
Applications to appeal to the Supreme Court were filed in both cases. The Supreme Court initially denied the application in the Hunter case. It granted the State's application in the Hannay case, and then subsequently granted a motion for reconsideration in the Hunter case after it became evident that resolution of both cases was necessary to address the fundamental underlying issues.
The Supreme Court's opinion, joined by all of the Justices, with Justice Cavanagh concurring in the result only, is surprising in many respects. Although the Supreme Court has for the better part of 40 years narrowly construed the exceptions to governmental immunity to include only those damages clearly identified as available to claimants under the GTLA in actions against the government, this principle of interpretation does not control the Court's disposition of the result in this case. Rather, the Court reasons that since the common-law definition of the term "bodily injury" prior to the 1964 passage of the comprehensive GTLA included pain and suffering and noneconomic damages for the claimant, and since the common law had not been explicitly overruled by the Legislature in its passage of the GTLA, the term continued to mean that such damages are recoverable to claimants.
Thus, the "tort damages" available to individual claimants under the No-Fault Act are also available to claimants who can prove such injuries and damages in actions against the government.
The Court comes to this conclusion despite very recent enunciations concerning the prioritization of the Legislature's primary authority to define the law even in the face of prior judicial interpretations of the law, i.e., common law made by the decisions of the Supreme Court. Further, the Court has also clearly indicated for decades that the GTLA requires even greater deference to the Legislature because it alone is the expression of the People's will to be haled into court and answer for claims against the government. Indeed, the Court has repeatedly stated that private and government actors are treated differently when addressing claims against them.
The Court's opinion also does not address how the government can ever be held to the same standards and duties of an ordinary civilian under the auspices of the No-Fault Act. The No-Fault Act provides that all Michigan citizens are responsible to provide primary no-fault benefits without regard to fault. The GTLA requires a showing of fault, i.e., negligence, against the government in order for a claimant to be able to invoke the jurisdiction of the courts and to be entitled to damages. Even though the No-Fault Act does provide for "tort damages" when a claimant can prove they suffered a "threshold injury", i.e., an injury that causes serious impairment of a body function, this does not explain how and why the government must be subject to the same system applicable to other citizens in Michigan. Another principle that the Supreme Court has adhered to since the beginning of statehood in Michigan, at least until now, is that the immunity of the government is jurisdictional. Thus, litigation and liability can only be pursued via those means expressly defined by the Legislature as allowing suits against the government. Otherwise, there is no consent, implicit or otherwise, to subject to the government, i.e., the People, to other liability and "no-fault" schemes under Michigan law.
Although this issue was not directly implicated in these cases, the failure to address it and answer the question in explaining that the government can indeed be held liable in the same parameters of liability and fault as ordinary citizens under the No-Fault Act blemishes an otherwise fairly visible and consistent image in the tapestry of jurisprudence created by the Court when addressing governmental liability in Michigan.
It is unfortunate that this opinion contains this evident erosion of the Court's prior jurisprudence interpreting the GTLA. It does not solidly adhere to the Court's previously consistent themes in addressing governmental immunity cases post-1964 passage of the GTLA. Because the term "bodily injury" exists in other exceptions to governmental immunity, this opinion will provide an opportunity for those seeking to expand the narrowly construed exceptions to the government's liability. It will also lead to additional and more strenuous litigation efforts against the government. And, it will result in larger payouts by the government for damages claims under the GTLA, whether through settlements or judgments.
On that latter note, the one bright spot in the opinion is that the Court reverses the Court of Appeals affirmation in Hannay of the trial court's allowance of speculative "future earnings potential" damages. As mentioned, the Plaintiff claimed entitlement to future earnings as a dental hygienist, even though she never finished her educational certification for that particular job. The trial court held that but for the motor vehicle accident, the plaintiff would have been accepted into a "dental-hygienist" program, would have graduated from that program, and would have been employed at least 60% of the time at the rate of $28 per hour. The Court reasoned the damages award was far too speculative. The plaintiff did not prove by a "preponderance of the evidence" that she would have earned such wages if not for the accident. "The number of conditions that had to be satisfied before Hannay could have been employed as a dental hygienist indicated that this case involved more than the inherent uncertainty of work-loss claims in general, rendering the award impermissibly contingent and speculative." Syllabus, and Slip. Op. at p. 38.
I continue to diligently monitor this and all other cases touching on the government's liability and exposure under the exceptions to the GTLA. It is unfortunate that this particular case appears to be a setback in the otherwise strong opinions issued by the Court in the past decade when addressing actions against the government.
My earlier posts about these cases can be found at the following links:
Supreme Court to Address Scope of Damages Available in Actions Against Governmental Entities Under No-Fault Insurance and Governmental Immunity Law
Governmental Liability for Damages Under Motor Vehicle Exception to Immunity to be Addressed by Supreme Court
Michigan Supreme Court to Consider Both Non-economic and Economic Tort Damages Claims Against Government
Supreme Court Amicus Curiae Brief Filed in Support of State's Appeal in Motor Vehicle Exception Case
I have been directly involved in at least four cases as the government's appellate attorney (Odom v. Wayne County, Hamed v. Wayne County, Atkins v. SMART Bus, and the Court of Appeals opinions in Gentry v. Wayne County and Truett v. Wayne County), and tangentially involved writing as amicus curiae in many others, which have demonstrated and continued the trend the government and its individual actors should be protected to a great degree to allow the smooth and uninterrupted operation of government affairs in day-to-day life. I continue to believe that unnecessary litigation and large damages claims are inconsistent with this. The Michigan Supreme Court's decisions, which I secured in Odom, Hamed, and Atkins, as well as the Court of Appeals opinions in Gentry and Truett, were instrumental in advancing this overarching theme that should be the focus of those defending actions against the government.
If anyone has questions about any of these opinions, please call the Law Offices of Carson J. Tucker.
Effective appellate representation demands different skills than those required by litigation attorneys. Mr. Tucker is adept at analyzing the intricacies of each case from an objective and critical perspective. From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, Mr. Tucker is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.
Mr. Tucker's research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provides his clients with efficient and immediate assistance with complex and high-exposure cases.
Mr. Tucker is experienced at navigating through all appellate courts to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.
During the past decade, Mr. Tucker has been responsible for several seminal decisions in workers' compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.
Because of his specialized knowledge and focus on appellate law and his recognized expertise, Mr. Tucker has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.
Mr. Tucker presented direct representation to the defendants and prosecuted the entire appeal, including all appellate briefings and oral arguments before the Court of Appeals and Supreme Court in the following cases, among others:
Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
Atkins v. SMART, 492 Mich. 707 (August 20, 2012), application granted, and briefed and argued by Carson J. Tucker in the Supreme Court
Gentry v. Wayne County Deputy Sheriff Daniel Carmona, unpublished opinion of hte Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580), briefed and argued by Carson J. Tucker in the Court of Appeals
Hamed v. Wayne County, 490 Mich. 1 (July 29, 2011), briefed and argued by Carson J. Tucker in the Court of Appeals and Supreme Court
Odom v. Wayne County, 482 Mich. 459 (December 30, 2008), application for leave to appeal granted, and briefed and argued by Carson J. Tucker in the Supreme Court
Mr. Tucker has also served as special appellate counsel for governmental entities and organizations in writing amicus curiae briefs in the Supreme Court and Court of Appeals in the following cases, among others:
Hannay v MDOT, ___ Mich. ___ (December 19, 2014), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
Yono v. MDOT, ___ Mich ___ (2014), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state's application
Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker
Hagerty v. Manistee County Road Commission, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
Mr. Tucker can be reached at +17342183605.
Published by Carson J Tucker, JD MSEL
Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs.
Board of Directors, Michigan Defense Trial Counsel
Amicus Committee Co-Chair, Michigan Defense Trial Counsel
Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia.
United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003
Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
Posted InAdministrative Law, Appeals, Appeals and Legal Research, Appellate Lawyer, Comparative Law, Governmental Immunity, Highway Defect Claims, Insurance and Indemnity, Insurance Coverage, Insurance Law, Insurance Lawyer, May It Please the Court, Michigan No-Fault Insurance, Michigan Supreme Court Opinions, Michigan Supreme Court Orders, Public Corporations, Recent Judicial Dispositions
Taggedamicus curious, auto insurance, automobile accidents, automobile insurance, bodily injury, carson j. tucker, carson tucker, common law, Governmental Immunity, governmental liability, Governmental Tort Liability Act, GTLA, highway exception, Michigan Court of Appeals, Michigan Supreme Court, no fault act, no fault benefits, no fault insurance, noneconomic damages, personal injury, personal insurance protection benefits, Supreme Court
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