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Lawyers’ Corner: Notice of Injury in Dillon v State Farm

Auto accidents may happen in a moment, but the injuries your clients suffer could develop months, and even years later. Can you still get no-fault benefits paid for late-developing injuries under the same notice of injury? A new published Michigan Court of Appeals case says yes.

It has been a tactic of insurance companies for years: denying benefits for injuries not disclosed in an initial accident report. But a recent published Court of Appeals case, Dillon v State Farm Ins Co, shoots a hole in that defense, and opens the door for plaintiffs’ attorneys to recover benefits on developing injuries.

In August 2008, Jessica Dillon was in a pedestrian accident; a motor vehicle struck her as she crossed the street. She went to the hospital by ambulance complaining of upper and lower back pain, shoulder pain, and abrasions. State Farm paid her benefits claim and all was well.

At the time, no one knew she had injured her hip too. Three years later, though, she was diagnosed and treated for a labral tear resulting in Arthoscopic surgery. The injury was the result of her pedestrian accident, but State Farm denied the claim anyway. The company argued that it hadn’t received notice of the hip injury within one year of the accident.

The judge refused to dismiss the case and a jury found in Dillon’s favor. The Defendant appealed on the issue of the notice of injury. The Michigan Court of Appeals took it up and eventually issued a published opinion addressing the question: Whether it was necessary for a plaintiff to specifically identify her hip injury in her notice of injury.

Notice of Injury Under MCL 500.3145

The Michigan No-Fault Act requires injured motorists to provide their insurance providers with notice of their injuries:

An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. . . . The notice shall give the name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury.

The question was whether an injured motorist was required to specifically identify her hip injury in her notice of injury. The Michigan Court of Appeals looked at two prior cases that provided some guidance.

In Mousa v State Auto Ins Co, the court touched on the notice requirement:

“The notice must be specific enough to inform the insurer of the nature of the loss. It must give sufficient information that the insurer knows or has reason to know that there has been a compensable loss.”

The court said this suggested the notice of loss did not need to identify the specific injury. Welton v Carriers Ins Co, provided more guidance:

“Notice of injury simply informs the insurer of ‘the name and address of the claimant,’ ‘the name of the person injured and the time, place and nature of his injury.’ MCL 500.3145(1); MSA 24.13145(1). Until a specific claim is made, an insurer has no way of knowing what expenses have been incurred, whether those expenses are covered losses and, indeed, whether the insured will file a claim at all.”

The court held that this was a much more general notice requirement than State Farm was asserting.

Statutory Interpretation of “Notice of Injury”

The court’s review of the statute came down to the specific language of the statute. The court noted that the phrase “notice of injury” is not definite. It is missing the word “the.” If the Legislature had intended the notice to identify a specific injury, it would have written the statute “notice of the injury” instead. All that was required for Dillon, or other injured motorists, was to provide notice that “she suffered physical injuries in a motor vehicle accident was sufficient to satisfy the statute.”

Opening the Door to Plaintiffs’ Developing Claims

This decision arms plaintiffs’ attorneys with the tools they need to represent their clients with developing injuries. It eliminates insurance companies’ defense that plaintiffs failed to disclose particular injuries, and recognizes that sometimes an injury doesn’t develop to the point of treatment for months, or even years.

This is particularly important for brain injury attorneys. While brain injury screening has improved, concussions often go undetected. It isn’t until swelling and pressure cause secondary injuries that an accident victim’s full medical needs become apparent.

Until now, the insurance companies would use this against claimants. Many people provide their notice of claim to insurance providers before speaking to an auto accident attorney. When they forgot to mention a bump to the head, that omission became a defense to no-fault benefits for reasonable and necessary brain injury treatment.

Now, the door is open to these developing claims. Failure to disclose a particular injury can’t stand in the way of a plaintiff’s attorney proving that the injuries are the result of the auto accident and covered under a person’s PIP policy. With this decision, the Michigan Court of Appeals defended the Legislature’s intent to make sure no one goes broke because of an auto accident.

David Christensen is an auto accident attorney at Christensen Law in Southfield, Michigan. He has been fighting against insurance company tactics for over 20 years. If your client is facing a challenging no-fault case, contact Christensen Law for a referral today.