RCR News
Liability SD Granted
Plaintiff refused reasonable offers at a facilitation and scoffed at threats of a potential liability Motion for Summary Disposition. The Plaintiff undoubtedly regrets that decision as the SD was eventually granted. Trey Cotten argued that Plaintiff could not create a question of fact on the issue of liability by changing her deposition testimony from a prior recorded statement. The Court found sufficient evidence that demonstrated Plaintiff was the proximate cause of the accident and granted Defendant’s Motion for Summary Disposition with prejudice.
MPSD Granted
Rochelle Konja obtained summary disposition in favor of the defense, resulting in dismissal of a motor vehicle property damage action.
Plaintiff sought additional recovery arising from a motor vehicle accident after the vehicle had been declared a total loss and the full total-loss settlement had been paid. Rochelle established that no deductible had been taken from the settlement and that the plaintiff had no remaining uncovered vehicle damage recoverable under Michigan law.
Plaintiff further argued that repair estimates exceeding the vehicle’s total-loss value supported additional damages. She successfully demonstrated that those estimates did not establish legally recoverable damages beyond the amount already paid and did not create a genuine issue of material fact. The Court granted Our motion for summary disposition, dismissing the claim with prejudice.
Laser and Shockwave Therapy Tossed
A large direct provider bill was slashed dramatically after the Judge granted Tom’s motion for partial summary disposition. Mr. Roeder argued that MCL 333.16104 mandates that the administration of medical treatment must be performed by licenses physicians and that the laser and shockwave treatment being provided by the Plaintiff was improper and not supervised or performed by a doctor. The Judge agreed and granted RCR’s motion.
MSD in Lieu of Answer - Liability Granted
Facts: Plaintiff filed suit arising out of a multi-vehicle freeway accident, alleging that our insured negligently caused the collision and seeking damages for claimed injuries. Before filing an Answer, Rochelle filed a Motion for Summary Disposition, relying upon objective dashcam footage showing that our insured was traveling straight in his lane when vehicles merging onto the freeway collided beside him and caused the subsequent impact with his vehicle. Rochelle successfully argued that the video established no negligent conduct or causation on the part of our insured and no genuine issue of material fact for trial. The Court agreed and granted summary disposition, dismissing our client from the lawsuit at the outset of the case.
MPSD Granted
Facts: Rochelle Konja secured summary disposition in a Michigan No-Fault provider action challenging the proper application of the fee schedule under MCL 500.3157. The provider disputed the Medicare-based reimbursement methodology, including the use of MPPR, packaged-service and N1 status rules, and geographic/MAC pricing.
We argued that when reimbursement is tied to the amount payable under Medicare, the full Medicare methodology applies, including its reductions, packaging rules, status indicators, and geographic adjustments. The Court GRANTED summary disposition, upheld the reimbursement methodology, and rejected the provider’s attempt to selectively apply only favorable portions of Medicare pricing.
MPSD GRANTED
Facts: Rochelle Konja secured partial summary disposition in favor of its insured in a Wayne County automobile negligence action. The plaintiff sought more than $82,000 in excess medical expenses despite having elected no PIP medical coverage based on her Medicare-qualified health coverage. However, the plaintiff admitted that the medical bills had never been submitted to Medicare or her Medicare plan.
The Court granted the motion, finding that the plaintiff could not bypass her available Medicare coverage and seek the full amount of the bills directly from the defendant. Consistent with Canty v. Mason, the ruling confirms that a plaintiff asserting excess economic damages must reasonably mitigate those damages by first submitting medical expenses to available qualified health coverage. Bills that are not properly submitted cannot simply be shifted to the alleged tortfeasor. This ruling eliminated the plaintiff’s excess medical expense claim and significantly reduced the insured’s potential exposure.
SUCCESSFUL DISMISSAL
Facts: Rochelle Konja secured the voluntary dismissal of a first-party No-Fault claim after identifying a dispositive PIP medical coverage exclusion. The insured had selected Option 4 $250,000 PIP Medical Coverage with Exclusions, expressly identified herself as an excluded person, and supported the election with separate health coverage through HAP that had been confirmed as Qualified Health Coverage. The policy declarations and signed election documents were consistent with that selection.
Plaintiff argued that the election was ineffective because the insured was also a Medicare recipient. We argued that the insured’s Medicare status was separate from the legal basis for her Option 4 exclusion. The insured did not rely on Medicare to qualify for the exclusion, she relied on independently verified Qualified Health Coverage through HAP. We further argued that her simultaneous Medicare enrollment did not eliminate the HAP coverage, affect its status as a Qualified Health Coverage, or invalidate an otherwise properly completed Option 4 election. The controlling issue was whether the insured possessed qualifying health coverage and validly elected the exclusion, not whether she was also enrolled in Medicare.
After we presented the HAP verification, signed PIP election form, and declaration page, and advised that we would pursue summary disposition and costs, Plaintiff agreed to dismiss the insurer without the need for motion practice.
MPSD - Granted - Billing Practices
Facts: Rochelle Konja secured a significant partial summary disposition victory in a Michigan provider action involving the proper application of the No-Fault fee schedule under MCL 500.3157. The medical provider attempted to increase the amount recoverable by stacking multiple reimbursement theories, including 220% reimbursement, enhanced pricing, CPI adjustments, charge-description-master and average-charge calculations, and FAIR Health benchmarking. We argued that where Medicare provides an amount payable for the service, the statute imposes a controlling Medicare-based cap and does not permit a provider to combine separate pricing methodologies to inflate the claim.
The provider opposed the motion by relying on a self-generated pricing affidavit and a nonbinding administrative decision, contending that it qualified for enhanced reimbursement and could apply a CPI adjustment after calculating the Medicare-based amount. The Court rejected that methodology and GRANTED our motion. It ruled that the provider’s potential recovery is limited to 190% of the amount payable under Medicare and expressly prohibited any increase through 220% reimbursement, enhanced pricing, enhanced reimbursement, CPI adjustments, CDM or average-charge methodology, FAIR Health data, or any other upward pricing adjustment.
MEDICARE-LIEN WIN - Pre-Trial Motion
Facts: Rochelle Konja secured a significant pretrial victory in a Michigan first-party No-Fault action by defeating the plaintiff’s attempt to categorically exclude evidence that Medicaid and Medicaid-sponsored plans had already paid the medical providers. The plaintiff sought to present the providers’ full billed charges while preventing the jury from learning that the bills had been paid at substantially reduced rates and that the only remaining repayment obligation consisted of statutory Medicaid liens.
We demonstrated that excluding the payment and lien evidence would distort the damages analysis and permit recovery of hypothetical billing differentials that no provider was actually pursuing. We argued that allowable-expense damages must be tied to an amount actually incurred and legally enforceable, and that third-party payment evidence remains relevant to the existence and value of any alleged outstanding obligation.
The Court denied the plaintiff’s motion and ruled that, for bills paid by Medicaid or Medicaid-sponsored plans and included in asserted liens, any recovery could not exceed the lien amount. The ruling prevented the plaintiff from converting paid medical bills into inflated PIP damages and preserved our ability to present the true payment and lien evidence at trial.
MSD - GRANTED
Facts: Rochelle Konja secured summary disposition and dismissal with prejudice of a derivative medical-provider action following the full settlement of the underlying claimant’s first-party No-Fault case. The motion presented a particularly nuanced timing and notice issue because the provider had filed its separate lawsuit before the claimant settled, but the insurer was not served with that action until the same day the claimant settled its PIP claims for all past, present, and future PIP benefits. The provider was also not identified as an outstanding claim in the settlement materials, creating a contested question as to whether the earlier filing alone was sufficient to preserve the provider’s claim.
We established that the provider’s claim was entirely derivative of the claimant’s right to recover benefits and that filing a lawsuit, without service or other written notice before settlement, did not defeat the insurer’s statutory good-faith payment defense under MCL 500.3112. The claimant’s release expressly encompassed past, present, and future medical charges, extinguished assignment-based claims, and was followed by dismissal of the underlying action with prejudice. We successfully argued that the provider could not use a separately filed action to revive benefits that had already been released, paid, and finally resolved. Particularly where the insurer had no notice of the provider’s claim before completing the settlement in godo faith. The Court granted summary disposition and dismissed the provider’s complaint with prejudice.
MSD Granted
Facts: Rochelle Konja secured summary disposition in an automobile negligence action involving a claimed phantom vehicle and uninsured motorist coverage. Another defendant alleged that an unidentified vehicle caused him to swerve into Plaintiff, and Plaintiff argued that the phantom vehicle triggered uninsured motorist coverage. We argued that the policy required the unidentified vehicle to “strike” the insured or occupied vehicle, and there was no evidence of the required physical contact. The Court GRANTED summary disposition, rejecting Plaintiff’s ambiguity argument and dismissing the uninsured motorist claim.
Dismissal
Attorney George Bados obtained dismissal of a Plaintiff’s negligence lawsuit after multiple discovery failures. The dismissal was without prejudice, but the case will not be filed again thanks to the statute of limitations.
MSD GRANTED - Liability
Facts: Rochelle Konja secured a summary disposition victory in a Michigan auto negligence action arising from a contested red-light collision. After full discovery, we moved under MCR 2.116(C)(10) and demonstrated that the evidence conclusively established our client was entirely free from fault. The record showed that our client stopped for a red light, waited for the signal to turn green, and lawfully entered the intersection before being struck by a co-defendant who proceeded through the red light without stopping or slowing.
The opposing party attempted to characterize the case as a credibility dispute based on the drivers’ competing accounts on who had the red light. We rebutted that argument by presenting the testimony of the only independent eyewitness, who observed the collision from the corner, identified the co-defendant as the red-light driver, and photographed the offending vehicle’s license plate. The eyewitness’s account was corroborated by the investigating officer, while the plaintiff admitted she did not see the crash and the co-defendant acknowledged she never saw our client’s vehicle before impact.
The Court agreed that speculation and an unsupported denial of fault could not create a genuine issue of material fact. The Court granted our motion, and dismissed all claims against both our client and the vehicle owner with prejudice.
Provider Claim Dismissed as Untimely
Our insurer client was served with a lawsuit by a medical provider seeking payment of No-Fault benefits. The provider’s lawsuit against our client was filed fully two years after the date of the alleged motor vehicle accident. The provider’s lawsuit was the first notice to the insurer of any claim by that entity.
The medical provider argued that tolling under MCL 500.3145 was applicable due to the lack of any formal denial of the claim by the insurer, and that the one-year limitations period should not apply to the medical provider’s claim regardless because the medical provider acted with reasonable diligence to try and identify the correct insurer from which to claim benefits. In our Motion for Summary Disposition, we argued that the tolling provisions of MCL 500.3145 only apply to a claim if notice is given to the insurer or payment is made by the insurer within one year of the accident. Lacking notice or payment, tolling could not apply. Further, a medical provider’s supposed reasonable diligence in attempting to identify the correct insurer does not provide an exception to the one-year limitations period, absent impropriety by the insurer – which did not occur here.
The Court agreed with us that no tolling or other possible exception to the one-year limitations period in MCL 500.3145 applied to this claim. Accordingly, the Court dismissed the medical provider’s claims against our client in their entirety.
Permissive Use SD Victory
Max McHugh successfully argued for the dismissal of Plaintiff’s owner’s liability claim asserting that Co-Defendant was not a permissive user of the vehicle involved in the subject motor vehicle accident and that the use of the vehicle occurred without Defendant’s knowledge or consent. The Court dismissed Plaintiff’s claims with prejudice.
Over $80K in Attendant Care Tossed
Rochelle Konja successfully had over $80,000.00 in Attendant Care thrown out in a PIP lawsuit. The Plaintiff had submitted numerous claims for attendant care in connection with a traumatic brain injury. Ms. Konja successfully argued that the attendant care prescribed by the doctor was directly contradicted by the medical records and the testimony of the same doctor. The Court agreed and the entire AC claim was thrown out, with prejudice.
PIP Opt-Out Upheld
Our insurer client issued a policy of Michigan No-Fault insurance with a full opt-out from medical benefits to its insured, a Medicare recipient, who applied for the policy online and filled out all policy application materials personally. Plaintiff, who alleged entitlement to Michigan No-Fault benefits as a resident relative of the insured, had never been disclosed to the insurer prior to the commencement of litigation.
Plaintiff argued that the insured did not understand the insurance policy application documents, and further claimed that Plaintiff’s existence had been disclosed to the insurer via a telephone conversation prior to the insured filling out the insurance policy application. We filed a Motion for Summary Disposition arguing that Plaintiff, a non-party to the insurance contract, did not have standing to contest its validity. Moreover, longstanding Michigan jurisprudence holds that knowledge of the policy’s terms, conditions, and coverages is imputed to the insured, so neither the insured nor Plaintiff could plead ignorance in order to alter the available coverage. Finally, the only evidence of any communication between the insurer and the insured was the policy application materials, which the insured filled out personally and indicated only one household resident – the insured – with no mention of Plaintiff.
We asserted that the opt-out from medical benefits was validly issued because the insurer is entitled to rely on the insured’s statements as made in the policy application materials, and had no duty to conduct any independent investigation into their truth or falsehood. The Court agreed with us and upheld the medical opt-out in the insurer’s No-Fault Policy, dismissing Plaintiff’s medical claims against our client in their entirety.
Trial Victory
Doug Campbell recently won a worker’s compensation trial in which Plaintiff’s claims for injuries to the shoulder, back, knees, and psychological disability were denied. The Magistrate further found that Plaintiff had a retained wage earning capacity and did not meet the threshold for “good faith effort” to look for employment. The Plaintiff’s weekly benefit rate for an alleged ankle injury was significantly reduced. Mr. Campbell relied upon zealous cross examination of Plaintiff’s medical and vocational experts and strong surveillance video and testimony in achieving the victory.
No-Fault PIP Dismissal
Jason Rudy obtained summary judgment in a No-fault PIP case filed by Plaintiff and multiple medical providers. Attorney Rudy was able to prove that Defendant was not in the order of priority. The Court dismissed the case against Defendant.
Over $600K+ Saved for Insurance Carrier
Yosef Klein obtained summary disposition on behalf of an insurance company facing claims for PIP, UM, and third-party liability insurance coverage in connection with a car accident because the insurance policy was purchased with fraudulent misrepresentations in the application. The total claimed by Plaintiff exceeded $600,000!
SD Victory Claimed
RCR won summary disposition in favor of a UIM insurer when the liability insurer’s aggregate payments, including to claimants not insured under the UIM policy, equaled the aggregate UIM limit.
Another SD Victory
Yosef Klein obtained summary judgment on behalf of an insurer, and a ruling of no defense or indemnity owed, against a medical facility who delayed reporting a medical malpractice wrongful-death claim.
Appellate Victory on Permissive Use Defense
Our client was sued for ownership liability. We filed a motion to dismiss the lawsuit because our client’s car had been taken without permission. After the trial court denied the motion, Mr. Klein filed an application for leave to appeal. The Court of Appeals reversed the trial court and ordered that summary disposition be entered in favor of our client.
Summary Disposition Upheld on Appeal
The claim arose out of a fire in a commercial property. Summary disposition was obtained by Mr. Klein for the insurer and upheld on appeal granting rescission after insured failed to report loss prior to issuance of retroactive renewal policy.
No Threshold Injury
Jason Rudy successfully argued for the dismissal of Plaintiff’s negligence claim asserting that Plaintiff did not sustain a “threshold” injury in the subject accident. The Court agreed and dismissed Plaintiff’s case with prejudice.
Another Victory via Summary Disposition
Attorney Nathan Thomas obtained summary judgment on behalf of an insurer and against a medical facility who tried to recoup claimed expenses that were over two years old. Mr. Thomas successfully argued that the bills were contemplated in a prior settlement and the facility could not bill the insurer. The Court agreed, and dismissed the facility’s lawsuit.
Another SD Victory
Summary disposition was obtained by Yosef’s team for an insurer and upheld on appeal based on a policy exclusion. The claim arose out of the death of a subcontractor’s employee.
No Cause - Arbitration
Attorney Jason Rudy successfully obtain a No Cause Verdict at arbitration. Mr. Rudy vigorously defended the negligence claim and was able to prove that his client’s actions were not a proximate cause of Plaintiff’s injuries resulting in a No Cause Verdict.
New Partner
RCR is excited to congratulate Jason Rudy on being named an equity partner. The new role is well deserved as Jason has been an excellent attorney and remains an aggressive advocate for his clients.
Board of Directors
Tom Roeder was recently appointed to the Board of Directors for the Association of Defense Trial Counsel (ADTC). Tom is honored to join the board and hopes to help the ADTC continue its tradition as a respected and trusted institution.
RCR Welcomes Nathan Thomas
Rich, Campbell & Roeder is pleased to announce the hiring of attorney Nathan Thomas. He is an experienced trial attorney that will be a valuable asset to RCR’s litigation department. We are excited to have Nate join the team.
Super Lawyer Awarded
RCR is pleased to announce that Ken Rich has been recognized as a Super Lawyer – Personal Injury Defense, a designation that is awarded only to a select number of accomplished attorneys in each state.
Exclusion Upheld
Summary disposition was obtained for insurer based on general liability policy’s auto exclusion, notwithstanding alternative legal theories asserted by claimant.
$1 Million Exposure Avoided
A million-dollar policy was rescinded based on a policy exclusion. Yosef Klein obtained dismissal with prejudice.
Reversal on Appeal in Favor of Insurer
Yosef obtained reversal of the circuit court’s ruling in favor of insured. The Court held that the policy’s “temporary occupancy” provision applied and that the insurer owed only the relevant sublimit.
Another Dismissal
Matt Sunderlin obtained summary dismissal of a Plaintiff’s negligence claims. The Court found that the Plaintiff did not sustain any “threshold” injury in the alleged accident and dismissed the Plaintiff’s claims against the driver and the owner of the alleged at-fault vehicle with prejudice.
SD Upheld on Appeal
Summary judgment was obtained by RCR for an insurer and upheld on appeal based on the total pollutant exclusion.
Coverage Victory
Yosef Klein achieved summary disposition via policy rescission. A backdated policy that had been issued after an unintentional lapse in coverage was rescinded.
No Cause Verdict-Negligence
Ken Rich and Tom Roeder secured a no cause verdict in a jury trial in connection with a negligence lawsuit brought by two Plaintiffs. The jury agreed that the Defendant caused the accident, but found that the Plaintiffs did not sustain serious impairments.
Material Misrepresentation Dismissal
Yosef Klein sought and achieved summary disposition of a PIP case. The Judge granted policy rescission of the auto policy for material misrepresentation.
Summary Disposition Granted
Jason Rudy obtained summary disposition in a negligence case in favor of an RCR client. The Judge agreed that Plaintiff was over 51% at fault and granted the motion in our favor. The case was dismissed with prejudice.
Negligence Dismissal
Jason Rudy was able to elicit key testimony from all of the parties and witnesses in order to prove that our client did not cause or contribute to the accident. The Court granted his Motion for Summary Disposition on negligence and the case was dismissed with prejudice.
Replacement Services Claim Tossed
Matt Sunderlin obtained summary dismissal of a Plaintiff’s replacement services claim. The Judge agreed that Plaintiff’s claims were not actually incurred pursuant to the Michigan No-Fault Act.
RCR Welcomes Max McHugh
RCR is excited to welcome associate attorney Max McHugh. He graduated from Wayne State Law School and is a welcome addition to our growing practice. Max has experience both in court and with comprehensive pre-litigation strategy.
Case Dismissed
Tom Roeder secured dismissal of Plaintiff’s entire PIP claim (totaling over $400,000) pursuant to Bahri v. IDS Property Casualty Insurance Company. Tom obtained testimony from the Plaintiff and her care provider proving that the alleged attendant care claims were fraudulent and convinced the Judge to dismiss the case entirely.
PIP Dismissal
Doug Campbell secured dismissal of a PIP case filed by out of state resident. Under the newly amended version of MCL 500.3163, out-of-state insurers of out-of-state residents no longer have to provide Michigan No-Fault PIP benefits at all unless the out-of-state resident owns and insures a Michigan-registered vehicle.
Victory at the COA
Doug Campbell secured a victory in the Michigan Court of Appeals. We successfully argued that the underlying claimant was in the “course and scope of his employment” when involved in a motor vehicle accident. The Court reversed the trial court opinion that the claimant was “going to or coming from work” and therefore not covered by the Worker’s Compensation Act.
Court of Appeals Victory
A coverage denial based on an exclusion was overruled by the trial court. Yosef and Ken won outright at the Appellate level. $400,000 in bills were dismissed.
No Cause Verdict-PIP
Ken Rich obtained a $0 verdict in a PIP jury trial. The Plaintiff was seeking over $200,000 in PIP damages and alleged a closed head injury.
Super Lawyer Awarded
RCR is pleased to announce that Yosef Klein has been recognized as a Super Lawyer – Rising Star, a designation awarded to only 2.5% of Michigan lawyers.
Failure to Disclose
Ken Rich secured dismissal of a PIP claim due to Plaintiff’s failure to disclose his resident spouse on the application. Rescission of the policy was granted by the Judge and the case was dismissed with prejudice.