Photo of Litigation Blog Eric P. Conn econn@smsm.com
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Eric P. Conn is a shareholder in Segal McCambridge Singer & Mahoney's Detroit office. Mr. Conn concentrates his practice in premises liability, negligence, products …

Showing 10 posts by Eric P. Conn.

New Michigan DIFS Order Raises More Questions for Auto Insurers

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On September 20, 2019, the Director of the Department of Insurance and Financial Services of Michigan (“the Department”) issued order number 19-048-M, which has a direct impact on the ability of automobile insurers to implement the recent Michigan No-Fault Reform Act.  Per the Act, most provisions were effective June 11, 2019, with a limited number not taking effect until July 2020.  As would typically be the case, on June 11, 2019, insurers began implementing the new provisions of the No-Fault Act. More »

Proposed Hours of Service Rules: Balancing Safety and Economy

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The Federal Motor Carrier Safety Administration, citing Congressional and public requests for review of the hours of service regulations, has recently proposed the following changes: More »

Five Words & Phrases Defense Attorneys Should be Mindful of in Trucking Litigation

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Many Americans can name one, two or even more Plaintiff personal injury attorneys in their area. This is no doubt due to the relentless onslaught of billboards, radio, and television ads seducing clients hurt by big bad trucking companies to contact them with promises of a big pay day down the road. Commercial motor vehicle traffic accidents are likewise seen as a payday for Plaintiff attorneys as well. This is because commercial motor vehicle traffic accidents are some of the most difficult cases to defend. When a Plaintiff’s attorney goes to trial against a trucking company, he is not just putting the trucking company named in the complaint on trial, he is putting the whole trucking industry on trial, and it is easy for them to do so due to the misused, misconstrued, and ambiguous language oftentimes associated with the trucking industry. This imprecise usage of language puts attorneys who defend trucking litigation at a clear disadvantage. To achieve equal footing, attorneys who defend commercial trucking clients should identify certain words and phrases that retort a Plaintiff’s theme that improperly places the entire transportation industry on trial. More »

Michigan No-Fault Reform Update

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As an update on the changes promised by both political parties in Michigan, this morning the Michigan Senate passed Senate Bill 1, which would significantly alter the Michigan No-Fault Act.  A comprehensive review of the bill is being performed by Segal McCambridge attorneys and we will have updates throughout the coming weeks as it pertains to common problems that are encountered by insurers.  More »

Driver Fatigue: A Leading Cause of Accidents and Death in the Transportation Industry

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Quite often, the news portrays drunk driving as the main culprit of accidents resulting in serious injury, or even death. However, drowsiness and fatigued drivers make up a substantial chunk of injuries resulting from accidents on a yearly basis.

According to a recent review of the serious nature of driver fatigue, anywhere from 100,000 to 328,000 accidents per year are caused by tired drivers. Of those accidents, approximately 6,400 people die annually from an accident caused by a fatigued driver. More »

TRANSPORTATION LAW CLIENT ALERT: City of Detroit Mayor Mike Duggan’s Lawsuit Challenging the Michigan No-Fault Act’s Constitutionality Gains Traction

As many are aware, City of Detroit Mayor Mike Duggan, along with several other handpicked plaintiffs, filed suit challenging the constitutionality of Michigan’s No-Fault Insurance Act. The lawsuit is premised on Mayor Duggan’s belief that the No-Fault Act violates procedural and substantive due process under both the Michigan and United States Constitution. No-Fault insurance is mandatory for the lawful registration and operation of a motor vehicle and the Plaintiffs believe they possess a constitutional right to fair, equitable, and reasonable insurance premiums, which they allege are not currently available in the City of Detroit. More »

TRANSPORTATION LAW CLIENT ALERT: The Supreme Court’s Decision in New Prime v. Oliveira

Transportation companies frequently rely on independent contractor agreements with owner-operators to conduct many essential logistics operations. “Owner-operators” are self-employed and independently contract with large companies to haul goods across the country. This relationship can produce disputes between the owner-operator and transportation company. For example, when a load is not delivered on time or goods are damaged in the delivery process, transportation companies may seek to hold the owner-operator liable. In anticipation of these disputes, owner-operators almost routinely sign arbitration agreements as a part of their independent contractor agreements with transportation companies. However, when the issues between transportation companies and owner-operators pertain to wage and hour claims or other employment concerns, the recent Supreme Court decision in New Prime v Oliveira may have them changing course. More »

EMPLOYMENT LAW CLIENT ALERT: Tenth Circuit Rules Failure to File Discrimination Claim with EEOC No Longer Jurisdictional Bar

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In a surprising decision overturning 40 years of precedent, the Tenth Circuit recently ruled that a plaintiff’s failure to file a claim with the Equal Employment Opportunity Commission (“EEOC”) was not a jurisdictional bar to a federal court adjudicating an employment discrimination claim. Lincoln v BNSF Railway Company, --- F3d --- (10th Cir. August 17, 2018). More »

GENERAL FRAUD EXCLUSIONS: AN IMPOSING DEFENSE IN MICHIGAN PIP ACTIONS

Personal Injury Protection (PIP) benefits cases are on the rise in Michigan. However, with the 2014 Michigan Court of Appeals decision in Bahri v. IDS Property Cas. Ins. Co., 308 Mich. App 402; 864 NW2d 609 (2014), defendants are finding these cases defensible. [1]

The effect of the Court’s ruling in Bahri and defense reliance on general fraud exclusions found in insurance policies continue to reveal themselves.  Most recently, in Thomas v. Frankenmuth Mutual Insurance Co., COA No. 326744 (Unpublished July 12, 2016), the Court of Appeals upheld Wayne County Circuit Court Judge Sheila Ann Gibson’s dismissal of a matter on the basis of fraud.

In Thomas, the plaintiff received treatment following a July 6, 2013, motor vehicle accident. During his medical treatment, he was instructed not to drive from the date of the accident through January 21, 2014. During plaintiff’s deposition, he denied driving an automobile at any time during that period. However, surveillance revealed plaintiff driving a vehicle on two occasions, despite claiming a need for medical transportation on those dates as well.

The Court of Appeals, relying on and quoting the Bahri decision, noted that the plaintiff had the ability to explain why he was driving during his deposition. Instead, plaintiff continued to represent that he had not driven at all during the relevant time period. Plaintiff’s counsel attempted to sway the court by arguing that his client’s representations were simple mistakes. However, the court noted, “If they were not knowing misrepresentations, then they were certainly reckless ones, in the face of the proof that he drove his car at least twice on the same day he availed himself of transportation services.” Id at 3.

The Court’s recent decision in Thomas strengthens the argument that the Bahri ruling was deliberate and intentional and that its effects will continue to garner attention in the trial and appellate courts. Michigan courts continue to be increasingly weary of fraudulent representations and are willing to dismiss entire PIP claims as a result. Since incidents of fraud have been on the rise over the past several years, defense counsel finding themselves in similar actions should be willing and able to offer this defense at trial.


[1] In Bahri, Plaintiff was found to have fraudulently pursued PIP and Uninsured Motorist benefits in connection with a vehicle accident. The Court granted Defendant’s Motion for Summary Disposition which sought dismissal pursuant to the general fraud exclusion in the insurance policy.  The Court stated, “[r]easonable minds could not differ in light of this clear evidence that plaintiff made fraudulent representations for purposes of recovering PIP benefits.”

I Know Where You Were Last Summer: Using More Than Just Facebook to Investigate Pending Claims

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In other articles, we have discussed the importance of obtaining social media data in pre-suit investigations and how to conduct social media discovery in pending litigation. As we discussed there, photographs, video and the like information can all be used for evidentiary purposes to demonstrate state of mind, the existence of mental or cognitive disabilities (or the lack thereof) and the level of activity enjoyed by a litigant.  In those articles, we have focused primarily on recovering such evidence from Facebook since it is one of the most prevalently used social media platforms and permits users to download (at least arguably) the most helpful data. However, Facebook is not the only source of social media data and any thorough investigation should also involve identifying and requesting photographs, video, status updates or comments from other social media platforms. More »

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