Is Road Construction Co. Shielded from Liability Because of Michigan No Fault Law

[kurt volbeda]

Michigan has NoFault Insurance. A road construction company was doing work on the street I live on, installing a water main down the street. All the house driveway entries on the street were tore up, but we were still supposed to be able to get into our driveways, according to the leaflet the city had sent out before the construction. Only in my driveway did the Co. leave chunks of concrete that were hidden by sand. One time when the car was driven into the driveway, the tires sank into soft sand, hit the concrete chunk and the radiator was damaged among other things. The company is claiming they are not legally liable for damage that happened to our car. They claim they are sheilded paying for such car damage by Michigan's nofault law and that my insurance co. should pay. But the car only had insurance to cover car repairs for other cars damaged in an accident (PLPD?). The two laws that the defense lawyer for the Road Company site are 500.3121 (an [auto] insurer is liable to pay benefits for accidental damage to tangible property ...arising out of the use of a motor vehicle....) and 500.3135 (tort liability [ruled out by no fault] only applies in cases of serious bodily injury & ... damages that can be collected for an accident are limited to $500.00 to the extent that the damage is not covered by a person's own insurance co.). Is the information my insurance company adjuster told me correct that this no fault law does not even apply in this instance? No fault law generally refers to two or more vehicles involved in a crash. Can the Construction Company really hide behind the MI nofault law? If so, how can such a company ever be held liable for their failure to fulfill their duty to keep a construction zone free of hazards as much as is reasonably possible? What argument or law can I use before the Judge for the case not to be dismissed? As far as I can tell, MI law does not fully protect even its own governmental agencies from all road related tort claims. Does MI 3135 rule out filing a tort claim against the Co? Please give whatever information you might be able. Thank You. (KurtKlaas@comcast.net)

By the way, I have filed a suit against them Pro Per in civil court because the amount of money involved is small and no lawyers would help.

[jk]

hang on for Aaron (he is a Mi attorney) but from what I understand, the construction company cannot invoke the laws you speak of because it has nothing to do with a motor vehicle accident but an act of negligence on their part.

Their motor vehicle was not involved so the laws they site are not applicable.

but, as I said, hang on for the definitive answer from Aaron

[aaron]

I think it would be possible to make a claim based on negligence or nuisance, but unfortunately I don't have any good authority to cite for that purpose. The best I can find is a case from 1920, long preceding the passage of the No Fault Act. I'm also assuming this would end up in small claims court, and I am reluctant to predict what a small claims magistrate would do when confronted with this type of issue.

Do you have any coverage for this type of damage under your insurance policy, perhaps under the comprehesive coverage provisions?

[kurt volbeda]

Wow! Thank you for such a prompt response. I greatly appreciate your taking time from your busy days and helping people like myself. Thank you, thank you. No, I have not filed in Small Claims. It does not allow a person to ask for reimbursement for legal work and the claims amount may not exceed 3000.00. I went directly to district court and am representing myself. It is too small a claim for a lawyer to accept (none would) but bigger than what I can pursue in Small Claims. I decided to take the risk of representing myself. The value of the car was less than the repair bill so the car was totalled. We did not have full coverage on the car, so our insurance co. has no obligation to pay anything for the car. So far, the defendant/their lawyer has refused to respond to my off-the-record settlement offers. Their lawyer now threatens to have the case dismissed based on their appeal to the nofault law. I want to make sure as much as possible before the hearing that I have correct legal grounding. My insurance co. told me that nofault does not apply in this case but I just want to check with other sources. Plus I am having a hard time finding a case law I can cite. Where could I search for such at a law library? Many subject headings related to such a case come up with nothing. Whatever additional advice you would give would be greatly appreciated. I'm trying to keep my anger about it all separated from the legal possibilities and am prepared to drop the case if I have no case. Again, thank you. Kurt Volbeda

[moburkes]

Hi. I'm in agreement with the others, but I also don't have any case law to support you. Although you don't have full coverage on your vehicle, I suggest that you contact the adjuster again. Tell him what you're doing - representing yourself in court against the construction company, and ask if he is able to put you in contact with one of their attornies for assistance OR provide you with ANY information they have regarding your situation.

I used to do presentations for large groups of people (for example cosmetologists and barbers) and the FIRST thing I would do would be to contact the claims department and speak to adjusters and lawyers for assistance with some REAL claims that were filed that were industry-specific. It allowed me to explain WHY they need professional liablity insurance and give real world examples of cases. They were happy to oblige. They might be able to do something similar for you.

Having said that (here comes the PSA), if you cannot afford to repair your vehicle, then there was NO reason on this earth why you shouldn't have had collision coverage. In your state, the TRUEST no fault state that I am aware of, YOU are responsible to all damage for your vehicle, regardless of fault. So, knowing that you cannot afford to replace your vehicle, you need to buy the coverage that will allow you to do that, even if you just choose a higher deductible to make the coverage affordable.