Michigan’s new No-Fault auto insurance law, which took effect on June 11, 2019, affects car accidents with pedestrians in a very specific way.

Even if you own a car, at one time or another we’re all walking around on foot. That means how the new auto No-Fault law affects pedestrians impacts all of us, whether we’re walking on a sidewalk or crossing a street.

In this blog, I will discuss the No-Fault rights of pedestrians, including their No-Fault rights to medical and wage loss, as well as their legal rights to sue an at-fault, negligent driver if they are injured in a car accident for pain and suffering compensation.

First stop for No-Fault benefits after a pedestrian car accident

A pedestrian who has been hit by a car in Michigan must follow an “order of priority” that determines the order of who will pay his or her No-Fault PIP benefits.

Here is the No-Fault order of priorities for pedestrians: 

• The pedestrian’s own No-Fault auto insurance policy for his or her own personal motor vehicle in which he or she is the named insured. (MCL 500.3114(1); 500.3115)
• The No-Fault auto insurance policy that the pedestrian’s spouse has on his or her motor vehicle. (MCL 500.3114(1); 500.3115)
• The No-Fault auto insurance policy that a resident relative of the pedestrian has on his or her motor vehicle. (MCL 500.3114(1); 500.3115)

NOTE: This order has NOT changed with the new auto No-Fault law that was enacted in June of 2019.

However, what will now change for car accidents with pedestrians under the new law is the amount of insurance coverage for No-Fault PIP medical benefits available through a spouse’s or resident relative’s insurance policy.

In the past – and currently – a pedestrian would be entitled to “unlimited” medical benefits under these policies.

Now – after July 1, 2020 – a pedestrian’s No-Fault PIP medical benefits will be limited to whatever coverage levels were chosen in the pedestrian’s policy or the policies of his or her spouse and/or resident relative. (MCL 500.3107c(5))

Those coverage levels – which were created by the new No-Fault law and will be available in the policies issued or renewed after July 1, 2020 – include: $50,000 (for drivers on Medicaid); $250,000; $500,000; or “no limit” (i.e., unlimited). (MCL 500.3107c(1))

What if there is no source of No-Fault coverage after a pedestrian car accident?

A pedestrian can get No-Fault benefits even if No-Fault coverage is not available through any of the sources named above.

That has not changed under the new No-Fault law.  What has changed is the process and the amount for how these No-Fault PIP medical benefits will be available if there is no source of insurance after a pedestrian car accident:

• Michigan Assigned Claims Plan: In terms of process, if No-Fault coverage is not available to a pedestrian involved in a car pedestrian accident through his or her own auto insurance policy or the policies of a spouse or resident relative, then the new No-Fault law requires that the pedestrian “shall” apply for benefits through the Michigan Assigned Claims Plan. (MCL 500.3115)
• $250,000 in No-Fault coverage: In terms of the amount of coverage that will be available to the pedestrian under the Assigned Claims Plan, the new No-Fault law limits the pedestrian’s PIP medical benefits coverage to $250,000. (MCL 500.3172(7)(a))

These changes took effect on June 11, 2019.

The changes differ from the old auto law in Michigan as follows:

• Under the old law, if there was no No-Fault coverage available through the pedestrian, a spouse or a resident relative, then, before filing a claim with the Assigned Claims Plan, the pedestrian would have sought benefits from the owners, registrants and/or operators of the motor vehicles involved in the car accident that caused the pedestrian’s injuries.
• Under the old law, there was no limit on the amount of No-Fault PIP medical benefits available through the Michigan Assigned Claims Plan.

The Assigned Claims Plan, which is administered by the Michigan Automobile Insurance Placement Facility, provides No-Fault benefits to car accident victims – including pedestrians – for whom No-Fault benefits coverage is not otherwise available. (MCL 500.3172(1))

Can you sue for pain and suffering after a car accident with pedestrians?

Yes, you can sue for pain and suffering compensation after a car accident with a pedestrian.

If a pedestrian has been struck by a car and is injured, he or she will have a right to bring a lawsuit for pain and suffering damages (i.e., “noneconomic loss” damages), if the pedestrian meets the threshold injury required under our law by proving that he or she has suffered a “serious impairment of body function.” (MCL 500.3135(1)

A “serious impairment of body function” under our law “means an impairment that satisfies all of the following requirements: (a) It is objectively manifested, meaning it is observable or perceivable from actual symptoms or conditions by someone other than the injured person. (b) It is an impairment of an important body function, which is a body function of great value, significance, or consequence to the injured person. (c) It affects the injured person’s general ability to lead his or her normal life, meaning it has had an influence on some of the person’s capacity to live in his or her normal manner of living. Although temporal considerations may be relevant, there is no temporal requirement for how long an impairment must last. This examination is inherently fact and circumstance specific to each injured person, must be conducted on a case-by-case basis, and requires comparison of the injured person’s life before and after the incident.” (MCL 500.3135(5))

Does fault matter in a car accident with a pedestrian?

Fault, as in who’s at-fault in a car accident involving a pedestrian, does not matter when it comes to obtaining first-party No-Fault benefits, but it matters quite a bit when it comes to a tort or negligence case to secure pain and suffering damages if you are injured.

Under Michigan law, a pedestrian’s claim for pain and suffering compensation is controlled by the “comparative fault” rule. This was not changed by the new No-Fault law. The comparative fault rule says:

“Damages must be assessed on the basis of comparative fault, except that damages must not be assessed in favor of a party who is more than 50% at fault.” (MCL 500.3135(2)(b))

Some Michigan courts have, in my opinion, improperly used the 50%/comparative fault rule to unfairly blame pedestrians who are hit by cars as a way to let negligent motorists (really their insurance companies) escape being held responsible and being forced to pay for the injuries and harms they have caused.

How can you get more medical benefits after a car accident involving pedestrians?

If a pedestrian who has been injured in a car pedestrian accident is unable to cover all of his or her accident-related medical expenses under a spouse’s or resident relative’s policy or under the No-Fault PIP medical benefits coverage limit imposed by the Assigned Claims Plan, then he or she can sue the at-fault driver in what’s called a third-party lawsuit for “excess” medical damages. (MCL 500.3135(3)(c))

Significantly, the right to sue for “excess” benefits applies to both present and future medical expenses – as well as economic expenses, such as lost wages.

However, suing for excess medical benefits will become an issue only after the new No-Fault PIP Choice levels become available in auto insurance policies issued or renewed after July 1, 2020.