whipsaw (hwip‘sô’) vt. … 2. to defeat or get the best of (a person) two ways at once …
Webster’s New World College Dictionary (4th Ed. 2007)
Joelle Premo was riding her bike in Royal Oak when a U.S. Postal Service truck hit her while she was in a crosswalk. Premo suffered a badly broken leg.
Premo did not have a no-fault insurance policy. She didn’t need one because she didn’t own a car. So, her attorney got in touch with the USPS to file a claim.
The USPS responded with a polite letter explaining that it was self-insured and that, thanks to the Supremacy Clause of the United States Constitution, Michigan’s no-fault act didn’t apply to the USPS. Included was helpful information about how to file a claim under the Federal Tort Claims Act, which, said the USPS, is the only possible way to get any money.
An FTCA claim was filed, and a fairly large one at that — $197,569.80 for personal injury and the property damage to Premo’s bicycle. The USPS responded with another polite letter. The USPS said, in so many words, we’ve looked into this, we’re terribly sorry you were hurt but our driver didn’t do anything wrong, good luck to you.
Premo decided against applying for insurance benefits from the state’s Assigned Claims Facility and instead sued in federal district court.
In Judge Avern Cohn’s courtroom, the USPS did a 180 and argued mightly that the FTCA required application of the no-fault act and that Premo was not entitled to either economic or noneconomic damages.
Cohn turned aside Premo’s argument that the USPS should be estopped from using the no-fault act first as a shield and later as a sword. He accepted the USPS’s arguments, in part, and awarded Premo $34,768.62 in economic damages.
Nobody was happy with Cohn’s ruling. But Premo was even less happy when the Sixth Circuit was through with the case.
Indeed, Michigan’s no-fault act applies to Premo’s situation, the appeals court ruled. The FTCA requires application of state law.
Then, as far as Premo was concerned, it got worse.
Under the FTCA, wrote Judge Eric Clay,
the government may be liable “for … personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government.” 28 U.S.C.A. § 1346(b)(1) (emphasis added). …
Pursuant to the No-Fault Act, a person injured can collect PIP benefits “without regard to fault.” M.C.L.A. § 500.3105(2). Given this language, “[a]bsolute liability … arises irrespective of how the tortfeasor conducts himself … . The degree of care used in performing the activity is irrelevant … .” Dalehite v. United States, 346 U.S. 15, 44-45 (1953). Thus, Michigan law imposes strict liability for economic damages in motor vehicle accident cases.
Bottom line: No-fault liability for PIP benefits is established without a finding of fault. Recovery under the FTCA is not possible without a finding of fault. Premo gets nothing, the Sixth Circuit ruled, and that’s her fault:
Plaintiff’s source of relief for economic damages was Michigan’s assigned claims plan, a remedy which she failed to pursue.
The case is Premo v. United States, et al.