Comparisons Between Macedonian and A U.S. State’s Automobile Accident Insurance Law

¹ Law on Compulsory Traffic Insurance, Official Gazette of the Republic of Macedonia no. 88/2005, 70/2006, 81/2008, 47/2011, 135/2011 and 112/2014. An English-language translation is available at https://finance.gov.mk/wp-content/uploads/2009/05/LAW-ON-COMPULSORY-TRAFFIC-INSURANCE.pdf Search in Google Scholar

² See MCL 500.3101(1). The other states are Florida, Hawaii, Kansas, Kentucky, Massachusetts, Minnesota, New Jersey, New York, North Dakota, Pennsylvania, and Utah. See Insurance Information Institute, Inc., Background on: No-fault insurance (Nov. 6, 2018), available at https://www.iii.org/article/background-on-no-fault-auto-insurance; Policygenius, States with no-fault auto insurance and what it means (©2014-2022, updated March 1, 2022), available at https://www.policygenius.com/auto-insurance/states-with-no-fault-insurance/ Search in Google Scholar

³ A brief but helpful explanation of the four basic automobile insurance systems adopted in the various U.S. States may be found in Background on: No-fault insurance, supra n. 2. The article also points out several states that once had no-fault systems but repealed them. Search in Google Scholar

⁴ For a brief but pertinent analysis of factors that disfavor no-fault law, see J.M. Anderson. P. Heaton and S.J. Carroll, What Happened to No-Fault Insurance?, Document RB-9505-ICJ (© Rand Corporation 2010), available at https://www.rand.org/pubs/research_briefs/RB9505.html. Search in Google Scholar

⁵ Cf. INDEXMUNDI, available at https://www.indexmundi.com/macedonia/legal_system.html. Macedonia’s Civil Code was heavily influenced by the Roman Justinian Code (Corpus Juris Civilus). Though there are many similarities, the codes of nearby nations of Central Europe relied more directly on the Codes applicable in the Austro-Hungarian Empire (also “Justinian” in nature). Cf. G. Trnavci, THE INFLUENCE OF AUSTRIAN CIVIL CODE (AGBG 1811) ON BOSNIAN CIVIL LAW, available at https://www.researchgate.net/publication/336879689_The_Influence_of_Austrian_Civil_Code_ABGB_1811_on_Bosnian_Civil_Law Search in Google Scholar

⁶ The U.S. Constitution reserves to the several states the power to protect the health, welfare and morals of their own constituencies where the rights in question are not included in the federal power. U.S. CONST. AMEND. 10. Basically, laws on property ownership, criminality, family law, contract law, and similar are primarily the subject of each state’s law. Search in Google Scholar

⁷For an analysis of the early history from as early as 1919, see Jonathan Simon, Driving Governmentality: Automobile Accidents, Insurance, and the Challenge to Social Order in the Inter-War Years, 1919-1941, 4 CONN. INS. L.J. 521(1998). For an analysis covering what is considered the modern era of automobile insurance regulation, see Robert L. Bombaugh, 71 COLUM. L. REV.207 (1971). Information on the Michigan state system may be found in an article by James T. Mellon and David A. Kowalski, The Foundations and Enactment of Michigan No-Fault Insurance, 87 U. DET. MERCY L. REV. 653 (2010). Search in Google Scholar

⁸ It is also true that there was strong sentiment against government control and intervention as the former colonial power was raising taxes, preventing local businesses from creating final products by requiring raw materials to be shipped to England, and was otherwise draining value from local economies. Search in Google Scholar

⁹ U.S. CONST., Art. 1, §8, cl. 3 gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Federal courts have used this to invalidate state laws that foster state protectionist legislation where there are other ways to protect in important state interest. Search in Google Scholar

¹⁰ MCL 550. 991 et seq. Search in Google Scholar

¹¹ MCL 500.3301 et seq. See esp. MCL 500.3310 on the membership of MAIPF’s Board of Governors. Search in Google Scholar

¹² See MCL 500.3171-3175, and esp. MCL 500.3171(3) (MACP is regulated by MAIPF). Search in Google Scholar

¹³ MCL 500.3104. This provides limits and creates a fund with membership of all automobile insurers licensed in the State of Michigan, and the fund pays out to specific insurers who are called upon to pay amounts on claims above a stated limit (which amount increases now on a bi-annual basis). Search in Google Scholar

¹⁴ LCTI Arts. 51-57. Search in Google Scholar

¹⁵ LCTI Arts. 44-46. Search in Google Scholar

¹⁶ LCTI Arts. 58-65. Search in Google Scholar

¹⁷ Without engaging in analysis of empirical data, it is still fair to say that there are several aspects of self-interest that raise costs. In addition to medical care, there has been an increase in businesses offering “rehabilitative” services, from physical therapy to chiropractic care. While it is true that doctors must be very thorough and careful so as to avoid malpractice lawsuits and much of these services may indeed be necessary, it is possible that there is a level collusion between doctors and drug testing labs, physical therapy firms, and similar which may be leading to billing for services not all of which are necessary. With resort to the MAIPF/MACP, the number of cases involving “phantom drivers” (alleged auto accident by unidentified vehicles and drivers) has been significant. Cf. LCTI Art. 42 (unidentified and uninsured drivers). Among other possible causes of increased cost, without very clear standards, claimants may wrap in prior injuries and maladies by attributing them to an accident though they were pre-existing. Reduction of these risks involves medical licensing regulation and ethics, which is the subject of a separate regulatory regime. Search in Google Scholar

¹⁸ Shavers v. Kelley, 402 Mich. 554; 267 N.W.2d 72 (1978). Search in Google Scholar

¹⁹ Id., 402 Mich. at 595-596. Search in Google Scholar

²⁰ Id., 402 Mich. at 600. Thusly, the constitutionality of the compulsory no-fault system was made contingent upon the duty of the Sate to ensure that insurers offer appropriate price reductions, for example to avoid duplicative insurance coverage where medical coverage is in place. See MCL 500.500.3019a (setting forth certain mandatory deductibles and exclusions to which insureds may be entitled). Search in Google Scholar

²¹ MCL 500.3107(1)(a). Search in Google Scholar

²² MCL 500.3107(1)(b). “Income” is not only lost wages but may include sources of income that are not wages, such as lost income from a business that the injured person managed or “pass-through” income. See Ross v. Auto Club Group, 481 Mich. 1; 748 N.W.2d 552 (2008). Search in Google Scholar

²³ MCL 500.3107(c). Search in Google Scholar

²⁴ MCL 500.3135. Search in Google Scholar

²⁵ Id. The legislative treatment of this type of damages is somewhat unique and is addressed in Section III. Search in Google Scholar

²⁶ LCTI, Art. 13(1). Search in Google Scholar

²⁷ LCTI, Art. 12(1), Art. 20(1)(1). Search in Google Scholar

²⁸ See surpra nn. 10-20 and accompanying text. Search in Google Scholar

²⁹ See, e.g., Bronson Health Care Group, Inc. v. State Auto Prop. and Cas. Ins. Co., 330 Mich. App. 338, 342; 948 N.W.2d 115 (2019). Search in Google Scholar

³⁰ See, e.g., Pioneer State Mut. Ins. Co. v. Wright, 331 Mich. App. 396 952 N.W.2d 586 (2020), lv. den. 506 Mich. 1022 (2020). The non-exclusive factors to be balanced include: (1) the extent to which the insurer could have uncovered the subject matter of the fraud before the innocent third party was injured; (2) the relationship between the fraudulent insured and the innocent third party to determine if the third party had some knowledge of the fraud; (3) the nature of the innocent third party’s conduct, whether reckless or negligent, in the injury-causing event; (4) the availability of an alternate avenue for recovery if the insurance policy is not enforced; and (5) a determination of whether policy enforcement only serves to relieve the fraudulent insured of what would otherwise be the fraudulent insured’s personal liability to the innocent third party. Search in Google Scholar

³¹ Courts of law are constrained by more stringent guidelines and standards, whereas courts of equity have the ability to do what is fair, not necessarily what the law provides. In Michigan, the courts of law and of equity were combined in 1963. MICH. CONST. OF 1963, art. VI, §5. For an analysis of difficulties before the courts of law and equity merged, see Edson R. Sunderland, The Michigan Judicature Act of 1915: The Distinctions Between Law And Equity Proceedings, 14 MICH. L. REV. 273 (1916), available at https://www.jstor.org/stable/1274447?seq=1#metadata_info_tab_contents. Search in Google Scholar

³² There are exceptions including coverage under a policy maintained by a spouse or resident relative, MCL 500.3107d, and not operating a vehicle in the state for more than 30 days. See infra n. 52 and accompanying text. Search in Google Scholar

³³ MCL 500.3105(2). Search in Google Scholar

³⁴ MCL 500.3114(1). Search in Google Scholar

³⁵ LCTI, Art. 3(1), (3). Search in Google Scholar

³⁶ MCL 500.3171-3175. Macedonia has its own counterpart – a special insurance bureau – the Commission for Automobile Liability Insurance. LTCI Arts 44-45. One of the Commission’s three members is appointed by proposal of the National Insurance Bureau, and the president and the final member of the three-member Commission are appointed upon the proposal of the Ministry of Finance. The penumbral body in Michigan which regulates/administers insurance law is the Michigan Department of Insurance and Financial Services. Search in Google Scholar

³⁷ MCL 500.3101(1). Search in Google Scholar

³⁸ MCL 500.3113(b). Search in Google Scholar

³⁹ LTCI, Art. 42. Search in Google Scholar

⁴⁰ LTCI, Art. 43(1). Search in Google Scholar

⁴¹ LCTI, Art. 51(1). The authority and the duties are spelled out in LCTI Section VI, Arts. 51-57, and with regard to the “Guarantee Fund, Arts. 58-65. Search in Google Scholar

⁴² N. M. Kostova, S. Chichevalieva, N. A. Ponce, E. van Ginneken, and J. Winkelmann, The former Yugoslav Republic of Macedonia: Health System Review, 19 HEALTH SYSTEMS IN TRANSITION 1 (No. 3, 2017), available at https://apps.who.int/iris/bitstream/handle/10665/330210/HiT-19-3-2017-eng.pdf?sequence=7&isAllowed=y Search in Google Scholar

⁴³ Id., pp. xv-xxii. Search in Google Scholar

⁴⁴ See, e.g., Tousignant v. Allstate Ins. Co., 444 Mich. 301; 506 N.W.2d 844 (1993). There are certain exceptions, for example federal health care plans under ERISA, see, e.g., Auto Club Ins. Ass’n v. Frederick & Herrud, Inc., 443 Mich. 358; 505 N.W.2d 820 (1993). But see American Med. Sec. Inc. v. Allstate Ins. Co., 235 Mich. App. 301; 597 N.W.2d 244 (1999) (where the ERISA-related employee health and welfare plan purchased insurance for coverage and was therefore not self-funded, state law on primacy of health care insurance was not pre-empted), and for veterans’ health care plans. See, e.g., Batts v. Titan Ins. Co., 322 Mich.App. 278911 N.W.2d 486 (2017). Search in Google Scholar

⁴⁵ See, e.g., Soft Tissue Injuries in an Automobile Accident, available at https://www.hg.org/legal-articles/soft-tissue-injuries-in-a-motor-vehicle-accident-19715. Search in Google Scholar

⁴⁶ See, e.g., Ray v. Swager, 501 Mich. 52 903 N.W.2d 366 (2017)(reiterating that questions of fact are for juries, but also recognizing that proximate cause of injuries is actually a legal question for courts to determine). Search in Google Scholar

⁴⁷ This was added to the No-Fault Act in 2012 by 2012 PA 158, effective October 1, 2012. This is considered a “verbal threshold” to qualify for non-economic damages. Other states have “monetary thresholds.” See Background on: No-fault insurance, supra n. 2. See also supra n. 24. Search in Google Scholar

⁴⁸ See supra n. 14. Search in Google Scholar

⁴⁹ LCTI, Art. 41(1). Search in Google Scholar

⁵⁰ MCL 500.3107(1)(a). Search in Google Scholar

⁵¹ See, e.g., Nasser v. Auto Club Ins. Ass’n, 435 Mich. 33; 457 N.W.2d 637 (1990). Search in Google Scholar

⁵² MCL 500.3102(1). Where a non-resident violates the rule of securing in-state insurance, there are penalties of between $200 and $500, or up to a year in prison, or both. MCL 500.3102(2). LCTI Arts. 65-70 provide for monetary penalties for violations of the law. The majority of penalties are on insurance companies (which are handled by other rules and regulations than the actual No-Fault Act in Michigan). Arts. 67-70 address violations by motor vehicle operators but, unlike as in Michigan, there are no penalties of confinement. Search in Google Scholar

⁵³ LCTI Art. 16(3) addresses the right the right of an insurer that pays compensation to subrogation of rights to be asserted against a responsible tort-feasor. Art. 17(1) permits entities that provide health, disability or pension insurance benefits to make a claim directly against the insurer of the injured party having been treated. The courts of Michigan recognized this direct cause of action in certain qualified services providers, which was reversed by the Michigan Supreme Court in 2017 only to be reinstated by the Legislature a the 2019 amendment to the No-Fault Act in MCL 500.3112 (1). See Paul J. Carrier, Assignment of No-Fault Automobile Insurance Benefits After 2019 PA 21, --- JOURNAL OF INSURANCE AND INDEMNITY LAW --- (October 2022; publication of the Section on Insurance and Indemnity Law of the Michigan State Bar)(commitment to publish in October 2022 edition). Search in Google Scholar

⁵⁴ MCL 500.3113(c). Search in Google Scholar

⁵⁵ Two interesting law review articles address this issue. See Joseph F. Coyle, The Mystery of the Missing Choice-of-Law Clause, --- U.C. DAVIS L. REV. --- (2022)(forthcoming), available at https://deliverypdf.ssrn.com/delivery.php?ID=873102088082121015101019091093090071063022072087058011076074010078082010067087101014062000018022024047055087007014025121078110107069090006054116105114086071011006060020071009112123011023000006105068123091091120030092023029068112088064113120068121088&EXT=pdf&INDEX=TRUE; and P. John Kozyris, No-Fault Insurance and the Conflict of Laws – An Interim Update, 1973 DUKE L. J. 1009-1034 (1973), available at https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2458&context=dlj Search in Google Scholar

⁵⁶ LCTI Art. 26(1). Information on this Bureau may be found at https://www.cobx.org/. Search in Google Scholar

⁵⁷ LCTI Art. 29(1). Search in Google Scholar

⁵⁸ LCTI Art. 29(2). Search in Google Scholar

⁵⁹ LCTI, Art. 32(1). Search in Google Scholar

⁶⁰ LCTI, Arts. 35-38. Search in Google Scholar

⁶¹ See supra n. 51 and accompanying text. Search in Google Scholar