Born: 1940
Education: Detroit College of Law; University of Michigan
Admitted to Bar: 1966
Experience: Member, Nickola & Nickola
Legal affiliations: Genesee County Commissioner, 2001-02; Genesee County and Shiawassee County Bar Associations (Circuit Court Mediator, 1976 present and U.S. Federal Court Mediator, 1983-1992); Flint Trial Lawyers Association (vice president, 1972-74; president, 1975-76); Association of Trial Lawyers of America; Michigan Trial Lawyers Association (member, board of directors, 1987-90); certified as civil trial advocate by the National Board of Trial Advocacy.
Perhaps the "D" in John D. Nickola stands for determination.
With the tenacity of a bulldog, Nickola fought against an uncooperative insurance company and the trial court judge for 16 years to get the underinsured motorist benefits his clients were rightly entitled to.
It started in the early 1980s when Nickola's clients, the Wiselogles, were assured by their insurance agent that they did, indeed, have $500,000 underinsured motorist coverage from Michigan Mutual. The Wiselogles never received their policy.
After an auto accident, the Wiselogles submitted an application for no-fault benefits from Michigan Mutual. It's an understatement to say that, shortly thereafter, things got confusing.
Michigan Mutual first refused to pay no-fault benefits in 1985; a year later, it acknowledged it was the carrier who should pay and the Wiselogles received their first no-fault benefits in June 1986.
In September 1986, the Wiselogles requested underinsured motorist benefits, to which Michigan Mutual denied such coverage existed.
The first of five lawsuits Nickola would file and 16 years of litigation, facilitation, mediation and frustration thus commenced.
The underlying matter Wiselogle v. Michigan Mutual Insurance Company d/b/a Amerisure Companies started in Genesee County Circuit Court in 1987, was ordered into arbitration in 1988, and judgment was entered on a $350,000 arbitration award in 1989.
In 1990, Nickola filed a motion to assess costs, fees and interest on the $350,000 judgment. In October 1991, the trial court which would retain jurisdiction throughout denied the motion, issuing an opinion saying the plaintiffs weren't entitled to interest. The plaintiffs filed a motion for reconsideration and, in December 1991, the court issued an opinion allowing interest as an element of damages.
In 1992, a hearing was held to determine the interest rate and, in 1993, the trial court determined the interest rate to be applied was 12 percent per year compounded annually.
Over the next decade, several court battles would be fought in the trial court, at the Court of Appeals and the Michigan Supreme Court, and another arbitration session was conducted.
Finally, in July 2003, the case came to a close. The Wiselogles got their underinsured motorist benefit coverage in addition to an interest award of more than $1 million and sanctions against the insurer for $75,000.
Q. This turned out to be a whopper of a case. The timeline stretches 16 years and the facts are quite involved to say the least. In a nutshell, what happened with regard to interest and sanctions?
A. Genesee County Circuit Court Judge Robert Ransom finally granted my request for 12 percent interest compounded annually on the arbitrators' award. But he denied my motion to resubmit the sanctions issued to the arbitrators.
He said the issue of costs, interest and sanctions were previously submitted and determined by the arbitrators back in 1998. If you just look at that, that's an error of the court.
The arbitrators on May 18, 1998 did not consider interest since 1998 they couldn't; they don't know what the hell is going to happen after they rendered their decision. They made their decision from the events before 1998.
I asked the judge to reconsider and he refused. I filed an appeal to the Court of Appeals as a matter of right of his denial of my demand for sanctions. My demand for sanctions covered the time frame since 1998.
Q. What did the Court of Appeals have to say?
A. I claimed the trial court was in error ruling 1) that the arbitrators exceeded their authority by awarding interest, costs and attorney fees in an amount that exceeded the defendant's policy limits because of the defendant's failure to raise the issue in its first appeal; 2) the issue was waived at the arbitration hearing; 3) the question was before arbitrators to determine whether the issue had been waived; 4) that a supplemental arbitration award provided that all remaining issues were to be submitted to binding arbitration; and 5) that interest, costs, and attorney fees to be awarded were subject to the defendant's insurance policy limits.
In September 2001, the Court of Appeals reversed the trial court, saying Judge Ransom had no authority to set aside arbitration. The Court of Appeals ruled that the plaintiff's argument of res judicata prevented the trial court from considering whether the defendant could be liable for an amount in excess of policy limits because the issue was not raised and could have been raised in the defendant's prior appeal from the original judgment in favor of the plaintiff.
The court further ruled, and I'm quoting here, "whether defendant could be liable for an amount that exceeded the underlying insurance policy limits
could have and should have been raised
" during the plaintiff's first appeal "not several years later subsequent to a remand directive and proceedings."
The defendants filed application for leave to appeal to the Michigan Supreme Court. The Michigan Supreme Court denied their application for leave
Q. What ultimately happened?
A. Judge Ransom was sick and wasn't there so we went before another judge. It took that judge five minutes to understand the issue.
Q. How were interest and sanctions eventually computed?
A. He rendered a decision saying that we're entitled to $1 million through March 31, 2003 with interest, and it is to continue at $297 a day until it's fully paid.
Q. What was the final award for the case?
A. The Court of Appeals remanded and directed the court to enter a judgment based upon the award, which was $650,000 plus $8,500 to each of the three arbitrators.
When that judgment was entered, that's when the defense appealed. But they did pay the arbitration, the $8,500. The arbitrators had to wait five years for the money.
Q. The final issue that remained in the COA was your demand for sanctions. How did that resolve?
A. On July 11, after going through the facilitation process with the Court of Appeals, we agreed we would take $75,000 for sanctions.
The significance of this case is the $75,000 in sanctions. That by itself if someone pays you $75,000 in sanctions, that's unique and newsworthy and important all by itself.
Here's the situation with the defendants dragging it out and dragging it out, what happens in most cases is the plaintiff gets tired of waiting and just says "Oh hell, let's just get it over with."
Q. Was the trial court judge your biggest obstacle?
A. He was a substantial obstacle. Because here's the problem, here's what happened the first time the defense would throw something out, he'd go for it.
Q. What was the key to winning?
A. Knowing the law, and finally being able to convince the trial court of what the law is.
If you're not able to convince the trial court of what the law is, then being prepared and actually appealing it to the appellate court so they can tell the trial court judge what the law is.
Q. What kind of case was this ?
A. Number one is the claim for underinsured motorists coverage that evolved to a claim for interest as an element of damages that just kept on growing and growing. The delay normally works to the benefit of the defendant it need not, it should not and it didn't in this case. I think it backfired on the defendants.
For example, say you and I are executives of an insurance company, and we stalled for four or five years. Let's say a case was valued at $350,000 we have had the use of somebody's else's money, and we were able to put in the stock market and make money off that money. And that's just one case. Then if we had paid the person who had been injured $350,000 we're not really paying them $350,000 we're paying them $350,000 minus the money that we had use of for those four to five years.
The Michigan Supreme Court has held that interest, as an element of damage, compensates the victim for the loss of use of that money.
Q. What were the main issues of the case?
A. The two main issues of this case, I think, from a "lawyer interest" "or newsworthy interest" were the interest as an element of damage issue and the sanctions issue.
The interest on money is substantial especially if that filing termination is delayed, and the motivation to delay or to misdirect is substantially profitable to the insurance company. Most plaintiffs aren't really aware of the full value or become exasperated by the judicial delays.
Lawyers must know the law, educate the judge, and be persistent to demand proper rulings from the judge and appeal adverse rulings that are improperly adverse.
Q. How did this impact your practice?
A. It didn't really, other than the fact that it's part of the practice. I've got other cases that are frustrating and other cases that are difficult to get heard before the court, or get proper rulings. But, in this particular case, the clients were exasperated by all of the judicial delays and they translate that, sometimes, to the attorney. Like "What is taking so long? Why can't you get this done? Why can't we get a decision? Are you delaying it?" And by "you" they mean me.
I had good communications with these folks. They were sensitive enough, they were concerned they would vent upon me periodically and you know it would have been easy for me to blow them off, like "Get out of here, you're turning into a pain." It didn't ever get to that point, but there were times when they were getting frustrated. They have their life to live. They've gone through the process. People shouldn't have to wait this long.
Q. That doesn't speak very highly for our legal system to keep someone waiting 16 years does it?
A. Absolutely not. But sometimes it happens if there are complicated facts or complicated legal issues.
Q. How did it come about that the insurance agent no longer has to explain the policy to the client?
A. When they adopted the no-fault law, the Michigan Legislature told the Legislative Services Bureau to repeal the laws that we don't need anymore. The Legislative Services Bureau made a mistake and said you can repeal this one that makes the agent offer and explain uninsured motorist coverage.
We've never been able to get the legislature to re-institute that because the Republican Party has taken the position that they don't want that to be the law.
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