Hit a pothole? Good luck getting reimbursed by state

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — Her daughter blew out two tires on a freeway pothole, flying concrete smashed her husband’s window when he arrived to help and a tow truck got a flat tire on the way to the scene, according to Stella Early of Detroit.

Chris Lynch of Wetmore’s Auto and Tire in Ferndale said this is “one of the busiest potholes seasons I have ever seen.”

But when she and her husband filed a June claim with the state for the $312.70 it cost to repair the window and a cracked windshield on their 2009 Lincoln, officials rejected the request.

“After all that happened, you would of thought they would reimburse me,” said Early, who sent the state an invoice from All Star Auto Glass in Warren. “It was like ‘Final Destination’ day out there. I couldn’t believe it. They couldn’t even tow the car back that night.”

Michigan law allows drivers to file claims with state or local road agencies for blown tires, bent wheel rims and other damage caused by faulty roads. But the government is liable only for potholes that have gone 30 or more days without repair, claims over $1,000 must go through court and the state won’t pay for damages covered by insurance.

Records show Michigan rarely reimburses motorists for claims on the 9,700 miles of roadway maintained by the state, frustrating drivers who recently began paying higher gas taxes and registration fees for roads that are still projected to deteriorate.

Of the 717 pothole claims filed with the state between 2015 and 2017, motorists were reimbursed for repairs 27 times, according to the Michigan Department of Transportation — a success rate of less than 4 percent. The payouts totaled $12,296, or about $455 per claim.

Most of the alleged pothole damage occurred on state roadways in Metro Detroit. But of the 371 claims filed over incidents in Wayne, Oakland and Macomb counties, Michigan did not end up paying a single one.

Tim Fischer, a spokesman for the Michigan Department of Transportation, declined to speculate on the regional differences in approvals or denials. But he noted successful claims must clear a “high threshold.”

Government immunity laws require motorists prove that MDOT failed to maintain the actual roadbed or repair a defect claim, generally within 30 days. Claims arising from county- or locally maintained roads must be filed with those agencies.

The process is “stacked against people who have car insurance,” said Todd Berg, an attorney with Michigan Auto Law.

The state won’t pay for damage covered by insurance, and some insurers treat pothole damage as an “at-fault” collision, meaning that making a claim could increase a driver’s rates, Berg said.

“It seems like either way you hit a pothole and you’re going to add insult to injury by either having to pay more in your premiums if you’re forced to file a claim or you have to run the gauntlet” of a government claim, he said.

Repair business booming

The pothole claim data does not include the first two months of this year, which have been plagued by emergency repairs and continued complaints over the condition of Michigan’s roads.

“It is safe to say because of decades of under-investment that more pavement is crumbling, and this season’s volatile winter with inordinate extreme freeze-thaw cycles and a lot of precipitation is exacerbating the situation for roads across state and local systems,” Fischer said.

“What we are dealing with, especially on I-696 for instance, is the breakdown of pavement that has already lasted 10-15 years past its service life. Calling these issues potholes almost minimizes the issue.”

Road craters have been good for business at Wetmore’s Auto and Tire in Ferndale, where longtime owner and president Chris Lynch called it “one of the busiest potholes seasons I have ever seen” in his 42-year career.

“It started last week,” said Lynch, noting employees found nine cars waiting for them when they arrived at work on Wednesday morning last week.

Some motorists needed two or three new wheels, Lynch said, noting even reconditioned versions cost $200 to $300 each. Others had front-end or rear-end damage, with repair bills as high as $2,000.

This Monday was “an absolute zoo due to the problems people were having,” Lynch said. This pothole season “has won the prize.”

Denied claims

The Michigan House last week got a jump start on Gov. Rick Snyder’s request for $175 million in extra road funding, attempting to get the dollars to state and local road agencies ahead of the upcoming construction season.

A Senate panel advanced the spending proposal Wednesday afternoon. It would devote an extra $38.2 million to cities and villages, $68.4 million to county road commissions and $68.4 million to the state this year, building on what is already $4.3 billion transportation budget.

Jimmy and Stella Early sought reimbursement for their window and windshield after claiming their Lincoln was struck by “a large piece of concrete” on the side of Interstate 96 near Schaefer in Detroit, where Jimmy had driven to help a family member with flat tires in May 2017.

Their claim was initially rejected by MDOT, and the State Administrative Board denied their appeal on the recommendation of Kathleen Gleeson, an assistant attorney general in the transportation division.

The debris that hit the Earlys’ car “was not part of the roadbed” itself, she wrote in a memo to the board. Even if it was, the Wayne County Department of Public Services had “maintained this portion of I-96 several times in the 30 days before the claimant’s accident,” Gleeson said.

The Earlys described the debris that hit their car as a “loose” piece of concrete near a pothole. Stella Early said it was likely kicked up by a passing vehicle. They did not make an insurance claim because the $312.70 repair bill was less than their $500 deductible, they told the state.

Motorists who damage their cars on freeways or other state-maintained roads can submit reimbursement claims to MDOT, which recommends approval or denial to the State Administrative Board.

“Good luck maneuvering through that bureaucracy,” said Sen. Jim Ananich, D-Flint, who on Thursday unsuccessfully proposed setting aside $5 million to reimburse motorists for pothole damage regardless of whether the government knew about the flaw and had time to fix it.

“I think I can safely say the roads in this state are terrible,” Ananich said in a Senate floor speech. “MDOT I hope you’re listening. I’m reporting it.”

Case documents show the administrative board this month rejected two of three claims before it, largely on technical grounds. One motorist was reimbursed $227 after a chunk of concrete hit her windshield as she traveled west on I-696 between Woodward and Coolidge in July 2017. MDOT initially denied her request, but her appeal was successful.

“The concrete likely came from an overpass or from the highway itself,” Gleeson told board members. “It is possible that a court could find that MDOT was aware of this issue.”

A third claimant said she hit an “unavoidable” pothole on I-94 shortly after entering Michigan from Indiana. “Not even to the welcome center,” she noted in her filing, indicating she needed a new rim and rear tire as a result of the May incident.

Her claim was rejected because records showed MDOT had worked on that section of the interstate “several times in the 30 days” prior to the incident, Gleeson wrote. The state transportation department “was not aware of the pothole in the highway” before the damage.

Roads worsening

The worsening roads have been questioned since the Michigan Legislature raised gas taxes and registration fees last year under a 2015 law signed by Snyder, who has long pushed for more road spending.

The law will eventually dedicate $1.2 billion to roads, but it is not yet fully phased in. The state is poised to begin redirecting general fund dollars into roads, beginning with $150 million next year and topping out at $600 million in 2021.

Experts say those dollars, along with a small bump from federal reauthorization, will slow down road deterioration in Michigan. But infrastructure advocates had pushed for a larger package, and the new state spending is not expected to fully reverse projected declines.

“These influxes of new funds are still not sufficient to improve Michigan’s road and bridge problems,” according to a 2017 report from the Transportation Asset Management Council, which includes road officials from the state and local agencies.

Even with the new funds, “the condition of paved federal-aid roads will continue a downward trend,” the report concluded, noting it costs “four to five times as much” to repair or replace a bad road than it does to maintain an adequate one.

The council rated 39 percent of all federal aid roads in poor condition in 2016, the most recent year for which data is available. It projects 55 percent will rate poor by 2022 and 64 percent poor by 2022. The state council does not rate many local and urban roads.

While the 2015 road funding law “was widely considered a good start,” recent weather cycles have “created the perfect storm to hasten the pavement decline that was already happening,” MDOT’s Fischer said.

Nearly three years after voters rejected a larger road funding ballot proposal, repair dollars remain a political football in Lansing. Democrats criticize the Republican-led Legislature for the 2015 law, which they said was inadequate to fix the problem.

“If Republicans think the roads are fine right now, that’s OK, because we’ll wait until 2019 until we have a new governor and a new Legislature,” said House Minority Leader Sam Singh, D-East Lansing.

But Senate Majority Leader Arlan Meekhof, R-West Olive, this week blamed road funding woes on Democrats who “didn’t vote for the bill in the first place when we actually… made our attempt to fix it.”