2016-2017 No-Fault Year in Review

[From time-to-time, Smith & Johnson, Attorneys, P.C.'s law partner, L. Page Graves, has been a featured speaker at the joint State Bar of Michigan's and Institute of Continuing Legal Education's Upper Michigan Legal Institute where he reviews and discusses the latest appellate cases in Michigan's No-Fault Jurisprudence.  Below is a copy of the materials hand-out for this year's upcoming conference in June of 2017].

I.  2015-2016 Cases Update 

Covenant Med Ctr v State Farm Mut Auto Ins Co, 313 Mich App 50 (2015)(holding that when a no-fault insurer has received written notice of a medical provider claim, the insurer does not discharge its liability to the provider by paying the benefit to the claimant instead).  S Ct decision is pending.

Chiropractors Rehabilitation Group, PC v State Farm Mut Auto Ins Co, 313 Mich App 113 (2015)(holding that failure by an injured claimant to attend a medical exam allows a no-fault insurer to suspend benefits but it is not an irrevocable bar to PIP benefit eligibility; rather, eligibility is suspended until such time there has been compliance with the request).  Leave to appeal to S Ct held in abeyance pending decision in Covenant.

Bronson Health Care Group, Inc v Titan Ins Co, 314 Mich App 577 (2016)(holding that MACP assigned insurer’s own investigation of benefit eligibility does not toll application of when insurer received “reasonable proof” per MCL 500.3142 or Williams v AAA Michigan, 250 Mich App 249, 267 (2002)).  S Ct decision on whether to grant or deny application for leave is pending.

Spectrum Health Hospitals v Westfield Ins Co, 498 Mich 969 (2016)(quickly, the facts in Spectrum are that the injured claimant was changing a tire when the jack was jarred, causing the vehicle to drop onto the person changing the tire.  Westfield stipulated to entry of judgment, including interest and no-fault fees because it agreed that Miller v Auto-Owners Ins Co, 411 Mich 633 (1981)(holding that performing maintenance on a parked vehicle under §3105 trumped §3106) was controlling arguing instead, Miller was wrongly decided and should be overturned).  S Ct decision following MOA to grant application or take other action is pending.

Perkovic v Zurich American Ins Co, 312 Mich App 244 (2015)(holding that a medical bill and corresponding medical record sent by a medical provider to a no-fault insurer seeking payment does not constitute written notice of a no-fault claim on the injured person’s “behalf” under MCL 500.3145(1)).  S Ct decision is pending.

Shinn v State of Michigan Secretary of State Assigned Claims Facility, 314 Mich App 765 (2016)(holding that a person who is injured while occupying an uninsured vehicle that is not operable may recover no-fault PIP benefits).   Application for leave to appeal to the S Ct was denied on 11-23-16; a decision on a Motion for Reconsideration is pending.

Titan Ins Co v American Country Ins Co, 312 Mich App 291 (2015)(holding that MCL 500.3114(1) and (4) are fallback priority sections when the exceptions of (2), (3) and (5) do not yield an identifiable, liable priority no-fault insurer).  Motion for Reconsideration denied on 09-06-16; no further action pending.  Decision is final.

Farm Bureau Gen Ins Co of MI v Blue Cross/Blue Shield, et al, 314 Mich App 12 (2016)(holding that where medical service provider participating agreement with health insurer obligates facility to accept payment in full for charges otherwise not covered, facility may not thereafter balance bill no-fault).  No pending actions currently appear on the docket sheet.  Decision is final.

Walega v State Farm Mut Auto Ins Co, 312 Mich App 259 (2015)(holding that the “transportation function,” per MCL 500.3105, was satisfied by the particular facts at bar).  No pending actions currently appear on the docket sheet.  Decision is final.

Jesperson v Auto Club Ins Ass’n, 499 Mich 29 (2016)(holding that per MCL 500.3145(1), a PIP action may be brought within 1 year of the last PIP benefit paid by the insurer, even if written notice of the claim has not been submitted by the injured person).  Decision is final.

Garrett v Washington, 314 Mich App 436 (2016)(holding that, but for Adam v Bell, 311 Mich App 528 (2015), resolution of a PIP action on the merits would act as res judicata of a UM/UIM claim not included; Adam held the opposite).  Request for Conflict Panel  denied.  No pending actions currently appear on the docket sheet.  Decision is final.

Measel v Auto Club Ins Co, 314 Mich App 320 (2016)(holding that no-fault PIP reimbursement for chiropractic care under MCL 500.3107(1)(a) is limited to direct treatment to the spine, only).  No pending actions currently appear on the docket sheet. Decision is final.

II.  Medical Service Provider Claims

Grace Transportation, Inc, et al v State Farm Mut Auto Ins Co, ___ Mich App ___ (2016)(Docket No. 327915)(holding that dismissal with prejudice of individual injured insured’s PIP claim for discovery abuses, serves to bar a provider’s derivative claim, too).  No pending actions currently appear on the docket sheet; so for now, the decision is final.

In Grace Transportation, the providers intervened in their patients’ PIP action.  The individual plaintiffs failed to comply with discovery orders and did not attend repeatedly scheduled depositions.  State Farm moved for dismissal as a proper sanction for the discovery abuses.  The trial court granted that motion; thereafter, State Farm moved for dismissal of the medical providers’ PIP claims, too, given that their claims were derivative of the underlying plaintiffs, now dismissed.  The Ct App affirmed holding that whether a person is substantively eligible for PIP benefits is not germane to the basic holding that a provider’s claim is derivative of the insured.  Since the insureds were dismissed, the providers must be dismissed, too.

DMC Surgical Hosp v Sentinel Ins Co, Unpublished per curiam opinion of the Court of Appeals (dated 10-13-16, Docket No. 328005)(holding that patient’s action and then settlement of his Uninsured Motorist benefit claim against Sentinel did not act as res judicata against DMC’s no-fault PIP benefit claim).  Cf, supra, Adams/Garrett.  Sentinel has filed an application for leave to appeal; a decision by the S Ct whether to grant or deny the application is pending.

Although an unpublished decision, DMC is significant for two reasons.  First, last year we had the conflicting decision of Garrett that involved a settled claim for PIP that did not act as res judicata against insured’s later-filed UM action.  The Ct of App would have held it did but for Adam which previously held it did not because there was no privy of action or similar elements of action (tort v. no-fault).  Here, in DMC, the provider’s patient filed his own UM claim and settled it.  Separately, DMC filed its own PIP action.  Relying on and agreeing with the analysis in Adam, albeit in the reverse, the Ct of App held that DMC’s PIP claim was not barred by res judicata following patient’s settlement of his UM claim.  A PIP claim is for economic loss (medical, wage and replacement services); a UM claim is for non-economic tort damages (injury; disfigurement; death, etc.).  And the second reason why this case is important to follow is the pending outcome in Covenant, supra.

III.  Innocent Third-Party Rule

Bazzi, et al v Sentinel Ins Co, et al, ___ Mich App ___ (2016)(Docket No. 320518)(holding that the S Ct’s opinion in Titan Ins Co v Hyten, 491 Mich 547 (2012) extends to innocent third-party claims for statutory/mandatory no-fault benefits).  Bazzi has filed an application for leave to appeal; a decision by the S Ct whether to grant or deny the application is pending.

In Bazzi, a motor vehicle crash occurred and Bazzi was injured.  Bazzi had nothing to do with ownership of the involved vehicle or his families’ procurement of insurance on the vehicle, itself.  Bazzi sought statutorily mandated PIP benefits from Sentinel, which denied the claim asserting the Bazzi’s family fraudulently applied for the insurance by placing the policy in the name of one family instead of the actual primary driver of the vehicle, in order to obtain cheaper coverage.  As such, Sentinel sought to void the policy based upon fraud.

Rather recently, our S Ct decided Hyten, supra, which involved an innocent third-party’s claim for (contractually-based excess liability coverage) non-economic tort damages arising out of a motor vehicle accident.  The liability insurer, Titan, filed a declaratory action seeking to rescind the liability policy and its contractual duty to indemnify its insured, who Titan alleged procured the auto policy based upon fraud in the application.  Factually important, however, was Titan’s acknowledgement that it was only seeking to rescind the contractually-based excess coverage and not the mandated coverage per statute.  In this regard, the court in Hyten, noted:

“Fn 2  Titan did not seek to completely avoid liability under the insurance policy.  Rather, Titan sought a declaration that it was not obligated to indemnify Hyten for any amounts above the minimum coverage limits required by the financial responsibility act ($20,000 per person/$40,000 per occurrence), MCL 257.501 et seq., for which Titan acknowledged responsibility.”  Id, p 574 (emphasis in original).

For decades, Michigan jurisprudence prevented an insurer from rescinding an indemnity policy against tort damage claims by injured persons where the alleged fraud was “easily ascertainable”  -- meaning that by a basic review of the application, fraudulent misrepresentations by the applicant could be easily ascertained (e.g., whether the applicant actually held a valid operator’s license).  The S Ct in Hyten noted that Michigan’s current jurisprudence came from a Ct of App decision in State Farm Mut Auto Ins Co v Kurylowicz, 67 Mich App 568 (1978)(with essentially the same facts), where that court ignored as distinguishing inapplicable a prior S Ct opinion in Keys v Pace, 358 Mich 74 (1959)(with essentially the same facts and which held rescission was permissible because of fraud despite the impact to an innocent third-party’s claim) because the no-fault act had been since been enacted and its implication of public policy favoring the protection of injured individuals.  The S Ct in Hyten rejected the reasoning of Kurylowicz’s reliance on public policy as opposed to the controlling common law was in error; it also reiterated the court’s policy of strict construction noting that nothing in the no-fault act speaks to the “easily ascertainable rule” when fraud has been committed by an applicant.  Therefore, the court overruled Kurylowicz and restored the common law back to Keys, permitting the rescission.

The Hyten court’s ruling, however, was expressly limited by two very important caveats.  Specifically, at page 553 or the beginning of the court’s review of controlling case law, it made the following observations relative to auto insurance contracts:

(1) Per Rory v Continental Ins Co, 473 Mich 457 (2005), “when a provision in an insurance policy is not mandated by statute, the rights and limitations of the coverage are entirely contractual and construed without reference to the statute.”  Id, p 465-466;

(2) Conversely, per Rohlman v Hawkeye-Security Ins Co, 442 Mich 520 (1993), “when a provision in the insurance policy is mandated by statute, the rights and limitations of the coverage are governed by that statute.”  Id, p 524-525.

Because of these two controlling principles, the court in Hyten’s holding was limited to the Rory rule because the contract issue in dispute in Hyten was about contractually-based excess liability coverage not mandated by statute.  In this regard, the court stated the following about its holding:

“Should Titan prevail on its assertion of actionable fraud, it may avail itself of a traditional legal or equitable remedy to avoid liability under the insurance policy, notwithstanding that the fraud may have been easily ascertainable.  However, as discussed earlier in this opinion, the remedies available to Titan may be limited by statute.  Rohlman, 442 Mich. At 525.”  (emphasis added)(citing fn 17, “For example, MCL 500.3009(1) provides the policy coverage minimums for all motor vehicle liability insurance policies.”).

With this backdrop, the court in Bazzi was asked by Sentinel to decide whether the Hyten rule should be extended to rescind a policy where an innocent third-party was claiming statutorily mandated PIP benefits.  The court in Bazzi rejected the argued distinction between labeling the Rory rule (coverage not mandated by statute) versus the Rohlman rule (coverage mandated by statute) as the “easily ascertainable rule” versus the “innocent third-party rule”, viewing both factual scenarios to be one-of-the-same in that there was fraud in the application for the insurance to which the insurer seeks to rescind, even though it affects a third-party (who had no involvement with the fraud) making a claim.  Back to the question before it was simply whether to extend the Hyten/Rory rule to -- while ignoring the Rohlman rule acknowledged by Hyten –- PIP claims mandated by statute.  The court held that Hyten does extend to statutorily mandated PIP benefits because nothing in the no-fault act prohibits an insurer from availing itself from common law defenses regarding the formation of the original contract of insurance.  Thus, the court in Bazzi reasoned the mandated versus not mandated distinction was equally a non-unimportant.

The Bazzi case was decided by a vote of 2-1, with Judge Beckering authoring a 19 page treatise in opposition to the majority opinion, detailing Michigan’s jurisprudence relative to the two distinct rules.

Southeast Michigan Surgical Hospital LLC v Allstate, ___ Mich App ___ (2016)(Docket No. 323425)(holding that Bazzi applied, by derivative extension of patient’s PIP claim to a medical provider’s claim for PIP benefits, too).  Request for Conflict Panel, in light of Bazzi, supra, denied on 08-31-16; Motion for Reconsideration denied on 10-12-16; SMSH has filed an application for leave to appeal; a decision by the S Ct whether to grant or deny the application is pending.

In SMSH, the provider’s patient sustained injuries in an MVA.  The patient was an occupant of a vehicle insured by Allstate.  SMSH filed an action for the non-payment of PIP expenses incurred by its patient.  Allstate denied the claim arguing that the insurance was fraudulently procured and sought to rescind the policy.  SMSH’s patient had nothing to do with the alleged fraud, i.e., was an innocent third-party.  The court held that it was bound by MCR 7.215(J)(1) to follow the newly published rule in Bazzi, supra.  But for the procedural rule compelling this outcome, the panel in SMSH would decline that new extension of Hyten to statutorily mandated PIP benefits and adopted Judge Beckering’s dissent in Bazzi in its entirety, in support of its reasoning.

IV.  Survivor’s Loss Benefits

Scugoza v Metropolitan Direct Property & Casualty Ins Co, ___ Mich App ___ (2016)(Docket No. 327076)(holding that social security retirement benefits constitute “tangible things of economic value” as contemplated by PIP survivor’s loss under MCL 500.3108).  Metropolitan has filed an application for leave to appeal; a decision by the S Ct whether to grant or deny the application is pending.

Mr. Scugoza died in an MVA.  At the time of his death, he was eligible for and was receiving Social Security retirement benefits.  Mr. Scugoza was survived by his wife who was his dependent.  Mrs. Scugoza applied for no-fault survivor’s loss benefits.  Unclear from the opinion is whether her claim was denied outright or in part; rather, it mentions that suit was commenced over the proper calculation of the PIP benefits.  In any event, the question before the court was whether Social Security retirement benefits constitute “tangible things of economic value” as contemplated by PIP survivor’s loss under MCL 500.3108.  Because that phrase is not defined by the no-fault act, resort to dictionary definitions was employed and supported the notion that such includes “something that is capable of being valued or having its worth ascertained.”  (emphasis in original).  The court also cited with approval, the seminal § 3108 case in Miller v State Farm Mut Auto Ins Co, 410 Mich 538 (1981), which held the phrase was to be liberally construed to include “‘consideration of all demonstrable contributions that would have been made to the dependents by the deceased but for his death. . . .’ [Id. At 550.]”  Given the forgoing, the court in Scugoza reasoned that (a) because retirement benefits function as financial support to recipients; (b) because those benefits cease (or are recalculated to a lesser amount for surviving spouse upon death); and because Mrs. Scugoza was dependent upon that support, it therefore was to be included in the calculation of § 3108 benefits.  Notably not before the court -- which it pointed out -– was whether or not retirement benefits are even to be considered a set-off or how such would be calculated under § 3109 per Wood v Auto-Owners Ins Co, 469 Mich 401 (2003).

V.  One-Year-Back-Rule

 Henry Ford Macomb v Famers Ins Exchange, ___ Mich App ___ (2016)(Docket No. 327572)(holding that MCR 1.108(1), which regulates the computation of time applies to calculating the one-year-back-rule under MCL 500.3145(1)).  Farmers has filed an application for leave to appeal; a decision by the S Ct whether to grant or deny the application is pending.

The plaintiff hospital treated an MVA patient from August 2, 2103, through August 5, 2013.  The patient was insured by the defendant and the general written notice requirement of the possible no-fault PIP claim was submitted with one-year of the MVA.  Farmers had not paid plaintiff yet, however, and therefore, the hospital filed its no-fault claim on Monday, August 4, 2014.  August 2, 2014, fell on a Saturday.  Farmers paid part of the claim for August 4 and 5, 2013, but not the bulk of the charges incurred by its insured the previous two days (August 2 and 3, 2013) arguing that the second part of § 3145(1) limiting the recovery of PIP benefits to within one-year of filing suit, limited that part of plaintiff’s claim.  The court held that MCR 1.108(1), which regulates the computation of time, governed the outcome.  Specifically, the rule states in pertinent part that when computing a period of time (prescribed by statute, for example),

“The last day of the period is included, unless it is a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order ; in that event the period runs until the end of the next day that is not a Saturday. . . [etc.].”

Therefore, plaintiff’s filing of its action on Monday, August 4, 2014, extended the computation of “1 year” under the one-year-back-rule of § 3145(1).  As a result, it was permitted to recover those expenses incurred by its patient on August 2 and 3, or 2013.  The defendant argued that application of the rule acted as a “tolling” provision of § 3145(1), prohibited by Cameron v Auto Club Ins Ass’n, 476 Mich 55 (2006) and Joseph v Auto Club Ins Ass’n, 491 Mich 200 (2012).  Rejecting the defendant’s argument, the court observed that nothing in the plain language of MCR 1.108(1) limits its applications to “statutes of limitations”, whatsoever.

VI.  Unlawful Taking v. Unlawful Use

 Monaco v Home-Owners Ins Co, ___ Mich App ___ (2016)(Docket no. 329214)(holding that § 3113(a) does not bar an unlicensed motorist’s claim for PIP when the vehicle was taken lawfully, albeit then used unlawfully).  HOIC has filed an application for leave to appeal; a decision by the S Ct whether to grant or deny the application is pending.

In Monaco, a 15-year-old child drove a car and crashed, suffering injuries.  The child had an operator’s permit and was given permission to use her Mom’s car, without being accompanied by a parent, legal guardian or a licensed driver 21 or older, per MCL 257.310e(4).  HOIC denied the PIP claim, arguing § 3113(a) applied because the child “used“ the car that she had “taken unlawfully”.   Rather recently, the S Ct had decided Spectrum Health Hosp v Farm Bureau Ins Co of Mich, 492 Mich 503 (2012), which involved application of § 3113(a) in the context of persons taking a car with no intent to steal, like a family member joyriding, in violation of MCL 750.413.  The court in Spectrum held that for purposes of construing the phrase “taken unlawfully”, the focus is on whether the person “gains possession of the vehicle contrary to Michigan law” regardless of the existence of or lack of larcenous intent.  Id, pp 517-518.  Applying this rule, the court in Spectrum held that the family joyriders had taken the car unlawfully, reasoning that “for purposes of § 3113(a), a vehicle is ‘unlawfully taken’ if it is taken without the authority of its owner. . . .”  More important to the ultimate result reached in Monaco, was the Spectrum court’s explanation that “unlawful use” was irrelevant to the question of “taken unlawfully”; that is because “unlawful use” only comes into play where a persona has taken a car unlawfully -– as § 3113(a) provides –- “unless the person reasonably believed that he or she was entitled to take and use the vehicle.”  Thus, given that Monaco was given permission to lawfully take her Mom’s car, she did not violate § 3113(a) because the second part of the sentence, unlawful use is inapplicable because that only applies to someone who took a vehicle unlawfully, reasonably believing he or she could take and use the vehicle.  Monaco’s unlawful use of the vehicle without proper supervision, was therefore, irrelevant.

VII.  Coordinated Coverage

St. John Macomb Oakland Hospital v State Farm Mut Auto Ins Co, ___ Mich App ___ (2016)(Docket No. 329056)(holding that a person is not required to appeal a health insurer’s medical necessity determination in order to establish that “reasonable efforts” were made to obtain payment from the health insurer).  No pending actions currently appear on the docket sheet; so for now, the decision is final.

In SJMOH, the injured patient had coordinated coverage.  The plaintiff facility submitted its billing claim to BC/BSM which, through its review company, determined the treatment being provided was not medically necessary.  BC/BSM’s denial letter outlined a series of timelines and steps a person could take to appeal the original determination.  SJMOH did not appeal BC/BSM’s determination but instead, submitted its claim to the defendant, as the secondary insurer under § 3109a.  State Farm denied the claim arguing that SJMOH, by not appealing the determination, failed to make “reasonable efforts” in obtaining payment from the health insurer.  The court in SJMOH reviewed the S Ct opinion in Tousignant v Allstate Ins Co, 444 Mich 301 (1993), which held that “the injured person is obligated to use reasonable efforts to obtain payments that are available.”  In Tousignant, the plaintiff sought treatment outside of her HMO without a referral and without first trying to obtain the same treatment within her HMO.  Consequently, the court in Tousignant held the plaintiff failed to use “reasonable efforts” to obtain payment from her health insurer and thus, relieving her no-fault insurer from secondary responsibility under § 3109a.  Based upon the foregoing, the court in SJMOH reasoned that the plaintiff health facility did make reasonable efforts because it first sought payment from BC/BSM.  It further observed that nothing in § 3109a or Tousignant mandates that a person must appeal an unfavorable determination to constitute “reasonable efforts”.  Rather, the court held further that per Adanalic v Harco Nat’l Ins Co, 309 Mich App 173 (2015(a case dispute between which insurer, worker’s compensation or no-fault, was primary) recognized that “a plaintiff does not need to engage in the potentially lengthy and costly effort of challenging a medical necessity determination in order to obtain health insurance benefits before proceeding to obtain payment from the no-fault insurer.”

VIII.  Sunlight on MCCA

CPAN v MCCA, ___ Mich App ___ (2016)(Docket No. 314310)(holding that the MCCA is not a public body subject to the Freedom of Information Act, MCL 15.231 et seq.).  CPAN has filed an application for leave to appeal; a decision by the S Ct whether to grant or deny the application is pending.

            In CPAN (a large association of medical providers and public policy groups) sought financial records of the MCCA.  The basic reasoning for CPAN’s request was to investigate and fact-check the repeated assertions by the MCCA (and auto insurance industry) to the Legislature that “claims were out-of-control” and therefore, “reforms are necessary”.   The MCCA, however, refused to disclose its financial records.  And to date, the Ct of App has (now) twice held that the MCCA is not subject to FOIA.