Injured Party Has Waived Doctor-Patient Privilege Once He Asserts Medical Defense and Releases Preliminary Medical Records

            Plaintiff was injured when he was struck by a vehicle driven by the defendant.  In response to a complaint filed by the plaintiff, the defendant raised the defense of “sudden medical emergency.”   In his answers to a first set of requests for discovery, the defendant admitted that he had recently been prescribed Xanax, and that he took a pill about four hours before the accident.  Medical records that the defendant produced from his emergency room visit showed that he told the doctors that he had taken Xanax and fallen asleep.   He also told the doctors that he has other medical conditions and takes several medications every day.

             Plaintiff served a second set of interrogatories on the defendant some months later, inquiring further into defendant’s medical condition.  Then, defendant’s counsel sent plaintiff a letter stating that he was voluntarily withdrawing his “sudden medical emergency” affirmative defense and would be asserting the physician-patient privilege, MCR 2.314(B)(1), and would not be providing the requested medical information.  The physician-patient privilege is a rule of law which provides that a party may refuse to testify or otherwise produce evidence regarding confidential information between the party and his or her doctor.  Plaintiff filed a motion to compel production of the requested medical information, taking the position that under MCR 2.314(B)(1) which states that a party must assert the privilege in answers to interrogatories or in answers to a request for production for documents and that a privilege not “timely asserted” is waived, the defendant waived the privilege.  The trial court sided with the defendant, finding that the fact that the defendant provided some basic medical information early on did not waive the privilege when the plaintiff later asked for more detailed medical information.

             The Michigan Court of Appeals reversed.  The Court of Appeals noted that MCR 2.314(B) specifically states, in addition to the requirement that the privilege be raised in answers to discovery requests, that a privilege “not timely asserted is waived in that action.”   The Court of Appeals noted that in response to the first interrogatories, requests to produce, and requests to admit, the defendant did not assert that the information sought was privileged.  Further, he provided medical records and other medical information during discovery.  The Court noted that the defendant only asserted the waiver when he believed that the plaintiff’s requests had become intrusive.  That kind of change in strategy is precisely the type of situation that the Supreme Court has declared impermissible.   The Court of Appeals thus ruled that the defendant could not assert the privilege at the later date.

 What This Means For Injured Persons:  

This case is a warning to injured persons, especially defendants, that if you put your medical condition into issue early on, you will not be able to later change your mind and raise the physician-patient privilege in trying to keep out your medical records.  Although the Court of  Appeals in a 1999 opinion held that if a party gratuitously mentions in answers to a first set of interrogatories that they have a certain illness or disease they can still assert the privilege at a later date if they are later asked for medical records, the Court of Appeals in this case was taking a stricter stance  and holding that the mention of a disease/illness and the act of producing emergency room records early on is a waiver of asserting the physician-patient privilege later on.

You can read the entire Michigan Court of Appeals opinion here.

Authored by Barbara A. Assendelft

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Real Estate Transfer Upheld Even Where Transferor-Heir to Real Estate Never Opened Probate Estate

            In 1984 Lyall and June Aldrich signed a quit claim deed that transferred ownership in some land to their three children, Kim Aldrich, Randy Aldrich, and Kit Price as tenants in common.   Randy Aldrich died without a Will in 1998.  No probate estate was opened at the probate court after his death.  In June 2001 Randy’s wife, Carol,  signed a deed transferring her interest in the property as survivor of her husband, to Randy’s brother, Kim Aldrich, and his sister, Kit Price.  After both Lyall and June died, Kim and Kit filed suit to quiet title in the property claiming they legally held all the interest.    Kim and Kit filed a motion for summary disposition, claiming that under the statute pertaining to intestate succession, MCL 700.2102 (1), Carol had interited  her husband’s entire estate, so that when she quitclaimed the property to Kim and Kit, she effectively transferred her husband’s one-third interest in the property to them.   Randy’s children, on the other hand, claimed that since Randy’s estate was not probated, Carol had never received a deed transferring the property to her and thus she could not transfer her interest to Kim and Kit. 

                The trial court ruled for Kim and Kit.  The trial court ruled that by executing the June 2001 quitclaim deed, Carol Aldrich in effect elected to take her survivor’s share in her husband’s estate.   The children appealed. The Court of Appeals affirmed.  The Court of Appeals noted that under Michigan law, title to real property vests in a decedent’s heirs at the moment of the decedent’s death, even if no probate estate is opened.  Hence, Carol received Randy’s 1/3 intere4st immediately when Randy died.  Thus, she could properly quit claim the 1/3 interest to Kim and Kit.   A quitclaim deed effectively transfers whatever interest in the property that the grantor had at the moment of the transfer. Because title to her husband/s one-third interest vested in her at the moment of her husband’s death, Carol Aldrich owned the one-third interest when she executed the quit claim deed.  Accordingly, there was nothing left for Randy’s children.

 

 What This Means For Heirs:

 If a person dies without a Will or Trust, a probate estate does not have to be opened at the probate court in order for legal title to real estate to pass to the decedent’s heirs.   However, be aware that this is not the rule for personal property.  The Court of Appeals specifically stated that title to personal property does not transfer to a decedent’s heirs at the moment of death; rather, it passes to the executor of the decedent’s estate upon appointment as executor by the probate court.  So, for all assets other than real estate, you should always have a probate estate opened in order to properly pass title to the heirs. 

You can view the entire Court of Appals opinion here.

Authored by Barbara A. Assendelft

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Dave Camp Announces Hearing on the Treatment of Closely-Held Businesses in the Context of Tax Reform

Congressman Dave Camp (R-Mi), Chairman of the Committee on Ways and Means, has announced that the Committee will hold the second of two hearings on how accounting rules cause different types of businesses – specifically, publicly-traded and closely-held businesses – to evaluate tax policy choices differently. Whereas a previous hearing focused on financial accounting rules and publicly-traded companies, this hearing will focus on the special challenges faced by small and closely-held businesses that are less concerned with financial accounting rules but must confront tremendous complexity in dealing with tax accounting and various choice of entity regimes.   The hearing will take place on Wednesday, March 7, 2012 in room 1100 of the Longworth House Office Building at 10:00 a.m.

 

BACKGROUND:

 

    Unlike publicly-traded companies, closely-held companies often rely less on Generally Accepted Accounting Principles (“GAAP”) to report information to owners and creditors, although there are exceptions.  Instead, closely-held entities tend to focus almost exclusively on how tax policy changes affect cash flows. Closely-held companies, face their own set of challenges with regard to tax complexity and uncertainty.  These challenges range from compliance with complicated rules on inventory  accounting and cost recovery to numerous sets of tax rules governing different business forms. 

   The three major business forms from which closely-held companies must choose for federal tax purposes are C corporations, S corporations, and partnerships, although a number of other types of business entities exist to serve specific purposes.  While C corporations are subject to entity-level tax and shareholders are again subject to tax on dividends and capital gains, S corporations and partnerships are “pass-through” entities that do not pay entity-level tax – rather partners and shareholders pay tax on their share of the entity’s income on their individual tax returns (and therefore under the individual rate schedule).  Companies must choose to operate under one of these regimes, and the choice can have significant tax consequences.  Many commentators recommend modifications to the choice of entity rules to reduce the potential distortions introduced by such rules – with ideas ranging from consolidating existing pass-through rules into a “unified pass-through regime”,  making it easier for closely-held C corporations to convert to pass-through status, or even subjecting some existing pass-through entities to double taxation as C corporations.  On the other hand, tax reform proposals that create too large a spread between the top corporate rate and the top individual rate risk exacerbating these distortions rather than reducing them.

Authored by Barbara A. Assendelft

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A health system’s actual procurement costs for surgical implants is subject to disclosure for payment consideration by auto no-fault insurers.

Patients of Bronson Methodist Hospital, in Kalamazoo, Michigan, were involved in motor vehicle accidents and sustained traumatic, orthopedic injuries requiring surgical implants.  Pursuant to the no-fault act (MCL 500.3107(1)(a)), Bronson submitted its charges incurred by the patients to the liable no-fault auto insurer (Auto-Owners Insurance Company) for payment.  The no-fault insurer paid the health system’s charges except for the line item for the implants.  For payment consideration and pursuant to a different section of the no-fault act (MCL 500.3157 and MCL 500.3158), Auto-Owners requested that Bronson disclose its actual cost to acquire the implants.  Bronson refused to disclose this proprietary information.  Consequently, Auto-Owners refused to timely issue payment for the full amount of the implant charges submitted.  Bronson filed suit to compel payment of the charges incurred by the patients for the implants.

During the course of the litigation, Auto-Owners (relying on CorVel Corporation, its retained audit/review company’s recommendation) issued payment for what it maintained was in line with what the health system actually paid for the implants, plus a 50% mark-up.  At the trial court, Bronson requested the court to rule that it was not obligated to disclose its proprietary information and that it was entitled to be paid the full charge incurred by the patient.  The trial court agreed.  Auto Owners, therefore, appealed the decision.

In a Published Opinion dated February 16, 2012, the Michigan Court of Appeals reversed the trial court and held that a health system’s actual procurement costs for surgical implants is subject to disclosure for payment consideration by auto no-fault insurers.  The court, however, limited the application of its newly announced rule solely to “durable medical supply products at issue here.”

What this means for patients and providers.

First, the Bronson case is binding law now in Michigan.  It will remain so unless and until our Michigan Supreme Court says otherwise.  An appeal to the Michigan Supreme Court is discretionary and not guaranteed because the Supreme Court may decline Bronson’s request which effectively means it agrees with the current rule.  Bronson has 42 days to preserve a timely application to appeal the decision.  MCR 7.302(C)(2).  At this time, no application has been filed yet.  You can track the appellate history of this case here.

Second, as you see in this case, Bronson did not disclose the amount of its hard costs and yet, it still was paid a portion of its bill.  For health systems, generally, that will be the likely outcome going forward when a health system decides to continue its internal policy to withhold the proprietary data.  If the hospital decides to pursue the balance bill in litigation, however, then the data will be subject to disclosure.

Finally, in deciding whether to initiate that balance bill case, health systems must be able to demonstrate with other evidence that there is more to the overall cost to delivering an implant to a patient besides its raw, wholesale cost.  What about the costs to store/maintain its purity from contamination before actual use?  What about insurance costs to protect against its loss from contamination or fire before use?  This list of added over-head to the delivery of the implant  is incomplete but it is intended to help illustrate how health systems should begin analyzing and developing their case response.  Recognize, too, that a built-in profit is o.k..  A jury gets that.  It also understands over-head.  So, what is the total over-head to deliver the implant?  That answer is what will justify a health system’s cost-to-charge ratio.

You can read the Published Court of Appeals opinion here.

Authored by L. Page Graves

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A minor investment to investigate the facts of an accident is the difference between no-fault coverage paying versus private pay or government reimbursement.

A man was walking was walking his dog on a road.  A car and a snowmobile were approaching in opposite directions to the man and his dog.  The car had its headlight on.  The operator of the snowmobile testified that the car’s headlights blinded/obstructed his vision such that he did not see the man walking his dog.  The snowmobile struck the pedestrian who sustained accidental bodily injuries.

The pedestrian had his own auto no-fault policy issued by Citizens.  Thus, Citizens was the priority insurer potentially liable to pay his medical expenses.  MCL 500.3114(1) and MCL 500.3115(1).  The man presented his medical expense claims but Citizens refused to pay arguing that the insured’s accidental bodily injuries did not “arise out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle” as contemplated by MCL 500.3105(1).  The Michigan Court of Appeals agreed with Citizens reasoning that the car’s headlights were as coincidental as a setting sun that just as easily could have blinded the snowmobile operator’s vision.  The Court distinguished the factual scenario presented in this case with other pedestrian/motorcycle accidents involving a motor vehicle which do trigger no-fault liability.  The Court explained that in those other cases, typically the car’s involvement forced the other person/biker to change his course of travel to avoid a collision.

What this means for accident victims and medical providers.

You cannot generally apply the facts of this case to the next one that walks into your ER department because no two cases are exactly the same.  You must strictly analyze the facts of how the accident actually occurred.  Simply relying upon what a police report says or what a pedestrian/snowmobile operator/motorcyclist patient says they recall occurred does not adequately resolve the critical factual riddle.  You must take sworn statements of all persons/operators involved, probing into each their collective memory of what happened and what they each did to avoid the accident before a fully informed conclusion can be reached regarding no-fault application.  Never rely on the auto insurer’s self-serving analysis.  Just because the facts did not ultimately bear out in this particular case, does not mean the next case will not.  A minor investment to investigate the facts of an accident is the difference between no-fault coverage paying versus private pay or government reimbursement.

You can read this opinion here.

Authored by L. Page Graves

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Title Insurance Company Not Liable For Failure To Expeditiously Resolve Suit

A&A Property Management owned a gas station in the City of Detroit.  It purchased the gas station by taking out a secured loan from Comerica Bank. It also maintained its fuel supply through a mortgage arrangement with Armada Oil and Gas.  Armada recorded its mortgage first.  When A&A defaulted on its loan payments with Comerica, Comerica got a court-appointed receiver and was granted permission by the court to sell the gas station at auction.   The Court order specifically provided that any sale conducted on Comerica’s behalf would be subject to Armada’s first-recorded lien.

Plaintiff entered the winning bid at the auction.  At the time of sale, Plaintiff signed a purchase agreement specifically stating that the property was being sold “AS IS” and “WHERE IS” and “WITH ALL FAULTS”.   On the date of the sale, neither the Armada nor Comerica loan had been discharged.  Plaintiff purchased title insurance from Defendant.  The sale closed on January 24, 2008.  The defendant title insurance company issued an owner’s title insurance policy benefiting plaintiff, and this policy covered plaintiff against Armada’s claimed first lien on the property.

While plaintiff’s purchase was still pending, Armada filed suit against Comerica seeking payment of its undischarged mortgage debt.  Armada later added plaintiff as a named defendant in the lawsuit. When plaintiff notified its title insurance company, the company hired counsel to represent Plaintiff and covered all the costs involved in the litigation.  The title insurance company settled the Armada lawsuit and discharged the Armada mortgage.

Although the title company represented plaintiff in court and did ultimately clear the title, causing no harm to plaintiff, plaintiff filed suit against the title insurance company, complaining that the length of time that the litigation took was too long.  Plaintiff pointed to the fact that the title insurance policy stated that a defense would be provided “without unreasonable delay.”  The trial court dismissed the lawsuit and the Court of Appeals agreed.

The Court of Appeals held that while the policy requires defendants to provide a legal defense “without unreasonable delay”, it does not specify a particular length of time for the litigation.  Further, the plaintiff bought the property “as is” and “where is” and “with all faults,” which limits any liability.  And the policy gives the title insurance company, not the plaintiff, the right to decide whether to defend the case in court or simply pay the insured.    Finally, although the plaintiff accused the title insurance companies of fraud and misrepresentation, the plaintiff did not show the requisite reliance on the alleged fraudulent statements.

 What This Means For Persons Who Purchase Title Insurance:

     Once you have succeeded in turning a real estate lawsuit over to your title insurance company, the company has a lot of leeway in the steps it takes to defend the case.  It can vigorously defend the case or pay you and settle.   A claim that they are not pursuing the case in a timely manner would likely fail.

Authored by Barbara A. Assendelft

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Saving Auto No-Fault Insurance In Michigan

Last evening, February 2, 2012, a town hall meeting was held in Traverse City, Michigan, about saving auto no-fault insurance in Michigan.  The town hall meeting was sponsored by the Coalition Protecting Auto No-fault (CPAN) and was well attended by members of the greater northern Michigan community, including many health care providers (e.g. , Munson Healthcare, Great Lakes Orthopedics (B. Scott Groseclose, M.D., Trauma Specialist), The Lighthouse Neurological Rehabilitation Center, Community Links, Alaris Case Management, HealthPartners and the Eisenhower Center, just to name a few).  In equal attendance were many families with survivors of catastrophic brain and spinal injuries who attested first hand that but-for our no-fault system (which has been in place since 1973), their recovery and rehabilitation would not have been possible.  Finally and importantly, also in attendance was Michigan House of Representative, Wayne Schmidt, of the 104th district, representing Grand Traverse and Kalkaska Counties.  Local northern Michigan media outlets, TV 7&4 News and TV9&10/Fox53 reported on the event.

As you have read from our law firm’s previous posts on this subject (See, also, Smith & Johnson Attorneys, P.C., partner, Tim Smith’s commentary, Parts 1, 2 and 3), the Michigan Legislature is currently evaluating the auto no-fault insurance industry’s assertion that reforms to the no-fault act are necessary in order to sustain the Michigan Catastrophic Claims Association (MCCA) (this proposed overhaul of the no-fault act is self-contained in HB 4936).  At the town hall meeting last night, Dr. Groseclose helped explain how the proposed changes would adversely impact the availability of healthcare for catastrophically injured auto accident victims, should such changes occur.

The MCCA was created by the Michigan Legislature in 1978, under section 3104 of the no-fault act.  The MCCA was created as a reinsurance program to protect the catastrophically injured.  To facilitate and fund the investment of this program, each auto-insured Michigan resident contributes an annual premium (currently $145) to the fund.  The funds are then invested and managed by members of the insurance industry; they essentially act as fiduciaries of our investment.  Many of us may recall back in 1988, that the MCCA did such a tremendous job in managing the fund that it prompted then Governor John Engler, to request and sign into law a generous refund to Michigan’s auto insureds.

Coincidentally, that same year (1988) the Michigan Legislature also amended section 134 (4) and (6)(c) of the general insurance code which protected and excluded the MCCA’s business of managing Michigan auto insured’s trust funds from full public disclosure under the Freedom of Information Act (FOIA), MCL 15.243.  As an important aside, Article IV, Section 25 of the Michigan Constitution mandates that “No law shall be revised, altered or amended by reference to its title only.  The section or sections of the act altered or amended shall be re-enacted and published at length.”   Putting this constitutional mandate in context, recall that in 1978 the Michigan Legislature created the MCCA and it specifically did so by adding section 3104 to the no-fault act itself.  In other words, the Michigan Legislature adhered to the constitutional mandate and placed the amendment within the act it was amending.  Conversely, in 1988 when the Michigan Legislature added the MCCA FOIA exemption, it did so to section 134 (4) and (6)(c) of the general insurance code, as opposed to section 3104 of the no-fault act itself.  In other words, the Michigan Legislature did not adhere to the constitutional mandate under Article IV, Section 25.

Fast forward to 2012: at the core of the auto insurance industry’s claim that no-fault reforms are necessary is its assertion that the MCCA cannot maintain its solvency at its current funding levels.  Fortunately for Michigan auto insureds and our catastrophically injured auto accident victims, courageous leaders like Representative Wayne Schmidt demand full disclosure from the MCCA so that the citizens of Michigan (and their elected legislators) may make a full and complete informed decision about whether such reforms are actually necessary.  The MCCA, however, refuses to fully release its data that allegedly supports the auto-insurers’ claim that the fund will not continue to be solvent unless reforms are enacted.  The MCCA refuses to publicly disclose this important data by shielding itself behind the 1988 FOIA exemption/amendment.  Therefore, CPAN has initiated important and necessary legal proceedings requesting our Third  Branch of Government in Michigan, the Judiciary, to weigh in and decide (1) whether the 1988 MCCA FOIA exemption/amendment was constitutional; and if not, (2) to compel the MCCA to produce its data so that the citizens of  Michigan can confirm that what the auto insurance industry is claiming, is factually accurate.  Until then, as Representative Schmidt inferred at the town hall meeting last night, there will be no rush by the Michigan Legislature to push HB 4936 through until full disclosure by the MCCA occurs.  Fortunately for Michigan citizens, a majority of House of Representatives agree with Representative Schmidt’s wisdom and leadership.

Needless to say, this topic is of great importance to Michiganders.   Please return to our website Blog for future developments.

You can read 7&4 News’ coverage of last night here.  And, you can see 9&10 News’ coverage here.

Authored by L. Page Graves

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No Liability If You Trip On Object Partially Hidden Around The Corner At Store

         Plaintiff was shopping at a Big Lots store. She walked down an aisle and turned at the end, whereupon she tripped over a wooden pallet that was just around the corner.  The pallet was about three-square feet in size and protruded about three feet into the adjacent aisle, and was on wheels.  After she bumped into the pallet,  she jumped onto the pallet and the pallet then rolled out from under her, causing her to fall to the floor and injure herself.  The trial court dismissed the plaintiff’s premises liability claim against the store, holding that because the danger was open and obvious  no liability can lie. 

          The Plaintiff appealed, and the Court of Appeals affirmed dismissal of her case.  The Court of Appeals disagreed with the plaintiff’s claim that the pallet was hidden or camouflaged, which plaintiff argued would take it out of the open and obvious defense.  The Court of Appeals noted that it was impossible for the pallet not to have been visible to a person approaching the end of the aisle before reaching the pallet itself.   The pallet stuck out three feet, halfway across the intersecting aisle.  The color of the pallet contrasted with the color of the floor.    The only possible way a reasonable person would not notice the pallet is if the person was not exercising ordinary care.   There were no special aspects to the case, which is a requirement to take the case out of the open and obvious danger category.

 What This Means For Plaintiffs:

 Although a premises liability claim can exist if an open and obvious condition has special aspects which make it effectively unavoidable or pose an unreasonably high risk of severe harm despite the open and obvious nature, this exception will not apply just because an object is around the corner and thus partially hidden.

You can view the entire opinion here.

Authored by Barbara A. Assendelft

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A Bar Is Not Liable For Giving You Your Car Keys When You Are Intoxicated Should You Become Injured Driving Home

           The decedent and two friends went to a bar and were asked to leave after they became visibly intoxicated.  They left without the decedent’s car keys.   A bar employee found the keys and picked the keys up.    When Decedent and her friends discovered they had forgotten her keys, they returned to the bar, still visibly intoxicated.  The bar employee returned the keys to the decedent, and they left.  Decedent drove away from the bar, lost control of her vehicle, and was killed.

             Decedent’s estate filed suit against the bar and its employee, claiming the employee’s actions in returning the car keys to a person who was visibly drunk was negligence. The trial court dismissed the case and the Court of Appeals agreed.

             The Court of Appeals noted that Michigan’s dramshop act, MCL 436.1801, is the sole and exclusive remedy  for a person who is injured by a visibly intoxicated person arising out of the unlawful sale or furnishing of alcohol.   And, under the dramshop act, the visibly intoxicated person and his or her family are denied recovery.  MCL 436.1801(2),(9).  Thus, the only question in this case was whether that result is altered by the fact that the alleged act of negligence was the defendant-bar employee  giving the decedent her car keys, not the act of furnishing her alcohol.  The Court of Appeals answered in the negative.  Although a retail establishment can still remain liable for actions arising out of negligence other than the sale or furnishing of alcohol, the test is whether the common law recognizes a cause of action for the negligent conduct, if the person were not intoxicated.  Intoxication is taken out of the equation.  For example, if a patron slipped and fell on the bar’s premises, a premises liability action could  be brought.   However, In this case, there is no ordinary common-law action for the furnishing of keys to an unintoxicated patron.  Giving keys to an unintoxicated patron is perfectly legal.  Therefore, the decedent’s estate was denied recovery.

 What this means for bar patrons:

 If you are injured after leaving a bar in an intoxicated condition, you do not have a cause of action against the bar.   This result is not changed by your claim that the bar should not have given you your car keys or other similar actions that caused you to be able to drive.

You can read the entire opinion here.

Authored by Barbara A. Assendelft

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When more than one automobile insurance policy exists in the family household, make sure you submit your no-fault claim to each auto insurer

A young man lived with his parents.  The young man was the titled owner of two motor vehicles.   One vehicle was a truck that he used exclusively for his personal farming business.  The truck was insured by Progressive under a commercial auto policy with the young man being listed as the named insured.  The other vehicle was a sedan that the young man used for personal needs.  That car, however, was insured under a policy purchased by the parents and issued by Citizens.  On the Citizens policy, the young man was listed as a driver.

The young man was driving his sedan and crashed, sustaining bodily injuries.  A claim was presented to Citizens, only, which began paying no-fault benefits.  Citizens learned about the Progressive policy and therefore, declared that Progressive was legally responsible to pay the young man’s no-fault claims.  Progressive denied responsibility claiming that it did not insure the risk complained of but rather, only insured a loss that involved the farming truck.

The Michigan Court of Appeals agreed with Citizens.  The court reasoned that the plain language of the household priority provision under MCL 500.3114(1) trumped the employer provided vehicle priority provision under MCL 500.3114(3).   Sub-section one states that “When personal protection insurance benefits . . . are payable to or for the benefit of an injured person under his or her own policy and would also be payable under the policy of his or her spouse, relative, or relative’s spouse, the injured person’s insurer shall pay all of the benefits and is not entitled to recoupment from the other insurer.”  (Emphasis in original).  Given this plain language, the court held that the Progressive policy applied, regardless of the contemplated risk it insured for the truck which was not involved.

What this means for injured persons:

Boiled down to its core, the court held that the auto policy followed the insured person.  Therefore, when more than one automobile insurance policy exists in the family household, make sure you submit your no-fault claim to each auto insurer.  Failure to do so could prove fatal to your claim under the written notice requirement under MCL 500.3145(1).  Thereafter, let the competing auto insurers sort out which company is ultimately liable to pay.

On that note, though, the no-fault law demands that the injured person (and medical service providers) be left out of any priority dispute; instead, one insurer must pay benefits and then seek recoupment from the other insurer, just like Citizens did in this case.   If, however, the disputing auto insurers refuse to take responsibility, then the injured person (and medical service providers) should immediately file a lawsuit which will allow them to recover not only the no-fault benefits owed, but also no-fault interest at 12% under MCL 500.3142(3) and  no-fault attorney fees under MCL 500.3148(1).  In this regard, the Michigan Court of Appeals stated clearly in Regents of U of M v State Farm Mut Auto Ins Co, 250 Mich App 719 (2002), at page 738:

“A claimant who is clearly entitled to no-fault benefits should not be forced to hire an attorney merely because the circumstances of his accident create problems of priority among insurers.  Because the only dispute concerned Estes’ domicile, and because there is no dispute that Estes was entitled to no-fault benefits, the trial court’s finding that defendants acted unreasonably was not clearly erroneous.  We find no error in the award of attorney fees to plaintiffs.”

What this means for medical service providers:

At intake, make sure you identify every possible auto insurer within the injured person’s household.  Then, submit your claim to each auto insurer, demanding payment within 30 days as required under MCL 500.3142(2).  Failure to notify all potentially liable auto insurers written notice of your claim will prove fatal under MCL 500.3145(1).  Do not rely upon your patient to submit his/her claim and assume you were included.  Some patients refuse to cooperate, fearing that their auto insurance rates will increase if they submit a claim.  While this is a poor and ill advised position to take, the fact is is that happens frequently.  Therefore, medical providers must be proactive and submit their own claims directly.

You can read this Opinion here.

Authored by L. Page Graves.

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