We are delighted to report that the Supreme Court has issued the Andary decision largely AFFIRMING the Court of Appeals decision:

“Plaintiffs argue that the 2019 amendments of MCL 500.3157 should not impact services and care that were already being provided to them and that had been reimbursable prior to the amendments. We agree and affirm the Court of Appeals’ judgment in this regard. The insurance policies covering plaintiffs Ellen Andary and Phillip Krueger bind the insurance companies to their promise to provide PIP benefits under the law that existed at the time of injury to those individuals covered by the policies, and the 2019 no-fault amendments do not clearly convey an intent to retroactively modify these vested contractual rights. Andary and Krueger are covered by policies under which premiums were paid with the expectation that uncapped lifetime benefits would be provided for all reasonable and necessary medical expenses. Their vested contractual right to continuation of those benefits at pre-amendment levels cannot be stripped away or diminished when the Legislature has failed to clearly state its intent to do so.”

So in general, the 2019 fee caps and attendant care limitations do not apply to those injured before June 11, 2019 (or for those whose policy terms pre-dated June 11, 2019 and whose injuries were shortly thereafter). HOWEVER, the decision contains an important reservation: The Court limited its holding to those who were insured under a household policy (i.e., the named insured, the spouse of the named insured, or a relative of either domiciled in the household). You might ask who else is there? There are several ways that people were covered by no-fault insurance under the old law, in addition to being covered under a household policy. For example:

(1)  Under the old §3114(4), uninsured occupants of other people’s cars would get coverage from the insurer of that car (this has now changed under the 2019 reforms, such persons go to the MACP with a $250,000 cap).

(2)  Under the old §3115(1), uninsured non-occupants (e.g., pedestrians) would get coverage from the insurer of the car involved (this has now changed under the 2019 reforms, such persons go to the MACP with a $250,000 cap).

(3)  Then and now, under §3114(5), motorcyclists claim under the insurance policy of the vehicle that hit them. Obviously, they are not covered by their own policies.

(4)  Then and now, uninsured persons who cannot identify another source of auto insurance get no-fault insurance coverage through the Michigan Assigned Claims Plan (MACP).

The Supreme Court held that such people, i.e., those who are not covered under a household policy, are not covered by this holding:

“Our decision is limited to those individuals, like Andary and Krueger, who are entitled to PIP benefits because they were directly covered by a no-fault insurance policy at the time of their accident either as the named insured or as a covered individual under the policy. We do not decide whether individuals who have a purely statutory claim to no-fault PIP benefits, such as under MCL 500.3114(4) or MCL 500.3115, are entitled to the same protections.” Footnote 30.

Frankly, I am perplexed by this part of the decision. One would think that the new law either is, or is not, retroactive. Yet, the Supreme Court’s decision says that the determination of retroactivity is situational, and depends on who is claiming protection from the 2019 law. However, I think that insurance policies issued before June 11, 2019 generally tracked the language of the law at that time. So I think that the first 3 of the above 4 classes of people may well be considered “third party beneficiaries” of those contracts, and still have the protection of the Andary doctrine.

To be clear, the Supreme Court did not say that the 2019 reforms do apply to these pre-2019 “statutory” insureds. However, because of this footnote, we can expect those statutory insurers to continue to claim that the 2019 reforms do apply in their cases. We will no doubt be facing other cases that will need to go to the Supreme Court to decide this loose end, kind of like Andary part II.

In summary, the Andary decision clearly holds that the 2019 fee caps and attendant care limits do not apply to contractual insureds. This is a life saver for the vast majority of those with catastrophic injuries sustained before June 11, 2019. Unfortunately, the 2019 fee caps and attendant care limits will continue to apply to the ever growing population of those injured after June 11, 2019. So the job is not done. We need legislation to repair these most terrible aspects of the new law.

OTHER SIGNIFICANT CASE LAW DEVELOPMENTS

I. ASSIGNMENTS AND THE ONE YEAR BACK RULE    

Most people know that the no-fault law contains a “1 year back” rule. This rule states that a claimant cannot recover benefits incurred more than 1 year prior to the date on which the lawsuit was filed. The importance of attention to this rule was reinforced in a couple of recent Court of Appeals decisions: Wallace et al v SMART et al (June 2023) and Robinson v Szczotka et al (April 2023).

In both cases, the patient assigned their rights to sue to various service providers. However, the providers never sued. Rather, the patients sued, and sought to include the provider’s charges in their lawsuits. The Courts in both cases held that, once they had assigned their rights, the patients no longer had standing to pursue the provider claims. The provider, who had standing to sue, didn’t do so within the 1 year time limit. As a result, neither patient nor provider could sue for the provider’s charges.

So the lesson is: providers must act timely on their assignments! If they do not intend to do so, providers should either not get those assignments, or revoke them within the 1 year, so that the patient will have standing to sue.

II. MACP APPLICATIONS

When a claimant believes that the MAIPF is the appropriate insurer to pay benefits, the claimant “shall file a completed application on a claim form provided by the Michigan automobile insurance placement facility and provide reasonable proof of loss...”. MCL 500.3172(3). The MAIPF application is very comprehensive, and requests a lot of information. The 6 page document can be found at:

https://www.michacp.org/documents/MACP%20AFB%20AND%20GUIDE.pdf

Completing every question on this application can be difficult. This is especially so for service providers. It’s not unusual for their patients to disappear or to be uncooperative with the insurance process. In Beaumont Health v MAIPF et al, (2023), the plaintiff service provider submitted an MAIPF application with attachment of a police report and medical records, but without answering many of the questions on the application. The Court of Appeals held that the plaintiff met its burden of due diligence and the application was complete for purposes of MCL 500.3172(3). The Court made these important comments:

“It is debatable whether, in all cases, an applicant has submitted to the MAIPF a completed application by employing plaintiff’s approach of attaching a police report and medical records to an application and merely referring to those documents without providing responsive answers. However, the Supreme Court in Griffin [v Trumbull Ins Co, 509 Mich 484 (2022)] implicitly held that a claimant is not solely responsible for providing all the information necessary to determine eligiblity for benefits by recognizing that a claimant and insurer have reciprocal duties to investigate a claim and determine the priority of insurers. Cit om. Reading MCL 500.3172 and MCL 500.3173a together in light of Griffin, the onus is on the MAIPF to tell a claimant what it needs to do to complete its application and recover benefits.. The no-fault act contains a two step process for a claimant to receive PIP benefits through the MAIPF. A claimant must, first, complete an application on a form created by the MAIPF and, second, provide reasonable proof of loss establishing that there are claims that the MAIPF is liable to pay. Cit om. MCL 500.3172(3) proves that the MAIPF or the insurer it assigns shall provide to claimants in writing the materials required to establish reasonable proof of loss within 60 days of receiving an application. Plaintiff’s application was complete because the MAIPF never told plaintiff to take any additional steps to fill out its application and, through the efforts of both parties, the MAIPF gained all the information necessary to determine the MAIPF was required to pay plaintiff’s claim.”

So assigned claims applicants should still take care to complete the MAIPF/MACP application. But the MAIPF/MACP also has an obligation to investigate once they receive the application.

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MILLER & TISCHLER NEWS

M&T is pleased to report that the following long time attorneys at the firm have joined Wayne and Milea as partners:

Kevin McNeely

Andrew Horne

Martin Hogg

Amanda Winagar

We are so pleased to recognize their long years of hard work and expertise!