I. CASE LAW DEVELOPMENTS: TRUE CARE PHYSICAL THERAPY V ACIA. SERVICE PROVIDERS ARE NOT REQUIRED TO USE THE UTILIZATION REVIEW PROCESS

It is well known that the 2019 reforms included a brand new Utilization Review (UR) process. At the same time, the 2019 confirmed that service providers have a right to directly sue no-fault insurers. Among the many significant issues under the 2019 reforms is whether service providers are required to use the UR process before seeking to directly sue the insurer. The issue is important for a number of reasons. One important reason is the almost universal disenchantment with the UR process as a method for resolving insurance disputes. The process overwhelmingly results in decisions favorable to the insurance industry.

The issue has now been addressed in True Care Physical Therapy v ACIA, a published (i.e., precedential) decision of the Court of Appeals. The Court held:

“At its core, a utilization review is an ‘initial evaluation’ of the appropriateness of the level and quality of treatment. Cit om. The cause of action that the Legislature provided in MCL 500.3112 [i.e., the right of direct action] is not preconditioned on the permissive administrative appeal of that initial evaluation. The plain language of the no-fault act demonstrates that the Legislature intended alternative pathways for determining whether care was appropriate.”

The Court reasoned that the statutory and regulatory language providing for UR is permissive, i.e., that providers may  use the UR process, but they are not required to do so:

“Read together, the unambiguous language of MCL 500.3157a(5) [the UR provision], its related regulations, and MCL 500.3112 [the direct action provision] compel a conclusion that the administrative appeal provided under [the UR sections) is permissive, not mandatory. The text of the no-fault act plainly does not require administrative appeal of a utilization review as a precondition to suit under MCL 500.3112.”

This case provides extremely important clarification to and confirmation of our ability to bring service provider cases.

II.             RECENT MILLER & TISCHLER VERDICTS

NO-FAULT PIP VERDICT WITH PENALTIES             

Martin Hogg recently won a no-fault PIP trial in Wayne County Circuit Court for a Metro Detroit Hospital. The total judgment was for $581,479.61. Of this amount, $226,208.82 was for no-fault interest and attorney fees. The balance was for medical bills.

It should be clear that there was never a dispute over whether the patient was entitled to no-fault coverage. Rather, the dispute was one of “priority”; i.e., which of two insurers was responsible for payment. The dispute centered around whether the Hospital’s patient lived with his mother at the time of his significant motor vehicle accident. The patient’s mother’s no-fault insurance policy with Bristol West would cover the patient if he was found to be residing with his mother at the time of the accident. Bristol West disputed this was the case and refused payment of the Hospital’s claims for over two years. Following a 3-day trial in April of 2023, the jury found the patient to be living with his mother at the time of the accident and therefore the Hospital was entitled to benefits from Bristol West.

Because the dispute was only over priority, Martin petitioned the Court for no-fault interest and attorney fees under the no-fault act. At a June 15, 2023 hearing, the Court awarded the Hospital an additional $141,698.82 in no-fault interest for the Hospital’s claims being “overdue,” and $84,510.00 in attorney fees because Bristol West had been unreasonable in their refusal to pay the Hospital’s claims. Bristol West should have paid benefits and disputed the issue of priority with other potential insurers. It is remarkable how frequently no-fault insurers continue to fight in this manner in priority disputes. When they do, they are exposing themselves to substantial penalties as happened in this case.

TRUCKING NEGLIGENCE VERDICT

Wayne Miller, Milea Vislosky and Amanda Winagar just received a verdict for $1.35 million in Ingham County Circuit Court. In this case, a trucker made an improper right turn in violation of the Michigan Commercial Drivers License Manual. The CDL manual requires truckers to keep their trailers close to the curb as they make a right turn. The manual specifically states:

“Don't turn wide to the left as you start the turn. A following driver may think you are turning left and try to pass you on the right.”

The Defendant in our case turned wide to the left and failed to close off the through lane. Just as predicted in the CDL Manual, a trailing car tried to pass on the right. When the trucker began to turn right back into the lane he had just vacated, the car driver panicked, and veered off the road. The car then struck our client who was lawfully walking on the sidewalk adjacent to the road. Our client suffered a badly fractured ankle, 3 fractures in the neck and back, and a mild traumatic brain injury. The jury found that the client suffered significant damages to date, and will continue to suffer damages into the future. 

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MILLER & TISCHLER NEWS

Wayne Miller has been appointed to the office of Treasurer of the Michigan Association for Justice (MAJ), for the 2023-2024 term.

Milea Vislosky has been named to the Board of Directors of the Detroit Bar Association.

Wayne Miller spoke at the 2023 State Bar Institute of Continuing Legal Education No-Fault Summit in April. The topic was the Michigan Catastrophic Claims Association and its effect on no-fault claims and settlements.

Miller & Tischler is delighted to announce the return of former M&T partner Mark Schreier. Mark left the firm in 2013 as he and his wife moved out of state. They have now relocated back to Michigan. Mark will serve the firm in a variety of legal and administrative capacities. Welcome back Mark!