Michigan Court of Appeals; Docket # 330369; Unpublished
Judges M.J. Kelly, Murphy and Ronayne Krause; Unanimous, per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
One-Year Notice Rule Limitation [§3145(1)]
One-Year Back Rule Limitation [§3145(1)]
Required Content of Notice/Sufficiency of Notice [§3145(1)]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s grant of summary disposition for defendant City of Detroit (“City”) because plaintiff Maria Perkins (“Perkins”) did not commence her action within the one-year statute of limitations in MCL 500.3145(1), nor provide the City sufficient notice of her injuries to satisfy the notice-of-injury exception to the statute of limitations. Moreover, Perkins failed to adequately rationalize her argument on reconsideration that the City’s bankruptcy filing tolled the statute of limitations, thereby rendering her complaint timely.
The plaintiff in this case, Maria Perkins, was injured while traveling on a bus owned by defendant City of Detroit on June 11, 2013. The Detroit Fire Department EMS Division was dispatched to the scene of the accident, and generated a report which included the following information:
plaintiff’s various vital signs and physical status; the specific care dispensed by EMS personnel; plaintiff’s age, gender, race, address, phone number, social security number, and driver’s license number; and information concerning the location of the accident.
On June 2, 2014—almost one full year post-accident—Perkins submitted an action for no-fault benefits to the Michigan Assigned Claims Facility, but was deemed ineligible to receive benefits from the MACF. On December 22, 2015—15 months post-accident—Perkins filed the instant action against the City of Detroit, alleging negligence and a claim for PIP benefits. The City moved for summary disposition, arguing that Perkins had neither filed the lawsuit against, nor served notice-of-injury upon, the City within one year of the accident. The City then filed a supplement to its motion, contending that Perkins failed to file a timely proof of claim to preserve her action against the City, which had filed for Chapter 9 Bankruptcy on July 18, 2013 (an automatic stay went into effect for all civil claims on July 18, 2013, and the United States Bankruptcy Court for the Eastern District of Michigan, Southern Division had “established a deadline of February 21, 2014, for filing a proof of claim to preserve any and all claims against the city”).
In response, Perkins argued that she applied for benefits from the MACF and not the City because the City was in bankruptcy, ergo “‘medical treatment that [Perkins] required would not be timely paid by [the city] and so Plaintiff was effectively a de facto uninsured accident victim.’” Plaintiff also argued that the accident report generated by the Detroit Fire Department EMS Division satisfied the notice-of-injury exception to the one-year statute of limitations. The trial court disagreed, and granted summary disposition for the City. In her motion for reconsideration, then, “[plaintiff] flushed out her bankruptcy argument, contending that, pursuant to 11 USC 108(c), the automatic stay had tolled the one-year statute of limitations in MCL 500.3145(1), rendering her action timely.”
As to the issue of the notice-of-injury exception, the Court of Appeals found that the EMS report in and of itself was not sufficient to toll the statute of limitations. The Court analogized this fact pattern to that in Perkovic v Zurich American Insurance Company, 312 Mich App 244 (2015), in which it was determined, essentially, that only “a letter or written notice form . . . that would alert defendant to the possible pendency of a no-fault claim” satisfies the notice-of-injury exception. Other documents, even those containing all the information outlined 500.3145(1), do not. The Court reasoned further:
However, under the analysis and reasoning in Perkovic, the city’s investigation report cannot be viewed as alerting the city of the possible pendency of a no-fault claim by plaintiff. If receipt by an insurer of medical records and bills containing information concerning an injured person’s name and address and the time, place, and nature of the injury does not suffice as being indicative of a possible claim, we do not see how the investigation report in this case can be deemed to satisfy MCL 500.3145(1). Preparation of the investigation report was a perfunctory procedural exercise undertaken by the city, absent any express reference in the document to insurance, policies, or possible no-fault claims. The context in which the investigation report was prepared did not necessarily suggest that no-fault claims were on the horizon with respect to all of those individuals identified in the report as having been injured. Some of those injured may have had their own personal no-fault insurance policies, which would have placed the city’s coverage second in priority. See MCL 500.3114(1) and (2). And plaintiff, herself or through counsel, did not supply any timely written communication about the accident to the city, let alone timely correspondence indicating a possible no-fault claim. While we question whether the analysis in Perkovic requiring written notification of a possible claim, going beyond the insurer’s mere receipt of the information outlined in MCL 500.3145(1), is consistent with the plain language of the statute, the opinion is binding and must be followed by this panel. MCR 7.215(J)(1). 9 In sum, pursuant to governing law, we hold that plaintiff was not entitled to utilize the notice-of injury provision in MCL 500.3145(1) in her effort to avoid the standard one-year limitations period.
The Court declined to resolve the issue raised by plaintiff on reconsideration (and only on reconsideration)—that federal law allowed her to file a lawsuit within “‘30 days after notice of the termination or expiration of the stay’”—because plaintiff’s argument was “not adequately and properly developed, resulting in a waiver of the issue.”
