Michigan Court of Appeals; Docket #344272; Published
Judges Ronayne Krause, Kelly, and Tukel; Authored
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
In this 2-1 published decision authored by Judge Tukel (Judge Ronayne Krause concurring in part and dissenting in part), the Court of Appeals affirmed the trial court’s summary disposition order dismissing the plaintiff’s first-party action against both Trumbull Insurance Company, his own insurer, and the Michigan Assigned Claims Plan. The Court of Appeals held that the plaintiff, Willie Griffin, failed to act with reasonable diligence to identify the highest-priority insurer for payment of his no-fault PIP benefits after he was involved in a motor vehicle collision while driving his motorcycle, and that the general rule that “lower-priority insurers are responsible for the payment of benefits when higher-priority insurers cannot be identified” did not apply. The Court of Appeals further held that the MACP was not required to pay plaintiff’s PIP benefits under MCL 500.3172(3) because there was never actually a priority dispute between Trumbull and Harleysville Insurance Company, the insurer Griffin failed to identify.
Griffin was injured after a truck merged into his lane while he was driving his motorcycle. In an attempt to avoid the truck, Griffin crashed his motorcycle. Griffin ascertained the truck driver’s name, telephone number, and residential address, and had his attorney send a letter to the truck driver informing the truck driver that Griffin intended to take legal action. Griffin also informed Trumbull, his insurer, of the collision, but Trumbull refused to pay Griffin’s PIP benefits, arguing that the insurer of the truck driver was higher in priority. Approximately 11 months after the crash, Griffin retained an investigation firm in an attempt to identify the truck driver’s insurance provider, but the investigation firm only attempted to discover the truck driver’s personal insurance provider, not the insurance provider of the company for which he was driving on the night of the crash. Approximately 16 months after the crash, Trumbull hired its own investigator, who located the truck driver and issued him with a subpoena. At a subsequent deposition, the truck driver informed Trumbull that the insurer of his truck at the time of the crash was Harleysville. In Griffin’s first-party action against Trumbull and the MACP, the trial court granted summary disposition in favor of both Trumbull and the MACP, noting, as to Trumbull, that Griffin could have identified the highest-priority insurer, Harleysville, within one year of the collision had he exercised “reasonable diligence,” and, as to the MACP, that there was never actually a priority dispute between Trumbull and Harleysville for purposes of MCL 500.3172(3), because Griffin never filed a claim against Harleysville. Thus, the MACP was not required to assign Griffin’s claim.
The Court of Appeals affirmed the trial court’s summary disposition orders in favor of both Trumbull and the MACP. As for Griffin’s claim against Trumbull, the Court of Appeals noted that, as a general rule, “lower-priority insurers are responsible for the payment of benefits when higher-priority insurers cannot be identified” within one year of the accident. The Court determined, however, that Griffin could have identified the highest priority insurer, Harleysville, within one year of the crash, had he exercised reasonable diligence. Since he failed to do so, Trumbull was not liable for his PIP benefits.
"Frierson did not hold that the general rule applies if a higher-priority insurer could not be identified within a reasonable time or through reasonable efforts. Rather, Frierson, simply holds that the general rule applies if a higher-priority insurer cannot be identified. As such, Frierson calls for a binary analysis that asks only whether a higher-priority insurer is identifiable. In this case, Harleysville was a higher-priority insurer than Trumbull, and the undisputed facts establish that Harleysville could have been, and in fact actually was, identified. Frierson does not take into consideration the effort required to identify a higher-priority insurer such as Harleysville. Thus, due to the simple fact that Harleysville was identifiable, the general rule does not apply and plaintiff cannot collect PIP benefits from Trumbull, because Harleysville was a higher-priority insurer. See Frierson, 261 Mich App at 738. Consequently, while the trial court erred to the extent it considered whether Harleysville could have been identified with “reasonable diligence,” the trial court still reached the right result for the wrong reason. Accordingly, the trial court’s decision to grant summary disposition to Trumbull is affirmed. See Lane v KinderCare Learning Centers, Inc, 231 Mich App 689, 697; 588 NW2d 715 (1998) ('[T]his Court will not reverse where the trial court reached the right result for the wrong reason.')."
As for Griffin’s claim against the MACP, the Court of Appeals noted that, MCL 500.3172(3) obligates the MACP to assign a claim “if the obligation to provide personal protection insurance benefits cannot be ascertained because of a dispute between 2 or more automobile insurers concerning their obligation to provide coverage.” In this case, however, there was no dispute between Harleysville and Trumbull, because no claim was ever made against Harleysville.
"The word 'dispute' is defined as 'to engage in argument: debate,' 'to struggle against: oppose,' and 'to contend over.' Webster’s Collegiate Dictionary (11th ed). Harleysville has not taken any part in this case and no evidence has been presented showing that Harleysville refused to provide plaintiff with PIP benefits. Consequently, even though Harleysville is undoubtedly the highest-priority insurer in this case and Trumbull argues that Harleysville, not Trumbull, should provide plaintiff with PIP benefits, there is no 'dispute' in this case 'between 2 or more automobile insurers concerning their obligation to provide coverage or the equitable distribution of the loss.' MCL 500.3172(3). As applicable here, any disagreement between Harleysville and Trumbull is purely academic and theoretical, as no claim ever was made against Harleysville. Harleysville has not actually disagreed, and given its status as a non-party, could not disagree, with Trumbull’s argument in this case that Harleysville is the highest-priority insurer and that it should provide PIP benefits to plaintiff. Accordingly, because there is not an actual dispute between two or more insurers, applying MCL 500.3172(3)’s clear and unambiguous language as written, we conclude that subsection (3) simply does not apply to the facts and circumstances of this case. Accordingly, the trial court correctly dismissed plaintiff’s claim against the MACP."
Judge Ronayne Krause concurred with the majority's holding regarding the MACP, but dissented from the majority's holding regarding Trumbull. She agreed with the majority that Frierson v West American Ins Co, 261 Mich App 732 (2004) stands for the following proposition: "if a higher priority insurer 'cannot be identified,' then the 'general rule' regarding insurer priority applies." However, she noted that, "[i]n Frierson, the parties simply agreed that no higher priority insurer could be identified." Thus, she argued that Frierson provides no "authority, guidance, or insight into what it means to be 'identifiable,' " and that the majority erred in reading Frierson as creating an "absolute impossibility" standard for determining when a higher priority insurer " 'cannot be identified.' " Such a standard, she noted, would ideally come from either the Supreme Court or the Legislature, but if the Court of Appeals were to create one, she argued that it would be most appropriate and consistent with the no-fault act for it to be a "due diligence standard." In this case, she believed that, "to the extent [Griffin] was obligated to search for a higher-priority insurer as a precondition to receiving no-fault benefits from his insurer of default priority, [he] exercised the requisite due diligence in carrying out that search."
"Initially, I agree with the majority that Frierson sets forth a conditional test: if a higher- priority insurer 'cannot be identified,' then the 'general rule' regarding insurer priority applies. See Frierson, 261 Mich App at 738. However, I disagree that Frierson provides any authority, guidance, or insight into what it means to be 'identifiable.' In Frierson, the parties simply agreed that no higher-priority insurer could be identified. Id. at 737. No actual analysis was undertaken. Indeed, if the Court had addressed whether any party made adequate efforts to locate a higher- priority insurer, that analysis would have been dicta. Additionally, the Court in Frierson was faced with a question of whether the injured plaintiff’s own insurer or the MACP was liable for payment of benefits, not whether the plaintiff should receive benefits or receive nothing. The holding in Frierson was based on the purpose of the no-fault act as described by our Supreme Court: to ensure that persons injured in motor vehicle accidents receive benefits and to impose primary responsibility for paying those benefits on the person’s own insurer by default. Id. at 737-738, citing Parks v Detroit Auto Inter-Ins Exch, 426 Mich 191, 204; 393 NW2d 833 (1986). Frierson did not create or identify an 'absolute impossibility' standard, it merely applied longstanding legal principles to a situation in which identifying another insurer happened to be absolutely impossible.
. . .
Here, the majority crafts an 'absolute impossibility' standard out of whole cloth. No such standard was created or applied in Frierson, and such a standard contravenes the purposes of the no-fault act. No-fault claimants are not required to prove that a higher-priority insurer is unavailable, and insurers of default priority may not delay or refuse to pay a claim. Borgess Med Ctr v Resto, 273 Mich App 558, 568-576; 730 NW2d 738 (2007), vacated on other grounds and judgment and concurring opinion affirmed 482 Mich 946 (2008). If any standard for determining when or how a higher-priority insurer “cannot be identified” is to be crafted, it would ideally come from the Legislature or from our Supreme Court. However, were this Court to create a standard nonetheless, it would be most consistent with the purposes of the no-fault act to require a claimant to exercise due diligence to look for a higher-priority insurer. The due-diligence standard is a familiar one, and it 'means undertaking reasonable, good-faith measures under the circumstances, not necessarily undertaking everything possible.' Ickes v Korte, 331 Mich App 436, 443; 951 NW2d 699 (2020). Such a standard would at least not undermine the purposes of the no-fault act."