Michigan Court of Appeals; Docket #360439; Unpublished
Judges Cavanagh, Servitto, and Garrett; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
2019 PA 21 – Retroactivity
Injunctive and Equitable Relief in PIP Cases
SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s order granting Plaintiff Brandon Buller a preliminary injunction against Defendant Titan Insurance Company (“Titan”), preventing Titan from applying the new No-Fault fee schedule to Buller’s claim for PIP benefits—which arose out of a motor vehicle accident in 1994—during the pendency of the case. Considering its recent decision in Andary v USAA Cas Ins Co, ___ Mich App ___ (2022), the Court of Appeals held that the trial court did not abuse its discretion by awarding a preliminary injunction against Titan, ordering that, for the remainder of litigation, Titan continue paying for Buller’s care at the rate the parties agreed upon prior to the 2019 amendments to the No-Fault Act.
Brandon Buller was catastrophically injured in a 1994 motor vehicle accident, after which he required 24-hour attendant care. Titan paid a per diem rate of $1,068 for Buller’s care prior to the 2019 amendments to the No-Fault Act, but beginning July 2, 2021, Titan began applying the new fee schedule to Buller’s claim, and reduced its per diem rate to $655.52. Buller then filed suit against Titan, seeking a declaration from the trial court that Titan could not apply the fee schedule retroactively, or, to his claim for benefits, which arose prior to the effective date of the amendments, and requesting a preliminary injunction requiring Titan to continue paying the pre-amendment, agreed-upon per diem rate while the matter remained pending. The trial court granted the preliminary injunction, and Titan appealed.
The Court of Appeals affirmed the trial court’s order granting the preliminary injunction, holding that the trial court did not abuse its discretion in issuing said order. Titan’s first argument was that rate reductions were required by the plain language of the amendments to the No-Fault Act—MCL 500.3157(7), specifically—but the Court noted that that argument was rejected in Andary, which featured “near-identical facts and arguments,” and was therefore controlling:
“Accordingly, the 2019 amendments do not apply retroactively to individuals whose injuries arose before their effective date, ‘even as to services provided after [their] effective date.’ Id. Plaintiff’s injury occurred in 1994, well before the 2019 amendments came into effect. The policy under which defendant now provides coverage was entered into before the amendments as well. Because this Court determined that there was no intent for retroactivity of the amendments, and held, regardless, ‘retroactive application violates the Contracts Clause of the Michigan Constitution[,]’ id., the amendments and their fee schedules are inapplicable to plaintiff’s benefits for his 1994 injury.”
The Court of Appeals then observed that there are four elements a party must establish in order to be granted a preliminary injunction—
“(1) the likelihood that the party seeking the injunction will prevail on the merits, (2) the danger that the party seeking the injunction will suffer irreparable harm if the injunction is not issued, (3) the risk that the party seeking the injunction would be harmed more by the absence of an injunction than the opposing party would be by the granting of the relief, and (4) the harm to the public interest if the injunction is issued. [Id. (quotation marks and citation omitted).]”
—before determining that Buller satisfied all four. Given the Andary decision, the Court found it likely that Buller would prevail on the merits; Buller’s dire health condition meant that he would suffer irreparable harm if the injunction were not issued, because his providers would no longer be financially able to provide him with the level of care he required; Buller would clearly be more harmed by the absence of an injunction—he would probably die—than Titan would be if an injunction were granted—in which it case, it would suffer financial harml; and there would be no harm to the public interest if a preliminarily injunction were to be granted in this case.
“As to the first factor, in light of this Court’s decision in Andary, the trial court correctly considered that there was a likelihood that plaintiff would prevail on the merits of his declaratory judgment action. As to the second factor, the trial court correctly determined that plaintiff, who is bed-bound, demonstrated that he would suffer irreparable harm if the preliminary injunction was not issued. Plaintiff requires 24-hour highly-skilled attendant care because of the nature of his injuries. Plaintiff presented an affidavit from his treating physician, Dr. Michael Yu, who stated that plaintiff requires around-the-clock care—at the practice level of a licensed practical nurse—which had been properly provided by the same attendant care providers for years and that any reduction in those services ‘would be devastating and life-threating’ and that plaintiff ‘would die without the prescribed care.’ As to the third factor, the trial court correctly determined that plaintiff demonstrated that he would be harmed more—his health and welfare were at risk—by the absence of an injunction than defendant would be by the granting of this equitable relief. As plaintiff argued, the risk to plaintiff was physical harm and death while, at most, defendant could be financially harmed. And as to the fourth factor, the trial court correctly concluded that there was no potential harm to the public interest if the preliminary injunction was issued. Again, a preliminary injunction merely preserves the status quo while the underlying matter is pending. See Hammel, 297 Mich App at 647-648.”
