Michigan Court of Appeals; Docket #360502; Unpublished
Judges Markey, Murray, and Feeney; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
2019 PA 21 – Retroactivity
In this unanimous, unpublished, per curiam decision (Feeney, concurring), the Court of Appeals affirmed the trial court’s order granting Plaintiff Danny W. Thomason’s motion to compel compliance with a consent judgment that he entered into with Defendant Allstate Insurance Company (“Allstate”) in 2012. The Court of Appeals held that under Andary v USAA Cas Ins Co, ___ Mich App ___ (2022), Allstate could not apply the reimbursement limitations set forth in MCL 500.3157 to Thomason’s claim for PIP benefits, which arose out of a motor vehicle accident that occurred in 1995.
In 1995, Danny Thomason, then five years old, suffered a catastrophic brain injury as a result of a motor vehicle accident. Thomason’s mother had bought and paid for an insurance policy from Allstate, obligating Allstate to pay for the around-the-clock attendant care Thomason required as a result of his brain injury. In 2011, Allstate started to dispute the hourly rate being charged by Thomason’s care providers, and in 2012, the parties entered into consent judgment in which Allstate agreed to pay $16 per hour for Thomason’s care, and which provided,
‘[i]f legislation is enacted which imposes limits on the number of hours and/or the hourly rate payable to family care givers, such as Danny W. Thomason and Michelle Hoffman, then Allstate Insurance Company shall be authorized to immediately adjust the number of hours paid and/or the hourly rate paid to conform to the legislative enactment, assuming such legislation is deemed to affect ongoing claims which predate the effective date of the legislation. If there is a disagreement as to retroactivity, this Court will decide that issue on motion by any party . . . .’
On June 11, 2019, the Legislature enacted sweeping changes to the Michigan No-Fault Act, creating a fee schedule for the first time and establishing other reimbursement limitations. The fee schedule and reimbursement limitations—set forth in MCL 500.3157—were set to take effect on July 1, 2021, and thus on June 30, 2021, Allstate sent Thomason a letter notifying him that it would be applying them to his claim. Thomason then filed suit against Allstate, and thereafter a motion to compel compliance with the 2012 consent judgment, arguing (1) that Allstate’s application of MCL 500.3157 to Thomason’s claim would violate the Contracts Clause of the Michigan Constitution and (2) that the Legislature did not intend for MCL 500.3157 to apply retroactively, or to claims arising out of motor vehicle accidents that occurred prior to the legislative amendments’ enactment date. In response, Allstate argued that the Legislature did intend for MCL 500.3157 to apply retroactively, and that the consent judgment explicitly allowed for Allstate to apply legislation such as that passed on June 11, 2019 to Thomason’s claim for PIP benefits. The trial court agreed with Thomason and granted his motion to compel.
The Court of Appeals affirmed the trial court’s order granting Thomason’s motion to compel, holding that under Andary v USAA Cas Ins Co, insurers such as Allstate cannot apply MCL 500.3157 to PIP claims arising out of accidents that occurred before the statute’s enactment. The Andary Court held that the Legislature did not express an intent for MCL 500.3157 to be so applied, and with respect to Allstate’s argument in this case that the consent judgment explicitly allowed it to apply future legislation such as MCL 500.3157, the Court noted that the consent judgment only allowed Allstate to apply “legislation [that] is deemed to affect ongoing claims which predate the effective date of the legislation”—which MCL 500.3157 was expressly deemed not to do in Andary.
“Allstate’s arguments are precluded by this Court’s decision in Andary, which held that persons injured in motor vehicle accidents before the Legislature enacted 2019 PA 21 and 2019 PA 22 were not subject to the limited PIP benefits under the amendments because ‘the Legislature did not clearly demonstrate an intent for the amendments to apply retroactively to persons injured in pre-amendment accidents.’ Andary, ___ Mich App at ___; slip op at 1. . . .
And, in keeping with the conclusions of Andary, Allstate’s argument that the trial court’s conclusions violated the consent judgment is without merit. Although the consent judgment considered future legislation imposing limitations on the number of hours or the hourly rate payable to attendant care service providers and permitted Allstate to adjust DLT’s care plan in conformity, the judgment unambiguously conditioned any adjustments on a finding that ‘such legislation is deemed to affect ongoing claims which pre-date the effective date of the legislation.’ Thus, the trial court did not err by ordering Allstate’s compliance with the consent judgment, as Andary explicitly rejected 2019 PA 21’s application to pre-amendment injuries.”