Michigan Court of Appeals; Docket #260693; Unpublished
Judges Murphy, White and Smolenski; 2-1 (Judge White concurring); per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
One-Year Back Rule Limitation [3145(1)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam opinion the Court of Appeals reversed summary disposition for defendants, finding that plaintiff’s lawsuit for PIP benefits filed within one-year of the accident as required by MCL 500.3145(1) was timely, even though plaintiff did not give defendant 30 days notice that this suit would be filed as required by defendant’s no-fault insurance policy. In so holding, the court reasoned that plaintiff filed the law suit within one year of the accident as required by § 3145(1), and, although an insurer may require written notice to be given as soon as practicable after a motor vehicle accident, under Koski v Allstate Insurance Company, 456 Mich 439 (1998), an insurer who seeks to avoid responsibility for failure to receive written notice must show actual prejudice, which defendant was unable to show. In this regard, the court stated:
“Here, the notice and proof of claim language at issue in the insurance contract does not relate to giving the insurer timely information in order to allow proper investigation of a claim so as to protect the insurer from questionable claims, nor does it relate to any right of the insurer to deny benefits and cut off responsibility because of a lack of notice. Rather the pertinent notice and proof of claim language is simply a condition precedent to filing suit. We conclude that evaluation of ‘prejudice’ is equally applicable in this context and that there is a lack of prejudice. We are unaware of any no-fault statutory provisions that mandate notice and proof of claim prior to filing an action. Indeed, MCL 500.3145(1) merely requires an insured to file suit within a year of the accident, and the notice language of the statute comes into play only where an insured files an action beyond the one-year period following the accident and seeks refuge under tolling principles. . . . We fail to see the harm or prejudice to defendants by permitting plaintiff to file suit without initially providing notice and a proof of claim. If defendants had no objection to providing PIP benefits as demanded in the complaint, they could have resolved the matter without resort to further unnecessary litigation. If defendants objected to providing PIP benefits as demanded in the complaint, then any earlier notice or claim submission would have been fruitless. Moreover, we cannot imagine that insureds in general will forgo providing notice and proof of claims to insurers before litigating in light of our holding.”
Judge White concurred in a separate opinion in order to point out that because the defendant’s 30-day notice provision does not comply with the No-Fault Act, it is unenforceable. In this regard, she stated:
“I write separately to observe that because the contractual provision at issue is inconsistent with MCL 500.3145, and limits the recovery otherwise required by the no-fault act, it is impermissible and unenforceable.”
