Michigan Court of Appeals; Docket No. 211336; Unpublished
Judges Doctoroff, Holbrook, Jr., and Smolenski; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Allowable Expenses: Reasonable Necessity Requirement [3107(1)(a)]
General Rule of Priority [3114(1)]
Exception for Occupants [3114(4)]
Recoupment Between Equal Priority Insurers [3115(2)]
Bona Fide Factual Uncertainty / Statutory Construction Defense
Obligations of Admitted Insurers to Pay PIP Benefits on Behalf of Nonresidents Injured in Michigan [3163(1)]
TOPICAL INDEXING:
Private Contract (Meaning and Intent)
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals issued several rulings regarding the obligations of a foreign insurer to pay no-fault PIP benefits under section 3163 of the Act. First, the court held that when defendant filed a certificate under section 3163 of the no-fault statute, it became liable to pay Michigan no-fault PIP benefits to its foreign resident insured, even though the foreign resident owned a vehicle located in Michigan that was insured under a Michigan no-fault policy. The Michigan vehicle was not involved in the accident. Rather, the plaintiff (a resident of Florida) was injured in an accident in Michigan while driving a vehicle registered in Florida and insured by defendant. In rejecting defendant’s argument, the court stated, “Defendant cites no support for the proposition that the existence of a Michigan insurer somehow negates its obligations under MCL 500.3163. Defendant’s mere statement of an argument without citation to authority is insufficient to raise the issue for appellate review.”
Second, the court rejected defendant’s argument that it was not required to pay no-fault benefits to plaintiff because defendant was not the highest priority insurer under section 3114(1). The court stated that this section did not affect the defendant’s obligations to pay benefits under section 3163. Moreover, the court stated that section 3114(4) was actually the priority section that controlled priority in this case. Under that particular section, priority liability for payment of PIP benefits resides with “the insurer of the owner or registrant of the vehicle occupied,” which in this case, was the Florida vehicle insured by defendant. In this regard, the court stated:
“Defendant’s arguments reads a requirement into the statute that simply does not exist. The first sentence of MCL 500.3114(1) does not establish priority of insurance coverage. Rather, that sentence simply provides that a personal injury policy covers not only the named insured, but the named insured’s spouse and any relatives who live with the named insured.... Contrary to defendant’s argument, insurance priority is established by MCL 500.3114(4), which provides that the highest priority is on the insurer of the owner or registrant of the vehicle occupied.”
Third, the Court of Appeals rejected defendant’s argument that plaintiff should not be entitled to Michigan no-fault benefits because she did not contract for those benefits, did not pay a premium for them, and that the maximum no-fault benefits plaintiff could obtain under her Florida insurance policy was $10,000. In rejecting this argument, the Court of Appeals stated that defendant offered no authoritative support and that defendant’s policy arguments are not compatible with the unambiguous requirements of the Michigan No-Fault Act. The court further noted that the defendant was under no obligation to file a 3163 certificate and did so presumably because it was to the benefit of defendant to be certified.
Fourth, the Court of Appeals rejected defendant’s argument that it was only liable to pay 50% of plaintiff’s no-fault PIP benefits, with the other 50% being the obligation of the Michigan no-fault insurer who insured plaintiff’s uninvolved Michigan vehicle. In rejecting this argument, the Court of Appeals noted that section 3115(2) does not authorize an insurer who is in equal priority with another insured to pay only 50% of the benefits. Rather, this section contemplates that an insurer in equal priority with another will pay full benefits to plaintiff and seek partial recoupment from the other insurer.
Fifth, the Court of Appeals rejected defendant’s argument that defendant was only responsible for those medical expenses which were “reasonably necessary to plaintiff’s recovery.” Defendant based this argument on language appearing in Nelson v DAIIE (Item No. 731]. In rejecting this argument, the Court of Appeals held that section 3107(1)(a) which causes an insurance company to pay for all reasonable charges for reasonably necessary products, services and accommodations “for an injured person’s care, recovery or rehabilitation.” Therefore, medical expenses which are incurred to alleviate pain are equally as compensable as those medical expenses which relate to a person’s care or those that could produce a recovery.
Sixth, the Court of Appeals held that the defendant had not preserved its argument that plaintiff was not an out-of-state resident, but rather was a resident of Michigan. Defendant never raised this in the court below nor preserved it for appeal.
Finally, the Court of Appeals held that defendant was not liable to pay attorney fees under section 3148 of the statute because testimony from one of plaintiff’s physicians created a bona fide factual uncertainty as to whether plaintiff’s chiropractic care may be aggravating plaintiff’s problem and thus contraindicated. Because a bona fide factual uncertainty existed, an award of attorney fees was not proper.
