Michigan Court of Appeals; Docket No. 210649; Unpublished
Judges McDonald, Neff, and Smolenski; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Limitations Period for PPI Claims [§3145(2)]
Tolling of Limitations for Estoppel [§3145]
Proper Defendant [§3121]
Insurer’s Right to Penalty Attorney Fees for Fraudulent / Excessive Claims [§3148(2)]
TOPICAL INDEXING:
Equitable Estoppel
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Court of Appeals upheld dismissal of a property damage claim on the basis that plaintiff had failed to timely file the complaint within one year of the accident as required by section 3145(2) and denied plaintiffs contention that the insurance company should be estopped from asserting the statute of limitations by reason of Continental's "dishonored representations" that the claim would be satisfied after compliance with Continental's requirement that certain cleanup measures had been undertaken and completed.
The accident occurred in 1995, when a tractor-trailer overturned and spilled leaking fuel, thus contaminating nearby property owned by the plaintiff. The tractor-trailer was owned and operated by Werch Trucking and insured by Defendant Continental. Environmental companies were hired to engage in cleanup. After initial cleanup efforts, plaintiff conducted an investigation and submitted a claim to Continental asserting that additional cleanup action was necessary. Continental's adjuster responded that Continental would not engage in any settlement negotiations until the Michigan Department of Natural Resources had certified that there had been a "clean closure."
Thereafter, additional cleanup efforts were continued and plaintiff continued to maintain contact with Continental's adjuster. In September, 1995, less than one year following the accident, the Department of Natural Resources indicated agreement that there was no further remediation required, but in its letter did not make specific mention of "clean closure." Negotiations then continued between plaintiff and Continental, and plaintiff then in May, 1996, more than one year following the accident, filed a complaint against Werch for additional damages.
The trial court dismissed the claim against Werch on the grounds that the claim was governed by the Michigan No-Fault Act, and Werch was not a proper party defendant. The court held that the claim was required to be filed against Continental under the provisions of section 3121. Plaintiff amended his action, adding Continental to the lawsuit, and Continental then filed its motion for summary disposition based upon the one year statute of limitations contained in section 3145(2). Continental's motion was granted, and plaintiff appealed.
On appeal, plaintiff claimed that the trial court improperly dismissed the action against Werch, alleging that the "causal connection" between the initial tractor-trailer accident and the damages to his property had been severed by the intervening delay in cleanup efforts. Plaintiff claimed that due to the defendant's delay in cleanup, additional damages were caused, which gave plaintiff the right to sue Werch directly. The Court of Appeals rejected this claim, and held that the connection between the tractor-trailer accident and the damage suffered was significantly more than incidental or fortuitous, and therefore, plaintiffs damages arose from the ownership, operation, maintenance or use of a motor vehicle, and that plaintiff's claim was controlled by the No-Fault Act. The appropriate avenue of relief was to be found in section 3121(1), and the appropriate party defendant was Continental, the insurer.
Regarding the one year statute of limitations, there was no dispute that the action against Continental was filed more than one year following the date of the accident, and therefore, the one year statute of limitations applied.
Regarding plaintiffs claim that Continental should be estopped from asserting the statute of limitations, the Court of Appeals held that the doctrine of estoppel did not preclude Continental from asserting the statute of limitations in this case. The court held that regardless of whether the necessary "clean closure" letter had been secured from the Department of Natural Resources as requested by Continental, the plaintiff nevertheless considered all necessary work complete and presented Continental with a complete claim.
Therefore, unlike the Supreme Court decision in Cincinnati Insurance Company v Citizens Insurance Company, 454 Mich 263; 562NW2d 648 (1997), where the court did find that estoppel applied because the insurance company had requested delay in consideration of the claim until the entire claim could be presented, here, the plaintiff submitted a complete claim more than three and one-half months before the one year statute of limitations ran. The court did not believe that there was evidence that Continental could be said to have "strung plaintiff along" until passage of the one year limitations period of the No-Fault Act, by purposefully giving a misleading impression that "clean closure" was still forthcoming.
In a related matter, the Court of Appeals held that Continental was not entitled to actual attorney fees under 3148(2), which allows attorney fees where a claim submitted is "so excessive as to have no reasonable foundation." In this case, in view of the mediation award for almost three times Continental's settlement offer, the assertion that plaintiff s claim was excessive must fail.
