Michigan Supreme Court; Docket No. 93773; Published
Opinion by Justice Levin; 4-3 (with Justices Boyle, Riley, and Brickley Dissenting)
Official Michigan Reporter Citation: 444 Mich 301; Link to Opinion 
STATUTORY INDEXING:
Coordination with Other Health and Accident Medical Insurance [§3109a]
Coordination with HMO and PPO Coverages [§3109a]
TOPICAL INDEXING:
Legislative Purpose and Intent
CASE SUMMARY:
In this 4-3 Opinion by Justice Levin (Justices Boyle, Riley and Brickley concurring in part and dissenting in part), the Supreme Court interpreted the coordinated benefits language of §3109a to require that a no-fault insured must seek all available medical care from the insured's health insurer, where the no-fault and health care coverages are coordinated, and where the health insurer is also a health care provider in the form of an HMO. Under such circumstances, the health insurer/HMO is primary and where the health care is available from the HMO, the insured must seek out this care and the no-fault insurer is not obligated to pay for the expense of the care.
The Court of Appeals in a 2-1 decision had held that the insured under a coordinated no-fault policy is not required to seek all possible treatment from physicians working for his/her HMO plan before being entitled to submit medical expenses to the no-fault insurer, where the no-fault coordination of benefits clause did not require the injured person to seek treatment from a member of the HMO organization as a prerequisite to obtaining no-fault medical benefits (see Item No. 1538). The majority in the Supreme Court decision, however, held that a no-fault insurer is not subject to liability for medical expense that the insured's health care insurer is required, under its contract, to pay for or provide.
Tousignant's employer provided her with health care insurance through Health Alliance Plan (HAP), a health maintenance organization. Tousignant also chose to coordinate her no-fault insurance with other health coverage as permitted under §3109a. The coordination provision in the Allstate no-fault policy provided that when the insured coordinates health care coverages, Allstate shall not be subject to liability for medical expense. Tousignant was first treated through her HMO, and then later decided to be treated by dentists and doctors who were not members of the HMO. The expenses of this other treatment was not covered by the HMO and plaintiff submitted her claim for payment of these expenses to Allstate. Plaintiff did not assert that the medical care she received from the non-HMO doctors was unavailable through her HMO. Tousignant claimed on appeal that neither the no-fault policy nor §3109a states that a no-fault insured must seek medical care from a health insurer who is a health care provider.
The Supreme Court held in this case that "the legislative policy that led to the enactment of §3109a requires an insured who chooses to coordinate no-fault and health coverages to obtain payment and services from the health insurer to the extent of the health coverage available from the health insurer." The Supreme Court held that the rationale in Federal Kemper Insurance Company v Health Insurance Administration Inc, 424 Mich 537 (1986), making health insurance primary over no-fault insurance where the no-fault policy is coordinated, is the same whether the dispute is between a no-fault insurer and the health insurer, or between the insured under a no-fault policy and the no-fault insurer. If a no-fault insured who has chosen to coordinate no-fault and health coverages could recover from the no-fault insurer medical expense obtainable from the health insurer, the legislative purpose of eliminating duplicative health care coverage would be defeated. The court held that HMO coverage is "health coverage" within the meaning of §3109a, even though HMO coverage consists of providing services rather than paying bills rendered by health care providers. The court also noted that the no-fault insured may retain a wide choice of physicians and facilities by not coordinating automobile insurance coverage, but where the insured obtains health insurance through an HMO and also obtains coordinated no-fault coverage, the no-fault insured has, in effect, thereby agreed to relinquish choice of physician and facility.
The Supreme Court majority also interpreted the language of Allstate's policy with regard to coordination with other health insurance, where the policy referred to expenses "paid, payable or required to be provided" to or on behalf of the named insured. The court noted that the language "provided or required to be provided" as utilized in the governmental benefits setoff language of §3109(1) and is similar to the language used in the Allstate policy concerning coordination of benefits. The court construed the words "required to be provided" as functionally equivalent to the reference in §3109a to coordination of "benefits payable." The court held that in deciding whether health care was available from the HMO for the services rendered, the focus should be on the HMO contract as it is applied in practice. The availability of services thus depends on what the contract means as applied in practice, a question of fact as well as of legal construction of a contract document Here, Tousignant did not contend that the HMO would not or could not provide the medical care she needed. Nor is this a case in which it is claimed that the quality of the available care was such that it can be said that the benefit was not available.
Thus, the Supreme Court majority held that where there is no claim mat the health insurer would not or could not provide the necessary medical treatment, there is no basis for a finding that the benefits were not available — not "payable" or "required to be provided" from the health insurer.
Justice Boyle, concurring in part and dissenting in part, and joined by Justices Riley and Brickley, concurs in the majority's result but disagrees with the majority's rationale for the reasons set forth in her separate opinion in Profit v Citizens Insurance Company (see Item No. 1632, below).
