Michigan Court of Appeals; Docket # 313613; Unpublished
Judges Gleicher, Hoekstra, and O’Connell; 2-1 (with Judge Gleicher dissenting); Per Curiam
Official Michigan Reporter Citation: Not applicable; Link to Opinion 
STATUTORY INDEXING:
PIP Insurer Examinations for Physical and Mental Conditions [§500.3151]
TOPICAL INDEXING:
Case Evaluation – Accept/Reject in PIP cases
CASE SUMMARY:
In this 2-1 unpublished per curiam Opinion, the Court of Appeals affirmed the dismissal of a declaratory action concerning the payment of future no-fault PIP benefits brought by plaintiff, rejecting the contention that even though the case evaluation award was accepted by both parties and plaintiff’s claim was dismissed, it did not preclude the dismissal of an action to determine whether defendant Home-Owners Insurance Company was liable for those future payments.
Plaintiff was injured by a motor vehicle and sought no-fault PIP benefits from defendant. Defendant provided benefits for a time, but then stopped based on results of an independent medical examination. Eventually, the examiner was struck from defendant’s witness list, after which plaintiff filed a motion for summary disposition as to all claims, in addition to seeking declaratory judgment with regard to future no-fault PIP benefits. The trial court denied the motion for summary disposition for failure to file in a timely manner, but did not resolve the pending declaratory action. Soon after, the suit went to case evaluation. The panel’s evaluation of “$85,000 for accrued no fault benefits . . . [not including] any award for future allowable expenses that have been be incurred” was accepted by both parties, and the trial court subsequently dismissed the action pursuant to MCR 2.403(M)(1).
Plaintiff appealed the dismissal of the entire action, asserting that his request for declaratory judgment survived the resolution of the payment of past due no-fault PIP benefits and was thus wrongly dismissed. Stated another way, the acceptance by both parties of the case evaluation award meant that aspect of the case should have been dismissed; the declaratory judgment was a separate action that survived dismissal.
The Court of Appeals rejected this claim. In analyzing MCR 2.403(M)(1), the court found that the requirement that a judgment or dismissal of the suit would serve to dispose of all claims in the action, “[e]xcept for cases involving rights to personal protection insurance benefits under MCL 500.3101 et seq., for which judgment or dismissal shall not be deemed to dispose of claims that have not accrued as of the date of the case evaluation hearing,” meant that only claims concerning the future payment of no-fault PIP benefits would survive. It further contended that “[t]he second sentence of the rule, which contains the amendment [quoted supra], expresses no intent to modify the dismissal required by the first sentence. Therefore, the . . . rule still requires the dismissal of all claims upon both parties’ acceptance of the case evaluation award and the prompt payment of the award.” For this reason, all other claims associated with Plaintiff’s complaint, including the declaratory judgment action, did not survive once the case evaluation award was accepted by both parties and the case subsequently dismissed by the court.
In her dissenting opinion, presiding Justice Gleicher noted that her departure from the majority opinion stemmed from the fact that she did not believe that, upon accepting a case evaluation award, MCR 2.403(M)(1) precluded a plaintiff from seeking declaratory judgment regarding the payment of no-fault benefits yet to be incurred. Because the declaratory judgment sought by plaintiff directly concerned “rights to personal protection insurance benefits,” it fell squarely within the exception carved out by the Michigan Supreme Court to preserve the right of similarly situated plaintiffs to do so.
