Michigan Court of Appeals; Docket # 322024; Unpublished
Judges Sawyer, K.F. Kelly, and Fort Hood; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
On 5/25/2016, the Michigan Supreme Court directed the application for leave to appeal to be held in abeyance, pending the decision in Perkovic v Zurich American Ins Co; Link to Order
STATUTORY INDEXING:
One-Year Notice Rule Limitation [§3145(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving a claim for PIP benefits by a passenger in a rental car, the Court of Appeals held that a genuine issue of material fact existed regarding whether notice of plaintiff’s injury to Budget Rent A Car was sufficient to place PV Holding Corporation on notice under MCL 500.3145(1).
Plaintiff in this case was the passenger in a rental car involved in an accident, and sustained minor injuries. The driver of the rental car, plaintiff’s sister, filed an accident report with Budget Rent A Car. Plaintiff’s sister was given a claim number and allegedly told the report would be provided to the appropriate insurance carrier. Because plaintiff believed that defendant-Starr Indemnity insured a vehicle owned by plaintiff through a no-fault policy issued to her mother, plaintiff gave notice to Starr Indemnity of her injuries. When her claim was denied, plaintiff brought this action seeking PIP benefits. After it was determined that plaintiff did not reside with her mother, plaintiff added Budget Rent A Car as a defendant in the case, and later changed the defendant’s name to PV Holding. PV Holding moved for summary disposition, alleging it did not receive timely notice of plaintiff’s claim. PV Holding asserted the notice submitted by plaintiff’s sister did not sufficiently advise it of the injuries that were sustained. The trial court denied PV Holding’s motion, finding that its relationship with Budget gave it the requisite notice. The trial court further held that Starr Indemnity was entitled to summary disposition on its third-party complaint against PV Holding, and awarded Starr Indemnity $27,728.23.
The Court of Appeals held that a question of fact existed about whether Budget and PV Holding were the same legal entity for purposes of receiving notice under §3145(1). The court explained that while PV Holding had provided an affidavit stating it was not the same entity as Budget Rent A Car, plaintiff had offered sufficient evidence suggesting otherwise.
In this regard, the Court of Appeals invoked the doctrine of ostensible agency and said:
“For an ostensible agency to arise, the individual dealing with the agent must reasonably believe in the agent’s authority, the belief must occur because of some act or neglect by the principal, and the person relying on the agent’s apparent authority must not be guilty of negligence. … Agency presents a factual issue for the jury. … In her affidavit, [plaintiff’s sister] averred that Budget employees represented that her accident/incident report would be submitted to insurance, and the bottom of the form contained fax numbers for submission to insurance. PV Holding failed to present documentary evidence to contradict [plaintiff’s sister’s] contacts with Budget employees, although any contradiction would present a credibility issue for the jury to resolve.”
Based on the foregoing, the Court of Appeals concluded the trial court did not err in denying PV Holding’s motion for summary disposition with respect to the issue of notice.
The Court of Appeals further rejected PV Holding’s claim that plaintiff’s action was not timely filed, and that plaintiff’s amended complaint could not relate back to the filing of the original complaint. In this regard, the court cited Devillers v Auto Club Ins Ass’n, 473 Mich 562 (2005), and said:
“Pursuant to Devillers, an action for PIP benefits must be filed no later than one year after the date of the accident, unless the insured gives written notice of injury or the insurer previously paid PIP benefits. However, if notice has been given or payment has been made, the action may be commenced within one year after the most recent loss was incurred. … PV Holding fails to address our Supreme Court’s decision in Devillers. … [T] he facts viewed in a light most favorable to plaintiff supports a finding that notice of the accident was provided through [plaintiff’s sister] to Budget, PV Holding’s agent, on May 24, 2012. Thus, applying the Devillers decision, if notice was given or payment was made, the action could be commenced at any time within one-year of the most recent loss. PV Holding does not acknowledge or address the time period of plaintiff’s most recent loss. Accordingly, PV Holding failed to demonstrate that the relation-back rule is applicable to this factual scenario and bars the claim against it.”
In conclusion, the Court of Appeals also vacated the judgment that was entered in favor of Starr Indemnity on its third-party complaint. In this regard, the court said:
“… Budget was not named in the original complaint. Accordingly, PV Holding’s responsibility would be limited to the one-year period preceding August 14, 2013, and not relate back to the original complaint. Therefore, although the amount of payments made by Starr was established, it is not clear that PV Holding could be held accountable for amounts that exceeded the period set forth in MCL 500.3145(1).”
Accordingly, the Court of Appeals affirmed in part, vacated in part, and remanded the case for further proceedings.
