Michigan Court of Appeals; Docket # 322654; Published
Judges Talbot, Beckering and Gadola; Unanimous, Per Curiam
Official Michigan Reporter Citation: 312 Mich App 734 (2015); Link to Opinion 
On June 10, 2016, the Michigan Supreme Court ordered the application for leave to appeal be DISMISSED upon stipulation of the parties. Link to Order
STATUTORY INDEXING:
One-Year Back Rule Limitation [§3145(1)]
TOPICAL INDEXING:
Michigan Consumer Protection Act
CASE SUMMARY:
In this published per curiam Opinion, the Court of Appeals held that an amendment to the Michigan Consumer Protection Act did not apply to conduct that occurred prior to March 28, 2001, and that defendant no-fault insurer waived the statute of limitations defense in the MCPA because it did not argue the defense in its answer to plaintiff's amended complaint, and did not raise the defense in its motion for summary disposition.
Plaintiff was hit by a motorcycle while walking. She suffered a closed-head injury and injuries to her left leg. After the accident, plaintiff received about $1 million in no-fault benefits from defendant Citizens Insurance under her parents' no-fault policy. Citizens, however, did not pay attendant-care benefits from the time of the accident in 1984 through 2011, at which time plaintiff submitted a claim for such benefits. Citizens then began paying attendant-care benefits and reimbursement costs for attendant care that had been provided to plaintiff since 2010. On July 28, 2011, plaintiff brought this action for unpaid benefits. The trial court held that, pursuant to MCL 500.3145(1), plaintiff's claim was limited to those benefits that were incurred no more than one year prior to the filing of her complaint. Plaintiff moved to amend her complaint and include a claim under the MCPA. Citizens argued the claim was untimely under the MCPA, specifically MCL 445.911(7). The trial court granted plaintiff's motion to amend the complaint. A default judgment was entered after Citizens did not timely file an answer. Citizens then moved for reconsideration and for summary disposition, asserting that plaintiff's claim under the MCPA was limited by §3145(1). The trial court denied Citizens' motion. A jury found that plaintiff had not incurred allowable expenses from one year before the filing of her complaint to the present time, and that Citizens violated the MCPA. The jury awarded plaintiff $1.7 million in unpaid benefits and $300,000 in mental anguish damages. Citizens filed a motion for JNOV, claiming the verdict was time-barred under MCL 445.911(7). The trial court granted Citizens' motion.
On appeal, plaintiff argued the trial court wrongly granted Citizens' motion for JNOV based solely on the statute of limitations in MCL 445.911(7). That statute says an MCPA claim must be brought:
• within six years of the occurrence of the "method, act, or practice" that violates the MCPA, or
• within one year after the last payment in a transaction involving the method, act or practice.
Plaintiff asserted that Citizens waived the statute of limitations as a defense because it did not cite MCL 445.911(7) as an affirmative defense in its answer to plaintiff's amended complaint, and did not raise the defense in its motion for summary disposition.
The Court of Appeals agreed, reversing the trial court's entry of JNOV and remanding the case for reinstatement of the jury verdict. In this regard, the Court said:
"[While] a claim of a violation of chapter 20 of the Insurance Code alone is insufficient to state a claim under the MCPA, when the allegation also constitutes a violation of the MCPA, the claim may proceed if the conduct at issue occurred prior to March 28, 2001, and the complaint was filed on or before June 5, 2014. [Plaintiff's] complaint met these requirements, and accordingly, Citizens' motion for summary disposition was properly denied. ... Clearly, Citizens' response to the motion to amend was not a responsive pleading. Nor was the response a 'motion filed pursuant to MCR 2.116. ...' Accordingly, Citizens waived the statute of limitations found in MCL 445.911(7). Because Citizens waived the affirmative defense in MCL 445.911(7), the trial court erred by granting JNOV on that basis. The trial court's order must be reversed, and the matter remanded for entry of a judgment in accordance with the jury's verdict."
In conclusion, the Court of Appeals affirmed the denial of Citizens' motion for summary disposition. The Court also reversed entry of JNOV because the trial court had relied on the statute of limitations defense, which was now deemed to have been waived.
