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Converse v Auto Club Ins Co et al; (COA-UNP, 3/3/2011; RB #3165)

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Michigan Court of Appeals; Docket #293303; Unpublished 
Judges Beckering, Talbot, and Owens; per curiam 
Official Michigan Reporter Citation:  Not applicable, Link to Opinion alt; Link to Disssenting Opinion alt
On October 26, 2012, the Michigan Supreme Court REVERSED this decision in part in lieu of granting leave to appeal and DENIED leave in all other respects; Link to Order alt


STATUTORY INDEXING:
One-Year Back Rule Limitation [§3145(1)] 
Tolling of Limitations for Minors [§3145(1)] 

TOPICAL INDEXING:
Actual Fraud
Equitable Estoppel
Michigan Consumer Protection Act
Revised Judicature Act – Tolling of Statutes of Limitations (MCL 600.5851 – 600.5856) 
Silent Fraud


CASE SUMMARY:  

In this unpublished per curiam decision, the Court of Appeals affirmed the trial court’s grant of partial summary disposition in favor of Auto Club Insurance Company regarding plaintiff’s claims for no-fault benefits incurred more than one year prior to the filing of plaintiff’s lawsuit.

The plaintiff in this case pursued multiple legal theories in an attempt to recover no-fault benefits incurred more than one year from the date the plaintiff filed her lawsuit. In this regard, the plaintiff pursued a negligence claim against ACIA that alleged that ACIA failed to inform and disclose to plaintiff certain benefits that were available to her under the subject no-fault insurance policy. The Court of Appeals affirmed the trial court’s dismissal of this negligence action on the basis that the negligence claim was not a cause of action which existed separate and distinct from her breach of contract claim against ACIA.

Plaintiff also pursued an action against ACIA under the Michigan Consumer Protection Act (MCPA). In affirming the trial court’s dismissal of this action, the Court of Appeals recognized that the Unfair Trade Practice Act (UTPA), MCL 445.904(3), specifically provides that the MCPA “does not apply to or create a cause of action for an unfair, unconscionable, or deceptive method, act, or practice that is made unlawful by chapter 20 of the insurance code, MCL 500.2001 to 500.2093.”  The Court noted that the statutory language was added in an amendment effective March 28, 2001. Therefore, any claims under the MCPA against an insurance company occurring after March 28, 2001 clearly should not be sustained. With regard to the plaintiff’s claims under the MCPA occurring before March 28, 2001, the Court of Appeals noted that MCL 445.911(7) specifically states that “a[n] action under this section shall not be brought more than 6 years after the occurrence of the method, act, or practice which is the subject of the action nor more than 1 year after the last payment in a transaction involving the method, act, or practice which is the subject of the action, whichever period of time ends at a later date.”  The Court recognized that the claims made by the plaintiff stem from methods, practices, and the alleged inadequate payment of benefits occurring from July 26, 1992, essentially up to the filing of the complaint on December 9, 2005. The Court further recognized that the plaintiff was contesting a series of practices that continued and resulted in payments as late as December 2005, and, therefore, claims were limited by the statutory language to those within one year immediately preceding December 2005. The Court then recognized that because any cause of action for claims occurring after March 28, 2001 could not be sustained, the trial court properly dismissed the plaintiff’s MCPA claim.

The Court of Appeals also affirmed the trial court’s dismissal of the plaintiff’s fraud and silent fraud claims on the basis that there was a lack of justifiable reliance. In so holding, the Court of Appeals recognized that there was no genuine issue of material fact regarding whether the plaintiff reasonably relied on ACIA’s alleged representations, and that the plaintiff consulted with attorneys, complained to the insurance commission, negotiated directly with the insurer, had access to information and, thus, had available to her the means to ascertain the accuracy or truth of ACIA’s statements. Moreover, the Court noted that the alleged misrepresentations occurred during the claims handling and negotiation process, during which the parties are in an obvious adversarial position and generally deal with each other at arm’s length. In this regard, the Court specifically held:

"The trial court correctly concluded that there was no genuine issue of material fact regarding whether Converse reasonably relied on ACIA’s alleged representations. The record demonstrates that Converse complained about ACIA on three separate occasions to the insurance commission, and was put on notice by the commission ‘to seek out a lawyer.’ Converse also acknowledged having contact with attorneys throughout the years to assist her with various matters relating the services to be provided to her daughter. The alleged representations by ACIA’S agents did not involve information that was primarily or exclusively within ACIA’s control, but ‘concerned what benefits were available’ to her under the no-fault act. Because Converse consulted with attorneys, complained to the insurance commission, negotiated directly with the insurer, had access to information and, thus, had available to her the means to ascertain the accuracy or truth of ACIA’s statements, she was unable to demonstrate that she reasonably relied on ACIA’s representations. In addition, because the alleged representations occurred during the claims handling and negotiation process, the reliance element is not established ‘because during these processes the parties are in an obvious adversarial position and generally deal with each other at arm’s length.’ Converse’s claims of fraud and silent fraud were, therefore, properly dismissed by the trial court.”

The trial court also rejected the plaintiff’s argument tha she should be allowed to circumvent the one-year-back rule on the basis of equitable estoppel. The Court of Appeals noted that her appellate brief did not explain the law regarding equitable estoppel or how equitable estoppel would apply in this case. The Court further reasoned that the doctrine of equitable estoppel requires justifiable reliance, which has not been demonstrated.

Furthermore, the Court of Appeals rejected the plaintiff’s argument that the trial court’s decision to apply the one-year-back rule to a breach of contract claim should be reversed because the recent decision by the Michigan Supreme Court in Regents of University of Michigan v Titan Ins Co. In rejecting this argument, the Court of Appeals reasoned that the savings provision of MCL 600.5851(1) is designed to prevent the abrogation of the claims of infants and incompetent people. The Court reasoned that it was unnecessary to apply the savings provision to the plaintiff’s claim based on her minor child, because the limitation period under MCL 500.3145 had not expired, due to the fact that ACIA had made payments to the plaintiff as late as December 2005, when the plaintiff filed her lawsuit. Therefore, the Court reasoned there was no need to apply the savings provision, because the plaintiff was able to file her lawsuit within less than one year before the last no-fault benefit expense was incurred. In this regard, the Court of Appeals specifically held:

“In this instance, ACIA has been paying benefits to Converse over a number of years on behalf of Curtis. It is undisputed that ACIA made payments to Converse as late as December 2005, when this action was initiated. According to the no-fault act’s language permitting an ‘action may be commenced at any time within 1 year after the most recent allowable expense has been incurred’ the limitations period has not run and, therefore, there is no need to apply the savings provision. The savings provision language specifically provides for one year ‘after the disability is removed’ to ‘bring the action although the period of limitations has run,’ reinforcing that its function is to operate as an exception to applicable statutes of limitation. Simply put, because the claim was not barred by the statute of limitations, there is no reason to utilize the savings provision.”

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