Michigan Court of Appeals; Docket No. 299754; Unpublished
Judges M.J. Kelly, Sadd, and O'Connell; 2-1 (with Kelly dissenting); Per Curiam
Official Michigan Reporter Citation: Not applicable; Link to Opinion: Link to Dissent:
One-Year Notice Rule Limitation [§3145(1)]
Who May Give Notice [§3145(1)]
Required Content of Notice / Sufficiency of Notice [§3145(1)]
Applicability of Limitations Period to Claims by Insurers Against Other Insurers [§3145]
In this 2-1 per curiam opinion, the Court held "that Plaintiff's claim was barred by the one-year limitations of MCL 500.3145(1) because even though claims adjusters and Defendants communicated verbally within one year after the accident '[n]either the insured nor the insurance agent or anyone else on the insured's behalf sent anything in writing to Defendant.'"
In this case, Plaintiff Amerisure and Defendant Progressive both provided insurance coverage applicable to an accident involving the driver of a tractor trailer. Following the accident, the driver promptly came forward with a claim for PIP benefits, which Plaintiff Amerisure then paid and began investigating which insurer was responsible. Accordingly, claims adjusters from both the Plaintiff and the Defendant communicated orally within one year of the accident.
Eventually, Plaintiff Amerisure went on to file suit against Defendant Progressive to recover the PIP benefits that it had paid. By this time, more than one year had passed since the accident, and Amerisure had not provided written notice to Defendant as required under 500.3145(1). Accordingly, Defendant moved for summary disposition arguing that Plaintiff's claim was barred by the one-year limitations period set forth in §3145(1). The trial court agreed and granted Defendant's motion for summary disposition, "finding that the insured had not 'substantially complied' with [the statute], and further that the Defendant was not estopped from raising the statute of limitations as a defense."
This appeal followed, wherein Plaintiff argued: (1) that Defendant had not demonstrated actual prejudice attributable to the lack of written notice; (2) that Plaintiff in fact substantially complied with the requirements of extending the limitations period of MCL 500.3145; (3) that the Defendant waived the written notice requirement of MCL 500.3145(1) based on the language of its policy; and (4) that even if the limitations period of MCL 500.3145 applies here, the Defendant should be estopped from raising this as a defense. However, the Court found all of these arguments to be unpersuasive under the circumstances and affirmed the trial court's grant of summary disposition in Defendant's favor.
In reaching this conclusion, the Court stated that Plaintiff Amerisure acquires the same rights that the insured would have had; therefore, "this dispute centers on whether the limitations period of MCL 500.3145(1) has been properly extended by the actions of the insured in contacting its insurance agent."
As for the Plaintiff's arguments, the Court rejected the first argument, lack prejudice, reasoning that the statute is not merely a notice provision, and that it is also a "limitation of actions provision." Distinguishing the two types of provisions, the Court explained:
A notice provision is designed to provide the insurance company with knowledge of the accident so that it might make a timely investigation to protect its interests; an insurance company that seeks to avoid liability on the grounds that its insured did not comply with a notice provision must establish actual prejudice to its position. By contrast, limitation of actions provisions are intended to put an end to stale claims, end fear of litigation, and insure that claims can be settled while the evidence is still fresh. A defendant does not have to demonstrate prejudice to assert that the limitations period of MCL 500.3145(1) has run.
With regard to Plaintiff's second argument, that substantial compliance was had, the Court disagreed, reasoning that "oral notice to an insurance agent, standing alone, does not fulfill the requirements of MCL 500.3145(1)." The Court did acknowledge however that in some cases, strict, technical compliance with the requirements of written notice would run counter to the Legislature's intent to provide the insured with prompt and adequate compensation for personal injuries resulting from auto accidents. But here, the Court found that, "Plaintiff's claim bears none of the hallmarks of the internal 'bizarre facts' and 'uncommon situations' that" have been found in previous cases to justify departing from the general rule of strict compliance. While the Plaintiff did argue the lack of written notice was ultimately "an issue between Defendant and its [own] authorized agent," the Court noted that the inquiry must focus on "what sort of written notice reached the Defendant." And here, Plaintiff had produced no evidence that the Defendant ever received written notice of a potential personal injury claim. Ultimately, the Court went on to conclude that "the Legislature's goal of providing an insured with prompt and adequate recovery for personal injuries is not frustrated by the application of the written notice requirement. The absence of any written notice to Defendant is simply not substantial compliance with the written notice requirement of MCL 500.3145(1)."
The Court similarly found Plaintiff's remaining waiver and estoppel arguments unpersuasive. With regard to waiver, the Court explained that "waiver is the voluntary, intentional relinquishment of a known right." Here, under the plain language of the policy, there is "no statement concerning a waiver on the part of Defendant of asserting the defense that a particular claim is barred by the applicable statute of limitations," and none of the passages from the policy cited by the Plaintiff "can be read as a waiver of the statute of limitations for PIP claims by Defendant." The Court then re-emphasized the fact that MCL 500.3145(1) "is not simply a notice provision, but is also a limitation of actions provision."
As for Plaintiff's estoppel argument, the Court explained that because Plaintiff is seeking to assert the Doctrine of Equitable Estoppel as a defense to a statute of limitations, Plaintiff "must show that: (1) there was a false representation or concealment of material fact, (2) that there was an expectation that the asserting party would rely on such misconduct, and (3), there was knowledge on the part of the representing party of the actual facts." However, the Court concluded that Plaintiff could not satisfy all of these elements, explaining:
Here, plaintiff admits that it investigated the claim of the insured in an attempt to determine which carrier was the priority insurer of personal injury protection benefits. Plaintiff does not allege that its adjuster was somehow denied access to relevant information concerning the Progressive policy, nor that the adjuster lacked the ability to independently assess defendant's policy, nor that the adjuster somehow lacked knowledge of the Michigan no-fault act. In sum, plaintiff has not fulfilled the requirements for application of equitable estoppel.
Conversely, Judge Kelley would hold that sufficient notice was provided, reasoning that relevant contractual provisions make the notice requirement less onerous and more convenient for both parties. "Here, the only notice provision contained within the policy indicates that a loss—any loss—may be reported by telephone. By failing to include PIP coverage in its policy and then stating that a loss may be reported by telephone, Progressive contractually waived the written notice requirement stated under MCL 500.3145(1)."