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Gillmer and Fremont Mutual Insurance Company v Utility Contracting Company and Auto-Owners Insurance Company; (COA-UNP, 3/5/1992; RB #1534)


Michigan Court of Appeals; Docket No. 131449; Unpublished   
Judges Jansen, Neff, and Connor; Unanimous; Per Curiam  
Official Michigan Reporter Citation:  Not Applicable; Link to Opinion alt  

Limitations Period for PPI Claims [§3145(2)]  
Tolling of Limitations Upon Submission of Claim [§3145]

Not Applicable   

In this unanimous per curiam Opinion, the Court of Appeals affirmed summary disposition in favor of all the defendants on the basis of the one year statute of limitation contained in §3145(2). The court also held that. the one year statute of limitations had not been tolled in this case pending formal denial by Auto Owners of the claim.  

Plaintiff’s' home received property damage when a wheel and tire disengaged from a vehicle insured by Auto Club and struck the home. Plaintiff’s made a claim for damages to the vehicle owner, which was then tendered to Auto-Owners. Auto-Owners did not pay the claim, so plaintiff’s' homeowners insurance (Fremont) apparently covered the damages under the homeowners policy. Fremont then sought subrogation from defendants.  

The accident in this case occurred on June 17,1987, and the lawsuit was not filed until December 19,1989. Defendants filed a motion for summary disposition arguing that under §3145(2), the action was not timely filed within the one year statute of limitations.  

In response to this motion, plaintiff’s submitted an affidavit which indicated that an insurance adjuster for defendant had appeared at the home of plaintiff’s and initiated settlement discussions. Plaintiff’s contended that the period of limitations under §3145 was tolled from the time that this adjuster received "notice" of the accident, until the time of formal denial of the claim on December 30,1988. Since suit was filed December 19,1989, plaintiff’s contended that the one year statute of limitations had not yet expired. 

The Court of Appeals agreed with Auto Club that §3145(2) requires that an action for recovery of property protection insurance benefits shall not be commenced later than one year after the accident. The dispositive issue in this case was whether plaintiff’s had provided notice to Auto-Owners that they were seeking property protection insurance benefits from Auto-Owners. The court held that the mere fact that the Auto-Owners adjuster had a discussion with a relative of the plaintiff’s regarding a potential claim, is insufficient to establish that plaintiff’s were claiming "specific benefits under the policy" issued by Auto-Owners. Although the one year statute of limitations can be tolled during negotiations over the payment of a claim until the claim is denied, it is the actual filing of a claim for specific benefits which triggers the beginning of the tolling period, rather than "notice of a loss." Preferred Risk Mutual Insurance Company v State Farm, 123 Mich App 416 (1983). 

Judge Neff concurred in the result only.  

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