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Madden v Employers Insurance of Wausau; (COA-PUB, 4/18/1988; RB #1129)


Michigan Court of Appeals; Docket No. 96143; Published  
Judges Kelly, MacDonald, and Payant; 2-1 (with Judge Allen Dissenting)  
Official Michigan Reporter Citation: 168 Mich App 33; Link to Opinion alt    

Applicability of Limitations Period to Claims by Insurers Against Other Insurers [§3145]

Not Applicable   

In this 2-1 Opinion by Judge Payant, the majority adopted the reasoning of Judge Allen in his dissenting opinion in the case of Keller v Losinski, 92 Mich App 468 (1979), and held that the no-fault one year statute of limitations set forth in §3145 of the statute did not bar a subsequent suit by one no-fault insurer against another insurer seeking recoupment of benefits mistakenly paid to an auto accident victim. With regard to the character of such a reimbursement cause of action, the court stated, "the cause of action brought by Wausau against Lake States was for recoupment of money paid by mistake. It should not be characterized as subrogation, nor should it be characterized as indemnity as used in tort law. It is indemnity in the sense of seeking a return of money paid by mistake. It is clear in our law that payments of money, although voluntarily made, if made under a mistake of a material fact, may be recovered, even if the mistake be due to a lack of investigation. Section 3145 applies only to actions to recover personal injury protection benefits and does not apply to an action for recovery of money paid by mistake. The recovery of money paid by mistake is a common law cause of action that was not abrogated by the no-fault act Therefore, a suit to recover money paid by mistake is not governed by the one year statute of limitations period contained in §3145."

Judge Kelly dissented. He argued that the decision in Michigan Mutual v Home Mutual, 108 Mich App 274 (1981) (a case authored by Judge Kelly) controlled the result in the case at bar and should be followed rather than Judge Allen's dissent in Keller.

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