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Keller v Losinski and Michigan Mutual; (COA-PUB, 9/19/1979; RB #233)


Michigan Court of Appeals; Docket No. 78-2176; Published   
Judges R. B. Burns, Allen, and MacKenzie; 2-1   
Official Michigan Reporter Citation: 92 Mich App 468; Link to Opinion alt   

One-Year Notice Rule Limitation [§3145(1)]
Applicability of Limitations Period to Claims By Insurers Against Other Insurers [§3145]

Not Applicable   

In a 2-1 decision by Judge R. B. Burns, the Court of Appeals held that the one year statute of limitations contained in §3145 of the no-fault law applied to a situation where one insurance company was suing another for reimbursement of certain no-fault benefits that the former insurance company erroneously paid an injured person. The Court ruled in this manner even though the insurance company being sued received telephone notification of the accident within one year of its occurrence and, at that time, denied coverage. Written notice was not submitted until well over a year after the accident.The Court held that the statute of limitations defense could not be avoided by construing the action as one for indemnification rather than one for recovery on personal injuries. In seeking indemnification, the insurance company is subrogated to the insured person's rights to recover and cannot recover where the injured person would be from bringing his own action.

In upholding the statute of limitations defense, the Court noted that the "doctrine of equitable estoppel" is not applicable to this case. In finding this doctrine inapplicable, the Court noted that "League General did not intentionally misinform plaintiff and then seek to deny the information it had given to plaintiff. Rather, League General accurately stated to plaintiff the position which it continues to advance."

Judge Allen filed a lengthy dissenting opinion. He argued that the statute of limitations was not a valid defense in this case. He noted that timely telephone notification had been made soon after the accident and an investigation of the facts of the loss and accident was made albeit by the wrong insurance company. In addition, Judge Allen argued that this lawsuit was not one for recovery of no-fault benefits, but was rather a suit seeking recovery of monies paid under a material mistake of fact As such, the no-fault statute's limitation period should not apply.

Finally, Judge Allen wrote a lengthy analysis of the underlying priority dispute which was the main issue in this case but which was never discussed by the majority because of their holding in the statute of limitations question. Judge Allen concluded that when a motorcycle operator is involved in an accident with an automobile, the motorcyclist ought to recover no-fault benefits from his own no-fault insurance company or the company writing insurance for his household, before turning to the automobile no-fault policy.

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