August 17, 2017
Volume XXIX, No. 19

 

MICHIGAN COURT OF APPEALS DETERMINES THE BAHRI DEFENSE IS NOT AVAILABLE TO AN ASSIGNED CLAIMS INSURER

 By Kyle Kamidoi

In Mills, et. al. v. Titan Insurance Company, the Plaintiff, James Mills, brought suit against Titan Insurance Company after Titan denied benefits following a motor vehicle accident in which he sustained bodily injury. Titan filed a motion for summary disposition claiming Mr. Mills fraudulently submitted attendant care service forms, asking that Mr. Mill’s entire action be dismissed. The Michigan Court of Appeals, in an unpublished opinion, affirmed the trial court’s determination that although Mr. Mills’ attendant care service claim would be dismissed due to fraud, the entire action need not also be dismissed since Bahri v. IDS Prop Cas Ins Co, 308 Mich App 420 (2014) did not apply in Assigned Claims matters.

James Mills, a pedestrian, was struck and injured by an unidentified motor vehicle. Due to the fact that Mr. Mills did not have personal No-Fault insurance coverage, and the driver of the other vehicle could not be identified, he filed a claim with the Michigan Assigned Claims Plan (MACP) to recover benefits pursuant to the Michigan No-Fault Act. Titan Insurance Company was assigned to provide coverage under the MACP, and subsequently denied benefits.

During the course of Mr. Mills’ recovery, he allegedly began receiving attendant care services from two individuals, Angela Bakeley and Jean Mitchell. Both Bakeley and Mitchell claimed during their depositions that Mr. Mills was living with them following the motor vehicle accident, and both submitted attendant care service forms for those dates. Mr. Mills then testified that the two individuals never performed attendant care at the same time, and never lived with him at the same time, which was contrary to the forms that were submitted.

Following Titan’s denial of benefits, Mr. Mills brought suit alleging that Titan failed to pay benefits that were due. Titan filed a Motion for Summary Disposition with the contention that Mr. Mills’ entire claim should be dismissed as a result of fraudulently submitted attendant care service forms. During oral argument, Mr. Mills’ counsel alleged that the forms that were submitted were the result of confusion over when the services were rendered and did not show an “intent to defraud” as set forth in MCL 500.3173(a)(2). The trial court made the determination that although it was clear there was fraud in the submission of the forms, there was not enough evidence to suggest the Mr. Mills himself had an “intent to defraud or deceive the Defendant”. As a result, the trial court dismissed only the attendant care portion of Mr. Mills’ claim.

Titan appealed claiming that Mr. Mills’ entire claim must be dismissed pursuant to Bahri, regardless of whether there was an “intent to defraud”. (Notably, Mr. Mills did not cross-appeal the trial court’s decision to dismiss his claim for attendant care services.) The Michigan Court of Appeals ruled that in accordance with the Court’s prior ruling in Shelton v. Auto-Owners Ins Co, 318 Mich App 648 (2017), Bahri did not apply in this matter since Mr. Mills never personally entered into a policy of insurance with Titan but instead sought payment of benefits from Titan as the assigned claims insurer such that the No-Fault Act’s statutory language controlling assigned claims applied. MCL 500.3173a(2)

In addition, the Court of Appeals found the trial court’s ultimate decision to bar only Mr. Mills’ claims for attendant care, because the trial court could not determine who had lied but recognized that someone had, conformed with the plain language of MCL 500.3173(a)(2) which requires a showing that one acted “knowing that the statements contained false information concerning a fact or thing material to the claim…” The Court of Appeals noted that the record did not contain any evidence to support an argument that Mr. Mills knew the statements made by Bakeley and Mitchell contained false information, or that Mr. Mills was involved in the submission of the attendant care claim forms. Thus, the Court of Appeals determined that the trial court did not err by dismissing Mr. Mills’ claims for attendant care services pursuant to fraud, while allowing the continuation of Mr. Mills’ claims for recovery of other No-Fault Benefits.

In a concurrence, Judge Ronayne Krause agreed with the majority’s reasoning in all respects except that in her reading of the statute, whether Mr. Mills was aware of the false information provided to Titan was irrelevant. “Either a claim was supported by a fraudulent insurance act or it was not.” Because Mr. Mills’ claim for attendant care services was supported by forms containing false information necessarily precluded payment of those benefits. Judge Krause agreed with the majority, however, that an exclusion of Mr. Mills’ claim for attendant care benefits did not exclude any other claims he might have, if those other claims are not supported by or do not contain a fraudulent insurance act”.

This Opinion appears to the be the first to address fraud in the submission of documents supporting a claim for PIP benefits under the assigned claims statutory provisions. At least one other appeal is currently pending before the Court of Appeals on this issue, which was filed by Garan Lucow Miller. Because the Mills decision is unpublished, there will surely be more cases addressing these issues, possibly reaching different conclusions, and relying upon a different interpretation or application of the statutory language. Already the Court of Appeals has issued an unpublished Order in Thomas v Farm Bureau Mutual Insurance Co of Michigan, entered January 6, 2017 (Docket No. 334530). This Order was entered on an Application for Leave to Appeal filed by defendant Farm Bureau from a Circuit Court Order denying, in part, Farm Bureau’s motion for summary disposition. The Thomas Court peremptorily reversed the Circuit Court’s Order in part, and remanded the case back to the Circuit Court for a determination whether Farm Bureau was entitled to attorney fees under MCL 500.3148(2). finding as follows:

In light of plaintiff’s admission that she reviewed the “Replacement (Household) Services Statements” containing false information before submitting them, plaintiff knowingly provided false information about a material portion of her claim to the Michigan Assigned Claims Plan. This rendered plaintiff “ineligible for payment or benefits under the assigned claims plan.” MCL 500.3173a(2)(emphasis added). Further because the plain language of §3173a(2) does not limit the scope of a claimant’s eligibility under these circumstances or contain an intent element, plaintiff is categorically disqualified from receiving any PIP benefits in this case even if she had no intent to deceive. See Koontz v Ameritech Servs, Inc, 466 Mich 304, 323; 645 NW2d 34 (2002)(“courts may not look beyond the clear text of a statute to discover an unexpressed legislative intent”); see also Webster’s New World Dictionary, Third College Edition (1988)(defining “ineligible” as “not legally … qualified.”). (Emphasis added).

Therefore, we will have to wait and see how the Court of Appeals will address similar issues in the near future.

Kyle is an Associate in our Port Huron Office.
He can be reached at (810) 985-4400 or kkamidoi@garanlucow.com

 

 

SEMINARS

BASICS OF MICHIGAN AUTOMOBILE
NO-FAULT INSURANCE LAW COURSE

Garan Lucow Miller, P.C. is pleased again to offer this in-depth, educational course to our clients. It will be taught each Tuesday evening, from September 19, 2017 through November 21, 2017, from 6:00 p.m. to 8:00 p.m.

This year the 9 week course will take place at the Crowne Plaza Hotel, 925 South Creyts Road, Lansing, MI 48917

The cost of the 9 week course is $350.00 per person, with a discount of $50.00 per person for more than 2 registrants from the same company.

Please contact Eileen Carty to register at ecarty@garanlucow.com or (248) 641-7600.

 

 

GARAN LUCOW MILLER, P.C.
CLIENT BASEBALL GAME

JIMMY JOHN’S FIELD

Please join us for a night of baseball, families welcome!

Thursday, August 24, 2017
Buffet begins at 6:00 p.m.
Game beings at 7:00 p.m.

Please RSVP to Eileen Carty:ecarty@garanlucow.com

 

 

 

REGISTER NOW

TROY BREAKFAST SEMINAR

The TROY BREAKFAST SEMINAR will take place on Friday, September 8, at the Marriott in Troy. This is a complimentary seminar for our clients. Click HERE for the Agenda.

Please RSVP to Eileen Carty:  ecarty@garanlucow.com

ARTPRIZE NINE EVENT

Please join us at our Grand Rapids office, the perfect location to enjoy all of the downtown ArtPrize venues, including a new installation this year on our outdoor plaza. Live music will be performed in the lobby by select musicians from the Grand Rapids Symphony. Hors d’oeuvres and refreshments will be provided. Free underground parking for all guests. Families are welcome.

Wednesday, September 27, 2017
300 Ottawa Ave. N.W.
D
owntown Grand Rapids
5:00 p.m. to 8:00 p.m.

Please RSVP to Eileen Carty: ecarty@garanlucow.com

 

 

SAVE THE DATE

RIVALRY SEMINAR

The RIVALRY SEMINAR will take place on Friday, October 6th, at Weber’s Inn, in Ann Arbor.  This is a complimentary seminar for our clients. An Agenda will be posted soon.

 

 

SAVE THE DATE

BUCKEYE SEMINAR

The BUCKEYE SEMINAR will take place on Thursday, November 2, at The Greater Columbus Convention Center in Columbus, Ohio. This is a complimentary seminar for our clients. An Agenda will be posted soon.

 

 

For inquires, upcoming seminars, or in-house seminar requests please contact Eileen Carty at ecarty@garanlucow.com

CONGRATULATIONS TO GLM ATTORNEYS
SELECTED AS SUPER LAWYERS AND RISING STARS-2017
AND BEST LAWYERS-2018

Garan Lucow Miller, P.C. congratulates the following attorneys selected for inclusion in

SUPER LAWYERS – 2017

Megan Cavanagh

Boyd Chapin, Jr.

John Gillooly

Stacey King

Rosalind Rochkind

Daniel Saylor

John Seyfried

RISING STARS – 2017

Nicholas Draugelis

Julie Druzinski

Samantha Orvis

Chanel Shamoun

Rachel Bissett

Courtney Krause

BEST LAWYERS – 2018

Congratulations to the following GLM attorneys selected as Best Lawyers for 2018:

Boyd Chapin, Jr.

John Gillooly

Thomas Misuraca

Dennis Partridge

Frederick Plumb

Rosalind Rochkind

Daniel Saylor

John Whitman

Peter Worden

LAWYER OF THE YEAR AWARD

Daniel Saylor

Sarah Nadeau, Editor of the Law Fax Publication,

is a Shareholder in our Detroit Office.

Sarah can be reached at 313.446.1530 or snadeau@garanlucow.com

 

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