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Volume XXVII, No. 23, September 18, 2015        

From the Law Offices of Garan Lucow Miller, P.C.

From the Editor: Sarah Nadeau

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COURT OF APPEALS ISSUES PUBLISHED DECISION CLARIFYING
WRITTEN NOTICE OF INJURY REQUIREMENT IN MCL 500.3145(1)

By Christian C. Huffman

In the recent published decision of Perkovic v Zurich American Ins Co, __ Mich App __ (2015), the Court of Appeals held that a PIP insurer’s receipt of a bill and medical records from a medical care provider does not constitute the “written notice of injury” required by MCL 500.3145(1) to extend the one-year statute of limitations applicable to the insured’s filing of a lawsuit to recover PIP benefits.  At least, that is, where the medical care provider merely requests payment of its bill and makes no specific mention of the no-fault act.

Perkovic owned a semi-truck that he operated on an independent contractor basis.  Although he maintained a personal no-fault insurance policy, and a bobtail policy, when Perkovic contracted to haul loads for E.L. Hollingsworth the semi was covered by a no-fault insurance policy that E.L. Hollingsworth maintained with Zurich.  On February 28, 2009, Perkovic was involved in an accident in Omaha, Nebraska, while hauling a load for E.L. Hollingsworth.  He received treatment for his injuries at The Nebraska Medical Center, which sent Zurich a bill for its services as well as Perkovic’s medical records on April 30, 2009.  Zurich denied the request for payment on May 19, 2009, stating that no injury report concerning Perkovic had ever been filed with Zurich.

Perkovic thereafter filed a lawsuit on his own behalf against his personal no-fault insurer and bobtail insurers.  Perkovic did not add Zurich to the litigation until March 25, 2010, which was more than a year after the accident.  Zurich was ultimately deemed to be the insurer highest in priority to pay PIP benefits to or on Perkovic’s behalf.  But, Zurich moved for summary disposition based on its assertion that Perkovic’s claim was barred by MCL 500.3145(1), which provides in pertinent part:

An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident . . . .  The notice of injury required by this subsection may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefor, or by someone in his behalf. The notice shall give the name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury.

In opposing Zurich’s motion, Perkovic asserted that The Nebraska Medical Center’s submission of its bill and the medical records had satisfied the statute’s “written notice of injury” requirement, thereby extending the one year statute of limitations and making his suit against Zurich timely.  The Circuit Court disagreed and granted Zurich’s motion, and the Court of Appeals affirmed.

In doing so, the Court of Appeals agreed with Perkovic that Zurich received the bill and medical records within one year of the accident.  It also acknowledged that the documentation submitted by The Nebraska Medical Center contained the requisite information to satisfy §3145(1)’s requirement that a notice contain the “name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury.”  However, the Court of Appeals agreed with the Circuit Court that the medical records and bill did not satisfy §3145(1)’s requirement that the written notice be “given to the insurer . . . by a person claiming to be entitled to [PIP] benefits . . . or by someone in his behalf.”

After engaging in a lengthy review of prior case law interpreting §3145(1), the Court of Appeals acknowledged that it did “not always require strict, technical compliance with the [statutory] requirements.”  But, the Court noted that the insurers in all of the cases it reviewed “were sent either a letter or a written notice form,” and thus “there was no indication that [any of those insurers] was unaware of a possible no-fault claim.”

The Court of Appeals, like the Circuit Court, distinguished the situation in Perkovic from those prior cases.  The Court relied on an affidavit that had been executed by the Custodian of Records for The Nebraska Medical Center which stated “the bill and records were sent [to Zurich] for the purposes of obtaining payment” –but did not specifically state that The Nebraska Medical Center and/or Perkovic intended to make a claim for PIP benefits.  Thus, the Court of Appeals held that the bill and records were “unrelated to a possible claim for no-fault benefits, did not trigger [Zurich’s] investigative procedures or advise [Zurich] of the need to appropriate funds for settlement” and, therefore, did not fulfill §3145(1)’s requirement that the notice be submitted “by a person claiming to be entitled to [PIP] benefits . . . or by someone in his behalf.”

Although Perkovic is a published decision, and does help to clarify what constitutes sufficient “notice of injury” for the purposes of §3145(1), I would note that it is very fact specific.  Thus, I would caution PIP insurers against reading too much into it.  That is, The Nebraska Medical Center, being a foreign medical care provider, was evidently unaware of Michigan’s no-fault act and the potential for filing a PIP provider suit if Zurich denied payment for its bill.  The documentation that it submitted to Zurich made no mention whatsoever of the no-fault act.  A Michigan medical care provider would likely have accompanied its bill with a letter stating that payment was being requested pursuant to the no-fault act.  If that had been the case, the Court of Appeals’ holding may very well have been different.

MICHIGAN SUPREME COURT DENIES PLAINTIFF’S
APPLICATION FOR LEAVE TO APPEAL IN BAHRI V IDS

In the Law Fax article dated December 12, 2014, we advised you that the Court of Appeals published its decision in Bahri v IDS Prop Cas Ins Co, 308 Mich App 420; 864 NW2d 609 (Mich App 2014).  The Court in Bahri held that a general fraud exclusion contained in a no-fault automobile insurance policy is enforceable to bar coverage for a claimant’s entire personal injury protection (“PIP”) benefits claim when the claimant has made fraudulent statements or engaged in fraudulent conduct in connection with any accident or loss for which coverage is sought under the policy.  Plaintiff appealed this decision to the Michigan Supreme Court.  The Michigan Supreme Court has now issued an order denying Plaintiff’s Application for Leave to Appeal because it was not persuaded that the questions presented should be reviewed by the Court.  This means the Court of Appeals published decision now stands and provides authority to support an argument that an entire claim for PIP benefits can be barred at the summary disposition stage if the policy contains a similar fraud exclusion and the claimant engaged in fraudulent conduct in connection with his claim.