EXECUTIVE AND ADMINISTRATIVE ORDERS DID NOT TOLL THE ONE YEAR BACK RULE PAST A DATE AGREED TO BY THE PARTIES

Nikki L. Peterson

In a recent, published decision, Wenkel v Farm Bureau, ___ Mich App ___ (12/1/2022) (Docket No. 358526), the Court of Appeals addressed the administrative and executive orders issued by the Michigan Supreme Court and the Governor at the beginning of the COVID-19 pandemic, and whether those orders tolled the application of the “one year back rule” past a due date agreed to by the parties in a stipulated order entered by the Circuit Court before the pandemic began.

Plaintiff Wenkel was injured in an automobile accident in 2002. At the time of the accident, he had an automobile insurance policy with defendant Farm Bureau. In 2017, Plaintiff sought to recover PIP benefits from the Farm Bureau, claiming incurred charges for attendant care and home modifications as a result of the 2002 automobile accident. Farm Bureau refused to pay and Plaintiff filed suit.

On January 24, 2020, Plaintiff entered into a stipulated order of dismissal of his complaint for PIP benefits against Farm Bureau in which the parties agreed that none of Plaintiff’s claims incurred on or after October 11, 2017, would be barred by the one-year-back rule as long as Plaintiff re-filed his complaint on or before April 3, 2020. Plaintiff did not refile his complaint until June 8, 2020.

In December 2020, Farm Bureau moved for summary disposition arguing that Plaintiff’s failure to refile before April 3, 2020, nullified the agreement to waive the one-year-back rule. Farm Bureau further argued that the one-year-back rule is not a statute of limitations and therefore, was not tolled by the Executive or Administrative Orders. In his response, Plaintiff asserted that the delay was due to the COVID-19 pandemic and subsequent government-ordered lockdown and therefore his June 8, 2020, should be treated as if it was filed prior to March 23, 2020 (the date of the Supreme Court’s Administrative Order).

The Circuit Court granted summary disposition in favor of Farm Bureau finding that the “administrative and executive orders did not apply to the April 3, 2020, deadline established by the parties’ prior stipulation” and that the courts were open and accepting filings during the state of emergency such that it was not impossible to refile.

The Court of Appeals interpreted the Michigan Supreme Court’s Administrative Order 2020-3 as tolling the statute of limitations for the commencement of actions and a concomitant tolling of the filing of responsive pleadings during the state of emergency. The Court found that the one-year-back rule does not fall under either of those categories because it is a limitation on damages, not a limitation on whether the claim can be brought in the first place.

The Court of Appeals further noted that the one-year-back rule is a rule that is impacted by when a complaint is filed, but the Court was not persuaded that the Supreme Court intended Administrative Order 2020-3 to be interpreted so broadly as to have encompassed the rule in its order. The Court found that, even if that were the Supreme Court’s intent, Administrative Order 2020-3 is interpreted as applying only to deadlines set by court rule or statute, not those artificially imposed by agreement in a stipulated order. Finally, the Court noted that the trial courts were not closed for filings such that Plaintiff and is attorney proceeded at their own peril by ignoring the deadline they agreed to in the stipulated order.