DESPITE PUBLISHED "SPINE SPECIALIST" OPINION, UNNECESSARY CONFUSION PERSISTS AS TO WHEN THE TOLLING VERSION OF THE ONE-YEAR-BACK RULE SHOULD APPLY

Sarah E. Nadeau

Daniel S. Saylor

The Michigan Court of Appeals recently approved for publication its decision in Spine Specialists of Michigan, PC v MemberSelect Insurance Company, ___ Mich App ___ (2/2/23), which unequivocally holds that the pre-amended version of MCL 500.3145 (ie. the no-tolling version of the one-year-back rule) applies to all expenses incurred prior to June 11, 2019. See The Garan Report Volume 34, #45 issued December 2, 2022. This decision is now binding. In short, this decision means the date an expense is incurred is the date a claim accrues, and if expenses are incurred before June 11, 2019, then there is no “tolling” of the one-year-back rule with respect to any such expenses.

The Spine Specialists opinion is important because the Court of Appeals previously issued an opinion in Encompass Healthcare, PLLC v Citizens Insurance Company, ___ Mich App ___ (11/17/22), applying the amended version of MCL 500.3145, even though the at-issue expenses were incurred pre-amendment. In passing, the Encompass Court merely noted the case was filed after June 11, 2019. The parties in that case, however, did not dispute which version of the statute applied, instead simply proceeded on the assumption that the amended version applied.

More recently, the Court of Appeals issued an unpublished decision in Spine Specialists of Michigan, PC v Esurance Property & Casualty Insurance in which the Court of Appeals apparently overlooked the Spine Specialist v MemberSelect decision, and instead focused solely on the Encompass Healthcare. Yet, importantly, this new decision does not tell us when the at-issue expenses were “incurred” (see MCL 500.3110(4)), and instead tells us only when the plaintiff submitted its claim to the insurer, as if that was the operative event for determining whether the pre- or post-amendment version of the statute applies, rather than focusing on the date on which the expense was incurred. If the earliest expense was incurred very shortly before the plaintiff submitted the claim (ie. after June 11, 2019), then the post-amended version would apply. But because we do not know when the expenses were incurred, the Court’s opinion is misleading and causes unnecessary confusion as to whether the pre- or post-amended version of MCL 500.3145 applies.

Another recent decision in Health Partners v Progressive properly follows Spine Specialists v MemberSelect so, there is hope future Courts will do so as well. However, the Court of Appeals just issued another unpublished decision in Johnson v Falls Lake National Ins Co, in which the Court seemingly affirmed the application of the post-amendment version, yet focused upon facts suggesting the pre-amendment version should apply. Notably, many of these decisions are currently being appealed to the Michigan Supreme Court. Garan Lucow Miller’s own Daniel Saylor is handling the appeal on behalf of MemberSelect, and we will continue to keep you apprised of any developments on this issue as they arise.