Paul Green v. Home-Owners Insurance Company ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PAUL GREEN, UNPUBLISHED
January 2, 2018
Plaintiff-Appellant,
v No. 333315
Macomb Circuit Court
HOME-OWNERS INSURANCE COMPANY, LC No. 2015-004584-AV
also known as AUTO-OWNERS INSURANCE
COMPANY,
Defendant-Appellee.
Before: JANSEN, P.J., and CAVANAGH and CAMERON, JJ.
JANSEN, J. (dissenting)
Because I believe summary disposition in this case was premature under the principles
espoused by our Supreme Court in Dillon v State Farm Mut Auto Ins Co, ___ Mich ___ ; 902
NW2d 892 (2017) (Docket No. 153936), I respectfully dissent. I would reverse the order
granting defendant’s motion for summary disposition and remand the matter for further
proceedings.
I believe that the majority’s interpretation of Dillon is unnecessarily narrow. Under
Dillon, generalized notice of injury is not enough to satisfy the statutory notice requirement of
MCL 500.3145(1). Id. at ___, slip op at 1. However, as the Dillon Court explains, the language
of MCL 500.3145(1) indicates a Legislative intent to allow claimants an opportunity to comply
with the statutory notice requirements “without recourse to specialist assistance” or a “precise
medical diagnosis.” Id. at ___, slip op at 2. Under Dillon, a layperson’s “description of
symptoms that are traceable to a diagnosed injury is sufficient to constitute” proper notice under
MCL 500.3145(1). Id.
In this case, plaintiff provided notice of his injury within a month of his motor vehicle
accident and described in ordinary language the symptoms that were known to him at that time.
Defendant did not dispute the adequacy of plaintiff’s initial notice, and approved the initial
provision of benefits. Thereafter, plaintiff continued to seek treatment for various bodily pains
until, according to plaintiff, his current physician finally ordered the MRI that revealed plaintiff’s
neck fracture injury. It was at this point that defendant refused to pay additional benefits for the
neck injury. Although plaintiff’s neck fracture injury was not discovered within one year after
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his motor vehicle accident, the delayed discovery was not attributable to plaintiff. Plaintiff
actively pursued treatment and was hindered by his need to rely on the advice of physicians.
Dismissal under MCL 500.3145(1) of plaintiff’s claim for PIP benefits to address
additional symptoms, after plaintiff submitted a timely and specific notice and defendant agreed
to provide benefits, cannot be the result our Supreme Court anticipated in Dillon. As previously
mentioned, the Dillon Court acknowledged that compliance with MCL 500.3145(1) should not
require recourse to specialist assistance. Dillon, ___ Mich at ___, slip op at 2. Indeed, plaintiff’s
situation is very similar to the plaintiff’s in Dillon. In that case, the plaintiff’s initial notice
described injuries causing pain to her left shoulder and lower back. Id. In a situation similar to
plaintiff’s here, the Dillon plaintiff sought treatment years after her motor vehicle accident and
initial notice for an injury to her left hip. Id. Despite the fact that the plaintiff’s initial notice had
not specifically described the symptom of hip pain, the Court held that the plaintiff was entitled
to benefits for treatment of the hip injury because the plaintiff’s doctor testified that “the hip
injury could have created the lower back pain,” and the jury found that the injury to her left hip
“was caused by the same accident.” Id. The Court held that because the plaintiff’s “initial notice
can be traced to the eventual injury [it] was sufficient for the purposes of MCL 500.3145(1).” Id.
At the very least, Dillon suggests that questions of fact remain regarding whether
plaintiff’s initial notice can be traced to plaintiff’s eventual neck fracture injury. A court
considering the propriety of summary disposition under MCR 2.116(C)(7) and MCR
2.116(C)(10) must accept as true plaintiff’s assertions of fact and construe them in a light most
favorable to plaintiff. Dextrom v Wexford Co, 287 Mich App 406, 415, 428-429; 789 NW2d 211
(2010). Plaintiff claims that his physician will testify that his neck fracture injury was a direct
result of his 2012 motor vehicle accident. Should plaintiff’s expert establish a link between
plaintiff’s initial injury and the later-discovered neck fracture injury, plaintiff’s notice would be
sufficient and his case would not be barred for failure to provide timely notice under MCL
500.3145(1). Defendant brought its motion for summary disposition less than three months after
plaintiff filed his complaint in the district court, and before plaintiff could produce an expert
affidavit or depose an expert witness. Summary disposition was therefore prematurely granted.
See Marilyn Froling Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 292; 769
NW2d 234 (2009) (explaining that in general, summary disposition is generally “premature if it
is granted before discovery on a disputed issue is complete.”). Plaintiff should be given the
opportunity to make his case on its merits.
For these reasons, I would reverse the decision of the circuit court and remand with
instructions to reverse the district court’s grant of summary disposition and allow plaintiff’s case
to proceed.
/s/ Kathleen Jansen
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