Palmer Park Square, LLC v. Scottsdale Insurance Co.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0291p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PALMER PARK SQUARE, LLC, ┐
Plaintiff-Appellant, │
│
> No. 17-1158
v. │
│
│
SCOTTSDALE INSURANCE COMPANY, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:16-cv-11536—Nancy G. Edmunds, District Judge.
Argued: November 29, 2017
Decided and Filed: December 22, 2017
Before: GILMAN, SUTTON, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Donald M. Fulkerson, Westland, Michigan, for Appellant. Hans H.J. Pijls,
DINSMORE & SHOHL, LLP, Ann Arbor, Michigan, for Appellee. ON BRIEF: Donald M.
Fulkerson, Westland, Michigan, for Appellant. Hans H.J. Pijls, Julia T. Stuebing, DINSMORE
& SHOHL, LLP, Ann Arbor, Michigan, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Over four years after Palmer Park Square,
LLC incurred an insured loss, it brought a claim against Scottsdale Insurance Company for
“penalty interest” allegedly due on the untimely payment of the loss by Scottsdale. The district
court held that the penalty-interest claim arose “under the policy” and was thus barred by the
No. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 2
policy’s two-year limitations provision. It further held that a statutory provision providing for
the tolling of limitations provisions in insurance contracts did not apply to policies issued by
surplus-lines insurers like Scottsdale. As a result, summary judgment was granted in
Scottsdale’s favor. For the reasons set forth below, we REVERSE the judgment of the district
court and REMAND the case for further proceedings consistent with this opinion.
I. BACKGROUND
Palmer owned a vacant apartment complex located at 843 Whitmore in Detroit, Michigan
(the Property). Scottsdale issued a commercial fire insurance policy to Palmer covering the
Property for fire and other specified losses from November 8, 2011 through November 8, 2012
(the Policy).
The Property was burglarized and vandalized in February 2012, such losses being within
the coverage of Scottsdale’s fire insurance policy. Palmer reported the loss to Scottsdale over a
year and a half later, on October 22, 2013. Scottsdale wrote to Palmer several weeks thereafter
acknowledging that the purported loss occurred during the coverage period, explaining that it
was investigating the claim, and reserving the right to assert defenses to coverage under the
Policy. The letter went on to explicitly state that Scottsdale was not denying Palmer’s claim.
On November 27, 2013, Palmer sent Scottsdale an itemized Proof of Loss. Scottsdale did
not object to Palmer’s Proof of Loss as inadequate. Instead, it submitted a payment of $150,000
to Palmer on or about June 16, 2014, almost seven months after Palmer submitted its Proof of
Loss. This payment was made well outside of the period permitted for a “timely” payment under
§ 500.2836(2) of the Michigan Compiled Laws, which provides that “losses under any fire
insurance policy shall be paid within 30 days after receipt of proof of the amount of loss.”
Because the $150,000 payment was far less than the amount claimed, Palmer requested
an appraisal under the Policy. Scottsdale agreed to the appraisal and noted that the claim was
still under investigation.
The appraisers concluded that Palmer’s actual-cash-value loss was $1,642,796.76.
Because coverage under the Policy was limited to $1,000,000, Scottsdale tendered two checks
No. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 3
over a period of several months that paid the balance of the appraisal award up to the Policy
limit. Palmer then requested penalty interest for late payment of the claim under § 500.2006(4)
of the Michigan Compiled Laws. Section 500.2006(4) states that “[i]f benefits are not paid on a
timely basis, the benefits paid bear simple interest from a date 60 days after satisfactory proof of
loss was received by the insurer at the rate of 12% per annum, if the claimant is the insured or a
person directly entitled to benefits under the insured’s insurance contract.” This penalty interest
“must be paid in addition to and at the time of payment of the loss.” Id.
Scottsdale rejected Palmer’s request for penalty interest on October 26, 2015 because “all
payments were timely made once the amounts owed were determined.” On March 24, 2016,
Palmer responded by filing a lawsuit in Michigan state court that sought penalty interest under
§ 500.2006(4). Scottsdale removed the case to federal court based on diversity jurisdiction.
Following the close of discovery, Scottsdale moved for summary judgment, arguing that
Palmer’s claim was time-barred under the Policy. In relevant part, the Policy provides that “[n]o
one may bring a legal action against [Scottsdale] under this Coverage Part unless . . . [t]he action
is brought within 2 years after the date on which the direct physical loss or damage occurred.”
(Emphasis added.) The district court agreed with Scottsdale’s argument and granted it summary
judgment. This timely appeal followed.
II. ANALYSIS
A. Standard of review
We review de novo the district court’s grant of summary judgment. Williams v. AT&T
Mobility Servs. LLC, 847 F.3d 384, 391 (6th Cir. 2017). Summary judgment is proper when
there is no genuine dispute of material fact and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The court “must view all evidence in the light most
favorable to the nonmoving party in making this determination.” Williams, 847 F.3d at 391.
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B. The district court erred in concluding that Palmer’s claim for penalty interest was
governed by the Policy’s two-year limitations provision.
Palmer filed its action for penalty interest over four years after the loss in question.
Whether this filing was timely is an issue of first impression. We must thus predict how the
Michigan Supreme Court would decide the issue. See Berrington v. Wal-Mart Stores, Inc.,
696 F.3d 604, 608 (6th Cir. 2012).
Scottsdale argues—and the district court agreed—that Palmer’s claim is one arising
“under the Policy,” and thus the Policy’s two-year-limitations provision applies. Palmer, on the
other hand, contends that because the claim is based on a Michigan statute, it does not arise
under the Policy, meaning that the Policy’s contractual limitations provision does not apply. The
first question that we must consider, then, is whether the penalty-interest claim is one arising
“under” the Policy. (We note that the Policy actually restricts application of its limitations
provision to actions arising under the “Coverage Part” of the Policy, an even narrower
delineation. But because Scottsdale and the district court focused on whether the action arose
“under the Policy,” and because we do not find the distinction material in this case, we will
similarly refer to whether the claim arises “under the Policy.”)
1. Applicable Michigan caselaw
The Policy does not contain any requirement that a covered loss be paid within a certain
timeframe. Nor does it contain any provision addressing “untimely” loss payments. These
provisions are found only in the relevant Michigan statutes. Scottsdale argues, however, that
Palmer’s penalty-interest claim is not “independent” from the underlying contract claim for
payment of the insured loss and thus derivatively arises under the Policy. To support its
argument, Scottsdale relies on isolated statements found in Hearn v. Rickenbacker, 400 N.W.2d
90 (Mich. 1987).
But Hearn does not support Scottsdale’s position. Hearn addressed the question of
whether the plaintiff’s claims for fraud and negligence relating to a fire insurance policy were
governed by that policy’s one-year-limitations provision. Id. at 92. The limitations provision
explicitly applied to any “suit or action on this policy.” Id. (emphasis in original). This caused
No. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 5
the Michigan Supreme Court to focus on whether the fraud and negligence claims amounted to
actions “on this policy.” Id. It held that they did not. Id. at 94.
The Michigan Supreme Court started its analysis by noting that the policy’s limitations
provision should apply “where a plaintiff’s claim is truly contractual in nature.” Id. at 92. When
determining if a claim is truly contractual in nature, a court should focus on the “nature of the
right sued upon” rather than “the form of [the] action or the relief demanded.” Id. (internal
quotations marks omitted) (quoting Richardson v. Allstate Inc. Co., 172 Cal. Rptr. 423, 426 (Cal.
Ct. App. 1981)). And “[i]t is important to distinguish an action ‘arising out of the contractual
relationship’ and one ‘on the policy.’” Id. at 93 (quoting Murphy v. Allstate Ins. Co., 147 Cal.
Rptr. 565, 574 (Cal. Ct. App. 1978)). Where the gravamen of the claim is a “continuing refusal”
to honor a claim of loss or otherwise fulfill obligations under the contract, the claim is generally
one “on the policy.” Id. (internal quotation marks omitted) (quoting McCarty v. First of
Georgia Ins. Co., 713 F.2d 609, 612 (10th Cir. 1983)). But where “the liability arises from the
breach of [a] positive legal duty imposed by law due to the relationships of the parties,” the claim
is independent of the contract. Id. at 92 (internal quotations marks omitted) (quoting Hoskins v.
Aetna Life Ins. Co., 452 N.E.2d 1315, 1320 (Ohio 1983)).
As the district court noted, Hearn distinguished between allegations of “negligence
associated with nonpayment of [a] claim” and allegations of negligence related to “the handling
of [] premiums and policy purchase generally, at a time prior to the . . . loss.” Id. at 93.
Although the former would be an action under the policy, the latter was not. Id. But by using
this distinction, Hearn simply makes clear that allegations that a defendant negligently failed to
pay a claim and thus fulfill its contractual obligations is really a claim for breach of contract—
unequivocally a claim “on the policy.”
Palmer, however, is not asserting a claim associated with nonpayment of a loss under the
terms of the policy. It is instead asserting a claim associated with the payment of the claim.
Palmer, in other words, does not contend that Scottsdale failed to pay the loss or otherwise
breached Scottsdale’s obligations under the Policy. To the contrary, Palmer argues that
Scottsdale breached a separate statutory obligation to pay losses owed under the Policy in a
No. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 6
timely manner. Hearn was concerned with contract claims that were simply rebranded as tort
claims to avoid the contractual limitations period. No such concern is implicated in this case.
Scottsdale also emphasizes that the holding in Hearn was based in part on a finding that
the “negligence and fraud claims were not associated with payment of the [loss] claim but with
breach of duties existing with respect to issues relating to policy procurement prior to the loss.”
Hearn did in fact note that the actions underlying the fraud and negligence claims occurred prior
to the fire loss. Hearn, 400 N.W.2d at 93. But that does not mean that a claim arising
simultaneously with a breach-of-contract claim cannot be independent from the contract claim.
Scottsdale nevertheless contends that, according to the language from Hearn discussed
above, the test for determining whether Palmer’s claim is one under the Policy is “whether [the]
penalty interest is associated with the payment of the underlying loss.” But, again, Hearn makes
clear that the key consideration is not one of “association,” but is instead the nature of the wrong
to be redressed. See Hearn, 400 N.W.2d at 94 (explaining that although “mere allegations of
failure to discharge obligations under the insurance contract” would not constitute a claim
independent from the policy, a claim for “the breach of separate and independent duties” does,
even if the claim evolved from the contractual relationship). In fact, Hearn forecloses the test
proposed by Scottsdale, noting that “a lawsuit seek[ing] to recover a loss that was covered by an
insurance policy” could still be considered an independent claim not on the policy as long as it
was based on the breach of a legal duty separate from any purely contractual duty. Id.
Applying the principles from Hearn to the facts of this case, we conclude that Palmer’s
penalty-interest claim does not arise from any legal duty created by the Policy. Rather, it arises
from an obligation created by § 500.2006(4). Scottsdale disagrees with this conclusion,
emphasizing that this statutory duty to pay penalty interest does not arise unless there is a
contractual obligation to pay a loss covered by the Policy. But “[t]o conclude . . . that because
the dispute . . . would not have arisen in the absence of the policy, the action must be ‘on the
policy’ . . . , would render the phrase . . . meaningless.” Id. (internal quotation marks omitted)
(quoting Picus v. Copus, 379 N.W.2d 341, 344 (Wis. Ct. App. 1985)). In other words, “[i]f the
limitations provision in question were intended to cover all suits ‘for the recovery of any claim,’
then the preceding words, ‘on this policy,’ would have been superfluous.” Id.
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Hearn further explains:
A mere contract obligation may establish no relation out of which a separate and
specific legal duty arises, and yet extraneous circumstances and conditions in
connection with it may establish such a relation as to make its performance a legal
duty, and its omission a wrong to be redressed. The duty and the tort grow out of
the entire range of facts of which the breach of the contract was but one.
Id. (internal quotation marks omitted) (quoting Oliver v. Perkins, 52 N.W. 609, 612 (Mich.
1892)). So the fact that Scottsdale’s obligation to timely pay the insured loss would not have
arisen but for the obligation to pay the loss in the first place does not mean that the claim for a
violation of § 500.2006(4) is a claim under the Policy.
Scottsdale’s obligation to pay the burglary and vandalism loss is simply a precondition
necessary for Palmer’s penalty-interest claim. And although Hearn specifically addressed
obligations arising under tort law, we do not find any reason why its analysis would not apply
equally to duties arising under a statute. Whether arising under tort law or statute, the obligation
here does not arise under the terms of the Policy.
In sum, Palmer does not allege that Scottsdale has breached the Policy agreement, nor has
Palmer brought a breach-of-contract claim. Scottsdale has in fact paid the insured loss up to the
limit of its liability under the Policy and has thus fulfilled its contractual obligations. Because
the Policy contains no time limit for paying a loss, Palmer has no unvindicated rights under the
Policy and therefore no claim “under the policy” to assert.
2. The language of § 500.2006(4) of the Michigan Compiled Laws
Scottsdale next argues that the language of § 500.2006(4) unequivocally links the
penalty-interest claim to the Policy. Again, the section provides as follows:
If benefits are not paid on a timely basis, the benefits paid bear simple interest
from a date 60 days after satisfactory proof of loss was received by the insurer at
the rate of 12% per annum, if the claimant is the insured or a person directly
entitled to benefits under the insured’s insurance contract.
Scottsdale emphasizes the statute’s reference to an insured entitled to benefits “under” the
contract. But this language simply identifies who may recover penalty-interest; it does not
identify the penalty-interest claim as one arising under the Policy.
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Scottsdale also argues that § 500.2006’s language establishes that an insurer’s obligation
to timely pay a loss arises only if it has an obligation to pay a loss under the Policy’s contractual
terms. We agree, but this does not mean that the penalty-interest claim is a claim under the
Policy. See Hearn, 400 N.W.2d at 92 (“Where a contractual limitation refers only to actions
upon a policy, it does not necessarily refer to different or collateral actions involving, in some
measure, the policy proceeds.”) (citation omitted).
Scottsdale cites several cases holding that an insured may not assert a claim for punitive
damages, penalty interest, or statutory appraisal related to the payment of a loss under an
insurance policy when a limitations provision bars a breach-of-contract claim under that policy.
See Musleh v. State Farm Fire & Cas. Co., No. 12-13843, 2012 WL 5493588, at *5 (E.D. Mich.
Nov. 13, 2012) (holding that where the insurer did not owe the plaintiffs any coverage under the
policy because any breach-of-contract claim to obtain payment was time-barred, the plaintiffs
could not bring a claim for statutory appraisal of their loss); Livonia Volkswagen, Inc. v.
Universal Underwriters Grp., No. 06-13619, 2008 WL 880189, at *7, 9 (E.D. Mich. Mar. 31,
2008) (dismissing claims for breach of contract and penalty interest where the breach-of-contract
claim was brought outside the contractual limitations period contained in the policy); Doeren
Mayhew & Co., P.C. v. CPA Mut. Ins. Co. of Am. Risk Retention Grp., No. 05-71782, 2007 WL
118939, at *8 (E.D. Mich. Jan. 10, 2007) (holding that a plaintiff’s claim for penalty interest
failed because the plaintiff was not entitled to payment for its loss under the policy); Florsheim
v. Travelers Indem. Co. of Illinois, 393 N.E.2d 1223, 1233 (Ill. App. Ct. 1979) (holding that a
plaintiff could not bring a claim for punitive damages for an insurer’s allegedly wrongful denial
of liability where the contractual limitations period prevented that plaintiff from recovering
actual damages on the policy).
But these cases simply mirror the language of § 500.2006 itself in establishing that an
insured may obtain penalty interest only when it is entitled to a recovery under the policy for an
insured loss. So if the insured has not shown and cannot show that it was entitled to payment for
an insured loss because the claim under the policy is time-barred, then the insured is unable to
establish that it is owed penalty interest.
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As Florsheim explains:
Finally, the plaintiff contends that the trial court erred in dismissing the claim for
punitive damages. It is true that the contractual limitation period generally does
not apply to different or collateral actions involving, in some measure, the policy
proceeds or growing out of the insurer’s duties to the insured. However,
Illinois[,] like most states, does not recognize a cause of action for punitive
damages alone; the plaintiff can only be awarded punitive damages where actual
damage is shown. The plaintiff here cannot recover actual damages since she
cannot now recover on the policy and she has not claimed any other injury which
might give rise to a claim for compensatory damages. Absent such a claim, the
claim for punitive damages had to fall when the claim for actual damages (the
amount of the loss) fell.
Florsheim, 393 N.E.2d at 1233 (internal citations omitted). The claim for punitive damages in
Florsheim thus failed not because it was brought outside of the contractual limitations period, but
because no breach-of-contract claim was brought within the limitations period. Without being
entitled to payment under the policy, the plaintiff in Florsheim had no claim for punitive
damages.
In contrast, the parties here do not dispute that Palmer was entitled to payment of its loss
under the Policy, and Scottsdale has paid that loss. This leaves no doubt that Scottsdale had an
obligation to timely make that payment under § 500.2006(4). Scottsdale failed to do so.
3. Pleading requirements for § 500.2006(4) of the Michigan Compiled Laws
Scottsdale next contends that claims for penalty interest under § 500.2006(4) do not need
to be pleaded in order for penalty interest to be recovered. As a result, Scottsdale argues, such a
claim cannot be an independent cause of action and must be considered a claim under the Policy.
To support the proposition that penalty-interest claims need not be pleaded, Scottsdale cites two
cases.
The first case, Hastings Mutual Insurance Co. v. Mosher Dolan Cataldo & Kelly, Inc.,
No. 296791, 2013 WL 1149790 (Mich. Ct. App. Feb. 14, 2013), is an unpublished opinion that is
not “precedentially binding” pursuant to the Michigan Court Rules. Mich. Court.
R. 7.215(C)(1). Hastings held that a claimant need not plead a claim for penalty interest in order
to recover it, stating that “[t]he omission of a requirement for the claimant to specially plead
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entitlement to the penalty is consistent with the general principles that there is no private cause of
action under [§ 500.2006(4)], and the purpose of the statute is to penalize dilatory insurers rather
than to compensate claimants.” Id. at *19. But Hastings’s conclusion that there is no cause of
action for penalty interest is flawed.
Hastings notes that Michigan courts “ha[ve] held several times that there is no private
cause of action for damages under [§] 500.2006,” id. at *18, but neither of the cases cited
supports that overbroad assertion. See Isagholian v. Transamerica Ins. Corp., 527 N.W.2d 13,
17 (Mich. Ct. App. 1994) (“We note that, in general, a violation of the Uniform Trade Practices
Act, M.C.L. § 500.2001 et seq.; M.S.A. § 24.12001 et seq., does not give rise to a private cause
of action.” (emphasis added)); Young v. Michigan Mut. Ins. Co., 362 N.W.2d 844, 847 (Mich. Ct.
App. 1984) (“There is no implied private cause of action in tort for violation of M.C.L.
§ 500.2006.” (emphasis added)).
And in reaching its holding, Hastings acknowledged the Michigan Supreme Court’s
discussion of § 500.2006(4) in Yaldo v. North Pointe Insurance Co., 578 N.W.2d 274, 277
(Mich. 1998), but dismissed that discussion as dicta. Hastings, 2013 WL 1149790, at *19.
Yaldo considered whether a plaintiff was entitled to prejudgment interest for a claim under an
insurance policy pursuant to § 600.6013(6). This section provides that “if a judgment is rendered
on a written instrument, interest is calculated from the date of filing the complaint to the date of
satisfaction of the judgment at the rate of 12% per year compounded annually.” Mich. Comp.
Laws § 600.6013(5). After concluding that the plaintiff was entitled to interest under this
provision, the Court identified § 500.2006(4) as an alternative source through which the plaintiff
could have obtained 12% interest. Yaldo, 578 N.W.2d at 277. The Court particularly noted that
the “plaintiff could have filed a claim under M.C.L. § 500.2006(4).” Id. (emphasis added). This
statement contradicts Hastings’s conclusion that § 500.2006(4) does not create a private cause of
action.
Yaldo also noted that there might be an overlap between the two interest provisions in
certain cases, but that § 500.2006(4) is distinct because it “allows an insured to recover twelve
percent interest from its insurer where no complaint has been filed to force payment. It applies
when the insurance company is dilatory in making timely payments to the insured.” Id. This
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gives further support to the conclusion that § 500.2006(4) addresses a wrong independent from
the insurance policy—dilatory conduct—that is beyond a failure to comply with contractual
obligations.
The second case cited by Scottsdale, Federal-Mogul Corp. v. Insurance Co. of State of
Pennsylvania, No. 12-12005, 2017 WL 2274489, at *5 (E.D. Mich. May 25, 2017), relies on
Hastings and thus errs for the same reasons. Moreover, Federal Mogul noted that Rule 54 of the
Federal Rules of Civil Procedure allows a plaintiff to recover penalty interest under
§ 500.2006(4) without explicitly pleading a claim for that relief. Id. at *6; Fed. R. Civ. P. 54(c)
(providing that a “final judgment should grant the relief to which each party is entitled, even if
the party has not demanded that relief in its pleadings”). Federal Mogul thus had multiple
distinct bases for its conclusion that a claim for penalty interest need not be pleaded,
undermining Scottsdale’s argument that there is no independent cause of action for penalty
interest under § 500.2006(4).
In fact, the clear weight of Michigan authority allows an insured to collect penalty
interest under § 500.2006(4), contrary to the holding in Hastings. See Young, 362 N.W.2d at
846–47 (“This Court has held that a private party may directly recover the interest penalty in an
action against the insurer.”); 1981-1982 Mich. Op. Att’y Gen. 326 (1981) (opining that
violations of § 500.2006 “are defined to be unfair trade practices and give the insured a right
apart from the provisions of the insurance contract”); Barker v. Underwriters at Lloyd’s, London,
564 F. Supp. 352, 355 (E.D. Mich. 1983) (“The Court finds that plaintiffs may assert a private
cause of action to recover the interest penalty in section 2006 of the UTPA since that section
provides that the insurer pay the interest penalty to the insured on claims not paid on a timely
basis.”). Scottsdale’s contention that there is no independent cause of action under § 500.2006 is
thus without merit.
C. The district court erred in concluding that Michigan’s general six-year statute of
limitations does not govern Palmer’s penalty-interest claim.
We now turn to the applicable limitations period. The parties agree that there is no
statutory provision that specifically provides a limitations period for bringing a claim for penalty
interest under § 500.2006(4). Palmer therefore argues that Michigan’s catch-all, six-year period
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of limitations set forth in § 600.5813 of the Michigan Compiled Laws should apply. This section
states: “All other personal actions shall be commenced within the period of 6 years after the
claims accrue and not afterwards unless a different period is stated in the statutes.” Scottsdale,
on the other hand, argues that the district court properly concluded that this catch-all provision
cannot apply because a claim for penalty interest under § 500.2006(4) is not a “personal action.”
Much of Scottsdale’s reasoning on this issue overlaps with its argument for why a penalty-
interest claim arises under the Policy. We have no need to readdress those arguments here.
The district court did not provide a definition for the term “personal action.” It simply
reasoned that because “[t]here is no implied private cause of action in tort for violation of
M.C.L. § 500.2006,” no “personal action” exists under that section. See Young, 362 N.W.2d
at 847 (emphasis added). The court then noted, without further explanation, that “penalty
interest does not satisfy the ‘personal action’ requirement under § 600.5813.”
But “the limitations period for an action does not hinge on the type of relief sought.”
Dep’t of Envtl. Quality v. Gomez, 896 N.W.2d 39, 50 (Mich. Ct. App. 2016); accord Mich.
Comp. Laws § 600.5815 (“The prescribed period of limitations shall apply equally to all actions
whether equitable or legal relief is sought.”). Accordingly, Gomez applied § 600.5813’s catch-
all, six-year limitations period to an action for civil fines and the restoration of wetland areas.
Gomez, 896 N.W.2d at 50–51. And in DiPonio Construction Co. v. Rosati Masonry Co., 631
N.W.2d 59, 65–66 (Mich. Ct. App. 2001), the Michigan Court of Appeals similarly held that the
residual six-year statute of limitations in § 600.5813 applies to statutory causes of action,
including those for civil fines. In reaching that conclusion, DiPonio contrasted actions for
statutory violations with actions to redress injuries resulting from traditional torts, noting that the
limitations periods set out in § 600.5805 apply to the latter. Id.
Scottsdale defends the district court’s conclusion by citing a nonmajority opinion in
Borden, Inc. v. State Department of Treasury, Corp. Franchise Fee Division, 218 N.W.2d 667
(Mich. 1974). Borden, it argues, shows that a “personal action” is limited to an action to recover
“damages for the commission of an injury to [a] person or property.” We find this argument
unavailing because the Michigan Supreme Court in Borden split three–three so the opinion is not
binding precedent. See Dean v. Chrysler Corp., 455 N.W.2d 699, 701 n.7 (Mich. 1990)
No. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 13
(“A ‘majority of the Court must agree on a ground for decision in order to make that binding
precedent for future decisions.’” (quoting People v. Anderson, 205 N.W.2d 461, 467 (Mich.
1973))).
Moreover, Scottsdale’s argument is weakened by reference to § 600.5805 of the
Michigan Compiled Laws, which provides specific limitations periods for actions redressing
injuries to persons or property, including a catch-all provision in subsection 10. See Mich.
Comp. Laws § 600.5805(10) (“Except as otherwise provided in this section, the period of
limitations is 3 years after the time of the death or injury for all actions to recover damages for
the death of a person, or for injury to a person or property.”); DiPonio, 631 N.W.2d at 66 (“[I]f
plaintiff pled malpractice or some other traditional, common-law tort, then we must apply
§ 5805. Otherwise, § 5813 would be appropriate.” (quotation marks omitted)). If a “personal
action” in § 600.5813 were limited only to actions to recover damages related to injuries to
persons or property, these two provisions would be redundant.
Scottsdale’s ultimate argument on this issue is that Palmer has failed to show that Mich.
Comp. Laws § 600.5813 applies to actions for penalty interest. But Scottsdale has provided no
reason for why the statute should not so apply. The language of the section is broad, covering
“[a]ll other personal actions.” And the Michigan legislature meant it to be a catch-all provision
that applies regardless of the type of relief sought. See Mich. Comp. Laws § 600.5815 (“The
prescribed period of limitations shall apply equally to all actions whether equitable or legal relief
is sought.”).
The parties also dispute the date that a claim for penalty interest accrues. Palmer argues
that, pursuant to the language of § 500.2006(4), a penalty-interest claim accrues “at the time of
payment of the loss.” Because Scottsdale believes that the penalty-interest claim is inextricably
connected with the Policy, it contends that any claim for penalty interest would accrue on the
actual date of loss. But we need not decide this question because, even if the penalty-interest
claim accrued at the time of the actual loss, the claim would still have been filed well within the
six-year limitations period set out in § 600.5813.
No. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 14
D. Additional arguments
Palmer argues in the alternative that, even if the two-year contractual limitations period
applies to its claim for penalty interest, its claim is timely because the period was tolled under
§ 500.2833(1)(q) of the Michigan Compiled Laws. The district court disagreed, concluding that
surplus-lines insurers like Scottsdale are “not subject to the general provisions of Michigan’s
Insurance Code,” including § 500.2833(1)(q). (In contrast to the district court, Scottsdale
contends more narrowly that surplus-lines insurers are exempted from only the substantive
requirements of § 500.2833(1)). We need not reach this alternative argument because our
conclusion that Palmer’s claim is a personal action governed by the six-year limitations period
found in § 600.5813 is dispositive of the appeal. For the same reasons, we have no need to
resolve Palmer’s argument that Scottsdale waived any limitations defense.
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the judgment of the district court
and REMAND the case for further proceedings consistent with this opinion.