Perkovic v. Zurich American Insurance Company

STATE OF MICHIGAN
COURT OF APPEALS
DRAGEN PERKOVIC, FOR PUBLICATION
September 10, 2015
Plaintiff-Appellant, 9:00 a.m.
v No. 321531
Wayne Circuit Court
ZURICH AMERICAN INSURANCE LC No. 09-019740-NF
COMPANY,
Defendant-Appellee.
Before: TALBOT, P.J., and WILDER and FORT HOOD, JJ.
WILDER, J.
Plaintiff, Dragen Perkovic, appeals as of right an order granting summary disposition to
defendant, Zurich American Insurance Company. We affirm.
This case arises out of a car accident that occurred on February 28, 2009. Plaintiff was
the driver and owner of a semi-truck, which he leased to E.L. Hollingsworth and Company
(“Hollingsworth”) pursuant to an independent contractor’s operating agreement. Hollingsworth
had an automobile insurance policy with defendant that covered Hollingsworth’s equipment and
vehicles it leased. Plaintiff also had a personal automobile insurance policy through Citizens
Insurance Company (Citizens) and a “bobtail” insurance policy through Hudson Insurance
Company (Hudson) for when the vehicle was not being operated for Hollingsworth.
On February 28, 2009, while plaintiff was driving down an interstate, the car in front of
plaintiff began to spin, and plaintiff swerved to avoid the car. As a result, plaintiff drove his
truck into a wall. Plaintiff subsequently received emergency medical treatment at The Nebraska
Medical Center.
On April 30, 2009, James White, a custodian of records for The Nebraska Medical
Center, mailed to defendant a medical bill for services performed on plaintiff and plaintiff’s
medical records. According to White’s affidavit, the medical bill and plaintiff’s medical records
were sent by White on behalf of plaintiff in order to obtain payment for his accident related
injuries. The medical bill listed “Dragen Perkovic” as the “Insured’s Name” and provided
plaintiff’s address of 3472 South Blvd., Bloomfield Hills, MI 48304. Plaintiff’s medical records
also included plaintiff’s name as the insured, provided a policy number and provided plaintiff’s
address. Plaintiff’s medical records stated:
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46 yo male semi truck driver. R upper back pain after MVC. States that he was
driving down interstate when car in front of him began to spin, he swerved to
avoid the car since in semi and ran into a wall hitting front driver side.
Plaintiff’s Medical Record further stated that plaintiff suffered a “back sprain, cervical sprain or
fracture, chest wall contusion, contusion, head injury, liver injury, myocardial contusion,
pneumothorax, splenic injury, sprained or fractured extremity.”
On May 19, 2009, defendant sent notice to The Nebraska Medical Center indicating that
it was denying payment for the services rendered to plaintiff. Defendant stamped the statement,
“No injury report on file for this person,” on the medical bill for the services performed on
plaintiff.
As stated in the trial court’s opinion granting summary disposition:
On August 11, 2009, Plaintiff filed his Complaint against Citizens. On
February 12, 2010, Plaintiff amended his Complaint to add Hudson, Business
Insurers of America, Inc.[,] BIA Associates, Inc.[,] and Forsyth/BIA, Inc.[,] as
defendants. On March 23, 2010, defendants Business Insurers of America, Inc.,
BIA Associates, Inc.[,] and Forsyth/BIA, Inc[.] were voluntarily dismissed from
this lawsuit. It was not until March 25, 2010, more than a year after the accident,
that Plaintiff filed his Second Amended Complaint adding Zurich as a defendant.
The Michigan Department of State Assigned Claim Facility was also added as a
defendant on December 9, 2010, but was dismissed from the lawsuit on May 18,
2011.
On September 9, 2010, in its Opinion and Order, the Honorable Michael
F. Sapala granted Zurich’s motion for summary disposition, dismissed Hudson
and named Citizens the highest priority insurer. Subsequently, Citizens filed a
motion for reconsideration, which was granted on November 8, 2010. In its
Opinion and Order, Judge Sapala dismissed Citizens and named Hudson the
highest priority insurer. Thereafter, Hudson filed a motion for reconsideration.
The motion was denied in a February 11, 2011 Opinion and Order which
confirmed Hudson had priority over Zurich and dismissed all claims against
Citizens.
On December 20, 2012, [this Court] reversed [the trial court’s] decision,
ruling that Zurich is the highest priority insurer, and dismissed all claims against
Hudson.[1] The court held that MCL 500.3114(3) applied in this case and upheld
Hudson’s exclusion of coverage provision reasoning that, because Zurich
provided coverage, the Hudson and Zurich policies together provided Plaintiff
1
See Perkovic v Hudson Insurance Co, unpublished opinion per curiam of the Court of Appeals,
issued December 20, 2012 (Docket No. 302868).
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with continuous coverage. Zurich’s application for leave to appeal was denied on
April 29, 2013.[2] [Footnotes added.]
On August 7, 2013, defendant filed a motion for summary disposition pursuant to MCR
2.116(C)(7) because dismissal of plaintiff’s claim was required as a result of the statute of
limitations set forth in MCL 500.3145. Defendant claimed that no written notice of injury was
provided to it within one year immediately following plaintiff’s accident and no payment of
benefits had been made to plaintiff.
On October 2, 2013, plaintiff filed a response to defendant’s motion for summary
disposition. Plaintiff contended that he complied with the notice requirement as White sent The
Nebraska Medical Center medical bill and medical records to defendant on April 30, 2009. The
medical bill and record were in written form and specifically stated plaintiff’s address and the
nature of plaintiff’s injury.
On October 3, 2013, defendant filed a reply to plaintiff’s response to defendant’s motion
for summary disposition. Defendant argued that the medical records sent to it are insufficient
notice because nothing from the medical records indicated that plaintiff intends to make a claim
for personal protection insurance benefits. Moreover, the mailing was not from plaintiff, was not
sent on plaintiff’s behalf, and was not even known about by plaintiff.
On October 4, 2013, the trial court heard arguments on defendant’s motion for summary
disposition and the parties argued consistent with their briefs. On February 20, 2014, the trial
court entered an order granting defendant’s motion for summary disposition. The trial court first
distinguished Lansing Gen Hosp, Osteopathic v Gomez, 114 Mich. App. 814; 319 NW2d 683
(1982), stating that ‘[t]here was no question in Gomez that the agent was providing the notice
with the intent to file a claim.” The trial court then stated:
Turning to the case at bar, the Court notes that Mr. White’s affidavit states
that the bill and records were sent to Zurich on behalf of Plaintiff to obtain
payment for his accident related injuries. This is different and distinguishable
from sending a notice of injury for the purpose of opening a claim for personal
injury protection no-fault benefits on behalf of Plaintiff. Furthermore, there was
no additional document enclosed or statement written on the medical records,
which would indicate any intention to file a claim on Plaintiff’s behalf.
Moreover, there is no evidence that Plaintiff even had any knowledge that the
Nebraska Medical Center billed Zurich for the services it rendered. Had Plaintiff
authorized the Nebraska Medical Center to send a notice of intent to file a claim,
or even had knowledge that a notice was sent, the fact that Plaintiff would have
had an open claim with Zurich would have been alleged in his Second Amended
Complaint adding Zurich to the instant lawsuit. However, the Second Amended
Complaint provides that “A Claim Number has not yet been assigned by
Defendants or is currently unknown.”
2
See Perkovic v Hudson Insurance Co, 493 Mich. 971; 829 NW2d 197 (2013).
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Likewise, had the Nebraska Medical Center been tasked with the duty to
provide notice of intent to file a claim on Plaintiff’s behalf, it would have
certainly communicated with either Zurich, providing them with a sufficient
notice, or with Plaintiff, letting him know that no claim for personal protection
insurance benefits had been opened, after receiving notice from Zurich that no
injury report existed for Plaintiff.
Therefore, the Court finds that a medical care provider sending bills and
corresponding medical records to obtain payment for the services it rendered to
the injured individual does not satisfy the requirements of MCL 500.3145. The
purpose of sending the notice is to file a claim, not to obtain payment. Allowing
unexplained bills and medical records, without more, to serve the notice
requirements of MCL 500.3145 would defeat the purpose of the statute, as
medical providers would have an incentive to bill every possible insurance
company to increase their chance of getting paid for the services they render to an
injured person. This, in turn, would place an undue burden on insurance
companies to investigate every bill sent to them by a medical provider when there
is no existing claim or injury report for the injured individual named on the bill.
Accordingly, the Court holds that there has to be some evidence that Plaintiff, or
someone on his behalf, is intending to file a claim for personal protection
insurance benefits for the notice requirement to be satisfied. [Citation omitted.]
Thereafter, plaintiff filed a motion for reconsideration, which the trial court denied.
On appeal, plaintiff contends that the trial court erred in granting summary disposition to
defendant because there is no requirement that the documents be sent with the intent to file a
claim; therefore, plaintiff provided sufficient notice pursuant to MCL 500.3145(1). We disagree.
A grant or denial of summary disposition is reviewed de novo. Shay v Aldrich, 487 Mich.
648, 656; 790 NW2d 629 (2010). When deciding whether a motion for summary disposition
under MCL 2.116(C)(7) was properly decided, we must “consider all documentary evidence and
accept the complaint as factually accurate unless affidavits or other documents presented
specifically contradict it.” Id. “If no facts are in dispute, and if reasonable minds could not
differ regarding the legal effect of the facts, the question whether the claim is barred is an issue
of law for the court.” Dextrom v Wexford Co, 287 Mich. App. 406, 431; 789 NW2d 211 (2010).
MCL 500.3145(1) provides:
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 or
unless the insurer has previously made a payment of personal protection insurance
benefits for the injury. If the notice has been given or a payment has been made,
the action may be commenced at any time within 1 year after the most recent
allowable expense, work loss or survivor's loss has been incurred. However, the
claimant may not recover benefits for any portion of the loss incurred more than 1
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year before the date on which the action was commenced. 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 Devillers v Auto Club Ins Ass’n, 473 Mich. 562, 574; 702 NW2d 539 (2005), the Michigan
Supreme Court explained:
[Section] 3145(1) contains two limitations on the time for filing suit and one
limitation on the period for which benefits may be recovered:
(1) An action for personal protection insurance [PIP] benefits must
be commenced not later than one year after the date of accident,
unless the insured gives written notice of injury or the insurer
previously paid [PIP] benefits for the injury.
(2) If notice has been given or payment has been made, the action
may be commenced at any time within one year after the most
recent loss was incurred.
(3) Recovery is limited to losses incurred during the one year
preceding commencement of the action.
The Court recognized that the language of the statute “must be enforced according to its plain
meaning, and cannot be judicially revised or amended to harmonize with the prevailing policy
whims of members of this Court.” Id. at 582.
In this case, the medical bill and plaintiff’s medical records listed “Dragen Perkovic” as
the “insured” and provided his address of “3472 South Blvd, Bloomfield Hills, MI 48304.” The
medical records also indicated that Dragen Perkovic was the person injured, that he was admitted
to The Nebraska Medical Center in Omaha, Nebraska, at 12:03 p.m. on February 28, 2009, after
a car accident that occurred on the interstate, and that he suffered a “back sprain, cervical sprain
or fracture, chest wall contusion, contusion, head injury, liver injury, myocardial contusion,
pneumothorax, splenic injury, sprained or fractured extremity.” Thus, the notice provided
plaintiff’s name and address, and indicated in ordinary language the name of the person injured
and the time, place, and nature of his injury. Additionally, the medical bill and medical records
were given to defendant within one year after the accident, as the accident occurred on February
29, 2009, and the medical bill and medical records were sent to defendant on April 30, 2009.
Defendant, however, contends that MCL 500.3145(1)’s requirement that the notice be
made by “a person claiming to be entitled to benefits therefor, or by someone in his behalf”
means that the information must convey the intent to make a claim for PIP benefits. Defendant
cites an unpublished decision that relied on the Michigan Supreme Court’s decision in Welton v
Carriers Ins Co, 421 Mich. 571, 579-580; 365 NW2d 170 (1984), overruled in part by Devillers,
473 Mich. at 574. In Welton, the Michigan Supreme Court required the plaintiff to make a
specific claim for personal protection insurance benefits to trigger tolling of the one-year-back
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rule set forth in MCL 500.3145 because “something more than a general notice of injury [was
required to toll the one-year-back rule].” Devillers, 473 Mich. at 576. The Court stated that
“[u]ntil a specific claim is made, an insurer has no way of knowing what expenses have been
incurred, whether those expenses are covered losses and, indeed, whether the insured will file a
claim at all.” Welton, 421 Mich. at 579. However, Welton involved the tolling of the one-year-
back rule, which is not at issue here, and, in fact, is no longer permitted. Devillers, 473 Mich. at
593. Thus, the analysis from Welton is not applicable in this case.
Regarding the notice provision enabling claimants to extend the period for recovery of
personal protection insurance benefits up to one additional year, which is at issue in this case,
this Court explained in Dozier v State Farm, 95 Mich. App. 121, 128; 290 NW2d 408 (1980):
The policy and purposes such statutes are intended to serve have been
stated thus:
“Statutes of limitations are intended to ‘compel the exercise
of a right of action within a reasonable time so that the opposing
party has a fair opportunity to defend’; ‘to relieve a court system
from dealing with “stale” claims, where the facts in dispute
occurred so long ago that evidence was either forgotten or
manufactured’; and to protect ‘potential defendants from
protracted fear of litigation’.”
Notice provisions have different objectives than statutes of limitations:
“Notice provisions are designed, inter alia, to provide time
to investigate and to appropriate funds for settlement purposes.”
In light of these objectives, and the existence in a single statutory
provision of both a notice provision and a limitation of action provision, we
conclude that substantial compliance with the written notice provision which does
in fact apprise the insurer of the need to investigate and to determine the amount
of possible liability of the insurer’s fund, is sufficient compliance under s 3145(1).
[Citations omitted.]
In Dozier, the plaintiffs’ attorney sent a letter to the defendant indicating that he had been
retained to represent the plaintiffs regarding the injuries sustained “in the accident of June 9th”
and claiming “a lien on any and all settlements in regard to this accident.” Id. at 124. This Court
indicated that the letter informed the defendant of the accident and, as the credibility of the letter
was untainted, it provided the defendant adequate warning to permit it to conduct an
investigation of the matter. Id. at 129-120. However, because the letter did not indicate in
ordinary language the place and nature of the injury, the defendant was denied knowledge of the
essential facts upon which its liability depends and, therefore, could not appropriate funds for
settlement purposes. Id. at 130. Nonetheless, the Court did not actually decide whether the
notice was sufficient because it concluded that the defendant waived its right to assert the
insufficiency of the notice. Id.
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In Walden v Auto Owners Ins Co, 105 Mich. App. 528, 530; 307 NW2d 367 (1981), the
plaintiff orally reported the accident in which he was involved to his insurance agent who filled
out an “Auto Accident Notice” and transmitted it to the defendant. This Court held that the
notice was not fatally defective because the injury section was not completed. Id. at 534. Citing
Dozier, the Court concluded that “the accident form was even more complete in that it gave the
name and address of the claimant, the time and place of the vehicular accident, and specified that
plaintiff rolled over while in his truck.” Walden, 105 Mich. App. at 534.
Similarly, in Lansing Gen Hosp, Osteopathic v Gomez, 114 Mich. App. 814, 819; 319
NW2d 683 (1982), the policyholder orally notified his insurance agent about the accident
involving his vehicle and the agent provided written notice to the defendant. This Court held
that the written notification describing the time and the place of the accident was sufficient even
though the notice did not name the claimant because he could not be located. Id. at 825. The
Court concluded that the written notification, describing the time and place of the accident, was
sufficient to provide time for the defendant to investigate the accident. Id.
In Heikkinen v Aetna Cas & Sur Co, 124 Mich. App. 459, 461; 335 NW2d 3 (1981), the
plaintiff’s husband died after being overcome by the exhaust fumes of his vehicle. The plaintiff
was insured by the defendant and obtained a policy through an agent who also prepared income
tax returns. Id. The plaintiff provided the insurance agent with a copy of her husband’s death
certificate for purposes of preparing her tax returns. Id. She argued that the death certificate
constituted notice under MCL 500.3145(1). Id. at 463. Analyzing Dozier, the Court stated that
“[t]he letter in Dozier, although not strictly complying with the contents requirements of notice,
did fulfill the purposes of the limitations and notice provisions of the statute.” Heikkinen, 124
Mich. App. at 463. The Court stated:
The instant case involves a mirror image of the Dozier facts. Plaintiff had
strictly complied with the contents requirements for notice but did not fulfill the
purposes of the limitations and notice provisions of § 3145(1). The death
certificate received by Mr. Gilmore contained all the requisite information but it
was not presented to him under circumstances indicating that a claim in
connection with the death might be asserted. Mr. Gilmore was preparing
plaintiff’s tax return. No discussions concerning the policy were held at this time
or any other time. Although plaintiff had previously informed Mr. Gilmore of her
husband’s death, she stated this was for the purpose of removing her husband’s
name from the policy of insurance. She did not indicate she was asserting a claim
and in fact testified that she was unaware of the existence of any claim either at
the time of the telephone call or at the time the death certificate was presented for
purposes of preparing the tax return. Under these circumstances, Mr. Gilmore
was not apprised of the need to investigate and appropriate funds nor of the need
to inform Aetna to do so.
Notice encompasses something more than words typed on a piece of
paper. The words should be presented in a form, or under circumstances,
designed to “in fact apprise the insurer of the need to investigate and to determine
the amount of possible liability of the insurer’s fund”.
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The death certificate presented in connection with preparation of the
plaintiff’s tax return, although sufficient in content, did not fulfill the purposes of
the statute. Therefore, the death certificate did not constitute notice under the
statute. The trial judge did not err in granting defendant’s motion. [Heikkinen,
124 Mich. App. at 463-463 (citation omitted).]
In Joiner v Michigan Mutual Ins Co, 137 Mich. App. 464, 470; 357 NW2d 875 (1984),
this Court recognized that prior decisions of the Court had held “that where the no-fault insurer
and the workers’ compensation insurer are the same entity, notice of a workers’ compensation
claim does not necessarily satisfy the notice requirements of § 3145(1), where the notice is not
likely to alert the insurer to the pendency of a possible no-fault claim.” In one prior decision, the
Court had stated that “mere notice of an injury under circumstances unrelated to a possible claim
for no-fault benefits does not trigger the insurer’s investigative procedures nor does it advise the
insurer of the need to appropriate funds for settlement.” Id. at 471. However, in Joiner, the
plaintiff’s complaint with the Insurance Bureau contained a handwritten statement indicating that
the plaintiff had filed for both no-fault benefits and workers’ compensation benefits, and also
clearly stated that the accident involved a motor vehicle. Id. at 472. Thus, the Court held “that
the complaint was designed to and did in fact apprise defendant of the pendency of a possible no-
fault claim.” Id.
While this Court does not always require strict, technical compliance with the
requirements of MCL 500.3145(1), in Dozier, Walden, and Gomez there was no indication that
the defendant was unaware of a possible no-fault claim. The defendants in those cases were sent
either a letter or a written notice form. See Gomez, 114 Mich. App. at 819; Walden, 105 Mich
App at 530; Dozier, 95 Mich. App. at 124. We agree with the trial court that “[t]here was no
question in Gomez that the agent was providing the notice with the intent to file a claim.” This is
similarly true in Dozier and Walden.
In this case, however, no letter or written notice form was sent that would alert defendant
to the possible pendency of a no-fault claim. See Joiner, 137 Mich. App. at 472. Rather, the
medical bill and medical records were sent to defendant without any indication of a possible
claim. In fact, according to White, the bill and records were sent for the purpose of obtaining
payment. This notice of injury, which was unrelated to a possible claim for no-fault benefits, did
not trigger defendant’s investigative procedures or advise defendant of the need to appropriate
funds for settlement. See id. at 471. Similar to the death certificate in Heikkinen, 124 Mich. App.
at 464, the medical bill and medical records, although sufficient in content, did not fulfill the
purposes of the statute. Accordingly, plaintiff did not provide sufficient notice pursuant to MCL
500.3145(1) and the trial court properly granted summary disposition in favor of defendant.
Affirmed. As the prevailing party, defendant may tax costs pursuant to MCR 7.219.
/s/ Kurtis T. Wilder
/s/ Michael J. Talbot
/s/ Karen M. Fort Hood
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