D Ellen M Andary v. Usaa Casualty Insurance Company

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ELLEN M. ANDARY, a Legally Incapacitated FOR PUBLICATION
Person, by and through her Conservator and August 25, 2022
Guardian, MICHAEL T. ANDARY, M.D., PHILIP
KRUEGER, a Legally Incapacitated Person, by and
through his Guardian, RONALD KRUEGER, and
MORIAH, INC., doing business as EISENHOWER
CENTER,
Plaintiffs-Appellants,
v No. 356487
Ingham Circuit Court
USAA CASUALTY INSURANCE COMPANY and LC No. 19-000738-CZ
CITIZENS INSURANCE COMPANY OF
AMERICA,
Defendants-Appellees.
Before: MARKEY, P.J., and SHAPIRO and PATEL, JJ.
MARKEY, P.J. (dissenting).
I respectfully dissent. Pursuant to 2019 PA 21 and 2019 PA 22, our Legislature made
sweeping changes to the Michigan no-fault act, MCL 500.3101 et seq., which became effective
June 11, 2019. This appeal concerns the application of some of those amendments, specifically
the added language in MCL 500.3157(2), (7), and (10), to circumstances in which accidental
bodily injuries arising from automobile accidents were sustained before the effective date of the
no-fault amendments. MCL 500.3157, as amended by 2019 PA 21, sets forth fee schedules and
otherwise places limitations with respect to the payment of personal protection insurance (PIP)
benefits. These schedules and limitations did not previously exist. In their complaint, plaintiffs
raised challenges to the amendatory legislation under the Michigan Constitution. The trial court
granted summary disposition under MCR 2.116(C)(8) in favor of defendants, USAA Casualty
Insurance Company (USAA) and Citizens Insurance Company of America (Citizens), concluding,
as a matter of law, that there was no violation of due process, Const 1963, art 1, § 17, no violation
of equal protection, Const 1963, art 1, § 2, and no violation of the Contracts Clause, Const 1963,
art 1, § 10. The court also denied plaintiffs’ motion to amend their complaint. On appeal, plaintiffs
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argue that the trial court’s rulings were erroneous. Plaintiffs additionally raise a new argument,
contending that the amendment of MCL 500.3157 should not be applied retroactively to reach
motor-vehicle accidents that occurred before June 11, 2019, because the Legislature expressed no
such intent. The majority agrees with plaintiffs’ newly formed argument on retroactivity and with
their claim regarding the Contracts Clause. I conclude that the legislative changes made to MCL
500.3157 apply to automobile accidents that occurred before June 11, 2019. I would also find that
plaintiffs’ constitutional claims fail. Accordingly, I would affirm the trial court’s ruling granting
summary disposition to defendants.
I. STANDARD OF REVIEW1
This Court reviews de novo a trial court’s ruling on a motion for summary disposition. El-
Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). We also review
de novo questions concerning the interpretation and application of a statute. Estes v Titus, 481
Mich 573, 578-579; 751 NW2d 493 (2008). This Court similarly reviews de novo issues regarding
the constitutionality of a statute. Makowski v Governor, 495 Mich 465, 470; 852 NW2d 61 (2014).
II. SUMMARY DISPOSITION PRINCIPLES UNDER MCR 2.116(C)(8)
In The Gym 24/7 Fitness, LLC v Michigan, ___ Mich ___,___; ___ NW2d ___ (2022); slip
op at 8, this Court articulated the principles that govern review of a motion for summary disposition
brought under MCR 2.116(C)(8):
The issues raised on appeal also implicate MCR 2.116(C)(8), which
provides for summary disposition when a “party has failed to state a claim on which
relief can be granted.” MCR 2.116(C)(8) tests the legal sufficiency of a complaint.
Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). In rendering its
decision under MCR 2.116(C)(8), a trial court may only consider the pleadings. Id.The trial court must accept as true all of the factual allegations in the complaint.
Dolan v Continental Airlines/Continental Express, 454 Mich 373, 380-381; 563
NW2d 23 (1997). “The motion should be granted if no factual development could
possibly justify recovery.” Beaudrie, 465 Mich at 130.
III. MCL 500.3157
In 2019, the Michigan Legislature enacted 2019 PA 21 and 2019 PA 22, comprehensively
amending the no-fault act. Relevant for our purposes was the overhaul of MCL 500.3157, which
before the amendment provided in full as follows:
A physician, hospital, clinic or other person or institution lawfully rendering
treatment to an injured person for an accidental bodily injury covered by personal
protection insurance, and a person or institution providing rehabilitative
occupational training following the injury, may charge a reasonable amount for the
1
I agree with the majority’s discussion regarding the factual and procedural history of the
litigation.
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products, services and accommodations rendered. The charge shall not exceed the
amount the person or institution customarily charges for like products, services and
accommodations in cases not involving insurance. [1972 PA 294 (emphasis
added).]
The amendment of MCL 500.3157 by the Legislature under 2019 PA 21 added fee
schedules and limitations with respect to the payment of PIP benefits, providing, in pertinent part:
(2) Subject to subsections (3) to (14), a physician, hospital, clinic, or other
person that renders treatment or rehabilitative occupational training to an injured
person for an accidental bodily injury covered by personal protection insurance is
not eligible for payment or reimbursement under this chapter for more than the
following:
(a) For treatment or training rendered after July 1, 2021 and before July 2,
2022, 200% of the amount payable to the person for the treatment or training under
Medicare.
(b) For treatment or training rendered after July 1, 2022 and before July 2,
2023, 195% of the amount payable to the person for the treatment or training under
Medicare.
(c) For treatment or training rendered after July 1, 2023, 190% of the
amount payable to the person for the treatment or training under Medicare.
* * *
(7) If Medicare does not provide an amount payable for a treatment or
rehabilitative occupational training under subsection (2), (3), (5), or (6), the
physician, hospital, clinic, or other person that renders the treatment or training is
not eligible for payment or reimbursement under this chapter of more than the
following, as applicable:
(a) For a person to which subsection (2) applies, the applicable following
percentage of the amount payable for the treatment or training under the person’s
charge description master in effect on January 1, 2019 or, if the person did not have
a charge description master on that date, the applicable following percentage of the
average amount the person charged for the treatment on January 1, 2019:
(i) For treatment or training rendered after July 1, 2021 and before July 2,
2022, 55%.
(ii) For treatment or training rendered after July 1, 2022 and before July 2,
2023, 54%.
(iii) For treatment or training rendered after July 1, 2023, 52.5%.
* * *
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(10) For attendant care rendered in the injured person’s home, an insurer is
only required to pay benefits for attendant care up to the hourly limitation in section
315 of the worker’s disability compensation act of 1969, 1969 PA 317, MCL
418.315.[2] This subsection only applies if the attendant care is provided directly,
or indirectly through another person, by any of the following:
(a) An individual who is related to the injured person.
(b) An individual who is domiciled in the household of the injured person.
(c) An individual with whom the injured person had a business or social
relationship before the injury.
IV. ALLEGED RETROACTIVE APPLICATION
In determining whether a statutory enactment should be applied prospectively or
retroactively, the overriding rule of construction is that the intent of the Legislature governs, and
all other rules of interpretation and operation are subservient to this principle. Buhl v Oak Park,
507 Mich 236, 243-244; 968 NW2d 348 (2021). A statute is presumed to apply prospectively only
unless the Legislature clearly manifested an intent that the statute apply retroactively. Johnson v
Pastoriza, 491 Mich 417, 429-430; 818 NW2d 279 (2012).3 The retroactive application of a
newly-enacted statute can present problems of unfairness, potentially depriving citizens of
legitimate expectations or upsetting settled transactions; therefore, we have required the
Legislature to make clear its intentions when it enacts a law with retroactive effect. LaFontaine
Saline, Inc v Chrysler Group, LLC, 496 Mich 26, 38; 852 NW2d 78 (2014). “This is especially
true if retroactive application of a statute would impair vested rights, create a new obligation and
impose a new duty, or attach a disability with respect to past transactions.” Frank W Lynch & Co
v Flex Technologies, Inc, 463 Mich 578, 583; 624 NW2d 180 (2001).
PIP benefits are payable for “[a]llowable expenses consisting of reasonable charges
incurred for reasonably necessary products, services and accommodations for an injured person’s
care, recovery, or rehabilitation.” MCL 500.3107(1)(a). “Personal protection insurance benefits
payable for accidental bodily injury accrue not when the injury occurs but as the allowable
expense, work loss or survivors’ loss is incurred.” MCL 500.3110(4). Prospective expenses for
future accommodations and services are not yet incurred; therefore, the insurer cannot be held
liable to pay for such expected costs. Proudfoot v State Farm Mut Ins Co, 469 Mich 476, 483-
484; 673 NW2d 739 (2003). Accordingly, a motor-vehicle accident and injuries sustained therein
do not trigger an immediate right to the payment of PIP benefits. Rather, it is the treatment of
2
MCL 418.315(1) states, in part, that “[a]ttendant or nursing care shall not be ordered in excess
of 56 hours per week if the care is to be provided by the employee’s spouse, brother, sister, child,
parent, or any combination of these persons.”
3
Our Supreme Court has also stated that “[a] statute is construed to have prospective effect only
unless the Legislature expressly, or impliedly, indicates its intention to give it retrospective effect.”
Hughes v Judge’s Retirement Bd, 407 Mich 75, 85; 282 NW2d 160 (1979).
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those injuries that gives rise to an entitlement to benefits. “It is a well-known principle that the
Legislature is presumed to be aware of, and thus to have considered the effect on, all existing
statutes when enacting new laws.” Walen v Dep’t of Corrections, 443 Mich 240, 248; 505 NW2d
519 (1993).
MCL 500.3157 concerns a no-fault insurer’s obligation to pay for treatment or training,
and, under existing Michigan law, PIP benefits to cover the cost of treatment or training accrue
only when the expense is incurred, i.e., when the injured person receives the treatment or training.
And the fee schedules and payment limitations in MCL 500.3157 were made applicable to
treatment or training rendered in the future. Consequently, the no-fault amendments regarding the
payment of PIP benefits for the costs associated with the treatment or training provided to a person
who suffered accidental bodily injury operate prospectively. The Legislature did not make MCL
500.3157 applicable to previously-received treatment or training.
I acknowledge that treatment or training necessarily relates to an antecedent event—the
underlying motor-vehicle accident. It is true, however, that “[a] statute is not regarded as operating
retrospectively because it relates to an antecedent event[,]” or, in other words, “[m]erely because
some of the requisites for [a statute’s] application are drawn from a time antedating its passage
does not constitute a law retrospective.” Hughes v Judge’s Retirement Bd, 407 Mich 75, 86; 282
NW2d 160 (1979), citing Clearwater Twp v Kalkaska Co Bd of Supervisors, 187 Mich 516, 521;
153 NW 824 (1915). But I shall proceed on the assumption that MCL 500.3157 is being applied
retroactively in relation to motor-vehicle accidents that occurred before June 11, 2019. I conclude
that the Legislature clearly manifested an intent that MCL 500.3157 be applied to accidental bodily
injuries sustained before the no-fault amendments took effect.
MCL 500.2111f(8), as amended by 2019 PA 22, provides:
An insurer shall pass on, in filings to which this section applies, savings
realized from the application of section 3157(2) to (12) to treatment, products,
services, accommodations, or training rendered to individuals who suffered
accidental bodily injury from motor vehicle accidents that occurred before July 2,
2021. An insurer shall provide the director with all documents and information
requested by the director that the director determines are necessary to allow the
director to evaluate the insurer’s compliance with this subsection. After July 1,
2022, the director shall review all rate filings to which this section applies for
compliance with this subsection. [Emphasis added.]
Under 2019 PA 21, the Legislature had initially enacted the following version of MCL
500.2111f(8):
An insurer shall pass on, in filings to which this section applies, savings
realized from the application of section 3157(2) to (12) to treatment, products,
services, accommodations, or training rendered to individuals who suffered
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accidental bodily injury from motor vehicle accidents that occurred before the
effective date of the amendatory act that added this section. [Emphasis added.4]
When MCL 500.2111f(8) is read in conjunction with MCL 500.3157, it becomes
abundantly clear that the Legislature envisioned and intended that MCL 500.3157 be applied to
accidents and injuries arising before June 11, 2019. MCL 500.2111f(8) expressly references and
effectively incorporates MCL 500.3157. And both statutes were encompassed by the 2019
legislative amendments of the no-fault act. MCL 500.2111f(8) mandates insurers to pass on
savings realized from the application of MCL 500.3157(2) to (12) to the motor-vehicle accidents
at issue in this litigation. Even if no savings are realized, it does not change the fact that Legislature
indicated its intention that MCL 500.3157 be applied to accidents occurring before June 11, 2019.
Indeed, the majority’s ruling essentially circumvents and renders meaningless, to a great extent,
the dictates of MCL 500.2111f(8). The majority reasons:
[T]his rate-setting provision does not mandate that the limits on benefits
provided in MCL 500.3157 shall be applied to persons injured before its effective
date. And the claim that it does so by implication is very weak. The statute merely
provides that if there are such savings, they must be used to reduce future rates.
Whether such savings will occur is not defined by this statute.
I find this logic in rejecting the plain and unambiguous language of MCL 500.2111f(8) to
be “very weak.” In fact, the reasoning escapes me. To the extent that we are truly dealing with
retroactive application, MCL 500.2111f(8) clearly, directly, and unequivocally demonstrates
legislative intent to reach accidents and injuries occurring before June 11, 2019. See Davis v State
Employees’ Retirement Bd, 272 Mich App 151, 155-156; 725 NW2d 56 (2006). The majority
indicates that if there are “such savings” by an insurer under MCL 500.2111f(8), the insurer must
reduce future rates. This argument appears to suggest or accept that insurers can indeed reap
savings by making PIP payments consistent with MCL 500.3157 in relation to accidents occurring
before July 2, 2021, which necessarily includes dates before June 11, 2019. And the majority’s
concern regarding “[w]hether such savings will occur” entirely misses the point that under MCL
500.2111f(8) the Legislature was effectively directing no-fault insurers to apply the fee schedules
and limitations in MCL 500.3157 to existing PIP cases in order to realize savings. Finally, the
majority dismisses MCL 500.2111f(8) because it is in a different chapter of the Insurance Code of
1956, MCL 500.100 et seq., then MCL 500.3157. This contention ignores the fact that MCL
500.2111f(8) incorporates MCL 500.3157 by direct reference and that the statutes were both part
of the overhaul of the no-fault act under 2019 PA 21 and 2019 PA 22.
In sum, I would hold that when MCL 500.2111f(8) is read in conjunction with MCL
500.3157, it becomes amply clear that the Legislature intended that MCL 500.3157 be applied to
accidents and injuries arising before June 11, 2019.
4
It is clear that the change made to MCL 500.2111f(8) in 2019 PA 22 was to capture realized
savings in regard to accidental bodily injuries occurring not only before June 11, 2019, but also
those arising before July 2, 2021.
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V. CONTRACTS CLAUSE
“No bill of attainder, ex post facto law or law impairing the obligation of contract shall be
enacted.” Const 1963, art 1, § 10. As a starting point, I note that statutes are presumed to be
constitutional, and we are obligated to interpret a statute as constitutional unless its
unconstitutionality is clearly apparent. In re Request for Advisory Opinion Regarding
Constitutionality of 2011 PA 38, 490 Mich 295, 307; 806 NW2d 683 (2011). The Contracts Clause
is intended to protect bargains by prohibiting the enactment of laws that interfere with preexisting
contractual arrangements. Wells Fargo Bank, NA v Cherryland Mall Ltd Partnership (On
Remand), 300 Mich App 361, 371-372; 835 NW2d 593 (2013). But the Contracts Clause does not
prevent the state from exercising its police power to impair a private contract when doing so is
reasonably related to remedying an economic or a social need of the community. Id. at 372. The
courts have adopted a balancing approach that weighs the degree or extent of the impairment of
contractual obligations and rights against the state’s justification for the impairment under the
state’s police power to implement laws for a legitimate public purpose. Id.
We employ a three-pronged test or inquiry to determine whether there has been a violation
of the Contracts Clause, with the first prong focusing on whether there was a substantial
impairment of a contractual relationship. Aquirre v Michigan, 315 Mich App 706, 715; 891 NW2d
516 (2016). This first prong itself entails consideration of three factors: (1) whether a contractual
relationship existed; (2) whether the statutory provision impaired that contractual relationship; and
(3) whether the impairment was substantial. Id. at 716. If a substantial impairment of a contractual
relationship is established, the second prong requires examination whether legislative disruption
of the contractual relationship was necessary for the public good, i.e., was the state law based on
a significant and legitimate public purpose. Id.; Wells Fargo Bank, 300 Mich App at 373; Health
Care Ass’n Workers Compensation Fund v Dir of the Bureau of Worker’s Compensation, 265
Mich App 236, 241; 694 NW2d 761 (2005). The third prong involves an assessment whether the
means chosen by the Legislature to address and accomplish the public good or purpose was
reasonable. Aquirre, 315 Mich App at 716; Health Care Ass’n, 265 Mich App at 241. As is
customary when reviewing economic and social regulations, we properly defer to the judgment of
the Legislature with respect to the necessity and reasonableness of a particular statute except when
the state is one of the parties to the contract. Romein v Gen Motors Corp, 436 Mich 515, 536; 462
NW2d 555 (1990); Wells Fargo Bank, 300 Mich App at 373-374.
USAA and Citizens first argue that there were no contracts between the parties, considering
that plaintiffs Ellen Andary and Philip Krueger were not named insureds under the insurance
policies at issue and that plaintiff Eisenhower Center had no contractual relationship whatsoever
with Citizens. The majority simply ignores this argument and moves directly to the issue whether
the no-fault amendments substantially impaired the obligations under the contracts of insurance.
For purposes of my analysis, I will assume that the required contractual relationships existed.
USAA and Citizens next maintain that the rights to a certain level of PIP benefits are not
contractual rights but are instead statutory in nature, thereby being incompatible with an argument
under the Contracts Clause. The majority addresses this issue as part of its retroactive analysis.
There can be no real dispute that liability for PIP benefits arose in the two particular
instances covered by this litigation because contracts existed in the form of insurance policies. For
example, had Ellen Andary not been covered by the USAA contract of insurance, USAA would
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certainly not be liable for PIP benefits associated with her care and treatment. But even though
there may be a contractual obligation to pay PIP benefits in a general sense because of a specific
insurance policy, an insurer’s obligation regarding the minimal extent of the PIP coverage is
ultimately dictated by the no-fault act, not the contract. And this suit concerns limitations placed
on the extent of PIP coverage under MCL 500.3157. As this Court has observed, “PIP benefits are
mandated by the no-fault act, and a claimant’s entitlement to PIP benefits is therefore based in
statute, not in contract.” Bronson Health Care Group, Inc v State Auto Prop & Cas Ins Co, 330
Mich App 338, 342-343; 948 NW2d 115 (2019) (emphasis added). The no-fault act is the rule-
book with respect to making decisions on issues involving an award of PIP benefits. Id. at 343.
In Rohlman v Hawkeye-Security Ins Co, 442 Mich 520, 530; 502 NW2d 310 (1993), our Supreme
Court explained that “[w]here insurance policy coverage is directed by the no-fault act and the
language in the policy is intended to be consistent with that act, the language should be interpreted
in a consistent fashion, which can only be accomplished by interpreting the statute, rather than
individual policies.” The Michigan Supreme Court has also stated that “benefits and liabilities
[that] are statutory in origin . . . may be revoked or modified at the will of the Legislature.” Romein,
436 Mich at 532. These principles drawn from the caselaw plainly undermine plaintiffs’ argument
regarding the alleged Contracts Clause violation. Nevertheless, I will continue my analysis
because I believe that there is a more serious flaw in the plaintiffs’ position and in the majority’s
ruling, and I shall accept for the sake of argument that the no-fault amendments substantially
impaired plaintiffs’ contractual rights.
Contrary to the majority’s conclusion and in deference to the Legislature, I would hold as
a matter of law that the amendment of MCL 500.3157, as applied to motor-vehicle accidents
occurring before June 11, 2019, was reasonably related to a significant and legitimate public
purpose linked to promoting the public good. As noted earlier, it is customary when reviewing
economic and social legislation as part of a Contracts-Clause analysis that we defer to the judgment
of the Legislature with respect to the necessity and reasonableness of the legislation unless the
state is one of the parties to the contract. Romein, 436 Mich at 536; Wells Fargo Bank, 300 Mich
App at 373-374.5 In support of this proposition, the Court in Romein, 436 Mich at 536, relied on
a decision by the United States Supreme Court in United States Trust Co v New Jersey, 431 US 1,
22-23; 97 S Ct 1505; 52 L Ed 2d 92 (1977), wherein the Court stated:
Legislation adjusting the rights and responsibilities of contracting parties
must be upon reasonable conditions and of a character appropriate to the public
purpose justifying its adoption. As is customary in reviewing economic and social
regulation, however, courts properly defer to legislative judgment as to the
necessity and reasonableness of a particular measure. East New York Savings Bank
v Hahn, 326 US 230; 66 S Ct 69; 90 L Ed 34 (1945). [Citation omitted.]
And in East New York Savings Bank, 326 US at 231, the United States Supreme Court
addressed a Contracts-Clause argument with respect to legislation “whereby the right of
5
In Selk v Detroit-Plastic Prod, 419 Mich 1, 14; 345 NW2d 184 (1984), our Supreme Court ruled
that in the context of a claim under the Contracts Clause, a court cannot invalidate an act that is
reasonably related to a permissible legislative objective.
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foreclosure for default in the payment of principal was suspended for a year as to mortgages.” The
Court ruled:
[W]hen a widely diffused public interest has become enmeshed in a network
of multitudinous private arrangements, the authority of the State to safeguard the
vital interests of its people is not to be gainsaid by abstracting one such arrangement
from its public context and treating it as though it were an isolated private contract
constitutionally immune from impairment.
The formal mode of reasoning by means of which this protective power of
the state is acknowledged is of little moment. It may be treated as an implied
condition of every contract and, as such, as much part of the contract as though it
were written into it, whereby the State’s exercise of its power enforces, and does
not impair, a contract. A more candid statement is to recognize . . . that the power
which, in its various ramifications, is known as the police power, is an exercise of
the sovereign right of the government to protect the general welfare of the people,
and is paramount to any rights under contracts between individuals. Once we are in
this domain of the reserve power of a State we must respect the wide discretion on
the part of the legislature in determining what is and what is not necessary. So far
as the constitutional issue is concerned, the power of the State when otherwise
justified, is not diminished because a private contract may be affected. [Id. at 232-
233 (quotation marks, citations, and ellipses omitted).]
In this case, in the title of 2019 PA 21 and 2019 PA 22, the Legislature stated that part of
the purpose of the legislation was “to provide for the continued availability and affordability of
automobile insurance . . . in this state and to facilitate the purchase of that insurance by all
residents of this state at fair and reasonable rates[.]” The means used by the Legislature in an effort
to accomplish this purpose included amending MCL 500.3157, alleviating the financial burden on
insurance companies to cover claims by limiting or reducing the payment of PIP benefits for
treatment and training with respect to all persons injured in the past and those who will be injured
in the future. But while at the same time requiring insurance companies to pass cost savings on to
insureds. On its face, and absent the need for factual exploration through discovery, the purpose
articulated by the Legislature for the sweeping no-fault amendments, which constituted economic
legislation, was significant, reasonable, and legitimate, serving the public good. This is especially
true in light of the deference that must be given to the Legislature in such matters.
In the context of constitutional challenges to legislation, rational-basis review, which
triggers the axiomatic rule of a presumption of constitutionality, dictates “that where the legislative
judgment is supported by any state of facts either known or which could reasonably be assumed,
although such facts may be debatable, the legislative judgment must be accepted.” Shavers v
Kelley, 402 Mich 554, 613-614; 267 NW2d 72 (1978) (quotation marks and citation omitted). The
Shavers Court added:
In accord with this axiomatic rule and its corollary a court may uphold the
constitutionality of police power legislative judgments in the face of [a
constitutional] . . . challenge by taking judicial notice of indisputable, generally
known or easily ascertainable facts. And, because the “presumption of
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constitutionality” is a rebuttable presumption, a party challenging the legislative
judgment may attack its constitutionality in terms of purely legal arguments (if the
legislative judgment is so arbitrary and irrational as to render the legislation
unconstitutional on its face) or may show, by bringing to the court’s attention facts
which the court can judicially notice, that the legislative judgment is without
rational basis. [Id. at 614-615.]
I find nothing arbitrary or irrational about the Michigan Legislature taking steps to make no-fault
insurance, which is mandatory for owners or registrants of motor vehicles, MCL 500.3101(1), as
affordable as possible for as many Michiganders as possible, especially where it is generally
known that Michigan drivers had paid the highest auto insurance rates in the country. Being able
to drive an automobile is vital to the livelihood of many individuals, and if no-fault insurance is
unaffordable, persons must forego driving, and unfortunately some choose to unlawfully drive
without the required insurance.
On the issue regarding whether the means chosen by the Legislature to accomplish its goal
or purpose was reasonable, I conclude as a matter of law that imposing fee schedules and other
limitations on PIP coverage in relation to accidental bodily injuries occurring before June 11, 2019,
was reasonable. It is generally known that insured Michiganders received from their insurers $400
refund checks per vehicle and that insurance premiums declined as a consequence of the economic
legislation. Indeed, the majority itself acknowledges that “there are more than 17,000 victims of
pre-amendment auto accidents whose benefits would be cut.” The resulting financial savings
enjoyed by insurers and the concomitant reduction in the financial burden on insureds are
indisputable. And at the risk of sounding like a broken record, this Court must defer to the
legislative judgment on the matter. I note and embrace the words of the United States Supreme
Court in East New York Savings Bank, 326 US at 234:
Appellant asks us to reject the judgment of the joint legislative committee,
of the Governor, and of the Legislature, that the public welfare, in the circumstances
of New York conditions, requires the suspension of mortgage foreclosures for
another year. On the basis of expert opinion, documentary evidence, and economic
arguments of which we are to take judicial notice, it urges such a change in
economic and financial affairs in New York as to deprive of all justification the
determination of New York’s legislature of what New York’s welfare requires. We
are invited to assess not only the range and incidence of what are claimed to be
determining economic conditions in sofar as they affect the mortgage market—
bank deposits and war savings bonds; increased payrolls and store sales; available
mortgage money and rise in real estate values—but also to resolve controversy as
to the causes and continuity of such improvements, namely the effect of the war
and of its termination, and similar matters. Merely to enumerate the elements that
have to be considered shows that the place for determining their weight and their
significance is the legislature not the judiciary. [Emphasis added.]
VI. CONCLUSION
I conclude that the legislative changes made to MCL 500.3157 apply to automobile
accidents that occurred before June 11, 2019. I also find that the claim alleging a violation of the
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Contracts Clause is not sustainable. I further conclude that the due process and equal protection
claims fail as a matter of law, assuming standing, but for purposes of this dissent, it is unnecessary
to set forth my reasoning. Accordingly, I would affirm the trial court’s ruling granting summary
disposition in favor of defendants. I note that I am not unsympathetic to plaintiffs’ plight, but in
this case the Legislature’s action must be honored without interference by the judiciary. I
respectfully dissent.
/s/ Jane E. Markey
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