ADVOCACY ORGANIZATION FOR PATIENTS V AUTO CLUB INSUR ASSN
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STATE OF MICHIGAN
COURT OF APPEALS
ADVOCACY ORGANIZATION FOR PATIENTS
& PROVIDERS, et al.,
FOR PUBLICATION
July 3, 2003
9:00 a.m.
Plaintiffs-Appellants,
v
AUTO CLUB INSURANCE ASSOCIATION,
ALLSTATE INSURANCE COMPANY,
CITIZENS INSURANCE COMPANY, FARM
BUREAU INSURANCE COMPANY,
FARMER'S INSURANCE EXCHANGE,
FRANKENMUTH MUTUAL INSURANCE
COMPANY, IMPERIAL MIDWEST
INSURANCE COMPANY, SECURA
INSURANCE MUTUAL COMPANY, STATE
FARM INSURANCE COMPANY,
TRANSAMERICA INSURANCE GROUP,
WOLVERINE MUTUAL INSURANCE
COMPANY, LAHOUSSE-BARTLETT
DISABILITY, MANAGEABILITY, INC.,
MEDCHECK MEDICAL AUDIT SERVICES,
RECOVERY UNLIMITED, INC., and AUTOOWNERS INSURANCE COMPANY,
Defendants-Appellees.
No. 231804
Eaton Circuit Court
LC No. 96-001409-CZ
Updated Copy
August 15, 2003
and
LINKAGE ENTERPRISES, INC.,
Defendant.
Before: Fitzgerald, P.J., and Markey and Murray, JJ.
PER CURIAM.
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Plaintiffs Advocacy Organization for Patients & Providers and others appeal as of right
the trial court's order granting defendants Auto Club Insurance Association and others' motion for
summary disposition and denying plaintiffs' cross-motion for partial summary disposition in this
no-fault insurance case. We affirm.
I. Basic Facts and Procedural History
This case involves a dispute over the interpretation of Michigan's no-fault act, MCL
500.3101 et. seq., and specifically MCL 500.3107 and 500.3157. Plaintiffs are forty-nine
individual medical providers, two guardians of catastrophically injured victims of automobile
accidents, and an organization made up of health-care providers and health-care patients, whose
principal objective is to act as a spokesperson for and to protect the legal rights of both groups.
Defendants are either no-fault insurance companies who have issued policies to Michigan
motorists, or the review companies employed by one or more of defendant insurance companies
to review medical bills arising out of automobile accidents. 1
Plaintiffs brought this action for declaratory judgment and injunctive relief, alleging that
defendants violated the provisions of MCL 500.3107(1)(a), which requires that insurers pay "all
reasonable charges incurred for reasonably necessary products, services and accommodations for
an injured person's care, recovery or rehabilitation." Plaintiffs claimed that, under MCL
500.3107, defendant insurance companies have unlawfully been failing to pay the full and
"reasonable" amount of their insureds' medical bills after employing defendant review companies
to compare the insureds' providers' fees to those of other providers in order to determine what is
"reasonable." Plaintiffs asserted that, in determining whether the fee is reasonable, § 3157
requires defendants to compare their insureds' health-care provider's fees for services with that
provider's fees for comparable services provided to an uninsured patient. Plaintiffs therefore
concluded that defendants' failure to pay the reasonable costs for necessary medical treatment
rendered to victims of automobile accidents constituted a breach of their obligations under the
act.
Plaintiffs further alleged that defendants had unlawfully informed their insureds in
writing that they (the insureds) were not responsible or liable to the medical providers for the
balance of the charges and promised to defend and indemnify their insureds against the providers'
debt-collection attempts against the insureds/patients. As a result, plaintiffs asserted causes of
action for tortious interference with contractual and business relationships and conspiracy to
commit such acts.2
1
Because Linkage Enterprises, Inc., is not a party to this appeal, the term "defendants" will refer
only to defendants-appellees.
2
Plaintiffs also alleged, inter alia, a federal due-process claim, one count of common-law fraud,
and eight counts of Racketeering Influence and Corrupt Organizations (RICO) Act, 18 USC
1962, violations in their complaint. The case was temporarily removed to federal district court
on federal-question jurisdiction arising out of the RICO claims. The district court dismissed
plaintiffs' RICO claims and federal due-process claim, and the United States Court of Appeals for
the Sixth Circuit affirmed. Advocacy Organization for Patients & Providers (AOPP) v Auto
(continued…)
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Plaintiffs filed a motion for findings and declarations, or partial summary disposition
pursuant to MCR 2.116(C)(9) with regard to their request for declaratory judgment, arguing that
defendants failed to state a valid defense to plaintiffs' claim that defendants may not lawfully
refuse to fully reimburse health-care providers for covered medical expenses as provided in §
3157 of the act. Plaintiffs further argued that under the language of the act, defendants may not
refuse to fully reimburse plaintiff providers for covered medical expenses as long as the
provider's charge is not greater than the amount that provider would charge for similar services to
persons without insurance. Thus, plaintiffs argued that defendants may not unilaterally
determine whether a charge is reasonable when a standard for making that decision has been
provided by the Legislature under § 3157. Accordingly, plaintiffs sought declarations and
findings or partial summary disposition on their request for a declaratory judgment consistent
with their interpretation of § 3157.
Meanwhile, defendants filed a motion for summary disposition pursuant to MCR
2.116(C)(8) and (C)(10), arguing that (1) a "customary" fee for a particular provider is not
necessarily a "reasonable" one, and (2) defendants are permitted to evaluate a medical invoice for
reasonableness as a matter of law. The motion also sought summary disposition regarding
plaintiffs' claims for tortious interference, civil conspiracy, and fraud on the ground that each of
those counts either failed to state a claim on which relief could be granted or failed to
demonstrate a genuine issue of material fact for trial. Defendants concluded that summary
disposition was appropriate as a matter of law and requested that plaintiffs' complaint be
dismissed in its entirety.
After a hearing on the parties' respective motions for summary disposition, the trial court
issued a well reasoned, written opinion and order denying plaintiffs' motion for partial summary
disposition and granting defendants' cross-motion for summary disposition. The trial court
rejected plaintiffs' argument and held that, under the act, defendants were entitled to review any
medical charges and pay only those charges determined to be reasonable. The court further
found that the "reasonableness" language in § 3157 did not refer to the amount that the medical
providers established as the "customary" charge for their services, as such a conclusion would
allow unilateral decisions by health-care providers regarding what constitutes reasonable medical
expenses and would directly conflict with the Legislature's purpose in enacting the no-fault
system and § 3107 in particular.
The trial court also found that plaintiffs had failed to establish a claim for tortious
interference, civil conspiracy, or fraud because plaintiffs failed to establish any wrongful,
unethical, or fraudulent conduct on the part of defendants in refusing to fully reimburse plaintiff
providers for medical claims. As a result, the trial court denied plaintiffs' motion, granted
defendants' motion for summary disposition, and entered an order dismissing all of plaintiffs'
claims with prejudice. This appeal followed.
(…continued)
Club Ins Ass'n, 176 F3d 315 (CA 6, 1999). As a result, the case was remanded to the state trial
court on the remaining claims, which were based exclusively on Michigan law.
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II. Standard of Review
This court reviews de novo a trial court's decision regarding a motion for summary
disposition. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
Similarly, issues involving statutory interpretation are questions of law that this Court reviews de
novo. Christiansen v Gerrish Twp, 239 Mich App 380, 384; 608 NW2d 83 (2000).
III. Analysis
A. "Reasonable" Medical Expenses Under the No-Fault Act
The dispositive issue raised on appeal is whether, under the language of the act, defendant
insurance companies are required to pay the full amount charged as long as the charge constitutes
a "customary" one, or if defendants are entitled to independently review and audit the medical
costs charged to their insureds to determine whether a particular charge is "reasonable." The
answer to this question lies within the language of the statute itself.
The primary goal of statutory interpretation is to ascertain and give effect to the intent of
the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573
NW2d 611 (1998) (citations omitted). The first step in determining the Legislature's intent is to
examine the specific language of the statute itself. In re MCI Telecom Complaint, 460 Mich 396,
411; 596 NW2d 164 (1999). If the statutory language is clear and unambiguous, the court must
apply the statute as written, and judicial construction is neither necessary nor permitted. Sun
Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999); Howard v Clinton Charter
Twp, 230 Mich App 692, 695; 584 NW2d 644 (1998). Nothing will be read into a clear statute
that is not within the manifest intent of the Legislature as derived from the language of the statute
itself. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002). However, if
reasonable minds could differ on the meaning of a statute, judicial construction is permitted.
Howard, supra. "A court must look to the object of the statute and the harm that it was designed
to remedy and apply a reasonable construction in order to accomplish the statute's purpose. . . .
Particular provisions should be read in the context of the entire statute to produce an harmonious
whole." ABC Supply Co v River Rouge, 216 Mich App 396, 398; 549 NW2d 73 (1996) (citations
omitted).
The act provides a system of mandatory no-fault automobile insurance, which requires
Michigan drivers to purchase personal protection insurance. See MCL 500.3101 et seq. "Under
personal protection insurance an insurer is liable to pay benefits for accidental bodily injury
arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle,
subject to the provisions of this chapter." MCL 500.3105(1). MCL 500.3107 provides that
personal protection insurance benefits are payable by a no-fault insurer for "[a]llowable expenses
consisting of all reasonable charges incurred for reasonably necessary products, services and
accommodations for an injured person's care, recovery, or rehabilitation. . . ." MCL
500.3107(1)(a) (emphasis added). MCL 500.3157, in turn, details what the health-care provider
can charge:
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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 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. [Emphasis
added.]
Thus, both the amount chargeable to the patient (§ 3157) and the amount that an insurer must pay
to the health-care provider (§ 3107) is limited, by statute, to a reasonable amount.
Under this statutory scheme, an insurer is not liable for any medical expense that is not
both reasonable and necessary. Hofmann v Auto Club Ins Ass'n, 211 Mich App 55, 93-94; 535
NW2d 529 (1995), quoting Nasser v Auto Club Ins Ass'n, 435 Mich 33, 49-50; 457 NW2d 637
(1990). The reasonableness of the charge is an explicit and necessary element of a claimant's
recovery against an insurer, and, accordingly, the burden of proof on this issue lies with the
plaintiff. Id. "Where a plaintiff is unable to show that a particular, reasonable expense has been
incurred for a reasonably necessary product and service, there can be no finding of a breach of
the insurer's duty to pay that expense, and thus no finding of liability with regard to that
expense." Nasser, supra at 50.
As the United States Court of Appeals for the Sixth Circuit recognized, these statutory
provisions leave open the questions of (1) what constitutes a reasonable charge, (2) who decides
what is a reasonable charge, and (3) what criteria may be used to determine what is reasonable.
See Advocacy Organization for Patients & Providers (AOPP) v Auto Club Ins Ass'n, 176 F3d
315, 320 (CA 6, 1999). In fact, as noted in more detail below, the general language of the statute
leaves several questions unanswered. Plaintiffs argue that the criteria for determining whether a
charge is reasonable under MCL 500.3107 is set forth in MCL 500.3157. According to plaintiffs,
§ 3157 provides that a charge is reasonable if it does not exceed the amount that provider
"customarily charges for like products, services and accommodations in cases not involving
insurance." Thus, plaintiffs claim that, under the act, defendants must pay all reasonably
necessary medical expenses incurred for accidental bodily injuries as long as the charges do not
exceed the amount that provider customarily charges for providing comparable services to
patients without insurance.
Plaintiffs' position that no-fault insurance carriers must pay the customary charges of
health-care providers without regard to the reasonableness of the charges finds no support in the
statute or case law. Rather than defining what is a "reasonable" charge, the clear and
unambiguous language of the second sentence in MCL 500.3157 simply places a maximum on
what health-care providers may charge in no-fault cases. See Hofmann, supra at 114. The first
sentence of § 3157 provides that a health-care provider may only charge a reasonable fee, while
the second sentence "unambiguously provides that a health-care provider's charge for products,
services, or accommodations in cases covered by no-fault insurance 'shall not exceed the amount
. . . customarily charge[d] . . . in cases not involving insurance . . . .'" Id. at 103 (emphasis
changed). Thus, although § 3157 limits what can be charged, nowhere in that section does the
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Legislature indicate that a "customary" charge is necessarily a "reasonable" charge that must be
reimbursed in full by the insurer.
Plaintiffs' position defeats the "reasonableness" standard set forth in MCL 500.3107. As
noted, § 3107 is a liability provision providing that no-fault insurers are only liable for medical
expenses that are (1) reasonable, (2) reasonably necessary, and (3) incurred. Nasser, supra at 4951. Indeed, "[a]ccording to the plain and unambiguous language of § 3107, an insurer is liable
only for those medical expenses that constitute a reasonable charge for a particular product or
service." McGill v Automobile Ass'n of Michigan, 207 Mich App 402, 405; 526 NW2d 12
(1994). "When read in harmony, §§ 3107 and 3157 clearly indicate that an insurance carrier need
pay no more than a reasonable charge and that a health care provider can charge no more than
that." Id. at 406.
Thus, the "customary charge" limitation in § 3157 and the "reasonableness" language in §
3107 constitute separate and distinct limitations on the amount health-care providers may charge
and what insurers must pay with respect to victims of automobile accidents who are covered by
no-fault insurance. AOPP, supra at 320; Munson Medical Ctr v Auto Club Ins Ass'n, 218 Mich
App 375, 385; 554 NW2d 49 (1996) (Indicating that a plaintiff "bears the burden of proving both
the reasonableness and the customariness of its charges . . . ." [emphasis added]); Hofmann,
supra at 114 ("In addition to the 'customary charge' limitation . . . , §§ 3107 and 3157 also
impose a statutory qualification of reasonableness, such that a no-fault carrier is liable only for
those medical expenses that constitute a reasonable charge for the product or service." [emphasis
added]). Contrary to plaintiffs' argument, we hold that the "customary" fee a particular provider
charges under § 3157 does not define what constitutes a "reasonable charge" under § 3107. See
AOPP, supra at 320 ("the 'customary fee' charged by a particular provider does not define what a
'reasonable fee' is"). Rather, the "customary fee" is simply the cap on what health-care providers
can charge, and is not, automatically, a "reasonable" charge requiring full reimbursement under §
3107.3
Plaintiffs' argument would, in essence, allow health-care providers to unilaterally
determine the "reasonable" charge to be paid by the insurer by establishing their own customary
charges. This result is not only contrary to the plain language of the statute, but is also in
defiance of the legislative scheme and policy considerations underlying the act. "The basic goal
of the no-fault insurance system is to provide individuals injured in motor vehicle accidents
assured, adequate and prompt reparation for certain economic losses at the lowest cost to the
individual and the system." Gooden v Transamerica Ins Corp of America, 166 Mich App 793,
800; 420 NW2d 877 (1988); see also Davey v DAIIE, 414 Mich 1, 10; 322 NW2d 541 (1982). In
fact, this Court in McGill, supra, discussed at length the policy considerations underlying the act
in rejecting the plaintiffs' argument that the defendant insurers were required to pay the full
amount of medical expenses billed by health-care providers:
3
However, a charge that is more than that charged to an uninsured person would, by necessity,
be unreasonable because of the limitation in § 3157.
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It is to be recalled that the public policy of this state is that "the existence
of no-fault insurance shall not increase the cost of health care." Indeed, "[t]he nofault act was as concerned with the rising cost of health care as it was with
providing an efficient system of automobile insurance." To that end, the plain and
ordinary language of § 3107 requiring no-fault insurance carriers to pay no more
than reasonable medical expenses, clearly evinces the Legislature's intent to "place
a check on health care providers who have 'no incentive to keep the doctor bill at a
minimum.'"
For the above reasons, we reject plaintiffs' argument that, pursuant to the
no-fault act, defendants are obligated to pay the entire amount of plaintiffs'
medical bills. Such an interpretation would require insurance companies to
accept health care providers' unilateral decisions regarding what constitutes
reasonable medical expenses, effectively eliminating insurance companies' costpolicing function as contemplated by the no-fault act. This result would directly
conflict with the Legislature's purpose in enacting the no-fault system in general
and § 3107 in particular. "[I]t is clear that the Legislature did not intend for nofault insurers to pay all claims submitted without reviewing the claims for lack of
coverage, excessiveness, or fraud." [Id. at 407-408 (citations omitted; emphasis
added).]
Further, "not only should an insurer audit and challenge the reasonableness of bills submitted by
health care providers, but the providers should expect no less." LaMothe v Auto Club Ins Ass'n,
214 Mich App 577, 582 n 3; 543 NW2d 42 (1995). "Indeed, . . . if the insurance company paid
the bills regardless of their reasonability, that action would, in fact, be in violation of the
insurance contract." Id. at 581-582 (emphasis added). Hence, plaintiffs' argument that, under the
statute, the customary fee established by health-care providers is automatically the reasonable
charge that insurers must pay in full, is contrary to the statutory language, well-established case
law, and the purposes of the act.
Instead, we hold that the statute requires that an insurer only pay on behalf of the insured
a "reasonable" charge for the particular product or service. However, the Legislature has not
defined what is "reasonable" in this context, and, consequently, insurers must determine in each
instance whether a charge is reasonable in light of the service or product provided. It may be that
a health-care provider's "customary" charge is also reasonable given the services provided, while
at other times the "customary" charge may be too high, and thus unreasonable. Either way, the
trier of fact will ultimately determine whether a charge is reasonable. Nasser, supra at 55.4
4
Plaintiffs argue that the practical effect of allowing defendants to determine and pay what is
reasonable will essentially foreclose further adjudication of defendants' determination because of
the costs associated with bringing a legal action for what may be relatively small sums in each
individual case, thus leaving defendants' decisions as the final one. We believe both sides
overstate the effects of either side prevailing. Under the statute, plaintiffs necessarily make the
initial determination of reasonableness by charging the insured for the services. Once plaintiffs
charge the insured, the insurer then makes its own determination regarding what is reasonable
(continued…)
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We will not attempt to delineate the permissible factors for determining what is
"reasonable," because it is not necessary to do so in resolving plaintiffs' arguments. Defendants
in this case have not refused to pay health-care benefits due plaintiffs. To the contrary,
defendants paid what they believed to be the reasonable charges incurred for reasonably
necessary products, services, and accommodations for their insureds' care. Under the foregoing
case law, defendants are allowed to pay the reasonable amount and contest the claim under the
act without penalty where a reasonable dispute exists regarding the amount of benefits owing.
LaMothe, supra at 581-582; Lewis v Aetna Cas & Surety Co, 109 Mich App 136, 139; 311
NW2d 317 (1981). The fact that the amount paid is less than the amount the health-care provider
charged does not violate the act where the amount paid is based on a proper determination of
what is reasonable and the insurer will defend and indemnify the insured if the health-care
provider sues the insured for the balance. LaMothe, supra.
Plaintiffs may challenge defendants' failure to fully reimburse them for medical bills as a
violation of the act, but they have the burden of establishing the reasonableness of the charges in
order to impose liability on the insurer. "[T]he question whether expenses are reasonable and
reasonably necessary is generally one of fact for the jury . . . ." Nasser, supra at 55. If plaintiffs
disagree with a defendant's assessment of reasonableness, they have the right to contest the
amount of such payment and must prove by a preponderance of the evidence that the expenses
were both reasonable and necessary. See Kallabat v State Farm Mut Automobile Ins Co, 256
Mich App 146, 152; 662 NW2d 97 (2003) (direct and circumstantial evidence may be considered
by the jury to determine whether an expense was both reasonable and necessary). Accordingly,
the trial court properly granted summary disposition to defendants with respect to plaintiffs'
motion for declaratory relief because the "reasonableness" language in §§ 3107 and 3157 of the
act does not refer to the amount that the health-care provider establishes as a "customary" charge
for the service rendered.5
We further note that because the legislative intent is clear from the unambiguous
language of the statute, the legislative history provided and relied on by plaintiffs as a basis for
finding a violation of the act is irrelevant and immaterial, and we need not attempt to interpret the
statute on the basis of its legislative history. In re Certified Question, 468 Mich 109, 115 n 5;
659 NW2d 597 (2003). Consequently, the criterion defendants used in determining whether a
particular charge is reasonable is not precluded under the plain language of the statute or
(…continued)
and pays that amount to plaintiffs. LaMothe, supra at 581-582. Although, as plaintiffs argue, the
cost-benefit analysis may cause fewer legal actions over the disputed amount, the fact-finder will
ultimately decide what is reasonable. Whether this procedure is the best is a matter for the
Legislature. Hanson v Mecosta Co Rd Comm'rs, 465 Mich 492, 504; 638 NW2d 396 (2002).
5
Plaintiffs' argument regarding the unconstitutional delegation of legislative power was not
pleaded in the complaint, addressed by the trial court, or raised in the statement of questions
presented, and is therefore not properly preserved for this Court's review. Booth Newspapers, Inc
v Univ of Michigan Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993); Pro-Staffers, Inc
v Premier Mfg Support Services, Inc, 252 Mich App 318, 328-329; 651 NW2d 811 (2002); Fast
Air, Inc v Knight, 235 Mich App 541; 550; 599 NW2d 489 (1999); Phinney v Perlmutter, 222
Mich App 513, 564; 564 NW2d 532 (1997). See also MCR 2.111(B)(1).
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Michigan case law. Defendants have not employed the worker's compensation payment
schedule, which was rejected in Munson, supra, to determine whether a particular charge is
reasonable. Nor have defendants utilized the amounts insurers have paid for a service, which
basis was rejected for purposes of determining a "customary" charge in Munson and Hofmann.
Rather, defendants Auto Club Insurance Association (ACIA) and Review Works, for example,
employ the "80th percentile test." Under this test, ACIA and Review Works recommend
payment of one hundred percent of the charges as long as the charge does not exceed the highest
charge for the same procedure charged by eighty percent of other providers rendering the same
service. Thus, although defendants ACIA and Review Works use a formula, that formula is
based on a survey of charges by other health-care providers for the same services, a sampling
which we conclude is not prohibited by the statute for determining the reasonableness of charges
for the same service.
Further, Mercy Mt Clemens Corp v Auto Club Ins Ass'n, 219 Mich App 46; 555 NW2d
871 (1996), is of no consequence to plaintiffs' argument. The Mercy Mt Clemens Court held that
the amounts health-care providers accepted as payment in full from various third-party payers,
such as Medicare, Medicaid, Blue Cross, worker's compensation carriers, HMOs, and PPOs,
were irrelevant in determining whether the amounts health-care providers charged were
reasonable and customary under § 3157. Id. at 48-50. Indeed, the panels in Mercy Mt Clemens,
Munson, and Hofmann each concluded that the data regarding payments made by third-party
payers could not be used to determine the customary charge under § 3157. Mercy Mt Clemens,
supra at 53-55. In contrast, this case involves defendants' review of plaintiffs' medical charges
for reasonableness under § 3107 by comparing plaintiffs' charges to those of other providers for
similar services.
B. Tortious Interference
Plaintiffs next argue that the trial court erred in granting defendants' motion for summary
disposition of their claims of tortious interference with contractual and business relationships.
We disagree. In order to establish tortious interference with a contract or business relationship,
plaintiffs must establish that the interference was improper. Patillo v Equitable Life Assurance
Society of the United States, 199 Mich App 450, 457; 502 NW2d 696 (1992). In other words, the
intentional act that defendants committed must lack justification and purposely interfere with
plaintiffs' contractual rights or plaintiffs' business relationship or expectancy. Winiemko v
Valenti, 203 Mich App 411, 418 n 3; 513 NW2d 181 (1994) (citations omitted); Feldman v
Green, 138 Mich App 360, 369; 360 NW2d 881 (1984). The "improper" interference can be
shown either by proving (1) the intentional doing of an act wrongful per se, or (2) the intentional
doing of a lawful act with malice and unjustified in law for the purpose of invading plaintiffs'
contractual rights or business relationship. Id.
In this case, plaintiffs failed to establish that defendants intentionally committed an act
wrongful per se or an unjustified lawful act with the purpose of interfering with plaintiffs'
business and contractual relationships. As previously discussed, defendants lawfully reviewed
plaintiff providers' medical charges for reasonableness and agreed to defend and indemnify their
insureds for any responsibility in the payment of the remaining balance. Further, the trial court
correctly pointed out that plaintiffs failed to show that defendants were motivated by anything
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other than their right under § 3107 to limit their liability to charges that are reasonable and
reasonably necessary. Moreover, defendants did not commit an act wrongful per se or an
unjustified lawful act by advising their insureds that the health-care provider would not be fully
reimbursed and that the insurer would indemnify and defend the insureds if the health-care
provider sought additional monies from them. Unlike the case plaintiffs relied on,6 no evidence
exists that defendants suggested to any of the insureds that they switch health-care providers. For
all those reasons, the trial court properly granted defendants' motion for summary disposition.
C. Conspiracy
For the same reasons, plaintiffs failed to establish a claim of conspiracy. "A civil
conspiracy is a combination of two or more persons, by some concerted action, to accomplish a
criminal or unlawful purpose, or to accomplish a lawful purpose by criminal or unlawful means."
Admiral Ins Co v Columbia Cas Ins Co, 194 Mich App 300, 313; 486 NW2d 351 (1992). In
count six of the complaint, plaintiffs' alleged that defendants conspired to tortiously interfere
with plaintiffs' business and contractual relationships. However, "a claim for civil conspiracy
may not exist in the air; rather, it is necessary to prove a separate, actionable tort." Early
Detection Center, PC v New York Life Ins Co, 157 Mich App 618, 632; 403 NW2d 830 (1986).
As previously discussed, plaintiffs simply failed to establish the underlying tort because they
failed to establish any unlawful purpose or unlawful means in defendants' actions. Because
plaintiffs failed to establish any actionable underlying tort, the conspiracy claim must also fail.
Thus, plaintiffs failed to state a prima facie case of tortious interference or conspiracy.
Accordingly, such claims fail as a matter of law, and the trial court's grant of summary
disposition to defendants was appropriate.
D. Class Certification
Finally, plaintiffs argue that the trial court erred in denying plaintiffs' motion for class
certification. The resolution of the issues raised renders this issue moot. McGill, supra at 408;
Tucich v Dearborn Indoor Racquet Club, 107 Mich App 398, 407; 309 NW2d 615 (1981)
(Plaintiffs that cannot maintain their individual causes of action are unqualified to sue in a class
action or represent the purported class.).
Affirmed.
/s/ Jane E. Markey
/s/ Christopher M. Murray
6
Dolenga v Aetna Cas & Surety Co, 185 Mich App 620; 463 NW2d 179 (1990).
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