HOPE NETWORK REHAB SERV V AMERISURE INSUR CO
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STATE OF MICHIGAN
COURT OF APPEALS
GRAND VALLEY HEALTH CENTER,
UNPUBLISHED
March 9, 2004
APPROVED FOR
PUBLICATION
May 11, 2004
9:10 a.m.
Plaintiff-Appellee,
v
AMERISURE INSURANCE COMPANY,
No. 244777
Ottawa Circuit Court
Defendant/Third-Party PlaintiffAppellant,
LC No. 00-037783-NF
v
AUTO-OWNERS INSURANCE COMPANY,
Third-Party Defendant-Appellee.
SPECTRUM HEALTH,
Plaintiff-Appellee,
v
No. 244778
Ottawa Circuit Court
LC No. 00-037155-CK
MICHAEL ANTHONY,
Defendant-Appellee,
and
AMERISURE INSURANCE COMPANY,
Defendant/Third-Party PlaintiffAppellant,
v
AUTO-OWNERS INSURANCE COMPANY,
Third-Party Defendant-Appellee.
-1-
MICHAEL ANTHONY, through his Guardian and
Conservator, DIANA L. SMITH,
Plaintiff-Appellee,
v
MICHIGAN DEPARTMENT OF COMMUNITY
HEALTH,
No. 244779
Ottawa Circuit Court
LC No. 00-037950-CK
Intervenors,
v
AMERISURE INSURANCE COMPANY,
Defendant/Third-Party PlaintiffAppellant,
v
AUTO-OWNERS INSURANCE COMPANY,
Third-Party Defendant-Appellee
HOPE NETWORK REHABILITATION
SERVICES,
Plaintiff-Appellee,
v
No. 244780
Ottawa Circuit Court
LC No. 01-040129-NF
AMERISURE INSURANCE COMPANY,
Defendant/Third-Party PlaintiffAppellant,
and
Official Reported Version
AUTO-OWNERS INSURANCE COMPANY,
Third-Party Defendant-Appellee.
-2-
Before: Meter, P.J., and Wilder and Borrello, JJ.
PER CURIAM.
Amerisure Insurance Company appeals by right from a judgment, entered after a jury
trial, mandating that it pay personal injury protection (PIP) benefits for Michael Anthony, who
suffered injuries in September 1999 after jumping from a Ford Explorer while another person,
Jeremy Whitworth, drove the vehicle. Amerisure argues that the jury's verdict, as well as several
pretrial and posttrial orders entered by the trial court, must be reversed. We affirm.
I
Amerisure first argues that the trial court erred in granting partial summary disposition,
before trial, to Auto-Owners Insurance Company. We disagree.
At the time Anthony sustained his injuries, neither he nor any member of his household
had no-fault automobile insurance. Moreover, the Ford Explorer, while owned by Whitworth
and registered in his name, had been insured by Auto-Owners under a policy issued to
Whitworth Borta, Incorporated. Whitworth was not a named insured in the Auto-Owners
policy.1 Anthony's sister, believing no insurance policy covered Anthony's injuries, applied to
the Michigan Assigned Claims Facility for PIP benefits, and the facility assigned the case to
Amerisure.
Amerisure moved for partial summary disposition under MCR 2.116(C)(10), requesting
that the trial court hold that Auto-Owners, not Amerisure, would be responsible for paying any
available PIP benefits to Anthony. The trial court denied Amerisure's motion and instead
granted Auto-Owners' cross-motion for summary disposition, finding that "the named insured,
Wh[i]tworth-Borta Corporation[,] did not have an insurable interest in the 1991 Ford Explorer.
Consequently, no valid policy of insurance existed to cover the driver of the vehicle or its
occupants at the time of the accident." The trial court held that Amerisure would be responsible
for paying any available PIP benefits to Anthony.
We review de novo a trial court's decision to grant summary disposition. Spiek v Dep't of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Under MCR 2.116(C)(10), a court
must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence
in the light most favorable to the nonmoving party. Ritchie-Gamester v City of Berkley, 461
Mich 73, 76; 597 NW2d 517 (1999). Summary disposition is appropriate if there is no genuine
issue with regard to any material fact. Id.
Additionally, we review issues of statutory interpretation de novo. Roberts v Mecosta Co
Gen Hosp, 466 Mich 57, 62; 642 NW2d 663 (2002). The rules of statutory construction require
1
Whitworth was not an employee of Whitworth Borta, but his father was.
-3-
the courts to give effect to the Legislature's intent. Institute in Basic Life Principles, Inc v
Watersmeet Twp (After Remand), 217 Mich App 7, 12; 551 NW2d 199 (1996). "This Court
should first look to the specific statutory language to determine the intent of the Legislature,"
which is "presumed to intend the meaning that the statute plainly expresses." Id. If the language
is clear and unambiguous, "the plain meaning of the statute reflects the legislative intent, and
judicial construction is not permitted." Tryc v Michigan Veterans' Facility, 451 Mich 129, 135;
545 NW2d 642 (1996). If reasonable minds could differ regarding the meaning of a statute,
judicial construction is warranted. Yaldo v North Pointe Ins Co, 457 Mich 341, 346; 578 NW2d
274 (1998). A court must not read into a statute anything "that is not within the manifest intent
of the Legislature as gathered from the act itself." In re S R, 229 Mich App 310, 314; 581 NW2d
291 (1998).
MCL 500.3114(4) provides that a person who suffers bodily injury while the occupant of
a motor vehicle2 and who has no available insurance policy of his own or in his family shall
claim PIP benefits from "[t]he insurer of the owner or registrant of the vehicle occupied[]" or
"[t]he insurer of the operator of the vehicle occupied." MCL 500.3114(4)(a) and (b). The
owner, registrant, and operator of the Ford Explorer was Whitworth, and he did not have a policy
of insurance with Auto-Owners.3 Accordingly, Anthony could not claim PIP benefits from
Auto-Owners by virtue of this plainly worded statute. See Tryc, supra at 135.
Amerisure argues that, even if MCL 500.3114(4) is inapplicable, Auto-Owners must
provide available PIP benefits to Anthony by virtue of the wording in the Auto-Owners policy.
For example, Amerisure points to a section of the policy indicating that Auto-Owners will pay
"personal injury protection benefits to or on behalf of an injured person for accidental bodily
injury arising out of the . . . use of a motor vehicle . . . ." Amerisure contends that this language
plainly applies to Anthony's injuries because he was injured in connection with the Ford
Explorer insured in the Auto-Owners policy. Amerisure's argument is untenable. Indeed, there
is simply no authority for the proposition that the insurer of a vehicle involved in an accident
must pay PIP benefits under the circumstances present in the instant case, when no named
insureds were involved in the accident. See, e.g., Madar v League Gen Ins Co, 152 Mich App
734, 742-743; 394 NW2d 90 (1986) (PIP coverage applies to the insured person, and not to the
motor vehicle).
2
The parties do not dispute that Anthony suffered bodily injury "while an occupant of a motor
vehicle." See id. At any rate, the language in MCL 500.3115(1), dealing with persons injured
while not occupants of motor vehicles, is materially identical, for our purposes, to the language
in MCL 500.3114(4).
3
We note that in Pioneer State Mut Ins Co v Titan Ins Co, 252 Mich App 330, 336-337 n 7; 652
NW2d 469 (2002), the Court emphasized that MCL 500.3115(1) specifically mentions that the
insurer of the owner (or registrant or operator) of the motor vehicle involved in the accident is
responsible for paying PIP benefits, not the insurer of the vehicle itself. Given the materially
identical language in MCL 500.3115(1) and MCL 500.3114(4), this reasoning from Pioneer
applies in the instant case as well.
-4-
Amerisure cites Clevenger v Allstate Ins Co, 443 Mich 646; 505 NW2d 553 (1993), in
support of its argument. In Clevenger, supra at 648-649, the plaintiff was injured by a motor
vehicle driven by Douglas Preece, who had purchased the vehicle earlier in the day from his
aunt, JoAnn Williams. Williams remained the registrant of the vehicle at the time of the
accident. Id. at 648. The Court ruled that Allstate, Williams's insurer, had to provide
indemnification and liability coverage in the plaintiff 's lawsuit against Preece. Id. at 655-656.
Clevenger is not applicable to the instant case. Indeed, Clevenger dealt with liability
coverage and indemnification, not PIP benefits. Id. Moreover, the Clevenger Court relied on
specific policy provisions that are not identified in the instant Auto-Owners policy. See, e.g., id.
at 654-655. Additionally, the Clevenger Court emphasized that Williams remained the registrant
of the vehicle in question4 and specifically stated that Allstate had a duty to defend and
indemnify "under the unique facts of this case[.]" Id. at 662. Clevenger does not compel us to
reverse the trial court's grant of partial summary disposition to Auto-Owners.
Nor do two additional cases cited by Amerisure, Madar, supra, and Universal
Underwriters Group v Allstate Ins Co, 246 Mich App 713; 635 NW2d 52 (2001), compel
reversal. In Madar, the plaintiff 's decedent, Albert Madar, was killed by an automobile insured
by the defendant, League General Insurance Company. Madar, supra at 736. Before his death,
Madar had sold an automobile insured by the Auto Club Insurance Association (AAA). He was
the named insured in the policy, and it had not been canceled at the time of his death. Id. at 736,
742. The Court held that AAA was the party responsible for paying PIP benefits associated with
Madar's death, despite his having sold the automobile, because the AAA policy insured Madar's
health and well-being, not his specific automobile. Id. at 738-739, 742-743. The Court stated
that PIP coverage "protects the person, not the motor vehicle." Id. at 742-743.
Far from supporting Amerisure's position, Madar supports the opposite position, given its
holding that PIP coverage applies to the insured person, and not to the motor vehicle.
Additionally, Universal Underwriters does not support Amerisure's position. In Universal
Underwriters, a woman was injured while driving a dealer's vehicle that she did not yet own.
Universal Underwriters, supra at 715-717. However, she had obtained insurance from Allstate
at the time of the accident. Id. at 730. The Court held that Allstate was responsible for paying
PIP benefits to the woman even though she did not own the vehicle that caused her injuries. Id.
Universal Underwriters simply reaffirmed that PIP benefits apply to the person, and not
to the vehicle; it does not support Amerisure's argument here.5 The trial court correctly granted
4
As noted earlier, the named insured in the Auto-Owners policy was not the registrant of the
Ford Explorer.
5
Amerisure also cites, but does not discuss, Cason v Auto Owners Ins Co, 181 Mich App 600;
450 NW2d 6 (1989). We find this case inapplicable because its outcome relied heavily on the
fact that the named insured in the disputed insurance policy remained the registrant of the vehicle
involved in the accident—a situation that does not exist in the instant case. Id. at 606-608.
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partial summary disposition to Auto-Owners.6 Although some of the trial court's analysis was
incorrect and poorly worded, we will not reverse a court that reaches the right result for incorrect
reasons. Taylor v Laban, 241 Mich App 449, 458; 616 NW2d 229 (2000).
II
Next, Amerisure argues that the trial court erred in denying its motion for a new trial or
judgment notwithstanding the verdict (JNOV).
A main issue at trial was whether Anthony had intended to injure himself when jumping
out of the Ford Explorer, because the no-fault act does not cover injuries caused intentionally.
See MCL 500.3105. At trial, Anthony argued that the jury should be allowed to consider
evidence of his intoxication in making its determination of intent. The court, making an analogy
to cases involving mental illness, agreed. Amerisure later argued that the trial court's ruling in
this regard constituted an error requiring a new trial or JNOV.
When reviewing a trial court's denial of a motion for JNOV, this Court examines the
evidence and all legitimate inferences arising from the evidence in the light most favorable to the
nonmoving party. Attard v Citizens Ins Co of America, 237 Mich App 311, 321; 602 NW2d 633
(1999). A motion for JNOV should be granted only if there was insufficient evidence presented
to create a jury-triable issue. Id. This Court reviews a trial court's decision with regard to a
motion for a new trial for an abuse of discretion. Morinelli v Provident Life & Accident Ins Co,
242 Mich App 255, 261; 617 NW2d 777 (2000).
As noted in Miller v Farm Bureau Mut Ins Co, 218 Mich App 221, 226; 553 NW2d 371
(1996), "[o]ne acts intentionally [for purposes of the no-fault act] if he intended both the act and
the injury." (Emphasis in original.) "The subjective intent of an actor is the focus of
determining whether the actor acted intentionally." Id. We conclude that allowing the jury to
consider the extent of Anthony's intoxication in determining his subjective intent was proper.
We find persuasive the case of Collins v Nationwide Life Ins Co, 409 Mich 271, 277-278;
294 NW2d 194 (1980), in which the Court, considering a life insurance policy, held that
where an insured dies as the result of an intentional act, such as voluntary
intoxication, but did not intend or expect death to result, such death is accidental
for the purposes of an accidental death policy as involved herein. In the instant
case, although the decedent's introduction of alcohol into his body was
intentional, the factfinder must determine whether he intended or expected it to
have fatal consequences.
6
The "public policy" and "innocent third party" arguments raised by Amerisure on appeal are
without merit in light of the clear inapplicability of the Auto-Owners policy to the injuries in
question.
-6-
This reasoning makes logical sense in the context of the no-fault act. An injured person acts
intentionally under the no-fault act if he intended both the act causing the injury and the injury
itself, and the finder of fact must focus on the person's subjective intent. Miller, supra at 226.
The only logical conclusion in light of these principles is that the finder of fact can consider a
person's level of intoxication as one factor when deciding whether the person intended to injure
himself.
Amerisure cites Group Ins Co of Michigan v Czopek, 440 Mich 590; 489 NW2d 444
(1992), as a case supporting its position. Czopek, supra at 598-599, concerned an intoxicated
man, Arthur Smith, resisting an arrest. The plaintiff insured the home of Smith's parents. Id. at
594. The plaintiff argued that Smith's acts were intentional and therefore not covered under the
homeowner's policy. See, generally, id. at 594, 601. The Court agreed, holding that Smith's
actions were "not rendered accidental simply because he happened to be intoxicated." Id. at 599.
It stated that "[a]n intoxicated person is responsible for his actions, even though he may have
voluntarily ingested intoxicating substances" and that "[w]here an insured willingly consumes an
intoxicating substance, he may not use that consumption as a defense to the requirement of intent
in an insurance policy." Id. at 601.
We do not consider Czopek binding for purposes of this case. First, the Czopek Court
emphasized that Smith "admitted that he intended to prevent the arrest." Id. at 598. Second, the
Court was concerned with whether intoxication could completely negate the admitted intent, not
with whether intoxication could be considered in determining Smith's intent.7 See, generally, id.
at 599, 601. We find Collins the more persuasive case.
Amerisure additionally cites the case of Schultz v Auto-Owners Ins Co, 212 Mich App
199; 536 NW2d 784 (1995), in support of its argument. Schultz concerned a claim for PIP
benefits, and the injured person's intent was at issue. Id. at 200-201. The Court stated:
Viewing the facts in a light most favorable to plaintiff, the evidence
showed that [the plaintiff] quarreled with his girlfriend. He then jumped from a
moving van that he was driving. Statements he made before jumping established
that he did so either to elicit the girlfriend's sympathy or to arouse feelings of guilt
in her. Consequently, plaintiff 's intent to cause himself injury can be inferred
from the facts. [Id. at 201-202.]
The Schultz Court then stated, without elaboration but citing Czopek, supra at 601, that "the fact
that plaintiff claimed to be voluntarily intoxicated at the time of the incident would not vitiate or
mitigate his intent." Schultz, supra at 202. As with Czopek, we find Schultz distinguishable.
Indeed, a reading of Schultz makes clear that the plaintiff 's intent was evident in that case, and
the court held merely that intoxication could not negate this evident intent. Here, Anthony's
7
In the instant case, the jury was asked to consider Anthony's intoxication as one factor in
determining his intent and was not told that a finding of intoxication would automatically negate
the existence of an intentional act.
-7-
intent was not in fact evident, and the evidence of intoxication was used by the jury as one factor
in determining Anthony's intent. The trial court did not err in allowing Anthony to make an
argument with respect to his level of intoxication.8 While the court may have erred in essentially
equating voluntary intoxication with mental illness, we will not reverse a trial court's decision
when it reaches the right result for the wrong reasons. Taylor, supra at 458. In light of our
resolution of this issue, we similarly find that the court did not abuse its discretion in allowing a
witness, Dr. Kerry Lynn Vegter, to testify regarding Anthony's level of intoxication, given the
relevance of the witness's testimony.9
Amerisure further argues that the trial court should have granted its motion for a new trial
or JNOV because appellees' attorneys made improper attacks during trial against Amerisure and
its claims adjuster, Robert Vichinsky. However, Amerisure has waived this argument by failing
to cite any authority in support of its position. Wilson v Taylor, 457 Mich 232, 243; 577 NW2d
100 (1998). Even if Amerisure had not waived this argument, we would find no basis for
reversal. Indeed, the comments did not "'reflect a studied purpose to inflame or prejudice [the]
jury or deflect the jury's attention from the issues involved.'" Kubisz v Cadillac Gage Textron,
Inc, 236 Mich App 629, 638; 601 NW2d 160 (1999), quoting Hunt v Freeman, 217 Mich 92, 95;
550 NW2d 817 (1996). Moreover, the court instructed the jury that the attorneys' statements
were not evidence; this instruction served to cure any prejudice arising from the comments.
Tobin v Providence Hosp, 244 Mich App 626, 641; 624 NW2d 548 (2001).
III
Amerisure next argues that the trial court should not have awarded penalty interest under
MCL 500.3142, which mandates assessment of penalty interest if an insurer does not make a
payment within thirty days of receiving reasonable proof of loss. Amerisure contends that, as an
insurer assigned the claim by the Michigan Assigned Claims Facility (MACF), it should not be
subject to MCL 500.3142. Because this issue involves statutory interpretation, we conclude, and
the parties agree, that our review of the issue is de novo. Roberts, supra at 62.
Amerisure's argument is patently without merit. First, as noted by the trial court, the
plain language of the statute in no way indicates that the penalty interest provisions should not
apply to an insurer assigned a claim by the MACF. Second, in Lakeland Neurocare Centers v
State Farm Mut Ins Co, 250 Mich App 35, 40, 42-44; 645 NW2d 59 (2002), this Court applied
MCL 500.3142 to an MACF-assigned insurer, explained the policy reasons behind the statute,
and gave no indication that these policy reasons should not apply in circumstances involving an
assigned insurer.
8
We note that the homeowner's insurance cases cited by Amerisure, which deal with a different
"intentional act" standard than that at issue under the no-fault act, are inapposite.
9
Amerisure makes a brief, additional argument with regard to this witness's testimony. It argues
that no foundation was laid for the witness's testimony. We do not consider this argument
because it has been inadequately briefed. Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100
(1998).
-8-
Here, the parties agreed to submit to the jury the issues of whether and when Amerisure
received reasonable proof of loss. The jury specifically found that Amerisure received
reasonable proof of loss on February 23, 2001, when it received an affidavit from Dr. Vegter,
who had examined and treated Anthony in an emergency room after he sustained his injuries.10
Given this factual situation, the plain wording of MCL 500.3142, and the legal precedent
discussed above, no error occurred that required reversal of the award of penalty interest.
IV
Amerisure next argues that the trial court should not have awarded appellees any attorney
fees under MCL 500.3148(1), which states, in part, that "the attorney's fee shall be a charge
against the insurer in addition to the benefits recovered, if the court finds that the insurer
unreasonably refused to pay the claim or unreasonably delayed in making proper payment."
Amerisure argues that its refusal to pay was not unreasonable because there were viable issues
regarding whether Anthony had been assaulted and regarding whether he suffered his injuries
intentionally.
"A trial court's finding of an unreasonable refusal to pay or delay in paying benefits will
not be reversed on appeal unless the finding is clearly erroneous." Attard, supra at 316-317.
Clear error exists if the reviewing court is left with a definite and firm conviction that a mistake
occurred. Massey v Mendell, 462 Mich 375, 379; 614 NW2d 70 (2000).
The trial court ruled as follows with regard to the issue of reasonableness:
I am convinced in this case that Amerisure's failure to pay was
unreasonable. Amerisure proceeded to trial on this alternative assault and suicide
theory based largely on oblique references in hastily prepared contemporaneous
notes by police and medical personnel with partial and imperfect knowledge
about the events. But certainly by February 23 of 2001 all the facts were known
or knowable, and there was in my judgment no evidence to allow a reasonable
person to conclude that either one was likely.
Some day when I write my memoirs about my years on the bench I will
cite this jury verdict as one displaying both wisdom and intellectual rigor, and I
think that this jury verdict was the proper one, and gave every benefit possible to
Amerisure in holding that by February 23 of 2001 all facts that Amerisure needed
to pay this claim were in their hands.
Instead, Amerisure clung to the slimmest of reeds with this assault and/or
suicide theory. Frankly, many of the excuses for not paying this claim offered by
10
In the affidavit, Dr. Vegter expressed her opinion that Anthony's injuries were more consistent
with tumbling from a motor vehicle than with having been assaulted (Amerisure had expressed
an earlier opinion that the injuries might have been caused by an assault).
-9-
Amerisure dissipated on the witness stand at the testimony of their own witnesses,
and I agree, as well, that Amerisure never clearly told the plaintiffs why this claim
was being de facto denied, even though they refused to call it a denied claim and
what proofs were necessary [sic].
It is also very clear to me through the testimony of Mr. Vichinsky that he
had made up his mind long ago that this claim was not going to be paid until a
jury told him to pay it, and the evidence to the contrary not withstanding.
His testimony was in a word, incredible, and I mean that in both senses in
which that word is commonly used.
Amerisure's denial of this claim was based on mere possibility and
conjecture. I think that an adjustor in the position of Mr. Vichinsky needs to
exercise some objectivity and not be purely adversarial, taking every scrap of
evidence and every imaginable inference that can be drawn from that evidence to
deny the claim. That is not the role of an insurance adjustor, and he abandoned
objectivity in this case and simply wasn't going to pay.
As to the Court's refusal to grant summary disposition. This was a large
case involving potentially millions of dollars in which a person's care as an adult
was at stake. Don't confuse the grace of the Court in allowing parties to have
their day in Court with some sort of decision that the failure to pay was
reasonable. In this case Amerisure's failure to pay was unreasonable.[11] But I
agree with Mr. Ste[c] that it was unreasonable as of February 23, 2001.
In accordance with its ruling, the court awarded only those fees incurred after February 23, 2001.
Given Amerisure's receipt on February 23, 2001, of Dr. Vegter's affidavit concerning the
unlikelihood of an assault having caused Anthony's injuries, Vichinsky's admission that he had
rejected the idea of an assault a year before the June 2002 trial, and the conclusion by the police
no later than February 2001 that no assault had taken place, the trial court did not clearly err in
concluding that Amerisure's failure to pay the claim based on a theory of an assault was
unreasonable.
With respect to the theory of intentional injury, Amerisure argues that it had a reasonable
basis to deny the claim because it received evidence that Anthony had a history of depression
and substance abuse and had been acting angrily before jumping from the vehicle. It also
contends that its investigator interviewed Whitworth, the driver of the Ford Explorer, not long
after Anthony was injured and that Whitworth told the investigator that Anthony said, "I'm sick
of it" and "I'm going to jump" before jumping out of the vehicle. However, Whitworth testified
11
The court similarly indicated earlier in the proceedings that its denial of summary disposition
would not be dispositive on the issue of attorney fees.
-10-
at trial that he did not remember making these statements to the investigator. Moreover,
Whitworth testified at his deposition in January 2001 that: (1) Anthony did not state that he
intended to injure himself that night; (2) he had never sensed Anthony to be suicidal; and (3)
before Anthony jumped out of the vehicle, Anthony said that he was going to jump, said that he
had jumped from moving vehicles before, and mentioned something about rolling.
The trial court contemplated all the evidence and chose to reject the testimony of
Vichinsky concerning the refusal to pay the claim. In light of all the evidence, including
Whitworth's deposition testimony and the evidence of Anthony's intoxication, we simply cannot
conclude that the trial court clearly erred in rejecting Amerisure's "intentional injury" theory for
refusing to pay the claim. We are not left with a definite and firm conviction that a mistake
occurred with respect to the court's award of attorney fees incurred by appellees after February
23, 2001.
V
Finally, Amerisure argues that the trial court erred by failing to allow Amerisure to
deposit the judgment amount with the court and thereby avoid the necessity of paying statutory
interest on the judgment. Amerisure argues that the accumulation of interest on the judgment
should be tolled from the date it offered to deposit the judgment amount with the court.
This issue involves the interpretation of statutes and court rules, and therefore our review
is de novo. People v Petit, 466 Mich 624, 627; 648 NW2d 193 (2002); Roberts, supra at 62.
Under MCL 600.6013, interest accrues until a judgment is satisfied. Under MCR 2.620,
a judgment may be satisfied by "payment to the clerk of the judgment[.]" Amerisure argued
below, and argues on appeal, that its tender of payment to the clerk or its deposit of the judgment
amount into an interest-bearing account should toll the accumulation of statutory interest. The
trial court ruled as follows with regard to this argument:
I am going to deny the motion for the following reason. Payment with the
contingent obligation to repay is not payment at all. Just as when you deposit
money with the bank, the bank doesn't book your cash as an asset, but books it as
a liability to have to repay that money to you as a liability. And the same would
be true for the plaintiffs in this case. If they received funds with the contingent
obligation to pay those back, those funds are not payment at all until they are
received without obligation to repay.
I think that the plaintiffs are correct. Amerisure has two choices, either
satisfy the judgment or post a bond on appeal. The whole purpose of this penalty
[sic] interest is to get these payments to the parties who deserve them on a timely
basis and further delaying the non-contingent repayment of these obligations is
adequate reason for continuing the penalty [sic] interest, and I am going to deny
the motion for those reasons.
The trial court's analysis was correct. As noted in Becker v Halliday, 218 Mich App 576,
578; 554 NW2d 67 (1996), "a party who accepts satisfaction in whole or in part waives the right
to maintain an appeal or seek review of the judgment for error, as long as the appeal or review
-11-
might result in putting at issue the right to the relief already received." This reasoning applies
with equal force to defendants satisfying a judgment as it does to plaintiffs accepting the
satisfaction of a judgment. See Horowitz v Rott, 235 Mich 369, 372; 209 NW 131 (1926)
(satisfaction of a judgment bars appeal). Here, Amerisure's tender of payment was not in fact a
satisfaction of the judgment because it chose to pursue an appeal. Accordingly, the interest
provisions apply.
Affirmed.
/s/ Patrick M. Meter
/s/ Kurtis T. Wilder
/s/ Stephen L. Borrello
-12-
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