EVA DEVILLERS V AUTO CLUB INSURANCE ASSOCIATION
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 29, 2005
EVA DEVILLERS, as Guardian and
Conservator of Michael J. Devillers,
Plaintiff-Appellee,
v
No. 126899
AUTO CLUB INSURANCE ASSOCIATION,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
In
its
bypass
application
for
leave
to
appeal,
defendant insurer asks that we overrule Lewis v DAIIE1 and
apply as written the “one-year-back” limitation provided
for
in
MCL
protection
500.3145(1)
insurance
for
recovering
benefits.
In
no-fault
Lewis,
personal
this
Court
adopted a judicial tolling doctrine under which the oneyear statutory period is tolled from the time a specific
claim
for
benefits
is
filed
formally denies liability.
1
to
the
date
the
insurer
The trial court in this case
426 Mich 93; 393 NW2d 167 (1986).
1
relied
on
Lewis
in
rejecting
defendant’s
assertion
that
plaintiff’s claim was limited by the statutory one-yearback rule.
No
member
of
this
Court
disputes
that
§
3145(1)
clearly and unambiguously states that a claimant “may not
recover benefits for any portion of the loss incurred more
than
1
year
commenced.”
statutory
before
the
date
on
which
the
action
was
Because the Lewis rule contravenes this plain
directive
and
ignores
almost
a
century
of
contrary precedent, it is hereby overruled. Defendant is
entitled
to
summary
disposition
to
the
extent
that
plaintiff seeks benefits for losses incurred more than one
year prior to the date on which this action was commenced.
I.
FACTS
AND
PROCEDURAL HISTORY
Michael Devillers was an insured under a policy of nofault
automobile
insurance
issued
to
his
defendant Auto Club Insurance Association.
parents
by
In September
2000, Michael, then age sixteen, was seriously injured in
an automobile accident.
brain injury.
His injuries included a traumatic
Michael’s mother, plaintiff in this case,
cared for him after he was discharged from the hospital.
Defendant paid plaintiff benefits for home health care
for the period of October 20, 2000, to February 14, 2001.
On
February
14,
2001,
defendant
2
received
a
physician’s
prescription stating that Michael could function without
close supervision. Defendant discontinued home health care
payments
effective
prescription
February
indicating
supervision.2
that
Plaintiff
15,
2001,
Michael
continued,
based
did
without
on
not
the
require
payment,
to
provide services for Michael, including driving him to and
from school and the doctor’s office.
defendant
wrote
a
letter
to
On October 7, 2002,
plaintiff
memorializing
the
February 2001 discontinuation of benefits.
Plaintiff
filed
a
complaint
on
November
12,
2002,
seeking payment for services allegedly rendered for which
she did not receive payment.
At issue in this case is the
nine-month period beginning on February 16, 2001 (the day
after
defendant
discontinued
paying
home
health
care
benefits), and ending on November 12, 2001 (one year prior
to
the
filing
of
the
complaint).
Defendant
moved
for
partial summary disposition with respect to the benefits
sought for that nine-month period, arguing that plaintiff
was precluded from recovering benefits under the one-yearback rule of MCL 500.3145(1).
2
However, based upon a later prescription, defendant
began paying plaintiff for home health care and attendant
care as of October 15, 2003, and it continues to make these
payments.
3
Plaintiff contested defendant’s motion, arguing that,
pursuant to Lewis, the one-year limitations period provided
for in § 3145(1) was tolled from February 15, 2001 (the
date that defendant discontinued home health care benefits
and attendant care benefits) to October 7, 2002 (the date
of defendant’s letter memorializing the termination).
The trial court denied defendant’s motion for partial
summary disposition, citing Lewis.
Defendant then filed an
emergency application for leave to appeal in the Court of
Appeals, arguing that the judicial tolling doctrine adopted
in Lewis should be abrogated.
Defendant additionally filed
a bypass application for leave to appeal in this Court,
noting
that
only
this
Court
has
the
power
to
overrule
Lewis.
The Court of Appeals denied leave to appeal.
This
Court entered an order staying trial, and we subsequently
entered an order granting defendant’s application for leave
to
appeal.
Because
we
believe
that
the
Lewis
Court
exceeded its constitutional authority by engrafting onto
the statutory one-year period a judicial tolling mechanism,
we overrule Lewis.
fall
into
that
Moreover, because this case does not
limited
category
of
decisions
in
which
prospective application is justified, we give our decision
retroactive effect for this and pending cases in which a
4
Lewis challenge has been preserved.
Accordingly, we remand
to the trial court with directions to enter partial summary
disposition
in
favor
of
defendant
with
respect
to
the
benefits sought for the period from February 16 to November
12, 2001.
II.
STANDARD
OF
REVIEW
Issues of statutory construction and other questions
of
law
are
Similarly,
subject
we
to
review
de
review
novo
de
a
novo
trial
by
Court.3
this
court’s
decision
whether to grant summary disposition.4
III.
ANALYSIS
A. BACKGROUND: JUDICIAL TOLLING AS APPLIED TO PRIVATE INSURANCE
CONTRACTS AND STATUTORY FORM INSURANCE POLICIES
The germination of the idea that a judicial tolling
doctrine should be applied to § 3145(1) can be traced to
this Court’s 1976 decision in Tom Thomas Organization, Inc
v Reliance Ins Co.5
Thomas
concerned
a
Rather than a statutory provision, Tom
contractual
provision
in
an
inland
marine policy of insurance limiting the time for bringing
3
Preserve the Dunes, Inc v Dep't of Environmental
Quality, 471 Mich 508, 513; 684 NW2d 847 (2004); Mack v
Detroit, 467 Mich 186, 193; 649 NW2d 47 (2002).
4
Jarrad v Integon Nat'l Ins Co, 472 Mich 207, 212; 696
NW2d 621 (2005); Maiden v Rozwood, 461 Mich 109, 118; 597
NW2d 817 (1999).
5
396 Mich 588; 242 NW2d 396 (1976).
5
suit under the policy to twelve months “after discovery by
the
insured
claim.”
policy
of
the
occurrence
which
gives
rise
to
the
Noting that this Court had long enforced such
limitations
as
written,6
the
Tom
Thomas
Court
nevertheless rejected this prevailing rule in favor of the
judicial tolling approach taken by the New Jersey Supreme
Court in Peloso v Hartford Fire Ins Co,7 which held that the
twelve-month limitation of actions provision in a statutory
6
See Tom Thomas, supra at 592 n 4. Policy limitations
of less than six years have been enforced by this Court
without discussion of reasonableness.
See, e.g., Lombardi
v Metropolitan Life Insurance Co, 271 Mich 265; 260 NW 160
(1935)
(group
disability
plan;
two-year
limitation);
Bashans v Metro Mutual Insurance Co, 369 Mich 141; 119 NW2d
622 (1963) (accidental injury and illness; two-year
limitation); Dahrooge v Rochester German Insurance Co, 177
Mich 442; 143 NW 608 (1913) (standard fire insurance
policy;
one-year
limitation);
Betteys
v
Aetna
Life
Insurance Co, 222 Mich 626; 193 NW 197 (1923) (disability
or death indemnity policy; one-year limitation); Harris v
Phoenix Accident & Sick Benefit Ass'n, 149 Mich 285; 112 NW
935 (1907) (accident and sick benefit policy; six-month
limitation).
While it acknowledged this contrary line of precedent,
Tom Thomas did not overrule any of those cases. This
appears to have been a common practice of this Court during
this era.
See, e.g., Raska v Farm Bureau Mut Ins Co of
Michigan, 412 Mich 355; 314 NW2d 440 (1982); People v
Jones, 395 Mich 379; 236 NW2d 461 (1975), and People v
Chamblis, 395 Mich 408; 236 NW2d 473 (1975), both overruled
in part in People v Cornell, 466 Mich 335 (2002); Simon v
Security Ins Co, 390 Mich 72; 210 NW2d 322 (1973).
7
56 NJ 514; 267 A2d 498 (1970).
6
form insurance policy8 was tolled from the time an insured
gave
notice
liability.
of
loss
until
the
insurer
formally
denied
The Peloso court, opining that statutory proof
of loss and payment of claim provisions operated to shorten
the
time
for
bringing
suit,
stated
that
tolling
the
limitations period would ensure that the insured was “not
penalized for the time consumed by the company while it
pursues
its
contractual
and
statutory
rights
to
have
a
proof of loss, call the insured in for examination, and
consider what amount to pay . . . .”9
In
adopting
wholesale
the
approach
of
the
Peloso
court, this Court in Tom Thomas stated that doing so was
necessary
in
order
to
reconcile
the
twelve-month
policy
limitation with other policy provisions that incorporated
“[s]ubstantial delays”10 into the claim process:
The insured is generally allowed 60 to 90 days
to file proof of loss. The insurer is generally
given another 60 days to pay or settle the claim.
Notwithstanding diligence by both parties at
all stages of the claim procedure, considerable
time often elapses before the insured learns
8
A “statutory form” insurance policy refers to an
insurance
policy
that
includes
mandatory
terms
and
provisions compelled by statute. See, e.g., former MCL
500.2832, discussed later in this opinion, concerning fire
insurance policies issued in Michigan.
9
10
Peloso, supra at 521.
Tom Thomas, supra at 592.
7
whether the insurer will pay. Even if the insured
promptly reports a loss to his insurance agent,
discussions concerning resolution of the claim may
take weeks.
Additional time often passes before
the insurance company provides a form for filing
proof of loss. Even then the insured does not know
whether it will be necessary to start an action;
under the policy in this case, payment is not
required until 60 days after “acceptance” by the
insurer of the proof of loss.
No time limit for
acceptance is imposed.[11]
Thus, the Tom Thomas Court held that the insured’s action,
which was filed more than twelve months after the date of
the loss, but less than twelve months after the insurer
denied liability, was not barred by the twelve-month policy
limitation.12
In
In
re
Certified
Question
(Ford
Motor
Co
v
Lumbermens Mut Cas Co),13 this Court extended the Peloso/Tom
Thomas
tolling doctrine to Michigan’s statutory standard
form fire insurance policy, former MCL 500.2832, which then
provided that
[n]o suit or action on this policy for the recovery
of any claim shall be sustainable in any court of
law or equity unless all the requirements of this
policy shall have been complied with, and unless
11
Id. at 592-593.
12
Justice Lindemer, joined by Justice Coleman,
dissented, noting that “[t]o adopt [the Peloso approach]
is, in effect, to rewrite the contract in favor of the
party which, for a six-month period, was guilty of sleeping
on its bargained-for rights.” Tom Thomas, supra at 601.
13
413 Mich 22; 319 NW2d 320 (1982).
8
commenced within twelve months next after inception
of the loss.
Noting
that
§
2832
contained
proof-of-loss
and
claim
payment provisions identical to those contained in the New
Jersey
statutory
policy
form
at
issue
in
Peloso,14
this
Court held that
[l]ogic requires that we apply the same analysis
when
faced
with
Michigan’s
statutory
policy
provisions which are identical to the provisions
reconciled in Peloso. By permitting the limitation
period to be tolled, we reconcile the apparently
identical incongruity between the statutory proofof-loss and payment provisions, and the limitation
clause.[15]
The Ford Court rejected the defendants’ argument that
our 1913 decision in Dahrooge v Rochester German Ins
was
controlling
and
had
expressly
repudiated
revision of the terms of the statute.
Court
had
refused
to
engraft
onto
Co16
judicial
In Dahrooge, this
the
terms
of
the
statutory standard fire insurance policy then in effect17 a
judicial
tolling
provision
that
would
have
tolled
the
14
See Ford, supra at 31, 32 n 4. The statutory policy
provided a sixty-day period for the insured to supply proof
of loss and a sixty-day period following proof of loss and
ascertainment of the loss for the insurer to pay the claim.
MCL 500.2832.
15
Id. at 31-32 (emphasis in original).
16
177 Mich 442; 143 NW 608 (1913).
17
1905 PA 277.
This predecessor of former
500.2832 contained essentially the same terms as
version of § 2832 at issue in Ford.
9
MCL
the
commencement of the twelve-month limitations period until
sixty days after the filing of the proof of loss:
Standard policies similar to that before us
have been adopted, and their use made compulsory by
statute in many States.
It has been repeatedly
held, in passing on their various provisions, that
they should be construed according to the plain
meaning of the language used, and that the trend of
authority is towards enforcing the
legislative
command when clearly expressed, rather than to
nullify and modify by strained constructions. The
provision that an action cannot be sustained
“unless commenced within twelve months next after
the fire” is very plain, clear, and simple
language.
If it was the legislative intent that
this should have other than the natural meaning, it
would have been a simple matter to have so
provided.[18]
Rather than explicitly overruling Dahrooge, the Ford Court
“distinguished” that case on the basis that its
narrow reasoning . . . did not attempt to reconcile
the obvious incongruity between the proof-of-loss
and
payment
provisions,
and
the
limitation
provision of the statute.
Accordingly, Dahrooge
did not address the Tom Thomas-Peloso tolling
analysis.
* * *
Since our focus today must fairly encompass
all interwoven statutory provisions, we cannot
subscribe to a narrow analysis which unduly
emphasizes a single statutory provision. While the
limitation provision commands that the insured has
a clear 12 months to institute suit, the proof of
loss and payment clauses shrink this period.
* * *
18
Dahrooge, supra at 451.
10
. . . The statutory standard policy provisions
are reconciled, as was stated in Peloso, 521, to
reach
a
“fair
resolution
of
the
statutory
incongruity”.
The period of limitation begins to
run from the date of the loss, but the running of
the period is tolled from the time the insured
gives notice until the insurer formally denies
liability.[19]
Justice Ryan, joined by Chief Justice Coleman, opined
in dissent that there existed no justification “for writing
into the Michigan statutory form of fire insurance policy
the
tolling
today.”20
provision
which
the
Court
has
announced
Justice Ryan noted that in once again subscribing
to the approach of “the villain in the piece,” Peloso, the
majority
“completely
disregards,
indeed
rejects,
the
plainly expressed intent of the Legislature in favor of the
appearance of judicial consistency.”21
Justice Ryan further
noted that Dahrooge had addressed and rejected the claim
19
Ford, supra at 33-38. Because Dahrooge pointedly
refused to adopt judicial tolling in contravention of the
statutory limitation, it is hard to understand why Ford and
Dahrooge are not irreconcilably in conflict.
However, as
noted previously, see n 6 of this opinion, during this era,
this Court frequently paid little attention to the
inconsistencies among its cases and declined to reduce
confusion in its jurisprudence by overruling conflicting
decisions. Dahrooge has never been overruled.
Dahrooge,
and cases like Dahrooge extending back to the turn of the
20th century, still appear to be good law, despite Lewis.
20
Id. at 39.
21
Id. at 45.
11
made
by
the
plaintiff,
and
that
it
ought
to
have
been
followed as binding authority:
It is noteworthy that the Court today does not
overrule Dahrooge, it merely denigrates it as
employing “narrow reasoning” for its failure to
“reconcile the obvious incongruity between the
proof of loss and payment provisions, and the
limitation provision of the statute.” The Dahrooge
Court’s “failure” to undertake such reconciliation
was evidently its inability, like mine, to perceive
that the proof of loss and payment provisions, and
the limitation provision of the statute, are
“incongruous”, “conflicting” or “inconsistent”.
The proof of loss and settlement provisions of
the statutory policy provide that a proof of loss
must be filed by the insured within 60 days of the
loss and suit may not be brought until 60 days
after the proof of loss is filed. The limitation
provision declares that suit upon a loss must be
brought within 12 months of the loss.
I am unable to see how those provisions are
incongruous, inconsistent or conflicting.
The
first of them announces that the insurer is liable
60 days after the proof of loss is filed by the
insured—a period obviously intended to afford
opportunity for notification of the loss by the
insured and assessment of it by the insurer. The
limitation provision provides that the insured has
12 months from the date of the loss to start suit.
Where is the inconsistency?
* * *
The majority opinion suggests to me rather
forcefully that the Court’s concern is not that the
Legislature has really contradicted itself in
establishing a proof of loss plus 60 days no-suit
period for perfecting the claim and a 12-month
limitation of action provision, but that, in the
Court’s view, a fairer, more desirable and more
reasonable approach would be a tolling of the
running of the period of limitation while the
12
parties are negotiating a settlement of the claim.
Needless to say, had the Legislature wanted to do
it that way, it could easily have done so
. . . .[22]
Like Justice Ryan, we believe that the Tom Thomas and Ford
majorities found inconsistencies where none existed and,
under this thin veil, inserted their own policy views into
the otherwise contrary statutory language at issue.
B. EXTENSION
MCL
OF THE JUDICIAL TOLLING DOCTRINE TO THE
YEAR-BACK” PROVISION OF § 3145(1)
500.3145(1)
provides,
in
NO-FAULT “ONE-
relevant
part,
as
follows:
An action for recovery of personal protection
insurance benefits payable under this chapter for
accidental bodily injury may not be commenced later
than 1 year after the date of the accident causing
the injury unless written notice of injury as
provided herein has been given to the insurer
within 1 year after the accident or unless the
insurer has previously made a payment of personal
protection insurance benefits for the injury.
If
the notice has been given or a payment has been
made, the action may be commenced at any time
within 1 year after the most recent allowable
expense, work loss or survivors loss has been
incurred.
However, the claimant may not recover
benefits for any portion of the loss incurred more
than 1 year before the date on which the action was
commenced. [Emphasis supplied.]
As we noted in Welton v Carriers Ins Co,23 § 3145(1)
contains two limitations on the time for filing suit and
22
Id. at 46-49.
23
421 Mich 571; 365 NW2d 170 (1985).
13
one limitation on the period for which benefits may be
recovered:
(1)
An
action
for
personal
protection
insurance [PIP] benefits must be commenced not
later than one year after the date of accident,
unless the insured gives written notice of injury
or the insurer previously paid [PIP] benefits for
the injury.
(2) If notice has been given or payment has
been made, the action may be commenced at any time
within one year after the most recent loss was
incurred.
(3) Recovery is limited to losses incurred
during the one year preceding commencement of the
action.[24]
Thus, although a no-fault action to recover PIP benefits
may be filed more than one year after the accident and more
than one year after a particular loss has been incurred
(provided
that
notice
of
injury
has
been
given
to
the
insurer or the insurer has previously paid PIP benefits for
the injury), § 3145(1) nevertheless limits recovery in that
action
to
those
losses
incurred
preceding the filing of the action.
within
the
one
year
It is this “one-year-
back” provision that is at issue in this case.25
24
Id. at 576 (emphasis in original).
25
MCL 500.3141 permits an insurer to require written
notice to be given “as soon as practicable” after an
accident
involving
an
insured
motor
vehicle.
MCL
500.3142(2) provides generally that PIP benefits are
overdue if not paid within thirty days after an insurer
14
The
Tom
Thomas
judicial
tolling
doctrine
was
first
applied to § 3145(1) by our Court of Appeals in Richards v
American
Fellowship
Mut
Ins
Co.26
In
Richards,
the
plaintiff insured filed an action to recover PIP benefits
more than one year after the automobile accident in which
he
was
injured,
seeking
to
recover
the
balance
of
a
hospital bill for a term of hospitalization that had ended
more than one year prior to the commencement of the action.
Rejecting
the
defendant
insurer’s
defense
that
the
one-
year-back provision barred recovery, the Court held that
the purpose of the no-fault law–that persons injured in
automobile accidents be promptly and adequately compensated
for their losses–required application of Tom Thomas tolling
to § 3145(1):
If
we
were
to
accept
defendant’s
interpretation of the statutory provision, we
would in effect be penalizing the insured for the
time the insurance company used to assess its
liability.
To bar the claimant from judicial
enforcement of his insurance contract rights
because the insurance company has unduly delayed
in denying its liability would run counter to the
receives reasonable proof of the fact and amount of loss
sustained.
Moreover, the insurer is subject to penalties
for delaying payment: MCL 500.3142(3) provides for a
twelve-percent annual interest rate on delayed payments,
and MCL 500.3148(1) renders the insurer liable for a
claimant’s attorney fees if the court determines that “the
insurer
unreasonably
refused
to
pay
the
claim
or
unreasonably delayed in making proper payment.”
26
84 Mich App 629; 270 NW2d 670 (1978).
15
Legislature’s intent to provide the insured with
prompt and adequate compensation.
* * *
Applying the approach taken by the [Tom]
Thomas Court to § 3145 would effectuate the
legislative intent in enacting the no-fault act.
Unable
to
profit
from
processing
delays,
insurance
companies
will
be
encouraged
to
promptly assess their liability and to notify the
insured of their decision. At the same time, the
insured will have a full year in which to bring
suit.[27]
Accordingly, the Richards Court held that the one-year-back
provision was tolled from the date that the plaintiff gave
notice of loss until liability was formally denied by the
defendant.
This Court first addressed judicial tolling of § 3145
in Welton.
We held that, assuming arguendo that Richards
was correct and that the judicial tolling doctrine should
be
applied
to
the
one-year-back
rule,
the
plaintiff’s
notice to the defendant insurer was insufficient to trigger
Tom Thomas tolling of his no-fault claim.
The Welton Court
noted that it found the Richards analysis “persuasive.”28
27
Id. at 634-635.
28
Welton, supra at 578.
Although we recognized that
MCL 500.3142(2) dictates that benefits are overdue if not
paid within thirty days after a claim is submitted to an
insurer, we ventured that, “[a]s a practical matter, . . .
it appears unlikely that insureds will commence suit
immediately because of the expense involved in bringing an
16
However, apparently recognizing the imbalance created by
the
judicially
created
tolling
rule,
the
Welton
Court
stated that something more than a general notice of injury,
such as the type submitted by the plaintiff in that case,
should
be
required
to
trigger
tolling;
rather,
tolling
should not begin until a claim for specific benefits is
submitted to the insurer:
While a rule which protects insureds from
delays
attributable
to
their
insurers
is
salutary, it also must be remembered that tolling
represents a departure from the legislatively
prescribed
one-year-back
cap
on
no-fault
recoveries.
Thus, any tolling of the statutory
period would properly be tailored to prevent the
former type of abuse while preserving the
legislative
scheme
to
the
fullest
possible
extent.
Tolling the statute when the insured submits
a claim for specific benefits would not appear to
detract from the policies underlying the one-year
limitation on recovery.
By submitting a timely
and specific claim, the insured serves the
interest in preventing stale claims by allowing
the insurer to assess its liability while the
information supporting the claim is relatively
fresh. A prompt denial of the claim would barely
affect the running of the limitation period,
while
a
lengthy
investigation
would
simply
“freeze” the situation until the claim is
eventually denied.
In effect, the insured would
be charged with the time spent reducing his
losses to a claim for specific benefits plus the
action and the very real possibility that the claim will be
paid without the necessity of legal action.” Id. at 579 n
3.
17
time spent deciding
claim is denied.[29]
In
Lewis,
this
Court
whether
was
to
sue
again
after
presented
the
with
the
question whether the judicial tolling doctrine should be
extended to the one-year-back provision of § 3145(1).
This
time, we adopted the rule, drawn from Richards and Welton,
that the one-year-back limitation is tolled from the time
the insured makes a specific claim for benefits until the
date that liability is formally denied.
To this rule, we
added the “caveat” that
the
insured
must
seek
reimbursement
with
reasonable diligence or lose the right to claim
the benefit of a tolling of the limitations
29
Id. at 578-579.
Interestingly,
in
further
defense
of
limiting
application of Tom Thomas tolling in the one-year-back
context to those cases in which a claim for specific
benefits was submitted, the Welton Court noted (1) the fact
that § 3145(1) included a “built-in” tolling provision
permitting later suit once notice was given or partial
payment was made (in contrast to the fire insurance
context, in which the limitations provision operated as an
absolute bar to suits not brought within one year of
discovery or inception of the loss); (2) the fact that the
specified procedure for claim and recovery of fire
insurance benefits included greater built-in delays than
the no-fault law (some 150 days for fire insurance, versus
the thirty-day payment requirement for no-fault benefits);
and (3) the fact that the Legislature had already provided
in § 3145(1) that tolling was triggered by “notice of
injury,” suggesting that notice of injury was to have no
greater tolling effect.
Id. at 580 n 4.
None of these
considerations apparently caused the Welton Court to
reconsider the propriety of applying its tolling rule to
MCL 500.3145(1).
18
period.
Such a condition should alleviate the
defendant’s fear that adoption of the tolling
principle will result in “open-ended” liability
in cases in which the claimant, having made a
specific claim for benefits, thereafter refuses
to respond to the carrier’s legitimate requests
for more information needed to process the
claim.[30]
In
adopting
this
modified
tolling
rule,
Lewis
explained
that application of judicial tolling to the one-year-back
limitation served the Legislature’s purposes in enacting
the no-fault law:
Most persons are confident that, in the
event of a loss, their insurer will pay their
claim without the necessity for litigation.
It
is only when an insurer denies liability that it
is unequivocally impressed upon the insured that
the extraordinary step of pursuing relief in
court must be taken.
A contrary result today
would require the prudent claimant to file suit
as a precautionary measure when the one-year
deadline approached, regardless of the status of
the claim.
In addition to requiring a level of
sophistication many claimants may not possess,
such
an
approach
would
encourage
needless
litigation.
One of the important reasons behind
the enactment of the no-fault system was the
reduction of automobile accident litigation.[31]
Justice Brickley, joined by Justice Riley, vigorously
dissented, noting that the majority’s approach constituted
an impermissible departure from the plain and unambiguous
language
of
§
3145(1).
With
30
Lewis, supra at 102-103.
31
Id. at 101-102.
19
some
prescience,
Justice
Brickley predicted that “this judicial amendment of a clear
legislative
effect.”32
directive
Justice
will
have
Brickley
a
pernicious
further
opined
long-term
that
the
majority had supplanted the will of the Legislature with
its own assessment of policy and consumer expectations:
The majority observes that most people
expect that insurance companies will pay their
claims without having to begin litigation, and
that it is only when a claim is formally denied
that litigation will be necessary.
The majority
thus concludes that to follow the statute as
written would require a claimant to file a suit
as a “precautionary measure” when the one-year
deadline approached.
Although the majority
approach may further the general policy of
reducing
litigation,
the
statute
is
not
necessarily inconsistent with other purposes and
provisions of the act. For example, §§ 3142 and
3148 impose sanctions upon an insurer for late
payments.
Thus, § 3145 may be viewed as a
complementary provision which “sanctions” an
insured who is not diligent in pursuing a claim.
. . . This Court was not privy to all of the
arguments
and
purposes
presented
to
the
Legislature
when
it
drafted
these
specific
tolling requirements. When statutory language is
as clear as it is here, it is outside our
province to second-guess the Legislature as to
which policy is paramount in regard to § 3145.[33]
With
respect
to
the
the
majority’s
insured
pursue
requirement
that
“reasonable
diligence,”
32
Id. at 104.
33
Justice
Id. at 107-108.
20
addition
reimbursement
Brickley
remarked
of
a
with
that
“[t]he necessity for this addition demonstrates the fact
that this Court has engaged in judicial legislation.”34
Finally, Justice Brickley noted a curious incongruity
in the majority opinion, as carried forward from Welton:
The majority does not suggest that § 3145
contains any ambiguity or that the Legislature
was not in full command of what it intended to
do.
To the contrary, the Legislature was
cognizant of a need for some tolling. Again, as
we said in Welton, supra, and as pointed out by
the majority:
“[T]he fact that the Legislature has already
provided a tolling provision for commencing a nofault action, triggered by ‘notice of injury,’
suggests both that notice of injury was intended
to have no greater effect and that there is less
justification for this Court to interfere with
the statutory scheme. [Welton, supra, 580, n
4.]”[35]
In attestation of Justice Brickley’s admonition that
the Lewis rule would have far-reaching implications, our
Court of Appeals in Johnson v State Farm Mut Automobile Ins
Co36 further extended the
judicial tolling doctrine.
plaintiff’s
Johnson
decedent
in
was
insured
under
The
a
motorcycle policy and an automobile policy, both written by
the
same
agent
and
issued
by
the
defendant
insurer.
Although the plaintiff immediately notified the agent of
34
Id. at 108.
35
Id.
36
183 Mich App 752; 455 NW2d 420 (1990).
21
the accident and requested coverage under the motorcycle
policy,
she
did
not
specifically
request
payment
of
benefits under the automobile policy until shortly before
filing suit, several years after the accident.
this
Court
did
not
define
in
Lewis
and
Noting that
Welton
what
constituted a “specific claim for benefits,” the Johnson
Court held that the plaintiff’s notice of injury under the
motorcycle policy constituted sufficient notice of a claim
for PIP benefits under the automobile insurance policy, and
that the § 3145(1) one-year-back provision was therefore
tolled.
Additionally,
the
Court
announced
a
completely
new, and quite broad, tolling rule:
[E]ven if tolling under Lewis, supra, is not
applicable to the case at bar, the one-year-back
rule should nevertheless be tolled for that
period from which defendant knew or reasonably
should have known that plaintiff was entitled to
benefits under the automobile policy until such
time as defendant either formally and explicitly
denied liability for benefits or affirmatively
informed plaintiff that she might be entitled to
benefits under the policy and requested that she
file a formal claim of benefits under the
policy.[37]
Thus,
not
only
did
the
Johnson
Court
disregard
Lewis’s
admonition that a “specific claim” must be filed in order
37
Id. at 762-763; see also id. at 765.
The panel
noted that “once the insured files such a claim, the
provisions of Lewis, supra, apply and the one-year-back
rule is again tolled until such time as that claim is
denied.” Id. at 765 n 4 (emphasis supplied).
22
to initiate tolling, the Johnson Court, in expanding the
Lewis doctrine to include a vague “knew or should have
known”
standard,
Legislature
dismantled
intended
to
the
create
in
certainty
enacting
that
the
the
one-year
limitation.
C.
LEWIS MUST
BE
OVERRULED
AS
WRONGLY DECIDED
As is no doubt evident from the foregoing discussion
of
the
questionable
lineage
of
Lewis,
as
well
as
the
expansion of the Lewis doctrine by our Court of Appeals, we
are
today
compelled
Legislature’s
established
to
overrule
prerogative
commitment
to
to
Lewis
set
the
to
policy
reaffirm
and
application
our
of
the
long-
statutes
according to their plain and unambiguous terms to preserve
that legislative prerogative.
The long road leading to the judicial negation of the
statutory one-year-back rule began with this Court’s abrupt
departure
from
settled
precedent
and
adoption
inapposite minority Peloso rule in Tom Thomas.
of
the
Then, in
Ford, finding ourselves “figuratively examining [our] own
tail,”38 we determined that it would be illogical to apply
Peloso in the off-point private contract setting without
also applying that rule in the context for which it was
38
Ford, supra at 43 (Ryan, J., dissenting).
23
designed, the statutory fire insurance form setting.
Along
the way, we shrugged off the weight of binding precedent,
purporting to distinguish Dahrooge as a “narrow” decision
that simply did not address the judicial tolling question.39
Finally, we deigned in Lewis, purely for policy reasons and
in direct contravention of the statutory language at issue,
to extend application of Tom Thomas and Ford to the
year-back
rule
of
§
3145(1).
Our
substitution
of
onethe
“specific claim” rule and the addition of the “reasonable
diligence”
requirement
to
the
Tom
Thomas/Ford
approach
stand as testimony to the lengths to which the Lewis Court
went in crafting its own amendment to § 3145(1).
Further
distortion of the Lewis rule by our Court of Appeals in
Johnson
demonstrates the unmanageability of the judicial
tolling doctrine and represents the
vitiation of the clear
statutory directive limiting a PIP claimant’s recovery to
benefits for losses incurred one year or less before the
date on which the action was commenced.
39
See Ford, supra at 33 (noting that Dahrooge “did not
attempt to reconcile the obvious incongruity between the
proof-of-loss and payment provisions, and the limitation
provision of the statute”); see also Tom Thomas, supra at
597 n 10 (disregarding Dahrooge as binding authority on the
ground that it failed to reconcile the various policy terms
at issue).
24
In short, we wholly agree with the views expressed by
the dissenting justices in Tom Thomas, Ford, and Lewis.
Statutory–or
contractual–language
must
be
enforced
according to its plain meaning, and cannot be judicially
revised or amended to harmonize with the prevailing policy
whims
of
members
of
this
Court.
The
Lewis
majority
impermissibly legislated from the bench in allowing its own
perception
concerning
the
lack
of
“sophistication”
possessed by no-fault claimants, as well as its speculation
that
the
necessity
average
for
claimant
expects
litigation,
to
payment
without
supersede
the
the
plainly
expressed legislative intent that recovery of PIP benefits
be limited to losses incurred within the year prior to the
filing of the lawsuit.
Although a claimant may well find himself in a bind
similar
to
that
of
the
Lewis
plaintiffs,
and
of
the
plaintiff in the case at bar, should that claimant delay
the commencement of an action (as permitted by § 3145) more
than one year beyond the accident leading to the injury,
our observation is simply this: the Legislature has made it
so.
The
Lewis
Court
acted
25
outside
its
constitutional
authority40 in importing its own policy views into the text
of § 3145(1).
“[T]he constitutional responsibility of the
judiciary is to act in accordance with the constitution and
its system of separated powers, by exercising the judicial
power and only the judicial power.”41
In any event, we are unable to perceive any sound
policy basis for the adoption of a tolling mechanism with
respect
to
the
one-year-back
rule.
Although
the
Lewis
majority, echoing the concerns of the Tom Thomas and Ford
Courts,
speaks
of
potential
delays
attributable
to
the
“‘lengthy investigation’” of a PIP claim,42 the only delay
possible under the no-fault law is the thirty-day payment
period following receipt of proof of loss by the insurer.43
To
repeat
Justice
Ryan’s
query
in
Ford,
“Where
is
the
inconsistency?”44
40
See Const 1963, art 3, § 2; See also Const 1963, art
6, § 1, directing the judiciary to exercise its “judicial
power . . . .”
41
Nat’l Wildlife Federation v Cleveland Cliffs Iron
Co, 471 Mich 608, 637; 684 NW2d 800 (2004).
42
Lewis, supra at 101, quoting Welton, supra at 578.
43
MCL 500.3142(2).
As noted by Justice Brickley in
Lewis, supra at 107, the no-fault act requires the insurer
to pay penalties for any delayed payment.
See MCL
500.3142(3); MCL 500.3148(1).
44
Ford, supra
at 47 (Ryan, J., dissenting).
26
Just as the Ford plaintiff had many months, even after
expiration
of
the
potential
delays
permitted
in
the
statutory fire insurance scheme, in which to file suit,
plaintiff in the case at bar had a full year following the
February 2001 termination of payment for home health-care
benefits within which to seek reimbursement.
plaintiff’s
ability
to
file
suit
In no way was
thwarted
by
dilatory
tactics on the part of defendant or by the exercise of
defendant’s
statutory
right
to
delay
payment
days following receipt of proof of loss.
for
thirty
As soon as PIP
payments stopped, plaintiff had the surest notice that her
claim was no longer being honored by the insurer.
We
conclude,
therefore,
that
Lewis
and
its
progeny
were wrongly decided. We must decide whether the doctrine
of stare decisis nevertheless obliges us to adhere to its
holding.
Although
preferred
course,’”45
erroneous
stare
precedent
we
decisis
will
“when
decisis
compels
generally
nevertheless
governing
unworkable or are badly reasoned.”46
stare
is
adherence
“‘the
depart
from
decisions
are
In determining whether
to
the
Lewis
tolling
45
Robinson v Detroit, 462 Mich 439, 463; 613 NW2d 307
(2000), quoting Hohn v United States, 524 US 236, 251; 118
S Ct 1969; 141 L Ed 2d 242 (1998).
46
Robinson, supra at 464, citing Holder v Hall, 512 US
874, 936; 114 S Ct 2581; 129 L Ed 2d 687 (1994).
27
doctrine, we may examine, among other factors, the extent
to
which
the
Lewis
Court
erred;
the
“‘practical
workability’” of that decision; whether reliance interests
would
work
overruled;
an
and
undue
whether
hardship
changes
if
in
the
the
decision
law
or
were
facts
no
longer justify the questioned decision.47
Lewis does not reflect a simple “misunderstanding” of
the statute at issue;48 the Lewis decision demonstrates an
act of judicial defiance in which this Court substituted
its
own
judgment
concerning
“fairness”
expressed will of the Legislature.
usurpation
of
the
legislative
for
the
plainly
Such an act of judicial
function
should
not
be
permitted to stand.
Moreover, Lewis has not “become so embedded, accepted
or fundamental to society’s expectations that overruling
[it] would produce significant dislocations.”49
Rather, it
is highly likely that the average no-fault claimant who has
profited from Lewis was quite unaware of this
and
simply
collect
received
benefits
a
windfall
that
the
47
in
being
statute
decision,
permitted
proclaims
to
are
Robinson, supra at 464; see also Mitchell v W T
Grant Co, 416 US 600, 627-628; 94 S Ct 1895; 40 L Ed 2d 406
(1974).
48
See Robinson, supra at 465.
49
Id. at 466.
28
nonrecoverable.
We
need
not,
and
indeed
should
not,
slavishly adhere to the doctrine of stare decisis where no
legitimate reliance interest is affected.
As we noted in
Robinson,
if the words of the statute are clear, the actor
should be able to expect, that is, rely, that
they will be carried out by all in society,
including the courts.
In fact, should a court
confound those legitimate citizen expectations by
misreading or misconstruing a statute, it is that
court itself that has disrupted the reliance
interest. When that happens, a subsequent court,
rather than holding to the distorted reading
because of the doctrine of stare decisis, should
overrule the earlier court’s misconstruction. [50]
Additionally,
defies
the
“practical
Lewis
judicial
workability,”
as
tolling
evidenced
doctrine
by
this
Court’s efforts to cabin tolling and by the confusion of
the Court of Appeals in Johnson.
On the basis that Lewis
failed to delineate what constituted a “specific claim for
benefits,”
judicial
Lewis
the
Johnson
tolling
Court
Court
doctrine
would
Furthermore,
it
increasingly
producing
to
took
a
a
that
tax
have
the
on
apply
the
even
the
found
impact
the
to
that
situation
presumably
appears
license
lacking.
of
Lewis
is
no-fault
system
as
claimants are being permitted to seek recovery for losses
incurred much more than one year prior to commencing suit.
50
Id. at 467.
29
Thus, far from “produc[ing] chaos,”51 overruling Lewis will
prevent
potential
chaos
by
according
insurers,
and
the
public that funds the no-fault system through payment of
premiums, the certainty that the Legislature intended.
We today overrule Lewis and its progeny as wrongly
decided.
The one-year-back rule of MCL 500.3145(1) must be
enforced by the courts of this state as our Legislature has
written it, not as the judiciary would have had it written.
D.
RETROACTIVITY
In our order granting leave to appeal, we directed the
parties
to
address
whether
a
decision
overruling
Lewis
should be given only prospective application.
Typically, our decisions are given retroactive effect,
“applying to pending cases in which a challenge
been raised and preserved.”52
. . . has
Prospective application is a
departure from this usual rule and is appropriate only in
“exigent circumstances.”53
This case presents no “exigent
51
Id. at 466 n 26.
52
Wayne Co v Hathcock, 471 Mich 445, 484; 684 NW2d 765
(2004).
53
Id. at 484 n 98.
30
circumstances” of the sort warranting the “extreme measure”
of prospective-only application.54
As we reaffirmed recently in
Hathcock, prospective-
only application of our decisions is generally “‘limited to
decisions
which
overrule
clear
and
uncontradicted
case
law.’”55
Lewis is an anomaly that, for the first time,
engrafted onto the text of § 3145(1) a tolling clause that
has absolutely no basis in the text of the statute.
itself
rests
inexplicably
upon
case
departed
from
law
that
decades
of
Lewis
consciously
precedent
and
holding
that contractual and statutory terms relating to insurance
are to be enforced according to their plain and unambiguous
terms.
Thus,
Lewis
cannot
be
deemed
a
“clear
and
uncontradicted” decision that might call for prospective
application of our decision in the present case.
Much like
Hathcock, our decision here is not a declaration of a new
rule, but a return to an earlier rule and a vindication of
54
See Gladych v New Family Homes, Inc, 468 Mich 594,
606 n 6; 664 NW2d 705 (2003).
55
Hathcock, supra at 484 n 98, quoting Hyde v Univ of
Michigan Bd of Regents, 426 Mich 223, 240; 393 NW2d 847
(1986) (emphasis supplied).
31
controlling
legal
authority—here,
the
“one-year-back”
limitation of MCL 500.3145(1).56
Accordingly, our decision in this case is to be given
retroactive
pending
effect
cases
in
as
which
usual
a
and
is
challenge
applicable
to
Lewis’s
to
all
judicial
tolling approach has been raised and preserved.57
E. RESPONSE
Given
the
TO
JUSTICE CAVANAGH’S DISSENT
characterization
by
Justice
Cavanagh's
dissent of the majority’s position as “overwrought [with]
56
See Hathcock, supra at 484.
57
Id. In our case law, this form of retroactivity is
generally classified as “limited retroactivity.” See Stein
v Southeastern Michigan Family Planning Project, Inc, 432
Mich 198, 201; 438 NW2d 76 (1989).
We disagree with Justice Weaver’s assertion that our
decision to overrule Lewis should be given prospective
application.
As we explained in Hathcock, supra at 484 n
97, to accord a holding only prospective application is,
essentially, an exercise of the legislative power to
determine what the law shall be for all future cases,
rather than an exercise of the judicial power to determine
what the existing law is and apply it to the case at hand.
Const 1963, art 3, § 2 prohibits this Court from exercising
powers properly belonging to another branch of government
except when expressly authorized by the Constitution.
As
we further explained in Hathcock, supra at 484 n 98,
prospective opinions are, in essence, advisory opinions,
and our only constitutional authorization to issue advisory
opinions is found in Const 1963, art 3, § 8, which does not
apply in this case.
We also note, however, that payments properly made
under Lewis prior to this opinion are not subject to
recoupment or setoff.
32
scorn”58 and an “outright fabrication,”59 it is easy to lose
sight
of
between
the
fact
Justice
that
Cavanagh
there
and
is
the
substantial
agreement
majority.
Both
the
majority and Justice Cavanagh agree that the plain text of §
3145(1) provides that an insured “may not recover benefits
for
any
portion
of
the
loss
incurred
more
than
1
year
before the date on which the action was commenced.”
The
fundamental difference between the position of the majority
and Justice Cavanagh lies in how one perceives the judicial
role.
The majority believes that statutes are to be enforced
as
written,
unless,
Constitution.
of
course,
a
statute
violates
the
Such a view of the judicial role is not
merely a preference shared by a majority of this Court, but
rather a constitutional mandate.60
Justice Cavanagh, on the
other hand, apparently believes that a court’s equitable
power
is
an
omnipresent
and
unassailable
judicial
trump
card that can be used to rewrite a constitutionally valid
statute
simply
because
a
particular
judge
statute to be “unfair.”
58
Post at 34.
59
Id.
60
Const 1963, art 3, § 2 and art 6, § 1.
33
considers
the
The
view
enforced
as
represents
the
written
a
judiciary.
of
more
majority—that
unless
they
limited
view
statutes
are
of
are
to
be
unconstitutional—
the
role
of
the
It is grounded not just in the separation of
powers mandate of our Constitution,61 but also on prudential
concerns.
The majority believes that policy decisions are
properly left for the people’s elected representatives in
the
Legislature,
not
the
judiciary.
The
Legislature,
unlike the judiciary, is institutionally equipped to assess
the numerous trade-offs associated with a particular policy
choice.
that
Justice
judges
are
Cavanagh,
omniscient
however,
apparently
believes
and
under
veil
may,
the
of
equity, supplant a specific policy choice adopted on behalf
of the people of Michigan by their elected representatives
in the Legislature.62
61
We could not disagree more.
Const 1963, art 3, § 2.
62
The fact that Justice Cavanagh is willing to make
policy choices through a court’s equitable powers is
evident from his extensive discussion of the “costs”
associated with enforcing the plain text of § 3145(1). Post
at 12-14. While the majority believes that the Legislature
is better equipped to evaluate the costs and benefits
associated with a specific policy choice, and that the
Legislature actually evaluated such trade-offs in enacting §
3145(1), Justice Cavanagh apparently believes that a judge
is free to second-guess a legislative policy choice based
on the judge’s own preconceived notions of fairness.
34
Although courts undoubtedly possess equitable power,63
such
power
has
traditionally
be
reserved
for
circumstances” such as fraud or mutual mistake.64
“unusual
A court’s
Not surprisingly, Justice Cavanagh cites no support
for his conclusion that enforcing the unambiguous language
of § 3145(1) will increase costs to insurers and insureds.
In fact, there has been no evidence presented to this Court
on which such a determination could be made. If anything,
it would seem that the uncertainty associated with
subjecting insurers and insureds to the whims of individual
judges and their various conceptions of “equity” would
increase overall insurance costs because insurers would no
longer be able to estimate accurately actuarial risk. See,
e.g., Popik & Quackenbos, Reasonable expectations after
thirty years: A failed doctrine, 5 Conn Ins L J 425, 431432 (1998) (“When the courts invalidate unambiguous
exclusions, the insurance industry’s ability to calculate
and manage risk is severely impaired.
The insurers’ only
alternative to this uncertainty is to hedge their bets by
increasing premiums or restricting coverage.”); Rappaport,
The ambiguity rule and
insurance law: Why insurance
contracts should not be construed against the drafter, 30
Ga L R 171, 203 (1995) (“Uncertainty about how judges will
interpret insurance contracts may significantly increase
the costs of insurance.”); Comment, A critique of the
reasonable expectations doctrine, 56 U Chi L Rev 1461, 1489
(1989) (“‘[J]udicial . . . intervention renders costs quite
unpredictable and makes insurers fearful, tightening the
market.’” [citation omitted]).
63
Const 1963, art 6, § 5.
64
Cincinnati Ins Co v Citizens Ins Co, 454 Mich 263,
270; 562 NW2d 648 (1997) (stating that this Court has been
reluctant to recognize equitable estoppel, a corollary of
fraud, “absent intentional or negligent conduct designed to
induce a plaintiff from bringing a timely action.”)
(emphasis omitted); Flynn v Korneffel, 451 Mich 186, 199;
547 NW2d 249 (1996) (“this Court has exercised its
equitable power in unusual circumstances such as fraud
. . .”) (emphasis in original); Solo v Chrysler Corp (On
Rehearing), 408 Mich 345, 352-353; 292 NW2d 438 (1980);
Panozzo v Ford Motor Co, 255 Mich 149, 150-151; 237 NW 369
35
equitable
power
court
engage
to
is
in
not
an
unrestricted
wholesale
license
policymaking,
as
for
the
Justice
Cavanagh implies.65
(1931);
(1931).
Gee
v
Gee,
254
Mich
415,
416-417;
236
NW
820
65
Justice Cavanagh asserts that because we granted
equitable relief in Bryant v Oakpointe Villa Nursing Ctr,
Inc, 471 Mich 411, 432; 684 NW2d 864 (2004), there is no
reason not to apply equity in this case.
This argument
illustrates the fundamental disagreement between a majority
of this Court and Justice Cavanagh, as well as the Lewis
Court, concerning the proper application of equitable
relief.
In Bryant, our grant of equitable relief was a
pinpoint application of equity based on the particular
circumstances surrounding the plaintiff’s claim; namely,
the preexisting jumble of convoluted case law through which
the plaintiff was forced to navigate.
Accordingly, our
limited application of equity in Bryant was entirely
consistent with the “unusual circumstances” standard for
equitable relief discussed above.
In Lewis, however, the
Court chose to adopt an a priori rule of equity without
regard to the particular circumstances of litigants in a
given case. In granting blanket equity to an entire class
of cases, therefore, the Lewis Court essentially rewrote §
3145(1). Such a categorical redrafting of a statute in the
name of equity violates fundamental principles of equitable
relief and is a gross departure from the proper exercise of
the “judicial power.” Const 1963, art 3, § 2 and art 6, §
1.
Accordingly, Justice Cavanagh’s unmitigated praise for
the Lewis Court’s holding is, in our view, quite misplaced.
Moreover, we note that, in Bryant, there was no
controlling statute negating the application of equity.
Instead, the disputed issue in Bryant—whether a claim
sounds in medical malpractice or ordinary negligence—was
controlled by this Court’s case law. On the other hand, in
the present case, there is a statute that controls the
recovery of PIP benefits:
§ 3145(1).
Section 3145(1)
specifically states that a claimant “may not recover
benefits for any portion of the loss incurred more than 1
36
Section 3145(1) plainly provides that an insured “may
not recover benefits for any portion of the loss incurred
more than 1 year before the date on which the action was
commenced.”
There has been no allegation of fraud, mutual
mistake, or any other “unusual circumstance” in the present
case.
Accordingly, there is no basis to invoke the Court’s
equitable power.
Justice Cavanagh errs, as did the Lewis
Court, in assuming that equity may trump an unambiguous and
constitutionally valid statutory enactment.
Indeed, if a court is free to cast aside, under the
guise of equity, a plain statute such as § 3145(1) simply
because the court views the statute as “unfair,” then our
system of government ceases to function as a representative
democracy.
No longer will policy debates occur, and policy
choices be made, in the Legislature.
Instead, an aggrieved
party need only convince a willing judge to rewrite the
statute under the name of equity.
might
be
extraordinarily
While such an approach
efficient
for
a
particular
litigant, the amount of damage it causes to the separation
of
powers
structure
mandate
of
our
of
our
Constitution
government
is
and
the
immeasurable.
overall
Justice
Cavanagh apparently sees no problem with using a court’s
year before the date on which the action was commenced,”
and this Court lacks the authority to say otherwise.
37
equitable power in this manner.
We, however, believe the
judicial role to be far more limited than our colleague in
dissent.66
The judicial philosophy of the majority has been the
subject of much discussion from some in the bench and bar.
This
is
entirely
to
be
expected
and
is
desirable
in
a
vibrant, healthy republic.
Yet, in his discourse on the
flaws
judicial
of
the
majority’s
philosophy,
Justice
Cavanagh has avoided his responsibility of explaining his
own consistent approach to interpretation.
Parties before
66
Justice Cavanagh also argues that “this case is an
ideal
candidate
for
applying
the
...
legislative
reenactment rule.”
Post at 27.
However, as we recently
explained:
[N]either “legislative acquiescence” nor
the “reenactment doctrine” may “be utilized
to subordinate the plain language of a
statute.”
[People v Hawkins, 468 Mich 488,
507-510; 668 NW2d 602 (2003).]
“Legislative
acquiescence” has been repeatedly rejected by
this Court because “Michigan courts [must]
determine the Legislature’s intent from its
words, not from its silence.”
Donajkowski v
Alpena Power Co, 460 Mich 243, 261; 596 NW2d
574 (1999). . . .
“[I]n the absence of a
clear
indication
that
the
Legislature
intended to either adopt or repudiate this
Court’s prior construction, there is no
reason to subordinate our primary principle
of
construction—to
ascertain
the
Legislature’s intent by first examining the
statute’s language—to the reenactment rule.”
[Hawkins, supra] at 508-509. [Neal v Wilkes,
470 Mich 661, 668 n 11; 685 NW2d 648 (2004).]
38
this Court, as well as the people of Michigan generally,
have
been
clearly
apprised
over
the
years
that
the
philosophy set forth in this opinion will constitute the
process by which this Court interprets the law.
Justice
Cavanagh would do well to describe, with as much care as
the majority, his own philosophy.
What, for example, are the standards upon which he is
determined
future
consistently
cases
coming
to
give
before
meaning
this
Court?
to
the
What
law
are
in
the
standards upon which litigants can reasonably predict his
future
interpretations,
the
upon such predictability?
rule
of
law
being
dependent
What are the standards that he
is prepared to articulate, in advance of his decisions, in
order to communicate that his decisions are guided by the
law and are not merely a function of the results that he
might prefer in a given case?
What are the standards upon
which he would rely in order to ensure the appearance and
reality of integrity in his judicial decision-making?
What
judicial principles does he represent beyond opposition to
a
philosophy
that
he
wrongly
characterizes
“automation-like textualist analysis”67
as
one
of the law?
of
The
justices in the majority, by opinions such as this, have
67
Post at 22.
39
addressed these questions.
Justice Cavanagh should do the
same.
Justice Cavanagh, no less than the justices in the
majority, owes it to the people of Michigan to articulate
the precise standards by which he attempts to do justice
under the law.
IV.
Our
decision
mechanism
to
500.3145(1)
statutory
in
the
Lewis
to
apply
one-year-back
contravenes
provision
Conclusion
the
and
a
limitation
unambiguous
represents
an
usurpation of legislative authority.
and
its
progeny,
Johnson,
judicial
are
text
tolling
of
MCL
of
that
unconstitutional
Accordingly,
overruled.
Lewis
Moreover,
we
perceive no reason to depart from the general rule that our
decisions are to be given retroactive effect.
Defendant is
entitled
extent
that
one-year-back
rule.
to
plaintiff’s
summary
claim
is
disposition
barred
by
to
the
the
Accordingly, we reverse the decision of the trial court and
remand this case to that court for entry of an order of
partial summary disposition for defendant consistent with
this opinion.
Robert P. Young, Jr.
Clifford W. Taylor
Maura D. Corrigan
Stephen J. Markman
40
S T A T E
O F
M I C H I G A N
SUPREME COURT
EVA DEVILLERS, as guardian and
conservator of Michael J. Devillers,
Plaintiff-Appellee,
v
No. 126899
AUTO CLUB INSURANCE ASSOCIATION,
Defendant-Appellant.
_______________________________
CAVANAGH, J. (dissenting).
Contrary
to
the
majority’s
refusal
to
recognize
as
much, equitable tolling1 is a time-honored, purposeful, and
carefully crafted rule of equity that is employed when rare
but compelling circumstances so justify its use.
In Lewis
v DAIIE, 426 Mich 93; 393 NW2d 167 (1986), the latest case
to fall prey to the majority’s chopping block, this Court
employed
this
justifiable
1
important
equitable
mechanism
reasons
that
for
the
critical
current
and
majority
“Equitable tolling” is also referred to as “judicial
tolling,” “the doctrine of contra non valentem,” and, in
shareholder suits, “the doctrine of adverse domination.”
Equitable tolling is usually discussed in the context of
statutes of limitations.
MCL 500.3145(1), in that it
precludes recovering no-fault benefits incurred during a
certain time period, is, for tolling purposes, no different
than a statute of limitations.
carelessly relegates to oblivion under an overwrought—and
unnecessary—cloak
of
textualism.
What
the
majority
unfortunately fails to recognize is that judicial tolling
needs no basis in statutory language.
measure.
Thus,
the
majority’s
It is an equitable
ardent
devotion
to
the
strict language of the statute is admirable, but really
quite misplaced.
ties
the
As a result, the majority unnecessarily
judiciary’s
hands
from
importing
equity in situations that require it.
measures
of
Because I believe
that the judicial tolling rule established in Lewis was
well-reasoned and necessary, and because the majority has
not established a persuasive reason for disregarding twenty
years of stare decisis, I respectfully dissent.
I. Equitable Tolling is an Equitable Remedy that Needs No
Basis in Statutory Language
The
long-recognized
equitable
remedy
of
judicial
tolling has been applied in a variety of circumstances.
fact,
“[t]ime
litigants
tolling[.]’”
requirements
are
in
customarily
lawsuits
between
subject
to
In
private
‘equitable
Irwin v Dep’t of Veterans Affairs, 498 US 89,
95; 111 S Ct 453; 112 L Ed 2d 435 (1990), quoting Hallstrom
v Tillamook Co, 493 US 20, 27; 110 S Ct 304; 107 L Ed 2d
237 (1989).
This “break[s] [no] new ground.”
American
Pipe & Constr Co v Utah, 414 US 538, 558; 94 S Ct 756; 38 L
2
Ed 2d 713 (1974).
Rather, equitable tolling operates to
relieve the “strict command” of a legislatively prescribed
limitation because of “considerations ‘[d]eeply rooted in
our jurisprudence.’”
Id. at 559, quoting Glus v Brooklyn
Eastern Terminal, 359 US 231, 232; 79 S Ct 760; 3 L Ed 2d
770 (1959).
For
refrained
instance,
from
“in
cases
commencing
where
suit
the
during
plaintiff
the
has
period
of
limitation because of inducement by the defendant, [Glus,
supra]
or
because
of
fraudulent
concealment,
Holmberg
v
Armbrecht, 327 US 392[; 66 S Ct 582; 90 L Ed 743 (1946)],
this Court has not hesitated to find the statutory period
tolled
or
suspended
by
the
conduct
American Pipe, supra at 559.
of
the
defendant.”
See also Irwin, supra at 96
(recognizing that the remedy of equitable tolling can be
afforded even where a plaintiff files a defective pleading
within the statutory time period); In re MGS, 756 NE2d 990,
997 (Ind App, 2001) (recognizing that equitable tolling was
an available remedy to a statute of limitations); Harsh v
Calogero, 615 So2d 420, 422 (La App, 1993) (acknowledging
the doctrine of contra non valentem); Regents of the Univ
of Minnesota v Raygor, 620 NW2d 680, 687 (Minn, 2001),
(holding that equitable tolling is an available equitable
remedy under the proper circumstances), aff’d 534 US 533;
3
122 S Ct 999; 152 L Ed 2d 27 (2002); Friedland v Gales, 131
NC
App
802,
806-809;
509
SE2d
793
(1998)
(recognizing
equitable estoppel of a statute of limitations defense);
Resolution Trust Corp v Grant, 901 P2d 807, 812 nn 13, 16
(Okla,
1995)
(noting
domination
is
“widely
collecting
cases
from
that
the
applied”
eleven
by
doctrine
federal
states
of
adverse
courts,
and
recognizing
the
doctrine).
Most recently, our Michigan Court of Appeals observed
the following:
This Court in United States Fidelity &
Guaranty Co v Amerisure Ins Co, 195 Mich App 1,
6; 489 NW2d 115 (1992), noted that “Michigan and
federal case law provides precedent for the
principle
that
limitation
statutes
are
not
entirely rigid, allowing judicial tolling under
certain circumstances[.]”
In Bryant [v Oakpointe Villa Nursing Ctr,
Inc, 471 Mich 411, 432; 684 NW2d 864 (2004)],
Justice
Markman,
writing
for
the
majority,
applied the principles of the doctrine of
equitable
tolling
in
a
medical
malpractice
action, while not specifically referring to the
doctrine by name[.]
* * *
Equitable tolling has been applied where
“the plaintiff actively pursued his or her
judicial remedies by filing a defective pleading
during the statutory period or the claimant has
been induced or tricked by the defendant’s
misconduct into allowing the filing deadline to
pass.”
[Ward v Rooney-Gandy, 265 Mich App 515,
518-520; 696 NW2d 64 (2005), quoting 51 Am Jur
2d, Limitation of Actions, § 174, p 563.]
4
Thus, applying equitable tolling is neither a novel
measure
nor
seeking
to
majority
one
employed
advance
implies.
their
by
cunning
personal
Although
judicial
activists
philosophies,
equitable
as
must
tolling
the
be
sparingly applied, Irwin, supra at 96, equitable remedies
are, nonetheless, entirely within the sanctioned parameters
of the judiciary’s powers.
Indeed, when the circumstances
dictate the need, it is the obligation of the judiciary to
mete out the appropriate justice.
Mendez,
304
(concluding
F
that
Supp
2d
See, e.g.,
638-639
sense
“common
632,
requires
(MD
Howard v
Pa,
tolling
2004)
of
the
limitations period when a litigant’s right to file suit
depends on the timely conduct of the opposing party’s agent
in assisting in the exhaustion of mandatory administrative
remedies”); Harris v Hegmann, 198 F3d 153, 158-159 (CA 5,
1999) (recognizing a Louisiana “judicial rule” that tolls
the limitations period during the time in which a plaintiff
is legally unable to act).
The considerations behind equitable tolling tip the
scales in favor of the remedy even when a statute requires
strict
construction
and
the
tolling
waiver of governmental immunity.
will
result
in
the
For example, in Irwin,
supra at 95-96, the United States Supreme Court found that
statutes
of
limitations
that
5
operated
against
the
government,
parties,
like
should
those
be
that
operate
subject
to
the
against
already
rebuttable presumption of equitable tolling.
private
existing
This was true
despite the fact that the civil rights statute at issue, 42
USC
2000e-16(c),
had
to
be
strictly
construed
because
compliance with the statute was a condition to a waiver of
sovereign immunity.
Irwin, supra at 94.
The Supreme Court
duly recognized that “‘Congress was entitled to assume that
the limitation period it prescribed meant just that period
and no more.’”
Id., quoting Soriano v United States, 352
US 270, 276; 77 S Ct 269; 1 L Ed 2d 306 (1957).
But
despite this important restriction, the Court found that
the period of limitations should be equitably tolled when
the circumstances of a particular case warranted it.
The
Court explained that although this type of equitable relief
should be afforded only in rare instances, it is justified
“in situations where the claimant has actively pursued his
judicial remedies by filing a defective pleading during the
statutory period, or where the complainant has been induced
or tricked by his adversary’s misconduct into allowing the
filing deadline to pass.”
2d,
Limitation
requirements
in
of
Id. at 96; see also 51 Am Jur
Actions,
lawsuits
§
174,
between
6
p
563
private
(“The
litigants
time
are
customarily subject to equitable tolling if such tolling is
necessary to prevent unfairness to a diligent plaintiff.”).2
Equitable tolling is precluded, however, if a claimant
does not “exercise due diligence in preserving his legal
rights.”
Irwin, supra at 96, citing Baldwin Co Welcome Ctr
v Brown, 466 US 147, 151; 104 S Ct 1723; 80 L Ed 2d 196
(1984).
Irwin,
With regard to the particular claim before it in
the
Supreme
untimeliness
was
Court
“at
best
found
a
that
garden
the
plaintiff’s
variety
claim
of
excusable neglect,” and, thus, equitable tolling was not
available in that circumstance.
Irwin, supra at 96.
Of course, equitable tolling must be consonant with
the
legislative
applied.
purpose
of
a
statute
to
which
it
is
American Pipe, supra at 559, see also 54 CJS,
Limitations of Actions, § 86, p 122 (“In order to serve the
ends
of
justice
where
technical
forfeitures
would
unjustifiably prevent a trial on the merits, the doctrine
of equitable tolling may be applied to toll the running of
the statute of limitations, provided it is in conjunction
2
Indeed, the majority explicitly recognizes that
equitable tolling is necessary in exactly the type of
circumstance described in Irwin and 51 Am Jur 2d, p 563.
See ante at 35 n 64, citing Cincinnati Ins Co v Citizens
Ins Co, 454 Mich 263, 270; 562 NW2d 648 (1997).
Its
failure, discussed later in this opinion, is in refusing to
acknowledge that this case presents exactly this type of
circumstance.
7
with the legislative scheme.”).
And the legislative branch
is free to indicate that it does not want equitable tolling
to apply to any particular statute.
In
the
absence
of
such
an
Irwin, supra at 96.
indication
here,
equitable
tolling is available, as long as the reasons for applying
the remedy serve a justifiable purpose and comport with
legislative intent.
II. Applying Equitable Tolling to MCL 500.3145(1) is
Necessary to Prevent Unjust Results and to Effect
Legislative Intent
In Lewis, this Court thoroughly examined the purposes
of statutes of limitations, the purposes of and legislative
intent
behind
the
no-fault
act,
and
the
parameters
and
conditions of employing equitable tolling before invoking
the
delicately
chosen
remedy.
This
Court
did
not
misapprehend that the statute at issue was in some way
ambiguous
or
that
the
tolling requirement.3
text
of
the
statute
contained
a
Rather, after careful consideration,
3
After this Court applied judicial tolling to MCL
500.3145(1) in
Lewis, this Court considered whether
judicial tolling was also applicable to MCL 500.3145(2).
Secura Ins Co v Auto-Owners Ins Co, 461 Mich 382; 605 NW2d
308 (2000). In refusing to apply tolling to subsection 2,
the Secura majority misunderstood the Lewis majority’s
reasoning. The Secura majority stated, “The Lewis majority
recognized tolling under subsection 1.
However, that
subsection
includes
language
indicating
that
the
Legislature intended that the one-year limitation period
would be suspended by the giving of notice[.]” Id. at 386.
8
we concluded that an equitable measure was necessary to
further the purposes of the no-fault act and to eliminate
the statute’s inherent blockade to an insured’s right to
receive what is rightfully his.
Nothing about the purpose of the act, the purpose of
the
time
limitation
equitable
tolling
in
have
the
act,
changed
or
the
since
overruling that well-reasoned case.
parameters
Lewis
to
of
justify
Tellingly, the only
variable that has fluctuated is the makeup of this Court.
As
we
recognized
in
Lewis,
one
of
the
foremost
underlying purposes of our no-fault scheme was to reduce
litigation.
Lewis,
Carriers
Co,
(1984).
Ins
supra
421
Mich
at
101-102,
571,
citing
578-579;
365
Welton
NW2d
v
170
Of equal importance, the act
was offered as an innovative social and legal
response to the long payment delays, inequitable
payment structure, and high legal costs inherent
in the tort (or “fault”) liability system.
The
goal of the no-fault insurance system was to
provide
victims
of
motor
vehicle
accidents
assured, adequate, and prompt reparation for
certain economic losses.
[Shavers v Attorney
General, 402 Mich 554, 578-579; 267 NW2d 72
(1978) (emphasis added).]
As I noted in my dissent, “A careful reading of Lewis,
however, reveals that the basis of our decision there was
preserving legislative purposes, and not the sentence the
majority highlights. . . . Thus, the majority relies on a
phantom distinction to differentiate the instant case from
Lewis, because applying the same analysis used in Lewis
supports tolling the statute.”
Secura, supra at 389 n 1
(Cavanagh, J., dissenting).
9
The portion of the no-fault act at issue in Lewis and
being
reexamined
in
the
present
case,
MCL
500.3145(1),
governs when an insured must bring suit to recover benefits
due under the act.
The statute states in pertinent part:
An
action
for
recovery
of
personal
protection insurance benefits payable under this
chapter for accidental bodily injury may not be
commenced later than 1 year after the date of the
accident causing the injury unless written notice
of injury as provided herein has been given to
the insurer within 1 year after the accident or
unless the insurer has previously made a payment
of personal protection insurance benefits for the
injury.
If the notice has been given or a
payment has been made, the action may be
commenced at any time within 1 year after the
most recent allowable expense, work loss or
survivor’s loss has been incurred.
However, the
claimant may not recover benefits for any portion
of the loss incurred more than 1 year before the
date on which the action was commenced.
[Id.
(emphasis added).]
Simply stated, an insured who has received benefits or
requested his insurer to pay recoverable expenses has one
year after the most recent allowable expense or loss was
incurred
to
sue
the
insurer
to
recover
those
benefits.
Thus, as long as expenses are being incurred, the time for
bringing a lawsuit is not restricted.
However, the insured
will
benefits
only
incurred
be
in
permitted
the
to
one-year
recover
period
brought.
10
before
the
that
suit
were
was
Once an insured submits a claim for benefits, she has
no
way
of
knowing,
other
than
an
indication
insurer, whether the claim will be paid.
from
the
Quite obviously,
then, when an insured acts with due diligence in notifying
the
insurance
ultimately
company
collects
of
the
a
claim,
full
amount
whether
of
the
insured
benefits
completely at the whim of the insurance company.
due
is
When an
insured submits a claim for benefits, an insurer can take
as long as it wants to approve or deny the claim.
If the
insurer takes more than one year, then under the one-yearback
rule,
the
benefits
that
were
due
to
the
insured
dissipate into thin air through no fault whatsoever of the
insured.
Indeed, that was precisely what occurred in this case.
After plaintiff’s son was catastrophically injured in an
automobile accident, defendant began paying plaintiff for
her attendant care services.
Defendant paid those benefits
for approximately a year and a half.
receiving
Michael
a
had
February
been
15,
2001,
“cleared
to
But a day after
physician’s
function
notice
without
that
close
supervision,” defendant abruptly stopped paying benefits.
Defendant waited, however, until October 7, 2002, to notify
plaintiff that it was formally denying further benefits.
11
Shortly thereafter, on November 12, 2002, plaintiff
filed a complaint to recover the benefits defendant had
ceased paying.4
only
recover
But under MCL 500.3145(1), plaintiff could
benefits
from
the
one-year
period
that
preceded her complaint, November 12, 2001, to November 12,
2002, even though defendant allegedly wrongfully withheld
benefits
beginning
on
February
16,
2001.
Thus,
if
plaintiff was entitled to benefits from the period February
16,
2001,
to
November
12,
2001,
the
one-year-back
rule
precluded her from recovering them, even though plaintiff
was allegedly diligent in providing notice of her claim to
her insurer.5
Plaintiff’s
case
equitable tolling.
aptly
demonstrates
the
need
for
Her insurer waited nearly two years to
formally deny her claim for attendant benefits.
Although
plaintiff could have brought suit earlier, before defendant
4
Defendant ultimately resumed paying the benefits on
October 15, 2003.
5
Defendant claims that plaintiff did not notify it of
her claim.
Plaintiff presented evidence of a claims
adjuster’s notes that suggest that plaintiff did notify
defendant.
Moreover,
defendant
was
already
paying
attendant care benefits and stopped after it received
information that it claims relieved it of its obligation to
pay further benefits.
Thus, it is difficult for me to
conclude that defendant had no notice of plaintiff’s claim
for benefits.
In any event, whether plaintiff properly
notified defendant would be a factual matter to be resolved
on remand.
12
formally denied her claim, such a tactic hardly advances
our Legislature’s goal of reducing litigation.
In fact, it
appears from the limited record before us that plaintiff
and
defendant
communication
time
were
involved
regarding
plaintiff’s
son
many
was
in
extensive
types
injured
of
dealings
benefits
onward.6
and
from
An
the
insured
engaged in the complex day-to-day dealings with an insurer
that
are
common
conceivably
after
destroy
a
serious
any
accident
semblance
of
would
quite
goodwill
and
cooperation by filing a lawsuit before the insurer has even
denied
a
particular
simply
defend
by
claim.
stating
Further,
that
the
an
insurer
plaintiff’s
could
claim
is
premature because the insurer is still investigating the
claim,
at
which
point
the
lawsuit
6
would
not
only
have
The majority claims that defendant’s cessation of
payments gave plaintiff the “surest notice” that it would
not be honoring her claim for benefits. Ante at 27. This
simplistic approach fails to account for the inherent
complexities of no-fault claim resolution.
In many cases
involving extensive injuries, there are hundreds if not
thousands of claims for different types of benefits
presented
for
payment,
and
there
are
extensive
negotiations, resubmissions, evaluations, investigations,
and the like.
Thus, to conclude that an insurer’s denial
of one such claim among many is the “surest notice” that
the claim will not be paid misrepresents reality.
In
essence, the majority’s statement merely emphasizes that a
preemptive lawsuit is expressly necessary under its new
rule.
13
precipitated
antagonism,
but
would
have
amounted
to
a
colossal waste of time and resources.
Insurers, too, are hurt by today’s ruling.
With the
proliferation of litigation that is now bound to occur,
insurers
will
be
paying
the
costs
of
defending
the
lawsuits, and converting resources that could otherwise go
toward investigating claims and communicating with their
insureds into payments for billable hours.
This will, in
turn, translate into higher premiums, further denigrating
the opposite goal of the no-fault act.
How the majority’s abandonment of equitable tolling in
this situation furthers the legislative intent behind the
no-fault act escapes me.
Defendant claims that a deterrent mechanism that would
encourage an insurer to promptly deny claims is built into
the no-fault act and that, as such, equitable tolling is
unnecessary.
I disagree.
While §§ 3142(3) and 3148(1)
penalize the insurer for unreasonable delay or unreasonable
denials
by
attaching
interest
to
overdue
payments
and
making the insurer liable for an insured’s attorney fees,
those provisions fall short of protecting insureds against
the unavoidable effects of insurer delay.
Once benefits
become unreachable through operation of the one-year-back
rule, the benefits cannot form a part of a plaintiff’s
14
claim.
Thus, they cannot be a part of the plaintiff’s
award.
Therefore, not only is the plaintiff deprived of a
part
of
her
benefits,
she
is
also
deprived
of
the
purportedly punitive interest that should have accompanied
it.
Further,
lowest
a
dollar
savvy
amount
and
insurer
possible
use
the
seeking
might
to
disburse
gamble
on
one-year-back
a
cost-
benefit
approach
favor.
For example, assume an insured seeks benefits that,
over one year, total $100,000.
years
to
deny
the
claim,
rule
the
annual
$100,000
figure
insurer’s
total
the
insured,
interest
rate
will
pursuant
to
3142(3),
bill
its
If the insurer waits two
although
$200,000, can only recover $100,000 in a lawsuit.
percent
in
§
approximately
be
A twelve
applied
which
$112,000.
due
to
the
makes
the
Thus,
the
insurer handily pockets $88,000 of its insured’s benefit
money, less the plaintiff’s attorney fees.
Either way, the
insured ends up with $112,000 instead of the $200,000, plus
interest, that was actually owed.7
7
This assumes that the insured can successfully engage
an attorney’s services.
If the amount of the potential
claim does not significantly exceed the cost of litigation,
then, presumably, getting an attorney will be a difficult
endeavor.
15
Lest
anyone
argue
otherwise,
scenario is real, not imagined.
the
danger
of
such
a
In Hudick v Hastings Mut
Ins Co, 247 Mich App 602, 610; 637 NW2d 521 (2001), the
Court of Appeals found an acute need for Lewis’s equitable
tolling
rule
information
when,
it
“[a]lthough
needed
at
defendant
this
point
to
had
all
the
calculate
the
benefits it owed to plaintiff, defendant did not process a
claim for plaintiff or formally deny its liability until” a
time that precluded the plaintiff from recovering some of
the benefits owed.
The Hudick panel correctly observed
that the “[p]laintiff should not be penalized for the time
that the two insurers spent investigating the issue, which
was extended largely because defendant was aware of its
statutory
duty
limitations
but
attempted
period.”
to
Id.
run
Such
the
clock
tactics
on
were
the
also
forewarned in William H Sill Mortgages, Inc v Ohio Cas Ins
Co, 412 F2d 341, 346 (CA 6, 1969) (“The insurer may not
lull
the
insured
to
sleep
by
promises
of
payment
or
negotiations for payment or a failure to deny liability
until after the time limitation has expired and then set up
as a defense the failure to bring the action within the
limitation fixed by the policy.”).
The
majority
claims
that
the
“only
delay
possible
under the no-fault law is the thirty-day payment period
16
following receipt of proof of loss by the insurer.”
at
26
(emphasis
added).
This
is
incorrect.
Ante
While
§
3142(2) does technically require insurers to pay benefits
within thirty days, insurers do not always do so.
Thus,
delays of more than thirty days are indeed “possible.”
The
purposes
ways
of
ramifications
in
the
which
equitable
no-fault
of
act,
disallowing
tolling
and
the
eloquently presented in precedent.
the
remedy,
fulfill
the
unjustifiable
have
been
In Richards v American
Fellowship Mut Ins Co, 84 Mich App 629, 635; 270 NW2d 670
(1978), the Court of Appeals stated:
Applying the approach taken by the Thomas
Court [Tom Thomas Org, Inc v Reliance Ins Co, 396
Mich 588; 242 NW2d 396 (1976)] to § 3145 would
effectuate the legislative intent in enacting the
no-fault act.
Unable to profit from processing
delays, insurance companies will be encouraged to
promptly assess their liability and to notify the
insured of their decision. At the same time, the
insured will have a full year in which to bring
suit.
The
Richards
Court
recognized
the
ramifications
disallowing tolling:
If
we
were
to
accept
defendant’s
interpretation of the statutory provision, we
would in effect be penalizing the insured for the
time the insurance company used to assess its
liability.
To bar the claimant from judicial
enforcement of his insurance contract rights
because the insurance company has unduly delayed
in denying its liability would run counter to the
Legislature’s intent to provide the insured with
17
of
prompt and adequate compensation.
(emphasis added).]
[Id. at 634
In Lewis, this Court correctly found that equitable
tolling served the inherent purposes of the no-fault act by
ensuring that an insurer’s delay in handling a claim would
not work to the insured’s detriment:
“Tolling
the
statute
when
the
insured
submits a claim for specific benefits would not
appear to detract from the policies underlying
the
one-year
limitation
on
recovery.
By
submitting a timely and specific claim, the
insured serves the interest in preventing stale
claims by allowing the insurer to assess its
liability while the information supporting the
claim is relatively fresh.
A prompt denial of
the claim would barely affect the running of the
limitation period, while a lengthy investigation
would simply ‘freeze’ the situation until the
claim is eventually denied.
In effect, the
insured would be charged with the time spent
reducing his losses to a claim for specific
benefits plus the time spent deciding whether to
sue after the claim is denied.” [Lewis, supra at
101, quoting Welton, supra at 578-579.]
This
tolling,
Court
an
precautionary
also
insured
correctly
will
measure
recognized
have
when
to
the
“file
that
without
suit
one-year
as
a
deadline
approache[s], regardless of the status of the claim,” and
that
such
needless
litigation
contravenes
act’s purpose of reducing litigation.
the
no-fault
Lewis, supra at 102,
citing Cassidy v McGovern, 415 Mich 483, 501; 330 NW2d 22
(1982).
18
Of course, equitable tolling is not “an unconditional
gift to the insured.”
Norfolk & W R Co v Auto Club Ins
Ass’n, 894 F2d 838, 843 (CA 6, 1990).
Astute about the
need to prevent an insured from improperly benefiting from
equitable tolling, the Lewis Court also warned that to take
advantage of tolling, the insured “must seek reimbursement
with reasonable diligence . . . .”
That
condition,
defendant’s
fear
held
the
Court,
that
adoption
of
Lewis, supra at 102.
would
the
“alleviate
tolling
the
principle
will result in ‘open-ended’ liability in cases in which the
claimant,
having
made
a
specific
claim
for
benefits,
thereafter refuses to respond to the carrier’s legitimate
requests for more information needed to process the claim.”
Id. at 102-103.8
Further,
require
an
it
is
insurer
nothing
to
deny
short
a
of
claim
illogical
before
restriction on what plaintiff can recover.
not
imposing
to
a
A plaintiff
must know that a claim exists before being required to file
one.
Repudiating equitable tolling imposes a tremendous
8
In light of the majority’s renegade renunciation of
equitable tolling, it is unnecessary to address the
correctness of the Court of Appeals decision in Johnson v
State Farm Mut Automobile Ins Co, 183 Mich App 752; 455
NW2d 420 (1990).
Thus, I make no conclusions regarding
whether the Court of Appeals correctly interpreted Lewis’s
requirement that an insured make a “specific claim for
benefits.”
19
burden on plaintiffs, who must assert that the insurer’s
failure
to
pay
is
a
definitive
denial
and,
thus,
a
violation of the no-fault act, rather than just the result
of a pending investigation.
to
state
a
claim
puts
A defense motion for failure
a
plaintiff
in
an
unnecessarily
precarious position.
These many concerns are not lost on other states that
have
been
Illinois
faced
Farmers
with
Ins
similar
Co,
675
problems.
NW2d
925,
In
929
Entzion
(Minn
v
App,
2004), the court concluded that the period of limitations
on a no-fault benefits claim did not begin to run until the
insurer denied benefits.
94
AD2d
determined
835;
that
463
the
In Micha v Merchants Mut Ins Co,
NYS2d
110,
period
benefits were withheld.
of
112
(1983),
limitations
the
court
started
when
Both courts recognized that it
would be irrational to require a plaintiff to prove that
benefits were owed before an insurer actually refused to
pay them.
requires
Refusing to apply equitable tolling to § 3145
plaintiffs
irreconcilable
to
conflict
sue
with
defensively,
the
creating
legislative
goal
an
of
reducing litigation.
Interestingly, the necessity for equity of this sort
has been recognized by this very majority most recently in
Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411;
20
684 NW2d 864 (2004).
In Bryant, this Court concluded that
the “[p]laintiff’s failure to comply with the applicable
statute
of
limitations
understandable
confusion
claim,
than
rather
rights.”
the
Id. at 432.
plaintiff’s
barred,
“[t]he
the
about
the
the
negligent
product
legal
failure
of
an
of
her
preserve
her
nature
to
Thus, this Court held that, although
claims
would
equities
different result.”
If
a
[was]
of
have
normally
this
case
employ
its
.
.
been
.
time-
compel
a
Id.
judiciary
can
powers
to
toll
a
period of limitations because the nature of one’s claim is
a
source
insurer
of
can
confusion,
then
single-handedly
certainly
orchestrate
here,
a
where
an
reduction
in
genuinely owed benefits, equity is likewise required.
majority’s
newfound
hostility
to
the
doctrine
is
The
vastly
disturbing.9
9
The
majority
attempts
to
explain
away
this
discrepancy by arguing that because there is no statute to
assist one in characterizing a cause of action, equity was
appropriate in Bryant.
Ante at 36 n 65.
Strangely, the
Bryant plaintiff’s situation—“confusion”—fits less within
the majority’s declaration of when equity should be applied
(“fraud or mutual mistake,” ante at 35), than does the
statute at hand, which allows an insurer to single-handedly
divest a plaintiff of deserved benefits even when a
plaintiff has diligently performed all her obligations.
Thus, this is far from the lofty “fundamental disagreement”
between the majority and myself regarding when equity
should be applied that the majority proclaims. Ante at 36
21
Further,
analysis
takes
surrounding
amicus
the
majority’s
no
no-fault
curiae
automaton-like
consideration
claims
Coalition
and
of
the
payments
Protecting
Auto
textualist
realities
illustrated
No-Fault.
by
For
instance, when an insured does not file a lawsuit within
one
year
of
receiving
medical
treatment,
the
insured’s
medical providers may go unpaid, merely because the insurer
has not responded to the request for benefits.
This risk
of nonrecovery or substantially reduced payments may prove
too great for providers to bear.
Medical providers may
resort to denying treatment to and even suing their own
patients, many of whom will not be able to pay because of
the high cost of medical care, and some of whom may be
forced into bankruptcy because of the debt.
The overflow
of
our
health-care
costs
will
be
foisted
on
already
n 65.
Rather, the majority’s inconsistency is a clear
manifestation of its willingness to apply equity according
to its own whims instead of according to the principles
that govern it.
Further, it is misleading to suggest that the Lewis
Court issued a protective blanket of equity to every
plaintiff encountering a problem under MCL 500.3145(1).
See ante at 36 n 65. The Lewis Court’s conditions that a
plaintiff must submit a specific claim for benefits and be
diligent necessitate a case-by-case examination of whether
a particular plaintiff can avail herself of the equitable
rule.
In other words, not every plaintiff will be
permitted to benefit from equitable tolling.
Rather, the
Lewis Court made the remedy potentially available to
plaintiffs, but only when they met certain conditions.
22
overtaxed Medicaid and Medicare systems, with the taxpayers
ultimately shouldering the burden.
Thus, refusing to apply
equitable tolling will ultimately increase overall healthcare costs for everyone, denigrating yet another goal of
the no-fault system:
affordable premiums.
In its response to my dissent, the majority does a
fine
job
of
describing
the
principles
of
equity.
Noticeably lacking, however, is any attempt to describe why
equity
is
majority’s
not
required
chosen
in
ignorance
the
of
present
the
case.10
fact
that
The
its
application of the statute at hand does not further the
intent of the Legislature or the purpose of the no-fault
act, and that it unjustifiably puts an insured’s ability to
10
The majority’s statement that there are no “‘unusual
circumstance[s]’” in this case is conveniently conclusory
and, again, a variation on its dodge-and-duck theme.
See
ante at 37. I invite the public to reconcile the following
premises of the majority.
The majority claims that its
charge is to further legislative intent.
But it also
claims that the only method of divining that intent is
through the statute’s plain language.
(It also assumes
that this is possible with one-hundred percent “accuracy,”
though split decisions from this very majority belie that
assumption.)
And it further claims that it can, indeed,
employ equity.
But it fails to explain how it could ever
invoke its equitable powers if it limits itself to the
statute’s plain language. It then turns a blind eye to the
fact that its analysis does not further the well-known and
consistently agreed-on legislative intent behind the nofault act.
23
recover benefits in an insurer’s hands, is convenient for
the majority, but disturbing to me.
The
application
of
equitable
tolling
strikes
an
extremely palatable balance between the rights of insureds
and insurers.11
As I stated in Secura:
The legislative purposes behind limitation
provisions, preventing stale claims and easing
crowded dockets, are either inapplicable or
contrary to the majority’s decision.
First,
preventing stale claims from reaching our courts
is not a consideration in this case, because the
defendant insurer can protect itself from stale
claims by promptly responding to a policyholder’s
claim.
Thus, whether insurers must deal with
stale claims is uniquely within their own
control.
Next, the majority’s interpretation
actually encourages needless litigation.
Under
the majority’s decision, a prudent policyholder
must file suit within one year of the injury,
regardless of whether the insurer is still
processing
the
claim,
or
lose
the
claim
altogether.
This
contravenes
an
important
motivation for the no-fault system, reducing
litigation, see Cassidy v McGovern, 415 Mich 483,
501; 330 NW2d 22 (1982), and the similar judicial
policy of discouraging litigation. See Alexander
v Gardner-Denver Co, 415 US 36; 94 S Ct 1011; 39
L Ed 2d 147 (1974).
Additionally, requiring a
precautionary suit by the policyholder could
adversely affect the negotiations between the
claimant and the insurer.
Negotiating parties
usually
attempt
to
maintain
a
cooperative
atmosphere, and litigation pending between the
parties would hinder that atmosphere.
See
Johnson v Railway Express Agency, 421 US 454,
468; 95 S Ct 1716; 44 L Ed 2d 295 (1975)
11
This is evidenced by the sheer number of courts that
have held likewise, cited earlier in this opinion.
24
(Marshall, J., dissenting).
[Secura,
391 (Cavanagh, J., dissenting).][12]
supra at
Defendant’s magniloquent predictions of the demise of
our entire no-fault system barring reversal of Lewis are
sheer melodrama.
First, Lewis was decided nearly twenty
years ago, and no-fault remains alive and well.13
equitable
tolling
were
destined
to
bring
Surely if
our
no-fault
system to its knees, the system would be six feet under by
now.
Second, defendant claims that the prolific number of
multimillion dollar claims being wreaked on the insurance
companies as a result of equitable tolling create great
pressure on insurers to settle.
But an insurer is in the
best position to avoid the accrual of multimillion dollar
claims by promptly paying or denying benefits.
Further,
the Lewis decision does not allow an insured to sleep on
his rights, as evidenced by the numerous decisions in which
plaintiffs who did not diligently pursue their claims were
denied the benefit of equitable tolling and those in which
the insurer’s prompt denial prevented tolling.
See, e.g.,
12
See also Bridges v Allstate Ins Co, 158 Mich App
276, 280-281; 404 NW2d 240 (1987), in which the Court noted
that, although the “plaintiff filed a complaint, he wished
to avoid the necessity of trying the action and felt that
there was a very real possibility that his claim would be
paid.”
13
I use that term as a figure of speech, not as a
literal comment on the no-fault system.
25
Bomis v Metropolitan Life Ins Co, 970 F Supp 584, 588 (ED
Mich,
because
1997)
the
(rejecting
plaintiff
the
did
plaintiff’s
not
act
with
Lewis
due
argument
diligence);
Morley v Automobile Club of Michigan, 458 Mich 459, 470;
581 NW2d 237 (1998); Grant v AAA Michigan/Wisconsin, Inc,
266 Mich App ____; ____ NW2d ____ (2005); Mt Carmel Mercy
Hosp v Allstate Ins Co, 194 Mich App 580, 587-588; 487 NW2d
849 (1992); Mousa v State Auto Ins Cos, 185 Mich App 293,
294-295; 460 NW2d 310 (1990) (finding a formal denial of
benefits when the plaintiff admitted that the insurer had
orally denied the claim); Long v Titan Ins Co, unpublished
opinion per curiam of the Court of Appeals, issued June 14,
2005 (Docket No. 260113); Detroit Medical Ctr-Sinai-Grace
Hosp v Titan Ins Co, unpublished opinion per curiam of the
Court
of
Appeals,
issued
March
10,
2005
(Docket
No.
251447); Inhulsen v Citizens Ins Co, unpublished opinion
per curiam of the Court of Appeals, issued March 30, 2004
(Docket No. 243398); Jevahirian v Progressive Cas Ins Co,
unpublished opinion per curiam of the Court of Appeals,
issued April 27, 1999 (Docket No. 205577) (“Notice of an
injury that simply informs the insurer of the name and
address of the claimant and the time, place, and nature of
an injury cannot serve as the specific claim that triggers
tolling
because
it
does
not
26
inform
the
insurer
of
the
expenses
incurred,
whether
the
expenses
were
covered
losses, and whether the claimant would file a claim.”).
In other words, equitable tolling has worked.
As can
clearly be seen, equitable tolling puts neither the insured
nor
the
insurer
in
an
untenable
or
unfair
position.
Rather, it protects both parties by requiring both to act
promptly.
When a party fails to act promptly, the law will
not reward that party.
purposes
of
defeated.
tolling
claims,
litigation,
everyone.
III.
no-fault
act
are
realized
instead
of
But with the majority’s obstinate rejection of
equitable
denying
the
With these safeguards in place, the
unpaid
will
come
lost
benefits,
providers,
the
and
temptation
a
to
prolong
proliferation
increased
costs
of
for
Such a ruling is simply unjustifiable.
The Legislature Has Not Revised MCL 500.3145 Since
Lewis
Despite amending the no-fault act several times since
this Court’s decision in Lewis, the Legislature has left
untouched the language at issue in this case.
Thus, this
case is an ideal candidate for applying the long-recognized
legislative reenactment rule.
See, e.g., Massachusetts Mut
Life Ins Co v United States, 288 US 269, 273; 53 S Ct 337;
77 L Ed 739 (1933).
As I have previously explained,
[u]nder the reenactment rule, “[i]f a legislature
reenacts a statute without modifying a high
27
court’s practical construction of that statute,
that construction is implicitly adopted.” People
v Hawkins, 468 Mich 488, 519; 668 NW2d 602 (2003)
(Cavanagh, J., dissenting), citing 28 Singer,
Statutes and Statutory Construction (2000 rev),
Contemporaneous Construction, § 49.09, pp 103112. The Legislature “is presumed to be aware of
an administrative or judicial interpretation of a
statute and to adopt that interpretation when it
[reenacts] a statute without change . . . .”
Lorillard, a Div of Loew’s Theatres, Inc v Pons,
434 US 575, 580; 98 S Ct 866; 55 L Ed 2d 40
(1978).
“The reenactment rule differs from the
legislative-acquiescence doctrine in that the
former canon provides ‘prima facie evidence of
legislative intent’ by the adoption, without
modification, of a statutory provision that had
already
received
judicial
interpretation.”
Hawkins, supra at 488, quoting Singer at 107.
[Neal v Wilkes, 470 Mich 661, 676; 685 NW2d 648
(2004) (Cavanagh, J., dissenting).]
I
continue
to
find
extremely
persuasive
the
notion
that a Legislature is presumed to be aware of this Court’s
decisions.
Id.; see also Lindahl v Office of Personnel
Mgt, 470 US 768, 782; 105 S Ct 1620; 84 L Ed 2d 674,
(1985).
Further, if the ramifications of Lewis were so
dramatically detrimental to the no-fault system, there is
all the more reason that the Legislature would have acted
with great haste to amend the statute and explicitly ban
equitable
tolling.
But
it
the
did
not.
Legislature
Rather,
has
left
despite
numerous
opportunities,
§
3145
intact.
Its failure to change the statute to reflect an
intent contrary to that which we found in Lewis is further
28
support that this Court correctly concluded that equitable
tolling was appropriate.
IV. The Majority’s Reasoning for Failure to Adhere to
Stare Decisis is Faulty
The majority’s opinion seems to rest primarily on its
analytically deficient conclusion that this Court should
not employ equity in this case.
Most egregiously, the
majority accuses the Lewis Court of “act[ing] outside its
constitutional authority,” ante at 25-26, while at the same
time acknowledging this Court’s constitutional authority to
do
equity,
ante
at
35.
The
majority
cites
our
Constitution’s directive that the judiciary must “exercise
its ‘judicial power,’” see ante at 26 n 40, quoting Const
1963, art 3, § 2; art 6, § 1, but neglects to justify its
conclusion that equity should not lie in the present case.
Indeed, despite its purported recognition that this
Court’s equitable powers are, in fact, viable, the majority
insists
The
on
trivializing
majority
playing
“an
grossly
omnipresent
my
application
of
mischaracterizes
and
unassailable
these
my
powers.
analysis
judicial
as
trump
card,” the result of my believing the statute is “unfair,”
a “policy decision[],” “omniscien[ce],” a “veil,” a “policy
choice,” “second-guess[ing],” a “whim[],” one of “various
conceptions,”
an
“unrestricted
29
license,”
“wholesale
policymaking,” without “basis,” and a “guise.”
33-37 & n 62.
See ante at
These accusations are transparent attempts
to suggest that a legitimate application of equity is a
mere effort to install my own policy views.
Not only could
that not be further from the truth, but such belittling is
a grave disservice to the citizens of this state.
As
I
articulated
have
by
discussed,
Justice
and
Weaver,
the
as
is
Lewis
thoughtfully
decision
neither “‘unworkable’” nor “‘badly reasoned.’”
29.
was
See ante at
Rather, it was based on a centuries-old recognition of
equitable tolling as an appropriate measure for avoiding
injustices.
It had “‘practical workability’” by requiring
that both parties act promptly and by not giving either
party an undue advantage over the other.14
crafted
in
an
effort
litigation unnecessary.
to
make
The decision was
undesired
preemptive
There are no changes in the law or
facts that justify overturning the decision.
There are,
contrary to the majority’s assertion otherwise, reliance
14
To the extent the Court of Appeals may have
misapplied the requirement that an insured must submit a
specific claim for benefits in Johnson, supra, such error
is easily corrected.
If the Court of Appeals erred, we
need not, as the majority insists, clamor to overrule the
underlying case.
See ante at 30.
Rather, the usual, and
much more logical, path is to overturn the aberrant Court
of Appeals case if it did not adhere to our prior
precedent.
30
interests at play that will, when Lewis is overruled, work
undue hardships on insureds and on medical providers.
Insureds
waiting
or
insurers.
routinely
suing—on
choose
the
basis
their
of
course
the
of
actions
action—
of
their
Relying on equitable tolling, an insured knows
that he need not rush to court the second the one-year
period
set
forth
in
§
3145(1)
has
elapsed.
The
undue
hardship that will result from overturning Lewis is that
instead of being able to engage in negotiations with an
insurer, an insured must jump the gun, expend unnecessary
time and resources, sue her insurer, and put herself in the
awkward
position
motion.
of
Medical
withstanding
providers
as
a
summary
well
will
disposition
suffer
undue
hardship because they will, in many instances, bear the
losses that will result when an insurer does not timely
deny a claim and when the insured does not run to court to
file
a
now-necessary
preemptive
lawsuit.
It
is
quite
logical to assume that medical providers have been relying
on the equitable tolling rule of Lewis by continuing to
provide treatment during the period in which a claim has
not yet been denied.
The
Lewis
is
majority
bizarrely
increasingly
claims
producing
a
that
tax
“the
on
the
impact
of
no-fault
system as claimants are being permitted to seek recovery
31
for
losses
incurred
commencing suit.”
much
more
Ante at 29.
than
one
year
prior
to
But this fails to recognize
that the benefits were already legitimately owed—thus, they
can hardly be characterized as a “tax.”
And in a situation
where an insurer deliberately engages in dilatory tactics
to avoid paying benefits, the nomenclature is even more
unfitting.
The
Lewis
decision
was
sound,
had
practical
workability, and gave clear guidance that is being relied
upon on a daily basis.
in
an
equitable
rule,
Further, the decision was grounded
not
“judicial
defiance”
as
the
majority so histrionically proclaims, so the Court did not
incorrectly interpret the statute.
See ante at 28.
There
is simply no basis for expunging Lewis and ignoring the
directives of the doctrine of stare decisis.
The best that
can be said of today’s majority opinion is that it does
indeed
create
insureds:
a
crystal-clear
directive
to
Michigan’s
if your claim has not been paid or formally
denied within one year of your request, sue.
V. The Majority’s Decision Should Not be Applied
Retroactively
For the reasons aptly set forth by Justice Weaver, I
fully agree that the majority’s misguided decision should
32
not
be
visited
on
any
insured
by
way
of
retroactive
application.
VI.
The Majority’s Tone Disserves the Judiciary
Some readers, like myself, might find it difficult to
wade through the thick swamp of hyperbole and rhetoric that
permeates
language,15
the
the
majority’s
opinion.
With
majority
haughtily
assumes
15
its
opprobrious
that
no
view
Discrediting a long line of the past opinions
written by a bench curiously not including any member of
the current majority, the majority gets quite carried away
in an apparent effort to convince the reader that its view
is superior to any other ever proffered.
Keeping in mind
the above discussion of the widespread acceptance of
equitable tolling and the reasons why applying tolling to
§ 3145(1) is necessary to fulfill the purposes of the nofault act and to prevent an insurer from wrongfully
withholding benefits from an injured plaintiff, consider
these frenzied phraseologies: “under this thin veil, [the
majorities] inserted their own policy views,” ante at 13;
“impermissible departure,” ante at 19; “supplanted the will
of the Legislature with its own assessment of policy and
consumer expectations,” ante at 20; “curious incongruity,”
ante at 21; “quite broad,” ante at 22; “vague,” ante at 23;
“dismantled the certainty,” id.; “questionable lineage,”
id.; “judicial negation,” id.; “abrupt departure from
settled precedent,” id.; “shrugged off the weight of
binding
precedent,”
ante
at
24;
“crafting
its
own
amendment,” id.; “distortion,” id.; “unmanageability,” id.;
“purely for policy reasons,” id.; “direct contravention of
the statutory language,” id.; ““prevailing policy whims,”
ante
at
25;
“own
perception,”
id.;
“impermissibly
legislated from the bench,” id.; “speculation,” id.; “acted
outside its constitutional authority,” ante at 25-26;
“importing its own policy views,” ante at 26; “we are
unable to perceive any sound policy basis,” id.; “judicial
defiance,” ante at 28 (emphasis in original); “judicial
33
other than its own is worthy of the printed page.
Given
that equitable tolling has a long history in state and
federal jurisprudence, and given the persuasive reasons why
an
equitable
remedy
is
mandated
to
prevent
manifest
injustice to insureds seeking benefits under § 3145, I fail
to grasp the basis for the criticisms.
Moreover,
the
majority’s
overwrought
scorn
is
rife
with sarcasm,16 sloganeering,17 and outright fabrication.18
The
majority’s
unbending
devotion
to
strict
textualism
should not come at the expense of recognizing that the
judiciary is not a mere robotic cog in the wheel of our
three-branch system of government.19
Rather, the judiciary
usurpation,” id.; and “defies ‘practical workability,’”
ante at 29; and “wrongly decided,” ante at 30.
16
See n 15 of this opinion.
17
See id.
18
See id.
19
Indeed, as in this case, strict textualism can have
consequences that we would be wise to avoid.
See
Zelinsky,
Travelers, reasoned textualism, & the new
jurisprudence of ERISA preemption, 21 Cardozo L R 807, 808
n 3 (1999):
See, e.g., Ellen P. Aprill, The Law of the
Word: Dictionary Shopping in the Supreme Court,
30 Ariz. St. L. J. 275, 324 (1998) (criticizing
Shaw v. Delta Air Lines, Inc., 463 U.S. 85
(1983), as an “easy, dictionary-driven, plain
meaning disposition of the term . . . [which]
produced a flood of litigation for the lower
federal courts”; Catherine L. Fisk, The Last
34
has
the
where
ability—indeed,
equity
historically
is
the
responsibility—to
required.
within
the
Were
that
judiciary’s
do
equity
authority
purview,
such
not
a
creature as equity would not even exist.
Further, the current majority has an obvious inability
to recognize that to whatever extent a view different from
the view it holds could be considered “judicial activism,”
see, e.g., n 15 of this opinion, its own view can as well.
In
other
words,
accusing
the
Lewis
Court
of
judicial
activism simply because the Court reached a conclusion that
this majority takes issue with does nothing to further the
legitimate debate that surrounds divergent approaches.
The
majority opinion reeks of an unfortunately familiar tone
that is, quite frankly, getting old.20
Article About the Language of ERISA Preemption? A
Case Study of the Failure of Textualism, 33 Harv.
J. on Legis. 35, 39 (1996) (“If ever there were a
case study of the failures of textualism as a
method of statutory interpretation, this is
it.”); Peter D. Jacobson & Scott D. Pomfret,
Form, Function, and Managed Care Torts: Achieving
Fairness and Equity in ERISA Jurisprudence, 35
Hous. L. Rev. 985, 990 (1998) (criticizing the
Supreme Court for “a mechanical approach [to
ERISA preemption] that adheres to a strict ‘plain
language’
interpretation
without
questioning
whether the result of these interpretations can
be reconciled with congressional intent”).
20
The authors of such phrases as those quoted in n 15
of this opinion would do well to keep in mind that despite
how ardently they convince themselves of the supremacy of
35
VII.
Conclusion
Equitable tolling has a venerable history in federal
and state jurisprudence that today’s majority ill-advisedly
chooses to disregard in favor of denigrating the purposes
of
the
no-fault
act.
I,
unlike
the
majority,
am
not
content with the dismissive notion that “the Legislature
has
made
it
so.”
See
ante
at
25.
The
citizens
of
Michigan, and the Legislature, deserve better.
As
role
is
is
to
consistently
effectuate
recognized
the
intent
by
the
of
the
majority,
our
Legislature.
Because I believe that equitable tolling has an important
role in effecting the Legislature’s intent, that Lewis was
correctly decided, and that overturning Lewis will work an
unjustifiable hardship on injured insureds and the no-fault
system as a whole, I respectfully dissent.
Michael F. Cavanagh
Marilyn Kelly
their position, their reasoning is not infallible.
See
Halbert v Michigan, ___ US ___; 125 S Ct 2582; 162 L Ed 2d
552 (2005); Yellow Transportation, Inc v Michigan, 537 US
36; 123 S Ct 371; 154 L Ed 2d 377 (2002).
36
7/April 2005 RPY
S T A T E
O F
M I C H I G A N
SUPREME COURT
EVA DEVILLERS, as Guardian and
Conservator of Michael J. Devillers,
Plaintiff-Appellee,
v
No. 126899
AUTO CLUB INSURANCE ASSOCIATION,
Defendant-Appellant.
_______________________________
WEAVER, J. (dissenting).
I
respectfully
dissent
from
the
majority
opinion
overruling Lewis v DAIIE, 426 Mich 93; 393 NW2d 167 (1986),
and I disagree with the majority’s decision to give its
opinion
limited
retroactive,
instead
of
prospective,
effect.
I
Had I been on the Michigan Supreme Court in 1986, I
would likely have joined Justice Brickley and Justice Riley
in dissenting from Lewis.
I agree with Justice Brickley’s
dissent in Lewis, and his statement that
[s]ection 3145 is clear in its directive
that a claimant cannot recover benefits for
losses incurred more than one year prior to
the commencement of the suit; not one year
plus the period of time between making the
claim and the denial of the claim as the
majority holds. [Lewis, supra, at 105.]
But nineteen years later, I cannot join the majority’s
decision to overrule the longstanding precedent applying
judicial tolling to this statute.
In this case, there is
no need to unsettle the law and disregard the doctrine of
stare decisis.
Under the doctrine of stare decisis, it is necessary
to follow earlier judicial decisions when the same points
arise again in litigation.
Legal
Usage
p 827.
(New
York:
Garner, A Dictionary of Modern
Oxford
University
Press,
This promotes stability in the law.
1995),
In determining
whether to overrule a prior case, pursuant to the doctrine
of stare decisis, this Court should first consider whether
the
earlier
wrongly
decision
decided,
interests:
the
whether
workability”;
was
wrongly
Court
the
whether
should
prior
the
decided.
then
decision
prior
If
examine
defies
decision
has
it
was
reliance
“practical
become
so
embedded, so fundamental to everyone’s expectations that to
change
it
would
produce
not
just
readjustments,
but
practical real-world dislocations; whether changes in the
law or facts no longer justify the prior decision; and
whether
statute.
the
prior
decision
misread
or
misconstrued
a
Robinson v Detroit, 462 Mich 439, 464-467; 613
NW2d 307 (2000).
2
As
dissent
stated
in
above,
Lewis;
decided.
But
I
I
agree
would
with
that
examining
after
find
the
factors, I would not overrule
Lewis.
Justice
Lewis
Brickley’s
was
reliance
wrongly
interest
First, the
Lewis
decision does not defy “practical workability”; it has been
applied for nineteen years without causing any fundamental
problems
with
no-fault
insurance.
Second,
the
Lewis
decision has indeed become “so embedded, so fundamental, to
everyone’s expectations that to change it would produce not
just readjustments, but practical real-world dislocations.”
Robinson,
attorney
supra
on
at
466.
whether
they
Claimants
needed
to
who
file
consulted
suit
an
after
receiving no response to a filed claim would have been
told, on the basis of Lewis, that filing the claim had
preserved their rights until they received an answer from
the insurance company.
Changing that rule now will affect
an unknown number of claimants who will lose their rights
to benefits that had previously been protected.
Third,
there have been no changes in the law or facts since Lewis
was issued.
a
statute;
Finally, Lewis did not misread or misconstrue
instead,
it
applied
judicial
tolling
to
the
statute as an equitable matter.
In light of the doctrine of stare decisis and the
purposes it serves, neither the defendant nor the majority
3
have given sufficient reason to overrule Lewis.
for correction’s sake does not make sense.
not
been
made
why
the
Court
should
Correction
The case has
not
adhere
to
the
doctrine of stare decisis in this case.
If there are genuine problems with Lewis’s application
of the judicial tolling doctrine, they can be brought to
the Legislature’s attention by the insurance industry.
II
Further, I disagree with the majority’s decision to
give its decision limited retroactive effect.
Because its
decision overrules nineteen years of precedent and because
claimants
may
have
acted
in
reliance
on
Lewis,
the
majority’s decision should be applied prospectively.
A
A
judicial
retroactivity,
decision
with
can
be
limited
applied
with
full
retroactivity,
or
prospectively. Monat v State Farm Ins Co, 469 Mich 679,
702; 677 NW2d 843 (2004) (Cavanagh, J., dissenting).
When a decision is given full retroactive effect, the
parties in that case are bound by the decision, and the
parties
potential
in
other
claimants
cases
who
then
pending,
would
have
as
filed
well
as
any
suits
in
the
future, are bound by it as well. See Tebo v Havlik, 418
4
Mich
350,
363-364;
343
NW2d
181
(1984)
(opinion
by
Brickley, J.).
The majority has decided to give its ruling limited
retroactive effect.
This means that its ruling will apply
“only in cases commenced after the overruling decision and
in
pending
preserved.”
Project,
cases
where
the
issue
had
been
raised
and
Stein v Southeastern Michigan Family Planning
Inc,
432
Mich
198,
201;
438
NW2d
76
(1989).
Accordingly, for any cases filed before today’s decision,
that is, any cases that have been
brought in reliance on
our
will
ruling
today’s
in
Lewis,
decision
preserved.
the
unless
parties
the
issue
has
not
be
been
bound
raised
by
and
However, the parties to an unknown number of
pending claims will be bound by the majority’s decision
where the claimant relied on Lewis’s ruling.
The most flexible approach, which would be the least
harmful application of the majority’s decision, would be to
apply the ruling prospectively.
Prospective application
would apply this ruling only to cases filed after today’s
decision, and would not bind the parties in this case to
today’s
decision.
Michigan’s
civil
Tebo,
supra
retroactivity
at
364.
jurisprudence:
framework, 2002 L Rev MSU-DCL 933 (2002).
5
See
A
Comment,
proposed
B
As the majority has noted, the general rule is that
judicial decisions are to be given full retroactive effect.
Hyde v Univ of Michigan Bd of Regents, 426 Mich 223, 240;
393
NW2d
847
(1986).
flexible
application
applying
the
But
this
its
rulings
of
ruling
with
Court
complete
in
has
used
a
more
situations
where
retroactivity
would
result in an injustice to a certain class of litigants.
Gladych v New Family Homes, Inc, 468 Mich 594, 606; 664
NW2d 705 (2003).
In fact, this Court noted in Hyde that
“[w]e often have limited the application of decisions which
have overruled prior law or reconstrued statutes.”
Hyde,
supra at 240.
Today, the majority has both overruled prior law and
reconstrued a statute.
By overruling Lewis, the majority
has overruled the law regarding the tolling of the oneyear-back limitations period that has been in place in the
state of Michigan for the past nineteen years.
the
majority’s
reinterpretation
decision
of
MCL
today
rests
500.3145(1).
Further,
largely
Under
on
the
these
circumstances, the majority certainly has the discretion to
apply this ruling prospectively, and should do so out of
fairness to those who have acted in reliance on the nearly
two decades of precedent that preceded this ruling.
6
Because today’s decision overrules settled precedent,
it should be applied prospectively.
This Court issued its
decision in Lewis more than nineteen years ago.
Therefore,
the law in the state of Michigan over that period has been
that the one-year-back time limitation of MCL 500.3145(1)
for
claimants
to
recover
no-fault
personal
protection
insurance benefits was tolled from the time that the claim
was filed until the time when the insurer formally denied
liability.
Furthermore, from the time of our decision in
Lewis until the present case, this Court has neither issued
a ruling nor “foreshadowed” that the interpretation of this
tolling of the one-year-back limitations period would be
changed.
Under
these
circumstances,
prospective
application of today’s decision is appropriate.
Under the majority’s rule, any claimant who postponed
his or her decision to file a suit against an insurance
company in reliance on Lewis is now barred from recovering
benefits from more than one year before the time that suit
is
filed
if
the
defendant
insurance
preserved the issue at trial.
company
raised
and
Hence, any insurance company
that raised this issue at trial in the hopes that this
Court would overrule
Lewis
will now be rewarded at the
expense of the claimants who acted in complete accord with
the law.
This situation creates precisely the type of
7
injustice that this Court intended to prevent by creating
flexibility
in
the
application
of
its
decisions.
Unfortunately the majority’s decision today disregards this
precedent and will cause injustice.
III
For
these
reasons,
I
respectfully
dissent
majority’s decision.
Elizabeth A. Weaver
8
from
the
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