JEANINE A GRANT V AAA MICHIGAN WISCONSIN INC
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STATE OF MICHIGAN
COURT OF APPEALS
RAYMOND F. GRANT, Personal Representative
of the Estate of JEANINE A. GRANT,
FOR PUBLICATION
August 24, 2006
9:05 a.m.
Plaintiff-Appellee/Cross-Appellant,
v
No. 249720
Wayne Circuit Court
LC No. 01-143185-NF
AAA MICHIGAN/WISCONSIN, INC., a/k/a
AUTO CLUB GROUP,
ON REMAND
Defendant-Appellant/CrossAppellee.
Official Reported Version
Before: Meter, P.J., and Wilder and Fort Hood, JJ.
METER, P.J.
Defendant originally appealed as on leave granted1 from the trial court's order denying in
part its motion for summary disposition in this case involving the no-fault act, MCL 500.3101 et
seq., and the Michigan Consumer Protection Act (MCPA), MCL 445.901 et seq. Defendant
contended that plaintiff 's2 claim brought under the MCPA was, in actuality, based on the nofault act and was barred by the one-year limitations period found in that act. See MCL
500.3145(1). This Court agreed and therefore reversed the trial court's order concerning the
MCPA claim. See Grant v AAA Michigan/Wisconsin, Inc, 266 Mich App 597, 599; 703 NW2d
196 (2005) (Grant II). On cross-appeal, plaintiff contended that the trial court erroneously
dismissed another of her claims—a claim based explicitly on the no-fault act—for being
untimely, even though the applicable limitations period had been tolled. We disagreed that the
limitations period had been tolled and therefore affirmed the trial court's dismissal of the no-fault
claim. Id.
1
This Court initially denied defendant's application for leave to appeal, after which the Supreme
Court remanded the case to this Court for consideration as on leave granted. See Grant v AAA
Michigan/Wisconsin, Inc, 468 Mich 948 (2003) (Grant I).
2
For clarity, the term "plaintiff" in this opinion will refer to Jeanine A. Grant.
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After plaintiff filed an application for leave to appeal in the Supreme Court, that Court
issued the following order:
Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we
vacate the judgment of the Court of Appeals and remand this case to the Court of
Appeals for reconsideration in light of our decision in Smith v Globe Life Ins Co,
460 Mich 446, 467 (1999), holding that MCL 445.904(1) and (2) permit private
actions against an insurer pursuant to MCL 445.911, because, before its
amendment by 2000 PA 432, MCL 445.904(2) provided an exception to the
exemption of MCL 445.904(1)(a) permitting private actions pursuant to MCL
445.911 arising out of misconduct made unlawful by chapter 20 of the Insurance
Code. [Grant v AAA Michigan, Wisconsin, Inc, 474 Mich 988 (2005) (Grant
III).]
Because the Supreme Court's remand order in no way implicates this Court's prior
disposition of the no-fault claim, we readopt part V of our opinion in Grant II and affirm the trial
court's dismissal of the no-fault claim. See Grant II, supra at 608-611. With regard to the
MCPA claim, we again reverse the trial court's order denying summary disposition to defendant.
We set forth the pertinent facts in this case in Grant II:
In March 1995, plaintiff sustained severe injuries in an automobile
accident, leaving her a quadriplegic and dependent on others for basic activities
such as eating and bathing. During the first month after plaintiff returned home
from the hospital, personnel from an outside agency came to plaintiff 's home to
provide care for her. Thereafter, plaintiff 's husband, Raymond Grant (Grant), and
his daughters acted as plaintiff 's primary caregivers.
In March 1995, plaintiff filed an application for benefits with defendant,
her no-fault insurance provider. Grant handled most of the communication with
defendant's personnel on plaintiff 's behalf. Walter Kay, defendant's claims
representative, informed Grant that defendant would pay plaintiff 's family
members ten dollars an hour for attendant care services. Plaintiff and Grant were
aware that defendant had previously compensated the outside agency at a higher
rate and inquired about this discrepancy. Kay informed them that ten dollars an
hour was the rate that defendant paid family members for attendant care services
and that plaintiff 's family was not entitled to a higher rate because the family was
not an agency. Grant periodically inquired whether the family rate had increased,
but he was always told that the rate remained ten dollars an hour. All of Grant's
communications with Kay were by telephone, and Grant never requested an
increase in compensation in writing. In November 1998, defendant approved an
increase in the family rate to eleven dollars an hour, and defendant paid the
increased rate until the fall of 1999, when the family incorporated and was paid
the agency rate of twenty-two dollars an hour. Grant formed the corporation, R &
R Home Care, in order to obtain health insurance at a reasonable rate and for the
purpose of providing attendant services to plaintiff.
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At the time of plaintiff 's and Grant's depositions, defendant was paying
twenty-three dollars an hour to R & R Home Care. Plaintiff decided to file a
lawsuit seeking back pay for attendant care services after reading an article about
a woman who received a $5 million settlement from another insurance company
who had paid the woman a lower rate for attendant care services because
professional care workers were not involved. Plaintiff also decided to seek
reimbursement from defendant for two vans that Grant purchased after the
accident.
* * *
In December 2001, plaintiff filed a complaint seeking back pay for
attendant care services as well as reimbursement for the purchase price of the
vans. Plaintiff set forth seven legal theories, including . . . [an alleged] violation
of the MCPA . . . . With regard to the claim involving the MCPA, plaintiff
argued, in part, that defendant's representations regarding the existence of a rate
schedule that allowed compensation of only ten dollars an hour for family
members were false and constituted an unfair and deceptive practice under the
MCPA. Defendant argued, in part, that the claim ultimately sought benefits under
the no-fault act and that the one-year limitations period found in MCL
500.3145(1) therefore barred the claim. Defendant contended that plaintiff 's
MCPA claim was simply a no-fault claim relabeled as an MCPA claim. The trial
court ruled that plaintiff had met her burden of showing that defendant's conduct
constituted a trade, practice, or custom that confused and misled plaintiff, and it
thus denied defendant's motion with respect to the MCPA claim. The trial court
specifically ruled that plaintiff 's MCPA claim was not barred by a period of
limitations. [Grant II, supra at 599-601.]
This Court held: "By way of her MCPA claim, plaintiff ultimately seeks additional nofault benefits to which she believes she is entitled." Id. at 605. We emphasized that plaintiff 's
requested relief for the MCPA claim "would be the no-fault benefits of which she was
[allegedly] wrongfully deprived." Id. at 606. We concluded that "no relief is available to
plaintiff because MCL 500.3145(1) bars recovery of [no-fault] benefits for any loss incurred
more than one year before the filing of a plaintiff 's complaint." Id.
As noted, the Supreme Court has directed us to reconsider our opinion in light of Smith,
supra at 467, which held
that MCL 445.904(1) and (2) permit private actions against an insurer pursuant to
MCL 445.911, because, before its amendment by 2000 PA 432, MCL 445.904(2)
provided an exception to the exemption of MCL 445.904(1)(a) permitting private
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actions pursuant to MCL 445.911 arising out of misconduct made unlawful by
chapter 20 of the Insurance Code. [Grant III, supra at 988.]
MCL 445.904(1)(a) states that the MCPA does not apply to "[a] transaction or conduct
specifically authorized[3] under laws administered by a regulatory board or officer acting under
statutory authority of this state or the United States." Nevertheless, the earlier version of MCL
445.904 permitted a plaintiff to bring an MCPA lawsuit under MCL 445.911 for misconduct
made unlawful by chapter 20 of the Insurance Code. See the prior version of MCL 445.904(2).
The 2000 amendment, however, added the following language to MCL 445.904: "This act does
not apply to or create a cause of action for an unfair, unconscionable, or deceptive method, act,
or practice that is made unlawful by chapter 20 of the insurance code of 1956, 1956 PA 218,
MCL 500.2001 to 500.2093." See MCL 445.904(3).
Presumably, the Supreme Court, by way of its remand order in Grant III, wants us to
determine if a lawsuit under MCL 445.911 is appropriate in this case under Smith or whether the
new version of MCL 445.904(3) (as amended by 2000 PA 432) bars such a lawsuit. This would,
under normal circumstances, involve a two-part inquiry: whether the 2000 amendment applies
to this case (in which the cause of action arose before the amendment, but the lawsuit was filed
after the amendment) and whether this case involves conduct "made unlawful by chapter 20 of
the insurance code of 1956" such that MCL 445.904 applies in general to plaintiff 's MCPA
claim. We conclude, however, that such an inquiry is unnecessary here, because defendant
conceded below that the 2000 amendment did not apply to this case and essentially conceded
that plaintiff was entitled to bring an MCPA claim. Indeed, defendant initially argued that the
2000 amendment provided a basis for granting summary disposition to it with regard to
plaintiff 's MCPA claim. However, at a March 14, 2003, hearing, defendant's attorney clearly
and unequivocally conceded "that the amendment we relied on doesn't apply." The attorney
went on to assume that plaintiff was entitled, in theory, to bring an MCPA claim, but he argued
that, in actuality, there was "no factual basis" for the claim and that it should be dismissed.
In People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000), the Court stated that
"[w]aiver has been defined as the intentional relinquishment or abandonment of a known right."
(Citations and quotation marks omitted.) A party who expressly agrees with an issue in the trial
court cannot then take a contrary position on appeal. See, generally, id; see also Roberts v
Mecosta Co Gen Hosp, 466 Mich 57, 69; 642 NW2d 663 (2002), and Marshall Lasser, PC v
George, 252 Mich App 104, 109; 651 NW2d 158 (2002). Applying the 2000 amendment in this
case and barring plaintiff 's MCPA claim would run contrary to these legal principles, because
defendant would essentially gain an advantage from a disputed issue it waived in the trial court.
Accordingly, we decline to apply the 2000 amendment and decline to bar plaintiff 's MCPA
3
In Smith, supra at 465, the Court stated that the "relevant inquiry" was "whether the general
transaction is specifically authorized by law, regardless of whether the specific misconduct
alleged is prohibited."
-4-
claim. We emphasize that we are not ignoring the Supreme Court's remand order in Grant III.
Indeed, the Supreme Court in Grant III asked us to reconsider our Grant II opinion in light of
Smith, and we have done so. We conclude that plaintiff could proceed with an MCPA claim
under Smith, given defendant's waiver in the trial court.
Nevertheless, even though plaintiff was permitted to raise an MCPA claim under Smith,
we continue to adhere to our original opinion in Grant II, supra at 605, that, "[b]y way of her
MCPA claim, plaintiff ultimately seeks additional no-fault benefits to which she believes she is
entitled." As we stated in Grant II, supra at 606, under the clear terms of plaintiff 's complaint,
"plaintiff 's relief would be the no-fault benefits of which she was [allegedly] wrongfully
deprived." All of plaintiff 's losses were incurred more than one year before the filing of the
complaint, and, therefore, no relief is available to plaintiff in light of MCL 500.3145(1), which
clearly and unambiguously states that a claimant may not recover no-fault benefits "for any
portion of the loss incurred more than 1 year before the date on which the action was
commenced." Defendant was entitled to summary disposition, "despite plaintiff 's labeling count
VI as an MCPA claim." Grant II, supra at 607. The trial court erred in denying defendant's
motion for summary disposition with respect to plaintiff 's MCPA claim.
We affirm with respect to the cross-appeal and reverse with respect to the primary appeal.
This case is remanded for entry of judgment in favor of defendant with respect to the MCPA
claim. We do not retain jurisdiction.
/s/ Patrick M. Meter
/s/ Kurtis T. Wilder
/s/ Karen M. Fort Hood
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