PHILLIP DEAN COOPER V RAVIS JENKINSAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PHILLIP DEAN COOPER,
February 24, 2009
Wayne Circuit Court
LC No. 06-612077-NI
RAVIS JENKINS and MARY LOUISE
Advance Sheets Version
FARM BUREAU INSURANCE COMPANY,
Before: Donofrio, P.J., and K. F. Kelly and Beckering, JJ.
Defendant Farm Bureau Insurance Company appeals as of right from the trial court’s
order denying its motion to strike damages for attendant care. Because Farm Bureau’s obligation
to pay is a mandated fixed benefit to plaintiff alone, Farm Bureau may not bypass the legal
process to enforce its right to reimbursement. We affirm. This appeal has been decided without
oral argument pursuant to MCR 7.214(E).
Plaintiff, Phillip Dean Cooper, was driving an uninsured vehicle owned by his girlfriend,
Dalana Norman, when he was struck by defendant Ravis Jenkins, who was driving an uninsured
vehicle owned by defendant Mary Louise Woodson. Plaintiff was badly injured, and his doctor
prescribed attendant care. Because there was no applicable no-fault insurance policy, plaintiff’s
claim was assigned to Farm Bureau. After plaintiff sued for benefits, Farm Bureau moved to
strike damages awarded for the attendant care provided by Norman, which the parties stipulated
was $60,000. Farm Bureau argued that under the no-fault statutory scheme, an insurer assigned
to pay benefits arising from an accident involving an uninsured motor vehicle has the right to
seek reimbursement from the owner of that vehicle, MCL 500.3177(1), and that because an
uninsured owner in this case was the very person to whom the attendant care benefits would be
paid, it was illogical to require Farm Bureau to pay the benefits to Norman only to then sue her
Plaintiff argued that Norman was not a party to the suit, that any dispute between Farm
Bureau and Norman did not take away Farm Bureau’s obligation to pay him benefits, and that
the risk of nonrecovery should be placed on the insurance company. The trial court agreed,
ruling that the statutory scheme dictates that the insurer is obligated to pay benefits but then can
seek reimbursement from the uninsured owner. Accordingly, the trial court ordered Farm
Bureau to pay $20,000 to plaintiff’s attorney and place the remainder in escrow until Farm
Bureau obtains a judgment against Norman.
Farm Bureau argued in this Court that under the statutes and caselaw, the owner of an
uninsured vehicle is not entitled to no-fault benefits. MCL 500.3113(b); MCL 500.3173;
Belcher v Aetna Casualty & Surety Co, 409 Mich 231, 261; 293 NW2d 594 (1980). Had
Norman been an injured occupant of her uninsured vehicle, there would be no question that she
would not be eligible for benefits. She would not have had a reasonable expectation of being
paid by plaintiff; otherwise, she would be seeking recovery despite her illegal act of failing to
maintain insurance coverage. Farm Bureau raises as further support the theory that the wrongful
conduct rule precludes Norman from benefiting from her own wrongdoing, and adds the
arguments that plaintiff has a duty to mitigate his damages by obtaining services from an
individual who cannot gain by obtaining no-fault benefits from an assigned claims servicing
insurer, and that Norman has a duty to mitigate her debt owed to Farm Bureau. Finally, Farm
Bureau argues that it should not have to pay plaintiff’s attorney $20,000 until it has exhausted its
appellate rights. It has already posted a $75,000 bond; should plaintiff prevail on appeal,
plaintiff’s attorney will get his fee.
The trial court’s decision involves statutory construction, which we review de novo.
Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003).
Where the statute unambiguously conveys the Legislature’s intent, “the proper role of a court is
simply to apply the terms of the statute to the circumstances in a particular case.” In re Certified
Question (Kenneth Henes Special Projects Procurement v Continental Biomass Industries), 468
Mich 109, 113; 659 NW2d 597 (2003).
Farm Bureau relies on several statutes in support of its argument. MCL 500.3113
provides, in part:
A person is not entitled to be paid personal protection insurance benefits
for accidental bodily injury if at the time of the accident any of the following
(b) The person was the owner or registrant of a motor vehicle or
motorcycle involved in the accident with respect to which the security required by
section 3101 or 3103 was not in effect.
Under this statute, the injured owner of an uninsured vehicle is not eligible to be paid
personal protection insurance benefits.1 Furthermore, MCL 500.3175 provides, in relevant part:
(1) . . . An insurer to whom claims have been assigned shall make prompt
payment of loss in accordance with this act and is thereupon entitled to
reimbursement by the assigned claims facility for the payments and the
established loss adjustment cost . . . .
(2) The insurer to whom claims have been assigned shall preserve and
enforce rights to indemnity or reimbursement against third parties and account to
the assigned claims facility therefor and shall assign such rights to the assigned
claims facility upon reimbursement by the assigned claims facility.
Finally, MCL 500.3177(1) allows an insurer paying benefits in a case involving an
uninsured vehicle to seek reimbursement from the owner of that vehicle:
An insurer obligated to pay personal protection insurance benefits for
accidental bodily injury to a person arising out of the ownership, maintenance, or
use of an uninsured motor vehicle as a motor vehicle may recover such benefits
paid and appropriate loss adjustment costs incurred from the owner or registrant
of the uninsured motor vehicle or from his or her estate. . . .
These statutes do not support Farm Bureau’s argument that it may unilaterally withhold
benefits from a claimant on the basis of its perception that the service provider eventually would
be required to reimburse or indemnify it. The statutes clearly use mandatory language when
describing the insurer’s duty to pay benefits, but use permissive language in describing the
ability of an insurer to seek reimbursement. Nothing in the comprehensive statutory scheme
allows for the insurer to withhold payment on the basis of the eligibility of any service provider;
only the injured person’s status is considered. The ability to “recover such benefits paid . . . from
the owner or registrant of the uninsured motor vehicle,” MCL 500.3177(1), does not by itself
equate to having a legal right to indemnification.
While it may seem “illogical” for Farm Bureau to pay for a benefit provided by a person
from whom it may then seek reimbursement, it is a matter of public policy best left to the
Legislature’s determination. The argument that the economy is causing more and more people to
forgo compulsory insurance clearly implicates public policy. It is up to the Legislature to decide
if the assigned claims plan is better suited to payment of such benefits, or if the taxpayers in
general should pay, or if the benefits should not be paid at all. Encouraging accident victims
While this statute applies to no-fault policies, under MCL 500.3173, a person who is
disqualified from receiving personal protection insurance benefits is also disqualified from
receiving benefits under the assigned claims plan.
who would receive benefits if they sought professional attendant care to instead receive the care
from family members is in accord with the public policy of this state. See Van Marter v
American Fidelity Fire Ins Co of America, 114 Mich App 171, 180-181; 318 NW2d 679 (1982);
Reed v Citizens Ins Co, 198 Mich App 443, 452; 499 NW2d 22 (1993), overruled on other
grounds by Griffith v State Farm Mut Automobile Ins Co, 472 Mich 521, 540 (2005). Balancing
any conflict between these principles is not the proper role for this Court.2
Farm Bureau’s “wrongful conduct” argument, raised for the first time on appeal, likewise
does not change our analysis. It analogizes to the situation where treatment provided by an
unlicensed physician is not a paid benefit under MCL 500.3157 (allowing charges by those
“lawfully rendering treatment”). Yet, there is nothing unlawful about a friend or family member
providing attendant care or replacement services. Norman’s unlawful act was owning and
permitting the operation of an uninsured vehicle, a misdemeanor under MCL 500.3102(2). It is
the responsibility of the legal system, not the insurance industry, to enforce this statute.
/s/ Pat M. Donofrio
/s/ Kirsten Frank Kelly
/s/ Jane M. Beckering
Nothing in this opinion should be interpreted as precluding Farm Bureau from employing
appropriate legal measures to enforce any rights of reimbursement or collection it deems suitable
against Norman. That being said, Farm Bureau must engage in the proper legal process,
including but not limited to obtaining a judgment against Norman and then proceeding to