TERRA KONIECZNY V STATE FARM MUTUAL AUTO INS CO
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STATE OF MICHIGAN
COURT OF APPEALS
TERRA KONIECZNY,
UNPUBLISHED
April 16, 1999
Plaintiff-Appellant,
v
No. 206172
Monroe Circuit Court
LC No. 96-004463 NF
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant-Appellee.
Before: Hood, P.J., and Holbrook, Jr. and Whitbeck, JJ.
PER CURIAM.
The trial court granted defendant’s motion for summary disposition pursuant to MCR
2.116(C)(10) and dismissed plaintiff's claim for medical expenses under Michigan's no-fault insurance
act, MCL 500.3101 et seq.; MSA 24.13101 et seq. Plaintiff appeals as of right, and we affirm.
This Court reviews decisions on motions for summary disposition de novo. Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion brought pursuant to MCR
2.116(C)(10) is reviewed to determine whether the affidavits, pleadings, depositions, or any other
documentary evidence establishes a genuine issue of material fact to warrant a trial. Id. All reasonable
inferences are resolved in the nonmoving party’s favor. Bertrand v Alan Ford, Inc, 449 Mich 606,
618; 537 NW2d 185 (1995).
Plaintiff argues that the trial court erred in granting summary disposition because she has
established genuine issues of fact regarding defendant’s liability for her medical expenses. We disagree.
The following facts are not in dispute in this case. Plaintiff was involved in an automobile
accident and suffered related injuries, including the development of "excruciating headaches." She was
covered by a no-fault insurance policy issued by defendant, and a health insurance policy issued by
Paramount Health Care Plan, presumed to be a health maintenance organization (HMO). The policies
were coordinated. Plaintiff's primary physician through Paramount attempted to obtain a referral for
plaintiff to treat at a headache clinic in Chicago. The request was denied by Paramount, which indicated
that the services sought were available within the provider network. Plaintiff was informed of her right
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to appeal this decision. A second request by plaintiff's physician was similarly rejected, and although
plaintiff was again informed of her right to appeal the decision, she chose not to do so. Plaintiff, without
obtaining a referral from Paramount, sought treatment at the headache clinic in Chicago and then
submitted the bills to defendant, which refused to pay.
MCL 500.3109a; MSA 24.13109(1) requires no-fault insurers to offer, at a reduced premium,
personal injury protection benefits which are coordinated with benefits available from other health and
accident coverage 1. Yerkovich v AAA, 231 Mich App 54, 59-60; 585 NW2d 318 (1998), lv
pending. The coordination of benefits clause serves to contain automobile insurance and health
insurance costs while eliminating duplicative recovery. Major v ACIA, 185 Mich App 437, 441; 462
NW2d 771 (1990) (citation omitted). Where no-fault coverage and health coverage are coordinated,
the health insurer is primarily liable for plaintiff’s medical expenses. Tousignant v Allstate Ins Co, 444
Mich 301, 307; 506 NW2d 844 (1993); Yerkovich, supra at 60. The consequence of coordinating a
no-fault policy with an HMO policy provided by an employer has been stated as follows:
When an employer opts for coverage by an HMO . . . there is generally limited choice
of physicians or facilities because the HMO generally designates the physicians and
facilities where services will be performed. When the "other health coverage"
coordinated with no-fault coverage is coverage by an HMO, the no-fault insured will
thus have limited choice of physicians or facilities through the HMO. [Tousignant,
supra at 309.]
If the insured, whose health insurer is an HMO, wants to maintain a wide choice of physicians and
facilities, she may do so by not coordinating her policies. See Id. at 310.
In Tousignant, supra at 307, the Court stated:
We conclude . . . that the legislative policy that led to the enactment of §3109a
requires an insured who chooses to coordinate no-fault and health coverages to
obtain payment and services from the health insurer to the extent of the health
coverage available from the health insurer. [Emphasis added.]
See also Owens v ACIA, 444 Mich 314, 320-321; 506 NW2d 850 (1993), where the Court indicated
that when a plaintiff chooses to coordinate policies, he agrees to avail himself of health care coverage
provided by the health insurer.
Plaintiff claims that Tousignant does not control the outcome of this case because it does not
apply where, as here, the health insurer failed to provide appropriate care. She also claims that it does
not apply because, unlike the plaintiff in Tousignant, she claimed that necessary medical care was
unavailable or inadequate, and in this case, Paramount would not or could not provide necessary and
appropriate treatment. She argues that there is a factual and legal dispute as to whether proper medical
treatment was available from Paramount such that she was required to obtain services from it. We
disagree.
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Here, Paramount's medical director denied plaintiff’s request for an out-of-plan referral.
Plaintiff was clearly informed that the requested services were available through the provider network.
In responding to the motion for summary disposition, plaintiff failed to properly rebut that there was
health coverage available from Paramount. Without providing any affidavits, depositions, or other
documentary evidence, plaintiff simply claimed and concluded that treatment was not available from the
health insurer2. She based this conclusion on the unsupported assertion that her primary physician had
determined that the out-of-plan provider would provide a more appropriate and more effective type of
treatment that was not available within the plan. Plaintiff’s reliance on her physician’s speculation about
whether appropriate treatment could be provided by network physicians and facilities was not sufficient
to oppose the motion for summary disposition. See Libralter Plastics, Inc v Chubb Group of Ins
Cos, 199 Mich App 482, 486; 502 NW2d 742 (1993). A non-moving party having the burden of
proof on a dispositive issue may not rest upon mere allegations or denials in the pleadings, but must, by
documentary evidence, set forth specific facts showing that there is a genuine issue for trial. Quinto v
Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
We conclude that there is simply no basis to find a question of fact existing as to whether
adequate treatment was available through Paramount, particularly where we are confronted with the
denial letters that state otherwise. There is also no evidence that Paramount failed to provide
appropriate treatment, refused treatment or refused payment for treatment, especially where no appeal
was taken from the denial of the referral3. We also note that while there is evidence that plaintiff and her
primary physician sought a referral to the Chicago clinic, there is no evidence that either plaintiff or her
physician sought to obtain appropriate medical services from Paramount before plaintiff went to that
clinic. Therefore, to the extent that there was health coverage available from the health insurer, plaintiff
was obligated to obtain payment and services from it. Tousignant, supra at 307; Owens, supra at
321. Because plaintiff has failed to present evidence sufficient to raise any issues of fact as to whether
defendant is liable for her medical expenses, we affirm the trial court's grant of summary disposition.
Affirmed.
/s/ Harold Hood
/s/ Donald E. Holbrook, Jr.
/s/ William C. Whitbeck
1
MCL 500.3109a; MSA 24.13109(1) provides:
An insurer providing personal protection insurance benefits shall offer, at appropriately
reduced premium rates, deductibles and exclusions reasonably related to other health
and accident coverage on the insured. The deductibles and exclusions required to be
offered by this section shall be subject to prior approval by the commissioner and shall
apply only to benefits payable to the person named in the policy, the spouse of the
insured and any relative of either domiciled in the same household. [Id.]
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2
In response to the motion for summary disposition, plaintiff refers to an affidavit by the primary care
physician, which allegedly discussed the issue of whether appropriate treatment was available. This
affidavit, however, is not attached to the brief in opposition to summary disposition, and it is not in the
lower court file. It was not before the trial court.
3
We are mindful that plaintiff argues that any appeal would have been futile and pointless. Plaintiff's
argument, however, is based on sheer speculation and not on any affidavits or other documentary
evidence.
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