BARBARA CONVERSE V AUTO CLUB GROUP INSURANCE COMPANY
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STATE OF MICHIGAN
COURT OF APPEALS
BARBARA CONVERSE, Guardian and
Conservator of CATHERINE CURTIS, a Legally
Incapacitated Person,
UNPUBLISHED
March 3, 2011
Plaintiff-Appellant,
v
No. 293303
Calhoun Circuit Court
LC No. 2005-004426-NO
AUTO CLUB GROUP INSURANCE
COMPANY,
Defendant-Appellee.
Before: BECKERING, P.J., and TALBOT and OWENS JJ.
BECKERING, P.J. (concurring in part in result only and dissenting in part).
I concur in result only with respect to the majority’s conclusion that the trial court did not
err by granting summary disposition of plaintiff’s fraud and negligence claims. I write
separately because I respectfully disagree with the majority’s conclusion that defendants were
entitled to partial summary disposition of plaintiff’s breach of contract claim under the one-year
back rule set forth in MCL 500.3145(1). I also disagree that plaintiff failed to state a claim upon
which relief can be granted under the Michigan Consumer Protection Act (MCPA), MCL
500.2001 et seq. I would reverse the trial court’s orders as to these claims accordingly.
I. APPLICATION OF THE ONE-YEAR BACK RULE
In her breach of contract claim, plaintiff alleges that defendant breached its obligation,
under the policy of insurance and the no-fault act, MCL 500.3142, to pay all personal protection
insurance (PIP) benefits owed to or on behalf of plaintiff. The trial court held that plaintiff was
limited, by the one-year back rule set forth in MCL 500.3145(1), to recovery of any unpaid
benefits accruing on or after December 9, 2004. In upholding the trial court’s decision, the
majority essentially holds that, because plaintiff’s complaint was timely filed under the no-fault
act, Curtis is not entitled to the legal protections afforded to her by MCL 600.5851(1) as a person
disabled by insanity as a result of the accident, and therefore, that the one-year back rule set forth
in MCL 500.3145(1) applies to limit her ability to recover no-fault benefits she claims are owed
to her. I respectfully disagree.
MCL 600.5851(1) provides in relevant part:
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if the person first entitled to . . . bring an action under this act is under 18 years of
age or insane at the time the action accrues, the person or those claiming under
the person shall have 1 year after the disability is removed through death or
otherwise to . . . bring the action although the period of limitations has run.
[Emphasis added.]
It is undisputed that, as a consequence of the severe head injury she sustained in the May 11,
1987, motor vehicle accident underlying her no-fault claims, Curtis meets the definition of
insanity set forth in MCL 600.5851(2). MCL 600.5851(3) provides that the “insanity must exist
at the time the claim accrues” to permit tolling of the limitations period on that basis. The nofault act provides that “[p]ersonal protection insurance benefits payable for accidental bodily
injury accrue, not when the injury occurs but as the allowable expenses, work loss or survivors’
loss is incurred.” MCL 500.3110(4); see also, Proudfoot v State Farm Mut Ins Co, 469 Mich
476, 483-484; 673 NW2d 739 (2003). Therefore, Curtis’s claim for PIP benefits accrued at the
time she incurred allowable expenses necessitated by the injuries she suffered as a result of the
accident. Because it is undisputed that Curtis has been in a persistent vegetative state since the
accident, her claim for PIP benefits for allowable expenses, necessarily accrued after the point at
which she became insane under MCL 600.5851(2). Further, where, as here, a person is rendered
insane by the wrong committed against them, he or she is under a disability with regard to the
prosecuting of legal actions arising from that wrong. Emery v Chesapeake & Ohio Railway Co,
372 Mich 663, 667-668; 127 NW2d 826 (1964). Consequently, Curtis’s claims for no-fault
benefits fall within the savings provision set forth in MCL 600.5851(1). There is no basis in law
or fact for concluding otherwise.
Under MCL 600.5851(1), Curtis, or her representative, has until one-year after her
disability has been removed, through death or otherwise, to bring an action for PIP benefits. See,
Univ of Mich Regents v Titan Ins Co, 487 Mich 289, 345; 791 NW2d 897 (2010) (MARKMAN,
J., dissenting) quoting Cameron v Auto Club Ins Ass’n, 476 Mich 55, 73; 718 NW2d 784
(MARKMAN, J., concurring); Sallee v Auto Club Ins Ass'n, 190 Mich App 305, 307; 475 NW2d
828 (1991); DeVito v Blenc, 47 Mich App 524, 529; 209 NW2d 728 (1973). “Until” means “up
to the time that or when, . . . onward to or till.” Random House Webster's College Dictionary
(2001), p 1342. Plainly, then, Curtis has any time from the time of the wrong “up to” or “onward
to” one year after the disability is removed to file her claims. There is no assertion here that
plaintiff’s claims were not timely filed.
In Univ of Mich Regents, 487 Mich at 298, our Supreme Court held that:
MCL 600.5851(1) does not create its own independent cause of action. It must be
read together with the statute under which the plaintiff seeks to recover. In no-fault
cases, for example, MCL 600.5851(1) must be read together with MCL
500.3145(1). Doing so, the statutes grant infants and incompetent persons one year
after their disability is removed to “bring the action” “for recovery of personal
protection insurance benefits . . . for accidental bodily injury. . . .” On the basis of
its language, MCL 600.5851(1) supersedes all limitations in MCL 500.3145(1),
including the one-year-back rule’s limitation on the period of recovery. [Emphasis
added.]
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And, “the ‘action’ and ‘claim’ preserved by MCL 600.5851(1) include the right to collect
damages.” Id. at 299. Accordingly, claims for PIP benefits brought by claimants afforded the
protection of the tolling provision set forth in MCL 600.5851(1), are not subject to the one-year
back limitation set forth in MCL 500.3145(1). Id. at 302. Rather, as to these plaintiffs, the oneyear back rule is superseded by the protections afforded by MCL 600.5851(1). Id. at 298. Stated
differently, the provisions of MCL 600.5851(1) “preserving a plaintiff’s right to bring an action
also preserve the plaintiff’s right to recover damages incurred more than one year before suit is
filed.” Id. at 302. Therefore, Curtis’s claim for breach of contract seeking to recover PIP
benefits simply is not subject to the one-year back rule set forth in MCL 500.3145(1). This is
true regardless of whether application of MCL 600.5851(1) is required to render the filing of
plaintiff’s claim timely, because MCL 600.5851(1) also independently protects Curtis’s right to
collect damages arising from her claims, free from the restriction of the one-year back rule set
forth in MCL 500.3145(1). Univ of Mich Regents, 487 Mich at 298-299.
The majority holds that whenever a no-fault claim on behalf of a disabled person
protected by MCL 600.5851(1) is filed within the limitations period set by MCL 500.3145(1),
MCL 600.5851(1) does not apply to protect the disabled person’s right to collect damages. This
reading of the interplay between MCL 500.3145(1) and MCL 600.5851(1) eviscerates our
Supreme Court’s holding in Univ of Mich Regents. Further, it produces the incongruous result
that a claim brought on behalf of a disabled person that is timely filed under the no-fault act is
subject to the one-year back rule limiting the recovery of damages, while the same claim filed
well after the limitations period in the no-fault act has expired, but within the time afforded for
the filing of such claim by MCL 600.5851(1), is not subject to the one-year back rule. In this
way, the majority applies MCL 500.3145(1) to abrogate the claims of infants and the
incompetent, Kilda v Braman, 278 Mich App 60, 71-72; 748 NW2d 244 (2008), in contravention
of the purposes of MCL 600.5851(1) and the case law interpreting and applying it. “This result
is untenable.” Id. at 74. As this Court explained in Kilda, the purpose of MCL 600.5851(1) is to
prevent the abrogation of the legal rights of persons who are legally incapable of enforcing them.
Id. at 71, 73-74. And, as our Supreme Court plainly explained in Univ of Mich Regents, 489
Mich at 299, MCL 600.5851(1) preserves not only a disabled plaintiff’s right to bring an action
or claim, but also preserves the disabled plaintiff’s right to recover the resulting damages
incurred, regardless whether they were incurred more than one year before suit is filed. Id. at
299, 302. Under Univ of Mich Regents, the one-year back rule simply does not apply to limit
Curtis’s recovery of no-fault benefits, whenever they are filed and so long as they are timely
filed. Id. Therefore, I would reverse the trial court’s grant of partial summary disposition of
plaintiff’s breach of contract claim on the basis of application of the one-year back rule.
II. PLAINTIFF’S MCPA CLAIMS
Plaintiff asserts claims under the MCPA arising from alleged deceptive practices by
defendant occurring from July 29, 1992, to the filing of her complaint on December 9, 2005.
MCL 445.911(7) of the MCPA provides in pertinent part:
An action under this section shall not be brought more than 6 years after the
occurrence of the method, act, or practice which is the subject of the action nor
more than 1 year after the last payment in a transaction involving the method, act,
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or practice which is the subject of the action, whichever period of time ends at a
later date.
The majority correctly concludes that plaintiff’s MCPA claim was timely filed. However, it then
reads into the limitations period a one-year back rule akin to that provided by MCL 500.3145(1).
Clearly, though, MCL 445.911(7) contains no such limitation on damages. By its plain
language, MCL 445.911(7) affords plaintiff one year “after the last payment in a transaction
involving the method, act, or practice which is the subject of the action” in which to file her
action for damages arising from the entire period in which the insurer utilized the deceptive
method, act or practice. Unlike MCL 500.3145,1 MCL 445.911 does not contain any temporal
limit, beyond the confines of the limitations period itself, on the recovery of damages. MCL
445.911(2) provides that “a person who suffers a loss as a result of a violation of this act may
bring an action to recover actual damages or $250.00, whichever is greater, together with
reasonable attorney fees.” Thus, so long as a plaintiff’s action is timely filed under MCL
445.911(7), that plaintiff is entitled to recover actual damages suffered as a result of the violative
conduct. The MCPA contains no provision akin to the no-fault act’s one-year back rule. And, as
previously discussed, the no fault act’s one-year back rule, set forth in MCL 500.3145, does not
apply in this case. Univ of Mich Regents, 487 Mich at 302. Therefore, the majority’s conclusion
that plaintiff is barred from recovering for claims arising before December 9, 2004, is in error.2
The majority correctly notes that plaintiff may not bring a claim under the MCPA arising
from alleged deceptive insurance practices occurring after March 28, 2001. MCL 445.904(3).3
However, plaintiff’s claims for conduct arising before March 28, 2001, remain viable to the
extent that they were timely filed. Smith v Global Life Ins Co, 460 Mich 446, 467; 597 NW2d 28
(1999); Grant v AAA Michigan/Wisconsin, 272 Mich App 145, 149; 724 NW2d 498 (2006). By
the plain language of MCL 445.904(3) and MCL 445.911(2) and (7), plaintiff can assert claims
under the MCPA seeking to recover her actual damages resulting from methods, practices or acts
1
MCL 500.3145(1) specifically provides that, “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.”
2
That this is so is further emphasized by the fact that MCL 445.911(7) permits a plaintiff to file
suit within 6 years after the occurrence of complained-of method, act, or practice or within 1 year
after the last payment in a transaction involving the complained-of method, act, or practice,
whichever period of time ends at a later date. The majority’s interpretation and application of
this provision would graft a one-year back rule into MCL 445.911(7) in all cases in which there
is a payment to or from a plaintiff resulting from the complained-of method, act or practice.
There is no basis in the language employed in MCL 445.911(7) for such an interpretation.
3
MCL 445.904(3) was added as an amendment, effective March 28, 2001, and provides: “This
act does not apply to 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 [], MCL
500.2001 to 500.2093.”
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violative of the MCPA based on conduct by defendant occurring from December 5, 1999, (six
years prior to the filing of the complaint) to March 28, 2001, (the effective date of MCL
445.904(3)).
The trial court concluded that, as a matter of law, a plaintiff may not challenge the
propriety of defendant’s actions denying her no-fault benefits under the MCPA. Plainly, that
conclusion is legally erroneous. Smith, 460 Mich at 467 (“private actions are permitted against
an insurer pursuant to § 11 of the MCPA . . .”); Grant, 272 Mich App at 149 (“plaintiff was
permitted to raise an MCPA claim [arising from the denial of no-fault benefits] under Smith . .
.”). Further, the majority’s alternative basis for upholding the trial court’s grant of summary
disposition of plaintiff’s MCPA claim is contrary to the plain language of MCL 445.911(2) and
(7) and our Supreme Court’s holding in Univ of Mich Regents, 487 Mich at 302. Therefore, I
would reverse the trial court’s order dismissing plaintiff’s MCPA claim in its entirety pursuant to
MCR 2.116(C)(8). I would hold that plaintiff stated a claim on which relief can be granted under
the MCPA arising from alleged deceptive conduct by defendant occurring between December 9,
1999, and March 28, 2001.
/s/ Jane M. Beckering
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