Allstate Ins. Co. v. Frankenmuth Mut. Ins. Co., Docket No. 50203

• Decision Date: 26 January 1982
• Docket Number: Docket No. 50203
• Citation: 314 N.W.2d 711,111 Mich.App. 617
• Parties: ALLSTATE INSURANCE COMPANY, Plaintiff-Appellant, v. FRANKENMUTH MUTUAL INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 711

314 N.W.2d 711

111 Mich.App. 617

ALLSTATE INSURANCE COMPANY, Plaintiff-Appellant, v. FRANKENMUTH MUTUAL INSURANCE COMPANY, Defendant-Appellee.

Docket No. 50203.

Court of Appeals of Michigan.

Submitted April 7, 1981.

Decided Dec. 1, 1981.

Released for Publication Jan. 26, 1982.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by James L. Borin, Detroit, for plaintiff-appellant. Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark by Mark E. Morley, Farmington Hills, for defendant-appellee.

Before DANHOF, C. J., and GILLIS and HOLBROOK, JJ.

PER CURIAM.

Plaintiff appeals by right from an order granting defendant accelerated judgment on the ground that the instant action was barred by the one-year statute of limitations for recovery of personal protection benefits under the no-fault insurance act. M.C.L. § 500.3145(1); M.S.A. § 24.13145(1).

On April 7, 1978, William Hines suffered personal injuries arising out of a motor vehicle accident. At the time of the accident, Mr. Hines was a passenger in a vehicle owned by the defendant's insured. Plaintiff commenced payment of personal protection insurance benefits under a policy of no-fault insurance issued to Hines's mother.

Later, plaintiff discovered that Hines may not have been entitled to benefits under his mother's policy, since he may not have been residing in the household at the time of the accident. Therefore, on September 29, 1978, plaintiff conveyed written notice to defendant alleging that Frankenmuth was liable for personal protection insurance benefits pursuant to M.C.L. § 500.3114(4)(a); M.S.A. § 24.13114(4)(a). Defendant denied liability in a letter dated October 6, 1978. This suit was commenced on December 7, 1979. Defendant moved for accelerated judgment based on the statute of limitations.

The sole issue on appeal involves the interpretation of the Michigan no-fault insurance statute of limitations provision, M.C.L. § 500.3145(1); M.S.A. § 24.13145(1). Section 3145(1) reads in pertinent 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 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."

Plaintiff argues that the act allows it to bring suit any time after giving written notice, but it is barred from recovering any expenses prior to December 7, 1978, since its complaint, filed December 7, 1979, could not reach to recover for injuries incurred more than one year prior to commencement of this action. Defendant asserts that § 3145(1) is a one-year statute of limitations with a provision enabling claimants to extend the period for up to one additional year by giving notice.

Defendant's position is well stated by a panel of this Court in Dozier v. State Farm Mutual Automobile Ins. Co., 95 Mich.App. 121, 126-127, 290 N.W.2d 408 (1980), lv. den., 409 Mich. 911 (1980).

"By now it is clear beyond peradventure that this section is a one-year statute of limitations, with a provision enabling claimants to extend the period for recovery of personal protection insurance benefits up to one additional year by giving notice. Richards v. American Fellowship Mutual Ins. Co., 84 Mich.App. 629, 270 N.W.2d 760 (1978), lv. den., 406 Mich. 862 (1979), Davis v. Farmers Ins. Group, 86 Mich.App. 45, 272 N.W.2d 334 (1978), lv. den., 406 Mich. 868 (1979), Burns v. Auto-Owners Ins. Co., 88 Mich.App. 663, 279 N.W.2d 43 (1979), Keller v. Losinski, 92 Mich.App. 468, 285 N.W.2d 334 (1979)." (Footnote omitted.)

Applying the approach taken by these cases, defendant maintains that the limitations period would have expired on April 7 1979, one year after the accident. Even if the formula adopted in Richards is used, the statute of limitations would be tolled for one week, so plaintiff could not commence an action after April 14, 1979.

Defendant misinterprets the holdings on which it relies. Extending the period of recovery up to one additional year by giving notice cannot be construed as extending the period for one contiguous year after...