Auto Club Ins. Ass'n v. New York Life Ins. Co.

• Citation: 187 Mich.App. 276,466 N.W.2d 711
• Decision Date: 29 January 1991
• Docket Number: Docket No. 115365
• Parties: AUTO CLUB INSURANCE ASSOCIATION, Plaintiff-Appellee, v. NEW YORK LIFE INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 711

466 N.W.2d 711

187 Mich.App. 276

AUTO CLUB INSURANCE ASSOCIATION, Plaintiff-Appellee, v. NEW YORK LIFE INSURANCE COMPANY, Defendant-Appellant.

Docket No. 115365.

Court of Appeals of Michigan.

Submitted June 6, 1990, at Detroit.

Decided Nov. 29, 1990.

Approved for Publication Jan. 29, 1991, at 9:40 a.m.

Released for Publication March 25, 1991.

Brandt, Hanlon, Becker, Lanctot, McCutcheon, Schoolmaster & Taylor by Darleen Lynn Petrosky, Detroit (Cheatham & Acker, P.C., West Bloomfield, by James G. Gross, Detroit, of counsel), for plaintiff-appellee.

Fitzgerald, Peters, Dakmak & Miller, P.C. by Neill T. Peters, Detroit, for defendant-appellant.

Before GRIBBS, P.J., and CAVANAGH and MARILYN J. KELLY, JJ.

PER CURIAM.

Defendant appeals by leave granted from a circuit court order denying defendant's motion for summary disposition. The underlying action involves an attempt by plaintiff no-fault insurer to recover from defendant medical insurer payments made by plaintiff to an insured. The sole issue on appeal is whether the one-year limitation period of M.C.L. § 500.3145(1); M.S.A. § 24.13145(1) applies in this case. We conclude that the limitation period does apply to bar this action, and we reverse the decision of the trial court.

M.C.L. § 500.3145(1); M.S.A. § 24.13145(1) provides:

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. The notice of injury required by this subsection may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefor, or by someone in his behalf. The notice shall give the name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury.

The insured in this case died on October 10, 1984. This action was filed on August 15, 1988.

First, we reject the trial court's finding that § 3145 does not apply because this action involves "other health and accident coverage." Plaintiff paid personal protection benefits to its insured and subsequently sought reimbursement from defendant of a portion of those benefits. "No matter how one characterizes the plaintiff's action, it is, in effect, a suit for recovery of no-fault benefits paid." Badger State Mutual Casualty Ins. Co. v. Auto-Owners Ins. Co., 128 Mich.App. 120, 127, 339 N.W.2d 713 (1983).

There is a conflict among panels of this Court with regard to whether the one-year period of limitation of § 3145 applies when a no-fault insurer sues another insurer. This Court in two separate two-member majority opinions has ruled that § 3145 is inapplicable to an insurance company's claim for reimbursement of money paid by mistake. See Madden v. Employees Ins. of...