Buller v. Titan Ins. Co.
| Decision Date | 21 February 2023 |
| Docket Number | 360439 |
| Parties | BRANDON BULLER, Plaintiff-Appellee, v. TITAN INSURANCE COMPANY, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Oakland Circuit Court LC No. 2021-191687-NF
Before: CAVANAGH, P.J., and SERVITTO and GARRETT, JJ.
Defendant appeals by leave granted[1] an order granting plaintiff's motion for a preliminary injunction in this declaratory judgment action involving an insured who was catastrophically injured in a motor vehicle accident in 1994. On appeal defendant argues that the trial court erred by granting plaintiff's motion for a preliminary injunction because (1) the 2019 amendments, 2019 PA 21, to the no-fault act, MCL 500.3101 et seq., are constitutional and apply to claims for benefits accruing after the effective date of the amendments regardless of when the accident occurred or when the insurance policy was entered into; and (2) plaintiff failed to establish the elements required for a preliminary injunction. While this matter was pending, however, this Court rejected defendant's first argument in Andary v USAA Cas Ins Co,___ Mich. App___;___ N.W.2d___ (2022) (Docket No. 356487), lv gtd___ Mich___; 979 N.W.2d 823 (2022). Although our Supreme Court has granted leave to appeal in that matter, "a Supreme Court order granting leave to appeal does not diminish the precedential effect of a published opinion of the Court of Appeals." MCR 7.215(C)(2). Accordingly, defendant's first argument is without merit. Further, defendant's second argument is also without merit. Accordingly, we affirm.
Plaintiff was rendered a quadriplegic in a motor vehicle accident in 1994. The parties do not dispute the extent of plaintiff's injuries or plaintiff's need for 24-hour skilled attendant care. There is no dispute that plaintiff's accident and the policy under which plaintiff claims benefits for his injuries occurred before the 2019 amendments to the no-fault act. After some initial litigation following the accident, the parties signed a partial release in which the parties agreed to a payment schedule. Under this schedule, defendant would pay for plaintiff's attendant care: (a) $900 per day from April 21, 2006 to April 20, 2007; (b) $960 per day from April 21, 2007 to April 20, 2008; (c) $1,008 per day from April 21, 2008 to April 20, 2009; and (d) $1,068 per day from April 21, 2009 to April 20, 2010. There was no designation for any amount after April 20, 2010, but defendant continued to pay the $1,068 amount until July 1, 2021. On July 2, 2021, defendant reduced plaintiff's payments from an hourly rate of $44.50 to $25.48, or $622.52 per day. Defendant arrived at this number by reducing the $1,068 amount by 45%, and adding 4.11% back for inflation, as provided under the new fee schedule introduced by the 2019 amendments to the no-fault act, MCL 500.3157(7)(a)(i).
Plaintiff filed this lawsuit seeking a declaratory judgment that the 2019 no-fault amendments were unconstitutional or could not be applied retroactively, and requested a temporary restraining order (TRO) and preliminary injunction to maintain the status quo of attendant care no-fault benefits while this matter was pending. With regard to his request for a preliminary injunction, plaintiff argued that the four factors required for a preliminary injunction were satisfied. Plaintiff contended that he would suffer irreparable harm if his benefit payments were reduced because he would not be able to afford his care providers and he would die without attendant care. Plaintiff argued that his physical harm and death vastly outweighed the solely economic harm defendant could potentially suffer, and a preliminary injunction would promote the public interest by showing people their contractual insurance rights were enforceable. Further, plaintiff argued, he would succeed on the merits of his case because his benefit payments were a vested, contractual right which could not be altered by the amendments. And his payments were not subject to MCL 500.3157(7)(a)(i) since plaintiff's attendant care provider never affirmatively billed plaintiff or defendant for her services, meaning there were no "charges" from which defendant could reduce the amount under MCL 500.3157(7)(a)(i).
Defendant responded, arguing that plaintiff failed to show the requisite factors were satisfied to justify a preliminary injunction because plaintiff, at best, showed his anticipation of irreparable harm, but failed to show that his providers would actually quit if the payments were lowered. Further, defendant's harm outweighed plaintiff's because defendant would be required to act contrary to statutory law and was unlikely to ever recover the excess payments from plaintiff if the amendments were later enforced. Moreover, defendant argued, public policy supported denying a preliminary injunction because the no-fault amendments generated significant costsavings which were dispersed to insureds through lowered premiums. Regarding plaintiff's likelihood of success on the merits, defendant argued that if the payment for plaintiff's attendant care services were not "charges" for such services, defendant would have no obligation to pay for any amount of the care. Furthermore, plaintiff's argument that he had a vested right under the Contracts Clause of the Michigan Constitution, Const 1963, art 1, § 10, was incorrect because personal injury protection (PIP) benefits are statutory benefits which could be altered by the Legislature at will. After the parties reiterated their arguments during oral argument, the trial court granted plaintiff's motion for preliminary injunction. Defendant now appeals.
Defendant first argues that the trial court erred by granting plaintiff's motion for a preliminary injunction because the clear statutory language of MCL 500.3157(7) mandates the reduction of payments for plaintiff's attendant care services after July 1, 2021. As stated above, however, we are bound by this Court's decision in Andary that the 2019 amendments do not apply retroactively to individuals whose injuries arose before their effective date; therefore, we disagree.
The 2019 amendments to the no-fault act resulted in a fee schedule for treatment payments under MCL 500.3157. The parties do not dispute that, if MCL 500.3157 applies, plaintiff's claims would fall under MCL 500.3157(7)(a)(i), which states:
This Court in Andary considered near-identical facts and arguments, and held:
In sum, the amended version of MCL 500.3157 contains no "clear, direct, and unequivocal," Davis[v State Employees' Retirement Bd], 272 Mich.App. [151,] 155; [725 N.W.2d 56 (2006)], expression of intent to have subsections (7) and (10) apply retroactively, i.e., to individuals who were injured before its effective date, even as to services provided after its effective date. Nor is such language found elsewhere in the amended no-fault act. MCL 500.2111f(8) is insufficient to overcome the presumption of retroactivity when it is located in a separate chapter of the insurance code and does not directly call for retroactive application. Further, retroactive application would alter the injured plaintiffs' settled rights and expectations under the pre-amendment no-fault act, which were obtained in exchange for premiums based on defendants' obligation to pay all reasonable charges not subject to fee schedules or caps.
B. CONTRACTS CLAUSE
Even if we were to conclude that the Legislature intended for 2019 PA 21 to apply retroactively to those injured before the amendments' effective date, we would nonetheless hold that retroactive application violates the Contracts Clause of the Michigan Constitution. [Andary,___ Mich.App. at___;___ slip op at 11.]
Accordingly the 2019 amendments do not apply retroactively to individuals whose injuries arose before their...
To continue reading
Request your trial