Dairyland Ins. Co. v. Mews

• Docket Number: 359855,361345,361348,361351,361357
• Decision Date: 20 July 2023
• Parties: DAIRYLAND INSURANCE COMPANY, Plaintiff/Counterdefendant-Appellee, v. CAMERON MEWS, Defendant/Counterplaintiff, and INTENSIVE CASE MANAGEMENT, LLC, Defendant-Appellant. INTENSIVE CASE MANAGEMENT, Plaintiff-Appellee, v. DAIRYLAND INSURANCE COMPANY, Defendant, and MICHIGAN CATASTROPHIC CLAIMS ASSOCIATION, Defendant-Appellant. DIVERSIFIED HOME HEALTH CARE, Plaintiff-Appellee, v. DAIRYLAND INSURANCE COMPANY, Defendant, and MICHIGAN CATASTROPHIC CLAIMS ASSOCIATION, Defendant-Appellant. INTENSIVE CASE MANAGEMENT, Plaintiff-Appellee, v. DAIRYLAND INSURANCE COMPANY, Defendant-Appellant, and MICHIGAN CATASTROPHIC CLAIMS ASSOCIATION, Defendant. DIVERSIFIED HOME HEALTH CARE, Plaintiff-Appellee, v. DAIRYLAND INSURANCE COMPANY, Defendant-Appellant, and MICHIGAN CATASTROPHIC CLAIMS ASSOCIATION, Defendant.
• Court: Court of Appeal of Michigan — District of US

1

DAIRYLAND INSURANCE COMPANY, Plaintiff/Counterdefendant-Appellee, v. CAMERON MEWS, Defendant/Counterplaintiff, and INTENSIVE CASE MANAGEMENT, LLC, Defendant-Appellant. INTENSIVE CASE MANAGEMENT, Plaintiff-Appellee, v. DAIRYLAND INSURANCE COMPANY, Defendant, and MICHIGAN CATASTROPHIC CLAIMS ASSOCIATION, Defendant-Appellant. DIVERSIFIED HOME HEALTH CARE, Plaintiff-Appellee, v. DAIRYLAND INSURANCE COMPANY, Defendant, and MICHIGAN CATASTROPHIC CLAIMS ASSOCIATION, Defendant-Appellant. INTENSIVE CASE MANAGEMENT, Plaintiff-Appellee, v. DAIRYLAND INSURANCE COMPANY, Defendant-Appellant, and MICHIGAN CATASTROPHIC CLAIMS ASSOCIATION, Defendant. DIVERSIFIED HOME HEALTH CARE, Plaintiff-Appellee, v. DAIRYLAND INSURANCE COMPANY, Defendant-Appellant, and MICHIGAN CATASTROPHIC CLAIMS ASSOCIATION, Defendant.

Nos. 359855, 361345, 361348, 361351, 361357

Court of Appeals of Michigan

July 20, 2023

LC Nos. 2020-184192-NF, 21-013892-NF, 21-013983-NF 21-013892-NF, 21-013983-NF

Before: PATEL, P.J., and BOONSTRA and RICK, JJ.

PATEL P.J.

These consolidated appeals^[1] involve separate lawsuits regarding benefits under the no-fault act, MCL 500.3101 et seq., for Cameron Mews. Mews's insurer, Dairyland Insurance Company, initiated the first lawsuit, against Mews in Oakland Circuit Court to establish Mews's entitlement to personal protection insurance (PIP) benefits. In the interim, Mews's providers, Intensive Case Management (ICM) and Diversified Home Health Care, filed separate suits against Dairyland and the Michigan Catastrophic Claims Association (MCCA) in the Wayne Circuit Court, seeking the same determination on Mews's behalf as his assignees.

Because no prior pending suit existed between ICM and Dairyland, we find that the Oakland Circuit Court erred by denying ICM's motion for summary disposition under MCR 2.116(C)(6) in Docket No. 359855. And because the pending Wayne Circuit case was the first case between ICM and Dairyland, the Wayne Circuit Court did not err by denying Dairyland's motion for summary disposition under MCR 2.116(C)(6) in Docket No. 361351. The Wayne Circuit Court also did not abuse its discretion by denying Dairyland's motion for change of venue given that Dairyland failed to establish that the Wayne County venue was inconvenient. In Docket No. 361357, the Wayne Circuit Court did not err by denying Dairyland's motion for summary disposition under MCR 2.116(C)(6) because no prior pending litigation existed between Dairyland and Diversified. The Wayne Circuit Court also did not abuse its discretion by denying Dairyland's motion for change of venue given that Dairyland failed to establish that the Wayne County venue was inconvenient. Finally, in Docket Nos. 361345 and 361348, the Wayne Circuit Court erred by denying the MCCA's motion for summary disposition under MCR 2.116(C)(8) on ICM and Diversified's claims for tortious interference with a business expectancy and violation of the ELCRA. We reverse and remand for further proceedings in Docket Nos. 359855 351345, and 361348; and affirm in Docket Nos. 361351 and 361357.

I. FACTS AND PROCEDURAL HISTORY

On October 14, 2010, Mews was in a motorcycle accident. Mews sustained a cervical-spine injury that rendered him a tetraplegic. Since that time, Mews has required around-the-clock nursing and attendant care. Mews receives some services through ICM, a business founded, owned, and run by Mews's mother, Rebecca Mews, and some services through Diversified.

Dairyland is the no-fault insurer responsible for payment of Mews's PIP benefits. Pursuant to a settlement agreement, Dairyland paid PIP benefits for attendant care and skilled-nursing care at an agreed upon rate through November 30, 2019.^[2]

After the settlement agreement expired, Mews claimed PIP benefits for attendant care and skilled-nursing care beginning on December 1, 2019. Dairyland maintained that Mews failed to respond to its requests for information and documentation regarding his claim, failed to submit to insurance medical examinations (IMEs), and failed to allow an in-home inspection. Dairyland asserted that it was not liable nor required to pay for benefits claimed by Mews for which Dairyland was not provided reasonable proof of fact and amount of loss.

A. OAKLAND CIRCUIT COMPLAINT AND COUNTERCOMPLAINT

On October 22, 2020, Dairyland filed suit in the Oakland Circuit Court seeking a declaratory judgment that Mews was required to attend an IME and that Dairyland was not liable for any claims for which Mews had not submitted reasonable proof (hereinafter, "Oakland Circuit case" (LC No. 20-184192-NF)). Mews filed a counterclaim against Dairyland for recovery of PIP benefits, and added the MCCA as a defendant. Mews alleged a claim of tortious interference with a business expectancy against the MCCA, asserting that the MCCA had been leveraging its position as a reimbursement agency to assert influence over the rates paid for Mews's care. He also alleged that the MCCA violated the ELCRA by denying or reducing Mews's rates for services because he is African-American.

The MCCA moved for summary disposition under MCR 2.116(C)(8), which the Oakland Circuit Court granted. The court concluded that Mews's claim for tortious interference with business expectancy failed as a matter of law

because the MCCA's alleged conduct is not per se wrongful, nor is it a lawful act done with malice. The MCCA has a duty under the no-fault act to oversee Dairyland's adjustment of Mews'[s] claim, pursuant to MCL 500.3104(7). Specifically, MCL 500.3104(7)(g) provides that the MCCA shall

[e]stablish procedures for reviewing claims procedures and practices of members of the association. If the claims procedures or practices of a member are considered inadequate to properly service the liabilities of the association, the association may undertake or may contract with another person, including another member, to adjust or assist in the adjustment of claims for the member on claims that create a potential liability to the association and may charge the cost of the adjustment to the member.

Further, MCL 500.3104(7)(b) provides that Dairyland must provide reports to the MCCA about Mews'[s] claim, including "subsequent developments likely to materially affect the interest of the association in the claim." MCL 500.3104(7)(c) requires Dairyland to report detailed losses and expenses associated with Mews'[s] claim "in the form and detail as required by the plan of operation." The preapproval process is permitted by the plan of operation, which in turn is authorized by statute, as a means of containing costs of catastrophic claims.

Mews'[s] allegations that the MCCA's conduct is per se improper, illegal, and unethical are mere conclusions, and they are not supported by facts.

The court also found that Mews's ELCRA claim failed as a matter of law

because the MCCA is not a place of public accommodation for purposes of ELCRA. The MCCA offers no products, services, facilities, or anything else to the public. It is an association, created by statute, whose members are insurers. Contrary to Mews'[s] allegation, the MCCA is not an insurance company and it does not sell insurance or provide benefits to the public. Further, the Michigan Supreme Court has held that the MCCA is not a state agency. League Gen Ins Co v Mich. Catastrophic Claims Ass'n, 435 Mich. 338, 350-351; 458 N.W.2d 632 (1990) (holding the MCCA is not a state agency subject to the Administrative Procedures Act).

Dairyland and Mews ultimately settled Mews's claims for attendant care, but only through July 31, 2021. On October 6, 2021, Dairyland filed a motion for leave to amend its complaint. Dairyland asserted that it anticipated Mews would continue to claim PIP benefits incurred after July 31, 2021 and thus sought to amend its pleadings to limit damages to claims incurred on or after August 1, 2021 and to add ICM as a defendant. The proposed amended complaint sought declaratory relief that (1) no amount was due or owing because Mews had failed to provide "reasonable proof" of the amount of loss to recover PIP benefits; (2) the no-fault auto insurance reform legislation applied to Mews's claim for attendant care at home health-aid or skilled-nursing levels, as well as case management and other benefits, including the 56-hour limit for in-home care and the statutory rate reductions; (3) that Dairyland properly calculated the rates for Mews's providers, including ICM; and (4) Mews was entitled to 40 hours a week of skilled-nursing care at $36.50 an hour, two hours of case management each week at $36.50 an hour, and ICM is not entitled to any more than $14 an hour for home health-aid level care. Mews opposed Dairyland's motion for leave to file an amended complaint, arguing that a new lawsuit should be filed "[i]f additional issues arise[.]"

B. WAYNE CIRCUIT COMPLAINTS

On October 12, 2021, while Dairyland's motion was pending in the Oakland Circuit case, ICM filed a separate lawsuit in the Wayne Circuit Court against Dairyland and the MCCA (LC No 21-013892-NF) (hereinafter "ICM Wayne Circuit case"). ICM indicated in the complaint that Mews had "assigned his rights to ICM, with respect to the amounts that are past due and owing from" Dairyland. ICM alleged, on behalf of Mews, that (1) Dairyland breached its statutory duty to provide ICM payment for Mews's attendant-care services from August 1, 2021, forward, (2) the MCCA tortiously interfered with a business relationship by leveraging its position as a reimbursement agency to reduce the rates paid for Mews's care, and (3) both Dairyland and the MCCA violated the ELCRA by denying or reducing Mews's claims because ICM is an African-American-owned company not entitled to the same rates for the same or similar service as a...