Griffin v. Trumbull Ins. Co.

• Decision Date: 24 September 2020
• Docket Number: No. 344272,344272
• Citation: 334 Mich.App. 1,964 N.W.2d 63
• Parties: Willie GRIFFIN, Plaintiff-Appellant, v. TRUMBULL INSURANCE COMPANY and Michigan Assigned Claims Plan, Defendants-Appellees, and Allstate Insurance Company, Esurance Property & Casualty Insurance Company, and John Doe Insurance Company, Defendants.
• Court: Court of Appeal of Michigan — District of US

334 Mich.App. 1

964 N.W.2d 63

Willie GRIFFIN, Plaintiff-Appellant,

v. TRUMBULL INSURANCE COMPANY and Michigan Assigned Claims Plan, Defendants-Appellees,andAllstate Insurance Company, Esurance Property & Casualty Insurance Company, and John Doe Insurance Company, Defendants.

No. 344272

Court of Appeals of Michigan.

Submitted February 5, 2020, at Detroit.

Decided September 24, 2020, 9:00 a.m.

Steven A. Hicks for Willie Griffin.

Secrest Wardle (by Sidney A. Klinger) for Trumbull Insurance Company.

Anselmi Mierzejewski Ruth & Sowle PC, Bloomfield Hills (by Mark L. Nawrocki ) for the Michigan Assigned Claims Plan.

Before: Ronayne Krause, P.J., and K. F. Kelly and Tukel, JJ.

Tukel, J. Plaintiff appeals as of right the trial court's order granting summary disposition to defendants Trumbull Insurance Company and the Michigan Assigned Claims Plan (MACP). The trial court held that Trumbull was not the highest-priority no-fault insurer for purposes of plaintiff's claim for personal protection insurance (PIP) benefits under the no-fault act, MCL 500.3101 et seq., and that the MACP was not required to assign an insurer to pay PIP benefits to plaintiff because another insurer, Harleysville Insurance Company, was the highest-priority insurer. We affirm.

I. UNDERLYING FACTS

In May 2016, plaintiff was driving his motorcycle when a truck merged into plaintiff's lane. Plaintiff crashed while attempting to avoid the truck, but the truck did not actually make physical contact with plaintiff. The truck driver's name, telephone number, and residential address were recorded in the police report of the incident. Five days after the crash, plaintiff's attorney sent a letter to the truck driver informing him that plaintiff intended to take legal action. The letter asked the truck driver to forward the letter to his insurance company, but did not ask the truck driver to contact plaintiff or his attorney in any way. Plaintiff additionally informed Trumbull, the insurer of his motor vehicles, of his accident, but Trumbull refused to pay plaintiff any PIP benefits. Rather, Trumbull attempted to locate the truck driver, but despite multiple telephone calls and visits to the truck driver's residence, Trumbull's attempts to contact the truck driver were unsuccessful. Trumbull then closed its investigation without having made contact with the truck driver.

In April 2017, 11 months after the accident, plaintiff retained MEA Research Services, Inc., Ltd., a Dallas, Texas company, to attempt to identify the truck driver's insurance provider. MEA Research Services was unsuccessful and informed plaintiff that it could not identify any insurance provider for the truck driver. Plaintiff failed to take any additional actions to communicate with the truck driver or to identify his insurance provider or the insurance provider of the truck that the truck driver was operating on the day of the accident. Plaintiff then filed a complaint in April 2017 seeking, in relevant part, PIP benefits from Trumbull and asking the court to order the MACP to assign his claim to an insurer.

In September or October of 2017, Trumbull hired an investigator to serve the truck driver with a subpoena. The investigator found the truck driver and gave him the subpoena. The truck driver appeared for a deposition within one month and, in his deposition, stated that he was driving a work truck for his former employer on the day of the accident. On the basis of this information, it was determined that the insurer of the truck at the time of the accident was Harleysville.¹

After identifying Harleysville as the highest-priority insurer under MCL 500.3114(5),² Trumbull moved for summary disposition under MCR 2.116(C)(10) and argued that it was not required to pay any PIP benefits to plaintiff because Harleysville was the highest-priority insurer. The MACP also filed a motion for summary disposition under MCR 2.116(C)(10) and argued that plaintiff's claim against it should be dismissed because plaintiff was insured by Trumbull at the time of the accident. Plaintiff opposed both motions, but following a hearing and supplemental briefing the trial court granted summary disposition to Trumbull and the MACP.

In granting Trumbull's motion, the trial court determined that Harleysville could have been identified within one year of the accident if plaintiff had acted with "reasonable diligence." The trial court emphasized that plaintiff had sent only one letter to the truck driver, a letter that did not even ask him for any information, but instead suggested that he contact his own insurance company. The trial court also stated that MEA Research Services’ search was limited to any personal automobile insurer the truck driver may have had. Finally, the trial court highlighted that Trumbull ultimately was able, with a subpoena, to secure the truck driver's participation in a deposition, something plaintiff had never even tried. Therefore, the trial court ruled, Trumbull was not the highest-priority insurer. The trial court additionally granted summary disposition to the MACP because there was no dispute between two or more insurers and Harleysville was identifiable as the highest-priority insurer.

Plaintiff then moved for reconsideration, and the trial court denied plaintiff's motion. This appeal followed.

II. STANDARD OF REVIEW

A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Joseph v. Auto Club Ins. Ass'n , 491 Mich. 200, 206, 815 N.W.2d 412 (2012). This Court reviews a motion brought under MCR 2.116(C)(10) "by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party." Patrick v. Turkelson , 322 Mich. App. 595, 605, 913 N.W.2d 369 (2018) (quotation marks and citation omitted). Summary disposition is appropriate "if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Id. (quotation marks and citation omitted). "There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party." Allison v. AEW Capital Mgt., L.L.P. , 481 Mich. 419, 425, 751 N.W.2d 8 (2008). "Only the substantively admissible evidence actually proffered may be considered." 1300 LaFayette East Coop., Inc. v. Savoy , 284 Mich. App. 522, 525, 773 N.W.2d 57 (2009) (quotation marks and citation omitted). "Circumstantial evidence can be sufficient to establish a genuine issue of material fact, but mere conjecture or speculation is insufficient." McNeil-Marks v. MidMichigan Med. Ctr.-Gratiot , 316 Mich. App. 1, 16, 891 N.W.2d 528 (2016).

The moving party has the initial burden to support its claim with documentary evidence, but once the moving party has met this burden, the burden then shifts to the nonmoving party to establish that a genuine issue of material fact exists. American Federation of State, Co., & Muni. Employees v. Detroit , 267 Mich. App. 255, 261, 704 N.W.2d 712 (2005). Additionally, if the moving party asserts that the nonmovant lacks evidence to support an essential element of one of his or her claims, the burden shifts to the nonmovant to present such evidence. Lowrey v. LMPS & LMPJ, Inc. , 500 Mich. 1, 7, 890 N.W.2d 344 (2016). Finally, "[i]ssues of statutory interpretation are reviewed de novo."

Riverview v. Sibley Limestone , 270 Mich. App. 627, 630, 716 N.W.2d 615 (2006). "Statutory provisions must be read in the context of the entire act, giving every word its plain and ordinary meaning. When the language is clear and unambiguous, we will apply the statute as written and judicial construction is not permitted."

Driver v. Naini , 490 Mich. 239, 246-247, 802 N.W.2d 311 (2011) (citations omitted).

III. ANALYSIS

A. IDENTIFICATION OF HARLEYSVILLE

Plaintiff argues that the trial court's ruling that Harleysville was identifiable as the highest-priority insurer had plaintiff acted with reasonable diligence, and therefore that plaintiff's claim against Trumbull must be dismissed, was erroneous. We disagree.

When interpreting the no-fault act, "[t]erms contained in the no-fault act are read in the light of its legislative history and in the context of the no-fault act as a whole." Frierson v. West American Ins. Co. , 261 Mich. App. 732, 734, 683 N.W.2d 695 (2004) (quotation marks and citation omitted). Furthermore, "[g]iven the remedial nature of the no-fault act, courts must liberally construe its provisions in favor of the persons who are its intended beneficiaries." Id. (quotation marks and citation omitted). Therefore, while courts interpreting the no-fault act must give every word in the statute its plain and ordinary meaning in light of the larger statutory scheme, Driver , 490 Mich. at 246-247, 802 N.W.2d 311, courts also must construe provisions of the no-fault act in favor of its insured beneficiaries, Frierson , 261 Mich. App. at 734, 683 N.W.2d 695.

The no-fault act establishes the order in which potential insurers are responsible for paying PIP benefits. See MCL 500.3114. The no-fault act also limits the liability of insurers through MCL 500.3145(1), commonly referred to as the one-year-back rule. "The one-year-back rule is designed to limit the amount of benefits recoverable under the no-fault act to those losses occurring no more than one year before an action is brought." Joseph , 491 Mich. at 203, 815 N.W.2d 412 (2012). Thus, as a practical matter, a plaintiff has one year from the date of his or her injury to identify the highest-priority insurer as established by MCL 500.3114, because only the highest-priority insurer is liable for a plaintiff's PIP benefits. If the highest-priority insurer is identifiable within that time, then only that insurer is liable for a plaintiff's PIP benefits. See MCL 500.3114 ; 500.3145(1). But "when an insurer that would be liable under one of the exceptions in MCL 500.3114(1) cannot be...