Jesperson v. Auto Club Ins. Ass'n, <span>Docket No. 150332.</span>

• Decision Date: 21 March 2016
• Docket Number: &lt;span&gt;Docket No. 150332.&lt;/span&gt;,&lt;span&gt;Calendar No. 2.&lt;/span&gt
• Citation: 878 N.W.2d 799,499 Mich. 29
• Parties: JESPERSON v. AUTO CLUB INSURANCE ASSOCIATION.
• Court: Michigan Supreme Court

499 Mich. 29

878 N.W.2d 799

JESPERSON

v.AUTO CLUB INSURANCE ASSOCIATION.

Docket No. 150332.

Calendar No. 2.

Supreme Court of Michigan.

Argued Dec. 9, 2015.

Decided March 21, 2016.

Mark Granzotto, PC, Royal Oak (by Mark Granzotto), and Law Offices of Michael J. Morse, PC (by Eric M. Simpsonand Lewis A. Melfi, Southfield), for plaintiff.

Secrest Wardle, Grand Rapids (by Brian E. Fischerand Drew W. Broaddus) for defendant.

McCORMACK, J.

Among the questions before us is whether an insurer's payment of no-fault benefits to a plaintiff more than one year after the date of the plaintiff's motor vehicle accident satisfies the second exception to the one-year statute of limitations established in the first sentence of MCL 500.3145(1)of the no-fault act.¹ We conclude that such a payment does satisfy this exception. Accordingly, we reverse the judgment of the Court of Appeals, vacate the trial court's order granting summary disposition in favor of the defendant, and remand this case to the trial court for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff Alan Jesperson was involved in a motor vehicle accident on May 12, 2009. The accident was reported to defendant Auto Club Insurance Association (ACIA) on June 2, 2010, more than one year after the accident. On July 23, 2010, ACIA began paying personal protection insurance benefits, or no-fault benefits, to Jesperson. When ACIA subsequently notified Jesperson that it was terminating payment of his benefits, Jesperson amended his existing lawsuit against the driver of the other vehicle involved in the accident to add ACIA as a defendant, claiming that ACIA was wrongfully refusing to pay no-fault benefits.

The trial was scheduled to begin on February 19, 2013. On January 22, 2013, the defendant filed a motion for summary disposition in which it argued for the first time that the plaintiff's claim was barred by the one-year statute of limitations provided in MCL 500.3145(1). The trial court agreed with the defendant that the plaintiff's claim was barred by the one-year statute of limitations and dismissed the plaintiff's claim.

In a split, published decision, the Court of Appeals affirmed the trial court, holding that the exception in MCL 500.3145(1)to the one-year limitations period when the insurer has previously made a payment applies only if the insurer has made a payment within one year after the date of the accident. Thus, the exception did not apply in this case because the defendant's payments to the plaintiff did not begin until more than one year after the accident.² Judge SERVITTO dissented, concluding that the defendant had waived the statute of limitations affirmative defense by failing to properly plead it and stating that, accordingly, she would not have reached the statutory interpretation question.³

We granted the plaintiff's application for leave to appeal.

II. ANALYSIS

The first sentence of MCL 500.3145(1)of the no-fault act establishes a one-year statute of limitations with two exceptions:

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.

The first exception—the "notice" exception—allows the filing of an action for no-fault benefits more than one year after the date of the accident if "written notice of injury ... has been given to the insurer within 1 year after the accident[.]" MCL 500.3145(1). The second exception—the "payment" exception—allows the filing of an action for no-fault benefits more than one year after the date of the accident if "the insurer has previously made a payment of personal protection insurance benefits for the injury." Id.

The critical issue here is the meaning of the word "previously" in the payment exception. The plaintiff contends that "previously" means prior to the commencement of the action; the defendant argues that "previously" means before the expiration of one year after the date of the accident. This Court reviews de novo questions of statutory interpretation, Joseph v. Auto Club Ins. Ass'n, 491 Mich. 200, 205, 815 N.W.2d 412 (2012), as well as a trial court's decision whether to grant a motion for summary disposition. Id.

When interpreting statutory language, we begin with the plain language of the statute. Driver v. Naini, 490 Mich. 239, 246–247, 802 N.W.2d 311 (2011). "We must give effect to the Legislature's intent, and the best indicator of the Legislature's intent is the words used." Johnson v. Pastoriza, 491 Mich. 417, 436, 818 N.W.2d 279 (2012). Additionally, when determining this intent we "must give effect to every word, phrase, and clause in a statute and avoid an interpretation that renders nugatory or surplusage any part of a statute." Hannay v. Dep't of Transp., 497 Mich. 45, 57, 860 N.W.2d 67 (2014)(quotation marks and citation omitted). We conclude that the statute's plain language supports the plaintiff's reading of the statute.

First, the Legislature used the word "or" to separate the notice exception and the payment exception. " 'Or' is ... a disjunctive [term], used to indicate a disunion, a separation, an alternative." People v. Kowalski, 489 Mich. 488, 499 n. 11, 803 N.W.2d 200 (2011), quoting Mich. Pub. Serv. Co. v. City of Cheboygan, 324 Mich. 309, 341, 37 N.W.2d 116 (1949)(alteration in original). See also Badeen v. PAR, Inc., 496 Mich. 75, 84 n. 17, 853 N.W.2d 303 (2014)(noting that, because the phrases in the statute defining a collection agency are separated by the disjunctive "or," "a person need only engage in one of the enumerated actions to satisfy the statutory definition"). Thus, the word "or" here indicates that the notice and payment exceptions should be treated as independent alternatives.

Second, the Legislature chose to use the phrase "within 1 year after the accident" in the notice exception and the word "previously" in the payment exception. Courts have a duty to give meaning to the Legislature's choice of one word over another. Robinson v. Detroit, 462 Mich. 439, 459, 461, 613 N.W.2d 307 (2000). "This Court will not assume that the Legislature inadvertently made use of one word or phrase instead of another." People v. Williams, 491 Mich. 164, 175, 814 N.W.2d 270 (2012). "Previous" means "coming or occurring before something else; prior[.]" Random House Webster's College Dictionary (2d ed., 2001). We conclude that "previously" must mean something different from "within 1 year after the accident."

Third, the Legislature's word choice in the second sentence of § 3145(1) supports the plaintiff's reading of the payment exception that the exception is satisfied by any prior payment. The second sentence provides:

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. [MCL 500.3145(1).]

As this Court has explained:

"The" and "a" have different meanings. "The" is defined as "definite article. 1. (used, [especially] before a noun, with a specifying or particularizing effect, as opposed to the indefinite or generalizing force of the indefinite article a or an)...." Random House Webster's College Dictionary, p. 1382. [Robinson v. City of Lansing, 486 Mich. 1, 14, 782 N.W.2d 171 (2010)(explaining that the phrase "the highway" must refer to a specific or particular highway, while the phrase "a highway" would refer to highways in general) (quotation marks and citation omitted; alteration in original).]

While the second sentence of § 3145(1) refers to "the notice," it also refers to "a payment," suggesting that while the Legislature was referring to a specific notice—the notice given to the insurer within 1 year after the accident—it was not referring to a specific payment made at any particular time but rather to any payment previously made. See also Robinson, 462 Mich. at 461, 613 N.W.2d 307(discussing that the phrase "a proximate cause" should not be interpreted in the same way as the phrase "the proximate cause" because "[o]ur duty is to give meaning to the Legislature's choice of one word over the other") (emphasis added).

The defendant argues that the plaintiff's reading of the statute renders the word "previously" surplusage. While this argument is not without merit, reading the word "previously" to mean "prior to the commencement of the action" does not leave it completely "surplusage," or devoid of meaning. At the same time, the defendant's proposed reading of the statute, i.e., interpreting "previously" to mean "within 1 year after the accident," would considerably undermine the significance of the payment exception. The notice exception applies if the required notice has been provided to the insurer within one year after the accident. MCL 500.3145(1). For an insurer to make a benefits payment for an injury from an accident, the insurer must have received notice that the accident occurred. That is, if an insurer makes a payment within one year after an accident, the insurer would in all likelihood have already received the required notice of the accident. In other words, if the payment exception only operates if payment has been made within one year after an accident, this exception operates only if the notice exception would also in all likelihood apply. To give full effect to the Legislature's intention, we must avoid an interpretation that renders the payment exception all but surplusage.⁴ See Hannay, 497 Mich. at 57, 860 N.W.2d 67.

Finally, contrary to the conclusion of the Court of Appeals majority, interpreting the payment exception to apply whenever an insurer has made a payment does not produce an absurd result. Even when a plaintiff...