Perkovic v. Zurich Am. Ins. Co.

• Decision Date: 10 September 2015
• Docket Number: Docket No. 321531.
• Parties: PERKOVIC v. ZURICH AMERICAN INSURANCE COMPANY.
• Court: Court of Appeal of Michigan — District of US

312 Mich.App. 244

876 N.W.2d 839

PERKOVIC

v.ZURICH AMERICAN INSURANCE COMPANY.

Docket No. 321531.

Court of Appeals of Michigan.

Submitted Sept. 1, 2015, at Detroit.

Decided Sept. 10, 2015, at 9:00 a.m.

Mark Granzotto, PC, Royal Oak (by Mark Granzotto), and Law Offices of Michael J. Morse, PC (by Donald J. Cummings, Southfield), for plaintiff.

Dean & Fulkerson, PC, Troy (by James K. O'Brien and James M. Dworman ), for defendant.

Before: TALBOT, P.J., and WILDER and FORT HOOD, JJ.

WILDER

, J.

Plaintiff, Dragen Perkovic, appeals as of right an order granting summary disposition to defendant, Zurich American Insurance Company. We affirm.

This case arises out of a motor vehicle accident that occurred on February 28, 2009. Plaintiff was the driver and owner of a semi-truck, which he leased to E.L. Hollingsworth and Company (Hollingsworth) under an independent contractor's operating agreement. Hollingsworth had an automobile insurance policy with defendant that covered Hollingsworth's equipment and the vehicles it leased. Plaintiff also had a personal automobile insurance policy through Citizens Insurance Company (Citizens) and a bobtail insurance policy through Hudson Insurance Company (Hudson) for occasions on which the vehicle was not being operated for Hollingsworth.

On February 28, 2009, while plaintiff was driving down an interstate, the car in front of plaintiff began to spin, and plaintiff swerved to avoid the car. As a result, plaintiff drove his truck into a wall. Plaintiff subsequently received emergency medical treatment at The Nebraska Medical Center.

On April 30, 2009, James White, a custodian of records for The Nebraska Medical Center, mailed to defendant plaintiff's medical records and a medical bill for services performed on plaintiff. According to White's affidavit, White sent the medical bill and plaintiff's medical records on behalf of plaintiff in order to obtain payment for plaintiff's accident-related injuries. The medical bill listed "Dragen Perkovic" under the "Insured's Name" and included plaintiff's address of 3472 South Blvd., Bloomfield Hills, MI 48304. Plaintiff's medical records also included plaintiff's name as the insured, his address, and a policy number. Plaintiff's medical records stated:

46 yo male semi truck driver c/o R upper back pain after MVC. States that he was driving down interstate when car in front of him began to spin[,] he swerved to avoid the car since in semi and ran into a wall hitting front [ ]driver side.

Plaintiff's medical records further stated that plaintiff may have suffered a "back sprain

, cervical sprain or fracture, chest wall contusion, contusion, head injury, liver injury, myocardial contusion, pneumothorax, splenic injury, sprained or fractured extremity."

On May 19, 2009, defendant sent notice to The Nebraska Medical Center indicating that it was denying payment for the services rendered to plaintiff. Defendant stamped the statement, "No injury report on file for this person," on the medical bill for the services performed on plaintiff.

As stated in the trial court's opinion granting summary disposition:

On August 11, 2009, Plaintiff filed his Complaint against Citizens. On February 12, 2010, Plaintiff amended his Complaint to add Hudson, Business Insurers of America, Inc.[,] BIA Associates, Inc.[,] and Forsyth/BIA, Inc. [,] as defendants. On March 23, 2010, defendants Business Insurers of America, Inc., BIA Associates, Inc.[,] and Forsyth/BIA, Inc[.,] were voluntarily dismissed from this lawsuit. It was not until March 25, 2010, more than a year after the accident, that Plaintiff filed his Second Amended Complaint adding Zurich as a defendant. The Michigan Department of State Assigned Claim Facility was also added as a defendant on December 9, 2010, but was dismissed from the lawsuit on May 18, 2011.

On September 9, 2010, in its Opinion and Order, the Honorable Michael F. Sapala granted Zurich's motion for summary disposition, dismissed Hudson and named Citizens the highest priority insurer. Subsequently, Citizens filed a motion for reconsideration, which was granted on November 8, 2010. In its Opinion and Order, Judge Sapala dismissed Citizens and named Hudson the highest priority insurer. Thereafter, Hudson filed a motion for reconsideration . The motion was denied in a February 11, 2011 Opinion and Order which confirmed Hudson had priority over Zurich and dismissed all claims against Citizens.

On December 20, 2012, the Michigan Court of Appeals reversed this Court's decision, ruling that Zurich is the highest priority insurer, and dismissed all claims against Hudson.^[1] The court held that MCL 500.3114(3)

applied in this case and upheld Hudson's exclusion of coverage provision reasoning that, because Zurich provided coverage, the Hudson and Zurich policies together provided Plaintiff with continuous coverage. Zurich's application for leave to appeal was denied on April 29, 2013.^[2

^]

On August 7, 2013, defendant filed a motion for summary disposition under MCR 2.116(C)(7)

because the statute of limitations in MCL 500.3145 required dismissal of plaintiff's claim. Defendant claimed that it had not received within one year immediately following plaintiff's accident any written notice of injury, and that plaintiff had not been paid any benefits.

On October 2, 2013, plaintiff filed a response to defendant's motion for summary disposition. Plaintiff contended that he complied with the notice requirement when White sent The Nebraska Medical Center medical bill and plaintiff's medical records to defendant on April 30, 2009. The medical bill and records were in written form and specifically stated plaintiff's address and the nature of plaintiff's injury.

On October 3, 2013, defendant filed a reply to plaintiff's response to defendant's motion for summary disposition. Defendant argued that the medical records sent to it were insufficient notice because nothing in the medical records indicated that plaintiff intended to make a claim for personal protection insurance benefits. Moreover, the mailing was not from plaintiff, was not sent on plaintiff's behalf, and was not even known about by plaintiff.

On October 4, 2013, the trial court heard arguments on defendant's motion for summary disposition, and the parties' arguments were consistent with their briefs. On February 20, 2014, the trial court entered an order granting defendant's motion for summary disposition. The trial court first distinguished Lansing Gen. Hosp., Osteopathic v. Gomez, 114 Mich.App. 814, 319 N.W.2d 683 (1982)

, stating that "[t]here was no question in Gomez that the agent was providing the notice with the intent to file a claim." The trial court then stated:

Turning to the case at bar, the Court notes that Mr. White's affidavit states that the bill and records were sent to Zurich on behalf of Plaintiff to obtain payment for his accident related injuries. This is different and distinguishable from sending a notice of injury for the purpose of opening a claim for personal injury protection no-fault benefits on behalf of Plaintiff. Furthermore, there was no additional document enclosed or statement written on the medical records, which would indicate any intention to file a claim on Plaintiff's behalf. Moreover, there is no evidence that Plaintiff even had any knowledge that the Nebraska Medical Center billed Zurich for the services it rendered. Had Plaintiff authorized the Nebraska Medical Center to send a notice of intent to file a claim, or even had knowledge that a notice was sent, the fact that Plaintiff would have had an open claim with Zurich would have been alleged in his Second Amended Complaint adding Zurich to the instant lawsuit. However, the Second Amended Complaint provides that "A Claim Number has not yet been assigned by Defendants or is currently unknown."

Likewise, had the Nebraska Medical Center been tasked with the duty to provide notice of intent to file a claim on Plaintiff's behalf, it would have certainly communicated with either Zurich, providing them with a sufficient notice, or with Plaintiff, letting him know that no claim for personal protection insurance benefits had been opened, after receiving notice from Zurich that no injury report existed for Plaintiff.

Therefore, the Court finds that a medical care provider sending bills and corresponding medical records to obtain payment for the services it rendered to the injured individual does not satisfy the requirements of MCL 500.3145

. The purpose of sending the notice is to file a claim, not to obtain payment. Allowing unexplained bills and medical records, without more, to serve the notice requirements of MCL 500.3145 would defeat the purpose of the statute, as medical providers would have an incentive to bill every possible insurance company to increase their chance of getting paid for the services they render to an injured person. This, in turn, would place an undue burden on insurance companies to investigate every bill sent to them by a medical provider when there is no existing claim or injury report for the injured individual named on the bill. Accordingly, the Court holds that there has to be some evidence that Plaintiff, or someone on his behalf, is

intending to file a claim for personal protection insurance benefits for the notice requirement to be satisfied. [Citation omitted.]

Thereafter, plaintiff filed a motion for reconsideration, which the trial court denied.

On appeal, plaintiff contends that the trial court erred by granting summary disposition to defendant because there is no requirement that the documents be sent with the intent to file a claim; therefore, plaintiff argues that he provided sufficient notice under MCL 500.3145(1)

. We disagree.

A grant or denial of summary disposition is reviewed de novo. Shay v. Aldrich, 487 Mich. 648, 656, 790 N.W.2d 629 (2010)

. When deciding whether a motion for summary disposition under MCR 2.116(C)(7) was properly decided, we must "consider all documentary evidence and accept the...