Richardson v. Allstate Ins. Co.

• Decision Date: 28 May 2019
• Docket Number: No. 341439,341439
• Citation: 938 N.W.2d 749,328 Mich.App. 468
• Parties: Stephanie Lynn RICHARDSON, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

328 Mich.App. 468

938 N.W.2d 749

Stephanie Lynn RICHARDSON, Plaintiff-Appellant,

v.ALLSTATE INSURANCE COMPANY, Defendant-Appellee.

No. 341439

Court of Appeals of Michigan.

Submitted May 2, 2019, at Detroit.

Decided May 28, 2019, at 9:05 a.m.

Puzio Law, PC (by Ronald C. Puzio, Jr., and Mishelle Khan) for plaintiff.

Smith & Brink (by Matthew A. Brooks, Sawyer N. Thorp, and Jane Kent Mills, Detroit) for defendant.

Before: Murray, C.J., and Jansen and Riordan, JJ.

Per Curiam.

Plaintiff appeals as of right the trial court order granting defendant summary disposition and the trial court order denying plaintiff’s motion to "reinstate the case" in this no-fault matter. We reverse the order granting defendant summary disposition, vacate the order denying plaintiff’s motion to reinstate, and remand for further proceedings.

I. BACKGROUND

This matter arises from plaintiff’s claims for personal protection insurance (PIP) benefits pursuant to the no-fault act, MCL 500.3101 et seq. , for injuries she sustained in a car accident in December 2015. Plaintiff was driving with two others in the vehicle and stopped at an intersection. A vehicle two cars behind plaintiff was unable to stop, and it hit the vehicle directly behind plaintiff’s car, which caused that vehicle to hit plaintiff’s car, allegedly resulting in her injuries. Later that day, plaintiff went to Oakwood Annapolis Hospital for neck pain and dizziness. After being released from the hospital, plaintiff was referred for medical treatment at Ortho, PC, by her attorney’s office, Michigan Accident Associates, PLLC. Plaintiff’s claims for PIP benefits then were assigned to defendant through the Michigan Assigned Claims Plan (MACP), and defendant denied plaintiff’s claims.

Defendant moved for summary disposition in the trial court based on improper solicitation of plaintiff by Thomas Quartz, an attorney with Michigan Accident Associates. The motion was based on plaintiff’s deposition testimony that Quartz was at her home the day that she was released from the hospital, only days after the accident occurred. The trial court granted defendant summary disposition because plaintiff failed to create a genuine issue of material fact regarding defendant’s assertion that she was improperly solicited by her attorney. The court further held that the improper solicitation rendered plaintiff’s medical treatment unlawful. Plaintiff moved to reinstate the case, arguing that she was not solicited by counsel and that the criminal statutes at issue that prohibit solicitation, MCL 750.410 and MCL 750.410b, do not apply in this civil matter. The trial court later denied plaintiff’s motion to reinstate, which was essentially a motion for reconsideration.

II. ANALYSIS

This Court reviews a motion for summary disposition de novo. Gorman v. American Honda Motor Co., Inc. , 302 Mich. App. 113, 115, 839 N.W.2d 223 (2013). A motion for summary disposition brought pursuant to MCR 2.116(C)(10) tests the factual support for a party’s claim. Maiden v. Rozwood , 461 Mich. 109, 120, 597 N.W.2d 817 (1999). When reviewing a motion brought under this subrule, the court must examine all documentary evidence presented to it, draw all reasonable inferences in favor of the nonmoving party, and determine whether a genuine issue of material fact exists. Dextrom v. Wexford Co ., 287 Mich. App. 406, 430, 789 N.W.2d 211 (2010). Summary disposition is proper when the evidence fails to establish a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. West v. Gen. Motors Corp. , 469 Mich. 177, 183, 665 N.W.2d 468 (2003). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." Id .

Under the no-fault act, an insurer "is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle ...." MCL 500.3105(1). PIP benefits are payable for "[a]llowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation." MCL 500.3107(1)(a).

As part of the Michigan Penal Code, MCL 750.1 et seq. , MCL 750.410b prohibits improper solicitation of motor vehicle accident victims:

(1) A person shall not intentionally contact any individual that the person knows has sustained a personal injury as a direct result of a motor vehicle accident, or an immediate family member of that individual, with a direct solicitation to provide a service until the expiration of 30 days after the date of that motor vehicle accident. This subsection does not apply if either of the following circumstances exists:

(a) The individual or his or her immediate family member has requested the contact from that person.

(b) The person is an employee or agent of an insurance company and the person is contacting the individual or his or her family member on behalf of that insurance company to adjust a claim. This subdivision does not apply to a referral of the individual or his or her immediate family member to an attorney or to any other person for representation by an attorney. [ MCL 750.410b(1)(a) and (b).]

"Direct solicitation to provide a service" is statutorily defined as:

[A] verbal or written solicitation or offer, including by electronic means, made to the injured individual or a family member seeking to provide a service for a fee or other remuneration that is based upon the knowledge or belief that the individual has sustained a personal injury as a direct result of a motor vehicle accident and that is directed toward that individual or a family member. [ MCL 750.410b(2)(a).]

A person in violation of the statute is guilty of a misdemeanor. MCL 750.410b(3). See also MCL 750.410(1) (a person or firm who directly or indirectly solicits a person injured as a result of a motor vehicle accident for the purpose of representing the victim in making a claim for damages is guilty of a misdemeanor).

MCL 750.410 is a criminal statute and provides no civil remedy or cause of action for its enforcement. That precludes the use of any public-policy reasoning underlying the statute as a means to extend the statute beyond its limits to provide relief in this civil matter. " ‘It is well settled that criminal statutes are to be strictly construed, absent a legislative statement to the contrary.’ " People v. Robar , 321 Mich. App. 106, 120, 910 N.W.2d 328 (2017), quoting People v. Boscaglia , 419 Mich. 556, 563, 357 N.W.2d 648 (1984). Statutory language is assessed in context and construed according to its plain and ordinary meaning. Robar , 321 Mich. App. at 120, 910 N.W.2d 328. When statutory language is unambiguous, it is applied as written and further construction by the Court is not required or permitted. Id . The clear statutory language of MCL 750.410 and MCL 750.410b provides that it is a criminal misdemeanor to solicit an individual with a personal-injury claim. Punishment for violation of either statute includes imprisonment or payment of a fine, or both. MCL 750.410(2) ; MCL 750.410b(3). If the Legislature intended a violation of MCL 750.410 to be a bar to a no-fault action, it could have added it to the list of fraudulent conduct within MCL 500.3173a and MCL 500.4503.¹ It, however, chose not to do so. "This Court will not read into a statute anything that is not within the manifest intention of the Legislature as gathered from the act itself." Kokx v. Bylenga , 241 Mich. App. 655, 661, 617 N.W.2d 368 (2000).

Giving defendant the benefit of its misplaced contention, under MCL 750.410, the only prohibited solicitation is that which is substantially motivated by pecuniary gain. Keliin v. Petrucelli , 198 Mich. App. 426, 433, 499 N.W.2d 360 (1993). "This construction was put on the criminal statute to avoid a conflict with the First Amendment." Id . We have defined "solicitation" as "a situation where the solicitor’s position or relation to a prospective client is such that his request may force the recipient into acquiescing to the plea. In defining solicitation in this manner, the statute could best prevent those aspects of solicitation that involve fraud, undue influence, intimidation, and overreaching." Woll v. Attorney General (On Remand) , 116 Mich. App. 791, 805-806, 323 N.W.2d 560 (1982). This is because there is a greater likelihood of harm to the client as a result of solicitation of personal-injury claims:

Personal injury claims, in contrast with general civil litigation and personal injury defense, are almost universally handled on a contingent fee basis and there is no fixed dollar value for the claimant’s injuries. The combination of these factors creates opportunities for taking advantage of the client. [ Woll v. Attorney General , 409 Mich. 500, 528, 297 N.W.2d 578 (1980), clarified ––– Mich. ––––, 300 N.W.2d 171 (1980).]

Defendant fails to provide authority for the proposition that criminal solicitation may bar a plaintiff’s claims for no-fault benefits. Although this matter was remanded for a settled record of the hearing on defendant’s motion for summary disposition,² the trial court failed to provide its reasoning for holding plaintiff to the standard of the criminal statutes and thereby dismissing her claims. Despite the trial court’s complete lack of analysis, it is clear that the Legislature intended the consequence for solicitation to be a criminal misdemeanor punishable by imprisonment or fine, or both. MCL 750.410(2) ; MCL 750.410b(3). Moreover, the wrongful-conduct rule has no application to these proceedings because that rule only applies when a plaintiff engages in wrongful conduct. See Orzel v. Scott Drug Co. , 449 Mich. 550, 558-559, 537 N.W.2d 208 (1995) ; Hashem v. Les Stanford Oldsmobile, Inc. , 266 Mich. App. 61, 89, 697 N.W.2d 558 (2005). In this case, there is no suggestion that pla...