MORGAN
v.
EVANS
Docket No. 94680.
Michigan Court of Appeals.
Decided September 10, 1987.Sloan, Benefiel, Farrer, Newton & Glista (by Gary C. Newton), for plaintiff.
Lilly, Domeny, Durant, Byrne & Schanz, P.C. (by Joseph A. Byrne, Jr.), for Citizens Insurance Company of America.
Before: CYNAR, P.J., and WEAVER and J.H. HAUSNER,[*] JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting defendant Citizens Insurance Company of America summary disposition pursuant to MCR 2.116(C)(10).
The underlying dispute concerns the payment of no-fault insurance benefits. Plaintiff was injured while being driven to National Guard training. *117 Defendant Citizens was plaintiff's no-fault insurer. Plaintiff's initial hospitalization was paid by the Veterans Administration. Approximately nine months later, plaintiff was diagnosed as having a herniated disc in his back and surgery was recommended. Plaintiff claims that he sought approval for the operation from his staff sergeant. According to plaintiff, his sergeant stated that the military would not pay for the surgery because it was considered an elective procedure. Nonetheless, plaintiff chose to have the surgery performed at a nonmilitary hospital at a cost of over $10,000. He subsequently requested reimbursement of his medical expenses from the military. Plaintiff's claim was denied for the following reasons:
a.) Nonemergency medical care in a civilian treatment facility is not authorized without written or verbal authorization from the Chief, National Guard Bureau or his designee. There is no documentation included in this package that showed any authorization for care was asked for or granted.
b.) There is no medical documentation indicating that the auto accident in January, 1984, was the cause of the soldier's herniated disk [sic] which was diagnosed nine months later in September, 1984.
Plaintiff then filed this action against the defendant insurer and others. Defendant insurer responded by claiming that it was not liable for plaintiff's medical expenses because of the setoff provision, § 3109, of the no-fault insurance act.[1] The trial court granted defendant insurer's motion for summary disposition, finding that plaintiff *118 elected not to receive the benefits offered by the federal government.
MCL 500.3109(1); MSA 24.13109(1) provides:
Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.
Medical care provided a member of the armed forces pursuant to 10 USC 1071 is a benefit provided under the laws of the federal government required to be subtracted from no-fault benefits otherwise payable to the injured person. Crowley v DAIIE, 428 Mich. 270; 407 NW2d 372 (1987). See also Dengler v State Farm Mutual Automobile Ins Co, 135 Mich. App. 645; 354 NW2d 294 (1984); Bagley v State Farm Mutual Automobile Ins Co, 101 Mich. App. 733; 300 NW2d 322 (1980). The issue presented in this case is whether § 3109 requires an offset even though plaintiff did not receive any medical benefits from the military.
In Perez v State Farm Mutual Automobile Ins Co, 418 Mich. 634; 344 NW2d 773 (1984), our Supreme Court ruled that § 3109 does not authorize subtraction of unavailable workers' compensation benefits. In that case, workers' compensation benefits were unavailable to the plaintiffs because their employer failed to provide workers' compensation coverage. The Court concluded that any benefits that would have been payable pursuant to workers' compensation could not be subtracted from no-fault work loss benefits. However, the Court has also ruled that, when an injured party settles a claim with the primary insurer for less than the full benefit, the no-fault insurer is entitled *119 to offset the amount required to be paid rather than the settlement amount. Gregory v Transamerica Ins Co, 425 Mich. 625, 634-636; 391 NW2d 312 (1986). In so ruling, the Court adopted the reasoning of the federal district court in Moore v Travelers Ins Co, 475 F Supp 891, 894-895 (ED Mich, 1979), that any other result
would allow the Plaintiff to elect who, as between the no-fault and compensation carriers, to collect benefits from. This would disturb the legislatively established relative spheres of application of no-fault and compensation. Section 3109(1) clearly contemplates that the no-fault carrier should be liable only for the excess of its coverage over and above that potentially provided by the compensation carriers.
We interpret the foregoing Supreme Court decisions as indicating that a no-fault insurer may offset primary insurance benefits except when injured persons fail to receive benefits through no fault of their own. In this case, plaintiff might have been entitled to medical benefits provided by the military if he had received treatment at a Veterans Administration hospital. Instead, he chose to have nonemergency surgery performed at a nonmilitary hospital. Under the circumstances of this case, we agree with the trial court that defendant insurer was entitled to subtract from insurance benefits otherwise payable the amount that would have been paid by the federal government if plaintiff had sought treatment at a military hospital. Recovery from defendant insurer in this case would defeat the purpose of the setoff provision by allowing plaintiff to choose which insurance would pay for his medical treatment.
The decision of the trial court is affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] Plaintiff's complaint also alleged wage loss and replacement services expenses. The trial court's dismissal of these claims is not on appeal.