If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
WILLIE GRIFFIN, FOR PUBLICATION
September 24, 2020
Plaintiff-Appellant,
v No. 344272
Wayne Circuit Court
TRUMBULL INSURANCE COMPANY and LC No. 17-006082-NF
MICHIGAN ASSIGNED CLAIMS PLAN,
Defendants-Appellees,
and
ALLSTATE INSURANCE COMPANY,
ESURANCE PROPERTY & CASUALTY
INSURANCE COMPANY, and JOHN DOE
INSURANCE COMPANY,
Defendants.
Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and TUKEL, JJ.
RONAYNE KRAUSE, P.J. (concurring in part and dissenting in part)
The majority accurately and fairly recites the factual background in this matter and the
general legal principles applicable to this matter, so I will not repeat them. Furthermore, I concur
entirely with the majority’s analysis and disposition of plaintiff’s claims against the MACP. I
respectfully disagree with some of the majority’s analysis of Frierson v West American Ins Co,
261 Mich App 732; 683 NW2d 695 (2004), and I respectfully draw a different conclusion
regarding plaintiff’s diligence and whether Harleysville was “identifiable” within the meaning of
the no-fault act. I would reverse the trial court’s dismissal as to Trumbull, and under the
circumstances I would decline to address the issue of sanctions without prejudice with the
possibility of plaintiff raising the issue again on remand.
Initially, I agree with the majority that Frierson sets forth a conditional test: if a higher-
priority insurer “cannot be identified,” then the “default rule” regarding insurer priority applies.
Frierson, 261 Mich App at 738. However, I disagree that Frierson provides any authority,
-1-
guidance, nor insight into what it means to be “identifiable.” In Frierson, it was simply agreed by
the parties that no higher-priority insurer could be identified. Id. at 737. No actual analysis was
undertaken. Indeed, if the Court had addressed whether any party made adequate efforts to locate
a higher-priority insurer, that analysis would have been dicta. Additionally, the Court in Frierson
was faced with a question of whether the injured plaintiff’s own insurer or the MACP1 was liable
for payment of benefits, not whether the plaintiff received benefits or received nothing. The
holding in Frierson was based on the purpose of the no-fault act as described by our Supreme
Court: to ensure that persons injured in motor vehicle accidents receive benefits, and to impose
primary responsibility for paying those benefits on the person’s own insurer by default. Id. at 737-
738, citing Parks v DAIIE, 426 Mich 191, 204; 393 NW2d 833 (1986). Frierson did not create or
identify an “absolute impossibility” standard, it merely applied longstanding legal principles to a
situation in which identifying another insurer happened to be absolutely impossible.
“When interpreting the meaning of a statute, our primary goal is to discern the intent of the
Legislature by first examining the plain language of the statute.” Driver v Naini, 490 Mich 239,
246-247; 802 NW2d 311 (2011). However, the no-fault act does not expressly specify how to
address situations in which a higher-priority insurer is presumed to exist but has not been
identified. To the extent construction of a statute is necessary, we must strive “to prevent absurd
results, injustice, or prejudice to the public interest.” Rafferty v Markovitz, 461 Mich 265, 270;
602 NW2d 367 (1999). Any such construction must be consistent with the underlying legislative
purpose of the no-fault act and must liberally favor “the persons who are its intended
beneficiaries.” Frierson, 261 Mich App at 734.
Our Supreme Court has explained that “[t]he no-fault act was intended to minimize
uncertainties and to provide a relatively simple means of compensating those injured in automobile
accidents.” Parks, 426 Mich at 207. Furthermore, the no-fault act
was offered as an innovative social and legal response to the long payment delays,
inequitable payment structure, and high legal costs inherent in the tort (or “fault”)
liability system. The goal of the no-fault insurance system was to provide victims
of motor vehicle accident assured, adequate, and prompt reparation for certain
economic losses. [Shavers v Attorney General, 402 Mich 554, 578-579; 267 NW2d
72 (1978).]
The no-fault system was, in part, specifically designed to ensure prompt reimbursement to injured
persons, especially those lacking in substantial financial means, and to avoid the need for litigation.
Id. at 621-623.
Here, the majority crafts an “absolute impossibility” standard out of whole cloth. No such
standard was created or applied in Frierson, and such a standard contravenes the purposes of the
no-fault act. No-fault claimants are not required to prove that a higher-priority insurer is
unavailable, and insurers of default priority may not delay or refuse to pay a claim. Borgess Med
1
Strictly speaking, the MACP’s predecessor, the Michigan Assigned Claims Facility.
-2-
Ctr v Resto, 273 Mich App 558, 568-576; 73 NW2d 738 (2007), vacated on other grounds and
affirmed 482 Mich 946 (2008).2 If any standard for determining when or how a higher-priority
insurer “cannot be identified” is to be crafted, it would ideally come from the Legislature or from
our Supreme Court. However, were this Court to create a standard nonetheless, it would be most
consistent with the purposes of the no-fault act to require a claimant to exercise due diligence to
look for a higher-priority insurer. The due diligence standard is a familiar one, and it “means
undertaking reasonable, good-faith measures under the circumstances, not necessarily everything
possible.” Ickes v Korte, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 346490,
slip op at p 4). Such a standard would at least not undermine the purposes of the no-fault act.
That being said, Trumbull argues that plaintiff could have done more to identify Gonzalez’s
insurer. That is true. However, it is almost always true under any circumstance. Thus, diligence
is not evaluated based on whether a person could have done more, but rather whether that person
did enough. Ickes, ___ Mich App at ___ n 2 (slip op at p 4). Plaintiff points out that any costs
invested into discovering Gonzalez’s insurer would be costs not recoupable from any benefits
ultimately paid. I agree with plaintiff that the goals of the no-fault act would be thwarted by
requiring claimants to expend a significant portion of their benefits simply seeking to obtain those
benefits in the first place.
Furthermore, Trumbull conducted its own search for a higher-priority insurer. I do not
wish to suggest that Trumbull either was or was not obligated to undertake that search.
Nevertheless, presuming Trumbull had no such obligation, a party that acts gratuitously must still
act non-negligently. Hart v Ludwig, 347 Mich 559, 563-565; 79 NW2d 895 (1956). Under the
circumstances, the relationship between an insured and his own insurer imposed upon Trumbull a
requirement to carry out that investigation competently and thoroughly. See Hill v Sears, Roebuck
and Co, 492 Mich 651, 660-661; 822 NW2d 190 (2012); see also Baker v Arbor Drugs, Inc, 215
Mich App 198, 205-206; 544 NW2d 727 (1996). Trumbull’s assumed obligation means its
2
Our Supreme Court vacated the majority opinion in Borgess but nevertheless affirmed this Court
“for the reasons stated in the concurring opinion.” The concurring opinion disagreed with the
majority as to a single issue: whether there was a legal distinction between a “claimant” and a
“person suffering accidental bodily injury” under MCL 500.3114(4). Borgess, 273 Mich App at
585 (WHITE, J., concurring). That distinction had been cited by the majority as only one alternative
basis for its holding. Id. at 571-572. Peremptory orders from our Supreme Court constitute
binding precedent to the extent they can be understood, even if only by reference to other opinions.
Woodring v Phoenix, 325 Mich App 108, 115; 923 NW2d 607 (2018). By necessary implication,
our Supreme Court left intact the Borgess majority’s holding, with which the concurrence clearly
agreed, that it would contravene the purpose of the no-fault act and settled caselaw for an injured
person’s own insurer, i.e., the insurer of default priority, to refuse to pay benefits because the
claimant had not disproved the availability of a higher-priority insurer. Borgess, 273 Mich App at
572-573. I would agree with the Borgess majority in any event, but even if I did not, I conclude
that we are bound to follow it by MCR 7.215(C)(2) and MCR 7.215(J)(1). The majority accurately
observes that there was no discussion in Borgess of whether a higher-priority insurer could have
been identified, but based on its conclusion that the claimant was not obligated to do so, no such
discussion would have been warranted and has no relevance.
-3-
inability to identify Harleysville should be conclusive as to whether Harleysville was able to be
identified as of one year from the accident. It is not clear whether Trumbull specifically informed
plaintiff that it was searching for a higher-priority insurer, but it did promptly advise plaintiff that
it was investigating his claim for coverage, and it apparently told plaintiff at some point before the
suit was commenced that it had not been able to find a higher-priority insurer. Any reasonable
person would be expected to place some reliance on that investigation, and that reliance does not
display a lack of diligence.
Trumbull accurately notes that if plaintiff had commenced the instant lawsuit earlier, he
would have gained the power of subpoena. Indeed, when Gonzalez was eventually subpoenaed,
Harleysville was rapidly identified. It is somewhat speculative whether Gonzalez would have
responded to an earlier subpoena, given his apparent refusal to discuss the matter with anyone
while he was still employed by the same employer. More importantly, however, Trumbull’s
argument contravenes the purpose of the no-fault act. Creating a duty for injured persons to
commence suit against their own insurer immediately after an accident as a matter of course will
drastically increase litigation and costs to injured persons and insurers, obliterate any hope of
fulfilling the no-fault act’s purpose of making benefit payments simple and straightforward, usurp
the Legislature’s power to create limitations periods, clog court dockets, and otherwise re-create
problems the no-fault act was intended to solve. It is blatantly against public policy to hold it
against a party for failing to seek litigation as a first resort or failing to file a suit earlier when it
was actually timely.
I would hold that to the extent plaintiff was obligated to search for a higher-priority insurer
as a precondition to receiving no-fault benefits from his insurer of default priority, plaintiff
exercised the requisite due diligence in carrying out that search. I would therefore reverse the
dismissal of plaintiff’s claims against Trumbull.
/s/ Amy Ronayne Krause
-4-