General v. Blue Cross Blue Shield

BANDSTRA, J.

(concurring in part and dissenting in part). I concur with most of the majority opinion but disagree with its conclusion that the trial court should decide on remand a question that was raised on appeal, whether the $125 million capital contribution by Blue Cross Blue Shield of Michigan (BCBSM) to the Accident Fund Insurance Company of America (the Accident Fund) violated MCL 550.1207(l)(x). The majority directed a remand on this issue to allow the parties an opportunity to present evidence and fully brief it. However, the issue has been fully briefed, and no set of facts would justify the capital contribution under the clear language of the statute.

MCL 550.1207(l)(x) provides, in relevant part:

*93A health care corporation, subject to any limitation provided in this act, in any other statute of this state, or in its articles of incorporation, may do any or all of the following:
(x) [E]stablish, own, and operate a domestic stock insurance company only for the purpose of acquiring, owning, and operating the state accident fund pursuant to chapter 51 of the insurance code of 1956 ... so long as all of the following are met:
(vi) Health care corporation and subscriber funds are not used to operate or subsidize in any way the insurer including the use of such funds to subsidize contracts for goods and services. This subparagraph does not prohibit joint undertakings between the health care corporation and the insurer to take advantage of economies of scale or arm’s-length loans or other financial transactions between the health care corporation and the insurer. [Emphasis added.]

As the majority has noted, this Court’s goal when interpreting a statute is to discern and give effect to the Legislature’s intent. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). The intent of the Legislature is most reliably shown through the words used in the statute. Id. If the language in the statute is unambiguous, the Legislature is presumed to have intended the meaning clearly expressed, and the statute must be enforced as written. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). Effect should be given to every phrase, clause, and word in the statute, and this Court will avoid a construction that would render any part of a statute surplusage or nugatory. Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d *94570 (2008). “The statutory language must be read and understood in its grammatical context, unless it is clear that something different was intended.” Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999). And, this Court “must consider both the plain meaning of the critical words or phrases as well as their placement and purpose in the statutory scheme.” People v Williams, 268 Mich App 416, 425; 707 NW2d 624 (2005). This Court may “ ‘consult dictionary definitions of terms that are not defined in a statute.’ ” Woodard v Custer, 476 Mich 545, 561; 719 NW2d 842 (2006), quoting People v Perkins, 473 Mich 626, 639; 703 NW2d 448 (2005). However, “technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” MCL 8.3a; Woodard, 476 Mich at 561.

By its plain language, MCL 550.1207(1)(x)(vi) prohibits BCBSM funds from being used to “operate or subsidize in any way” the Accident Fund, “including the use of such funds to subsidize contracts for goods and services.” Random House Webster’s College Dictionary (1992), defines “any” as “one, a, an or some,” or as “every, [or] all”; it defines “way” as “manner, mode, or fashion”; it defines “operate” as “to work, perform or function” or “to manage or use”; it defines “subsidize” as “to furnish or aid with a subsidy” and it defines “subsidy” as “any grant or contribution of money.” Applying these definitions to § 207(1)(x)(ui) then, BCBSM is prohibited from using its funds to aid the Accident Fund with a grant or contribution of money, in any manner or fashion. Certainly, the $125 million nonrepayable contribution of BCBSM funds to the Accident Fund meets this definition.

*95BCBSM argues, and the commissioner of the Office of Financial and Insurance Regulation (OFIR) (the OFIR Commissioner) agreed, that the term “subsidize” as used in the statute refers only to “subsidization,” an insurance industry term with a particular, technical meaning limited to rate subsidization and that it is only this particular activity that the Legislature intended to prohibit. See MCL 8.3a. However, even assuming “subsidization” might be interpreted that way, the statute does not merely prohibit “subsidization” and the restrictive connotation that BCBSM would have us impose is belied by the Legislature’s use of the much broader “operate or subsidize in any way” phrase, as just explained.

Further, § 207(l)(x)(ci) states that BCBSM may not subsidize the Accident Fund by using BCBSM funds “to subsidize contracts for goods and services.” Again, this is a broad phrase and there is no limiting language suggesting that the contracts that BCBSM cannot subsidize are only those contracts that would affect the Accident Fund’s rates. Again, therefore, this broad statutory language is inconsistent with the reading of the statute that BCBSM urges on us; to accept BCB-SM’s argument would improperly render the broad statutory provision regarding “contracts for goods and services” surplusage or nugatory. Herman, 481 Mich at 366.

In sum, reading the prohibition against the use of BCBSM funds to subsidize in any way the Accident Fund, “in its grammatical context,” Sun Valley Foods, 460 Mich at 237, and considering “both the plain meaning of the critical words or phrases as well as their placement and purpose in the statutory scheme,” Williams, 268 Mich App at 425, as this Court is required to do, the only conclusion that can he drawn from the plain language of *96MCL 550.1207(1)(x)(vi) is that BCBSM is prevented from contributing its funds to the Accident Fund for any purpose, not merely for the purpose of subsidizing the Accident Fund’s insurance rates.1

BCBSM further argues that the capital contribution constitutes a permissible “other financial transaction” within the meaning of § 207(l)(x)(üi). This argument also lacks merit. “Under the statutory construction doctrine known as ejusdem generis, where a general term follows a series of specific terms, the general term is interpreted ‘to *97include only things of the same kind, class, character, or nature as those specifically enumerated.’ ” Neal, 470 Mich at 669, quoting Huggett v Dep’t of Natural Resources, 464 Mich 711, 718-719; 629 NW2d 915 (2001). Therefore, the language “other financial transactions” must be interpreted to include only those transactions of the same kind, class, character, or nature as “joint undertakings” to allow BCBSM and the Accident Fund to take advantage of economies of scale, or “arm’s-length loans . . . .” MCL 550.1207(1)(x)(vi). Thus, the “other financial transactions” permitted by the statute are of the type that have direct, immediate, and concrete mutual economic/financial benefit. A transfer of $125 million from BCBSM to the Accident Fund, without any repayment obligation or direct benefit to BCBSM, regardless of the purpose, does not meet this criteria.

For these reasons, I would conclude, without remanding the issue, that BCBSM’s $125 million contribution to the Accident Fund was impermissible under the plain language of MCL 550.1207(l)(x).

BCBSM asserts, and the OFIR Commissioner noted, that capital contributions between parent and subsidiary corporations are commonplace in the insurance industry. However, this has no bearing on the interpretation of the instant statutory provision, which regulates particularly this parent and this subsidiary in a very specific manner, considering the unique nature of BCBSM and its corresponding unique posture in the insurance market. Nor does the application of MCL 550.1207(1)(x)(vi) depend in any way on the motivation or purpose behind BCBSM’s contribution to the Accident Fund. Rather, the statute prohibits BCBSM from aiding the Accident Fund financially in any manner or fashion.

BCBSM relies on the legislative history behind changes that were made to the Nonprofit Health Care Corporation Reform Act, MCL 550.1101 et seq., at the same time that the statute at issue was enacted. BCBSM cites old caselaw suggesting that legislative intent can appropriately be considered, Girard v Wagenmaker, 437 Mich 231, 238-239; 470 NW2d 372 (1991), but that caselaw has been seriously undermined by more recent authority stating that “in Michigan, a legislative analysis is a feeble indicator of legislative intent and is therefore a generally unpersuasive tool of statutory construction.” Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 587; 624 NW2d 180 (2001). In any event, as I have explained, the statute here is unambiguous and judicial construction of any sort, including through an analysis of legislative history, is neither required nor permitted. Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005). That same rule applies to consideration of statutes or legislation that are in pari materia, a doctrine only to be utilized when “the statute under examination is itself ambiguous.” Tyler v Livonia Pub Sch, 459 Mich 382, 392; 590 NW2d 560 (1999). For all these reasons, BCBSM’s attempts to avoid the clear language of the statute, while creative, must fail.