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
EXECUTIVE AMBULATORY SURGICAL UNPUBLISHED
CENTER and PREMIER ORTHOPEDIC GROUP September 29, 2022
PC,
Plaintiffs-Appellees,
v No. 358799
Wayne Circuit Court
AUTO CLUB INSURANCE ASSOCIATION, LC No. 20-001680-NF
Defendant-Appellant.
Before: GLEICHER, C.J., and MARKEY and PATEL, JJ.
PER CURIAM.
The no-fault act requires that a person injured in a motor vehicle accident provide “written
notice of injury” within one year of the accident. MCL 500.3145(1). This notice does not require
“a precise medical diagnosis,” but if an injury is discovered later, the injured party must be able to
give a “description of symptoms that are traceable to a diagnosable injury.” Dillon v State Farm
Mut Auto Ins Co, 501 Mich 915, 916-917 (2017). The circuit court in this case correctly
determined that the shoulder injury is potentially traceable to the neck injury suffered in the motor
vehicle accident. We affirm.
I. BACKGROUND
Joseph Closser was injured in an August 21, 2015 motorcycle accident. He suffered
injuries to both knees and the tendons in his left wrist and elbow and a left hip hematoma. Three
surgeries were performed to repair his knees and left hip. Closser’s insurance provider, Auto Club
Insurance Association, covered these surgeries. Closser continued to experience pain after the
surgeries. On September 22, 2015, Closser reported “whole body” pain, with more specific pain
in his left hip, right knee, both wrists, and his neck. On February 10, 2016, Closser reported pain
in his left thigh, hip, and knee. On June 1, 2016, Closser reported back and neck pain, as well as
continued pain from the hip hematoma.
On July 16, 2019, Closser reported pain “start[ing] in the back of [his] neck, radiat[ing] to
the right shoulder” that limited his ability to use his right arm. He claimed that the pain began in
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the fall of 2018. Tests revealed a possible rotator cuff tear in Closser’s right shoulder. Dr. Stanley
J. Sczecienski, who specializes in treating motorcycle accident victims, allegedly advised Closser
that he “will have injuries that will literally pop up out of nowhere throughout the rest of [his]
life . . . due to the trauma of the motorcycle accident.” Closser reported the injury to Auto Club
as flowing from his 2015 accident and underwent surgery and treatment with Executive
Ambulatory Surgical Center and Premier Orthopedic Group PC. Auto Club refused to pay,
concluding that the right shoulder injury was unrelated to the 2015 accident. Executive
Ambulatory and Premier Orthopedic filed this first-party no-fault action seeking payment as
Closser’s assignee.1
Auto Club filed a series of three summary disposition motions, all of which were denied.
Auto Club contended that it was not responsible for the 2019 medical bills related to Closser’s
right shoulder injury because Closser failed to provide sufficient written notice of his injury claim
within one year of the accident. The court denied the motion without prejudice and allowed Auto
Club an opportunity to present additional evidence. The court denied the second motion, ruling:
So if the initial notice can be traced to the eventual injury, it is sufficient for
purposes of MCL 500.3145 under Dillon [v State Farm Mut Auto Ins Co, 501 Mich
915 (2017)].
And as noted, the eventual injury was found by the jury in that case to be traceable
to the accident.
So based on that, [I] am denying the motion as there is sufficient notice here of an
injury provided to [Auto Club].
As to whether the shoulder injury was related or not to the accident is matter for the
jury to decide.
Auto Club moved for summary disposition a third time, arguing there was no evidence tracing the
right shoulder injury to the motorcycle accident. After a brief hearing, the court again denied the
motion.
This Court granted Auto Club’s delayed application for leave to appeal. Executive
Ambulatory Surgical Ctr v Auto Club Ins Assoc, unpublished order of the Court of Appeals, entered
January 12, 2022 (Docket No. 358799).
II. ANALYSIS
We review de novo a lower court’s resolution of a summary disposition motion. Zaher v
Miotke, 300 Mich App 132, 139; 832 NW2d 266 (2013). “A motion under MCR 2.116(C)(10)
tests the factual support of a plaintiff’s claim” and should be granted when after reviewing “the
pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light
1
Closser filed a separate complaint against Auto Club, which was referred to mediation and settled
on February 14, 2021.
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most favorable to the nonmoving party,” there remains “no genuine issue regarding any material
fact” that could be sent to trial “and the moving party is entitled to judgment as a matter of law.”
Id. (quotation marks and citations omitted). “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. at 139-140 (quotation marks and citation omitted).
MCL 500.3145(1) of the no-fault act requires that
An action for recovery of personal protection insurance [PIP] benefits payable
under this chapter for an accidental bodily injury may not be commenced later than
1 year after the date of the accident that caused the injury unless written notice of
injury as provided in subsection (4) has been given to the insurer within 1 year after
the accident . . . .
MCL 500.3145(4) provides that “[t]he notice must give the name and address of the claimant and
indicate in ordinary language the name of the person injured and the time, place, and nature of the
person’s injury.”
The Supreme Court explained this notice requirement in Dillon, 501 Mich at 916-917:
If the Legislature had intended for notice of general physical injury to suffice, it
would have stopped at “notice of injury.” But the Legislature required “notice of
injury as provided herein,” and that “herein” includes, “in ordinary language,” “the
name of the person injured and the time, place and nature of his injury.” The phrase
“in ordinary language” indicates that the Legislature wanted claimants to be able to
give notice of injury without recourse to specialist assistance, while the phrase
“nature of his injury” refers to an injury’s inherent characteristics. Taken together,
MCL 500.3145(1) requires only the kind of notice that an ordinary layperson can
provide. A description of symptoms that are traceable to a diagnosed injury is
sufficient to constitute such notice. The statute does not require a claimant to
provide a precise medical diagnosis, as this would not constitute “ordinary
language.”
The plaintiff in Dillon reported injuries to her lower back and left shoulder after an August
2008 automobile accident. Dillon v State Farm Mut Auto Ins Co, 315 Mich App 339, 340; 889
NW2d 720 (2016), vacated in part 501 Mich 915 (2017). Three years later, the plaintiff was
diagnosed with a left hip injury. Id. at 340-341. The plaintiff claimed the left hip injury was
traceable to the 2008 accident, but the insurer denied the claim because it had not received notice
of the hip injury within one year of the accident. Id. at 341. This Court affirmed the trial court’s
denial of the insurer’s motion for summary disposition, stating: “The fact that [the insurer] received
notice that [the plaintiff] suffered physical injuries in a motor vehicle accident was sufficient to
satisfy [MCL.500.3145(1)].” Dillon, 315 Mich App at 344-345. The Supreme Court vacated this
Court’s analysis of MCL 500.3145 but affirmed the holding, articulating:
In the present case, after being involved in a motor vehicle accident, the claimant
provided timely notice of injuries causing pain to her left shoulder and lower back.
Years later, the claimant sought treatment for an injury to her left hip that, according
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to the jury, was caused by the same accident. Because, as the claimant’s doctor
pointed out, the hip injury could have created the lower back pain, her initial notice
can be traced to the eventual injury and was sufficient for the purposes of MCL
500.3145(1). For this reason, although we vacate the Court of Appeals analysis of
MCL 500.3145, we AFFIRM the Court of Appeals judgment on other grounds and
DENY leave to appeal in all other respects. [Dillon, 501 Mich at 916-917.]
When taken together, Dillon leads to the following principle: notice for purposes of MCL 500.3145
is satisfied by a “description of symptoms that are traceable to a diagnosed injury . . . .” Dillon,
501 Mich at 916.
In this case, Closser suffered various diagnosed injuries in his 2015 accident. However, he
did not immediately experience any pain in his right shoulder. Within a year of the accident,
Closser began reporting severe neck pain that he had not previously reported. Accepting Closser’s
reports as true, as we must in connection with a MCR 2.116(C)(10) motion, by the fall of 2018,
Closser began experiencing debilitating pain in his right shoulder that limited his ability to use his
right arm. This eventually led to the discovery of a torn rotator cuff requiring additional surgery.
To connect Closser’s right shoulder injury to the 2015 motorcycle accident, plaintiffs
presented an affidavit from Premier Orthopedics doctor Jiab Suleiman. Dr. Suleiman attested that
when a person injures his wrist or elbow in a motor vehicle accident, he “likely also would injure
the much more fragile shoulder” and that “often neck pain is caused by an injury to the shoulder.”
However, Dr. Suleiman did not connect Closser’s right shoulder injury to the earlier injury to
Closser’s left wrist and elbow. Rather, Dr. Suleiman opined that Closser’s “shoulder injury would
be existent but masked, specifically the left shoulder, as it is difficult to injure an elbow and/or a
wrist . . . without also injuring the connected shoulder.” (Emphasis added.)
Dr. Suleiman’s affidavit creates some connection between Closser’s neck pain, which he
reported about 10 months after his accident, and the left shoulder injury. Closser described that
the pain in his right shoulder radiated from his neck, and the neck injury had already been
established. A jury ultimately might not believe that Closser’s right shoulder injury arose out of
the accident. However, the evidence supports a sufficient connection that Closser’s initial notice
of injury covers the eventual expression of a shoulder injury.
Even so, we note that Dr. Suleiman established no connection between the injuries to
Closser’s left wrist and elbow and the injury to Closser’s right shoulder, instead discussing a
nonexistent injury to his left shoulder. And Closser’s claims of pain throughout his whole body
are not sufficient to provide notice under MCL 500.3145. Our Supreme Court dispensed with that
logic when it vacated our reasoning in Dillon, 501 Mich at 916.
We affirm.
/s/ Elizabeth L. Gleicher
/s/ Jane E. Markey
/s/ Sima G. Patel
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