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
SPINE SPECIALISTS OF MICHIGAN, PC, UNPUBLISHED
April 20, 2023
Plaintiff-Appellant,
v No. 359154
Oakland Circuit Court
ESURANCE PROPERTY AND CASUALTY LC No. 2021-185590-NF
INSURANCE COMPANY,
Defendant-Appellee.
Before: CAVANAGH, P.J., and BOONSTRA and RIORDAN, JJ.
PER CURIAM.
Plaintiff appeals by leave granted1 the order granting defendant’s motion for partial
summary disposition, under MCR 2.116(C)(10) (genuine issue of material fact). On appeal,
plaintiff argues that the trial court erred by determining that the tolling portion of MCL
500.3145(3) did not apply to the damages-limiting provision of MCL 500.3145(2), the one-year-
back rule, and by determining our Supreme Court’s administrative orders, Administrative Order
No. 2020-3, 505 Mich lxxiv (2020), and Administrative Order No. 2020-18, 505 Mich lxxxviii
(2020), did not apply to the one-year-back rule. We reverse and remand to the trial court for further
proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
This first-party case under the no-fault act, MCL 500.3101 et seq., arises out of a motor
vehicle accident, in which defendant’s insured sustained bodily injuries requiring treatment. There
is no dispute concerning the extent of the insured’s injuries, or the reasonable necessity of the
treatment provided by plaintiff. After treatment, the insured submitted four claims for service
expenses:
1
Spine Specialists of Mich PC v Esurance Prop & Cas Ins, unpublished order of the Court of
Appeals, entered March 24, 2022 (Docket No. 359154).
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September 30, 2019 = Claim for $46,000
January 7, 2020 = Claim for $350
February 11, 2020 = Claim for $350
March 10, 2020 = Claim for $350
Plaintiff filed suit on January 8, 2021, asserting claims for outstanding personal injury
protection (PIP) benefits and breach of contract, alleging that defendant only made partial payment
and refused to pay the remaining balance. Defendant moved for partial summary disposition under
MCR 2.116(C)(10), arguing that plaintiff’s claims for any expenses incurred before January 8,
2020, were barred under the one-year-back rule, MCL 500.3145(2). In response, plaintiff first
argued that AO 2020-3 and AO 2020-18 tolled the one-year-back rule, and, when including the
tolled portion under the administrative orders, its complaint was timely as to all claims. Second,
a genuine issue of material fact existed regarding whether the tolling provision in MCL
500.3145(3) applied to the one-year-back rule, rendering summary disposition inappropriate.
Plaintiff argued that defendant failed to produce any evidence of a formal denial of the insured’s
claims, which would have ended the tolling period of MCL 500.3145(3). Thus, plaintiff argued,
because there was no formal denial, the period remained tolled until plaintiff filed its complaint.
Defendant replied, arguing that neither the administrative orders nor the tolling provision in MCL
500.3145(3) applied to the one-year-back rule because it was a damages-limiting provision, not a
statute of limitations. After a hearing, the trial court granted defendant’s motion for partial
summary disposition, and dismissed plaintiff’s claims for expenses incurred before January 8,
2020. The trial court denied plaintiff’s motion for reconsideration, and plaintiff now appeals.
II. ANALYSIS
Plaintiff argues that the trial court erred when it determined that the tolling provision of
MCL 500.3145(3) did not apply to the damages-limiting provision of MCL 500.3145(2). We
agree.
“We review de novo a trial court’s ruling on a motion for summary disposition.”
Encompass Healthcare, PLLC v Citizens Ins Co, ___ Mich App ___, ___; ___ NW2d ___ (2022)
(Docket No. 357225); slip op at 3. “A motion under [MCR 2.116(C)(10)] tests the factual
sufficiency of the complaint.” Candler v Farm Bureau Mut Ins Co of Mich, 321 Mich App 772,
777; 910 NW2d 666 (2017) (quotation marks and citation omitted). A trial court, in evaluating a
motion for summary disposition under MCR 2.116(C)(10), “considers affidavits, pleadings,
depositions, admissions, and other evidence submitted by the parties in the light most favorable to
the party opposing the motion.” Id. (quotation marks and citation omitted).
Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine
issue regarding any material fact and the moving party is entitled to judgment as a
matter of law. 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. [West v Gen Motors Corp, 469 Mich 177, 183; 665
NW2d 468 (2003).]
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“Issues of statutory interpretation are questions of law that this Court reviews de novo.”
Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich, 492 Mich 503, 515; 821 NW2d 117
(2012).
The proceedings below occurred, and the parties’ briefs on appeal were submitted, before
this Court issued a published decision on this issue. The parties’ arguments therefore need not be
discussed in detail because there is now published caselaw directly on point. “The goals of
Michigan’s no-fault insurance system include promptly compensating victims of motor vehicle
accidents for covered losses and reducing the need for litigation.” Encompass Healthcare, PLLC,
___ Mich App at ___; slip op at 1. “When an insurer denies a claim, the one-year-back rule serves
another goal by encouraging claimants to file suit when the evidence is fresh, limiting recovery for
improperly denied claims to losses incurred during the year before the action is filed.” Id.
The no-fault act was amended by 2019 PA 21, and MCL 500.3145 now states, in relevant
part:
(1) An action for recovery of personal protection insurance 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 or unless the insurer has previously made a payment of personal
protection insurance benefits for the injury.
(2) Subject to subsection (3), if the notice has been given or a payment has
been made, the action may be commenced at any time within 1 year after the most
recent allowable expense, work loss, or survivor’s loss has been incurred.
However, the claimant may not recover benefits for any portion of the loss incurred
more than 1 year before the date on which the action was commenced.
(3) A period of limitations applicable under subsection (2) to the
commencement of an action and the recovery of benefits is tolled from the date of
a specific claim for payment of the benefits until the date the insurer formally denies
the claim. This subsection does not apply if the person claiming the benefits fails
to pursue the claim with reasonable diligence. [Emphasis added.]
“The central difference between the pre and post-amendment MCL 500.3145 is the
insertion of the phrase ‘until the date the insurer formally denies the claim.’ ” Encompass
Healthcare, PLLC, ___ Mich App at ___; slip op at 6. In Encompass Healthcare, PLLC, this
Court concluded: “[T]hese amendments to MCL 500.3145, particularly the addition of Subsection
(3), act to supersede our Supreme Court’s ruling in Devillers [v Auto Club Ins Ass’n, 473 Mich
562; 702 NW2d 539 (2005)] and return the state of law to that provided in Lewis [v DAIIE, 426
Mich 93, 101-102; 393 NW2d 167 (1986),] and its progeny.” Encompass Healthcare, PLLC, ___
Mich App at ___; slip op at 6-7. “Critically, the tolling exception adopted in MCL 500.3145(3) is
identical to that embraced in the cases overruled, demonstrating the Legislature’s intent to impose
a tolling exception to the one-year-back rule in the form it existed before Devillers.” Id. at ___;
slip op at 7. This Court ultimately held that “because Citizens Insurance Company never formally
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denied Encompass Healthcare, PLLC’s requests for reimbursement, the application of the one-
year-back rule remained tolled until this lawsuit was filed.” Id. at ___; slip op at 1.
Simply put, Encompass Healthcare, PLLC stands for the proposition that “the one-year-
back period is tolled until the date of the insurer’s formal denial of a claim.” Id. In this case, while
defendant submitted proof of its formal denial of the insured’s claims in its appendix on appeal,
the denial was not part of the record before the trial court. “This Court’s review is limited to the
record established by the trial court, and a party may not expand the record on appeal.” Sherman
v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002). Therefore, this Court may
not consider the formal denial when reviewing this case. The case, as it stood before the trial court,
had no evidence of a formal denial of the insured’s claims. Therefore, under Encompass
Healthcare, PLLC, the one-year-back rule continued to be tolled until plaintiff filed suit on January
8, 2021, rendering all of its claims timely.
Lastly, even if this Court were to consider the formal denial, which occurred on March 24,
2020, plaintiff’s complaint was still timely for all claims. Plaintiff’s oldest claim was for
September 30, 2019. Under MCL 500.3145(3), the one-year-back rule was tolled from September
30, 2019, the date the oldest claim accrued, to March 24, 2020, the date defendant formally denied
the insured’s claims, a total of 176 days. This would render plaintiff’s complaint due on March
24, 2021, for its earliest claim. Plaintiff filed suit on January 8, 2021, well within the time frame
required. Therefore, to the extent that defendant may move for summary disposition again and
actually provide the formal denial to the trial court, the outcome would not change.
Finally, we decline to consider defendant’s cursory argument plaintiff failed to pursue its
claims with reasonable diligence, thus negating the application of the tolling provision of MCL
500.3145(3), because defendant failed to provide legal support for, and thus abandoned, this
argument. “An appellant may not merely announce a position then leave it to this Court to discover
and rationalize the basis for the appellant’s claims; nor may an appellant give an issue only cursory
treatment with little or no citation of authority.” Cheesman v Williams, 311 Mich App 147, 161;
874 NW2d 385 (2015).
Because this issue warrants reversal, plaintiff’s second argument concerning our Supreme
Court’s administrative orders need not be addressed. However, we note that this Court recently
addressed this issue in Wenkel v Farm Bureau Gen Ins Co, ___ Mich App ___; ___ NW2d ___
(2022) (Docket No. 358526), in which we held the administrative orders did not apply to the one-
year-back rule. Id. at ___; slip op at 4-5.
III. CONCLUSION
We reverse the trial court and remand to that court for further proceedings consistent with
our opinion. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Mark T. Boonstra
/s/ Michael J. Riordan
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