Morgan v. Citizens Insurance Co. of America

Levin, J.

The principal question presented is whether plaintiff William Morgan’s no-fault automobile insurer, defendant Citizens Insurance Company of America, is relieved of responsibility under § 3109(1)1 of the no-fault automobile liability act for the payment of medical expenses incurred by Morgan in a nonmilitary hospital if Morgan could have obtained the medical service without charge at a military hospital.

The no-fault act preserves to the injured person a choice of medical service providers. Section 3109(1) does not deprive an injured person, who may be eligible to obtain service in kind in a military hospital, of such choice of medical service providers.

The purpose of § 3109(1) is to eliminate duplicative benefits provided or required to be provided under federal or state law and thereby reduce the cost of no-fault automobile insurance. Because of differences in quality and service, medical service provided in kind by a governmental source may not be duplicative of medical service obtainable in the private sector with the no-fault medical expense benefit.

i

William Morgan was injured in an automobile accident on his way to National Guard training. Citizens is the no-fault insurer. Morgan’s initial medical expenses were paid by the federal govern*644ment because he was on military service when the accident occurred.

Nine months after the accident, Morgan experienced pain, sought treatment at a nonmilitary hospital, and was advised to undergo surgery for a ruptured disc. He did so, and incurred medical expense exceeding $10,000. Morgan sought payment of this expense by Citizens. Citizens refused and Morgan commenced this action. During the pendency of this litigation, he submitted bills for this expense to the National Guard, which denied payment.

The circuit judge granted Citizens’ motion for summary disposition on the basis of § 3109(1) of the no-fault act which requires that benefits provided or required to be provided under the laws of the federal government be subtracted from the benefits otherwise payable by the no-fault insurer.

The judge declared that Morgan did not have the option under the act of obtaining nonemergency medical care in a nonmilitary hospital and seeking payment from a no-fault insurer when the federal government is required by law to provide the medical service at a military hospital. He also said that Morgan failed to show that he used reasonable efforts to obtain repayment from the federal government of the expense he had incurred at a nonmilitary hospital.

The Court of Appeals in affirming observed that in Crowley v DAIIE, 428 Mich 270; 407 NW2d 372 (1987), this Court declared that amounts paid by the federal government for 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 under § 3109(1) to be subtracted from no-fault benefits otherwise pay*645able to the injured person.2 The Court also noted Perez v State Farm Mutual Automobile Ins Co, 418 Mich 634; 344 NW2d 773 (1984), where this Court ruled that benefits required to be paid to a worker injured in a motor vehicle accident as workers’ compensation, but which will not be paid because the employer did not have workers’ compensation coverage, are not required under § 3109(1)3 to be subtracted from no-fault work-loss benefits. The Court of Appeals said that in Perez the workers’ compensation benefits "were unavailable to the plaintiffs.”4 The Court of Appeals also found significant this Court’s decision in Gregory v Transamerica Ins Co, 425 Mich 625, 634-636; 391 NW2d 312 (1986), where the Court held that the workers’ compensation disability benefits payable for the full period of disability rather than the lesser amount paid in redemption of the insurer’s liability to pay such benefits should be subtracted from the amount of the no-fault benefits payable to a worker injured in an automobile accident during the course of his employment.

The Court of Appeals interpreted the decisions of this Court 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.”5 The Court said that Morgan might have been entitled to medical benefits provided by the military if he had received treatment at a military hospital. He did not have a choice of having nonemergency surgery performed at a nonmilitary hospital and seeking payment by the no-fault insurer. The Court of Appeals declared that *646to allow recovery from Citizens "would defeat the purpose of the setoff provision by allowing plaintiff to choose which insurance would pay for his medical treatment.”6

ii

We agree with the Court of Appeals that Morgan did not have the option under the no-fault act of choosing "which insurance would” pay his medical expense. If federal law obliged the federal government to pay or reimburse Morgan for the expense of his medical treatment in a nonmilitary hospital, Citizens was not, by reason of § 3109(1), obliged to do so.

We do not agree, however, with the Court of Appeals or the circuit judge that Morgan was precluded from seeking payment of expense incurred in a nonmilitary hospital simply because he could have had the surgical procedure performed in a military hospital.

The act speaks of benefits provided or required to be provided under the laws of any state or the federal government, and states that such benefits shall be subtracted from the benefits otherwise payable for the injury.7 The benefits required to be subtracted are generally dollar amounts. When § 3109(1) has heretofore been invoked, the benefits sought to be deducted generally were dollar benefits.8 Section 3109(1) requires the subtraction of *647governmental dollar benefits from the dollar amount of no-fault benefits—governmental benefit dollars from no-fault insurer dollars.

A person injured in an automobile accident is not required under §3109(1) to avail himself of whatever medical service in kind a governmental source may provide.9 Governmental medical service may not be comparable in quality and service with the doctor or hospital service that the injured person purchased or may be able to purchase with the no-fault dollar. Hospitals and doctors are not fungible. There are good hospitals and some that are not, good doctors and some that are not. The Legislature did not intend that however legitimate the injured person’s concern regarding the quality of the governmental service in kind—even if the medicine practiced at the hospital or the doctor is questionable, debatable, or notoriously bad—it is nevertheless a benefit as a matter of law within the meaning of § 3109(1).

The no-fault act preserves to injured persons a *648reasonable choice of hospitals and physicians although this may add to the premium cost of no-fault insurance. The no-fault insurer cannot, in the name of reducing the premium cost, require an injured person to obtain medical service from a particular provider.10

Section 3109(1) does not mandate the offset of all governmentally provided benefits, only duplicative benefits:11

The history of § 3109(1) indicates that the Legislature’s intent was to require a set-off of those government benefits that duplicated the no-fault benefits payable because of the accident and thereby reduce or contain the cost of basic insurance. [O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 544; 273 NW2d 829 (1979). Emphasis added.][12]

It is by the offsetting of duplicative benefits that § 3109(1) "thereby reduce[s] or contain[s] the cost of basic insurance.” (Emphasis added.) It is not within the purpose of § 3109(1) to require the offset of governmental benefits that are not duplicative.

A surgical procedure performed in a military hospital may not, because of differences in quality and service, be duplicative of the medical service that an injured person could obtain and pay for with the no-fault medical expense benefit through the exercise of the choice in medical service providers preserved to injured persons under the no-fault act._

*649III

Citizens asserts alternatively that Morgan might have obtained payment by the federal government of the cost of the medical services had he applied formally for such payment. Citizens filed with its motion for summary disposition the affidavit of a captain stating that he was familiar with Morgan’s claim for medical expenses allegedly resulting from the automobile accident; that at the time of the alleged injury Morgan was in the line of duty, thereby entitling him to payment of medical expenses if he complied with all applicable Army and National Guard regulations; and that his claim for medical expenses was denied by the National Guard for two reasons: (a) nonemergency medical care in a civilian medical facility is not authorized without written or verbal authorization from the chief, National Guard Bureau, or his designee, and such authorization had not been asked for or granted; (b) medical documentation indicating that the automobile accident was the cause of the herniated disc had not been furnished.

Morgan filed an affidavit stating that he was admitted to a hospital nine months after the automobile accident and was told he needed an operation to remove a disc in his neck, that he spoke to a staff sergeant about the operation who called back later stating that the military would not pay for the operation because it was elective surgery. There was attached to the affidavit a communication from a colonel in an Army personnel center located in Virginia repeating that the request for medical claim payment was denied for the reasons stated in the affidavit of the captain filed by Citizens.

It appears that Morgan had been advised to have an operation by a physician and desired to do *650so. It is unclear what would have been involved in formally requesting payment by the federal government of the medical expense incurred in having the operation performed by the surgeon Morgan chose in the nonmilitary hospital he chose. It is unclear what delays would have occurred or whether the request would have been granted. The Legislature did not impose under § 3109(1) on injured persons the burden of obtaining authorization from a governmental source before proceeding with medical treatment that the injured person has been advised by his physician is necessary.

The injured person is, however, obliged to submit a request for payment from the governmental source and provide whatever documentation may reasonably be required. The no-fault insurer has the burden of establishing that had he done so benefits would have been paid or payable.

Reversed and remanded to the circuit court for further proceedings consistent with this opinion.

Cavanagh, Archer, and Griffin, JJ., concurred with Levin, J.

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. [MCL 500.3109(1); MSA 24.13109(1).]

Morgan v Evans, 163 Mich App 115; 413 NW2d 747 (1987).

See n 1 for text of § 3109(1) requiring the subtraction of benefits provided under the laws of any state or the federal government.

Morgan, supra, p 118.

Id., p 119.

Id.

The "required to be provided” clause and the term "subtracted” have no bearing on whether a service in kind is a "benefit” within the meaning of § 3109(1).

See O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979) (social security survivors benefits); Mathis v Interstate Freight, 408 Mich 164; 289 NW2d 708 (1980) (workers’ compensation benefits); LeBlanc v State Farm Mutual Automobile Ins Co, 410 Mich 173; 301 NW2d 775 (1981) (medicare benefits); Jarosz v *647DAIIE, 418 Mich 565; 345 NW2d 563 (1984) (social security old age benefits); Thompson v DAIIE, 418 Mich 610; 344 NW2d 764 (1984) (social security disability benefits received by dependents); Gregory v Transamerica Ins Co, 425 Mich 625; 391 NW2d 312 (1986) (amount paid pursuant to a redemption of workers’ compensation benefits).

See also Crowley v DAIIE, 428 Mich 270; 407 NW2d 372 (1987) (amounts paid by the federal government for or medical care furnished a member of the armed forces).

We express no opinion whether an injured person who has contracted for a reduced premium under § 3109a (MCL 500.3109a; MSA 24.13109[1]), and thus has voluntarily agreed that other insurance will be primary for medical benefits, may seek recovery from a no-fault insurer unless he was unable to obtain medical care from a facility designated, pursuant to the contract with the primary insurer, by the primary insurer.

Similarly, we express no opinion whether, if Morgan contracted for a reduced premium under § 3109a on the basis of medical benefits available through his employment by the federal government, he voluntarily agreed that such benefits would be primary and may not seek recovery from Citizens unless he was unable to obtain medical care from a facility designated by the federal government which, in that hypothesis, has or may have, in effect, become the primary insurer for the purpose of coordination under § 3109a.

But see n 9 concerning § 3109a.

If the injured person accepts service in kind, he cannot be heard to say that it is not a duplicative benefit.

See also Jarosz v Detroit Automobile Inter-Ins Exchange, 418 Mich 565, 578; 345 NW2d 563 (1984); Perez v State Farm Mutual Automobile Ins Co, 418 Mich 634, 641; 344 NW2d 773 (1984).