Yerkovich v. AAA

Kelly, J.

(dissenting). I would affirm the Court of Appeals decision. The trial court correctly granted summary disposition in favor of plaintiff Yerkovich and against defendant aaa. The no-fault insurance act1 requires defendant AAA to pay plaintiff’s medical expenses.

i

Because the fund is an employee benefits plan under the Employee Retirement Income Security Act *743(ERISA),2 federal law preempts any state law that applies to insurance in general. Sibley v DAIIE, 431 Mich 164, 170; 427 NW2d 528 (1988). If an ERISA plan grants its administrators complete discretion to interpret the terms of the plan agreement, their interpretation is reviewed under an “arbitrary and capricious” standard. Firestone Tire & Rubber Co v Bruch, 489 US 101, 114; 109 S Ct 948; 103 L Ed 2d 80 (1989). Here, the fund’s plan agreement did grant its administrators complete discretion in construing its terms. Michigan United Food and Commercial Workers Unions and Food Employers Health and Welfare Plan, dated April 1, 1993, § 2.

On the basis of the standard enunciated in Firestone and the principles of federal preemption under the Supremacy Clause,3 I would defer to the fund’s interpretation of its own agreement. Language in the first agreement required plaintiff to sign any documents needed to protect the fund’s subrogation rights. This language could be interpreted to require her to sign the second agreement at the time she did. The preexisting duty rule would not preclude enforcing the second agreement.

Instead of picking apart the plan’s interpretation of its agreement, I would analyze this case according to the schema of the no-fault insurance act, MCL 500.3101 et seq.-, MSA 24.13101 et seq.

n

Under the no-fault act, a no-fault insurer must provide “all reasonable charges incurred for reasonably *744necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” MCL 500.3107(l)(a); MSA 24.13107(1)0). The act allows an insured party to elect coordinated coverage. MCL 500.3109a; MSA 24.13109(1). The insured pays a lower premium. In return, the no-fault carrier is secondarily responsible for certain expenses arising from an accident. The insured’s other insurer, such as a health insurer, becomes primarily responsible to the extent of the risk it contracted to cover. ACIA v Frederick & Herrud, Inc (After Remand), 443 Mich 358, 384, 390; 505 NW2d 820 (1993).

A coordinated benefits provision, like the one between plaintiff and the AAA, may lower the AAA’s responsibility for some expenses arising from an automobile accident, but it does not eliminate it. If the health insurer does not cover the full costs of medical expenses related to an automobile accident, the no-fault insurer is responsible for the balance. Transamerica Ins Co of America v IBA Health Life Assurance Co, 190 Mich App 190, 196; 475 NW2d 431 (1991).

The no-fault act is construed liberally in favor of persons intended to benefit from the act, those injured in automobile accidents. Reed v Citizens Ins Co, 198 Mich App 443, 451; 499 NW2d 22 (1993). “The act is designed to minimize administrative delays and factual disputes that would interfere with achievement of the goal of expeditious compensation of damages suffered in motor vehicle accidents.” Miller v State Farm Mut Automobile Ins Co, 410 Mich 538, 568; 302 NW2d 537 (1981).

Hence, defendant AAA agreed to cover any medical expenses arising from an automobile accident not covered by the insurance company primarily respon*745sible for medical expenses. Whether and how much of the medical expenses are covered is determined by the agreement between the insured and the other insurance company. Tousignant v Allstate Ins Co, 444 Mich 301, 312; 506 NW2d 844 (1993).

When an insured’s health insurance is an ERISA plan, sometimes the no-fault insurer is primarily responsible for medical expenses arising from an automobile accident. Frederick & Herrud, 443 Mich 390. As among the parties, defendant AAA is in the best position to calculate and cover the risk that arises when its insureds sign subrogation agreements, like the one at issue. It should not be heard to complain when they sign agreements with ERISA-based health insurers that strip it of the benefit of the bargain under the coordinated benefits provisions of the no-fault act.

CONCLUSION

Although plaintiff Yerkovich paid premiums for no-fault automobile coverage, she suffered unreasonable delay and expense in recovering her losses arising from an automobile accident. This delay is contrary to the no-fault act’s purpose of “expeditious compensation of damages suffered in motor vehicle accidents.” Miller, 410 Mich 568. The majority opinion’s approach to this case does not further the purpose of the act. To avoid the same delay to an insured in the future, and for the reasons set forth above, I would affirm the Court of Appeals decision. Defendant AAA should be required to compensate plaintiff for her medical expenses arising from her daughter’s automobile accident.

Young and Markman, JJ., took no part in the decision of this case.

MCL 500.3101 et seq.; MSA 24.13101 et seq.

29 USC 1001 et seq.

US Const, art VI.