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
LISA GIRIMONTE, FOR PUBLICATION
November 9, 2023
Plaintiff-Appellant, 9:00 a.m.
v No. 362128
Macomb Circuit Court
LIBERTY MUTUAL INSURANCE COMPANY, LC No. 2020-002185-NF
Defendant-Appellee,
and
ALLSTATE PROPERTY AND CASUALTY
INSURANCE COMPANY,
Defendant.
Before: CAVANAGH, P.J., and RIORDAN and PATEL, JJ.
RIORDAN, J.
Plaintiff, Lisa Girimonte, appeals as of right the trial court’s order dismissing her claim for
personal protection insurance (PIP) benefits under the no-fault act, MCL 500.3101 et seq. For the
reasons set forth, while we agree with the legal reasoning of the trial court, we vacate its order
dismissing this case and remand to that court for further proceedings.
I. BACKGROUND FACTS
In October or November 2016, plaintiff was a passenger on a motorcycle being driven in
Detroit by Robert Saxman when a collision occurred between the motorcycle and a car. Plaintiff
alleges that she sustained serious injuries in the accident. At the time of the accident, Saxman had
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a no-fault policy issued by Allstate Property and Casualty Insurance Company, while plaintiff had
one issued by defendant, Liberty Mutual Insurance Company.1
Defendant began paying plaintiff’s medical expenses in 2016. At some point, however, a
dispute arose with respect to plaintiff’s entitlement to PIP and underinsured-motorist benefits, and
whether defendant or Allstate was the insurer primarily responsible for paying such benefits.
Plaintiff thus sued defendant and Allstate in 2019.2 In that case, defendant filed a motion for
summary disposition, asserting that Allstate was the primary insurer, and seeking dismissal on that
basis. Plaintiff and defendant were apparently in agreement on that point, and stipulated to dismiss
defendant without prejudice in March 2020. The trial court later dismissed the case without
prejudice in January 2021.
Plaintiff filed the present lawsuit against Allstate in June 2020. Plaintiff did not initially
name defendant as a party, but instead filed a motion with the trial court in the previous case asking
it to reinstate the case with respect to defendant; the court denied that motion and plaintiff’s motion
for reconsideration. Plaintiff, with Allstate’s concurrence, successfully moved the trial court to
amend her complaint in this case to add defendant as a party. After discovery, Allstate successfully
moved for summary disposition.
Defendant moved for partial summary disposition, arguing that, under MCL 500.3145,
plaintiff was barred from recovering PIP benefits for expenses incurred more than one year before
the filing of her first amended complaint that named defendant as a party.3 Defendant contended
that because plaintiff filed her amended complaint naming defendant on June 16, 2021, the one-
year-back rule barred her claim for PIP benefits for expenses incurred before June 16, 2020.
Plaintiff responded by asserting that MCL 500.3145(3), which was added as part of several
amendments to the no-fault act in 2019, see 2019 PA 21, provides that the one-year-back rule is
tolled beginning on the date a claim for PIP benefits is made and does not resume running until an
insurer “formally denies the claim.”4 Plaintiff further asserted that the one-year-back period
remained tolled because there had been no formal denial of her claim, and thus the one-year-back-
rule did not bar her claim for PIP benefits in the instant case.
1
Both Allstate and Liberty Mutual were named as defendants in this case. However, Allstate has
neither appeared before this Court nor filed a brief. The issue presented does not concern Allstate,
and neither party has raised any issue having any connection to Allstate and its dismissal from this
case. References to “defendant” will refer solely to defendant-appellee, Liberty Mutual.
2
As discussed below, that lawsuit was a separate one, filed before this case.
3
This rule is often referred to as the “one-year-back rule.”
4
On appeal, defendant does not contend that it issued a “formal” denial sufficient to restart the
one-year-back-rule clock in this matter. Instead, it simply argues that previous version of the
statute, in which the tolling provision did not appear, should apply. Defendant did raise the issue
in its reply brief in support of its motion for partial summary disposition (relying on a denial of
one specific category of services, but not all of them), but has since apparently abandoned it, or,
at the very least, appears to tacitly concede it for purposes of this appeal.
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Defendant filed a reply brief in which it asserted that the current version of the statute was
not effective until after plaintiff sustained her injuries, and thus that the former version, which did
not have the tolling provision, applied instead, rendering plaintiff’s claim for any PIP benefits
pertaining to expenses incurred before June 16, 2020, untimely.
The trial court granted defendant’s motion. The trial court premised its ruling on its
conclusion that the amended version of MCL 500.3145 could not be applied retrospectively “since
the Legislature did not make clear its intention that the amendment . . . apply retroactively and the
amendment affects the parties [sic] substantial rights. Further, retroactive application . . . would
impose a new legal obligation on [defendant] that did not exist prior to the amendment . . . .” The
trial court reasoned that defendant had “substantive rights” to deny coverage and “to deny claims
incurred more than one year before” the filing of a complaint.
Defendant later filed a motion for summary disposition with respect to the remaining issues
in the case, on the grounds that discovery established that there were no outstanding claims for
benefits, and no expenses incurred after June 16, 2020, the date through which the trial court
granted partial summary disposition on the basis of the one-year-back rule. The trial court granted
that motion. The trial court later entered a stipulated order that dismissed this case with prejudice.
II. STANDARD OF REVIEW
“This Court reviews de novo a trial court’s decision to grant or deny summary disposition
under MCR 2.116(C)(10).” Mazzola v Deeplands Dev Co LLC, 329 Mich App 216, 223; 942
NW2d 107 (2019). “A motion under MCR 2.116(C)(10) . . . tests the factual sufficiency of a
claim.” El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019)
(emphasis omitted). “When considering such a motion, a trial court must consider all evidence
submitted by the parties in the light most favorable to the party opposing the motion.” Id. “A
motion under MCR 2.116(C)(10) may only be granted when there is no genuine issue of material
fact.” Id. “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).
“Issues involving statutory interpretation present questions of law that are reviewed de
novo.” Le Gassick v Univ of Mich Regents, 330 Mich App 487, 495; 948 NW2d 452 (2019).
III. DISCUSSION
The parties agree that the sole issue before this Court is whether the current version of
MCL 500.3145, as amended by 2019 PA 21, or the pre-amendment version, applies here. Plaintiff
argues that the current version applies because the instant case was commenced after the effective
date of the amendment. Defendant argues that the pre-amendment version applies because the
accident occurred before the effective date of the amendment, and the amendment does not apply
retroactively. For the reasons set forth, we agree with the trial court and defendant that the
amendment to MCL 500.3145 does not apply retroactively. However, because that conclusion
does not necessarily result in defendant entirely prevailing, we vacate the trial court’s order and
remand to that court for further proceedings.
Previously, MCL 500.3145(1) provided, in relevant part:
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An action for recovery of personal protection insurance benefits payable
under this chapter for accidental bodily injury may not be commenced later than 1
year after the date of the accident causing the injury unless written notice of injury
as provided herein 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. 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. . . .
In Joseph v Auto Club Ins Ass’n, 491 Mich 200; 815 NW2d 412 (2012), our Supreme Court
explained that the second and third sentences of MCL 500.3145(1) set forth the “one-year-back
rule,” which provides that “recovery is limited only to losses that have been incurred during the
year before the filing of the action.” Id. at 203, 208. Before 2019, the one-year-back rule did not
include “a judicial tolling mechanism.” See Devillers v Auto Club Ins Ass’n, 473 Mich 562, 566;
702 NW2d 539 (2005).
MCL 500.3145 was amended by 2019 PA 21, effective June 11, 2019, and currently
provides, in relevant part:
(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.
In Encompass Healthcare, PLLC v Citizens Ins Co, ___ Mich App ___, ___; ___ NW2d
___ (2022) (Docket No. 357225); slip op at 6-7, this Court explained that the amendments to MCL
500.3145 “act to supersede our Supreme Court’s ruling in Devillers” and thus “impose a tolling
exception to the one-year-back rule.” “Now, the one-year-back period is tolled until the date of
the insurer’s formal denial of a claim.” Id. at___; slip op at 1.
Resolving this appeal involves the interplay between Encompass Healthcare and Spine
Specialists of Mich, PC v MemberSelect Ins Co, ___ Mich App ___; ___ NW2d ___ (2023)
(Docket No. 358296). In Encompass Healthcare, the injured party received medical treatment
from June to October 2018, and a lawsuit was filed in November 2019 regarding whether that
treatment should be reimbursed by the defendant. Encompass Healthcare, ___ Mich App at __;
slip op at 2. The plaintiff, which sought reimbursement, “conceded that its expenses were incurred
more than a year before it initiated this action, but argued that reimbursement was nevertheless
warranted because of the recently adopted tolling provision within MCL 500.3415(3).” Id. at ___;
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slip op at 2. The plaintiff reasoned that “because [the defendant] never formally denied its
reimbursement claims, the one-year-back rule remained tolled and [the plaintiff] was not required
to preserve its claims with an earlier complaint.” Id. at ___; slip op at 2. The defendant responded
that “the circuit court correctly determined that the EORs [explanations of review] constituted
formal denials under MCL 500.3145(3), thereby ending the tolling period for each reimbursement
claim.” Id. at ___; slip op at 4. This Court agreed with the plaintiff, stating that “[t]he EORs
included no language clearly stating that the claims were denied, at least not with the finality and
clarity required to end the tolling period.” Id. at ___; slip op at 7. Thus, this Court concluded that
“the application of the one-year-back rule remained tolled until this lawsuit was filed,” thereby
apparently allowing the plaintiff to recover for all of the claimed medical treatment. Id. at ___;
slip op at 1. In a footnote, this Court stated as follows:
The no-fault act, MCL 500.3103 et seq., was substantially amended by 2019
PA 21, effective June 11, 2019. Because Encompass’s complaint was filed after
these amendments took effect, this case is governed by the newly adopted statutory
language. See George v Allstate Ins Co, 329 Mich App 448, 451 n 3; 942 NW2d
629 (2019) (“This case was commenced before the [2019] amendment[s] and,
therefore, it is controlled by the former provisions of the no-fault act.”). [Id. at ___;
slip op at 2 n 1.]
In Spine Specialists, the plaintiff sought reimbursement from the defendant for medical
treatment provided to the injured party in April and May 2019. Spine Specialists, ___ Mich App
at ___; slip op at 3. The plaintiff filed its complaint in September 2020. Id. at ___; slip op at 3.
This Court concluded that the plaintiff could not recover for any of the claimed medical treatment,
reasoning as follows:
In the absence of any Legislative statement of retroactive application, and
in light of the presumption against retroactive application of a statutory amendment,
the trial court in this case correctly determined that the amendment to MCL
500.3145 does not apply retroactively. . . .
***
In this case, the loss was incurred when [the injured party] received medical
treatment from plaintiff in April-May 2019, and the claims for those services
accrued at that time. [See MCL 500.3110(4).] The law in effect at the time the
claims accrued was the pre-amendment version of MCL 500.3145; the amended
version of the statute did not take effect until June 11, 2019, and does not apply
retroactively. The trial court therefore did not err by applying the pre-amendment
version of MCL 500.3145 to plaintiff’s April-May 2019 claims and granting
defendant summary disposition of those claims. [Id. at ___; slip op at 4-5 (citations
omitted).]
At first glance, Encompass Healthcare and Spine Specialists appear to be conflicting
because the former case apparently allowed the plaintiff to recover for claimed medical expenses
incurred between June and October 2018, notwithstanding that the action was not commenced
until November 2019, more than one year after the expenses were incurred. In this regard, footnote
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one of Encompass Healthcare suggests that, when an action is commenced on or after June 11,
2019, the amendment to MCL 500.3145 applies to all claimed medical expenses in that action. On
the other hand, however, Spine Specialists held that claims for medical expenses accrue when they
are actually incurred, and because the amendment to MCL 500.3145 does not apply retroactively,
such claims that accrue before June 11, 2019, are not subject to the current version of the statute.
“ ‘If at all possible, the opinions [perceived as conflicting] should be harmonized.’ ” In re
Simpson, 500 Mich 533, 568 n 64; 902 NW2d 383 (2017), quoting Garner et al., The Law of
Judicial Precedent (2016), p. 300. We conclude that Encompass Healthcare and Spine Specialists
may be harmonized by interpreting Encompass Healthcare as deciding the meaning of “formally
denies” in the current version of MCL 500.3145, whereas Spine Specialists decided that the tolling
provision in the current version of MCL 500.3145 does not apply to expenses that are incurred
before June 11, 2019, because the amendment does not apply retroactively. In this regard, we find
the analysis of Health Partners, Inc v Progressive Mich Ins Co, unpublished per curiam opinion
of the Court of Appeals, issued March 9, 2023 (Docket No. 359096), persuasive:5
The issue in this case is whether Health Partners can rely on the tolling provision
added in the amended version of § 3145, even though the bills were incurred before
the effective date of the amendment.
This Court recently resolved this issue in Spine Specialists, and held that
the amendments to § 3145 do not apply retroactively to claims that accrued before
June 10, 2019, the effective date of the amendments. . . .
Spine Specialists is directly applicable to the facts of this case and is
binding. See MCR 7.215(C)(2). The pre-amendment version of § 3145 applies to
the claims at issue here, which were incurred from December 2017 through March
10, 2019. Plaintiff cannot rely on the tolling provision in the amended statute and
the at-issue claims are time barred.
Health Partners argues that this Court should not apply Spine Specialists,
and, instead, relies on Encompass Healthcare for the proposition that the amended
statute applies to losses incurred before June 10, 2019. Because Encompass
Healthcare was released prior to Spine Specialists, Health Partners argues that it
should control the outcome of this case. We disagree.
Encompass Healthcare, like Spine Specialists, and this case, dealt with
medical care provided before June 10, 2019 (the effective date of the amended
statute), the one-year-back rule, and the amended version of § 3145. The
distinction, however, is that the parties in Encompass Healthcare did not dispute
that the amended statute—with the tolling provision—applied. . . . Because the
parties did not raise it, this Court never reached the issue of retroactive application
of the amended statute in Encompass Healthcare. Instead, the parties disputed, and
5
“Unpublished opinions are . . . not binding authority but may be persuasive or instructive.”
Haydaw v Farm Bureau Ins Co, 332 Mich App 719, 726 n 5; 957 NW2d 858 (2020).
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this Court decided, whether the defendant had “formally denied” the plaintiff’s
claims. This Court held that the claims were never formally denied because the
defendant “did not provide the explicit and unequivocal expression of finality
required to constitute formal denials[.]” This Court concluded that, because there
was never a formal denial, the one-year-back rule was tolled.
Unlike the parties in Encompass Healthcare, the parties in Spine Specialists
did raise the issue of whether the amended statute applies retroactively. We are
bound by that decision. [Id. at 4 (citations omitted).]
Accordingly, we agree with the trial court and defendant that the amendment to MCL
500.3145 does not apply retroactively.6 That is, under Spine Specialists, the tolling provision in
the current version of MCL 500.3145 does not apply to expenses that are incurred before June 11,
2019. However, under MCL 500.3110(4), expenses that are incurred on or after that date may be
subject to the tolling provision because the no-fault act treats each expense as a newly accrued
claim.7 To the extent that the trial court concluded that the amendment to MCL 500.3145 does not
apply retroactively, we affirm its reasoning.
Nonetheless, we cannot simply affirm the trial court in its entirety because the record is
unclear whether any of plaintiff’s claimed medical expenses were incurred on or after June 11,
2019, the effective date of 2019 PA 21.8 Therefore, we vacate the trial court’s order dismissing
this case and remand to that court for further proceedings regarding whether any of plaintiff’s
6
In Andary v USAA Casualty Ins Co, ___ Mich App ___; ___ NW2d ___ (2022) (Docket No.
356487) (Andary I), aff’d in part and rev’d in part on other grounds ___ Mich ___; ___ NW2d ___
(2023) (Docket No. 164772) (Andary II), this Court held that 2019 PA 21’s amendment of MCL
500.3157(7) and (10), which caps attendant-care expenses and imposes new fee schedules for
certain services, was not to be applied retroactively. Andary I, ___ Mich App at ___; slip op at 11.
Our Supreme Court affirmed this Court’s holding on that point. Andary II, ___ Mich at ___; slip
op at 41. Both cases explicitly state that the issue before both this Court and the Supreme Court
was the retroactivity, or lack thereof, of the amendments of MCL 500.3157(7) and (10), as opposed
to 2019 PA 21 in its entirety. See Andary I, ___ Mich App at ___, ___; slip op at 3, 11; Andary
II, ___ Mich at ___, ___; slip op at 8, 41. Thus, neither Andary I nor Andary II controls the
outcome of this case, although we note that our conclusion that the amendment to MCL 500.3145
is not retroactive is consistent with those cases.
7
MCL 500.3110(4) provides that “[p]ersonal protection insurance benefits payable for accidental
bodily injury accrue not when the injury occurs but as the allowable expense, work loss or
survivors’ loss is incurred.” In other words, “an expense is incurred or a patient becomes liable
when an agreement to pay is executed and treatment is received.” Bronson Health Care Group,
Inc v USAA Cas Ins Co, 335 Mich App 25, 35-36; 966 NW2d 393 (2020) (emphasis omitted).
8
We note that defendant represented in ¶ 3 of its October 5, 2021 motion for partial summary
disposition that “[t]he time period being claimed by Plaintiff is April 12, 2018 through November
18, 2019.” The basis for that representation is not immediately clear.
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claimed medical expenses were incurred on or after that date, which would render them subject to
the current version of MCL 500.3145.
IV. CONCLUSION
We vacate the trial court’s order dismissing this case and remand to that court for further
proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Michael J. Riordan
/s/ Mark J. Cavanagh
/s/ Sima G. Patel
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