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
UNIVERSITY NEUROSURGICAL ASSOCIATES, UNPUBLISHED
PC, d/b/a MICHIGAN HEAD & SPINE March 14, 2024
INSTITUTE,
Plaintiff-Appellant,
v No. 366131
Oakland Circuit Court
MICHIGAN ASSIGNED CLAIMS PLAN and LC No. 2022-194946-NF
MICHIGAN AUTOMOBILE INSURANCE
PLACEMENT FACILITY,
Defendants-Appellees.
Before: GARRETT, P.J., and RIORDAN and LETICA, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s opinion and order granting summary disposition
in favor of defendants, Michigan Assigned Claims Plan (MACP) and Michigan Automobile
Insurance Placement Facility (MAIPF), and precluding its recovery of benefits under the no-fault
act, MCL 500.3101 et seq.1 We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
In July 2022, plaintiff filed a complaint alleging that it provides medical, therapeutic, and
rehabilitative services from its business location in Southfield, Michigan. Plaintiff also asserted
that defendants are administrators charged with assigning an insurance carrier to provide no-fault
benefits to a claimant “if no personal protection insurance [PIP] applicable to the injury can be
1
Plaintiff does not dispute that the trial court’s ruling pertained to both defendants and correctly
closed the case. Accordingly, we do not address defendants newly-raised appellate claim
regarding the propriety of naming MACP.
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identified.”2 Plaintiff claimed that Justin Thorne was injured in an automobile accident on July 17,
2021. As a medical provider, plaintiff provided reasonably necessary medical services to Thorne.
Despite reasonable proof of loss by plaintiff, defendants allegedly failed to pay no-fault benefits
owed to plaintiff. Consequently, plaintiff sought reimbursement for the no-fault benefits as well
as applicable no-fault penalties.
More specifically, plaintiff alleged that, as a health care provider, it was entitled to pursue
a direct cause of action against an insurer and recover overdue benefits for products, services, or
accommodations to an injured person such as Thorne, citing MCL 500.3112. It was submitted that
these medical services totaling $71,582 were rendered to Thorne between July 18 and December 8,
2021. Despite plaintiff’s submission of proof of its services, it was claimed that defendants
unreasonably failed to make the required payment. The sole count raised was entitled “No Fault
Claims.” Plaintiff requested a court order that: defendants designate an insurance company or
“assignee” to process the claim arising from Thorne’s injuries and services; a judgment declaring
defendants liable to pay no-fault benefits; and a judgment for the services provided as well as costs,
penalty interest, and attorney fees. With the complaint, plaintiff submitted health insurance claim
forms prepared by plaintiff for services rendered to Thorne and submitted to defendants.
Defendants moved for summary disposition under MCR 2.116(C)(10). It was noted that
plaintiff filed the action seeking PIP benefits for medical services purportedly provided to Thorne
arising from injuries sustained in a motor vehicle accident on July 17, 2021. Thorne claimed that
he was driving a 2005 Grand Prix, insured by USAA, when he lost control because of a wet
roadway, causing the vehicle to strike two mailboxes and a tree. The Grand Prix was allegedly
registered to Kayla Hart, Thorne’s girlfriend and the woman with whom he resided. Thorne
testified that he leased a Ford F-150 that was also insured through USAA. Defendants claimed
that a certificate of insurance was obtained that proved Thorne was insured by USAA through a
policy that was in effect at the time of the accident. Under MCL 500.3172, a person may recover
PIP benefits through the MACP only if PIP benefits could not be identified. In the present case,
there was no genuine issue of material fact that an applicable policy of insurance was identified,
and therefore, defendants should be dismissed with prejudice.
In the accompanying brief, it was noted that Michigan caselaw determined that, where no
insurance policy applicable to the injury could be identified, a party would be entitled to benefits
through the MACP, MCL 500.3172. Alternatively, the MACP may be called upon to address
benefits where there is inadequate coverage from the insurers. Id. Defendants asserted that the
circumstances delineated in MCL 500.3172 were not present because, during his deposition,
Thorne acknowledged that he resided with his girlfriend, Hart, and she registered a 2005 Grand
Prix that was insured by USAA. Thorne also leased a Ford F-150 that was insured through USAA.
Accordingly, Thorne was insured under a policy of insurance at the time of the accident. It
governed the period of July 11, 2021 to January 11, 2022, and the accident occurred on July 17,
2021. Defendants claimed that plaintiff failed to present evidence that USAA was financially
2
Personal protection insurance benefits are also known as “first party” or “PIP” benefits. The
abbreviation PPI is generally used for property protection insurance benefits. See McKelvie v Auto
Club Ins Ass’n, 459 Mich 42, 44 n 1; 586 NW2d 395 (1998).
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unable to fulfill its obligation. Because Thorne had identifiable insurance coverage through
USAA, plaintiff could not maintain a claim against defendants.
Plaintiff filed a response in opposition to the dispositive motion. Plaintiff alleged that after
Thorne crashed the Grand Prix into mailboxes and a tree, he was treated at plaintiff’s facility for a
fracture that required a cervical diskectomy and fusion surgery. When no PIP policy applicable to
the injury could be identified, plaintiff submitted an application for benefits to defendants. Yet,
there was no assignment of the claim to a servicing insurer, and there was no reimbursement of
the claims. Although it was undisputed that Thorne sustained injuries while driving the Grand
Prix registered and insured by Hart, plaintiff claimed that defendants failed to prove that Thorne
was covered by a USAA policy. Under MCL 500.3114, there was no avenue for PIP benefits “to
non-relatives for individuals who [we]re not ‘named in the policy.’ ” A listed driver on a policy
did not equate with the individual being a named insured. In the present case, defendants only
produced a declarations page of a USAA policy naming Hart as the insured. Thorne was merely
listed as an “operator” on the insurance policy. Because defendants failed to produce a policy
naming Thorne as an insured, priority was established that Thorne receive benefits from
defendants under MCL 500.3172(1). Additionally, defendants failed to properly provide
documentary evidence to support summary disposition in their favor. In particular, the
declarations renewal page presented was not “conclusive evidence” that this policy constituted
identifiable no-fault insurance. Therefore, defendants’ motion had to be denied.
In reply, defendants noted that, although plaintiff claimed that defendants failed to produce
evidence of insurance, Thorne testified in his deposition that he had a policy of insurance with
USAA for his 2020 Ford F-150. Additionally, USAA issued a certificate of insurance that
identified both Hart and Thorne. Defendants submitted that plaintiff did not dispute the evidence,
but merely ignored it. This ignorance failed to create a genuine issue of material fact. After Thorne
disclosed in his deposition that he drove a 2020 Ford F-150 that was subject to a no-fault insurance
policy issued by USAA, a copy of the policy was provided by USAA to defendants. Although
plaintiff claimed that the policy did not apply to Thorne because he was listed as an “operator” and
not an insured, the listing on the declarations page was not dispositive. And, the certificate of
insurance identified Thorne as an individual covered by the policy. Plaintiff’s position would
render the certificate of insurance a worthless document. Because identifiable insurance applicable
to the injury can and was identified, plaintiff was ineligible to obtain benefits on behalf of Thorne
through defendants. Consequently, summary disposition was appropriate in favor of defendants.
On April 28, 2023, the trial court waived oral argument on the dispositive motion and
issued an opinion and order granting the summary disposition motion. It ruled:
This is a no-fault provider case which arises from medical treatment Plaintiff
provided to non-party Justin Thorne in relation to a motor vehicle accident which
occurred on July 17, 2021. At the time of the accident, Thorne was operating a
2005 Pontiac Grand Prix, insured by non-party USAA, when he lost control on a
wet roadway, hit two mailboxes and ultimately, a tree.
The 2005 Pontiac Grand Prix was registered to Kayla Hart. Ms. Hart is
Thorne’s girlfriend, and they live together. Thorne testified that at the time of the
motor vehicle accident, he was leasing a Ford F-150 which was also insured
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through USAA. Pursuant to MCL 500.3172(1), a person may only obtain personal
protection insurance benefits through the MAIPF if no personal protection
insurance applicable to the injury can be identified. The MAIPF argues that there
is no genuine issue of material fact that Thorne was insured through this USAA
policy. In support of its argument, the MAIPF attached a renewal declarations page
which lists Thorne as an “operator” on the USAA policy, covering the 2005 Pontiac
Grand Prix and the 2020 Ford F-150. The MAIPF also attached a certificate of
insurance which lists Mr. Thorne on the policy. The certificate of insurance states
an effective date of July 11, 2021, and an expiration date of January 11, 2022.
Plaintiff did not name USAA as a co-defendant. Plaintiff’s Response argues
that the USAA renewal declarations page is not “conclusive evidence” that the
policy is “identifiable no-fault insurance.” Again, MCL 500.3172(1) provides:
(1) A person entitled to claim because of accidental bodily injury arising out of the
ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle
in this state may claim personal protection insurance benefits through the
assigned claims plan if any of the following apply:
(a) No personal protection insurance is applicable to the injury.
(b) No personal protection insurance applicable to the injury can be identified.
(c) No personal protection insurance applicable to the injury can be ascertained
because of a dispute between 2 or more automobile insurers concerning
their obligation to provide coverage or the equitable distribution of the loss.
The Court finds that there is “identifiable insurance” through USAA. Plaintiff
would not become entitled to file a claim against the MAIPF for benefits unless it
could show that there was no other applicable policy of insurance. The Court grants
Defendant’s [sic] Motion, but dismisses Defendant[s] without prejudice.
This is a final order and closes the case.
From this ruling, plaintiff appeals.
II. APPLICABLE LAW
A trial court’s decision on a motion for summary disposition is reviewed de novo. Charter
Twp of Pittsfield v Washtenaw Co Treasurer, 338 Mich App 440, 448; 980 NW2d 119 (2021). A
motion for summary disposition premised on MCR 2.116(C)(10) tests the factual sufficiency of
the complaint. Id. at 449. The moving party must identify and support the issues to which the
moving party believes there is no genuine issue of material fact, and the affidavits, pleadings,
depositions, admissions, and other documentary evidence submitted with the motion must be
examined. Id. Once the moving party makes and supports its motion, the opposing party may not
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rest on mere allegations or denials in the pleadings, but must submit documentary evidence setting
forth specific facts to demonstrate a genuine issue for trial.3 Id.
In Le Gassick v Univ of Mich Regents, 330 Mich App 487, 495-496; 948 NW2d 452 (2019),
this Court delineated the following rules of statutory construction:
Issues involving statutory interpretation present questions of law that are reviewed
de novo. “The primary goal of statutory interpretation is to give effect to the intent
of the Legislature.” The most reliable evidence of legislative intent is the plain
language of the statute. If the language of the statute is clear and unambiguous, it
is presumed that the Legislature intended the meaning plainly expressed in the
statute. The court’s interpretation of a statute must give effect to every word,
phrase, and clause. Further, an interpretation that would render any part of the
statute surplusage or nugatory must be avoided. Common words and phrases are
given their plain meaning as determined by the context in which the words are used,
and a dictionary may be consulted to ascertain the meaning of an undefined word
or phrase. “In construing a legislative enactment we are not at liberty to choose a
construction that implements any rational purposes but, rather, must choose the
construction that implements the legislature purpose perceived from the language
and the context in which it is used.” [Citations omitted.]
The terms of insurance coverage are controlled by the contract’s language, not by statute. Dawson
v Farm Bureau Mut Ins Co, 293 Mich App 563, 568; 810 NW2d 106 (2011). An unambiguous
contract is construed as written with the words used given their plain and ordinary meaning.
Pioneer State Mut Ins Co v Dells, 301 Mich App 368, 377-378; 836 NW2d 257 (2013).
III. ANALYSIS
Plaintiff contends that the trial court erred in granting defendants’ motion for summary
disposition because Thorne did not qualify as a named insured in the USAA policy and defendants
3
The trial court issued its opinion and order on April 28, 2023. As an appendix to appellant’s
brief, plaintiff submitted an affidavit dated August 4, 2023 prepared by Linda Wasche. In the
circuit court, a motion is decided premised on the evidence submitted at that time. Meisner Law
Group, PC v Weston Downs Condo Ass’n, 321 Mich App 702, 724; 909 NW2d 890 (2017). On
appeal, this Court’s review is limited to the trial court record, and a party may not expand the
record on appeal. Id. at 724-725. There is no indication that plaintiff moved to expand the record
on appeal to permit consideration of this affidavit. See MCR 7.216(A)(4) (“The Court of Appeals
may, at any time, in addition to its general powers, in its discretion, and on the terms it deems just:
(4) permit amendments, corrections, or additions to the transcript or record.”). Accordingly, we
do not consider this affidavit. And, we do not address plaintiff’s argument that there was no
identifiable insurance at the time the complaint was filed, an issue not raised in the trial court. See
Sunshine v Delta College Bd of Trustees, 343 Mich App 597, 601; 997 NW2d 755 (2022) (“An
issue is preserved if it is raised in the trial court.”).
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failed to demonstrate entitlement to summary disposition with admissible documentary evidence.
We disagree.
In order to obtain PIP benefits, the owner or registrant of a Michigan vehicle must maintain
security for payment of benefits. MCL 500.3103(1). And, all automobile insurance policies
offered in Michigan must include PIP benefits, property protection insurance, and residual liability
insurance. MCL 500.3101(2). An individual is not entitled to recover PIP benefits if the person
was the owner or registrant of a motor vehicle involved in an accident and the security required by
MCL 500.3103 was not in effect. MCL 500.3113(b).
MCL 500.3114 addresses persons entitled to PIP benefits, order of priority for occupants,
and priority. In pertinent part, it states:
(1) Except as provided in subsections (2), (3), and (5), a personal protection
insurance policy described in section 3101(1) applies to accidental bodily injury to
the person named in the policy, the person’s spouse, and a relative of either
domiciled in the same household, if the injury arises from a motor vehicle accident.
A personal injury insurance policy described in section 3103(2) applies to
accidental bodily injury to the person named in the policy, the person’s spouse, and
a relative of either domiciled in the same household, if the injury arises from a
motorcycle accident. If personal protection insurance benefits or personal injury
benefits described in section 3103(2) are payable to or for the benefit of an injured
person under his or her own policy and would also be payable under the policy of
his or her spouse, relative, or relative’s spouse, the injured person’s insurer shall
pay all of the benefits up to the coverage level applicable under section 3107c to
the injured person’s policy, and is not entitled to recoupment from the other insurer.
* * *
(4) Except as provided in subsections (2) or (3), a person who suffers accidental
bodily injury arising from a motor vehicle accident while an occupant of a motor
vehicle who is not covered under a personal protection insurance policy as provided
in subsection (1) shall claim personal protection insurance benefits under the
assigned claims plan under sections 3173 to 3175. This subsection does not apply
to a person insured under a policy for which the person named in the policy has
elected to not maintain coverage for personal protection insurance benefits under
section 3107d or as to which an exclusion under section 3109(2) applies, or who is
not entitled to be paid personal protection benefits under section 3107d(6)(c) or
3109a(2)(d)(ii).
The purpose of the no-fault act is to provide “assured, adequate, and prompt recovery for
economic losses stemming from motor vehicle accidents.” St John Macomb Oakland Hosp v State
Farm Mut Ins Co, 318 Mich App 256, 271; 896 NW2d 85 (2016). “Given the remedial nature of
the no-fault act, courts must liberally construe its provisions in favor of the persons who are its
intended beneficiaries.” Slocum v Farm Bureau Gen Ins Co, 328 Mich App 626, 638; 939 NW2d
717 (2019) (quotation marks and citations omitted). In the absence of a governing statute,
insurance policies are contracts subject to the principles of contract construction applicable to any
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other type of contract. Titan Ins Co v Hyten, 491 Mich 547, 554; 817 NW2d 562 (2012). When a
statute applies, the insurance policy and the statute must be read together, incorporating the statute
into the contract, because it is presumed that the policy satisfied the statutory requirements and the
contract was intended to fulfill the statute’s purpose. Id. (citation omitted). “Thus, when a
provision in an insurance policy is mandated by statute, the rights and limitations of the coverage
are governed by that statute.” Id. An insurance policy must be enforced according to its terms,
and an insurer may not be held liable for a risk that it did not assume. Liparoto Constr, Inc v
General Shale Brick, Inc, 284 Mich App 25, 35; 772 NW2d 801 (2009).
“MCL 500.3114(1) establishes a general rule that a person who sustains an accidental
bodily injury in a motor vehicle accident must look first to no-fault insurance policies in his or her
own household for no-fault benefits before looking to other insurers for benefits.” Esurance Prop
& Cas Ins Co v Mich Assigned Claims Plan, 507 Mich 498, 515; 968 NW2d 482 (2021). See also
Griffin v Trumbull Ins Co, 509 Mich 484, 498; 983 NW2d 760 (2022) (the general rule requires
that a person look to one’s own insurer for no-fault benefits unless a statutory exception found in
MCL 500.3114(2), (3), and (5) is applicable). “Moreover, it is persons who are insured against
loss, not vehicles; that is, no-fault coverage is tied to persons, not vehicles.” Esurance Prop &
Cas Ins Co, 507 Mich at 498.
“[A]n owner or registrant of a motor vehicle is not required to personally purchase no-fault
insurance for his or her vehicle in order to avoid the statutory bar to PIP benefits.” Dye v Esurance
Prop & Cas Ins Co, 504 Mich 167, 172-173; 934 NW2d 674 (2019). “Rather, MCL 500.3101(1)
only requires that the owner or registrant ‘maintain’ no-fault insurance, and the term ‘maintain,’
as commonly understood, means to keep in an existing state.” Id. at 173. “[A]n owner or registrant
of a motor vehicle involved in an accident is not excluded from receiving no-fault benefits when
someone other than that owner or registrant purchased no-fault insurance for that vehicle because
the owner or registrant of the vehicle may ‘maintain’ the insurance coverage required under the
no-fault act even if he or she did not purchase the insurance.” Id. at 173.
Under MCL 500.3114, a claimant has the burden of pursuing PIP benefits from a specified
list of potential insurers in light of the statutory priority scheme. Griffin, 509 Mich at 500. This
means that a “claim” for PIP benefits must “put potential insurers on notice and submit insurance
claims stating an entitlement to benefits and requesting payment.” Id. Accordingly, a claimant
must diligently pursue his claim for PIP benefits, requiring a good-faith effort to fulfill a legal
obligation or requirement consistent with the actions of an ordinarily prudent person under the
factual circumstances. Id. “Requiring a claimant to identify potential insurers and pursue a PIP
benefits claim with due diligence is consistent with the no-fault act and its limitations period.” Id.
Due diligence is a fact-specific determination evaluated on a case-by-case basis. Id. “[A] claimant
cannot feasibly do more than ascertain all identifiable insurers that are potentially in the order of
priority using legal means and available information.” Id. at 508.
In the present case, the trial court determined that defendants were entitled to summary
disposition because an identifiable policy of insurance existed through USAA. Indeed,
MCL 500.3172(1)(b) states that a person may be entitled to claim PIP benefits through the
assigned claims plan when “[n]o personal protection insurance applicable to the injury can be
identified.”
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The accident occurred on July 17, 2021. The traffic crash report reflects that the accident
was reported on July 17, 2021 at 2:48 a.m., and the accident was investigated at the scene by
Officer B. Ostrander. This report also indicates that alcohol use was suspected, and field, blood,
and “PBT” tests were administered with results pending. It also stated that the Grand Prix suffered
disabling damage, and the insurance company was identified as “USAA” with a policy number of
“017819084C7101 9.” Despite the identification of USAA as the insurer of the Grand Prix, there
was no indication that plaintiff ever submitted its requests for payment to USAA, and it did not
file suit against USAA in addition to the named defendants. In the present case, plaintiff did not
use “available information,” specifically the identification of the insurer and the policy number in
the traffic crash report, to ascertain all identifiable insurers potentially in the order of priority.
Griffin, 509 Mich at 508. In light of the facts and circumstances, the trial court did not err in
determining that plaintiff failed to meet its burden of claiming PIP benefits from the insurers in
the stated order of priority. Id. And because plaintiff does not challenge this basis of the trial
court’s ruling, this Court need not even consider granting plaintiff the relief requested. Derderian
v Genesys Health Care Sys, 263 Mich App 364, 381; 689 NW2d 145 (2004).4
Alternatively, plaintiff asserted that the trial court inappropriately granted summary
disposition in favor of defendants because they failed to make and support their motion with
admissible evidence. Plaintiff failed to address why the evidence was inadmissible and cite
pertinent authority. When a party fails to cite authority or elaborate the claim or position, this
Court may deem the argument to be abandoned. St Clair v XPO Logistics, Inc, 344 Mich App
418, 436; ___ NW2d ___ (2022). Although evidence offered in support of and in opposition to
summary disposition must be substantively admissible, it does not have to be in admissible form.
See Barnard Mfg Co v Gates Performance Engineering, Inc, 285 Mich App 362, 373; 775 NW2d
618 (2009).
We disagree with plaintiff’s contention that defendants failed to present admissible
evidence to support entitlement to summary disposition. In his deposition, Thorne testified that
he leased a Ford F-150, secured insurance through USAA with the assistance of Hart, and texted
the insurance documents to counsel during his deposition. As a result of the deposition, defendants
obtained the USAA documents governing the policy period when the accident occurred. Plaintiff
did not dispute the authenticity of this policy or obtain an affidavit from a USAA representative to
contest the validity of the documents. More importantly, the policy documents submitted by
defendants acknowledged that it was a renewal of an existing policy and should be added to the
existing policy. Plaintiff did not submit this initial policy to support its position that Thorne did
4
Plaintiff alleged that Thorne was not a “named insured” in the USAA policy, and therefore, was
not governed by MCL 500.3114, leaving MACP as the applicable insurer under MCL 500.3172.
However, the inquiry in MCL 500.3172(1)(b), as reflected by the plain statutory language, is
whether insurance can be “identified,” not whether an identified insurer will determine that the
claim is payable under the policy terms and agree to pay the claim. Further, a claimant must meet
its burden of diligently pursuing a claim for PIP benefits in light of all the facts and circumstances.
Griffin, 509 Mich at 500. In the present case, the USAA policy and the policy number was
identified in the traffic crash report, yet plaintiff never asserted that USAA was a potential insurer
in the statutory priority scheme. Plaintiff failed to meet this burden in light of the evidence. Id.
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not have an identifiable and valid insurance policy. Plaintiff merely blanketly questioned Thorne’s
entitlement to insurance benefits from USAA without submitting contractual documents or an
affidavit from a USAA representative that Thorne did not have valid insurance coverage. Because
defendants made and supported the summary disposition motion with Thorne’s deposition
testimony and the USAA policy documents, plaintiff, as the nonmoving party, was required to
create a genuine issue of material fact with documentary evidence. Charter Twp of Pittsfield, 338
Mich App at 449. Plaintiff did not do so. Accordingly, the trial court did not err in granting
defendants’ summary disposition motion.
Affirmed.
/s/ Kristina Robinson Garrett
/s/ Michael J. Riordan
/s/ Anica Letica
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