Opinion
No. 341208
04-30-2019
UNITED REHAB SERVICES, PC, Plaintiff-Appellee, v. AUTO CLUB INSURANCE ASSOCIATION, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court
LC No. 2017-156697-NF Before: JANSEN, P.J., and METER and GLEICHER, JJ. GLEICHER, J. (concurring in part and dissenting in part).
I concur with the result reached by the majority only because I am compelled to do so by this Court's opinion in Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co, 324 Mich App 182; 920 NW2d 148 (2018), oral argument gtd on application 503 Mich 882 (2018). The Shah majority concluded that an assignment of rights does not relate back to the date of the original complaint. In my view, this conclusion is fundamentally incorrect.
Plaintiff United Rehab Services, PC, filed this lawsuit on January 6, 2017, seeking recovery of no-fault benefits from defendant Auto Club for services rendered to Edmond Miesch between January and July 2016. After our Supreme Court decided Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich 191; 895 NW2d 490 (2017), Miesch executed an assignment of his rights under the no-fault act to United Rehab. The assignment is dated July 1, 2017. Guided by Shah, the majority holds that the assignment does not relate back to the date of Miesch's original complaint and that under the one-year-back rule, MCL 500.3145(1), United Rehab's claim is time-barred.
I believe that the Shah majority incorrectly characterized an amended complaint reflecting an assignment as a supplemental pleading under MCR 2.118(E). As Judge SHAPIRO pointed out in his Shah dissent, MCL 500.3145(1) provides that benefits may be recovered " 'for any portion of the loss incurred more than 1 year before the date on which the action was commenced.' " Shah, 324 Mich App at 219 (SHAPIRO, J., dissenting) (emphasis added in Shah). This language signals that the Legislature intended that a plaintiff's original complaint would serve as the tolling mechanism for first-party no-fault claims.
Like Judge SHAPIRO, I find no support for the Shah majority's view that "the addition of an allegation to establish standing" commences a new action. Id. Indeed, a number of cases hold to the contrary. See Hayes-Albion Corp v Whiting Corp, 184 Mich App 410, 416-418; 459 NW2d 47 (1990), lv den 439 Mich 862 (1991), recon den 478 NW2d 448 (1991) (holding that an amended complaint adding the plaintiff's insurance company would relate back to the original complaint as long as the added plaintiff had an interest that arose "out of the conduct, transaction or occurrence set forth . . . in the original" complaint); Stamp v Mill Street Inn, 152 Mich App 290, 298-300; 393 NW2d 614 (1986), lv den 426 Mich 882 (1986) (holding that a complaint amended to reflect that the plaintiff was suing in an individual capacity as opposed to as personal representative of her husband's estate related back to the original complaint provided that the plaintiff had, in any capacity either before or after she filed suit, an interest in the subject matter of the controversy). See also Tice Estate v Tice, 288 Mich App 665, 669-671; 795 NW2d 604 (2010) (holding that the amendment to reflect that the plaintiff was the personal representative of his mother's estate, as opposed to proceeding individually on behalf of his mother's estate, would relate back to the original filing where the defendant had knowledge of the claims and the change in status of the plaintiff would not undermine the statute-of-limitations defense).
Unfortunately, the plaintiff in Shah failed to file a cross-application in our Supreme Court challenging the majority's relation-back analysis in that case. However, an application raising the relation-back issue is pending in Med Alternatives v Auto-Owners Ins Co, unpublished per curiam opinion of the Court of Appeals, issued November 1, 2018 (Docket No. 340561), lv pending MSC Docket No. 158798, and I urge the Supreme Court to grant it.
/s/ Elizabeth L. Gleicher