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JAWAD A. SHAH, M.D., PC, Integrated Hospital Specialists, PC, Insight Anesthesia, PLLC, and Sterling Anesthesia, PLLC, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
In this suit seeking recovery of medical expenses under the no-fault act, MCL 500.3101 et seq., plaintiffs, Jawad A. Shah, M.D., PC, Integrated Hospital Specialists, PC, Insight Anesthesia, PLLC, and Sterling Anesthesia, PLLC, appeal as of right the trial court's order granting summary disposition in favor of defendant, State Farm Mutual Automobile Insurance Company, and denying as futile plaintiffs’ motion for leave to amend their complaint. For the reasons set forth in this opinion, we reverse the trial court's order and remand this matter for further proceedings consistent with this opinion.
This case involves various healthcare providers attempting to recover from a no-fault insurer for services rendered to the insured, George Hensley. According to plaintiffs’ initial complaint filed on February 24, 2017, Hensley was injured on November 30, 2014, in a motor vehicle accident and was insured by defendant. Plaintiffs submitted claims for services rendered to Hensley, but defendant refused to pay these claims. In their complaint, plaintiffs sought a judgment of approximately $82,000, plus interest and reasonable attorney fees. Defendant answered the complaint and filed its affirmative defenses on April 21, 2017, denying liability.
On May 25, 2017, our Supreme Court issued its opinion in Covenant Med. Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., 500 Mich. 191, 895 N.W.2d 490 (2017). In Covenant, our Supreme Court held “that healthcare providers do not possess a statutory cause of action against no-fault insurers for recovery of personal protection insurance benefits under the no-fault act,” expressly overruling a body of caselaw from this Court that had concluded to the contrary. Id. at 196, 895 N.W.2d 490. In explaining its holding, the Covenant Court rejected the notion that a medical provider had independent standing to bring a claim against an insurer to recover no-fault benefits. Id. at 195, 895 N.W.2d 490. However, the Court clarified that its decision was “not intended to alter an insured's ability to assign his or her right to past or presently due benefits to a healthcare provider.” Id. at 217 n. 40, 895 N.W.2d 490.
On July 20, 2017, defendant moved for summary disposition pursuant to MCR 2.116(C)(8). Defendant argued that dismissal was required for failure to state a claim because plaintiffs’ no-fault claim was “in direct contravention of the Michigan Supreme Court's decision in Covenant.”
Apparently anticipating defendant's motion, plaintiffs had obtained an assignment of rights from Hensley on July 11, 2017,1 to pursue payment of no-fault benefits for healthcare services “already provided” by plaintiffs.2 Plaintiffs relied on this assignment to then file a response to the summary disposition motion and a motion for leave to amend the complaint to reflect that the suit was being pursued through the assignment of rights obtained from Hensley. Plaintiffs argued that it was necessary to amend the complaint to allow the action to proceed pursuant to their respective assignments because the Covenant decision had extinguished their ability to pursue an independent, direct action against defendant under these circumstances. Again showing foresight in anticipating defendant's next tactical decision, plaintiffs also preemptively argued that if the trial court were to determine that a contractual provision within defendant's policy prevented assignments, then such a provision should not be enforced for one of two reasons. First, plaintiffs argued that defendant would have to show that Hensley was a named insured under the policy (rather than, for example, a passenger entitled to benefits under someone else's policy) for the antiassignment clause to be enforced against him. Second, plaintiffs argued that the antiassignment clause was voidable as against public policy because the assignment was obtained after the loss occurred. Furthermore, in an effort to avoid problems with the one-year-back rule of MCL 500.3145(1), plaintiffs also argued that the amended complaint should relate back to the date of the original complaint because the amendment to accommodate the assignments was intended to support the previously filed no-fault claim that arose from the same transaction or occurrence, namely Hensley's injuries sustained in the November 30, 2014 accident. Plaintiffs did not contend that Covenant was inapplicable to their suit.
On September 7, 2017, defendant filed a reply in support of its summary disposition motion. As plaintiffs anticipated, defendant argued that an antiassignment clause in the policy rendered any assignment of rights from Hensley void. Accordingly, defendant argued that plaintiffs’ claims should be dismissed because the antiassignment clause had to be enforced as written and was not against public policy. Defendant also argued that the one-year-back rule of MCL 500.3145(1) would bar the assigned claims, or a portion of the assigned claims, even if the assignments were considered valid. Defendant explained that plaintiffs could not obtain any greater rights than those held by Hensley at the time of the assignments. Had Hensley brought suit on the date of the assignments, he could not have obtained damages for any expenses incurred more than a year before that date. Defendant argued that plaintiffs stood in the shoes of Hensley after the assignments and could not obtain any greater rights than this. Defendant also asserted that Hensley had his own lawsuit that had already been resolved and was no longer pending. Defendant further argued that the relation-back doctrine would not apply because the assignment did not exist on the date plaintiffs originally filed their complaint. Defendant contended that plaintiffs were not really seeking an amendment that could relate back to the original complaint pursuant to MCR 2.118(D) but were actually attempting to supplement their complaint pursuant to MCR 2.118(E) in order to allege a subsequently acquired assignment. Defendant explained that supplemental pleadings never relate back to the date of the original pleading. Finally, defendant explained that Hensley was indeed a named insured, and it provided a copy of the declarations page as support.
On the same day, defendant also filed a response to plaintiffs’ motion for leave to amend their complaint. Defendant raised the same arguments made in its reply brief and argued that for these reasons, any amendment was futile because the cause of action that plaintiff was attempting to add was legally insufficient on its face.
A hearing on the motions was held on September 11, 2017. The parties’ oral arguments reiterated the arguments made in their written submissions. The trial court ruled as follows:
All right, the Court read both of the motions and the briefs, as well as the second motion, which is the motion for leave to file an amended complaint. As I said they interrelate and the circumstances are that Shah was a provider or plaintiffs were health providers—health services care providers for the insured George Hensley. And apparently only after the covenant [sic: Covenant decision] did an assignment take place and the policy language of the State Farm policy, which Mr. Hensley purchased precludes the assignment without approval of State Farm, which did not occur. So actually (inaudible) did not acquire any rights by virtue of the assignment.
And in addition, as pointed out by defense counsel, if it had been granted it would have been a supplemental pleading and the date would be barred under the statute of limitations. You may submit an order if you don't have one here today.
The trial court clarified that it was granting defendant's motion for summary disposition, denying leave to file an amended complaint as futile, and dismissing the case with prejudice. The trial court entered an order 3 granting summary disposition pursuant to MCR 2.116(C)(8) and dismissing the case with prejudice ‘‘for the reasons stated on the record.”
This appeal followed.
A. RETROACTIVITY OF THE COVENANT DECISION
Plaintiffs first argue that our Supreme Court's decision in Covenant should not apply retroactively but should instead be given prospective effect only.
Whether a judicial decision applies retroactively is a question that this Court reviews de novo. W.A. Foote Mem. Hosp. v. Mich. Assigned Claims Plan, 321 Mich.App. 159, 168, 909 N.W.2d 38 (2017). However, plaintiffs never challenged the retroactive application of Covenant or the applicability of Covenant to this case in the trial court. In fact, plaintiffs appeared to concede in the trial court that Covenant was retroactively applicable and was consequently controlling in this case. Therefore, we must first address whether plaintiffs preserved their argument that Covenant should apply prospectively only and not retroactively to the instant case.
‘‘Michigan generally follows the ‘raise or waive’ rule of appellate review.” Walters v. Nadell, 481 Mich. 377, 387, 751 N.W.2d 431 (2008) (citation omitted). Accordingly, ‘‘[f]or an issue to be preserved for appellate review, it must be raised, addressed, and decided by the lower court.” Mouzon v. Achievable Visions, 308 Mich.App. 415, 419, 864 N.W.2d 606 (2014) (quotation marks and citation omitted). The failure to timely raise an issue typically waives appellate review of that issue. Walters, 481 Mich. at 387, 751 N.W.2d 431. Our Supreme Court has explained the rationale for the preservation requirements as follows:
The principal rationale for the rule is based in the nature of the adversarial process and judicial efficiency. By limiting appellate review to those issues raised and argued in the trial court, and holding all other issues waived, appellate courts require litigants to raise and frame their arguments at a time when their opponents may respond to them factually. This practice also avoids the untenable result of permitting an unsuccessful litigant to prevail by avoiding its tactical decisions that proved unsuccessful. Generally, a party may not remain silent in the trial court, only to prevail on an issue that was not called to the trial court's attention. Trial courts are not the research assistants of the litigants; the parties have a duty to fully present their legal arguments to the court for its resolution of their dispute. [Walters, 481 Mich. at 388, 751 N.W.2d 431 (citations omitted).]
“Although this Court need not review issues raised for the first time on appeal, this Court may overlook preservation requirements if the failure to consider the issue would result in manifest injustice, if consideration is necessary for a proper determination of the case, or if the issue involves a question of law and the facts necessary for its resolution have been presented.” Smith v. Foerster-Bolser Constr., Inc., 269 Mich.App. 424, 427, 711 N.W.2d 421 (2006) (citations omitted). However, while an appellate court has the inherent power to review an unpreserved claim of error, our Supreme Court has emphasized the fundamental principles that “such power of review is to be exercised quite sparingly” and that the inherent power to review unpreserved issues “is to be exercised only under what appear to be compelling circumstances to avoid a miscarriage of justice or to accord a [criminal] defendant a fair trial.” Napier v. Jacobs, 429 Mich. 222, 233, 414 N.W.2d 862 (1987) (quotation marks and citation omitted; alteration in original).
In this case, plaintiffs assert that this issue is preserved for appellate review without identifying a single place in the lower court record where they argued that Covenant should not apply retroactively to the instant case. As previously noted, plaintiffs actually treated the Covenant decision as the controlling law at all times following the issuance of that decision, arguing that it was necessary to amend the original complaint because the Covenant decision had extinguished plaintiffs’ independent cause of action against defendant that was not premised on an assignment of rights from Hensley. On appeal, plaintiffs essentially argue that although they never contested the application of Covenant in the trial court, their appellate challenge to the propriety of that retroactive application is somehow automatically preserved because the Covenant decision was actually applied retroactively in the trial court and because defendant responded to plaintiffs’ arguments on appeal.4 This argument ignores the fundamentals of appellate-preservation law, which require parties to first raise issues in the lower court to be addressed in that forum. Walters, 481 Mich. at 387, 751 N.W.2d 431; Mouzon, 308 Mich.App. at 419, 864 N.W.2d 606. Therefore, plaintiffs have waived appellate review of this issue. Walters, 481 Mich. at 387, 751 N.W.2d 431. Plaintiffs may not remain silent in the trial court and then hope to obtain appellate relief on an issue that they did not call to the trial court's attention. Id. at 388, 751 N.W.2d 431; see also Hoffenblum v. Hoffenblum, 308 Mich.App. 102, 117, 863 N.W.2d 352 (2014) (‘‘A party may not claim as error on appeal an issue that the party deemed proper in the trial court because doing so would permit the party to harbor error as an appellate parachute.”) (quotation marks and citation omitted).
We further conclude that there is no apparent reason for us to exercise our discretion to review this issue. It does not present a question that must be addressed in order to properly resolve this case and no manifest injustice will result if we decline to review it; as explained in this opinion, plaintiffs’ legal argument is unavailing because Covenant has already been determined to be retroactive in published decisions of this Court. Moreover, a litigant in a civil case must demonstrate more than a potential monetary loss to show a miscarriage of justice or manifest injustice. See Napier, 429 Mich. at 234, 414 N.W.2d 862. Accordingly, we decline to review plaintiffs’ various arguments that Covenant is inapplicable to the instant case and that it should be given prospective application only.5
Furthermore, as we alluded to, plaintiffs’ argument is without merit even if they had not waived this issue for appellate review. This Court has already held in two recent published decisions that Covenant applies retroactively. See W.A. Foote, 321 Mich.App. at 196, 909 N.W.2d 38; VHS Huron Valley-Sinai Hosp. v. Sentinel Ins. Co. (On Remand), 322 Mich.App. 707, 713-714, 916 N.W.2d 218 (2018).6 We are bound by the holdings in W.A. Foote and VHS Huron Valley. See MCR 7.215(C)(2) (‘‘A published opinion of the Court of Appeals has precedential effect under the rule of stare decisis.’’). And furthermore, whether an application for leave to appeal in our Supreme Court has been filed in a case 7 is irrelevant: ‘‘The filing of an application for leave to appeal to the Supreme Court or a Supreme Court order granting leave to appeal does not diminish the precedential effect of a published opinion of the Court of Appeals.’’ MCR 7.215(C)(2).
Therefore, even if this issue had not been waived for our review, Covenant is applicable to the instant case, W.A. Foote, 321 Mich.App. at 196, 909 N.W.2d 38; VHS Huron Valley, 322 Mich.App. at 713-714, 916 N.W.2d 218; MCR 7.215(C)(2), and plaintiffs “do not possess a statutory cause of action” against defendant as a no-fault insurer to recover personal protection insurance benefits under the no-fault act, Covenant, 500 Mich. at 196, 895 N.W.2d 490.
B. ENFORCEABILITY OF THE CONTRACT PROVISION PROHIBITING ASSIGNMENT
Next, plaintiffs argue that the antiassignment clause in the insurance policy is unenforceable and that it therefore cannot prevent the assignment that occurred in this case.
Insurance policies are contracts and are thus “subject to the same contract construction principles that apply to any other species of contract.” Rory v. Continental Ins. Co, 473 Mich. 457, 461, 703 N.W.2d 23 (2005). “[Q]uestions involving the proper interpretation of a contract or the legal effect of a contractual clause are ․ reviewed de novo.” Id. at 464, 703 N.W.2d 23. “In ascertaining the meaning of a contract, we give the words used in the contract their plain and ordinary meaning that would be apparent to a reader of the instrument.” Id. “[U]nambiguous contracts are not open to judicial construction and must be enforced as written.” Id. at 468, 703 N.W.2d 23 (emphasis omitted). “[T]he judiciary is without authority to modify unambiguous contracts or rebalance the contractual equities struck by the contracting parties․” Id. at 461, 703 N.W.2d 23.
However, our Supreme Court has also recognized that “courts are to enforce the agreement as written absent some highly unusual circumstance such as a contract in violation of law or public policy.” Id. at 469, 703 N.W.2d 23 (quotation marks and citation omitted; emphasis added). “A mere judicial assessment of ‘reasonableness’ is an invalid basis upon which to refuse to enforce contractual provisions,” and “[o]nly recognized traditional contract defenses may be used to avoid the enforcement of the contract provision.” Id. at 470, 703 N.W.2d 23. With respect to determining whether a contractual provision violates public policy, our Supreme Court explained in Rory that “the determination of Michigan's public policy is not merely the equivalent of the personal preferences of a majority of this Court; rather, such a policy must ultimately be clearly rooted in the law.” Id. at 470-471, 703 N.W.2d 23 (quotation marks and citation omitted). “In ascertaining the parameters of our public policy, we must look to policies that, in fact, have been adopted by the public through our various legal processes, and are reflected in our state and federal constitutions, our statutes, and the common law.” Id. at 471, 703 N.W.2d 23 (quotation marks and citation omitted).
‘‘Under general contract law, rights can be assigned unless the assignment is clearly restricted.” Burkhardt v. Bailey, 260 Mich.App. 636, 652, 680 N.W.2d 453 (2004). Defendant argues in this case that the present matter is one in which Hensley's ability to assign his rights is prohibited by a specific contractual provision. The insurance policy states, ‘‘No assignment of benefits or other transfer of rights is binding upon us [i.e., defendant] unless approved by us.” Despite plaintiffs’ newly raised arguments to the contrary, the language of this provision is perfectly clear.8 In order for any benefits or rights to be assigned to anyone other than the insured, defendant must consent to the assignment. In contravention of this provision, the assignments at issue attempt to assign the right to claim benefits held by Hensley to plaintiffs, and it is undisputed that defendant did not consent to these assignments. The appellate courts of Michigan have previously recognized the enforceability of antiassignment clauses that are clear and unambiguous. See Detroit Greyhound Employees Fed. Credit Union v. Aetna Life Ins. Co., 381 Mich. 683, 689-690, 167 N.W.2d 274 (1969); Employers Mut. Liability Ins. Co. of Wisconsin v. Mich. Mut. Auto. Ins. Co., 101 Mich.App. 697, 702, 300 N.W.2d 682 (1980). Therefore, because the antiassignment clause is unambiguous, it must be enforced unless it violates the law or public policy. Rory, 473 Mich. at 468-469, 703 N.W.2d 23.
Resolution of this issue turns on the application of our Supreme Court's decision in Roger Williams Ins. Co. v. Carrington, 43 Mich. 252, 5 N.W. 303 (1880). In Roger Williams, an insurance policy was issued covering livery stable property; the property was later destroyed in a fire. Id. at 253, 5 N.W. 303. After the fire, the insured assigned the policy to secure a debt. Id. at 253-254, 5 N.W. 303. Our Supreme Court refused to enforce an antiassignment clause in that matter, explaining:
The assignment having been made after the loss, did not require consent of the company. The provision of the policy forfeiting it for an assignment without the company's consent is invalid, so far as it applies to the transfer of an accrued cause of action. It is the absolute right of every person—secured in this State by statute—to assign such claims, and such a right cannot be thus prevented. It cannot concern the debtor, and it is against public policy. [Id. at 254, 5 N.W. 303.]
In this case, the parties provide no authority, and we have found none, explicitly rejecting this analysis in Roger Williams. Moreover, it has been deemed controlling on this point of law in at least two relatively recent 9 opinions of the United States District Court for the Western District of Michigan,10 Century Indemnity Co. v. Aero-Motive Co., 318 F.Supp.2d 530, 539 (W.D.Mich., 2003) (relying on Roger Williams while explaining that under Michigan law, “an anti-assignment clause will not be enforced where a loss occurs before the assignment, because in that situation the assignment of the claim under the policy is viewed no differently than any other assignment of an accrued cause of action.”); Action Auto Stores, Inc. v. United Capitol Ins. Co., 845 F.Supp. 417, 422-423 (W.D.Mich. 1993) (citing Roger Williams in support of the proposition that a provision prohibiting assignment without consent of the insurer was invalid with respect to a post-loss assignment).
Our Supreme Court in Roger Williams essentially held that an accrued cause of action may be freely assigned after the loss and that an antiassignment clause is not enforceable to restrict such an assignment because such a clause violates public policy in that situation. Roger Williams, 43 Mich. at 254, 5 N.W. 303. In this case, Hensley had an accrued claim against his insurer for payment of healthcare services that had already been provided by plaintiffs before Hensley executed the assignment. Under Roger Williams, the contractual prohibition against Hensley assigning that claim to plaintiffs was unenforceable because it was against public policy. Id.
Therefore, we conclude that the antiassignment clause in the instant case is unenforceable to prohibit the assignment that occurred here—an assignment after the loss occurred of an accrued claim to payment—because such a prohibition of assignment violates Michigan public policy that is part of our common law as set forth by our Supreme Court. Roger Williams, 43 Mich. at 254, 5 N.W. 303; Rory, 473 Mich. at 469-471, 703 N.W.2d 23.
We note that contrary to the arguments advanced by defendant, our conclusion that a contractual provision is unenforceable because it violates public policy is not equivalent to a judicial assessment of unreasonableness, nor is it in conflict with the principle that unambiguous contracts must be enforced as written. Our Supreme Court has made clear that judicial notions of reasonableness are not proper grounds on which to hold contractual provisions unenforceable. Rory, 473 Mich. at 470, 703 N.W.2d 23. Our Supreme Court has also made clear that unambiguous contractual provisions are “to be enforced as written unless the provision would violate law or public policy.” Id. (emphasis added). Defendant's arguments appear to incorrectly conflate the concept of “reasonableness” with “public policy.” Our decision is not based on a determination that the antiassignment clause is somehow “unreasonable.” Rather, we have simply concluded that enforcing the antiassignment clause in this circumstance to prohibit the assignment of an accrued claim after the loss occurred is against Michigan public policy as stated by our Supreme Court 138 years ago in Roger Williams. Finally, defendant takes issue with the continued validity of our Supreme Court's holding in Roger Williams and its application in the instant case. However, as our Supreme Court has instructed, we are bound to follow its decisions “except where those decisions have clearly been overruled or superseded.” Associated Builders & Contractors v. City of Lansing, 499 Mich. 177, 191, 880 N.W.2d 765 (2016). There is no indication that Roger Williams or its holding relating to antiassignment clauses has been clearly overruled or superseded. Therefore, if the continued validity of Roger Williams is to be called into question, it will have to be by our Supreme Court.
Plaintiffs also raise several additional grounds for arguing that the antiassignment clause is unenforceable to prevent the assignment at issue in this case. However, plaintiffs did not raise these additional arguments in the trial court, and they are thus waived for appellate review. Walters, 481 Mich. at 387, 751 N.W.2d 431. Nonetheless, given our conclusion that the antiassignment clause did not prohibit the assignments at issue in this case, there is no further relief on this issue that we could grant to plaintiffs, and these additional arguments are therefore moot. B P 7 v. Bureau of State Lottery, 231 Mich.App. 356, 359, 586 N.W.2d 117 (1998). We decline to address these arguments because we generally do not decide moot issues. Id.
C. EFFECT OF THE ASSIGNMENTS WITH RESPECT TO THE ONE-YEAR-BACK RULE
Next, plaintiffs argue that the trial court should have granted their motion for leave to amend the complaint to account for the assignments and that such an amendment should have related back to the date of the original complaint. In light of our conclusion that the assignments were not prohibited by the antiassignment clause, the issue to be addressed on appeal becomes determining the effect of the assignments at issue with respect to the one-year-back rule in MCL 500.3145(1). Clearly, we must address this question first before we can address the final, and interrelated, questions of whether the trial court erred by granting defendant's summary disposition motion and denying plaintiffs’ motion for leave to amend the complaint.
MCL 500.3145(1) provides, in pertinent part, that ‘‘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.’’ The one-year-back rule in MCL 500.3145(1) ‘‘is designed to limit the amount of benefits recoverable under the no-fault act to those losses occurring no more than one year before an action is brought.’’ Joseph v. Auto Club Ins. Ass'n, 491 Mich. 200, 203, 815 N.W.2d 412 (2012).
The instant case presents an unusual situation with respect to the one-year-back rule because plaintiffs began this case on February 24, 2017, as a direct lawsuit filed against defendant under pre-Covenant caselaw and then sought to amend the complaint to bring the action based on an assignment theory after the Covenant decision was issued. Plaintiffs obtained the assignments from Hensley on July 11, 2017. Plaintiffs argue that they may amend their complaint to account for the assignment-of-rights theory and that such an assignment should relate back to the date of the original complaint, which would allow them to pursue benefits incurred during the year preceding the date of February 24, 2017. Defendant, on the other hand, argues that the date of the assignments—July 11, 2017—provides the pertinent reference date for purposes of the one-year-back rule because plaintiffs’ motion actually sought leave to file a supplemental pleading rather than an amended pleading.
The rule regarding the relation back of amended pleadings is contained in MCR 2.118(D), which provides, in pertinent part, that an “amendment that adds a claim or defense relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading.” However, while an amended pleading may relate back to the date of the original pleading, “there is no provision for relating back as to supplemental pleadings․” Grist v. Upjohn Co., 1 Mich.App. 72, 84, 134 N.W.2d 358 (1965).11 Supplemental pleadings are governed by MCR 2.118(E), which provides in pertinent part, as follows:
On motion of a party the court may, on reasonable notice and on just terms, permit the party to serve a supplemental pleading to state transactions or events that have happened since the date of the pleading sought to be supplemented, whether or not the original pleading is defective in its statement of a claim for relief or a defense.
Further, the “relation-back doctrine does not apply to the addition of new parties.” Miller v. Chapman Contracting, 477 Mich. 102, 106, 730 N.W.2d 462 (2007) (quotation marks and citation omitted).
In this case, after the Covenant decision was issued, plaintiffs sought to amend their complaint to account for the assignments obtained from Hensley to allow plaintiffs to pursue an action against defendant insurer. ‘‘An assignee stands in the position of the assignor, possessing the same rights and being subject to the same defenses.’’ Burkhardt, 260 Mich.App. at 652-653, 680 N.W.2d 453. For that reason, plaintiffs could not obtain any greater rights from Hensley on the date of the assignments—July 11, 2017—than Hensley himself possessed on that date. Had Hensley filed an action directly against defendant on July 11, 2017, he would not have been permitted to recover benefits for any portion of the loss incurred one year before that date. MCL 500.3145(1). Accordingly, plaintiffs also could not obtain any right to recover benefits for losses incurred more than one year before July 11, 2017, through an assignment of rights from Hensley. Burkhardt, 260 Mich.App. at 652-653, 680 N.W.2d 453. Furthermore, the procurement of the assignments was an event that occurred after the filing of the original complaint and provided the only means by which plaintiffs could have standing to maintain a direct action against defendant insurer for recovery of no-fault benefits in this case. Covenant, 500 Mich. at 195-196, 217 n. 40, 895 N.W.2d 490. Therefore, plaintiffs’ motion for leave to amend actually sought leave to file a supplemental pleading. MCR 2.118(E). Courts ‘‘are not bound by a party's choice of labels because this would effectively elevate form over substance.’’ Adams v. Adams (Ob Reconsideration), 276 Mich.App. 704, 715, 742 N.W.2d 399 (2007).
Because plaintiffs actually sought to file a supplemental pleading, it could not relate back to the date of the original pleading. MCR 2.118(D) and (E); Grist, 1 Mich.App. at 84, 134 N.W.2d 358. Through the assignment, plaintiffs only obtained the rights Hensley actually held at the time of the execution of the assignment, Burkhardt, 260 Mich.App. at 652-653, 680 N.W.2d 453, and plaintiffs cannot rely on the relation-back doctrine to essentially gain the potential for a greater right to recovery than they actually received. As our Supreme Court explained in Jones v. Chambers, 353 Mich. 674, 681-682, 91 N.W.2d 889 (1958):12
The assignment created nothing. It simply passed to plaintiffs’ insurer rights already in existence, if any. If plaintiffs’ insured had no rights, then plaintiffs’ insurer acquired none by virtue of the assignment. To rule otherwise would be to give such an assignment some strange alchemistic power to transform a dross and worthless cause of action into the pure gold from which a judgment might be wrought. [Quotation marks omitted.]
Therefore, through the assignments in this case, plaintiffs did not obtain the right to pursue no-fault benefits for any portion of the loss incurred more than one year before July 11, 2017, because that is the pertinent point of reference for purposes of the one-year-back rule. A supplemental pleading predicated on the July 11, 2017 assignments could not relate back to the date of the original pleading.
We now turn to the trial court's final ruling granting summary disposition in favor of defendant and denying plaintiffs’ motion for leave to amend.
“This Court reviews de novo the trial court's decision to grant or deny summary disposition.” Rory, 473 Mich. at 464, 703 N.W.2d 23. The trial court granted summary disposition pursuant to MCR 2.116(C)(8).
A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint. All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant. A motion under MCR 2.116(C)(8) may be granted only where the claims alleged are “so clearly unenforceable as a matter of law that no factual development could possibly justify recovery.” When deciding a motion brought under this section, a court considers only the pleadings. [Maiden v. Rozwood, 461 Mich. 109, 119-120, 597 N.W.2d 817 (1999) (citations omitted).]
However, we note that the trial court clearly considered material outside the pleadings, contrary to the proper procedure for considering a motion under MCR 2.116(C)(8). The insurance policy that contained the antiassignment clause was crucial to the trial court's decision that plaintiffs could not maintain any claim against defendant predicated on assignments from Hensley; this insurance policy was attached to defendant's reply brief in support of its motion for summary disposition and defendant's response to plaintiffs’ motion for leave to amend the complaint. Furthermore, the assignments on which plaintiffs relied were attached to plaintiffs’ brief in opposition to the motion for summary disposition, as well as plaintiffs’ brief in support of their motion for leave to amend the complaint. While a written instrument that forms the basis for a claim or defense and that is attached to or referred to in a pleading may be treated as ‘‘part of the pleading for all purposes,’’ MCR 2.112(F), neither the assignments nor the insurance policy were attached to or referred to in a pleading, MCR 2.110(A) (defining the term ‘‘pleading’’ to include only a complaint, cross-claim, counterclaim, third-party complaint, an answer to any of the aforementioned pleadings, or a reply to an answer).
Therefore, we treat the motion as having been brought and decided under MCR 2.116(C)(10) because it necessarily involved considering material outside the pleadings.13 Cf. Hughes v. Region VII Area Agency on Aging, 277 Mich.App. 268, 273, 744 N.W.2d 10 (2007) (‘‘[W]here, as here, the trial court considered material outside the pleadings, this Court will construe the motion as having been granted pursuant to MCR 2.116(C)(10).’’).
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. [Maiden, 461 Mich. at 120, 597 N.W.2d 817 (citations omitted).]
‘‘The grant or denial of leave to amend pleadings is within the trial court's discretion.’’ PT Today, Inc. v. Comm'r of Office of Fin. & Ins. Servs., 270 Mich.App. 110, 142, 715 N.W.2d 398 (2006). A trial court's decision on whether to permit a party to serve a supplemental pleading is also discretionary. See MCR 2.118(E) (providing in pertinent part that the court ‘‘may, on reasonable notice and on just terms, permit the party to serve a supplemental pleading’’); In re Weber Estate, 257 Mich.App. 558, 562, 669 N.W.2d 288 (2003) (‘‘[T]he term ‘may’ presupposes discretion and does not mandate an action.’’). ‘‘[A] motion to amend should ordinarily be denied only for particularized reasons, including undue delay, bad faith or a dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, or futility.’’ PT Today, Inc., 270 Mich.App. at 143, 715 N.W.2d 398. “The trial court must specify its reasons for denying leave to amend, and the failure to do so requires reversal unless the amendment would be futile.” Id. “[A]mendment is generally a matter of right rather than grace.” Id.
“This Court will not reverse a trial court's decision regarding leave to amend unless it constituted an abuse of that discretion that resulted in injustice.” Id. at 142, 715 N.W.2d 398. “[A]n abuse of discretion occurs only when the trial court's decision is outside the range of reasonable and principled outcomes.” In re Kostin Estate, 278 Mich.App. 47, 51, 748 N.W.2d 583 (2008). “A trial court necessarily abuses its discretion when it makes an error of law.” Ronnisch Constr. Group, Inc. v. Lofts on the Nine, LLC, 499 Mich. 544, 552, 886 N.W.2d 113 (2016); see also Kidder v. Ptacin, 284 Mich.App. 166, 170, 771 N.W.2d 806 (2009) (“A court by definition abuses its discretion when it makes an error of law.”) (quotation marks and citation omitted).
In this case, the trial court granted defendant's motion for summary disposition and denied plaintiffs’ motion for leave to amend their complaint because the trial court concluded that the antiassignment clause prohibited any assignment from Hensley and that any claims based on such an assignment would be time-barred nonetheless.
‘‘If a trial court grants summary disposition pursuant to MCR 2.116(C)(8), (C)(9), or (C)(10), the court must give the parties an opportunity to amend their pleadings pursuant to MCR 2.118, unless the amendment would be futile.” Yudashkin v. Holden, 247 Mich.App. 642, 651, 637 N.W.2d 257 (2001) (quotation marks and citation omitted); see also MCR 2.116(I)(5) (‘‘If the grounds asserted are based on subrule (C)(8), (9), or (10), the court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be justified.”). ‘‘An amendment is futile if it merely restates the allegations already made or adds allegations that still fail to state a claim.” Yudashkin, 247 Mich.App. at 651, 637 N.W.2d 257 (quotation marks and citation omitted). Under MCR 2.118(A)(2), a party may amend a pleading by leave of the court and such ‘‘[l]eave shall be freely given when justice so requires.”
As previously discussed, the antiassignment clause was unenforceable to the extent that it prohibited the particular assignments at issue, and the one-year-back rule did not bar all of plaintiffs’ claims but rather those that were based on services provided more than one year before the date of the assignments. Accordingly, the trial court's decision was based on a misapplication of the law, and the trial court necessarily abused its discretion by denying plaintiffs the opportunity to serve their supplemental pleading. Ronnisch, 499 Mich. at 552, 886 N.W.2d 113. Similarly, because the antiassignment clause was not enforceable and the one-year-back rule did not bar all of plaintiffs’ claims, the trial court erred by granting defendant's motion for summary disposition without properly applying the law in determining whether an amendment of the pleadings would be futile. Rory, 473 Mich. at 464, 703 N.W.2d 23; Yudashkin, 247 Mich.App. at 651, 637 N.W.2d 257.
Defendant's remaining argument related to the jurisdictional minimum for the amount in controversy constitutes an argument that an alternate ground for affirming the trial court's ruling exists. This argument was not presented to the trial court. As an error-correcting court, W.A. Foote, 321 Mich.App. at 181, 909 N.W.2d 38, this Court's review is generally limited to matters actually decided by the lower court, Allen, 205 Mich.App. 564-565, 517 N.W.2d 830 (1994). We acknowledge that this Court may affirm the grant of summary disposition on an alternate ground that was not decided by the trial court when the issue was presented to the trial court. Adell Broadcasting Corp. v. Apex Media Sales Inc., 269 Mich.App. 6, 12, 708 N.W.2d 778 (2005). However, it is apparent that the trial court's ruling in the instant case was based on an erroneous application of the pertinent legal principles because the trial court determined (1) that the antiassignment clause was enforceable in this case, contrary to Michigan public policy, and (2) that the one-year-back rule would bar all of plaintiffs’ claims even if the assignments had been treated as valid. Accordingly, we conclude that it would be better for any additional matters relating to plaintiffs’ proposed supplemental complaint to be addressed in the first instance by the trial court under the proper legal framework.
We reverse the order of the trial court and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. We decline to award taxable costs under MCR 7.219(A).
I concur with the majority's conclusion that the antiassignment clause in defendant State Farm Mutual Automobile Insurance Company's policy is unenforceable because it conflicts with longstanding principles of contract law and the Michigan no-fault act, MCL 500.3101 et seq. I dissent from the majority's conclusion that the one-year-back provision runs from the date of the assignment rather than from the date set forth in the no-fault act, i.e. the date “the action was commenced.” Lastly, I conclude that W.A. Foote Mem. Hosp. v. Mich. Assigned Claims Plan, 321 Mich.App. 159, 909 N.W.2d 38 (2017), was wrongly decided and that Covenant Med. Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., 500 Mich. 191, 895 N.W.2d 490 (2017), should be given only prospective application.
I. ANTIASSIGNMENT CLAUSE
For over 100 years, Michigan law has provided that all contracts, other than those that involve personal performance, are assignable. In Northwestern Cooperage & Lumber Co. v. Byers, 133 Mich. 534, 538, 95 N.W. 529 (1903), the Michigan Supreme Court held that
where an executory contract is not necessarily personal in its character, and can, consistent with the rights and interests of the adverse party, be fairly and sufficiently executed as well by an assignee as by the original contractor, and when the latter has not disqualified himself from a performance of the contract, it is assignable.
Accord Voigt v. Murphy Heating Co., 164 Mich. 539, 129 N.W. 701 (1911); Detroit, T. & I.R. Co. v. Western UnionTel Co., 200 Mich. 2, 5, 166 N.W. 494 (1918).
This basic principle of contract law has never changed. It was recently articulated in In re Jackson, 311 B.R. 195, 200-201 (Bankr. W.D. Mich. 2004), when applying Michigan law, the court stated:
As a general rule, contract rights and duties are assignable.
Notwithstanding this general rule, Michigan law recognizes certain classes of contracts as inherently nonassignable in their character, such as promises to marry, or engagements for personal services, requiring skill, science, or peculiar qualifications. [Citations omitted.]
In this case, it is undisputed that the contract in question is not one for personal services, and it therefore falls within the general rule that contract rights may be assigned.
Defendant argues that despite this general rule, the insured may not assign his right to overdue benefits because its insurance policy contains an antiassignment clause. The majority properly relies on Roger Williams Ins. Co v. Carrington, 43 Mich. 252, 5 N.W. 303 (1880), for the principle that once the assigning party has performed, its right to assign past benefits cannot be contractually limited. Significantly, Roger Williams does not stand alone, and multiple legal authorities support its analysis.
The case of In re Jackson, cited earlier, is directly on point. The contract in that case was a settlement agreement that provided for Jackson to receive annuity payments. In re Jackson, 311 B.R. at 197. The settlement contract contained an antiassignment clause, and the question before the court was whether the annuity payments could nevertheless be assigned. The court answered affirmatively, noting that while a party may not assign benefits while its own performance is incomplete, it cannot be barred from assigning its rights as to the other party's performance once it has itself performed:
An executory contract is “a contract that remains wholly unperformed or for which there remains something still to be done on both sides.” With respect to [Jackson's] contractual obligations, the Settlement Agreement is not executory. Immediately upon executing the Settlement Agreement, [Jackson] released her claims against the state court defendants and dismissed her lawsuit with prejudice. As of the date of [Jackson's] agreement with Settlement Capital, Jackson had fully performed the duties required of her.
Therefore, [Jackson], having held up her end of the bargain with Transamerica Insurance, had every right to partially assign her interest in the annuity to Settlement Capital, irrespective of the anti-assignment clause. The modern trend with respect to contractual prohibitions on assignments is to interpret them narrowly, as barring only the delegation of duties, and not necessarily as precluding the assignment of rights from assignor to assignee. Unless the circumstances indicate the contrary, a contract term prohibiting assignment of ‘the contract’ bars only the delegation to an assignee of the performance by the assignor of a duty or condition. [Id. at 201 (quotation marks and citations omitted; emphasis added).]
[It is argued] that the anti-assignment clause in the Settlement Agreement renders inapplicable the general rule that contract rights and duties are assignable. We find however, that Michigan law mandates application of the general rule. This finding is based on the theory that once a party to a contract performs its obligations to the point that the contract is no longer executory, its right to enforce the other party's liability under the contract may be assigned without the other party's consent, even if the contract contains a non-assignment clause. [Id. (quotation marks and citations omitted; emphasis added).]
This principle is broadly recognized. As described in Couch on Insurance:
[T]he great majority of courts adhere to the rule that general stipulations in policies prohibiting assignments of the policy, except with the consent of the insurer, apply only to assignments before loss, and do not prevent an assignment after loss,2 for the obvious reason that the clause by its own terms ordinarily prohibits merely the assignment of the policy, as distinguished from a claim arising under the policy, and the assignment before loss involves a transfer of a contractual relationship while the assignment after loss is the transfer of a right to a money claim. The purpose of a no assignment clause is to protect the insurer from increased liability, and after events giving rise to the insurer's liability have occurred, the insurer's risk cannot be increased by a change in the insured's identity. [3 Couch on Insurance 3d, § 35:8 pp. 35-15 through 35-18 (emphasis added) ].
Another learned treatise states:
Antiassignment clauses in insurance policies are strictly enforced against attempted transfers of the policy itself before a loss has occurred, because this type of assignment involves a transfer of the contractual relationship and, in most cases, would materially increase the risk to the insurer. Policy provisions that require the company's consent for an assignment of rights are generally enforceable only before a loss occurs, however. As a general principle, a clause restricting assignment does not in any way limit the policyholder's power to make an assignment of the rights under the policy—consisting of the right to receive the proceeds of the policy—after a loss has occurred. The reasoning here is that once a loss occurs, an assignment of the policyholder's rights regarding that loss in no way materially increases the risk to the insurer. After a loss occurs, the indemnity policy is no longer an executory contract of insurance. It is now a vested claim against the insurer and can be freely assigned or sold like any other chose in action or piece of property. [17 Williston, Contracts (4th ed.), § 49:126, pp. 130-132 (emphasis added).]
The Restatement of Contracts 2d, § 322(1), pp. 31-32, articulates the same rule, stating, “Unless the circumstances indicate the contrary, a contract term prohibiting assignment of ‘the contract’ bars only the delegation to an assignee of the performance by the assignor of a duty or condition.” This principle is more clearly expressed in The Restatement of Contracts 2d, § 322(2), p. 32, which provides that “[a] contract term prohibiting assignment of rights under the contract ․ does not forbid assignment of a right to damages for breach of the whole contract or a right arising out of the assignor's due performance of his entire obligation[.]”
Defendant State Farm makes a public-policy argument, asserting that permitting the assignment of rights after the loss has occurred will significantly complicate the claims process. This argument is both factually and legally flawed. It is factually flawed for two reasons. First, defendant already has a claims process that has been operational for decades that allows for assignments and payments to providers. Second, defendant's claim of increased administrative costs is not supported by any evidence. It should come as no surprise that a court may not base its decision on factual assertions unsupported by any evidence; such factual assertions amount to nothing more than speculation until such evidence is proffered. Defendant's public-policy argument is legally flawed for two reasons. First, it is inconsistent with over 100 years of law. Second, defendant's position is intrinsically contrary to the purpose of the no-fault system, which is designed to provide “assured, adequate, and prompt reparation for certain economic losses.” Shavers v. Attorney General, 402 Mich. 554, 579, 267 N.W.2d 72 (1978) (emphasis added). Defendant takes the position that it has an unrestricted right to employ mechanisms to decrease its administrative costs even when those administrative mechanisms will result in a denial of benefits to injured persons who have paid their premiums and obtained reasonable and necessary medical treatment following a covered accident.
This view is contrary to Michigan law generally and to the no-fault act in particular. As the court explained in Wonsey v. Life Ins. Co. of North America, 32 F.Supp.2d 939, 943 (E.D.Mich. 1998):
[D]efendants strenuously argue that when a beneficiary of a structured settlement agreement decides to sell all or a number of his future payments, “it requires a complicated review process” and that “defendants [would be required] to review substantial paper work, and [to] determine if the assignment appears to be legal ․ and/or whether any guarantees or releases provided by the assignor ․ are satisfactory to fully and completely protect [defendants]․” The Court is not persuaded. The reasons asserted by defendants in objecting to the proposed assignment do not appear to amount to substantial harm or actual prejudice to defendants' interests, but merely center upon the necessary administrative tasks associated with the assignment's implementation. As such, defendants have not submitted sufficient reasons to ․ [enforce] contractual antiassignment clauses. [Second and third alteration in original; emphasis added.]
The no-fault act itself speaks to the issue of assignment. It provides, “An agreement for assignment of a right to benefits payable in the future is void.” MCL 500.3143 (emphasis added). Notably, the Legislature elected not to void assignment of past-due benefits. By not including past-due benefits in this statutory prohibition, the Legislature, under the doctrine of expressio unius est exclusio alterius, made clear its intent to adhere to the fundamental principle that assignments of past-due benefits are effective and proper.
Defendant argues that its “right of contract” must supersede these longstanding principles. However, it cites nothing in the no-fault act providing that insurers may add policy language, ostensibly to limit administrative costs, that has the effect of denying benefits to individuals who are entitled to them under the statutory language. Defendant cites Rory v. Continental Ins. Co., 473 Mich. 457, 703 N.W.2d 23 (2005), for the principle that an insurance contract may include provisions to which the no-fault act does not speak. However, defendant reads Rory too generously. Rory involved uninsured motorist coverage, an insurance product whose mechanism is not governed by the no-fault act.1
Defendant's theory seems to be that it may include any provision in its policies so long as the provision is not explicitly barred in the no-fault act. It contends, therefore, that it has the right to add policy provisions not provided for in the act whose result, if not purpose, is to deny benefits to people who qualify under the statute. This position cannot be squared with the fundamental goal of the no-fault act to provide “assured, adequate, and prompt reparation for certain economic losses.” Kelley, 402 Mich. at 579, 267 N.W.2d 72 (emphasis added).
Defendant's conceptual error lies in its view that the no-fault act is defined by what it does not say, i.e., because the act does not explicitly prohibit an antiassignment provision, an insurer is free to insert such a provision into the policy regardless of its effect on the functioning of the no-fault system and an insured's ability to obtain covered medical treatment. However, the no-fault act must be defined by what it does say. It defines a comprehensive statewide system designed to provide “assured, prompt and adequate” coverage for medical services following an auto accident. Id. The fact that the Act does not contain an omnibus list of actions inconsistent with that comprehensive system does not mean that it intended that such actions be permitted. There is nothing in the act that indicates that the Legislature intended to allow insurers to unilaterally add limitations on benefits. Ultimately, if insurers are free to add whatever administrative conditions or hurdles their policy drafters can define, then the Legislature's comprehensive system will be sliced and diced by artfully drafted policy provisions, depriving insureds the benefits they paid for and that which the no-fault act mandates. Defendant's position is a slippery slope by which the no-fault system dies the death of a thousand cuts.
II. ONE-YEAR-BACK RULE
I dissent from the majority's conclusion that the one-year-back date should be measured from the date of the assignment and not from the date that suit was filed. The statute provides that benefits may not be recovered “for any portion of the loss incurred more than 1 year before the date on which the action was commenced.” MCL 500.3145(1) (emphasis added). In this case, the action was commenced on February 24, 2017, by these plaintiffs—Jawada Shah, M.D., PC; Integrated Hospital Specialists, PC; Insight Anesthesia, PLLC; and Sterling Anesthesia, PLLC—against this defendant. Nothing has changed in the nature of the action. I respectfully suggest that the majority is mistaken in its view that the addition of an allegation to establish standing when the issue is raised “commences” a new “action.”
The majority cites scant authority for this position. It cites Burkhardt v. Bailey, 260 Mich.App. 636, 653, 680 N.W.2d 453 (2004), for the general principle that an ‘‘assignee stands in the position of the assignor, possessing the same rights and being subject to the same defenses.” 2 From this, the majority concludes that “plaintiffs could not obtain any greater rights from Hensley on the date of the assignments—July 11, 2017—than Hensley himself possessed on that date.” However, the triggering of the one-year-back statute does not depend on whether there was a “right” to file suit; it triggers on the date suit was filed. Of course, if a party lacks the “right” to sue, then the court in which it was filed will dismiss it, and in those cases, the application of the one-year-back rule will not be at issue. However, here, plaintiffs sought to amend their complaint to cure the standing problem before the court ordered that it be dismissed, and as already noted, neither the parties nor the cause of action changed in any way.
The majority also relies on Grist v. Upjohn Co., 1 Mich.App. 72, 134 N.W.2d 358 (1965), to support its conclusion, but the question in that case was fundamentally different than the one before us today. In Grist, the plaintiff sued for defamation. Id. at 75, 134 N.W.2d 358. Later, she sought to add an additional count of defamation related to other acts that had occurred since the filing of her complaint. Id. at 76-77, 85, 134 N.W.2d 358. However, because the statute of limitations had run as to these new claims, she asserted that she could add them to her original complaint by the doctrine of relation back. Grist, 1 Mich.App. at 83-84, 134 N.W.2d 358. The Court rejected the argument, stating that the plaintiff could not add new claims as to which the statute had run by adding them to a previously filed action. Id. at 84-85, 134 N.W.2d 358. In the instant case, plaintiffs do not seek to add any claim and certainly do not seek to add a claim as to which the statute of limitations has run. Indeed, every claim at issue in this case was defined and set forth in the initial complaint. Plaintiffs seek exactly what they sought at the outset of the case, payment of past-due benefits.
Accordingly, I would hold that the one-year-back period runs from the date the suit was filed.
III. RETROACTIVITY OF COVENANT
In Covenant, 500 Mich. at 195-196, 895 N.W.2d 490, the Michigan Supreme Court held that healthcare providers do not have an independent cause of action against a no-fault carrier for failure to pay benefits. In W.A. Foote Mem. Hosp., 321 Mich.App. at 196, 909 N.W.2d 38, this Court concluded that the rule articulated in Covenant should be applied retroactively. I agree with much of the Court's analysis in that case. The opinion accurately reviews the United States Supreme Court's decision in Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97, 100, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993), which held that retroactive application must be given to federal decisions involving Federal law but that the individual states are not bound to follow that rule when interpreting state law. I am less convinced by the W.A. Foote Mem. Hosp. Court's reliance on Spectrum Health Hosps v. Farm Bureau Mut. Ins. Co. of Mich., 492 Mich. 503, 536, 821 N.W.2d 117 (2012), to support its conclusion that Covenant should be applied retroactively. The Spectrum Health Hosps. Court continued to recognize an exception to the principle of retroactivity, stating:
When a statute law has received a given construction by the courts of last resort and contracts have been made and rights acquired under and in accordance with such construction, such contracts may not be invalidated, nor vested rights acquired under them impaired, by a change of construction made by a subsequent decision. [Id. (quotation marks and citation omitted).]
The Court went on to note that in the case before it, the “decision today does not at all affect the parties' contractual rights” and should be retrospectively applied. Id. at 536-537, 821 N.W.2d 117.
There is no question that plaintiffs: (1) properly and reasonably relied on what appeared to be settled law when they filed suit, (2) provided services to defendant's insured based upon that law, and (3) have not been paid. A prospective application would merely allow healthcare providers who provided services based on the law as it was universally understood to be paid for those already-provided services. A retroactive application, by contrast, creates a distorted result inconsistent with the no-fault act. The hospital, which provided a valuable service, will remain unpaid, while the insurer, which has already been paid through the insured's premiums, will not have to provide the service it was paid to perform.
With these concerns in mind, I respectfully suggest that the better course would be to follow the common-sense principles described in Tebo v. Havlik, 418 Mich. 350, 343 N.W.2d 181 (1984), which involved complaints that were filed before the Supreme Court's decision in Putney v. Haskins, 414 Mich. 181, 324 N.W.2d 729 (1982). In Putney, the Supreme Court concluded that MCL 436.22(5)3 required dramshop plaintiffs “to name and retain” the intoxicated driver as a defendant until the litigation was concluded when also suing the bar or retail liquor licensee that served the intoxicated driver. The question in Tebo, therefore, was whether the Court's interpretation of the “name and retain” requirement—which implicitly overruled earlier Court of Appeals decision—should be applied retroactively, which would result in the dismissal of many dramshop cases filed before that case. The Tebo Court stated:
It is evident that there is no single rule of thumb which can be used to accomplish the maximum of justice in each varying set of circumstances. The involvement of vested property rights, the magnitude of the impact of decision on public bodies taken without warning or a showing of substantial reliance on the old rule may influence the result.
The benefit of flexibility in opinion application is evident. If a court were absolutely bound by the traditional rule of retroactive application, it would be severely hampered in its ability to make needed changes in the law because of the chaos that could result in regard to prior enforcement under that law. Placek v. City of Sterling Heights, 405 Mich. 638, 665, 275 N.W.2d 511 (1979).
Appreciation of the effect a change in settled law can have has led this Court to favor only limited retroactivity when overruling prior law. Thus, when the doctrine of imputed negligence was overruled in Bricker v. Green, 313 Mich. 218, 21 N.W.2d 105 (1946), the decision was applied only to the case before the Court and to pending and future cases. When the doctrine of charitable immunity was overruled in Parker v. Port Huron Hospital, 361 Mich. 1, 105 N.W.2d 1 (1960), the retroactive effect of the decision was limited to the parties before the Court. Even where statutory construction has been involved, this Court has limited the retroactivity of a decision when justice so required.
The question before us is whether our interpretation of a statute should be applied retroactively to the statute's effective date. In Putney, we found the clear import of the statute to be to require the plaintiff to name and retain the allegedly intoxicated person at risk. Were Putney a case of first impression in the Michigan courts, we would hold that the statutory language gave plaintiffs no reason to believe that the settlements entered into would comply with the “retain” portion of the statute. Putney, however, was not a case of first impression in the Michigan courts. [Tebo, 418 Mich. at 360-361, 343 N.W.2d 181 (opinion by Brickley, J.) (quotation marks and some citations omitted).]4
The Tebo Court further stated:
In light of the unquestioned status of [Buxton v. Alexander, 69 Mich.App. 507, 245 N.W.2d 111 (1976),] at the time Putney was decided by this Court, it would be unjust to apply Putney retroactively to persons other than those before the Court in that case.
In contrast to the harsh effect which the full retroactivity of Putney would have on injured plaintiffs, prospective application will have little effect on dramshop defendants in those pending cases where settlement agreements have been made, even though the defense of Putney will be unavailable. For them, the law will simply remain as it was from 1976 to 1982. We hold that Putney v. Haskins is applicable to all cases where settlement agreements are entered into with the allegedly intoxicated person after the date of decision in Putney. [Tebo, 418 Mich. at 363-364, 343 N.W.2d 181.]
For these reasons, I conclude that W A Foote Mem. Hosp. was wrongly decided and that Covenant should only be applied prospectively.
I join the majority in holding that the antiassignment clause in the policy is unenforceable. I dissent from the majority's conclusion as to the one-year-back rule, which I conclude should be calculated from the date plaintiffs filed suit.
1. We note that there are four assignments attached to plaintiffs’ brief in opposition to defendant's motion for summary disposition and that two of those assignments explicitly designate plaintiffs Jawad A. Shah, M.D., PC, and Integrated Hospital Specialists, PC, as assignees. However, the names of the designated assignees in the other two assignments do not match the names of the remaining two plaintiffs. Nonetheless, in the trial court, defendant conceded in its reply brief in support of its summary-disposition motion that Hensley had executed an assignment to each plaintiff. Thus, as will be further explained later in this opinion, it appears that the parties assumed that all plaintiffs received assignments of rights from Hensley and that the parties essentially disputed only (1) whether these assignments were valid in light of the antiassignment clause in Hensley's insurance policy and (2) whether an amended complaint based on that assignment would relate back to the date of the original complaint. For purposes of this opinion, we assume, without deciding, that the assignments effectively assigned the stated rights to plaintiffs in this case as long as such assignments were not barred by the antiassignment clause. The only issue with respect to the validity of the assignments that was actually raised and decided in the trial court was the effect of the anti-assignment clause. Therefore, we limit our review to this issue. See Allen v. Keating, 205 Mich.App. 560, 564-565, 517 N.W.2d 830 (1994).
2. The assignment-of-rights forms provided in pertinent part that Hensley was assigningall rights, privileges and remedies to payment for health care services, products or accommodations (“Services”) provided by Assignee to Assignor to which Assignor is or may be entitled under MCL 500.3101, et seq., the No Fault Act. This Assignment is for the right to payment of Assignee's charges, only, and not for the right to payment of any other No Fault insurance benefits.The Assignment as set forth above is for all services already provided to Assignor by Assignee prior to or at the time of Assignor's execution of this agreement. Specifically, this Assignment does not include an Assignment of any future No Fault benefits.
3. This order appears to be missing from the lower court file; however, a true copy of this order was provided to this Court on appeal.
4. We note that the primary thrust of defendant's appellate argument in response to plaintiffs’ retroactivity argument is that plaintiffs failed to preserve this issue for appeal.
5. We acknowledge that decisions of our Supreme Court and this Court have applied the plain-error standard of review to certain unpreserved issues in the civil context. See, e.g., Wischmeyer v. Schanz, 449 Mich. 469, 483 & n. 26, 536 N.W.2d 760 (1995); Kern v. Blethen-Coluni, 240 Mich.App. 333, 336, 612 N.W.2d 838 (2000). However, we do not decide today under what circumstances the plain-error standard of review should be applied in the civil context. In this case, we simply conclude that there is no need to review plaintiffs’ unpreserved issue at all because it was waived and no compelling circumstances exist to justify appellate review.We also recognize the general distinction between forfeiture and waiver, but, as our Supreme Court has explained, the term ‘‘waiver” in the civil-procedure context ‘‘is typically used in the colloquial sense, encompassing inaction that would technically constitute forfeiture.” Walters, 481 Mich. at 384 n. 14, 751 N.W.2d 431. That is exactly what happened in this case: plaintiffs failed to raise any argument in the trial court challenging the applicability of the Covenant decision to this case, thereby waiving appellate review of that issue, and none of the reasons that would justify exercising our discretion to disregard the preservation requirement exists.
6. We note that this Court declined in both W.A. Foote and VHS Huron Valley to decide whether Covenant was to be given limited or full retroactive effect because that question was not necessary to the resolution in either of those cases. See W.A. Foote, 321 Mich.App. at 174 n. 9, 909 N.W.2d 38; VHS Huron Valley, 322 Mich.App. at 714, 916 N.W.2d 218. However, plaintiffs have not provided any discussion or legal analysis addressing whether Covenant should receive limited or full retroactive effect in the instant case. Therefore, any such argument is abandoned. See Wilson v. Taylor, 457 Mich. 232, 243, 577 N.W.2d 100 (1998) (“It is not sufficient for a party simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.”) (quotation marks and citation omitted); Houghton v. Keller, 256 Mich.App. 336, 339-340, 662 N.W.2d 854 (2003) (“An appellant's failure to properly address the merits of his assertion of error constitutes abandonment of the issue.”).
7. We note that an application for leave to appeal to our Supreme Court has been filed in both W.A. Foote and VHS Huron Valley.
8. Plaintiffs did not argue in the trial court that the antiassignment clause was ambiguous, and this argument is therefore waived for appellate review. Walters, 481 Mich. at 387, 751 N.W.2d 431.
9. While we recognize that cases from 1993 and 2003 are not exactly recent in the ordinary sense, they certainly are recent when compared to a case from 1880.
10. We recognize that lower federal court decisions are not binding on state courts, but they may be considered persuasive. Abela v. Gen. Motors Corp., 469 Mich. 603, 607, 677 N.W.2d 325 (2004).
11. Although the Grist Court was discussing GCR 1963, 118.5, this former court rule was substantively the same as the current court rule addressing supplemental pleadings, which is MCR 2.118(E).
12. Although the language from Jones that we have quoted was a quotation attributed to the circuit court judge in that case, our Supreme Court explicitly adopted this reasoning. Id. at 682, 91 N.W.2d 889.
13. Moreover, neither party has argued in the trial court or on appeal that the trial court erroneously considered material outside the pleadings in treating the summary disposition as a motion under MCR 2.116(C)(8). Therefore, any potential appellate challenge on this ground is abandoned. Houghton, 256 Mich.App. at 339-340, 662 N.W.2d 854.
1. I respectfully suggest that the Michigan Supreme Court should revisit Rory’s conclusion that there is no such thing as a “contract of adhesion.” Anyone (except perhaps some lawyers and judges) who has ever purchased an automobile insurance policy—which under state law all car owners must do—knows exactly what a contract of adhesion is. One party, typically an individual, is presented with a preprinted policy and told to “take it or leave it.” On the other side is typically an insurance entity with billions of dollars in assets and multiple employees dedicated to drafting contract language that will favor the entity in every way possible under the law or in what the entity hopes it can reshape the law to be. If the individual, assuming he or she is able to understand the policy language, declines to accept every word as written, they will not be permitted to purchase a policy. No revisions are even entertained. Moreover, if this individual then seeks coverage from a competitor insurer, they are all but certain to face the same or similar situation. In sum, the only “freedom of contract” that an individual purchaser has is to buy or not to buy a policy. And that freedom is illusory because by law every vehicle owner must obtain insurance. Accordingly, I respectfully suggest that the “freedom of contract” discussed in Rory is less a reality in this context than it is a phrase used to permit the judicial branch to ignore the words and the will of the Legislature as defined in the no-fault act.
2. Burkhardt was not a no-fault case and the question was whether a party could assign rights it did not possess at the time of the assignment. In the instant case, by contrast, there is no dispute about the insured's possession of the right to benefits when he assigned them to the plaintiff healthcare providers. Specifically, Burkhardt concerned multiple parties involved in a tax foreclosure and subsequent assignments. The party foreclosed upon, Michael Bailey, did not redeem, and the plaintiff purchased the property at tax auction. Id. at 639-640, 680 N.W.2d 453. The plaintiff, however, failed to give notice to the mortgagor, Bond Corporation. Id. at 640, 680 N.W.2d 453. The case came before this Court twice. In its first decision, the Court refused to quiet title and held that Bailey had lost all rights of redemption but that the plaintiff still had time to provide notice to the mortgagee who could, thereupon, object and assert its rights, which Bond later did. Id. at 641, 680 N.W.2d 453. While the case was pending on appeal, the intervening defendants, Ralph and Lona Hamilton, provided funds to Bailey to pay off his mortgage and Bond recorded a discharge of the mortgage. Id. at 641-642, 680 N.W.2d 453. After the discharge of the mortgage, Bond assigned any rights of redemption it had to the Hamiltons, who sought to redeem. The Court determined that once the mortgage was discharged, Bond's rights as mortgagor were extinguished and that Bond accordingly had no right of redemption to assign to the Hamiltons. Id. at 645-646, 680 N.W.2d 453. Accordingly, the Court concluded that Bond's assignment to the Hamiltons was void and granted the plaintiff a quiet-title judgment. Id. at 660-661, 680 N.W.2d 453.
3. MCL 436.22, as amended by 1980 PA 351, was in effect when Putney was decided. That statute was repealed by 1998 PA 58 and replaced by MCL 436.1801, as enacted by 1998 PA 58.
4. Justice Boyle concurred with Justice Brickley's opinion in full. Tebo, 418 Mich at 368, 343 N.W.2d 181. Justice Cavanagh participated only in the Court's consideration of the companion case of Burns v. Carver, but otherwise concurred with Justice Brickley. Id. In separate concurrences, Chief Justice Williams and Justice Ryan agreed with the retroactivity decision. Id. at 368-369, 343 N.W.2d 181 (Williams, C.J., concurring); id. at 373, 343 N.W.2d 181 (Ryan, J., concurring).
Tukel, J., concurred with Borrello, P.J.
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Docket No: No. 340370
Decided: May 08, 2018
Court: Court of Appeals of Michigan.
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