Michigan Court of Appeals; Docket #348355; Unpublished
Judges Jansen, Meter, and Cameron; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s denial of defendant Auto-Owners’ motion for partial summary disposition seeking dismissal of the plaintiff Mark Marusza’s first-party action to recover no-fault PIP benefits. The Court held that a no-fault insurer cannot delay payment of no-fault PIP benefits while a workers’ compensation case is pending, even if an original workers’ compensation award has already been granted and the case in pendency is one for additional workers’ compensation benefits based on a change in the plaintiff’s circumstances.
Mark Marusza was struck by a motor vehicle while in the course of his employment, and subsequently filed a claim for workers’ compensation benefits. Marusza’s workers’ compensation insurer paid some of Marusza’s workers’ compensation benefits, but denied others, prompting Marusza to file an action against his own no-fault insurer, Auto-Owners Insurance Company, for PIP benefits. Approximately two-and-a-half-years after the collision, Marusza and Auto-Owners settled his claim for PIP benefits, with Auto-Owners agreeing to pay said benefits.
Marusza’s workers’ compensation case proceeded to the Worker’s Compensation Board of Magistrates (WCBM), and approximately four years after the collision, a magistrate ordered Marusza’s workers’ compensation insurer to pay for four hours of attendant care services per day at $16.11 per hour. Marusza’s workers’ compensation insurer proceeded to pay only $12 per hour for Marusza’s attendant care, however, alleging that the order only required that it pay $16.11 per hour so long as Marusza’s attendant care provider was employed by a certain agency, which she no longer was. Marusza then filed a complaint against his workers’ compensation insurer alleging that there had been a change in his condition that led to him needing more than four hours of attendant care per day, and seeking enforcement of the original hourly rate of $16.11 for such services.
While his case against his workers’ compensation provider was pending, Marusza and his service providers filed this first-party action against Auto-Owners, “asserting that Auto-Owners was obligated to pay for the services after AF refused the full hourly rate.” Auto-Owners moved for summary disposition, arguing that the WCBM’s opinion and order clearly stated that Marusza’s workers’ compensation insurer was required to pay for Marusza’s attendant care services, and that Marusza’s claim against Auto-Owners for payment of those same services was therefore barred by the doctrine of res judicata. Marusza argued in response that Auto-Owners was required to pay for his attendant care services while his workers’ compensation case was pending. The trial court ultimately denied Auto-Owners motion, ruling that Auto-Owners could not withhold payment of PIP benefits while the workers’ compensation case was pending.
On appeal, Auto-Owners argued that the trial court erred when it denied Auto-Owners’ motion for partial summary disposition because the original WCBM opinion and order held that Marusza’s workers’ compensation insurer “shall pay” for all his medical treatment related to the collision. Auto-Owners’ relied firstly on the setoff provision in MCL 500.3109, which provides:
Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury under this chapter.
The Court of Appeals held that the “‘required to be provided’ clause of § 3109(1) means that an injured person is obliged to use reasonable efforts to obtain payments that are available from a workers’ compensation insurer, which Marusza did. Moreover, multiple prior Court of Appeals’ decisions have held that no-fault insurers are required to pay PIP benefits while a workers’ compensation action is pending, even if “[the] plaintiff is seeking additional workers’ compensation benefits, rather than an original award,” as is the circumstance in this case.
This is true even though plaintiff is seeking additional workers’ compensation benefits, rather than an original award. In Conway, 180 Mich App at 450, as is the case here, the plaintiff sought “additional workers’ compensation benefits.” As the plaintiff’s additional workers’ compensation benefits had not yet been determined, this Court noted that, “[i]ndeed, a setoff cannot be made until the amount of workers’ compensation benefits to which plaintiff is entitled is finally determined.” Id. Furthermore, Auto Owners’ attempt to distinguish Perez is unpersuasive. Auto-Owners relies on a narrow reading of Perez, that is unsupported by the language in Perez, to argue that Perez only applies when an employer failed to obtain workers’ compensation coverage.
Auto-Owners also argued that Marusza’s claim was barred by the doctrines of res judicata and collateral estoppel, because the magistrate in the original workers’ compensation case “issued a final resolution on the issue of which insurer was responsible for plaintiff’s attendant care and nurse care management services.” The Court of Appeals disagreed, noting first that, “res judicata does not preclude a reevaluation of a claimant’s benefits when there has been a change in his condition,” and second that, “[f]or similar reasons, Auto-Owners’ argument that collateral estoppel bars relitigation of the issue here also lacks merit . . . [because] the issue of whether plaintiff is entitled to additional benefits based on a change of circumstances has never been litigated.”