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Cherry v Progressive Marathon Ins Co (COA – UNP 6/16/2022; RB #4439)   

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Michigan Court of Appeals; Docket #357722; Unpublished 
Judges Letica, Kelly, and Riordan; Per Curiam 
Official Michigan Reporter Citation: Not Applicable; Link to Opinion


STATUTORY INDEXING: 
One-Year-Back Rule Limitation – Tolling Under 2019 Amendments [§3145(1)]

TOPICAL INDEXING: 
2019 PA 21 – Retroactivity
Legislative Purpose and Intent


SUMMARY: 
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Christopher Cherry’s first-party action against Defendant Progressive Marathon Insurance Company (“Progressive”).  The Court of Appeals held that the 2019 amendments (2019 PA 21) to the no-fault act—specifically, that which added the “formal denial” tolling provision to MCL 500.3145(3)—did not apply retroactively, and that Cherry’s action seeking to recover no-fault PIP benefits he incurred more than one-year prior to the filing date of his complaint—and prior to the effective date of the 2019 amendments—was barred pursuant to the former one-year-back rule.

Christopher Cherry was injured in a motor vehicle accident in January of 2014, after which he sought PIP benefits under his wife’s no-fault policy with Progressive.  Progressive initially denied Cherry’s claim—arguing that Cherry’s wife made material misrepresentations on her original application for insurance—but ultimately settled his claim in 2016.  Cherry continued receiving treatment for his injuries between April 2017 and April 2018, after which his doctor submitted additional claims to Progressive.  Progressive responded to Cherry’s doctor with EOBs stating that it was paying “$0.00,” because an investigation “reveal[ed] that the policy was not in force for the above referenced accident.”  In June 2020, Cherry filed the underlying first-party action against Progressive, seeking payment of charges incurred from 2017 to January 2018, or 18 months prior to the effective of the 2019 amendments.  Progressive moved for summary disposition, arguing that Cherry’s action was barred by the pre-2019 amendments-version of the one-year-back rule, because the charges at issue were incurred more than a year before his suit was filed, and prior to the effective date of the 2019 amendments, i.e., June 11, 2019 . Cherry, however, argued that the charges were governed by the post-amendments version to MCL 500.3145(3), given that he filed suit after the effective date of the amendments, and that because he never received a ‘formal denial’ of his claim, the charges were not barred by the new one-year-back rule.  The trial court granted summary disposition in Progressive’s favor, ruling (1) that the EOBs constituted a formal denial and, alternatively, that (2) the 2019 amendments to MCL 500.3145 did not apply retroactively to the toll the charges at issue in the case.

The Court of Appeals affirmed the trial court’s summary disposition order, holding that the amendments to MCL 500.3145(3) set forth in 2019 PA 21 did not apply retroactively to toll charges incurred prior to the effective of the 2019 amendments, because the legislature did not include language expressing a ‘clear, direct, and unequivocal’ intent to the contrary. Accordingly, the charges at issue in this case were not tolled by the newly added ‘formal denial’ provision.

“In the amended version of MCL 500.3145, the Legislature did not include language expressing its ‘clear, direct, and unequivoca’ intent to apply this statute retroactively. Davis, 272 Mich App at 156. Accordingly, the preamendment version of the no-fault act applies to the issues in this case. Id. . . . 

In moving for summary disposition, defendant asserted that plaintiff failed to show the action ‘commenced at any time within 1 year after the most recent allowable expense . . . has been incurred.’ To substantiate this argument, defendant presented the EOBs showing plaintiff’s most recent expense occurred on January 11, 2018. Thus, under the plain language of MCL 500.3145(1), plaintiff should have brought suit by January 11, 2019, one year from the most recent expense. Because plaintiff filed suit on June 12, 2020, the claim was untimely under the statute.” 

In a footnote, the Court of Appeals also seemingly held that the EOBs did constitute a formal denial, because they referenced a denial code and because “the plain language of the statute does not require that the denial of the claim be sent to both the claimant and the insured.”  Thus, even if the information contained in an affidavit Cherry executed was true—that he did not have knowledge of the denial of his doctor’s claim—his action would still fail.


Michigan auto accident attorney Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit SinasDramis.com.

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