Michigan Court of Appeals; Docket #358799; Unpublished
Judges Gleicher, Markey, and Patel; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
One-Year Notice Rule Limitation [§3145(1)]
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s denial of Defendant Auto Club Insurance Association’s (“Auto Club”) motion for summary disposition, in which it sought dismissal of Plaintiffs Executive Ambulatory Surgical Center and Premier Orthopedic Group PC’s (“Premier Orthopedic”) first-party action against it. The Court of Appeals held that Joseph Closser—who was diagnosed with a shoulder injury four years after a motorcycle-versus-motor vehicle accident—gave Auto Club sufficient notice of his shoulder injury within one year of the accident by reporting ‘neck pain’ as one of his early symptoms.
Joseph Closser was injured in a motorcycle-versus-motor vehicle accident on August 21, 2015, soon after which he underwent numerous surgeries to both knees and his left hip. Auto Club paid for these initial surgeries, and then on September 22, 2015, Closser notified Auto Club that he was continued to suffer from ‘whole body’ pain, most pronounced in his left hip, right knee, both wrists, and his neck. He notified Auto Club again, on June 1, 2016, that he was suffering from neck pain, but he did not receive treatment for what he described as pain ‘start[ing] in the back of [his] neck, radiat[ing] to [his] right shoulder’ until July of 2019. Testing of the area revealed a possible rotator cuff in Closser’s right shoulder, requiring surgical repair. Closser sought reimbursement from Auto Club for the surgery, but Auto Club denied his claim, after which two of his treatment providers filed suit. Auto Club filed numerous motions for summary disposition, contending in one that Closser failed to give sufficient notice of his shoulder injury within one year of the accident, as is required by MCL 500.3145. The trial court disagreed and denied Auto Club’s motion.
The Court of Appeals affirmed the trial court’s denial of Auto Club’s motion, holding that Closser did provide sufficient notice to Auto Club of his shoulder injury within one year of the accident. Relying on the following principle gleaned from Dillon v State Farm Mut Auto Ins Co, 315 Mich App 339 (2017)—“notice for purposes of MCL 500.3145 is satisfied by a ‘description of symptoms that are traceable to a diagnosed injury,’ ”—the Court of Appeals found that Closser’s shoulder injury could be traced to his original complaint of neck pain. The Court based its finding principally on an affidavit from Premier Orthopedic doctor Jiab Suleiman, in which Suleiman testified that ‘often neck pain is caused by an injury to the shoulder.’
“In this case, Closser suffered various diagnosed injuries in his 2015 accident. However, he did not immediately experience any pain in his right shoulder. Within a year of the accident, Closser began reporting severe neck pain that he had not previously reported. Accepting Closser’s reports as true, as we must in connection with a MCR 2.116(C)(10) motion, by the fall of 2018, Closser began experiencing debilitating pain in his right shoulder that limited his ability to use his right arm. This eventually led to the discovery of a torn rotator cuff requiring additional surgery.
. . .
Dr. Suleiman’s affidavit creates some connection between Closser’s neck pain, which he reported about 10 months after his accident, and the left shoulder injury. Closser described that the pain in his right shoulder radiated from his neck, and the neck injury had already been established. A jury ultimately might not believe that Closser’s right shoulder injury arose out of the accident. However, the evidence supports a sufficient connection that Closser’s initial notice of injury covers the eventual expression of a shoulder injury.”