Phillips v. Protective Insurance Company et al

Filing 29

ORDER Granting 15 Protective Insurance Company's Motion for Partial Summary Judgment. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ERIC K. PHILLIPS,
Plaintiff,
v.

Case No. 16-10529
HON. DENISE PAGE HOOD

PROTECTIVE INSURANCE
COMPANY, and JOHN DOE,
Defendants.
__________________________________/
ORDER GRANTING PROTECTIVE INSURANCE COMPANY’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [#15]
I.

INTRODUCTION
Plaintiff has filed an uninsured motorist claim and a claim for No-Fault personal

injury protection (“PIP”) benefits against Defendant Protective Insurance Company
(“Defendant”) and John Doe for injuries suffered in an automobile accident that
occurred on January 23, 2014. Plaintiff filed his action in, and Defendant removed
the case from, Wayne County Circuit Court, in early 2016. On November 15, 2016,
Defendant filed a Motion for Partial Summary Judgment. [#15] Plaintiff’s response
was filed nearly six weeks late (and less than a week before the hearing). Defendant
filed a reply. A hearing was held on January 25, 2017. For the reasons that follow,
the Court grants Defendant’s Motion for Partial Summary Judgment.

II.

BACKGROUND
When Plaintiff was involved in the automobile accident on January 23, 2014,

he was working as an independent contractor for FedEx. Defendant had issued a
policy of insurance for “Certain Independent Contractors Under Lease to FedEx
Ground Package System, Inc. d/b/a Home Delivery,” pursuant to which Plaintiff was
insured. Shortly after the January 23, 2014 accident, Plaintiff filed a claim for
workers compensation benefits, and he received workers compensation benefits until
an independent medical examination determined that Plaintiff no longer met the
criteria for those benefits.
Plaintiff did not make a claim for benefits from Defendant immediately after
the January 23, 2014 accident. Plaintiff first requested uninsured or underinsured
motorist benefits from Defendant when he filed this lawsuit in Wayne County Circuit
Court on January 5, 2016. See Dkt. No. 1, PgID 38 (“Response” to “Request to Admit
#3). Defendant filed an answer and affirmative defenses in Wayne County Circuit
Court on or about January 28, 2016, and removed Plaintiff’s cause of action to this
Court on February 12, 2016.
III.

APPLICABLE LAW
Rule 56(a) of the Rules of Civil Procedures provides that the court “shall grant

summary judgment if the movant shows that there is no genuine dispute as to any
2

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The presence of factual disputes will preclude granting of summary judgment
only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby,
Inc. 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” only if
“the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. Although the Court must view the motion in light most favorable to the
nonmoving party, where “the moving party has carried its burden under Rule 56(c),
its opponent must do more than simply show that there is metaphysical doubt as to the
material facts.” Matsushita Electric Industrial Co. v. Zenth Radio Corp., 475 U.S.
574, 586 (1986) ; Celotex Corp. v. Caterett, 477 U.S. 317, 323-24 (1986). Summary
Judgement must be entered against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial. In such a situation, there can be “no
genuine issue as to any material face,” since a complete failure of proof concerning
an essential element of the nonmoving party’s case necessarily renders all other facts
immaterial. Celotex Corp., 477 U.S. at 322-23. A court must look at the substantive
law to identify which facts are material. Anderson, 477 U.S. at 248.

IV.

ANALYSIS
3

Pursuant to the No-Fault Act, the statute of limitations for bringing an action
for PIP benefits expires one year after the date of the accident causing the injury. See
M.C.L. § 500.3145(1), which provides, in relevant part:
An action for recovery of personal protection insurance benefits payable
under this chapter for accidental bodily injury may not be commenced
later than 1 year after the date of the accident causing the injury unless
written notice of injury as provided herein has been given to the insurer
within 1 year after the accident or unless the insurer has previously made
a payment of personal protection insurance benefits for the injury. If the
notice has been given or a payment has been made, the action may be
commenced at any time within 1 year after the most recent allowable
expense, work loss or survivor’s loss has been incurred. However, 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 notice of injury required by this subsection may be given to the
insurer or any of its authorized agents by a person claiming to be entitled
to benefits therefor, or by someone in his behalf. The notice shall give
the name and address of the claimant and indicate in ordinary language
the name of the person injured and the time, place and nature of his
injury.
In this case, it is undisputed that: (1) the injury occurred on January 23, 2014;
and (2) Plaintiff did not notify Defendant of his request for uninsured or underinsured
motorist benefits until nearly two years later, when he filed this lawsuit on January 5,
2016 and served Defendant on January 11, 2016. The Court finds that those
undisputed facts establish that Plaintiff did not commence his action within one year
of the date of the accident causing Plaintiff’s injury. The Court holds that Plaintiff’s
claims for No-Fault PIP benefits are barred by the statute of limitations set forth in
4

M.C.L. § 500.3145(1). The Court grants Defendant’s Motion for Partial Summary
Judgment and dismisses Plaintiff’s claims for No-Fault PIP benefits.
Plaintiff’s claims for benefits or expenses also are barred for the period prior
to January 5, 2015, pursuant to the “one-year-back rule.” As set forth in MCL §
500.3145(1), “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.” See
also Hudick v. Hastings Mut. Ins. Co., 247 Mich.App. 602, 607 (2001) (citation and
internal quotations omitted) (“Pursuant to the one-year-back rule of the statute, even
where the period of limitations is tolled under the notice of injury or payment for
benefits exceptions, an insured can only recover benefits for losses incurred within
one year preceding the commencement of the action.”). Accordingly, Plaintiff cannot
recover any benefits or expenses incurred prior to January 5, 2015.
Defendant also asserts that any benefits required to be provided by workers
compensation must be subtracted from any No-Fault benefits Defendant would have
to pay. Defendant relies on M.C.L. § 500.3109(1), which has bee applied with respect
to workers compensation benefits. See Mathis v. Interstate Motor Freight Syst., 408
Mich. 164, 187 (1980); Gregory v. Transamerica Ins. Co., 425 Mich. 625, 631-32,
636 (1986) (“The offset statute, and this Court’s application of it, reflect a
determination that the workers’ compensation system should be the primary insurer
5

with respect to disabilities arising from an automobile accident at work” and “the nofault insurer remains liable for any benefits due which are greater than the amounts
which the workers’ compensation system is required by statute to pay to disabled
workers”).
Based on the foregoing law, Defendant asserts that workers compensation
benefits are available to Plaintiff, and Plaintiff should be pursuing those benefits
through the workers compensation system. Defendant maintains that the only NoFault benefits unavailable to Plaintiff from the workers compensation system (such
that Defendant would be solely responsible for them) are household replacement
services and any wage loss differential. Citing M.C.L. § 500.3107.
III.

CONCLUSION
For the reasons stated above, IT IS ORDERED that Defendant’s Motion for

Partial Summary Judgment [#15] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s claims for No-Fault PIP benefits
are dismissed with prejudice.
IT IS ORDERED.
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: March 22, 2017

I hereby certify that a copy of the foregoing document was served upon counsel of
record on March 22, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

7