Massengale v. State Farm Mutual Automobile Insurance Company et al
ORDER Granting Defendant's 33 Motion to Certify the Court's Summary Judgment Orders for Immediate Appeal and to Stay Proceedings Pending Appeal. Signed by District Judge Terrence G. Berg. (HMon)
Case 2:18-cv-11366-TGB-APP ECF No. 36, PageID.1647 Filed 11/17/20 Page 1 of 4
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DEFENDANT’S MOTION TO
CERTIFY THE COURT’S
ORDERS FOR IMMEDIATE
APPEAL AND TO STAY
STATE FARM MUTUAL
This action involves an important unresolved question of Michigan
law. In its September 24, 2019 order, this Court denied Defendant’s
Motion for Summary Judgment after finding no privity for the purposes
of res judicata or collateral estoppel between Plaintiff Jennese
Massengale, as the injured-insured person, and Spine Rehab, her
medical provider as to some of her injuries relating to a car accident. ECF
No. 25. Because there was no privity, the Court held that Plaintiff did not
have a full and fair opportunity to litigate against Defendant State Farm
to recover for other medical costs she incurred even though Spine Rehab
had initiated on Plaintiff’s behalf a state court claim in which the jury
determined that she did not sustain an “accidental bodily injury” under
Michigan law. Now Defendant moves this Court to grant a certificate of
appealability authorizing it to file an application for an immediate
Case 2:18-cv-11366-TGB-APP ECF No. 36, PageID.1648 Filed 11/17/20 Page 2 of 4
interlocutory appeal of that ruling. Specifically, Defendant requests that
this Court certify for appeal the question of “whether an injured party
and her medical provider that receives a partial assignment of PIP
benefits are in privity?” ECF No. 33, PageID.1587.
28 U.S.C. § 1292(b) provides that a district court “shall” certify an
order for immediate interlocutory appeal when the order “involves a
controlling question of law as to which there is substantial ground for
difference of opinion,” and where permitting appeal would “materially
advance the ultimate termination of the litigation.” To obtain permission
to appeal pursuant to § 1292(b), the Sixth Circuit has held that the
petitioner must show that “(1) the question involved is one of law; (2) the
question is controlling; (3) there is substantial ground for difference of
opinion respecting the correctness of the district court’s decision; and (4)
an immediate appeal would materially advance the ultimate termination
of the ligation.” Vitols v. Citizens Banking Co., 984 F.2d 168, 170 (6th Cir
Here, Defendant argues that it has met its burden. As to the first
requirement, Defendant advances the notion that it is a pure question of
law as to “whether the partial assignment of no-fault PIP benefits under
Michigan law from an insured to a healthcare provider creates privity for
purposes of res judicata and collateral estoppel.” ECF No. 33,
PageID.1591. Second, if the Sixth Circuit were to hold that either or both
Case 2:18-cv-11366-TGB-APP ECF No. 36, PageID.1649 Filed 11/17/20 Page 3 of 4
of res judicata and collateral estoppel would bar Plaintiff’s claims, then
Defendant contends that this question is controlling under § 1292(b). Id.
at PageID.1594. Third, a “substantial ground for difference of opinion
respecting the correctness of the district court’s decision” is raised here
because Defendant provided notice and sent a subpoena for Plaintiff to
appear in the state court suit and thus Plaintiff was afforded the “ability
to fully and fairly litigate her interests.” Id. at PageID.1596. Finally,
Defendant argues that a decision by the Sixth Circuit answering the legal
issues would be dispositive and a more efficient process such that an
immediate appeal would “materially advance the ultimate termination of
the litigation.” Id. at PageID.1598 (citing Vitols, 984. F.2d 170).
The Court agrees. Because Michigan law has not addressed the
specific question raised here, a question of law exists. Moreover, this
question is “controlling” because it could “materially affect the outcome
of litigation” as it directly affects Defendant’s potential liability and
Plaintiff’s ability to recover for the remainder of her medical expenses.
While the Court is persuaded that there is no privity for the purposes of
res judicata and collateral estoppel between a medical provider and an
injured-insured party who has assigned some of her rights to the former,
it is arguable that under joinder rules, Plaintiff did have the ability to
fully and fairly litigate her interest in Spine Rehab’s state court suit.
Finally, if the Sixth Circuit does find that there is privity under such
Case 2:18-cv-11366-TGB-APP ECF No. 36, PageID.1650 Filed 11/17/20 Page 4 of 4
circumstances, Plaintiff’s suit might be subject to dismissal. Thus, all
requirements under § 1292(b) are satisfied. Defendant raises an issue
warranting review and the Court therefore certifies this order for
immediate interlocutory appeal.
IT IS ORDERED that Defendant’s Motion to Certify Summary
Judgment Orders for Immediate Appeal is GRANTED. ECF No. 33.
IT IS FURTHER ORDERED that all proceedings in this case are
STAYED until the resolution of Defendant’s interlocutory appeal to the
Sixth Circuit Court of Appeals. ECF No. 33.
Nothing in this decision shall be considered a dismissal or
disposition of this matter.
Dated: November 17, 2020 s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
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