Lead Opinion
At issue in this case is whether Michigan’s no-fault insurance act
In 1987, plaintiff suffered catastrophic injuries when the motorcycle he was riding collided with a car being operated by an insured of defendant. Plaintiffs injuries left him unable to speak or walk and rendered his entire right side virtually useless. A family member tends to all of plaintiffs personal and financial affairs.
Plaintiff requires wheelchair-accessible transportation to go to work five days a week, visit his family, attend medical appointments, and get around the community. On three prior occasions, defendant agreed to pay the full cost of purchasing a van large enough for plaintiff to get in and out while remaining in his wheelchair. Defendant also agreed to pay the cost of modifying the vehicle to make it wheelchair-accessible. In 1988, 1994, and 2000, plaintiff and defendant entered into contracts under which defendant purchased a van and paid for the necessary modifications with the expectation that the van would last for seven years. At the end of the van’s life, plaintiff would give defendant notice of his intent to purchase a new van, and the parties would enter a new agreement. The most recent “Transportation Purchase Agreement” was executed on April 26,2000. It specified that plaintiff was to notify defendant 60 days before purchasing a new van and that the old van’s value would be applied to the purchase price of the new van.
In December 2006, plaintiff, through his guardian, notified defendant that it was time to purchase a new van. In January 2007, defendant informed plaintiff by letter that it had determined that it was not obligated to pay the base purchase price of a new van under the transportation purchase agreement or the no-fault insurance act. Defendant acknowledged that, pursuant to the transportation purchase agreement, the “current
Plaintiff sued defendant for reimbursement of the $18,388.50, claiming that it was an allowable expense under Michigan’s no-fault insurance act. Defendant moved for summary disposition, arguing that this Court’s decision in Griffith v State Farm Mutual Automobile Insurance Co
Defendant appealed by right in the Court of Appeals, which affirmed in an unpublished decision.
On its face, the contract does not provide that defendant is required to buy a new van. It says that the van shall be*17 traded in on a replacement van but it does not say that defendant will pay for the replacement. However, the contract also does not say that plaintiff is responsible for buying the new van.[4 ]
Accordingly, the panel held that “the trial court erred in evidently concluding that the transportation purchase agreement mandated that it grant summary disposition to plaintiff.”
The Court of Appeals panel then proceeded to address whether Michigan’s no-fault insurance act required reimbursement for both the purchase price of a van and the modifications to accommodate the insured’s disability. Defendant again relied primarily on this Court’s decision in Griffith, which held that the no-fault insurance act did not require the insurer to reimburse the insured for food costs absent evidence that the food was somehow different than what was required before the plaintiffs accident.
The panel disagreed with defendant’s characterization of Griffith, instead relying on its own decision in Begin v Michigan Bell Telephone Co.
Defendant sought leave to appeal. After hearing oral arguments on the application,
II. STANDARD OF REVIEW
Whether MCL 500.3107(l)(a) requires an insurer to reimburse an insured claimant for the full cost of a vehicle and modifications necessary to accommodate the insured claimant’s disability is a question of statutory interpretation that this Court reviews de novo.
A. LEGAL BACKGROUND
MCL 500.3107(l)(a) permits an injured person to recover personal injury protection (PIP) benefits from an insurer for “[allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” This Court has often been called on to determine the reach of this provision.
In determining whether the particular expense was for “ ‘reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation,’ ” this Court defined the terms “care,” “recovery,” and “rehabilitation.”
Generally, “care” means “protection; charge,” and “to make provision.” Random House Webster’s College Dictionary (2001). Thus, taken in isolation, the word “care” can be broadly construed to encompass anything that is reasonably necessary to the provision of a person’s protection or charge. But we have consistently held that “[c]ourts must give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory.” State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002). Therefore, we must neither read “care” so broadly as to render nugatory “recoveiy and rehabilitation” nor construe “care” so narrowly that the term is mere surplusage. “Care” must have a meaning that is related to, but distinct from, “recovery and rehabilitation.”
*21 As an initial matter, it is important to note that the statute does not require compensation for any item that is reasonably necessary to a person’s care in general. Instead, the statute specifically limits compensation to charges for products or services that are reasonably necessary “for an injured person’s care, recovery, or rehabilitation.” (Emphasis added.) This context suggests that “care” must be related to the insured’s injuries.
“Care” must have a meaning that is broader than “recovery” and “rehabilitation” but is not so broad as to render those terms nugatory. As noted above, both “recovery” and “rehabilitation” refer to an underlying injury; likewise, the statute as a whole applies only to an “injured person.” It follows that the Legislature intended to limit the scope of the term “care” to expenses for those products, services, or accommodations whose provision is necessitated by the injury sustained in the motor vehicle accident. “Care” is broader than “recovery” and “rehabilitation” because it may encompass expenses for products, services, and accommodations that are necessary because of the accident but that may not restore a person to his preinjury state.[20 ]
Having determined at the outset that Griffith’s food could not be for recovery or rehabilitation because it lacked curative properties, this Court proceeded to explain that ordinary food also could not be for Grif
This Court drew an important distinction between ordinary food eaten by an injured person at home and ordinary food provided by a hospital during the injured person’s stay, stating that
it is “reasonably necessary” for an insured to consume hospital food during in-patient treatment given the limited dining options available. Although an injured person would need to consume food regardless of his injuries, he would not need to eat that particular food or bear the cost associated with it. Thus, hospital food is analogous to a type of special diet or select diet necessary for an injured person’s recovery. Because an insured in an institutional setting is required to eat “hospital food,” such food costs are necessary for an insured’s “care, recovery, or rehabilitation” while in such a setting. Once an injured person leaves the institutional setting, however, he may resume eating a normal diet just as he would have had he not suffered any injury and is no longer required to bear the costs of hospital food, which are part of the unqualified unit cost of hospital treatment.[23 ]
This Court specifically noted that MCL 500.3107(l)(a) requires insurers to cover hospital food as an allowable expense for the care of an injured person because the person is required to eat hospital food precisely because of
Several Court of Appeals decisions have attempted to interpret MCL 500.3107(1)(a) in light of Griffith, yet they have taken inconsistent approaches in Griffith’s application. For instance, the Court of Appeals applied Griffith to housing expenses in Ward v Titan Insurance Co.
Under the Griffith analysis, plaintiffs housing costs are only compensable to the extent that those costs became greater as a result of the accident. Plaintiff must show that his housing expenses are different from those of an uninjured person, for example, by showing that the rental cost for handicapped accessible housing is higher than the rental cost of ordinary housing. In the absence of that kind of factual record, the trial court erred by concluding that plaintiff was entitled to housing costs compensation merely on the basis of the amount plaintiff was currently paying in rent, for a residence that the record does not even demonstrate was handicapped accessible.[27 ]
As a result, the court reversed the trial court’s award of the entire amount of the insured’s postinjury housing, instead holding that an insurer is only liable for the increase in housing costs attributable to the injury.
Similarly, in Hoover v Michigan Mutual Insurance Co,
At its core, the holding in Griffith requires a court to determine whether expenses would not have been incurred but for the accident and resulting injuries. Stated otherwise, the question is whether the expenses would have been incurred in the course of an ordinary life unmarred by an accident. And if they would have been incurred, like the ordinary food costs at issue in Griffith, a causal connection between the expenses and the accidental bodily injury would be lacking and it could not be said that the act of providing products, services, and accommodations was necessitated by the accidental bodily injury.[29 ]
The Hoover Court understood Griffith as requiring a comparison of the injured person’s preinjury expenses to the injured person’s postinjury expenses, with the insurer covering the difference.
But the Court of Appeals adopted a different approach in Begin, which presented a similar factual situation to the instant case: a dispute over whether an insurer was responsible for the base price of a van for the insured plaintiff.
[T]he Griffith Court, when discussing the cost of food provided to an injured person in an institutional setting, did not suggest that only the marginal increase in the cost of such food served in an institutional setting would be an allowable expense. Nor did the Court suggest that only the*25 marginal cost of modifying regular shoes would be a recoverable “allowable expense” under MCL 500.3107(1)(a). Rather, in each example, the product, service, or accommodation used by the injured person before the accident is so blended with another product, service, or accommodation that the whole cost is an allowable expense if it satisfies the statutory criteria of being sufficiently related to injuries sustained in a motor vehicle accident and if it is a reasonable charge and reasonably necessary for the injured person’s care, recovery, or rehabilitation under MCL 500.3107(1)(a).[32 ]
Thus, Begin held, if a particular product, service, or accommodation satisfies the requirements of MCL 500.3107(1)(a), then the insurer must also cover as “allowable expenses” all associated expenses that are “blended” with the qualifying expense.
B. INTERPRETATION
As stated, MCL 500.3107(1)(a) permits an injured person to recover PIP benefits from an insurer for, “[allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” Under Griffith, this provision requires that “an ‘allowable expense’ must be ‘for’ one of the following: (1) an injured person’s care, (2) his recovery, or (3) his rehabilitation.”
Further, nothing in the statutory language of MCL 500.3107(1)(a) supports the notion that postinjury allowable expenses should be reduced by the margin of the injured person’s preinjury expenses of the same character. Complying with MCL 500.3107(1)(a) and determining what products, services, and accommodations are actually for the injured person’s care, recovery, or rehabilitation requires a careful examination of the injured person’s postaccident expenses. A mere change in the injured person’s postaccident expenses is insufficient to satisfy MCL 500.3107(1)(a); the new expense must be of a wholly different essential character than expenses borne by the person before the accident to show that it is for the injured person’s care, recovery, or rehabilitation. But if an expense is new in its essential character, and thus actually for the injured person’s care, recovery, or rehabilitation, MCL 500.3107(1)(a) requires that it be covered in full regardless of whether the expense represents an increase or decrease in the injured person’s preaccident costs.
Special accommodations or modifications to an ordinary item present a particular challenge. A “combined” product or accommodation results from an ordinary expense, unchanged as a result of the injury, being joined with an accommodation or product that is actually for the injured person’s care, recovery, or rehabilitation. An “integrated” product or accommodation involves the blending of an ordinary expense with one that is for the injured person’s care, recovery, or rehabilitation in a way that the resulting product or accommodation cannot be separated easily into unit costs. Unlike an integrated product or accommodation, a combined product or accommodation can be separated easily, both conceptually and physically, so that the fact-finder can identify which costs are of a new character and are thus for the injured person’s care, recovery, or rehabilitation and which costs are ordinary, everyday expenses that are unchanged after the accident. As this Court suggested in Griffith, MCL 500.3107(1)(a) requires the insurer to cover a truly integrated product or accommodation in full because the entire expense, including the portions that might otherwise be considered ordinary, is necessary for the injured person’s care, recovery, or rehabilitation.
This analysis is consistent with this Court’s application of MCL 500.3107(1)(a) in Griffith. In its discussion of insurance coverage for hospital food during the insured’s hospital stay, the Griffith Court stated that compensation was required because the insured was required to eat “that particular food.”
In sum, MCL 500.3107(1)(a) only requires an insurer to pay for products, services, and accommodations that are reasonably necessary to the object or purpose of “an injured person’s care, recovery, or rehabilitation.” Post-accident expenses of a wholly new essential character satisfy the statutorily required causal connection that expenses be for the injured person’s care, recovery, or rehabilitation. Ordinary expenses that are the same for an injured and an uninjured person are not recoverable at all because the claimant cannot show that the expense is for his or her care, recovery, or rehabilitation. However, if an expense satisfies the statute, then it is recoverable in full; there is no setoff based on the injured person’s preinjury expenses of the same character. Some products, services, or accommodations might otherwise be ordinary but are so integrated with a product, service, or accommodation that is actually for the injured person’s care, recovery, or rehabilitation that the entire product, service, or accommodation must be included as an allowable expense under MCL 500.3107(l)(a). But if the ordinary expense is merely combined with a product, service, or accommodation for the injured person’s care, recovery, or rehabilitation in
C. APPLICATION
Applying this standard here, we conclude that the base price of the van is not an allowable expense under MCL 500.3107(1)(a). The statute only entitles plaintiff to reimbursement for products, services, and accommodations that are actually for his care, recovery, or rehabilitation, and only the van’s modifications rise to that standard. The base price of the van is an ordinary transportation expense of the same essential character as plaintiff would have incurred regardless of whether he was injured in an accident. While plaintiffs choice of transportation before his injury might not have been a van, the essential character of plaintiffs preinjury need for transportation has not changed. Like Griffith’s need for sustenance, had plaintiff never sustained his injury, or were he to fully recover, his need for ordinary transportation would be unchanged. Accordingly, the
Certain transportation expenses may be recoverable under MCL 500.3107(1)(a) because they are part of plaintiffs care, recovery, or rehabilitation. For instance, plaintiff requires some form of transportation to and from his medical appointments. Medically necessary transportation needs represent a change in character from plaintiffs preinjury requirements because the trips would not have been necessary in a life unmarred by injury. But by paying for the van’s modifications and so-called medical mileage, defendant has met its statutory obligations. Indeed, defendant has made it possible — through mileage and modifications — for plaintiff to use his otherwise ordinary transportation to reach medical appointments. But plaintiff cannot show that the van itself, an ordinary form of transportation, is actually for his care, recovery, or rehabilitation. Thus, MCL 500.3107(1)(a) does not require defendant to compensate plaintiff for the base price of the van.
This Court’s decision in Griffith leads inexorably to this result. The van itself is akin to the food that Griffith was eating at home. The character of plaintiffs general need for transportation — like Griffith’s food requirements — did not change as a result of the accident. And unlike the hospital food in Griffith, the van does not constitute an integrated product because the modified van, as a whole, was not actually for plaintiffs care, recovery, or rehabilitation. Hospital food is com-pensable because the injured person is required to eat that particular food during the hospital stay for his or her care and recovery.
The parties agreed that plaintiff should have a vehicle with modifications as the means for transporting plaintiff on his medically necessary trips. But because the van and the modifications are easily separable, we must determine which expenses are actually for plaintiffs care, recovery, and rehabilitation and which are not.
IV CONCLUSION
Our decision in Griffith was sound, and we reaffirm that decision here. To the extent that the Court of Appeals’ opinions in Ward, Hoover, or Begin are inconsistent with this opinion, they are overruled. In concluding that the base price of the van was compensable, the Court of Appeals in this case misapplied our holding in Griffith. We therefore reverse that portion of the Court of Appeals’ judgment.
Furthermore, the Court of Appeals erred by unnecessarily concluding that the parties’ transportation purchase agreement was ambiguous regarding whether defendant was contractually obligated to reimburse plaintiff for the base price of the van regardless of the no-fault insurance act’s requirements. In fact, plaintiff waived the contractual argument by failing to raise it in
MCL 500.3101 et seq.
Griffith v State Farm Mut Auto Ins Co, 472 Mich 521; 697 NW2d 895 (2005).
Admire v Auto-Owners Ins Co, unpublished opinion per curiam of the Court of Appeals, issued February 15, 2011 (Docket No. 289080).
Id. at 3.
Id. The Court of Appeals erred by considering the implications of the transportation purchase agreement because plaintiff never raised that issue in his complaint or argued it at the trial court. Therefore, the issue was waived. See Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008) (“Michigan generally follows the ‘raise or waive’ rule of appellate review. Under our jurisprudence, a litigant must preserve an issue for appellate review by raising it in the trial court.”) (citation omitted).
Griffith, 472 Mich at 535-536.
Begin v Mich Bell Tel Co, 284 Mich App 581; 773 NW2d 271 (2009).
Id. at 596-597.
Admire, unpub op at 5.
Admire v Auto-Owners Ins Co, 490 Mich 871 (2011).
Admire v Auto-Owners Ins Co, 491 Mich 874 (2012).
Griffith, 472 Mich at 525-526.
See, e.g., Johnson v Recca, 492 Mich 169, 178-180; 821 NW2d 520 (2012) (holding that replacement services did not qualify as allowable expenses); Douglas v Allstate Ins Co, 492 Mich 241, 277-278; 821 NW2d 472 (2012) (explaining the dichotomy between allowable expenses and replacement services as it related to spousal care); Krohn v Home-Owners Ins Co, 490 Mich 145, 163-167; 802 NW2d 281 (2011) (holding that an experimental procedure was not an allowable expense); United States Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing), 484 Mich 1, 6; 795 NW2d 101 (2009) (holding that the reasonableness requirement of MCL 500.3107 did not apply to MCL 500.3104(2)).
Griffith, 472 Mich at 534-540.
Id. at 524.
Id. at 524-525.
Id. at 525.
Id., at 532-536, quoting MCL 500.3107(1)(a). Because there was no dispute that Griffith was an injured person, the key issue was whether the ordinary food he was eating was reasonably necessary for his care, recovery, or rehabilitation.
Griffith, 472 Mich at 534, citing Random House Webster’s College Dictionary (2001).
Griffith, 472 Mich at 533-535. Justice Cavanagh would employ the analysis from Justice Marilyn Kelly’s dissent in Griffith, defining “care” as “the provision of what is necessary for the welfare and protection of someone,” to conclude that defendant should reimburse plaintiff for the cost of a van because transportation is necessary for plaintiffs welfare. Id. at 547 (Kelly, J. dissenting) (citation and quotation marks omitted). While Justice Cavanagh’s position is unsurprising — he, after all, supported the dissent in Griffith — it was rejected by the collective wisdom of this Court as inconsistent with MCL 500.3107(1)(a) in Griffith, and we reject it again here. We reiterate that the Griffith dissent defined “care” so broadly that “recovery and rehabilitation” were impermissibly stripped of meaning. See id. at 534 n 10.
Id. at 536.
Id.
Id. at 537-538.
Id. at 538 n 14.
Id. at 539.
Ward v Titan Ins Co, 287 Mich App 552; 791 NW2d 488 (2010).
Id. at 557-558 (citation omitted).
Hoover v Mich Mut Ins Co, 281 Mich App 617; 761 NW2d 801 (2008).
Id. at 628.
Id. at 629-631.
Begin, 284 Mich App at 583-584.
Id. at 596-597.
Id.
Griffith, 472 Mich at 532 n 8.
Id. at 531.
Id. at 531 n 6, quoting Random House Webster’s College Dictionary (1997). The same definition is found in Random House Webster’s College Dictionary (2005).
MCL 500.3107(1)(a) (emphasis added).
Griffith, 472 Mich at 536.
The noncompensability of the ordinary food the insured in Griffith consumed at home exemplifies this principle.
For example, if before an accident the claimant wore budget shoes costing $10 but as a result of the accident required custom medical shoes costing $100, the claimant would be entitled to the full $100, not merely the $90 difference between the pre- and postaccident shoe expenses. But if before the accident the claimant wore designer shoes costing $300, the claimant would still be entitled to the full $100 cost of the custom shoes because the custom shoes represent a change in character from the claimant’s preinjury needs and are thus for the claimant’s care, recovery or rehabilitation. Of course, MCL 500.3107(1)(a) also requires allowable expenses to be “reasonable charges” and they must be “reasonably necessary” for the claimant’s care, recovery, or rehabilitation.
MCL 500.3107(1)(a) (emphasis added).
See Griffith, 472 Mich at 537-538.
For an example of a combined product or accommodation, consider a medical insole that an injured person might have to put in his or her shoe following an accident. Certainly the insole is compensable as a product or accommodation for the injured person’s care, recovery, or rehabilitation. But the easy physical and conceptual separability of the insole and the actual shoe means that the shoe itself — an ordinary expense — will not be compensable because it is not for the injured person’s care, recovery, or rehabilitation.
See, e.g., Griffith, 472 Mich at 539 (“We have always been cognizant of this potential problem [obliterating cost containment] when interpreting the no-fault act....”); Celina Mut Ins Co v Lake States Ins Co, 452 Mich 84, 89; 549 NW2d 834 (1996) (stating that “the no-fault insurance system... is designed to provide victims with assured, adequate, and prompt reparations at the lowest cost to both the individuals and the no-fault system”); O’Donnell v State Farm Mut Auto Ins Co, 404 Mich 524, 547; 273 NW2d 829 (1979) (“Because the first-party insurance proposed by the act was to be compulsory, it was important that the premiums to be charged by the insurance companies be maintained as low as possible. Otherwise, the poor and the disadvantaged people of the state might not be able to obtain the necessary insurance.”).
Griffith, 472 Mich at 537.
Id. at 535 n 12.
Justice Cavanagh suggests that our interpretation injects language into the statute. Quite the opposite. As this Court has often done, we merely highlight guideposts inherent in the statutory language to assist Michigan’s citizens — inside and outside the litigation context — in faithfully administering the statute’s plain language in the myriad situations in which it applies. See, e.g., Krohn v Home-Owners Ins Co, 490 Mich 145, 163-164; 802 NW2d 281 (2011) (concluding that a surgical procedure cannot be “reasonably necessary” under MCL 500.3107(1)(a) unless a plaintiff provides objective and verifiable evidence of the procedure’s efficacy); Frazier v Allstate Ins Co, 490 Mich 381, 385-386; 808 NW2d 450 (2011) (expounding on the beginning and end of the process of “alighting” as that term is used in MCL 500.3106(1)(c)); Thornton v Allstate Ins Co, 425 Mich 643, 659; 391 NW2d 320 (1986) (explaining that an injury arises out of the use of a motor vehicle as a motor vehicle under MCL 500.3105(1) when the “causal connection between the injury and the use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or ‘but for’ ”).
Id. at 537.
Id.
Justice Cavanagh argues that defendant must pay for the van because the van cannot be separated from plaintiffs general need for transportation and the van itself is for plaintiffs care. But we never suggest that the van can be separated from the general need for transportation. Indeed, driving a van is consistent with plaintiffs general need for transportation. Our focus is on the medically necessary modifications and medical mileage, which are separable from plaintiffs general need for transportation. Thus, because only the modifications and medical mileage are for plaintiffs care, recovery, or rehabilitation, they are the only items for which defendant must reimburse plaintiff.
Justice Cavanagh says that the van must be compensable because plaintiff did not require a van before the accident, similar to how the van’s medical modifications were unnecessary before the accident. But
See Walters, 481 Mich at 387 (“Michigan generally follows the ‘raise or waive’ rule of appellate review. Under our jurisprudence, a litigant must preserve an issue for appellate review by raising it in the trial court.”) (citation omitted); Napier v Jacobs, 429 Mich 222, 227; 414 NW2d 862 (1987) (“A general rule of trial practice is that failure to timely raise an issue waives review of that issue on appeal.”).
Dissenting Opinion
(dissenting). For nearly a decade now, a majority of this Court has employed what I believe to be an erroneous and confusing statutory interpretation of MCL 500.3107(1)(a). I have often dissented from this approach to Michigan’s no-fault act, MCL 500.3101 et seq. See, e.g., Griffith v State Farm Mut Auto Ins Co, 472 Mich 521, 542-554; 697 NW2d 895 (2005) (MARILYN KELLY, J., dissenting), Krohn v Home-Owners Ins Co, 490 Mich 145, 179-197; 802 NW2d 281 (2011) (HATHAWAY, J., dissenting), Johnson v Recca, 492 Mich 169, 207; 821 NW2d 520 (2012) (CAVANAGH, J., concurring in the result proposed by HATHAWAY, J., dissenting), and Douglas v Allstate Ins Co, 492 Mich 241, 279-295; 821 NW2d 472 (2012) (CAVANAGH, J., dissenting). Instead, I have argued in favor of Michigan’s previously well-established interpretation of MCL 500.3107(1)(a). See, e.g., Griffith, 472 Mich at 549 (MARILYN Kelly, J., dissenting) (citing Manley v Detroit Auto Inter-Ins Exch, 425 Mich 140, 168; 388 NW2d 216 (1986) (BOYLE, J., concurring in part), and Reed v Citizens
I. APPLYING THE GRIFFITH DISSENT
The key provisions of the no-fault act applicable to this case are MCL 500.3105(1)
Applying the Griffith dissent’s interpretation of the relevant statutory provisions to this case, plaintiff clearly satisfied MCL 500.3105(1) given the catastrophic injuries plaintiff suffered in the motor vehicle accident. Next, it is necessary to determine whether the cost of the van is “reasonably necessary” for plaintiffs “care.” As Justice MARILYN KELLY explained, in order to ensure that the word “care” in MCL 500.3107(1)(a) has a meaning independent of the words “rehabilitation” and “recovery,” the word “care” should be defined as “the provision of what is necessary for the welfare and protection of someone.” Griffith, 472 Mich at 547 (citation and quotation marks omitted).
The simplicity of applying the Griffith dissent’s interpretation of the plain language of MCL 500.3105 and MCL 500.3107(1)(a) is consistent with the long-held principle that the Legislature intended that the no-fault
II. THE MAJORITY’S ERRONEOUS ANALYSIS
The straightforward application of the statutes’ plain language under the Griffith dissent stands in stark contrast to the majority’s effort to apply the Griffith majority’s confusing analysis to this case because, in attempting to clarify Griffith, the majority takes an approach that is divorced from the statutory language. Specifically, I agree with the majority that “nothing in the statutory language of MCL 500.3107(1)(a) supports the notion that postinjury allowable expenses should be reduced by the margin of the injured person’s preinjury expenses of the same character.” Ante at 27. However, the majority is forced to inject a variety of terms and phrases not found in the statutory language in an effort to “clarify” Griffith in its purported attempt to avoid an incremental approach to allowable expenses. The result
For example, the majority states that an “ordinary, everyday expense” cannot qualify as an allowable expense under MCL 500.3107(1)(a). However, the phrase “ordinary, everyday expense” is amorphous and, more importantly, absent from the statutory language. Rather, the statute simply provides that allowable expenses are “all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” MCL 500.3107(1)(a) (emphasis added). In my view, “all reasonable charges” could encompass a so-called “ordinary, everyday expense” and thus satisfy MCL 500.3107(1)(a) if that expense is reasonable and reasonably necessary for the injured person’s welfare and protection.
The majority also proclaims that “the new expense must be of a wholly different essential character than expenses borne by the person before the accident. . . .” Ante at 27 (emphasis added). Again, this undefined statement of what an insured must now show to be eligible for benefits finds no support in the statutes or caselaw. Moreover, the majority’s explanation of expenses that satisfy MCL 500.3107(1)(a) will not add clarity to this area of the law because the majority’s examples are not truly “of a wholly different essential character.” For instance, the majority states that a “custom shoe” would qualify as an allowable expense. However, no matter how much a shoe is customized or modified, it retains its “essential character” as a shoe, i.e., it protects a person’s foot while walking. I question how the bench and bar are to apply the majority’s opinion consistently and fairly when the majority itself struggles to do so.
Specifically, the majority defines a “combined” product as one that “can be separated easily, both conceptually and physically, so that the fact-finder can identify which costs are of a new character and are thus for the injured person’s care, recovery, or rehabilitation and which costs are ordinary, everyday expenses that are unchanged after the accident.” Ante at 28. Given the unique nature of modified products, however, this explanation provides little assistance to the bench and bar. Indeed, the majority concludes that “ [w]hen a medical products company produces a custom shoe, the shoe is an integrated product because the medical nature of the shoe . . . cannot be separated from the ordinary need for shoes by an uninjured person.” Ante at 30. Presumably, the majority considers a “custom shoe” integrated because it cannot be separated “conceptually or physically.” Yet, the majority reaches a different conclusion in this case despite the fact that, as explained later in this opinion, the same is true of plaintiffs modified, or “custom,” van. In short, al
III. APPLYING THE MAJORITY’S NEW RULE •
Although I would apply the Griffith dissent, I believe that plaintiff is entitled to benefits even under the majority’s faulty statutory interpretation. As the majority acknowledges, what might otherwise be considered an “ordinary, everyday expense” could constitute, under certain circumstances, an “integrated” product. Specifically, under the Griffith majority, food provided in an institutional setting is an “integrated” product, despite the fact that the exact same food is merely an “ordinary, everyday expense” when provided in a non-institutional setting. Likewise, although plaintiffs van is at its core “transportation,” it is nevertheless an “integrated” product because plaintiff is required to use “that particular” form of transportation, given that
The majority apparently believes that plaintiff is not limited to a particular form of transportation, but that is simply not true, as even defendant conceded.
IV PLAINTIFF DID NOT WAIVE THE CONTRACT ISSUE
Finally, I disagree with the majority’s conclusion that plaintiff waived the argument that defendant had contractually agreed to reimburse plaintiff for the base price of the van. As the Court of Appeals noted, the basis for the trial court’s decision to deny defendant’s motion for summary disposition and instead grant plaintiff summary disposition was not a model of clarity. However, in my view, the transcript of the hearing on the motion for summary disposition reveals that the trial court based its decision on its conclusion that the “Transportation Purchase Agreement” (TPA) required defendant to pay for the reasonable purchase price of a van.
V CONCLUSION
I dissent from the majority’s decision to expand the erroneous majority opinion in Griffith. Moreover, even under the majority’s faulty statutory interpretation, I believe plaintiff is entitled to benefits because the van in this case is no different from the “integrated” products that the majority offers as examples of allowable expenses under MCL 500.3107(1)(a). Finally, because both lower courts considered the argument that defendant contractually agreed to reimburse plaintiff for the base price of the van, I would not hold that the issue was waived. Accordingly, I dissent and would affirm the judgment of the Court of Appeals, or, at a minimum, remand to the trial court for further consideration of the contractual issue.
MCL 500.3105(1) states:
Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.
MCL 500.3107(1) states in relevant part:
[Pjersonal protection insurance benefits are payable for the following:
(a) Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.
The majority repeats the Griffith majority’s unfounded claim that this definition of “care” engulfs “rehabilitation” and “recovery.” Griffith, 472 Mich at 534 n 10. However, as Justice Marilyn Kelly explained, under the doctrine of noseitur a sociis, “ ‘care’ fits with ‘recovery’ and ‘rehabilitation’ when ‘care’ is interpreted broadly to mean ‘the provision of what is necessary for the welfare and protection of someone’ ” because “[t]he Legislature intended that an injured person’s needs be furnished (‘care’) until ‘recovery’ has been accomplished through ‘rehabilitation.’ ” Id. at 547 (Marilyn Kelly, J., dissenting). The majority’s overly narrow definition of “care,” however, “turns ‘care’ into a mere redundancy.” Id.
One need only examine this Court’s recent docket to see that Griffith continues to engender confusion and, thus, litigation regarding allowable expenses. See, e.g., Krohn, 490 Mich 145, Johnson, 492 Mich 169, Douglas, 492 Mich 241, and Wilcox v State Farm Mut Auto Ins Co, 488 Mich 930, 930-932 (2010) (Cavanagh, J., dissenting).
The majority also states that a product must be “truly integrated” to satisfy its interpretation of MCL 500.3107(1)(a), but the majority does not explain, and it is unclear to me, whether there is a difference between “combined,” “integrated,” and “truly integrated” products.
The majority claims to merely “highlight guideposts” so that Michigan’s citizens may faithfully administer the statute’s plain language. See ante at 31 n 47. However laudable that goal might be, I disagree with establishing “guideposts” that hear no connection to the “plain language” of the statute. The majority opinion represents the latest example of the majority’s deviating from the actual language of MCL 500.3107. See, e.g., Douglas, 492 Mich at 279-287 (Cavanagh, J., dissenting) (explaining that the majority erroneously injected language not found in, and inconsistent with, the statutory language of MCL 500.3107(1)(a)); and Krohn, 490 Mich at 186-187 (2011) (Hathaway, J., dissenting) (same).
See defendant’s answer to plaintiffs request for admissions, dated September 24, 2008 (admitting that plaintiff “has required and currently requires a modified van that accommodates his wheelchair if [plaintiff] is to drive a motor vehicle with his currently [sic] disabilities”) (emphasis added).
The majority concludes that plaintiffs postaccident transportation needs are no different from his preaccident transportation needs, just as
The parties executed the first TPA in 1988, shortly after plaintiffs 1987 motor vehicle accident. After hearing arguments, the trial court granted summary disposition in plaintiffs favor, explaining that defendant became “involved in this in ’87 and it’s gone on for some time, what, 22 years, and Pm afraid [defendant is] going to have to remain involved.” Thus, the trial court seemingly relied on the parties’ contractual history dating back to 1988 regarding the cost of the van rather them no-fault principles in granting summary disposition in favor of plaintiff.