ADVOCACY ORGANIZATION FOR PATIENTS & PROVIDERS v AUTO CLUB INSURANCE ASSOCIATION
Docket No. 124639
Supreme Court of Michigan
Argued November 9, 2004. Decided March 8, 2005.
472 Mich 91
In a memorandum opinion, signed by Chief Justice TAYLOR and Justices CORRIGAN and MARKMAN, and in concurring opinions by Justices CAVANAGH (joined by Justice KELLY), WEAVER, and CORRIGAN, the Supreme Court held:
Justice CAVANAGH, joined by Justice KELLY, concurring, stated that given that the question of reasonableness was not before the lower courts and discovery did not center on the question, he would be apprehensive about sanctioning any method without knowing its full details. The Legislature should address this issue and implement some guidelines, as other no-fault states havе done.
Justice WEAVER, concurring, fully joined the concurrence of Justice CAVANAGH but wrote separately to stress the need for the Court to address the specific procedures to be followed when a justice decides whether to participate in a case. There is a right and an expectation of the people that a justice will participate in every case unless there is a valid publicly known reason why the justice should not participate in a particular case.
Justice CORRIGAN, concurring, wrote separately to note that there is nothing secretive or sinister in the tradition followed by the justices in choosing whether to publish a reason for a decision on recusal. The recusal decisions of the other six members of the Court over the last two years, like Justice WEAVER‘s 251 pre-2003 recusal decisions, comport with the Constitution and the Michigan Court Rules.
Affirmed.
Justice YOUNG took no part in the decision of this case.
INSURANCE - NO-FAULT - MEDICAL PROVIDERS - REASONABLE CHARGES.
Although a medical provider may charge a reasonable amount for products, services, and accommodations for an injured person‘s care, recovery, or rehabilitation and that amount may not exceed the amount the provider customarily charges for like products,
Sheldon L. Miller, Barbara H. Goldman, and Linda Fausey for the plaintiffs.
Barris Sott Denn & Driker, P.C. (by Stephen E. Glazek), for Auto Club Insurance Association.
Garan, Lucow, Miller, P.C. (by David N. Campos), for Allstate Insurance Company, Wolverine Mutual Insurance Company, and Secura Insurance Company.
Dykema Gossett PLLC (by Lori McAllister) for Citizens Insurance Company and Auto-Owners Insurance Company.
Willingham & Cote (by Raymond J. Foresman) for Farm Bureau Insurance Company.
Wheeler & Upham, P.C. (by Gary A Maximiuk and Jack L. Hoffman), for Farmer‘s Insurance Exchange.
Foster Swift Collins & Smith (by Scott L. Mandel) for Frankenmuth Mutual Insurance Company.
Bodman LLP (by Diane L. Akers and James Albert Smith) for State Farm Mutual Automobile Insurance Company.
Howard & Howard Attorneys, P.C. (by Eric H. Lipsitt), for Transamerica Insurance Group.
Bodman LLP (by Joseph J. Shannon) for Manageability, Inc.
Lambert, Leser, Cook, Schmidt & Guinta, P.C. (by Susan M. Cook), for Medcheck Medical Audit Services.
Nemier, Tolari, Landry, Mazzeo & Johnson P.C. (by David B. Landry and Michelle E. Mathieu) for Recovery Unlimited, Inc.
Zausmer, Kaufman, August & Caldwell, P.C. (by Mark J. Zausmer), for Titan Insurance Company.
Bush, Seyferth & Kethledge, PLLC (by Cheryl A. Bush), for Review Works.
Amici Curiae:
Dykema Gossett PLLC (by Jill M. Wheaton and Joseph Erhardt) for the Michigan Catastrophic Claims Association.
George M. Carr, P.C. (by George M. Carr), for the Property Casualty Insurers Association of America.
Honigman Miller Schwartz and Cohn LLP (by Chris Rossman, Jason Schian Conti, and Cynthia F. Reaves) for the Michigan Health and Hospital Association.
Kerr, Russell and Weber, PLC (by Richard D. Weber and Joanne Geha Swanson), for the Michigan State Medical Society.
Gross, Nemeth & Silverman, P.L.C. (by James G. Gross), for the Michigan Chamber of Commerce.
Sinas, Dramis, Brake, Boughton & McIntyre, P.C. (by George T. Sinas and L. Page Graves), for the Coalition Protecting Auto No Fault.
MEMORANDUM OPINION. This declaratory judgment action concerns obligations under the no-fault act,
After a hearing on the parties’ respective motions for summary disposition, the trial court ruled that defendants were entitled to review any medical charges and pay only those determined to be reasonable. The trial court further ruled that even though a medical provider‘s charge does not exceed the amount that provider customarily charges in cases not involving insurance, that fact alone does not establish that the charge is reasonable.
The Court of Appeals affirmed. 257 Mich App 365; 670 NW2d 569 (2003). It ruled that it is for the trier of fact to determine whether a medical charge, albeit “customary,” is also reasonable. 257 Mich App 379.
Because we agree with the Court of Appeals resolution of this issue, аnd the others presented to it, we affirm.
TAYLOR, C.J., and CORRIGAN and MARKMAN, JJ., concurred.
CAVANAGH, J. (concurring). At oral argument it became very clear that defendants’ methodologies in determining reasonableness were never at issue at the trial court level, which accounts for the dearth of evidence regarding those methodologies. Counsel for plaintiff admitted that the reason discovery was not more directed toward illuminating the methodologies was because no one asked plaintiffs before this Court‘s leave order to disсuss how reasonableness should be assessed. Although I agree with the Court of Appeals conclusion that “reasonable” and “customary” are two separate inquiries, I view its reference to the 80th percentile test, given this record, as dicta. Given that the question of reasonableness was not before the lower courts, and, consequently, discovery did not center on the question, I would be apprehensive about sanctioning any method without knowing its full details. I agree аlso with the Court of Appeals concurrence that urged our Legislature to address this issue and implement some guidelines in this area, as other no-fault states have done.
KELLY, J., concurred with CAVANAGH, J.
WEAVER, J. (concurring). I join fully in Justice CAVANAGH‘s concurrence.
I write separately because this case is further evidence that this Court needs to address and open for public comment the specific procedures to be followed when a justice decides whether or not to participate in a case, and whether
When this Court entered its order granting leave to appeal on June 25, 2004, Justice YOUNG was shown as not participating; he is also shown as not participating in this memorandum opinion. No public or written explanation for Justice YOUNG‘s decision not to participate in the case has been given to the Court, the parties, or the public.
A justice‘s nonparticipation in a case may arise in оne of two ways. A justice may decide, on his own initiative, not to participate in a case, and be shown as not participating. Alternatively, a party may request the recusal of a justice from a case. Recusal is defined as “[t]he process by which a judge is disqualified on objection of either party (or disqualifies himself or herself) from hearing a lawsuit because of self interest, bias or prejudice.” Black‘s Law Dictionary (6th ed).
It is now clear to me that there is a right and an expectation of the people of Michigan that a justice will participate in every case unless there is a valid publicly known reason why the justice should not participate in a particular case. Traditionally, in this Court a justice‘s decision on whether to participate or not participate in a case has been a secret matter, and justices have not made public the reasons for that decision.1 But a
The question whether a justice should participate or not participate in a case arises with regularity. Since May 2003, when I proposed opening an administrative file on the recusal procedure in In re JK, 468 Mich 1239 (2003), a justice has been shown as not participating, with no reason given, in at least 31 cases.2
The questions raised in this and any other case in which a justice‘s participation or nonparticipation arises are:
- Are individual justices bound by the requirements of
art 6, § 6 of the 1963 Michigan Constitution that states, “Decisions of the supreme court . . . shall be in writing and shall contain a concise statement of the facts and reasons for each decision . . .“? - Do the procedures regarding the disqualification of judges set forth in
Michigan Court Rule 2.003 apply to Supreme Court justices?
the plaintiff‘s attorney moved to disqualify then-Chief Justice CORRIGAN and Justices WEAVER, TAYLOR, YOUNG, and MARKMAN. I attached to the order denying that motion a written explanation for my decision to participate in the case. Similarly, in Graves v Warner Bros, 669 NW2d 552 (2003), the plaintiff filed a motion for reconsideration, asking that then-Chief Justice CORRIGAN and Justices WEAVER, TAYLOR, YOUNG, and MARKMAN recuse themselves from participating in the case. I filed a statement giving reasons for my decision to participate in the case.
Further,
Almost two years ago, in May 2003, this Court‘s longstanding failure to follow and apply
The rules in this chapter govern procedure in all civil proceedings in all courts established by the constitution and laws of the State of Michigan, except where the limited jurisdiction of a court makes a rule inherently inapplicable or where a rule applicable to a specific court or a specific type of proceeding provides a different procedure.
I continue to urge the Court to recognize, open for public comment, and address this ongoing need to have clear, fair, orderly, and public procedures concerning the participation or nonparticipation of justices.
APPENDIX A
Chief Justice TAYLOR was shown as not participating in two cases. Booker v Detroit, 469 Mich 892 (2003), and Neal v Dep‘t of Corrections, 471 Mich 928 (2004).
Justice CAVANAGH was shown as not participating in two cases. Konieczka v Dep‘t of Transportation, 468 Mich 912 (2003), and Herwig-Tucker v Detroit Entertainment, LLC, 471 Mich 873 (2004).
Justice KELLY was shown as not participating in seven cases. Boyle v Gen Motors Corp, 468 Mich 1249 (2003), Woodman v Miesel Sysco Food Service Co, 469 Mich 855 (2003), Grievance Administrator v Raaflaub, 668 NW2d 146 (Mich, 2003), People v Wright, 469 Mich 880 (2003), People v White, 469 Mich 877 (2003), Sonsynath v Dep‘t of Transportation, 668 NW2d 153 (Mich, 2003), and People v Herbert, 470 Mich 857 (2004).
Justice CORRIGAN was shown as not participating in one case. Shaya v Universal Standard Medical Laboratories, Inc, 469 Mich 994 (2004).
Justice YOUNG was shown as not participating in eight cases. Bomarko, Inc v Mercy Health Services No 2, 468 Mich 915 (2003), Auto Club Ins Ass‘n v Juncaj, 468 Mich 923 (2003), Brooks v State Farm Mut Automobile Ins Co, 469 Mich 874 (2003), Blamer v Guiang, 469 Mich 899 (2003), People v Shook, 469 Mich 911 (2003), Fournier v Mercy Community Health Care System-Port Huron, 469 Mich 921 (2003), Warber v Trinity Health Corp, 469 Mich 1001 (2004), and Lawrence v Battle Creek Health Systems, 469 Mich 1051 (2004).
Justice MARKMAN was shown as not participating in eleven cases. People v Nevers, 469 Mich 881 (2003), People v Bahoda, 469 Mich 945 (2003), Shacket Developments, Inc v Labana, 469 Mich 909 (2003), Shaya v Universal Standard Medical Laboratories, Inc, 469 Mich 994 (2004), Hughes v Hall, 469 Mich 1016 (2004), People v Harwell, 469 Mich 1017 (2004), Grievance Administrator v Zipser, 469 Mich 1307 (2004), People v Zakar, 470 Mich 854 (2004), Landes v Equity Resource Environmental, 470 Mich 864 (2004), People v Nevers, 683 NW2d 674 (Mich, 2004), and American Bumper and Mfg Co v Nat‘l Union Fire Ins Co of Pittsburgh, 471 Mich 948 (2004).
APPENDIX B
(A) Who May Raise. A party may raise the issue of a judge‘s disqualification by motion, or the judge may raise it.
(B) Grounds. A judge is disqualified when the judge cannot impartially hear a case, including but not limited to instances in which:
(1) The judge is personally biased or prejudiced for or against a party or attorney.
(2) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding.
(3) The judgе has been consulted or employed as an attorney in the matter in controversy.
(4) The judge was a partner of a party, attorney for a party, or a member of a law firm representing a party within the preceding two years.
(5) The judge knows that he or she, individually or as a fiduciary, or the judge‘s spouse, parent or child wherever residing, or any other member of the judge‘s family residing in the judge‘s household, has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding.
(6) The judge or the judge‘s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(a) is a party to the proceeding, or an officer, director or trustee of a party;
(b) is acting as a lawyer in the proceeding;
(c) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding;
(d) is to the judge‘s knowledge likely to be a material witness in the proceeding.
A judge is not disqualified merely because the judge‘s former law clerk is an attorney of record for a party in an action that is before the judge or is associated with a law firm representing a party in an action that is before the judge.
(C) Procedure.
(1) Time for Filing. To avoid delaying trial and inconveniencing the witnesses, a motion to disqualify must be filed within 14 days after the moving party discovers the ground for disqualification. If the discovery is made within 14 days of the trial date, the motion must be made forthwith. If a motion is not timely filed, untimeliness,
(2) All Grounds to be Included; Affidavit. In any motion under this rule, the moving party must include all grounds for disqualification that are known at the time the motion is filed. An affidavit must accompany the motion.
(3) Ruling. The challenged judge shall decide the motion. If the challenged judge denies the motion,
(a) in a court having two or more judges, on the request of a party, the challenged judge shаll refer the motion to the chief judge, who shall decide the motion de novo;
(b) in a single-judge court, or if the challenged judge is the chief judge, on the request of a party, the challenged judge shall refer the motion to the state court administrator for assignment to another judge, who shall decide the motion de novo.
(4) Motion Granted. When a judge is disqualified, the action must be assigned to another judge of the same court, or, if one is not available, the state court administrator shall assign anothеr judge.
(D) Remittal of Disqualification. If it appears that there may be grounds for disqualification, the judge may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If, following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceedings. The agreement shall be in writing or placed on the record.
CORRIGAN, J. (concurring). I concur with the lead opinion in this case and write separately to respond to Justice WEAVER‘s now-familiar views regarding this Court‘s recusal procedures. (See In re JK, 468 Mich 1239 [2003]; Gilbert v DaimlerChrysler Corp, 469 Mich 889 [2003].)
All the members of this Court serve with the knowledge that “[t]he Due Process Clause requires an unbiased and impartial decisionmaker.” Cain v Dep‘t of Corrections, 451 Mich 470, 497; 548 NW2d 210 (1996). It is therefore standard practice for each justice of this Court to voluntarily recuse himself or herself when the justice cannot participate impartially.
In her concurring statement, Justice WEAVER correctly points out that a justice may choose whether to publish his or her reasons for recusal. There is nothing secretive or sinister in this tradition. Indeed, Justice WEAVER acknowledges that over an eight-year period she herself declined to publish reasons for her nonparticipation in approximately 251 cases.1
Like justices of the Michigan Supreme Court, the justices of the United States Supreme Court sometimes do and sometimes do not state their reasons for determining whether to participate in a decision. See, e.g., Cheney v United States Dist Court for the Dist of Columbia, 541 US 913; 124 S Ct 1391; 158 L Ed 2d 225 (2004); Intel Corp v Advanced Micro Devices, Inc, 542 US 241; 124 S Ct 2466; 159 L Ed 2d 355 (2004); United States v Hatter, 532 US 557; 121 S Ct 1782; 149 L Ed 2d 820 (2001); Fed Election Comm v NRA Political Victory Fund, 513 US 88; 115 S Ct 537; 130 L Ed 2d 439 (1994); Arizona v United States Dist Court for the Dist of Arizona, 459 US 1191; 103 S Ct 1173; 75 L Ed 2d 425 (1983); Laird v Tatum, 409 US 824; 93 S Ct 7; 34 L Ed 2d 50 (1972). Several of our sister states follow a similar recusal procedure.2
In addition, in now-closed administrative files, this Court has already considered local judicial disqualificаtion rules, justices’ participation in cases, and amending or interpreting
Conduct, Canon 3(E) and (F);
YOUNG, J., took no part in the decision of this case.
Notes
I filed a detailed explanation of my decision not to participate in In re JK, 468 Mich 1239 (2003). In Gilbert v DaimlerChrysler Corp, 470 Mich 749; 685 NW2d 391 (2004), reconsideration den 472 Mich 1201 (2005),
Ante at 97.Decisions of the supreme court, including all decisions on prerogative writs, shall be in writing and shall contain a concise statement of the facts and reasons for each decision and reasons for each denial of leave to appeal. When a judge dissents in whole or in part he shall give in writing the reasons for his dissent.
The recusal standards that Justice WEAVER advances rest on her interpretation of