Department of Social Services v. American Commercial Liability Insurance
460 N.W.2d 194
Mich.
1990
Check Treatment
Per Curiam.

Thе defendants are insurance companies that cannot agree with regard to their respective liability for personal protection insurance (first-party) benefits 1 that are payаble to the plaintiff’s subrogors. The Court of Appeals has concluded that the obligation must be borne by defendant American Commercial Insurance Company. We conclude, however, that the Legislature has directed that the obligation be shared equally by these defendant insurers.

i

This case arises out of an accident that occurred *510 on August 22, 1985. An automobile collided with a motorcycle operated by Gerald Wilson. His passenger was Monique Wilson. Mr. Wilson was seriously injured; Ms. Wilson was killed.

Neither the owner nor the operator of the automobile was insured. The owner of the motorcycle was likewise uninsured. Further, neither Wilson had purchased an insurаnce policy. They were, however, covered by three policies that had been issued to their aunt, Mary N. Taylor, with whom they lived. 2

Each of the defendant insurance companies had insured one of Ms. Taylor’s three vehicles. The policies issued by State Farm Insurance Company and by Allstate Insurance Company provided for coordination of benefits. 3 The policy issued by American Commercial Liability Insurance Company did not. The insurers agree that, aside from the possible effect of the coordination-of-benefits clauses, they are of equal priority under the no-fault act.

Following the accident, the medical expenses of Mr. Wilson and Ms. Wilson were met by the Department of Social Services through its medical assistance program (Medicaid). 4 After pаying over $120,000 in medical and related expenses, the dss sought reimbursement from the defendant insurers. When no payment was received, the dss exercised its statutory 5 right to bring a subrogation action to recover the ‍‌‌​​‌​​​‌​​​​‌​‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌​‌‌​​‌​​‌‌​​‌‌​‍insurance proceeds that were owed to the Wilsons._

*511 II

In August 1986, the dss filed in circuit court a pair of complaints, one pertaining to Mr. Wilson, and one to Ms. Wilson. The circuit court later consolidated the cases.

To date, no genuine controversy has arisen concerning whether the dss must be reimbursed. All appear to agree that such payment must be made. The issue is whether the burden must be borne by American Commercial alone on the ground its policy provided full benefits, whereas the policies issued by State Farm and Allstate provided coordinated benefits. American Commercial believes that, because the three insurers are of equal priority, each must share the burden equally.

In circuit court, State Farm and Allstate moved for summary disposition, urging that American Cоmmercial alone is liable. After considering the arguments of the parties, the circuit judge granted the motions. The court ordered that the dss take judgment against American Commercial "for whatever amount of damages are [sic] established,” and that a dismissal enter in favor of State Farm and Allstate.

hi

The Court of Appeals affirmed the summary disposition. 6 In explaining its decision, the Court relied upon Auto-Owners Ins Co v Farm Bureau Mutual Ins Co, 171 Mich App 46; 429 NW2d 637 (1988):

We agree with the trial court’s decision. State Farm and Allstate both had coordination of bеne *512 fits clauses in their policies which allowed the policyholder to pay a lower premium. American Commercial did not have a coordination of benefits clause in its policy. By operation of the coordination of benefits clauses, State Farm and Allstate were made secondary insurers and American Commercial became the primary insurer. MCL 500.3109a; MSA 24.13109(1), MCL [500.]3115(2); MSA 24.13115(2); Auto-Owners Ins Co v Farm Bureau Mutual Ins Co, 171 Mich App 46, 49-53; [429] NW2d [637] (1988). As the primary insurеr, American Commercial is solely responsible for the amount owed to dss. Auto-Owners, supra.

American Commercial then applied to this Court for leave to appeal, urging us to reverse the judgments of the сircuit court and the Court of Appeals. After deciding to grant leave to appeal in Auto-Owners, 7 8 we issued an order holding the present case in abeyance pending our decision in Auto-Owners. 6

The parties in the Auto-Owners case sеttled their dispute, however, and ‍‌‌​​‌​​​‌​​​​‌​‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌​‌‌​​‌​​‌‌​​‌‌​‍stipulated to a dismissal of the appeal. 9 Thus we turn again to consideration of the present case.

IV

In Auto-Owners, the Court of Appeals considered the issue "whether no-fault coverage with a coordination-of-benefits рrovision is excess coverage over equal priority no-fault coverage without such a clause,” which it characterized as "an issue of first impression.” Id. at 49-50. After noting that the statutory phrasе "other health and accident cover *513 age” has been applied in a variety of contexts, 10 the Court of Appeals turned to our decision in LeBlanc v State Farm Mutual Automobile Ins Co, 410 Mich 173, 201; 301 NW2d 775 (1981). In that decision, we stated:

Furthermore, the fact that "other health and accident coverage” immediately follows a reference to "personal proteсtion insurance benefits” compels a conclusion that "other health and accident coverage” clearly means coverage other than personal protection insurance benefits payable under any no-fault policy.

The Court of Appeals panel that decided Auto-Owners chose not to rely upon the quoted statement from LeBlanc, however. The panel observed that LeBlanc concerned whether Medicare benefits were subject to coordination, and predicted that this Court "would reach a different conclusion” if presented with a case directly posing the question *514 found in Auto-Owners and the present case. 171 Mich 53. Thus the Auto-Owners panel concluded that the insurer that had issued coordinated-benefits coverage (Farm Bureau) should prevail over thе insurer that had issued a full-benefits policy (Auto-Owners).

v

In the present case, the insurers agree that they are of equal statutory priority. Each must therefore share the cost of the personal рrotection insurance benefits that have been paid by the dss, unless the coordination-of-benefits clauses in the State Farm and Allstate policies can be invoked with respect to the full-benefits policy issued by American Commercial.

It is true, as the Court of Appeals observed in Auto-Owners, that our LeBlanc decision concerned another issue. 11 However, we adhere to our conclusion in LeBlanc that the phrase "other health and accident coverage” clearly means coverage other than personal protectiоn insurance benefits payable under a no-fault policy. We again emphasize that, in crafting MCL 500.3109a; MSA 24.13109(1), the Legislature placed the reference to "other health and accident cоverage” immediately after a reference to "personal protection insurance benefits.”

The legislative history of MCL 500.3109a; MSA 24.13109(1) was presented in our LeBlanc opinion. 410 Mich 194-197. See also Federal Kemper Ins Co, Inc v Health ‍‌‌​​‌​​​‌​​​​‌​‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌​‌‌​​‌​​‌‌​​‌‌​‍Ins Administrаtion, Inc, 424 Mich 537, 546-550; 383 NW2d 590 (1986). While the legislative history of MCL 500.3109a; MSA 24.13109(1) is not dispositive, it supports our con *515 elusion. That is, the purpose of MCL 500.3109a; MSA 24.13109(1) was to eliminate duplicate coverage, typically where automobilе insurance and health insurance would both be available to an injured motorist. However, there is no duplicate coverage under the no-fault act, since insurers are given priorities, and, whеre the priorities are equal, the liability is divided, not duplicated. 12

A full-benefits no-fault policy having the same statutory priority as a coordinated no-fault policy does not constitute "other health and accident coverage” within the meaning of MCL 500.3109a; MSA 24.13109(1). Thus a no-fault insurer that has issued a coordinated policy may not "coordinate” benefits so as to place the full obligation tо pay on a no-fault insurer that is of equal statutory priority, and that has issued a full-benefits policy.

For these reasons, and in lieu of granting leave to appeal, we reverse the judgments of the Cоurt of Appeals and the circuit court, and we remand this case to the circuit court for further proceedings consistent with this opinion. MCR 7.302(F)(1).

Riley, C.J., and Brickley, Cavanagh, Boyle, Archer, and Griffin, JJ., concurred. Levin, J.

(separate opinion). I would grant leave to appeal. I adhere to the view that peremptory reversal should be reserved for those cases in which the law is settled and no factual assessment is required. 1

While no factual assessment is required in the *516 instant case, the law is not settled. This Court granted leave to appeal in Auto-Owners Ins Co v Farm Bureau Mutual Ins Co, 171 Mich App 46; 429 NW2d 637 (1988), lv gtd 433 Mich 880 (1989), to address the question peremptorily decided in the per curiam opinion filed today.

Auto-Owners was settled, and thе appeal in this Court was dismissed. Counsel for defendantappellees, ‍‌‌​​‌​​​‌​​​​‌​‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌​‌‌​​‌​​‌‌​​‌‌​‍State Farm Insurance Company and Allstate Insurance Company, will wonder why Auto-Owners was grant worthy, but the decision of the Court of Appeals in the instant case, which adopted the reasoning of Auto-Owners, is not.

The opinion in Auto-Owners was written by a judge sitting by assignment and was signed by two judges of the Court of Appeals. The Court of Appeals per curiam opinion in the instant case was signed by two different judges of the Court of Appeals and a judge sitting by assignment. Four Court of Appeals judges and two judges sitting by assignment have thus so expressed themselves. No contrary authority is cited by thе appellant or in the per curiam opinion filed today other than a statement in the opinion that is conceded to be obiter dictum. 2

I would, again, grant leave to appeal._

Notes

1

MCL 500.3107; MSA 24.13107.

2

MCL 500.3114(1); MSA 24.13114(1). (This case would fall within MCL 500.3114[5]; MSA 24.13114[5], but for the inapplicability of рaragraphs [a] through [d] in MCL 500.3114[5]; MSA 24.13114[5].)

3

MCL 500.3109a; MSA 24.13109(1).

4

MCL 400.105 et seq.; MSA 16.490(15) et seq.

5

MCL 400.106(l)(b)(ii)(b); MSA 16.490(16)(l)(b)(ii)(b).

6

Dep’t of Social Services v American Commercial Liability Ins Co, unpublished opinion per curiam of the Court of Appeals, decided January 30,1989 (Docket No. 107100).

7

Auto-Owners Ins Co v Farm Bureau Mutual Ins Co, 433 Mich 880 (1989).

8

Dep’t of Social Services v American Commercial Liability Ins Co, unpublished order of the Supreme Court, dated September 28, 1989 (Docket No. 85493).

9

See n 7.

10

For example, in Nyquist v Aetna Ins Co, 84 Mich App 589; 269 NW2d 687 (1978), aff’d 404 Mich 817 [280 NW2d 792] (1979), this Court held that Blue Cross-Blue Shield benefits were subject to coordination with personal injury protection benefits payable under a no-fault policy containing the § 3109a clause and offered at a reduced premium. Although Blue Cross-Blue Shield is technically not "insurаnce,” this Court reasoned that the Legislature clearly intended to include this type of medical benefits coverage within the scope of § 3109a. In numerous other decisions, this Court has expandеd the scope of coverages included within the meaning of "other health and accident coverage” subject to § 3109a coordination of benefits: Lewis v Transamerica Ins Corp of America, 160 Mich App 413; 408 NW2d 458 (1987), lv den 429 Mich 855 (1987) (benefits under Teamsters Welfare Plan); Auto-Owners Ins Co v Lacks Industries, 156 Mich App 837; 402 NW2d 102 (1986), lv den 428 Mich 902 (1987) (employer’s self-insurance plan); United States Fidelity & Guaranty Co v Group Health Plan of Southeast Michigan, 131 Mich App 268; 345 NW2d 683 (1983) (health maintenance organizations); Bagley v State Farm Mutual Automobile Ins Co, 101 Mich App 733; 300 NW2d 322 (1980) (military medical and disability benefits). [Auto-Owners, 171 Mich App 50.]

11

Indeed, the holding in LeBlanc has been substantially affected by federal ‍‌‌​​‌​​​‌​​​​‌​‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌​‌‌​​‌​​‌‌​​‌‌​‍law. See 42 USC 1395y(b)(l).

12

MCL 500.3115(2); MSA 24.13115(2).

1

Roek v Chippewa Valley Bd of Ed, 430 Mich 314, 322; 422 NW2d 680 (1988) (Levin, J., separate opinion); Grames v Amerisure Ins Co, 434 Mich 867, 868-875; 451 NW2d 304 (1990) (Levin, J., dissenting); People v Little, 434 Mich 752, 769-770; 456 NW2d 237 (1990) (Levin, J., dissenting).

See Schweiker v Hansen, 450 US 785, 791; 101 S Ct 1468; 67 L Ed 2d 685 (1981) (Marshall, J., dissenting) ("A summary reversal is a rare *516 disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error”); Leis v Flynt, 439 US 438, 457-458; 99 S Ct 698; 58 L Ed 2d 717 (1979) (Stevens, J., dissenting) ("Summary reversal 'should be reserved for palpably clear cases of . . . error.’ Eaton v Tulsa, 415 US 697, 707 [94 S Ct 1228; 39 L Ed 2d 693 (1974)] [Rehnquist, J., dissenting]”).

2

This Court’s last decision construing § 3109a of the Insurance Code, MCL 500.3109a; MSA 24.13109(1), is Tatum v GEICO, 431 Mich 663; 431 NW2d 391 (1988).