MICHIGAN AMBULATORY SURGICAL CENTER, LLC, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
Case No. 16-cv-14507
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
October 3, 2018
Paul D. Borman, United States District Judge
This case involves Plaintiff Michigan Ambulatory Surgical Center, LLC‘s (“Michigan Ambulatory“) claim for the payment of no-fault insurance benefits for treatment provided on February 9, 2016, to Defendant State Farm Mutual Automobile Insurance Company‘s (“State Farm“) insured, Tamika R. Burrell, in connection with injuries allegedly suffered by Ms. Burrell in an August 19, 2014 motor vehicle accident. Michigan Ambulatory relies on two different assignments from Ms. Burrell in making its claim for payment from State Farm.
State Farm filed a motion for summary judgment (ECF No. 30) and Plaintiff
I. BACKGROUND
Ms. Burrell was involved in an automobile accident on August 19, 2014, while merging onto Northbound I-75 from EB I-696, when she was unable to stop and crashed into the back of the vehicle in front of her. (ECF No. 30, Def.‘s Mot. Summ. J. Ex. B, State of Michigan Crash Report PgID 776.) At the time, Ms. Burrell was insured with State Farm under a no-fault insurance policy. Responding officers categorized the extent of damage to both vehicles as a category “1,” noting that neither vehicle‘s airbags deployed. (Id.) The Royal Oak Fire Department responded, noting that Ms. Burrell was alert and oriented, complaining of pain in multiple areas, but had no visible sign of injury. Royal Oak responders noted that there was “very little damage to her vehicle,” and her “airbag did not deploy.” (Id. Ex. C, Royal Oak Fire Department Patient Care Record PgID 780.) Despite the minimal damage to the vehicles, both of which were driveable, Ms. Burrell was taken by ambulance to Southfield Providence Hospital. (Id. at PgID 781.) Ms. Burrell was informed at the Emergency Department that her exam did not show any sign of serious injury from
On February 9, 2016, Ms. Burrell did undergo surgery at Michigan Ambulatory for injuries Michigan Ambulatory alleges are related to her August 19, 2014 automobile accident. The total cost of the services provided by Michigan Ambulatory was $123,467.00. (ECF No. 31, Pl.‘s Resp. to Mot. Summ. J. Ex. B.)1 In its original Complaint in this action, Michigan Ambulatory sought to recover no-fault benefits
A. Ms. Burrell‘s Lawsuit Against State Farm
On September 3, 2015, Ms. Burrell filed an action in Wayne County Circuit Court against State Farm. On February 11, 2016, State Farm removed the case to this Court based upon diversity jurisdiction when Ms. Burrell amended her complaint and added a claim for uninsured motorist benefits up to the policy limits of $50,000.00, increasing the amount in controversy above $75,000.00.3 (Burrell v. State Farm Mut. Auto. Ins. Co., No. 16-cv-10508 (E.D. Mich. 2016) (ECF No. 1, Notice of Removal)). ZMC Pharmacy, LLC (“ZMC“) and MMT Integrative Services, Inc. (“MMT“) intervened in the Burrell action seeking to recover for medical services provided to Ms. Burrell allegedly in connection with her August 2014 motor vehicle accident. As relevant here, the parties in the Burrell lawsuit stipulated to submit the case to state court case evаluation in February, 2017, pursuant to
B. The February 9, 2016 Assignment
On February 9, 2016, at 8:26 a.m. the morning of her surgery at Michigan Ambulatory while she was in the pre-operative stages of her procedure, Ms. Burrell executed an “Assignment of Rights and Guarantee,” which states that Ms. Burrell was then “experiencing injuries arising from an accident that occurred on ^Date^ [sic].”4 The Assignment states:
I hereby assign to Spеcialty Surgical Center (the “Center“) my right to collect no-fault insurance from my auto insurer for my care at the Center. I understand that this assignment does not include my right to any other no-fault benefits to which I may be entitled, nor benefits for my care by any provider other than the Center.
I understand and agree that should I pursue a lawsuit against my auto insurer, my attorney shall have authority to collect on behalf of the Center any bills owed the Center for my care. Further, I agree to notify the Center immediately to pursue its rights to expenses owed for my care under a lawsuit.
I understand and agree that this assignment of rights simply allows the Center to collect bills for my care at the Center directly from my auto carrier; it does not relieve me of my obligation for payment of any medical bills for my care at the Center.
Guarantee
I guarantee payment of my medical expenses at the Center out of settlement of my claim related to the above-identified accident or episode.
Should a judge or jury determine my injuries are not related to a motor vehicle accident, this assignment of rights shall be voided, and I will be obligated to pay the full amоunt owed to the Center.
(Def.‘s Mot. Ex. I, 2/9/16 Assignment of Rights).5
As noted supra, on June 12, 2017, after Ms. Burrell had accepted the May 9, 2017 case evaluation award in the Burrell case, and settled her claims against State Farm for no-fault benefits related to her August 2014 motor vehicle accident, Ms. Burrell executed an Assignment of rights to Michigan Ambulatory, as she had done in favor of ZMC on that same date. The June 12, 2017 Assignment to Michigan Ambulatory purported to assign to Michigan Ambulatory Ms. Burrell‘s “no-fault benefits presently due or past due incurred as a result of” Ms. Burrell‘s August 19, 2014 motor vehicle acсident. (Def.‘s Mot. Summ. J. Ex. L, Assignment of No-Fault Claim and Release of Medical and Insurance Information.) That June 12, 2017 Assignment provided:
I assign to Michigan Ambulatory Surgical Center, d/b/a Specialty Surgical Center all no-fault benefits presently due or past due incurred as a result of my automobile accident(s) and relating to the reimbursement of medical billings by Michigan Ambulatory Surgical
I understand that Michigan Ambulatory Surgicаl Center d/b/a Specialty Surgical may pursue collection on its own behalf against my insurance company. I grant Michigan Ambulatory Surgical Center d/b/a Specialty Surgical and/or its attorneys permission to receive all personal or medical information including, but not limited to , insurance claim files, insurance policies, and all medical records.
(Def.‘s Mot. Summ. J. Ex. L, 6/12/17 Assignment of No-Fault Claim and Release of Medical and Insurance Information.)
In this Court‘s March 30, 2018 Opinion and Order dismissing ZMC, the Court declined to dismiss Michigan Ambulatory because Michigan Ambulatory was not a named рarty to the Burrell lawsuit and because State Farm‘s claim that Michigan Ambulatory‘s bill nonetheless was included by Ms. Burrell in her state court case evaluation relied on matters outside the pleadings that the Court could not properly consider on State Farm‘s motion to dismiss under
II. STANDARD OF REVIEW
Pursuant to
A fact is “material” for purposes of a motion for summary judgment where proof of that fact “would have [the] effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.” Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984) (quoting Black‘s Law Dictionary 881 (6th ed. 1979)) (citations omitted). A dispute over a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Conversely, where a reasonable jury could not find for the nonmoving party, there is nо genuine issue of material fact for trial and summary judgment is appropriate. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir. 1993). “The evidence and all reasonable inferences which may be drawn therefrom must be viewed in the light most favorable to the party opposing the summary judgment motion.” Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir. 1984). “‘The central issue is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.‘” Binay v. Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (quoting In re Calumet Farm, Inc., 398 F.3d 555, 558 (6th Cir. 2005)).
If this burden is met by the moving party, the non-moving party‘s failure to
III. ANALYSIS
There is no dispute, after the Michigan Supreme Court‘s decision in Covenant, that medical providers such as Michigan Ambulatory do not have an independent statutory cause of action under the Michigan No-Fault Act to recover personal protection insurance (“PIP“) benefits from no-fault insurers. Further, the Michigan Court of Appeals decision in Foote Memorial Hosp. v. Michigan Assigned Claims Plan, 321 Mich. App. 159, 196 (2017), establishes that Covenant applies retroactively. The Michigan Court of Appeals has rеiterated that Covenant applies retroactively: “This Court has already held in two recent published decisions that Covenant applies retroactively.” Jawad A. Shah, M.D. v. State Farm Mutual Auto. Ins. Co., No. 340370, 2018 WL 2121787, at *4 (Mich. Ct. App. May 8, 2018) (citing Foote and VHS Huron Valley Sinai Hosp. v. Sentinel Ins. Co., 322 Mich. App. 707 (2018)). Likewise, there is no dispute that Michigan Ambulatory‘s claims are derivative of Ms. Burrell‘s claims as the insured is the only person entitled to claim PIP benefits under the Michigan No-Fault statute. Foote, 321 Mich. App. at 174 (“the right to bring a personal protection insurance action . . . belongs to the injured party“) (quoting Hatcher v. State Farm Mut. Ins. Co., 269 Mich. App. 596, 600 (2005)). Covenant thus dictates that at the time Ms. Burrell executed the February 9, 2016 Assignment,
It is also understood following Covenant, which expressly declined to alter the rights of an insured to assign rights to a medical provider, that a provider is not precluded from presenting claims based on a valid contractual assignment from the insured for presently or past due benefits. “[O]ur conclusion today is not intended to alter an insured‘s ability to assign his or her right to past or presently due benefits to a healthcare provider.” Covenant, 500 Mich. at 217 n. 40. Plaintiff purports to rely on two separate assignments here: the one executed on February 9, 2016, the dаy of her surgery at Michigan Ambulatory, and one executed on June 12, 2017, after Ms. Burrell had settled her lawsuit with State Farm for no-fault PIP benefits she alleged were due and payable as a result of her August 2014 motor vehicle accident.
The parties agree that Michigan substantive law governs the issues presented in State Farm‘s motion and they do not dispute the generally applicable principles of the law of assignments. It is axiomatic that “‘[a]n assignee stands in the position of the assignor, possessing the same rights and being subject to the same defenses.‘” Jawad A. Shah, 2018 WL 2121787, at *8 (quoting Burkhardt v. Bailey, 260 Mich. App. 636, 653 (2004)). Michigan cоurts apply the following principles in analyzing
In Weston v. Dowty, 163 Mich.App. 238, 242, 414 N.W.2d 165 (1987), this Court opined “there must be a perfected transaction between the parties which is intended to vest in the assignee a present right in the thing assigned.” Further, Michigan‘s version of the statute of frauds requires that an assignment of “things in action” be “in writing and signed with an authorized signature by the party to be charged with the agreement, contract, or promise....”
M.C.L. § 566.132(1)(f) . Thus, under Michigan law, a written instrument, even if poorly drafted, creates an assignment if it clearly reflects the intent of the assignor to presently transfer “the thing” to the assignee. Hovey v. Grand Trunk W. R. Co., 135 Mich. 147, 149, 97 N.W. 398 (1903).Foreign jurisdictions have also held generally that an assignment requires an assignor‘s intent to presently assign be clearly manifested. “No ‘particular form of words is required for an assignment, but the assignor must manifest an intent to transfer and must not retain any control or any power of revocation.‘” Travertine Corp. v. Lexington-Silverwood, 670 N.W.2d 444, 447 (Minn. App., 2003), quoting Minnesota Mut. Life Ins. Co. v. Anderson, 504 N.W.2d 284, 286 (Minn.App., 1993). See, also, E & L Rental Equip., Inc. v. Gifford, 744 N.E.2d 1007, 1011 (Ind. App., 2001), quoting Brown v. Indiana Nat‘l Bank, 476 N.E.2d 888, 894 (Ind. App., 1985) : “‘In determining whether an assignment has been made, the question is one of intent. A written agreement assigning a subject matter must manifest the assignor‘s intent to transfer the subject matter clearly and unconditionally to the assignee.‘” (Citations omitted.)
Burkhardt, 260 Mich. App. at 654-55 (emphasis added). Finally, while “the general rule [is] that a third party cannot challenge an assignment,” a third party may challenge an assignment where the challenge would “‘render[] the assignment absolutely invalid or ineffective, or void.‘” Keyes v. Deutsche Bank Nat. Trust Co.,
A. The February 9, 2016 Assignment
Ms. Burrell did not “unconditionally” assign to Michigan Ambulatory her right to collect no-fault PIP benefits from State Farm in the February 9, 2016 Assignment. In fact, by the clear and unambiguous language of that Assignment, Ms. Burrell expressly “retained control” over her right to sue State Farm to collect no-fault PIP benefits, including those benefits due for the services provided by Michigan Ambulatory on February 9, 2016. Burkhardt, 260 Mich. App. at 655. Far from “unconditionally” assigning her right to сollect no-fault PIP benefits to Michigan Ambulatory, Ms. Burrell clearly reserved the right to commence a lawsuit against State Farm, to notify Michigan Ambulatory of any such proceeding and to attempt to collect in such a proceeding any bills that Ms. Burrell owed to Michigan Ambulatory arising out of her August 19, 2014 motor vehicle accident. Indeed Ms. Burrell guaranteed, in her February 9, 2016 Assignment, that she would pay any expenses she had incurred at Michigan Ambulatory related to the accident out of any settlement of her claim for no-fault PIP benefits. The record establishes that Ms. Burrell did include the Michigan Ambulatory bill in her state court case evaluation, that Michigan Ambulatory had notice of that proceeding, and elected not to
Michigan Ambulatory disputes this conclusion, relying on the following language of the February 9, 2016 Assignment: “I agree to notify the Centеr immediately to pursue its rights to expenses owed for my care under a lawsuit.” Michigan Ambulatory argues that this language establishes that “the Assignment on February 9, 2016 not only assigned to [Michigan Ambulatory] Ms. Burrell‘s rights to collect the No-Fault benefits owed to [Michigan Ambulatory], but also included the right to file a lawsuit against [State Farm].” (Pl.‘s Resp. 9, PgID 892.) This
First, as discussed supra, the February 9, 2016 Assignment is invalid because it does not clearly reflect Ms. Burrell‘s intent to unconditionally transfer and relinquish control over “the thing” (her right to collect PIP benefits from her auto insurer) purportedly transferred. But additionally, Covenant establishes that providers never had, and do not have, an independent statutory right to file a claim against a no-fault insurer and Ms. Burrell could not bestow such an independent right on Michigan Ambulatory by signing the February 9, 2016 Assignment. The only rights that Ms. Burrell could transfer were her rights to collect no-fault benefits – which she did not effectively do in the February 9, 2016 Assignment. In fact, Ms. Burrell unambiguously retained for herself the right to proceed in a lawsuit against State Farm to collect the benefits she claimed were owed her under the Michigan No-Fault Act,
B. The June 12, 2017 Assignment
As discussed supra and as this Court explained in the related Burrell case, on or before June 6, 2017, Ms. Burrell and State Farm accepted a case evaluation award and settled in full all claims that Ms. Burrell possessed against State Farm for no-fault PIP benefits arising out of her August 19, 2014 motor vehicle accident. Pursuant to
Michigan Ambulatory argues that “as of signing her Assignment on February 9, 2016, Ms. Burrell no longer owned her rights to collect No-Fault Personal Injury Benefits from [State Farm].” As discussed supra, Ms. Burrell did not unconditionally assign to Michigan Ambulatory her rights to collect no-fault PIP benefits from State Farm in the February 9, 2016 Assignment. And Ms. Burrell‘s conduct confirms that she retained the right to commence a suit to collect no-fault benefits from State Farm that were payable as a result of her August 2014 accident. The February 9, 2016 Assignment expressly reserved to Ms. Burrell her right to proceed with a lawsuit against State Farm for reсovery of all no-fault PIP benefits owed her arising out of her August 2014 motor vehicle accident, specifically including the right to collect Michigan Ambulatory‘s bill. In that February 9, 2016 Assignment, Ms. Burrell also guaranteed that she would pay Michigan Ambulatory out of her settlement proceeds. And she did proceed with a lawsuit against State Farm, and she did notify Michigan Ambulatory, and she did blackboard Michigan Ambulatory‘s bill in her case evaluation statement, and she did settle all of her claims against State Farm for all no-fault PIP benefits payable to her as a result of her August 19, 2014 motor vehicle
Covenant estаblishes that Michigan Ambulatory‘s rights to collect are wholly derivative of Ms. Burrell‘s. Michigan Ambulatory states in its brief that “Defendant was put on notice of Plaintiff‘s Counsel representation on March 31, 2016 and the fact that Ms. Burrell did not have authority to represent [Michigan Ambulatory‘s] billings.” (Pl.‘s Resp. 12, PgID 895.) Of course, Michigan Ambulatory cites no authority for this blanket proposition regarding Ms. Burrell‘s authority to settle her own no-fault claim against State Farm. Michigan Ambulatory continues: “Ms. Burrell had no power to settle [Michigan Ambulatory‘s] bill.” But saying this doesn‘t make it so and Michigan Ambulatory cites no law in support of this position.
Michigan Ambulatory, under Covenant, possesses no independent statutory basis for pursuing a claim against State Farm. Its claims, if any, are entirely derivative of Ms. Burrell‘s claims against State Farm. Ms. Burrell settled all of her claims for no-fault PIP benefits against State Farm by accepting a case evaluation award on or about June 6, 2017, and dismissing her claim against State Farm for all no-fault benefits arising out of her August 19, 2014 automobile accident, expressly including Michigan Ambulatory‘s bill. She had no rights to recovery against State Farm that she could
IV. CONCLUSION
For the foregoing reasons, State Farm‘s Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: October 3, 2018
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on October 3, 2018.
s/Deborah Tofil
Case Manager