Plaintiff appeals as of right from an order granting defendant Citizens Insurance Company of America summary disposition pursuant to MCR 2.116(0(10).
The underlying dispute concerns the payment of no-fault insurance benefits. Plaintiff was injured while being driven to National Guard training. *117 Defendant Citizens was plaintiffs no-fault insurer. Plaintiffs initial hospitalization was paid by the Veterans Administration. Approximately nine months later, plaintiff was diagnosed as having a herniated disc in his back and surgery was recommended. Plaintiff claims that he sought approval for the operation from his staff sergeant. According to plaintiff, his sergeant stated that the military would not pay for the surgery because it was considered an elective procedure. Nonetheless, plaintiff chose to have the surgery performed at a nonmilitary hospital at a cost of over $10,000. He subsequently requested reimbursement of his medical expenses from the military. Plaintiffs claim was denied for the following reasons:
a.) Nonemergency medical care in a civilian treatment facility is not authorized without written or verbal authorization from the Chief, National Guard Bureau or his designee. There is no documentation included in this package that showed any authorization for care was asked for or granted.
b.) There is no medical documentation indicating that the auto accident in January, 1984, was the cause of the soldier’s herniated disk [sic] which was diagnosed nine months later in September, 1984.
Plaintiff then filed this action against the defendant insurer and others. Defendant insurer responded by claiming that it was not liable for plaintiffs medical expenses because of the setoff provision, § 3109, of the no-fault insurance act. 1 The trial court granted defendant insurer’s motion for summary disposition, finding that plaintiff *118 elected not to receive the benefits offered by the federal government.
MCL 500.3109(1); MSA 24.13109(1) provides:
Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.
Medical care provided a member of the armed forces pursuant to 10 USC 1071 is a benefit provided under the laws of the federal government required to be subtracted from no-fault benefits otherwise payable to the injured person.
Crowley v DAIIE,
In
Perez v State Farm Mutual Automobile Ins Co,
would allow the Plaintiff to elect who, as between the no-fault and compensation carriers, to collect benefits from. This would disturb the legislatively established relative spheres of application of no-fault and compensation. Section 3109(1) clearly contemplates that the no-fault carrier should be liable only for the excess of its coverage over and above that potentially provided by the compensation carriers.
We interpret the foregoing Supreme Court decisions as indicating that a no-fault insurer may offset primary insurance benefits except when injured persons fail to receive benefits through no fault of their own. In this case, plaintiff might have been entitled to medical benefits provided by the military if he had received treatment at a Veterans Administration hospital. Instead, he chose to have nonemergency surgery performed at a nonmilitary hospital. Under the circumstances of this case, we agree with the trial court that defendant insurer was entitled to subtract from insurance benefits otherwise payable the amount that would have been paid by the federal government if plaintiff had sought treatment at a military hospital. Recovery from defendant insurer in this case would defeat the purpose of the setoff provision by allowing plaintiff to choose which insurance would pay for his medical treatment.
The decision of the trial court is affirmed.
Notes
Plaintiffs complaint also alleged wage loss and replacement services expenses. The trial court’s dismissal of these claims is not on appeal.