Tousignant v. Allstate Insurance

COMPANY v ALLSTATE INSURANCE TOUSIGNANT 12). (Calendar 2, April Argued No. Decided No. Docket 93773. 29, 1993. September Tousignant brought the 46th an action in Judicial Louise Ann against Company, her no- Insurance District Court the Allstate insurer, expenses seeking reimbursement for fault injuries in an accident. All- received automobile incurred state, provision relying on of benefits its a coordination through bills not submitted had refused insurance, employer-provided plaintiff’s care Health Plan, organization. The case Alliance health maintenance Court, Temp- L. to the Oakland Circuit Robert was transferred lin, J., granted summary disposition for Allstate. The which Kelly Marilyn Appeals, Michael Kelly, J. J. JJ. Court of 122987). (Docket (Weaver, P.J., dissenting), reversed No. All- appeals. state opinion joined by Levin, In Chief Justice an Justice Supreme Mallett, Cavanagh, and Justices Griffin Court held: subject liability A is not for medical is that an insured’s coordinated health care insurer required by provide. for or Where, case, coverages 1. inas this no-fault and health care and, case, as in the health care insurer are coordinated this provider, care and a no-fault insured obtains also is a health injuries in an automobile accident medical care for sustained insurer, legislative through purpose the health care 24.13109(1) 500.3109a; dupli- avoiding underlying MCL MSA payment achieved the no-fault insurer is cative because requires liability payment. purpose That an relieved payment who chooses to coordinate benefits to obtain from the insurer to the extent of the and services health care coverage available. health care optional, resultant lower 2. of benefits is Coordination References 2d, Insurance 444. Am Automobile §§ Jur provision rights payments Subrogation of insurer under medical policy. 19 ALR3d 1054. automobile insurance 444 Mich 301 elected, premiums. provides pri- When health insurance mary coverage. Where the coordinated provided by through employer chosen a health mainte- organization, nance a no-fault will be limited physicians provided by of and choice facilities to those the hmo. require 3109a not Section does that insured be physicians choosing a wide of afforded choice facilities. In agrees hmo, coordination with an to no-fault insured relin- quish physicians the choice of and facilities. policy provides expenses only 3. Allstate’s no-fault that those obligated pay that health care insurer is not it, provide paid by will be and fair is a construction meaning primary 3109a as construed in Where, case, case law. in this as there is no claim that provide health care insurer would not or could not the neces- treatment, sary finding medical there is no basis for a care were not available from the health insurer.

Reversed. Brickley joined by Boyle, Riley, Justice Justices concur- ring part dissenting part, stated that where an opted coverage pursuant 3109a, has to coordinate to § contractually agreed has first to seek benefits under preexisting coverage. health and accident Under the clear language policy, Allstate liable to medical expense paid provided by benefits that should have been for or another source. (1992) 415; App

193 Mich 484 NW2d 404 reversed. — — — Insurance No-Fault Health Care of Bene- Coordination fits. subject liability expense

A no-fault insurer is not for medical required by that an insured’s coordinated health care insurer is (MCL 500.3107, 500.3109a; for or MSA 24.13107, 24.13109[1]). Gordon, Louis P.C. David W. (by Martin), for the plaintiff. Cooper

Garan, Lucow, Miller, Seward, Becker, & P.C. James L. Borin and Daniel S. Saylor), for (by the defendant. Opinion of the Court Curiae:

Amici Michigan Lydick for the Association A. John Companies. Insurance Nancy Insurance Associa- L. for Auto Club Bosh tion. Hay), (by

Hay H. O'Rourke, Thomas P.C. & Burbach, P. Linkner, Charles Monica Farris Lawyers Michigan Association. Trial for the question presented concerns The J. Levin, liability when the insurer a no-fault automobile purchases a of no-fault automobile other health insured insurance coverage. coordinated with subject is not hold that a no-fault We liability the insured’s1 required, contract, under its insurer is health care to provide.2 pay for or

i injured in an auto- Ann was Louise Tousignant’s July, auto- 1987. in mobile accident 1 with insurance no-fault automobile Where the insured coordinates payable coverage, applies to the to benefits coordination other health insured, insured, any domi spouse relative of either the household, the no-fault set forth in 3109a of § the same as ciled liability act: automobile personal protection providing insurance An insurer rates, premium offer, appropriately deductibles at reduced

shall and exclusions reasonably to other health and accident related coverage quired re- and exclusions on the insured. The deductibles subject prior to this section shall be to be offered only apply approval and shall to benefits the commissioner policy, spouse person payable insured and to named any in the same of either domiciled relative 24.13109(1).] 500.3109a; MSA household. [MCL 2 might arise were a do not address issues We or, expense insured for to or reimburse an insurer the case medical care. fail provider, also a fail health insurer who is 444 301 op the Court mobile was insured under automobile policy Company. with Allstate Insurance

Tousignant’s employer provided her with health through care insurance Health Alliance Plan organization. Tousig- (hap), a health maintenance nant chose to coordinate her no-fault insurance coverage,” provided by . . . "other health employer through pursuant § her 3109a hap, liability pro- act, the no-fault automobile which appropriately vides such coordination "at re- premium [automobile duced insurance] rates.”3 provision The coordination in the Allstate no- provides fault that when the insured coordi- coverages, nates health care subject Allstate shall liability expense, for medical act,4 3107 of the no-fault to the extent such expense "paid, payable pro- to be any disability, accident, vided” under collectible hospitalization surgical insurance or medical or reimbursement plan.5_ n 1 See for text of 3109a. provides: Section 3107 of the no-fault act protection payable insurance benefits are [P]ersonal for the

following: (a) expenses consisting charges Allowable of all reasonable reasonably necessary products, incurred for services and accom- care, person’s injured recovery, modations for an tion. or rehabilita- 500.3107; MSA [MCL 24.13107.] policy provides: The Allstate If medical benefits are identified as excess under Coverage declarations, VA in the Allstate shall not be liable to any the extent elements of loss covered under Personal expenses paid, pay- Protection Insurance allowable benefits are provided or able to be to or on behalf of the named any provisions any insured or relative under the valid and collectible (a) individual, group disability hospi- blanket or accident or insurance, talization (b) surgical plan medical reimbursement .... Tousignant Allstate Court Tousignant treated after the was examined pain emergency at the and neck for back accident Henry in West Medical Clinic Ford room hap facility. Bloomfield, She was released an pain or neck if her back to return instructions continued. pain. Tousignant apparently to suffer continued Henry returning Ford Medical Instead hap Tousig- facility physician, another Clinic or nant than an tests and treatments physician sought other from a treatment hap performed physician physician. This Tousignant placed of heat on a course to three neck and back one for her per year. for a times week periodic Tousignant began treatment with a also syn- joint possible temporomandibular dentist drome. hap not an affiliated doc- The dentist was suggested that she consult It had been tor. clicking jaw. in her dentist telephoned shortly Tousignant after her inquire it would for non- whether accident to hap acknowledges, and this was care. She Allstate, that Allstate confirmed in told her a letter from only pay by it for medical care that would physician pursuant to a referral non-HAP hap physician. necessary Tousignant has not contended inadequate or of unavailable medical care was hap quality at facilities. relying Allstate, of benefits on the coordination policy, provision refused to bills of the no-fault physician dentist. It the non-HAP submitted necessary any "re- services were contends hap. provided” quired to be summary disposition granted court The circuit Appeals stat- The Court of reversed for Allstate.6 ing: 1988, seeking April, this action in commenced

306 444 Mich 301 op the Court Nothing language in the of the coordination of benefits clause contained

requires plaintiff to seek all possible treatment her hmo through organiza maintenance [health may before she receive no-fault insurance tion] benefits for medical care not her covered health coverage. (1992).[7] App 418; Mich 484 404 NW2d [193

ii Tousignant contends that coordination does not require that a no-fault insured seek all medical care the health insurer. When no-fault and coverages health here, coordinated, care are and, as the health insurer (hmo) is a health care provider, and the no-fault seeks and ob through tains medical care from or the health legislative purpose underlying insurer, the § 3109a avoiding duplicative payment is achieved be having cause, case, in such a the medical care provided by insurer, been the no-fault liability payment insurer is relieved for .8 expense of such care Tousignant argues, however, that when the no- fault insured not seek does medical care from loss, expense, wage replacement benefits for medical services. The only expense. liability issue now before this Court is Allstate’s for medical 7 majority among The panels observed there was a conflict issue, regarding the Court this Calhoun referred to v Auto Club Ass’n, 85; (1989), App Major Ins 177 Mich 441 54 NW2d v Auto Ass’n, (1990). App 437; Ins Club 185 Mich 462 NW2d 771 majority represents The stated that it believed Calhoun "the better- dissenting judge reasoned view.” Major A Id. at 418. stated she would follow pays premium "which holds that who reduced exchange coordinated benefits to seek provided by primary seeking payment insurer before from the no-fault insurer.” Id. at 419. Co, Morgan 640, 648, 11; See Ins Citizens n 442 NW2d (1989). v Allstate Opinion of the Court insurer, rather medical care but obtains physicians choice, of her the health

from other obliged not then insurer is care, such medical and thus neither such medical "required providing it is nor provided” by Allstate, insurer. the health Tousignant contends, therefore must bills physician dentist, is there and of the non-HAP pay. only duplication Allstate would no because § 3109a nor the that neither stresses policy insured must states that a no-fault no-fault a health who is care from a seek medical provider, neither 3109a nor and that health care policy speak in- a health of the Allstate no-fault "primary as the insurer.” surer policy legislative conclude, however, that the We requires §of 3109a to the enactment led coordinate no-fault and who chooses to coverages payment and services to obtain health to the extent of the health the health insurer coverage from the insurer. available health

hi coverages health Coordination of no-fault and optional. to tailor their "[I]t individuals allows special coverage A needs.”9 to their own insurance duplicative no-fault coverage insured who desires can, and health insurers from no-fault higher premi- coordinating paying thus not ums, coverage no-fault both a a health insurer. insurer and coordinate, reduced who and thus a Insureds premium, however, to have made the are deemed respecting "primary” insurer health insurer injuries In Federal accident. in an automobile 9 Co, 410 Mich Mutual Automobile Ins LeBlanc v State Farm (1981). 197; 775 301 NW2d 444 Mich of Court Kemper Co, Administration, Inc v Health Ins (1986), Inc, 537; 383 NW2d this Court held that when a no-fault coordi- coverages, no-fault nates health insur- "primary” coverage, thus, and, ance is the primarily payment health insurer is liable expense. the insured’s medical The Court so held stating 3109a, in the construction that such necessary construction was to make effective the legislative purpose ing, enacting § 3109a of eliminat- exchange premium for a reduction charged insurance, for no-fault health care cover- age duplicative health insurer. dispute Kemper

The was between a no-fault insurer and a health insurer. But the rationale of Kemper requires the same construction when the dispute is between an insured under a no-fault policy and the no-fault insurer. If a no-fault in- sured, who has chosen to coordinate no-fault and coverages, health could recover the no-fault insurer medical obtainable from the legislative purpose insurer, health —eliminat- ing, exchange premium, for reduction in health coverage dupli- care a no-fault is that coverage health cative of care with a in- health surer —would be defeated. Whether the contro- versy is between a insurer, no-fault and a health Kemper, in as or is between no-fault insurer and insured, a no-fault as in case, the instant to make legislative policy underlying § effective the 3109a, primary the health insurer is insurer to the agreed extent the health insurer has for or provide necessary medical care. appears Kemper

It that the health insurer strictly provider was an and not insurer also a of case, health care. In the instant the health insurer provider. speaks ais health care Section 3109a of Tousignant v Allstate op the Court coverage the in- on and accident "other health that not contend does sured.”10 hap by provided cover- is not "health care health meaning age” It seems be of 3109a. within generally that and undoubted understood hmo meaning coverage” coverage within the "health is coverage though consists 3109a, §of even hmo paying providing ren- than bills rather services providers by by the no- chosen health care dered fault insured. frequently pro- coverage is most care Health opts employer employer. by When an vided one’s coverage by than a health an rather hmo, pays by health care bills rendered insurer generally phy- providers, limited choice there is generally the hmo facilities because sicians or designates physicians where ser- and facilities performed.11 the "other health will When vices coverage coverage” is with coordinated coverage by thus the no-fault insured will hmo, physicians or facilities have limited choice through the hmo. coverage” coordinated the "other

When coverage by a health with no-fault provider (hmo), who insurer pays insurer rendered and thus the health bills gener- providers, the no-fault health care physicians ally and facilities.12 has a wide choice require 3109a, however, does not Section coverage,” which the no-fault "other health provide coordinate, the no- has chosen choice. insured with such fault legislative policy embodied Nor does requiring a no-fault 10 n 1 See for text 3109a. § 11 merges obligation provide require to benefits with An hmo desig particular physicians from treatment be obtained ment nated through by the at or hmo facilities. hmo 12 Morgan, supra, pp 8n 649-650. See 310 444 301 Mich Opinion of the Court necessary expense, require that "other coverage” provide health 3109a the no- physician facility. fault insured choice with a may The no-fault insured a wide choice of retain coordinating. physicians and facilities employer Where, however, the no-fault insured’s provide insurance, chooses or the no- insurance, fault chooses obtain the no-fault insured chooses to hmo, coverages, coordinate no-fault and health fault the no- thereby agreed has, effect, relinquish physician facility. choice of policy

Section 3109a and the Allstate concern "paid, payable pro- "benefits” to be usually expressed vided.” No-fault benefits are Thinking monetary dollar amounts.13 of benefits in pro- terms understandable when benefits are recipient in vided to the dollar form.14 Where, however, the health insurer is also a provider, readily health care benefits cannot be expressed monetary Nevertheless, terms. medi- insurer, cal services that a health who is also a provider, obliged provide, health care requested, payable” would if are "benefits meaning "required within the of 3109a and are provided” meaning to within the of the Allstate policy.

iv The Allstate no-fault states that Allstate any "shall not be liable to the extent ele- ments loss covered under Personal Protection expenses paid, Insurance allowable benefits are 13Morgan, supra, p n 8 646. 14 Co, See v Farm 404 O’Donnell State Mutual Automobile Ins Mich (1979) (social 524; benefits); security Thomp NW2d survivor’s DAIIE, (1984) (social 610; security son NW2d 764 disability by dependents). benefits received Ins the Court provided required payable to or on behalf or any the or relative under of the named insured provisions any and collectible” health valid added.) policy. (Emphasis insurance policy will thus states that Allstate

The Allstate expense pay any health insurer has not paid, the provide. required pay pay, or is will only pay Allstate will obligated provide. for or is not insurer language agree that the its We with Allstate meaning fair construction Kemper, fairly § reflects 3109a as construed "pri- it for health insurer to be what means mary.” "pay- question then is what benefits were

The provided” by "required to be able” or hap.

A Mutual Automobile Ins In Perez v State Farm (1984), this Court Co, 634; 344 NW2d 773 418 Mich "required provided” un- to be the term construed The Court the no-fault act. der section of another 3109(1)15 under that no setoff was available held compensation where the ben- for benefits workers’ paid injured to a worker would not fact be efits employer because the an automobile accident compensation insur- not workers’ had obtained opinion The ance. lead states:_ provided provided required to be under laws Benefits government any shall be subtracted state or the federal of the payable personal protection insurance benefits otherwise 500.3109(1); 24.13109(1).] injury. MSA [MCL Perez, had refused to no-fault medical In 3109(1) off § be loss because it claimed a set and work benefits provided compensation benefits that were workers’ not, however, injured worker receive state The would under workers’ law. employer compensation did have because the coverage. this insurance 444 Mich 301 Opinion of the Court 3109(1) "required provided” The to be clause of injured person obliged means that to use reasonable efforts to available from workers’ payments obtain that are compensation a workers’ insurer. If compensation payments are available to him, he does not have a seeking choice of workers’ compensation benefits; or no-fault the no-fault in surer is entitled to subtract the available workers’ compensation payments they even if are not in paid fact because of the injured failure of the person them.[16] to use reasonable efforts to obtain [Emphasis added.] to be provided” is the "[Provided 3109(1) term in used establishing stat- mandatory utory coordination of no-fault benefits with bene- fits required to provided be under state or federal law. Similar language is used in the pol- 3109(1) icy. Section up sets a setoff mandatory using the terms "provided or required to pro- be vided.”

Section 3109a states that the coordination of shall apply to "benefits payable.” The words "payable” "required to provided” be are "functionally equivalent.”17

B In deciding whether health care was available hap the focus should be on the hap, as it applied in practice. Section 3109a does not require a health provide particular benefits. The availability services depends thus on what the contract means as in applied practice, question a of fact as well legal as of construction of a contract document. hap

Tousignant does not contend that would not 16Perez, J.). supra, pp (opinion Levin, 645-646 17Perez, supra, p n 19. Co v Allstate Boyle, J. care she needed.18 the medical provide

or could not the in it is claimed that which Nor is this case that it can was such available quality not available.19 that the benefit was be said health insurer no claim there is Where necessary not or could not would finding treatment, no basis for there is "pay- not available —not the benefits were provided” "required able” or —from health insurer. Mallett, JJ.,

Cavanagh, C.J., and Griffin Levin, J. concurred (concurring part dissenting in Boyle, J. part). For separate expressed my reasons America, in Profit v Citizens Ins opinion (1993), 281; 506 I concur NW2d majority’s with the disagree result but majority’s rationale.

Brickley Boyle, Riley, JJ., J. concurred with (1993), ACIA, 314; 506 in which Cf. plaintiff alleged 444 Mich NW2d Owens sys Administration medical Veteran’s he needed. tem could not the rehabilitation services 649, 652, Morgan, supra, pp 3. n n See

Case Details

Case Name: Tousignant v. Allstate Insurance

Court Name: Michigan Supreme Court

Date Published: Sep 29, 1993

Citation: 506 N.W.2d 844

Docket Number: 93773, (Calendar No. 12)

Court Abbreviation: Mich.