If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

TYNINA FLOWERS,

Plaintiff-Appellee,

UNPUBLISHED

September 22, 2022

v No. 354436

Wayne Circuit Court

KEVIN WILSON and CHERI MICHELLA PETRI, LC No. 18-015328-NI

Defendants,

and

AUTO CLUB INSURANCE ASSOCIATION and 

MEMBERSELECT INSURANCE COMPANY,

Defendants-Appellants.

Before: RONAYNE KRAUSE, P.J., and JANSEN and SWARTZLE, JJ.

SWARTZLE, J. (concurring).

I concur with the majority’s opinion and judgment. I write separately to make clear that 

but-for the continuing viability of LaMothe v Auto Club Ins Ass’n, 214 Mich App 577; 543 NW2d 

42 (1995), overruled on other grounds by Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 

500 Mich 191; 895 NW2d 490 (2017), on the dispositive issue here, I would affirm.

As explained by the majority, 

In LaMothe, the insurer paid only the medical expenses it deemed reasonable under 

the no-fault act so the insured sued his insurer for the unpaid balance. LaMothe, 

214 Mich App at 579-580. The insurer promised to “fully defend and indemnify 

the insured from liability for necessary services priced in excess of what the insurer 

considers to be reasonable and customary.” Id. at 583. The LaMothe Court 

concluded that this promise was legally enforceable “regardless of the period of 

limitation in the policy that controls presentment of claims to the insurer” and, 
-2-

therefore, the plaintiff was not harmed by the insurer’s actions, which required 

dismissal of the plaintiff’s case. Id. at 582-585 and 585 n 5. [Maj op at __.]

Thus, under LaMothe, so long as the insurer promised to defend and indemnify the insured patient

against the medical provider’s attempts to obtain payment, the insured patient could not pursue a 

viable claim against the insurer related to any unpaid bill.

In arriving at this conclusion, both LaMothe and its predecessor, McGill v Auto Ass’n of 

Mich, 207 Mich App 402; 526 NW2d 12 (1994), placed considerable emphasis on the statutory 

duty of an insurer to pay only “reasonable” charges under the state’s no-fault act. MCL 500.3107. 

Based on this, the panels in the two cases concluded that it made sense that insurers would audit 

medical bills and pay only what the insurers considered were reasonable charges. And, following 

this line of reasoning, the panels further concluded that providers and patients could not expect 

that insurers would pay in full every charge for every service, regardless of the reasonableness of 

the charge or the necessity of the service.

Fair enough. But what LaMothe and McGill both failed to recognize was that medical 

providers have been under a similar statutory duty to charge only “reasonable” fees for necessary 

services provided. See MCL 500.3157 (1994 and 1995) and MCL 500.3157(1) (current). Thus, 

both sides of the payment equation under the no-fault act—the provider and the insurer—have 

reciprocal statutory duties to charge and pay only “reasonable” fees. The panels in each case 

appeared to presume that the insurer was just fulfilling its statutory obligation, but there was no 

similar presumption that the provider was just fulfilling its statutory obligation as well. Moreover, 

in LaMothe, the majority expressly concluded that the insurer had, in fact, paid “those charges 

reasonably incurred for reasonably necessary products, services, and accommodations for 

plaintiff’s care.” 214 Mich App at 581-582. Yet, this was one of the key factual claims in 

dispute—i.e., whether the insurer had paid for reasonable charges—and the majority made an 

inappropriate finding of fact on a motion for summary disposition under MCR 2.116(C)(10).

Courts have cited and followed Lamothe and McGill since the mid-1990s. See, e.g., United 

States Fid & Guar Co v Michigan Catastrophic Claims Ass’n, 484 Mich 1, 18; 795 NW2d 101, 

110 (2009); Bronson Methodist Hosp v Auto-Owners Ins Co, 295 Mich App 431, 457; 814 NW2d 

670 (2012). Although recent changes to the no-fault act permit a medical provider to sue an insurer 

directly, MCL 500.3112; Spectrum Health Hosps v Mich Assigned Claims Plan, 330 Mich App 

21, 28 n 4; 944 NW2d 412 (2019), LaMothe and McGill continue to bar the insured patient from 

the courthouse. An insured patient is even limited in her ability to contract around LaMothe and 

McGill. See, e.g., MCL 500.3143 (dealing with an assignment related to future benefits); Bronson 

Health Care Group, Inc, v USAA Cas Ins Co, 335 Mich App 25; 966 NW2d 393 (2020).

Thus, the insured patient remains caught in the middle between, on the one hand, providers 

who demand payment at the risk of lost services, lawsuits, or collection agencies, and, on the other 

hand, insurers who refuse payment.

To be clear—none of this is to say that the insurer is necessarily wrong in the instant case. 

Auto Club might well have paid every reasonable fee charged for every necessary service received 

by plaintiff. But we cannot know this at the pleading stage. MCR 2.116(C)(8). The better 

approach, in my opinion, would be to let the factual dispute about the reasonableness of bills play 
-3-

out in litigation, rather than to assume that (1) the insurer paid reasonable charges, but (2) the 

provider did not charge reasonable fees for necessary services.

As to an insurer’s promise to defend and indemnify an insured patient—the key feature 

that short circuits the patient’s suit against the insurer—the details of the promise are universally

scant, at least as recounted in case law. So, for example, (1) if the insured patient is subsequently 

sued by a provider for an unpaid bill, will the insurer let the patient hire an attorney of her choice

and still pay for the cost of that attorney? Or, will the insurer require that the patient use an 

attorney of its choosing? (2) If the insured patient believes that the unpaid bill was for a necessary 

service reasonably priced, and that patient admits this in her answer to a provider’s lawsuit against 

her, will the insurer then accept the admission and cover the bill in full? (3) How will the insurer, 

in actuality, rehabilitate an insured patient’s decimated credit score such that the patient’s credit is 

no worse than what it was before significant medical bills went unpaid? Will the insurer, for 

example, fund a patient’s lawsuit against a credit bureau under the Fair Credit Reporting Act or 

similar consumer-protection law? (4) And, as a final example, if the insured patient needs a 

particular service but its medical provider refuses to provide the service because of unpaid bills, 

will the insurer assist the insured (and pay any necessary expenses) in finding equivalent

replacement services?

There are too many unanswered questions and missing details to leave enforceability of the 

promise on future application of judicial and promissory estoppel. Instead, if LaMothe and McGill

were set aside, the insured patient could pursue her rights in the courthouse like any other party 

with a legal interest. This would leave open the option for the insurer to defend and indemnify the 

insured patient through a negotiated (rather than forced) settlement.

With the recent changes to this state’s no-fault regime, 2019 PA 21, now would be an 

opportune time for our Supreme Court to consider whether LaMothe and McGill should remain 

binding precedent. Insured patients have a cognizable interest in having their medical bills paid, 

and they should have the opportunity to have their own day in court.

Until and unless this happens, however, lower courts remain bound by LaMothe and 

McGill. Given this, I concur in the majority’s opinion and judgment.

/s/ Brock A. Swartzle