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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

RODNEY HARRISON,

Plaintiff,

and

MICHIGAN HEAD & SPINE INSTITUTE, PC,

Intervening Plaintiff-Appellant,

UNPUBLISHED

November 28, 2017

v No. 334083

Wayne Circuit Court

ALLSTATE PROPERTY & CASUALTY 

INSURANCE COMPANY,

LC No. 14-013225-NF

Defendant-Appellee,

and

THURMAN CLIFFORD RIDENOUR,

Defendant.

Before: METER, P.J., and BORRELLO and RIORDAN, JJ.

RIORDAN, J. (dissenting).

I respectfully dissent. 

Intervening plaintiff, Michigan Head & Spine Institute, PC (MHSI), appeals as of right of 

the trial court’s order granting summary disposition in favor of defendant, Allstate Property & 

Casualty Insurance Company (Allstate), based upon the alleged fraud of the insured, Rodney 

Harrison. While this appeal was pending, the Michigan Supreme court issued its opinion in 

Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich 191; 895 NW2d 490 (2017). In 

that decision, the Court held that “healthcare providers do not possess a statutory cause of action 

against no-fault insurers for recovery of personal protection insurance benefits under the no-fault 

act.” Id. at 196. The Court clarified that its opinion was “not intended to alter an insured’s 

ability to assign his or her right to past or presently due benefits to a healthcare provider.” Id. at 

217 n 40. 
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Subsequently, in W A Foote Mem Hosp v Michigan Assigned Claims Plan, ___ Mich App 

___, ___; ___ NW2d ___ (2017) (Docket No. 333360); slip op at 19, we held that the Court’s 

decision in Covenant applied retroactively. In that case, we considered an appeal by a healthcare 

provider of a trial court’s order granting summary disposition in favor of the Michigan Assigned 

Claims Plan on the ground that the healthcare provider’s “claim was ineligible for assignment 

because applicable insurance had been identified, and because [the healthcare provider] could 

have recovered PIP benefits from [the applicable insurance company] if it had acted in a timely 

fashion.” Id. at ___; slip op at 3. Like in the instant case, Covenant was decided while the 

healthcare provider’s appeal was pending before this Court. Id. Despite being presented a case 

that initially involved the grant of summary disposition against the healthcare provider for 

reasons wholly unrelated to Covenant, we affirmed the grant of summary disposition based on 

Covenant, refused to consider the issue initially presented for review, and remanded to the trial 

court for further proceedings. Id. at ___; slip op at 19-20. We further opined that, should a 

healthcare provider assert that it wished to pursue an assignment theory given the Covenant

decision, “the most prudent and appropriate course for us to take . . . is to remand this case to the 

trial court with direction that it allow [the healthcare provider] to amend its complaint, so that the 

trial court may address the attendant issues in the first place.” W A Foote, ___ Mich App at ___; 

slip op at 19-20. 

In the instant case, it is undisputed that the trial court record is absent of any evidence of 

an assignment from the insured to MHSI. Although MHSI now provides on appeal documents it 

purports to be evidence of such an assignment, MHSI is not now permitted to expand the record. 

See Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002). Considering 

that MHSI sought payment from Allstate based on its standing as a healthcare provider for the 

insured and there is no assertion or evidence on the record of an assignment, the Court’s decision 

in Covenant, 500 Mich App at 196, mandates a finding that MHSI did not have any recognized 

statutory ground for recovery. Summary disposition was therefore required in favor of Allstate. 

See id. 

Consequently, pursuant to W A Foote, ___ Mich App at ___; slip op at 19-20, I would 

have held that the proper remedy in this case is to affirm the trial court’s order granting summary 

disposition in favor of Allstate, albeit for a different reason than the trial court, refuse to consider 

the issue of the insured’s alleged fraud, and remand with direction to the trial court to consider 

MHSI’s motion to amend the complaint and determine the Covenant issue in the first instance

should MHSI argue assignment. Given that Covenant, 500 Mich at 196, and W A Foote, ___ 

Mich App at ___; slip op at 4, 19-20, are dispositive of this case, it is unnecessary to resolve the 

remaining issue before us – the insured’s alleged fraud. 

I would affirm the trial court’s order granting summary disposition in favor of Allstate 

and remand with the direction that it allow MHSI to move to amend the complaint. 

/s/ Michael J. Riordan