RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0291p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

P ALMER P ARK S QUARE , LLC, Plaintiff-Appellant ,

v

.

S COTTSDALE I NSURANCE C OMPANY , Defendant-Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 17-1158

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:16-cv-11536—Nancy G. Edmunds, District Judge. Argued: November 29, 2017
Decided and Filed: December 22, 2017
Before: GILMAN, SUTTON, a nd STRANCH, Circuit Judges.

_________________ COUNSEL

ARGUED: Donald M. Fulkerson, Westland, Michig an, for Appellant. Hans H.J. Pijls, DINSMORE & SHOHL, LLP, Ann Ar bor, Michigan, for Appellee. ON BRIEF: Donald M. Fulkerson, Westland, Michigan, for Appellant. Ha ns H.J. Pijls, Julia T. Stuebing, DINSMORE & SHOHL, LLP, Ann Arbor, Mi chigan, for Appellee.

_________________ OPINION

_________________ RONALD LEE GILMAN, Circuit Judge. Over four years after Palmer Park Square, LLC incurred an insured loss, it brought a clai m against Scottsdale Insurance Company for “penalty interest” allegedly due on the untimely pa yment of the loss by Scottsdale. The district court held that the penalty-interest claim aros e “under the policy” and was thus barred by the 

### >No. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 2

policy’s two-year limitations provision. It furt her held that a statutory provision providing for the tolling of limitations provisions in insurance contracts did not apply to policies issued by surplus-lines insurers like Scottsdale. As a result, summary judgment was granted in Scottsdale’s favor. For the reasons set forth below, we REVERSE the judgment of the district
court and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND
Palmer owned a vacant apartment complex locat ed at 843 Whitmore in Detroit, Michigan (the Property). Scottsdale issued a commercia l fire insurance policy to Palmer covering the Property for fire and other specified losses from November 8, 2011 through November 8, 2012 (the Policy).
The Property was burglarized and vandalized in February 2012, such losses being within the coverage of Scottsdale’s fire insurance policy. Palmer reported the loss to Scottsdale over a year and a half later, on Octobe r 22, 2013. Scottsdale wrote to Pa lmer several weeks thereafter acknowledging that the purported loss occurred dur ing the coverage period, explaining that it was investigating the claim, and reserving the right to assert defenses to coverage under the Policy. The letter went on to explicitly state that Scottsdale was not denying Palmer’s claim.
On November 27, 2013, Palmer sent Scottsdale an itemized Proof of Loss. Scottsdale did not object to Palmer’s Proof of Loss as inadeq uate. Instead, it submitted a payment of $150,000 to Palmer on or about June 16, 2014, almost seven months after Palmer submitted its Proof of Loss. This payment was made well outside of the period permitted for a “timely” payment under § 500.2836(2) of the Michigan Compiled Laws, wh ich provides that “lo sses under any fire insurance policy shall be paid within 30 days after receipt of proof of the amount of loss.”
Because the $150,000 payment was far less than the amount claimed, Palmer requested an appraisal under the Policy. Scottsdale agreed to the appraisal and no ted that the claim was still under investigation.
The appraisers concluded that Palm er’s actual-cash-value loss was $1,642,796.76. Because coverage under the Policy was limited to $1,000,000, Scottsdale tendered two checksNo. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 3

over a period of several months that paid the balance of the appraisal award up to the Policy limit. Palmer then requested penalty interest for late payment of the claim under § 500.2006(4) of the Michigan Compiled Laws. Section 500.2006(4) states that “[i]f benefits are not paid on a timely basis, the benefits paid bear simple intere st from a date 60 days after satisfactory proof of loss was received by the insurer at the rate of 12 % per annum, if the claimant is the insured or a person directly entitled to benefits under the insured’s insurance contract.” This penalty interest “must be paid in addition to and at the time of payment of the loss.” Id.
Scottsdale rejected Palmer’s request for pe nalty interest on October 26, 2015 because “all payments were timely made once the amounts ow ed were determined.” On March 24, 2016, Palmer responded by filing a lawsuit in Michigan state court that sought penalty interest under § 500.2006(4). Scottsdale removed the case to fede ral court based on diversity jurisdiction. Following the close of discovery, Scottsdale moved for summary j udgment, arguing that Palmer’s claim was time-barred under the Policy. In relevant part, the Policy provides that “[n]o one may bring a legal action against [Scottsdale] under this Coverage Part unless . . . [t]he action is brought within 2 years after the date on which the direct physical loss or damage occurred.” (Emphasis added.) The district court agreed w ith Scottsdale’s argument and granted it summary judgment. This timely appeal followed.

II. ANALYSIS

A. Standard of review

We review de novo the district cour t’s grant of summary judgment. Williams v. AT&T Mobility Servs. LLC , 847 F.3d 384, 391 (6th Cir. 2017). Su mmary judgment is proper when there is no genuine dispute of ma terial fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) . A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could retu rn a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). The court “must view all evidence in the light most favorable to the nonmoving party in making this determination.” Williams , 847 F.3d at 391.No. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 4

B. The district court erred in concluding th at Palmer’s claim for penalty interest was governed by the Policy’s two- year limitations provision. Palmer filed its action for penalty interest over four years after the loss in question. Whether this filing was timely is an issue of fi rst impression. We must thus predict how the Michigan Supreme Court would decide the issue. See Berrington v. Wal-Mart Stores, Inc. , 696 F.3d 604, 608 (6th Cir. 2012).
Scottsdale argues—and the district court ag reed—that Palmer’s claim is one arising “under the Policy,” and thus the Po licy’s two-year-limitations prov ision applies. Palmer, on the other hand, contends that becaus e the claim is based on a Michig an statute, it does not arise under the Policy, meaning that the Policy’s contractual limitations provision does not apply. The first question that we must consider, then, is whether the penalty-interest claim is one arising “under” the Policy. (We note that the Policy actually restricts application of its limitations provision to actions arising under the “Covera ge Part” of the Policy, an even narrower
delineation. But because Scottsdale and the dist rict court focused on whether the action arose “under the Policy,” and because we do not find the distinction material in this case, we will similarly refer to whether the cl aim arises “under the Policy.”)

1. Applicable Michigan caselaw
The Policy does not contain any requirement that a covered loss be paid within a certain timeframe. Nor does it contain any provision addressing “untimely” loss payments. These provisions are found only in the relevant Michiganstatutes. Scottsdale argues, however, that Palmer’s penalty-interest claim is not “indepe ndent” from the underlying contract claim for payment of the insured loss a nd thus derivatively arises under the Policy. To support its argument, Scottsdale relies on isolated statements found in Hearn v. Rickenbacker , 400 N.W.2d 90 (Mich. 1987).

But Hearn does not support Scotts dale’s position. Hearn addressed the question of whether the plaintiff’s claims fo r fraud and negligence relating to a fire insurance policy were governed by that policy’s one -year-limitations provision. Id. at 92. The limitations provision explicitly applied to any “suit or action on this policy .” Id. (emphasis in original). This causedNo. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 5

the Michigan Supreme Court to focus on whethe r the fraud and negligence claims amounted to actions “on this policy.” Id. It held that they did not. Id. at 94.
The Michigan Supreme Court started its analysis by noting that the policy’s limitations provision should apply “where a plaintiff’s claim is truly contractual in nature.” Id. at 92. When determining if a claim is truly contractual in nature, a court should focus on the “nature of the right sued upon” rather than “the form of [the] action or the relief demanded.” Id . (internal quotations marks omitted) (quoting Richardson v. Allstate Inc. Co. , 172 Cal. Rptr. 423, 426 (Cal. Ct. App. 1981)). And “[i]t is important to disti nguish an action ‘arising out of the contractual relationship’ and one ‘on the policy.’” Id. at 93 (quoting Murphy v. Allstate Ins. Co. , 147 Cal. Rptr. 565, 574 (Cal. Ct. App. 1978)). Where the grav amen of the claim is a “continuing refusal” to honor a claim of loss or otherwise fulfill obliga tions under the contract, the claim is generally one “on the policy.” Id. (internal quotation marks omitted) (quoting McCarty v. First of Georgia Ins. Co. , 713 F.2d 609, 612 (10th Cir. 1983)). But where “the liability arises from the breach of [a] positive legal duty imposed by law due to the relationships of the parties,” the claim is independent of the contract. Id. at 92 (internal quotations marks omitted) (quoting Hoskins v. Aetna Life Ins . Co., 452 N.E.2d 1315, 1320 (Ohio 1983)).
As the district court noted, Hearn distinguished between allegations of “negligence associated with nonpayment of [a] claim” and allegations of neglig ence related to “the handling of [] premiums and policy purchase genera lly, at a time prior to the . . . loss.” Id. at 93. Although the former would be an acti on under the policy, th e latter was not. Id. But by using this distinction, Hearn simply makes clear that allegations that a defendant negligently failed to pay a claim and thus fulfill its contractual obligati ons is really a claim for breach of contract— unequivocally a claim “on the policy.”
Palmer, however, is not asserting a claim associated with nonpayment of a loss under the terms of the policy. It is instead as serting a claim associated with the payment of the claim. Palmer, in other words, does not contend that Scottsdale failed to pay the loss or otherwise breached Scottsdale’s obligations under the Po licy. To the contrary, Palmer argues that Scottsdale breached a separate statutory ob ligation to pay losses owed under the Policy in aNo. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 6

timely manner

. Hearn was concerned with contract claims that were simply rebranded as tort
claims to avoid the contractual limitations period. No such concern is implicated in this case.
Scottsdale also emphasizes that the holding in Hearn was based in part on a finding that the “negligence and fraud claims were not associat ed with payment of the [loss] claim but with breach of duties existing with respect to issues relating to policy procurement prior to the loss.”
Hearn did in fact note that the actions underlying the fraud and negligence claims occurred prior
to the fire loss. Hearn , 400 N.W.2d at 93. But that does not mean that a claim arising simultaneously with a breach-of-contract claim ca nnot be independent from the contract claim.
Scottsdale nevertheless contends that, according to the language from Hearn discussed above, the test for determining whether Palmer’s claim is one under the Policy is “whether [the] penalty interest is associat ed with the payment of the underlying loss.” But, again, Hearn makes clear that the key consideration is not one of “association,” but is instead the nature of the wrong
to be redressed. See Hearn , 400 N.W.2d at 94 (explaining that although “mere allegations of failure to discharge obligations under the insurance contract” would not constitute a claim independent from the policy, a claim for “the br each of separate and independent duties” does,
even if the claim evolved from the contractual relationship). In fact, Hearn forecloses the test proposed by Scottsdale, noting that“a lawsuit seek[ing] to recove r a loss that was covered by an insurance policy” could still be considered an i ndependent claim not on th e policy as long as it was based on the breach of a legal duty se parate from any purely contractual duty. Id.
Applying the principles from Hearn to the facts of this case, we conclude that Palmer’s penalty-interest claim does not arise from any lega l duty created by the Polic y. Rather, it arises from an obligation created by § 500.2006(4). Sco ttsdale disagrees with this conclusion, emphasizing that this statutory duty to pay pena lty interest does not arise unless there is a contractual obligation to pay a loss covered by the Policy. Bu t “[t]o conclude . . . that because the dispute . . . would not have arisen in the absence of the policy, the action must be ‘on the policy’ . . . , would render the phrase . . . meaningless.” Id. (internal quotation marks omitted) (quoting Picus v. Copus , 379 N.W.2d 341, 344 (Wis. Ct. App. 1985)). In other words, “[i]f the limitations provision in question we re intended to cover all suits ‘f or the recovery of any claim,’ then the preceding words, ‘on this po licy,’ would have been superfluous.” Id.No. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 7

Hearn further explains:
A mere contract obligation may establish no relation ou t of which a separate and specific legal duty arises, and yet extran eous circumstances and conditions in connection with it may establish such a rela tion as to make its performance a legal duty, and its omission a wrong to be redresse d. The duty and the tort grow out of the entire range of facts of which th e breach of the contract was but one.

Id. (internal quotation marks omitted) (quoting Oliver v. Perkins , 52 N.W. 609, 612 (Mich. 1892)). So the fact that Scottsdale’s obligation to timely pay the insured loss would not have arisen but for the obligation to pay the loss in the first place does not mean that the claim for a violation of § 500.2006(4) is a claim under the Policy.
Scottsdale’s obligation to pay the burglary and vandalism loss is simply a precondition necessary for Palmer’s penalty-interest claim. And although Hearn specifically addressed obligations arising under tort law, we do not fi nd any reason why its analysis would not apply equally to duties arising under a statute. Whether arising under tort law or statute, the obligation here does not arise under the terms of the Policy.
In sum, Palmer does not allege that Scottsdale has breached the Policy agreement, nor has Palmer brought a breach-of-contract claim. Scottsda le has in fact paid the insured loss up to the limit of its liability under the Policy and has thus fulfilled its contractua l obligations. Because the Policy contains no time limit for paying a lo ss, Palmer has no unvindicated rights under the Policy and therefore no claim “ under the policy” to assert.

2. The language of § 500.2006(4) of the Michigan Compiled Laws
Scottsdale next argues that the language of § 500.2006(4) unequivocally links the penalty-interest claim to the Policy. Again, the section provides as follows:
If benefits are not paid on a timely basis, the benefits paid bear simple interest from a date 60 days after satisfactory proof of loss was received by the insurer at the rate of 12% per annum, if the claima nt is the insured or a person directly entitled to benefits under the insured’s insurance contract. Scottsdale emphasizes the statute’s reference to an insured entitled to benefits “under” the contract. But this language simply identifies who may recover penalty- interest; it does not identify the penalty-interest clai m as one arising under the Policy.No. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 8

Scottsdale also argues that § 500.2006’s language establishes that an insurer’s obligation to timely pay a loss arises only if it has an obligation to pay a lo ss under the Policy ’s contractual terms. We agree, but this does not mean that the penalty-interest claim is a claim under the Policy

. See Hearn , 400 N.W.2d at 92 (“ Where a contractual limitation refers only to actions upon a policy, it does not necessarily refer to different or collate ral actions involving, in some measure, the policy proceeds.”) (citation omitted).
Scottsdale cites several cases holding that an insured may not assert a claim for punitive damages, penalty interest, or statutory apprai sal related to the payment of a loss under an insurance policy when a limitations provision bars a breach-of-contract cl aim under that policy.
See Musleh v. State Farm Fire & Cas. Co. , No. 12-13843, 2012 WL 5493588, at *5 (E.D. Mich. Nov. 13, 2012) (holding that where the insurer di d not owe the plaintiffs any coverage under the policy because any breach-of-cont ract claim to obtain payment wa s time-barred, the plaintiffs could not bring a claim for statutory appraisal of their loss); Livonia Volkswagen, Inc. v. Universal Underwriters Grp. , No. 06-13619, 2008 WL 880189, at *7, 9 (E.D. Mich. Mar. 31, 2008) (dismissing claims for breach of contract and penalty interestwhere the breach-of-contract claim was brought outside the contractual lim itations period contained in the policy); Doeren Mayhew & Co., P.C. v. CPA Mut. In s. Co. of Am. Risk Retention Grp. , No. 05-71782, 2007 WL 118939, at *8 (E.D. Mich. Jan. 10, 2007) (holding that a plaintiff’s claim fo r penalty interest failed because the plaintiff was not entitle d to payment for its loss under the policy); Florsheim v. Travelers Indem. Co. of Illinois , 393 N.E.2d 1223, 1233 (Ill. App. Ct. 1979) (holding that a plaintiff could not bring a claim for punitive damages for an insurer’s allegedly wrongful denial of liability where the contractual limitations pe riod prevented that plai ntiff from recovering actual damages on the policy).
But these cases simply mirror the language of § 500.2006 itself in establishing that an insured may obtain penalty interest only when it is entitled to a recovery under the policy for an insured loss. So if the insured has not shown and cannot show that it was entitled to payment for an insured loss because the claim under the polic y is time-barred, then the insured is unable to establish that it is owed penalty interest.No. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 9

As Florsheim explains:
Finally, the plaintiff contends that the tr ial court erred in dismissing the claim for punitive damages. It is true that the contractual limitation period generally does not apply to different or collateral actions involving, in some measure, the policy proceeds or growing out of the insure r’s duties to the insured. However, Illinois[,] like most states, does not recognize a cause of action for punitive damages alone; the plaintiff can only be awarded punitive damages where actual damage is shown. The plaintiff here cannot recover actual damages since she cannot now recover on the policy and she ha s not claimed any other injury which might give rise to a claim for compensato ry damages. Absent such a claim, the claim for punitive damages had to fall when the claim for actual damages (the amount of the loss) fell.

Florsheim , 393 N.E.2d at 1233 (internal citations omitte d). The claim for punitive damages in
Florsheim thus failed not because it was brought outside of the contractual limitations period, but because no breach-of-contract claim was brought within the limitations period. Without being entitled to payment under the policy, the plaintiff in Florsheim had no claim for punitive damages.
In contrast, the parties here do not dispute that Palmer was entitled to payment of its loss under the Policy, and Scottsdale has paid that loss. This leaves no dou bt that Scottsdale had an obligation to timely make that payment unde r § 500.2006(4). Scottsda le failed to do so.

3. Pleading requirements for § 500.2006(4) of the Michigan Compiled Laws

Scottsdale next contends that claims fo r penalty interest under § 500.2006(4) do not need to be pleaded in order for penalty interest to be recovered. As a result, Sc ottsdale argues, such a claim cannot be an independent cau se of action and must be consid ered a claim unde r the Policy. To support the proposition that pena lty-interest claims need not be pleaded, Scottsdale cites two

cases.
The first case, Hastings Mutual Insurance Co. v. Mosher Dolan Cataldo & Kelly, Inc. , No. 296791, 2013 WL 1149790 (Mich. Ct. App. Feb. 14, 2013) , is an unpublished opinion that is not “precedentially binding” pursuant to the Michigan Court Rules. Mich. Court. R. 7.215(C)(1). Hastings held that a claimant need not plead a claim for penalty interest in order to recover it, stating that “[t] he omission of a requirement for the claimant to specially pleadNo. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 10

entitlement to the penalty is consistent with the ge neral principles that ther e is no private cause of action under [§ 500.2006(4)], and the purpose of the stat ute is to penalize dilatory insurers rather than to compensate claimants.” Id. at *19. But Hastings ’s conclusion that th ere is no cause of action for penalty interest is flawed.

Hastings notes that Michigan courts “ha[ve] held several times that there is no private cause of action for damages under [§] 500.2006,” id. at *18, but neither of the cases cited supports that overbroad assertion. See Isagholian v. Trans america Ins. Corp. , 527 N.W.2d 13, 17 (Mich. Ct. App. 1994) (“We note that, in general , a violation of the Un iform Trade Practices Act, M.C.L. § 500.2001 et seq.; M.S.A. § 24.12001 et seq., does not give rise to a private cause of action.” (emphasis added)); Young v. Michigan Mut. Ins. Co. , 362 N.W.2d 844, 847 (Mich. Ct. App. 1984) (“There is no implied private cause of action in tort for violation of M.C.L. § 500.2006.” (emphasis added)).
And in reaching its holding, Hastings acknowledged the Michigan Supreme Court’s discussion of § 500.2006(4) in Yaldo v. North Pointe Insurance Co. , 578 N.W.2d 274, 277 (Mich. 1998), but dismissed th at discussion as dicta. Hastings , 2013 WL 1149790, at *19.
Yaldo considered whether a plaintiff was entitled to prejudgment interest for a claim under an insurance policy pursuant to § 600.6013(6). This sect ion provides that “if a judgment is rendered on a written instrument, interest is calculated from the date of filing the complaint to the date of satisfaction of the judgment at the rate of 12% per year compounded annually.” Mich. Comp.
Laws § 600.6013(5). After concluding that the pl aintiff was entitled to interest under this provision, the Court identif ied § 500.2006(4) as an alternative source through which the plaintiff
could have obtaine d 12% interest. Yaldo , 578 N.W.2d at 277. The Court particularly noted that the “plaintiff could have filed a claim under M.C.L. § 500.2006(4).” Id. (emphasis added). This
statement contradicts Hastings ’s conclusion that § 500.2006(4) does not create a pr ivate cause of
action.

Yaldo also noted that there might be an overlap between the two interest provisions in certain cases, but that § 500.2006(4) is distinct b ecause it “allows an insured to recover twelve percent interest from its insurer where no complaint has been filed to force payment. It applies when the insurance company is dilatory in making timely payments to the insured.” Id. ThisNo. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 11

gives further support to the c onclusion that § 500.2006(4) addre sses a wrong independent from the insurance polic y—dilatory conduct—that is beyond a fa ilure to comply with contractual obligations.
The second case cited by Scottsdale, Federal-Mogul Corp. v. Insurance Co. of State of Pennsylvania , No. 12-12005, 2017 WL 2274489, at *5 (E.D . Mich. May 25, 2017), relies on Hastings and thus errs for the same reasons. Moreover, Federal Mogul noted that Rule 54 of the
Federal Rules of Civil Proced ure allows a plain tiff to recover penalty interest under § 500.2006(4) without explicitly pleadi ng a claim for that relief. Id. at *6; Fed. R. Civ. P. 54(c) (providing that a “final judgment should grant the relief to which each part y is entitled, even if the party has not demanded that relief in its pleadings”). Federal Mogul thus had multiple
distinct bases for its conclusion that a cla im for penalty interest need not be pleaded, undermining Scottsdale’s argument that there is no independent cause of action for penalty interest under § 500.2006(4).
In fact, the clear weight of Michigan aut hority allows an insured to collect penalty interest under § 500.2006(4), contrary to the holding in Hastings. See Young , 362 N.W.2d at 846–47 (“This Court has held that a private party ma y directly recover the in terest penalty in an action against the insurer.”); 1981-1982 Mic h. Op. Att’y Gen. 326 (1981) (opining that violations of § 500.2006 “are defined to be unfair trade practices and give the insured a right apart from the provisions of the insurance contract”); Barker v. Underwriters at Lloyd’s, London , 564 F. Supp. 352, 355 (E.D. Mich. 1983) (“The Court fi nds that plaintiffs may assert a private cause of action to recover the interest penalty in section 2006 of the UTPA since that section provides that the insurer pay the interest penalty to the insured on claims not paid on a timely basis.”). Scottsdale’s contenti on that there is no independent cause of action under § 500.2006 is
thus without merit.
C. The district court erred in concluding th at Michigan’s general six-year statute of limitations does not govern Palmer’s penalty-interest claim. We now turn to the applicable limitations period. The part ies agree that there is no statutory provision that specifically provides a limitations pe riod for bringing a claim for penalty interest under § 500.2006(4). Palmer therefore argues that Michigan ’s catch-all, six-year periodNo. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 12

of limitations set forth in § 600.5813 of the Michigan Compiled Laws should apply. This section
states: “ All other personal actions shall be commen ced within the period of 6 years after the
claims accrue and not afterwards unless a different period is stated in the statutes.” Scottsdale, on the other hand, argues that the di strict court properly concluded that this catch-all provision cannot apply because a claim for penalty interest under § 500.2006(4) is not a “personal action.” Much of Scottsdale’s reasoning on this issue overlaps with its argum ent for why a penaltyinterest claim arises under the Policy. We ha ve no need to readdress those arguments here.
The district court did not provide a definition for the term “personal action.” It simply reasoned that because “[t]here is no implied private cause of action in tort for violation of M.C.L. § 500.2006,” no “personal acti on” exists under that section. See Young , 362 N.W.2d at 847 (emphasis added). The court then note d, without further explanation, that “penalty interest does not satisfy the ‘perso nal action’ requirement under § 600.5813.”
But “the limitations period for an action does not hinge on the type of relief sought.” Dep’t of Envtl. Quality v. Gomez , 896 N.W.2d 39, 50 (Mich. Ct. App. 2016); accord Mich. Comp. Laws § 600.5815 (“The prescribed period of limitati ons shall apply equally to all actions whether equitable or legal relief is sought.”). Accordingly, Gomez applied § 600.5813’s catchall, six-year limitations period to an action for ci vil fines and the restoration of wetland areas. Gomez , 896 N.W.2d at 50–51. And in DiPonio Construction Co. v. Rosati Masonry Co. , 631 N.W.2d 59, 65–66 (Mich. Ct. App. 2001), the Michigan C ourt of Appeals similarly held that the residual six-year statute of limitations in § 600.5813 applies to statutory causes of action, including those for civil fines. In reaching that conclusion, DiPonio contrasted actions for statutory violations with actions to redress injuri es resulting from traditiona l torts, noting that the limitations periods set out in § 600.5805 apply to the latter. Id.

Scottsdale defends the district court’s conclusion by citing a nonmajority opinion in Borden, Inc. v. State Department of Treasury, Corp. Franchise Fee Division , 218 N.W.2d 667 (Mich. 1974). Borden , it argues, shows that a “personal action” is limited to an action to recover “damages for the commission of an injury to [a] person or property.” We find this argument unavailing because the Michigan Supreme Court in Borden split three–three so the opinion is not binding precedent. See Dean v. Chrysler Corp. , 455 N.W.2d 699, 701 n.7 (Mich. 1990)No. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 13

(“A ‘majority of the Court must agree on a gro und for decision in order to make that binding precedent for future decisions.’” (quoting People v. Anderson , 205 N.W.2d 461, 467 (Mich. 1973))).
Moreover, Scottsdale’s argument is w eakened by reference to § 600.5805 of the Michigan Compiled Laws, which provides specifi c limitations periods for actions redressing injuries to persons or property, including a catch-all provision in subsection 10. See Mich. Comp. Laws § 600.5805(10) (“Except as otherwise provid ed in this secti on, the period of limitations is 3 years after the time of the death or injury for all actions to recover damages for the death of a person, or for injury to a person or property.”); DiPonio , 631 N.W.2d at 66 (“[I]f plaintiff pled malpractice or some other trad itional, common-law tort , then we must apply § 5805. Otherwise, § 5813 would be appropriate.” (quotation marks omitted)). If a “personal action” in § 600.5813 were limited only to actions to recover damages rela ted to injuries to persons or property, these two provisions would be redundant.
Scottsdale’s ultimate argument on this issue is that Palmer has failed to show that Mich. Comp. Laws § 600.5813 applies to actions for penalty interest. But Scottsdale has provided no reason for why the statute should not so apply. The language of the section is broad, covering “[a]ll other personal actions.” A nd the Michigan legislature meant it to be a catch-all provision that applies regardless of the type of relief sought. See Mich. Comp. Laws § 600.5815 (“The prescribed period of limitations shall apply equally to all actions whether equitable or legal relief is sought.”).
The parties also dispute the date that a claim for penalty intere st accrues. Palmer argues that, pursuant to the language of § 500.2006(4), a penalty-interest claim accrues “at the time of payment of the loss.” Because Scottsdale believes that the penalty-interest claim is inextricably connected with the Policy, it contends that any claim for penalty intere st would accrue on the
actual date of loss. But we n eed not decide this question becau se, even if the penalty-interest claim accrued at the time of the actual loss, the cl aim would still have been filed well within the six-year limitations pe riod set out in § 600.5813.No. 17-1158 Palmer Park Square v. Scottsdale Ins. Co. Page 14

D. Additional arguments
Palmer argues in the alternative that, even if the two-year contractual limitations period applies to its claim for penalty interest, its cl aim is timely because the period was tolled under § 500.2833(1)(q) of the Michigan Compiled Laws. Th e district court disagreed, concluding that surplus-lines insurers like Scottsdale are “not su bject to the general prov isions of Michigan’s Insurance Code,” including § 500. 2833(1)(q). (In contra st to the district court, Scottsdale contends more narrowly that surplus-lines in surers are exempted from only the substantive requirements of § 500.2833(1)). We need not re ach this alternative argument because our conclusion that Palmer’s claim is a personal ac tion governed by the six-year limitations period found in § 600.5813 is dispositive of the appeal. For the same reasons, we have no need to resolve Palmer’s argument that Scottsdale waived any limitations defense.

III. CONCLUSION
For all of the reasons set forth above, we REVERSE the judgment of the district court
and REMAND the case for further proceedings consistent with this opinion.