-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

ST. JOHN MACOMB OAKLAND HOSPITAL,

Plaintiff-Appellant, FOR PUBLICATION December 8, 2016 9:00 a.m.

v No. 329056 Macomb Circuit Court STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, LC No. 2014-002692-NF

Defendant-Appellee.

Before: J ANSEN , P.J., and C AVANAGH and B OONSTRA , JJ.

J ANSEN , P.J.

Plaintiff appeals as of right t he order granting defendant’s m otion for reconsideration and dismissing the case. We reverse and remand for further proceed ings consistent w ith this opinion.

I. FACTS AND PROCEDURAL HISTORY

This case arises from injuries sustained by the insured, Nuo D usaj, during a December 9, 2011 car accident. Dusaj maintaine d a policy of no-fault insur ance with defendant, and he had coordinated no-fault insurance and health insurance. His no-fault policy provided that the nofault benefits would be reduced by an amount “paid or payable” under Dusaj’s health insurance plan. Dusaj suffered a closed head injury during the accident, and a physician recommended that Dusaj be admitted to plaintiff’s partial day hospitalization pr ogram for closed head injuries. Dusaj was admitted to the program, and plaintiff filed a claim with Dusaj’s health insurer, Blue Cross Blue Shield of Michigan (Blue Cross), for payment of bene fits for services Dusaj received starting on May 6, 2013.

On November 14, 2013, Magellan Behavioral of Michigan, Inc. (M agellan), which was authorized to administer Blue Cross’s mental health program, se nt a letter to Dusaj, informing him that the partial hospitalization treatment was not medicall y necessary and that Magellan was unable to authorize the treatment. The letter explained that a physician advisor, who is a board certified psychiatrist, came to that determination after review ing the medical record. The letter further indicated that an internal appeal was available as the first step in the appeals process and that a patient, provider, or faci lity may request an appeal.-2- An attached document detailed t he provider appeal rights. The document explained that a provider may request an internal appeal within 180 days after r eceipt of the denial letter and that a determination would be made within 30 calendar days. The doc ument indicated that “[i]f treatment services are imminent or ongoing, or the patient’s co ndition is unstable or emergent, an expedited appeal may be request ed verbally and conducted teleph onically. . . . We reply to urgent appeals within the lesser of one business day or 72 hour s.” The document further stated that if the provider disagrees with the internal appeal determi nation, the provider may request an external review within 30 calenda r days of the appeal decision letter. An independent review organization would then review the request, and the provider wo uld be notified of the decision within 30 days of the recei pt of the request.

On January 9, 2014, a representative for plaintiff sent a lett er to Magellan, indicating that a similar denial letter was needed with regard to an October 22 , 2012 partial hospitalization admission in order for plaintiff to request that defendant pay for the partial hospitalization treatment related to th e October 22, 2012 admission.

After seeking payment from defe ndant, plaintiff filed a compla int in the trial court, contending that defendant breached the no-fault contract by ref using to pay no-fault benefits for the medical services plaintiff pr ovided to Dusaj. Defendant fi led a motion for summary disposition under MCR 2.116(C)(10), contending that plaintiff f ailed to make reasonable efforts to obtain payment from Blue Cross/Magellan. Defendant argued t hat plaintiff failed to provide any evidence regarding what plaintiff submitted to Blue Cross/M agellan or that plaintiff sought an appeal of the medical necessity determination.

Plaintiff filed a response opposing defendant’s motion for sum mary disposition, in which plaintiff contended that its J anuary 9, 2014 follow-up letter t o Magellan demonstrated that it made reasonable efforts, but that Blue Cross/Magellan refused t o pay for the services. The court issued an opinion and order denying defendant’s motion for summ ary disposition on the basis that there was a genuine issue of material fact on the issue of reasonable efforts. The court reasoned as follows:

Defendant, in effect, argues that plaintiff has just not tried hard enough to convince [Blue Cross] to pay for the medical treatments, and in this regard is therefore not entitled to benefits from Stat e Farm. It appears that plaintiff hospital was not convinced that [Blue Cross]/Magellan’s multi-tiered app eal process was going to net them any beneficial results. Plaintiff was not se eking duplicative coverage, and it made reasonable efforts to obtain payments fro m [Blue Cross]/Magellan to no avail. The Court finds a question of fac t as to whether plaintiff hospital made reasonable efforts to obtain payments, and whether the multi-tiered review and appeal pro cess could be considered beyo nd reasonable.

Defendant subsequently filed a motion for reconsideration, arg uing that plaintiff failed to submit evidence showing that it made reasonable efforts to obta in payment from Blue Cross/Magellan and contending th at the court’s prior opinion im properly shifted the burden of proof onto defendant to demonstr ate that Blue Cross/Magellan ma de an incorrect determination and that Blue Cross’s policy s hould cover plaintiff’s claim. T he court agreed, and in a two-page opinion and order, the court determined that it had improperly shifted the burden of proof onto-3- defendant and that plaintiff failed to present any evidence dem onstrating that it made reasonable efforts to obtain payment from B lue Cross/Magellan. Therefore, the court grante d the motion for reconsideration and dismissed the case.

II. STANDARD OF REVIEW

We review for an abuse of discretion a trial court’s decision on a motion for reconsideration. Frankenmuth Ins Co v Poll , 311 Mich App 442, 445; 875 NW2d 250 (2015). “ ‘An abuse of discretion occurs w hen the trial court’s decision falls outside the range of reasonable and principled outcomes.’ ” Id . (citation omitted). We re view de novo the trial court’s ruling on a motion for summary disposition. Id . “The trial court properly grants a motion for summary disposition under MCR 2.116(C)(10) when ther e is no genuine issue of material fact and the moving part y is entitled to judgment as amatter of law.” Id

. When a motion under subrule (C)(10) is made and supported as pr ovided in this rule, an adverse party may not r est upon the mere allegations o r denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if appropriate, shall be entered against him or her. [MCR 2.116(G)(4).]

III. REASONABLE EFFORTS STANDARD

The issue presented in this case is whether plaintiff supplied evidence that it made reasonable efforts to obtain payments that were available from Blue Cross/Magellan before seeking benefits from defendant. Specifically, the parties dis pute whether plaintiff was required to appeal Blue Cross/Magellan’s medical necessity determination before seeking payment from defendant. Plaintiff argues that the trial court abused its di scretion when it granted defendant’s motion for reconsideration and dismissed the case, and that pla intiff was not required to appeal the denial of its claim for hea lth insurance benefits. We agre e.
The trial court dismissed the case following reconsideration o f its opinion and order denying defendant’s motion for summary disposition. MCR 2.119( F), the court rule governing motions for reconsideration, provides:

(1) Unless another rule provides a different procedure for rec onsideration of a decision . . . a motion for rehearing or reconsideration o f the decision on a motion must be served and filed not later than 21 days after en try of an order deciding the motion.

(2) No response to the motion may be filed, and there is no or al argument, unless the court otherwise directs.

(3) Generally, and without rest ricting the discretion of the c ourt, a motion for rehearing or reconsideration which merely presents the same issues ruled on by the court, either expressly or by reasonable implication, wi ll not be granted. The moving party must demonstrate a palpable error by which the court and the-4- parties have been misled and show that a different disposition of the motion must result from correction of the error.

The issue in this case is govern ed by the no-fault act, MCL 50 0.3101 et seq . MCL 500.3105(1) provides, “Under person al protection insurance an i nsurer is liable to pay benefits for accidental bodily injury arising out of the ownership, oper ation, maintenance or use of a motor vehicle as a motor vehic le, subject to th e provisions of this chapter.” MCL 500.3107(1)(a) adds, in part, that personal prot ection insurance (PIP) benefit s are payable for “[a]llowable expenses consisting of all reasonable charges incurred for reas onably necessary products, services and accommodations for an injured person’s care, recov ery, or rehabilitation.”

MCL 500.3109a provides that an in dividual may coordinate his n o-fault insurance policy and health insurance policy at a reduced premium rate. MCL 500 .3109a; Farm Bureau Gen Ins Co v Blue Cross Bl ue Shield of Mich , 314 Mich App 12, 21; 884 NW2d 853 (2015). “The intent of [MCL 500.3109a] is to eliminat e duplicative recovery for ser vices and to contain insurance and healthcare costs.” Farm Bureau , 314 Mich App at 21. When an individual chooses to coordinate his no-fault coverage and health insurance coverage, the health insurer becomes primarily liable for medical expenses. Id . In that circumstance, the no-fault insurer is not liable for the medical expenses that the health insurer is required to pay for or provide. Tousignant v Allstate Ins Co , 444 Mich 301, 303; 506 NW2d 844 (1993). Thus, the individual is required to obtain payment from the health ins urer “to the extent of the he alth coverage available from the health insurer.” Id . at 307 (emphasis added). Our Supreme Court has stated that the term “payable,” which appears in the no-fault contract at issue in t his case, is the func tional equivalent of the phrase “required to be provided.” Id . at 312. In Tousignant , our Supreme Court cited its previous decision in Perez v State Farm Mut Auto Ins Co , 418 Mich 634, 645; 344 NW2d 773 (1984), for the proposition that the phrase “required to be pro vided” “means that the injured person is obliged to use reasonable efforts to obtain payments that are available .” Id . (quotation marks omitted). Thus, a plaintiff must make reasonable efforts to obtain payments that are available from the health insurer in order for the plaintiff to establish that the benefits are not payable by the health insurer. See id

. The parties dispute what actions plaintiff was required to tak e in order to establish that it made reasonable efforts to obtain payment from Blue Cross. In Tousignant , the plaintiff coordinated her no-fault insur ance with her health insurance, w hich was provided through a health maintenance organization (HMO). Tousignant , 444 Mich at 303-304. The plaintiff sought treatment outside of her HMO plan. Id . at 305. The no-fault insurer informed the plaintiff that it would only cover medical care by a physician outside of the HMO if a physician within the HMO referred her to the out-of-network physician. Id . The plaintiff did not contend that necessary care was unavailable. Id . The no-fault insurer refused to pay for the services, contending that the services were required to be provided by th e HMO. Id . Our Supreme Court concluded that because the plaintiff did not claim that the HMO would not or could not provide the medical care she needed, there was no basis for concluding that the benefits were not required to be provided b y the health insurer. Id . at 312-313.

The Court’s decision in Tousignant suggests that a plaintiff must take some action toward receiving payment from the healthinsurer before seeking paymen t from the no-fault insurer. However, the Court did not specify the exact actions that a pla intiff must take in order to-5- establish that the plaintiff ma de reasonable efforts to obtain payment from the health insurer. The plaintiff in Tousignant made no efforts to obtain available benefits from her HMO, thus leading our Supreme Court to hold that there was no basis to co nclude that the benefits were not available. See Tousignant , 444 Mich at 312-313. In contrast, in this case, plaintiff did attempt to obtain payment of medical expenses when it filed a claim with B lue Cross/Magellan. The denial letter indicates that plaintiff s ubmitted medical records to Bl ue Cross/Magellan, which a physician reviewed in determining that the treatment was not me dically necessary. There is no indication that plaintiff failed to follow the proper procedure for filing the claim. Following the denial of the claim, plaintiff c ontended that the partial day h ospitalization treatment was unavailable because Blue Cross/Magellan denied its claim under a medical necessity standard. Plaintiff did not seek duplicativ e recovery from Blue Cross and defendant, but instead, sought to obtain payment from the insured’s no-fault insurer after the in sured’s health insurer denied payment. Accordingly, we conclude that plaintiff made reasonab le efforts to obtain payment from Blue Cross/Magellan and th at plaintiff was not required to appeal the medical necessity determination in order to establish that it made reasonable eff orts to obtain payments that were available from the health insurer.

We find that the reasoning in this Court’s recent opinion in Adanalic v Harco Nat’l Ins Co , 309 Mich App 173, 176-178; 870 NW2d 731 (2015), applies in th is context. In Adanalic
, this Court decided the issue wheth er a no-fault insurer was exc used from paying benefits because the plaintiff had a workers’ com pensation claim that he could p ursue even after an initial denial of workers’ compensation benefits. Id . at 184-185. Both the no-faul t insurer and the workers’ compensation insurer denied the plaintiff benefits for his injuries. Id . at 178. The relevant statute at issue in the case pr ovided that when workers’ compen sation benefits are available to an employee sustaining an injury in the course of employment, thenno-fault benefits are not available. Id . at 186.

Although the issue in Adanalic did not involve the reasonable efforts standard, this Court briefly discussed the reasonable efforts requirement, stating t hat the standard “ ‘does not, in light of the underlying purpose of the no-fault act, call for a poten tially lengthy and costly effort . . . .’ ” Adanalic , 309 Mich App at 186 n 8, quoting Perez , 418 Mich at 650. 1 This statement leads us to conclude that a plaintiff does not need to engage in the pot entially lengthy and costly effort of challenging a medical necessity determination in order to obtai n health insurance benefits before proceeding to obtain payment from the no-fault insurer.

Further, in determining whether the no-fault insurer was respo nsible for payment of the plaintiff’s expenses, this Court reasoned as follows:

1 Although Adanalic involved workers’ compensation benefits, our Supreme Court in Tousignant cited its earlier decision in Perez in articulating the reasonable efforts standard, suggesting th at the standard is the same in both contexts. See Tousignant , 444 Mich at 312; Perez , 418 Mich at 645-646 (opinion by L EVIN , J.).-6- Both the workers’ compensation system and the no-fault system are intended to provide limited, but prompt payment of benefits to injured persons in order to assure medical care, r ehabilitation, and income replac ement. It is [the nofault insurer’s] position that w hen the employer and the no-fau lt insurer disagree on which of these two systems is primarily applicable, the inju red person is to receive no benefits at all until each of the two insurers is sa tisfied that its assertion of denial has been fully adjudi cated. We reject the notion tha t because an individual may be covered by two broad systems of insurance, he is not entitled to any benefits whatsoever for however long it takes to adjudicate a dispute about which system is obligated to prov ide benefits. Indeed, requiri ng an employee to engage in lengthy workers’ compe nsation litigation before being paid PIP benefits “is wholly inadequate to accomplish the no-fault act’s purpose of providing assured, adequate, and prompt recovery for economic loss arisin g from motor vehicle accidents.” [ Adanalic , 309 Mich App at 187 (citation omitted; emphasis added).]

This Court went on to explain that the term “available” was use d in order to prevent duplicative recovery under both workers’ com pensation and no-fault insuranc e, and that there was no duplicative recovery because the plaintiff was denied workers’ compensation benefits. Id . at 188. Accordingly, this Court concluded that workers’ compensat ion benefits were not available and that the plaintiff’s no-fault insurer was not entitled to w ithhold payment of PIP benefits. Id

. at 189.

Although this Court’s decision in Adanalic involved workers’ comp ensation benefits, its reasoning applies equally in this case. As in Adanalic , plaintiff did not receive payment because neither insurer took responsibility for payment of the insured’ s medical expenses. The purpose of the no-fault act cannot be met by requiring an injured perso n to engage in a potentially lengthy appeals process with the health insurance company. Defendant’s position would prevent an injured person from receiving benefits from the no-fault insure r until the insured adjudicated the health insurer’s denial. This is entirely at odds with the pol icy underlying the no-fault act to ensure prompt payment for economic losses. Further, the purpos e of the coordinated benefits statute is to prevent duplicative recovery, and plaintiff would not receive benefits from two sources in this case because Blue Cross/Magellan denied plainti ff’s claim. Therefore, we conclude that a plaintiff is not required to appeal a health in surer’s medical necessity determination in order to establish that reasonable efforts wer e made to obtain payment from the health insurer.

Defendant relies, in large part , on this Court’s recent decisi on in Farm Bureau for the proposition that plaintiff was required to appeal the denial. In Farm Bureau , the insured, Judy Klein, received skilled-nursing services from Spectrum Health R ehab and Nursing Center (Spectrum). Farm Bureau , 314 Mich App at 14. Klein’s health insurer was Blue Cross, a nd Blue Cross had a participation agreement with Spectrum under wh ich Spectrum assumed financial responsibility for th e services that it provided to the insured. Id . The agreement required Spectrum to follow Blue Cross’s preauthorization requi rements and detailed the appeals process for an initial denial o f a preauthorization request. Id . at 16. Blue Cross approved and paid for 14 days of skilled-nursing treatment, but denied Spect rum’s request for additional time.-7- Id . at 14-15. Instead of appealing that decision, Spectrum submi tted the claim to Farm Bureau, which was Klein’s no-fault insurer. Id . at 15. Farm Bureau paid under protest. Id

.
This Court concluded that under the “unique circumstances” in the case involving Spectrum’s assumption of liability for the medical expenses, ne ither the no-fault insurer nor the health insurer was responsible for payment of the medical expen ses. Farm Bureau , 314 Mich App at 20-21. This Court explaine d that the provisions in the agreement between Blue Cross and Spectrum were dispositive because Spectrum had agreed to assume full financial responsibility for claims that were denied as medically unnecessary, unless th e insured accepted financial responsibility in writing. Id . at 23. This Court explained that “with respect to Farm Burea u, the effect of Spectrum’s participati ng provider agreement is to rel ieve Klein from responsibility for paying for Spectrum’s services, and, because Klein has no legal responsibility for the medical costs, Farm Bureau has no obliga tion to pay for these expenses under MCL 500.3107(1)(a).” Id

. This Court noted, during its dis cussion of the issue, that al though there were mechanisms permitting Klein or Spectrum to contest the denial of the preau thorization request, neither Klein nor Spectrum challe nged the denial. Farm Bureau , 314 Mich App at 24. Ind eed, the evidence in the record suggested that Spectrum did not seek an appeal of th e denial because there was a secondary insurer. Id . at 24 n 3. This Court explained, “Spectrum’s decision not to contest Blue Cross’s medical necessity denial and its decision not to seek p reapproval at a later time does not, without the assumption of liability by Klein, render Farm Burea u liable as a secondary payer.” Id . at 24-25. Instead, since Klei n did not have any legal respon sibility for the payment, the payment was not “incurred” by her, and Farm Bureau was not liab le as Klein’s no-fault insurer. Id . at 25.

Farm Bureau does not control the outcome in this circumstance because the d ispositive fact in Farm Bureau was Spectrum’s contract with Blue Cross. This Court concluded that because Spectrum contracted with Blue Cross to assume financial liability for the claim, the insured party did not “incur” the expense, and, therefore, Farm Bureau was not liable for the expense under MCL 500.3107(1)(a). Farm Bureau , 314 Mich App at 23. In contrast, there is no indication that plaintiff had a similar participation agreement with Blue Cross or Magellan indicating that plaintiff would a ssume full financial responsib ility for medical services deemed medically unnecessary. Although this Court in Farm Bureau mentioned the fact that Spectrum did not appeal the medical necessity determination, this Court’ s discussion of the issue pertained to the fact that Spectrum could have attempted to avoid liabili ty under the provider agreement by seeking an appeal of Blue Cross’s decision. Id . at 24 n 3. This Court did not suggest that an insured person or a provider must seek an appeal of a health insurer’s decision in order to pursu e payment from a no-fault insurer. Instead, the holding of Farm Bureau is limited to the “unique circumstance” of the provider agreement between Spectrum and Bl ue Cross. Accordingly, Farm Bureau does not require that an individua l or a provider appeal a medi cal necessity determination in order to establish that reasonable efforts were made to obta in payments that were available from the health insurer.

IV. MOTION FOR RECONSIDERATION

We conclude that the trial court abused its discretion by gra nting the motion for reconsideration. The court impr operly concluded that it shifte d the burden of proof onto-8- defendant in its previous opinion. Instead, in its initial opi nion and order, the court noted that plaintiff presented evidence re garding whether it made reasonab le efforts to obtai n payment from Blue Cross/Magellan. The trial court’s initial conclusions did not constitute improper burden shifting. The court also erroneously concluded, without explan ation, that plaintiff failed to present evidence establishing that it made reasonable efforts t o obtain payment from Blue Cross/Magellan. Contrary to the trial court’s determination, p laintiff presented evidence establishing that it sought paymen t from Blue Cross/Magellan an d that its claim for benefits was denied on the basis that the tre atment was not medically necess ary. We therefore conclude that plaintiff presented sufficient evidence to establish that it ma de reasonable efforts to obtain payment from Blue Cross/Magellan . We further conclude that pla intiff was not required to present evidence that it appealed the denial in order to establ ish that it made reasonable efforts to obtain payment from Blue Cross/Magellan. To conclude otherwise would be contrary to the purpose of the no-fault act to provide for assured, adequate, and prompt recovery for economic losses stemming from motor vehicle accidents.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Kathleen Jansen /s/ Mark J. Cavanagh /s/ Mark T. Boonstra