-UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

PROGRESSIVE MICHIGAN 

AUTOMOBILE INSURANCE CO., 

 

Plaintiff, Civil Case No. 14-13859 

 Honorable Linda V. Parker 

v. 

 

NATIONAL CASUALTY CO., 

Defendant. 

________________________________/ 

OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR 

SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION 

FOR SUMMARY JUDGMENT

 On September 15, 2014, Plaintiff Progressive Michigan Automobile 

Insurance Company (“Progressive”) filed this lawsuit in a Michigan state court 

against Defendant National Casualty Company (“National”), seeking 

reimbursement for personal protection insurance benefits Progressive paid to its 

insured, Mildred Davis (“Davis”). National removed Progressive’s Complaint to 

federal court on the basis of diversity jurisdiction on October 6, 2014. Presently 

before the Court are cross-motions for summary judgment filed by the parties 

pursuant to Federal Rule of Civil Procedure 56. The motions have been fully 

briefed and the Court held a hearing with respect to the motions on September 30, 

2015. Finding that Progressive’s claim for reimbursement is barred by the 

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applicable statute of limitations, the Court grants National’s motion for summary 

judgment and denies Progressive’s motion. 

I. Summary Judgment Standard

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is 

appropriate “if the movant shows that there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). The central inquiry is “whether the evidence presents a sufficient 

disagreement to require submission to a jury or whether it is so one-sided that one 

party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56 

mandates summary judgment against a party who fails to establish the existence of 

an element essential to that party’s case and on which that party bears the burden 

of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

The movant has the initial burden of showing “the absence of a genuine 

issue of material fact.” Id. at 323. Once the movant meets this burden, the 

“nonmoving party must come forward with specific facts showing that there is a 

genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To 

demonstrate a genuine issue, the nonmoving party must present sufficient evidence 

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upon which a jury could reasonably find for that party; a “scintilla of evidence” is 

insufficient. See Liberty Lobby, 477 U.S. at 252. 

Courts evaluate cross-motions for summary judgment under the same 

standard. La Quinta Corp. v. Heartland Props., LLC, 603 F.3d 327, 335 (6th Cir. 

2010) (citing Beck v. City of Cleveland, 390 F.3d 912, 917 (6th Cir. 2004)). When 

faced with cross- motions for summary judgment, each motion is examined on its 

own merits. Id. 

II. Factual and Procedural Background

 On June 2, 2008, Davis was a passenger in a vehicle insured by National 

which was involved in a motor vehicle accident. At the time of the accident, 

Progressive insured Davis. Subsequent to the accident, Davis incurred substantial 

medical bills which were paid in part by Progressive as her insurer, as required by 

Michigan’s no-fault act. National was provided notice of the claim after the 

accident. (ECF No. 29, Ex. A.) 

 On November 17, 2011, Davis sued Progressive in state court for 

reimbursement of medical bills and expenses which Progressive had refused to 

pay. (ECF No. 19, Ex. B.) The matter eventually proceeded to binding arbitration, 

which resulted in an award to Davis of $157,500.00. (Id., Ex. G.) The award 

covered “all no fault benefits incurred through July 25, 2013 of any type as well as 

future friend/family provided attendant care.” (ECF No. 27, Ex. D.) The service 

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dates identified on Davis’ “Medical Payment Details” (submitted in the state court) 

range from June 2, 2008 through July 25, 2013. (Id., Ex. F.) Progressive paid the 

arbitration award and the matter was dismissed. National claims, and Progressive 

does not dispute, that National was provided no notice of Davis’ lawsuit, the 

arbitration, or the ensuing arbitration award. (See ECF No. 27 at Pg ID 487.) 

 Progressive then initiated this lawsuit on September 15, 2014, seeking to 

recover the personal protection insurance benefits it paid Davis pursuant to the 

arbitration award. After the matter was removed to federal court, the parties 

stipulated to an order which essentially establishes National as the priority payee of 

Davis’ benefits pursuant to Michigan no-fault law. (ECF No. 19, Ex. A; ECF No. 

18.) 

III. The Parties’ Summary Judgment Arguments

 Progressive spends the majority of its ten page summary judgment brief 

quoting sections of Michigan’s no-fault statute and case law regarding the 

doctrines of collateral estoppel and res judicata. In the final page of its brief, 

however, Progressive acknowledges that neither collateral estoppel nor res judicata 

applies to its claim against National. (ECF No. 19 at Pg ID 245.) Progressive then 

sets forth what it is arguing in support of its summary judgment motion: 

Three (3) independent arbitrators came to the resolution that the 

medical expenses [sought by Davis] were reasonable and necessary 

and granted arbitration award [sic] in favor of Ms. Davis. Any and all 

arguments which could be raised by Defendant in this matter were 

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properly raised, [sic] by the Plaintiff in attempt to defend against the 

action and ultimately in the arbitration. Defendant being in the same 

position as Progressive was in the action with Ms. Davis, raising the 

same issues as to the reasonableness and necessity as to the expenses 

as incurred, making the same arguments, reduced the liability from 

Ms. Davis [sic] original requested amount in case evaluation from 

well over $600,000.00 to $157,000.00, was very successful in its 

arguments. 

(Id.) From what the Court understands, Progressive is arguing that because the 

arbitration involved identical issues as the present lawsuit and three independent 

arbitrators concluded that Davis’ medical expenses were reasonable and necessary 

and thus covered under the no-fault act, National, as priority payee, must reimburse 

Progressive for Progressive’s payment of those benefits. (Id.) What legal 

authority supports Progressive’s argument is unclear from its motion. 

 National argues in response and in its summary judgment motion that 

Progressive’s action is barred by the no-fault act’s statute of limitations, Michigan 

Compiled Laws § 500.3145(1).1

 According to National, Progressive has no greater 

rights than Davis to recover personal protection insurance benefits from National. 

Stated differently, Progressive stands in the shoes of Davis. Section 500.3145(a) 

limits recovery in an action for personal protection insurance benefits to those 

 

1 National also argues in its response to Progressive’s summary judgment motion 

that because National never received notice of Davis’ lawsuit, the arbitration, or 

arbitration award, Progressive is not entitled to summary judgment on its claim for 

reimbursement from National without showing actual liability for the amounts 

Progressive paid Davis. For the reasons discussed infra, the Court need not resolve 

this issue. 

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losses incurred within one year preceding the commencement of an action to 

recover such benefits. Devillers v. Auto Club Ins. Ass’n, 702 N.W.2d 539, 547 

(Mich. 2005). Because Progressive seeks recovery of benefits incurred by Davis 

no later than July 25, 2013, National argues that this lawsuit-- filed more than a 

year later-- is time-barred. 

 Progressive contends that its lawsuit is not barred by the no-fault act’s 

statute of limitations because this action, according to Progressive, is not a “pure 

‘subrogation’ claim.” (ECF No. 29 at Pg ID 538.) Progressive maintains that its 

lawsuit is, instead, an action for recoupment. (Id.) Even if this is a subrogation 

case to which the no-fault act’s one year statute of limitations applies, Progressive 

argues that National had notice of Progressive’s claim within one year of the 

accident and within one year of when the claims were incurred. 

IV. Applicable Law and Analysis

 Michigan case law makes clear that the current action is a subrogation 

action. See, e.g., Yerkovich v. AAA, 610 N.W.2d 542 (Mich. 2000); Titan Ins. Co. 

v. N. Pointe Ins. Co., 715 N.W.2d 324 (Mich. Ct. App. 2006); Fed. Kemper Ins. 

Co. v. W. Ins. Cos., 293 N.W.2d 765 (Mich. Ct. App. 1980); Button v. Progressive 

Mich. Ins. Co., No. 314835, 2014 Mich. App. LEXIS 1661 (Mich. Ct. App. Sept. 

4, 2014). As the Michigan Supreme Court provided in Yerkovich: 

Traditional subrogation is defined by Black’s Law Dictionary (4th 

ed.); p. 1595, as “[t]he substitution of one person in the place of 

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another with reference to a lawful claim, demand or right, ... so that he 

who is substituted succeeds to the rights of the other in relation to the 

debt or claim, and its rights, remedies, or securities.” 

610 N.W.2d at 544. Thus in Titan Insurance, an action by the insurer of a person 

injured in a motor vehicle accident against the insurer of the driver that caused the 

accident was deemed to be a subrogation action. 715 N.W.2d at 326. 

As the Michigan Supreme Court stated in Yerkovich, what rights the 

subrogee has in a subrogation action is dependent on what rights its subrogor 

would have had if the subrogor had brought the action him or herself: “As a 

subrogee, one stands in the shoes of the subrogor and acquires no greater rights 

than those possessed by the subrogor.” 610 N.W.2d at 544 (citing Shermer v. 

Merrill, 33 Mich. 284, 287 (1876)). Stated differently: “ ‘A subrogee acquires no 

greater rights than those possessed by his subrogor and the subrogated insurer is 

merely substituted for his insured.’ ” Fed. Kemper Ins. Co., 293 N.W.2d at 768 

(quoting N.W. Mut. Ins. Co. v. Jackson Vibrators, 402 F.2d 37, 40 (6th Cir. 1968)); 

see also Titan Ins., 715 N.W.2d at 326. To determine what those rights are, a court 

must identify the nature of the subrogee’s claim. “The nature of the lawsuit by a 

no-fault carrier in a subrogation action is determined by looking at the nature of the 

claim that the insured would have against the primary insure[r].” Button, 2014 

Mich. App. LEXIS 1661, at *7 (citing Auto-Owners Ins. Co. v. Amoco Prod. Co., 

658 N.W.2d 460, (Mich. 2003) (“The nature of the claim asserted by the subrogee 

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is determined by the nature of the claim that the subrogor would have had against 

the primary insurer.”); see also Auto Club Ins. Ass’n v. New York Life Ins. Co., 485 

N.W.2d 695, 699 (Mich. 1992) (“[T]he nature of the present suit by [the plaintiff], 

as suborgee, is determined by the nature of the claim that [its insured] would have 

had against [the defendant].”). 

In the present action, Progressive stands in the shoes of Davis seeking to 

recover personal protection insurance benefits from National as the priority payee. 

As Davis’ claim against National would have been for benefits under Michigan’s 

no-fault act, Progressive’s subrogation action is a no-fault claim as well. This is 

what distinguishes this action from those cited by Progressive in response to 

National’s statute of limitations argument. See, e.g., Auto Club Ins. Ass’n v. New 

York Life Ins. Co., 485 N.W.2d at 699-700 (concluding that a no-fault insurer’s 

action against its insured’s medical insurer to recover expenses paid after insured 

was injured in an automobile accident was not an action covered under the no-fault 

act, as a suit brought by the insured against his medical insurer would be a suit to 

enforce its health and accident contract, rather than an action for recovery of nofault benefits); Auto Club Ins. Ass’n v. Health Alliance Plan, No. 2:07-cv-14839, 

2009 U.S. Dist. LEXIS 6326, at *5 (E.D. Mich. Jan. 29, 2009) (defining no-fault 

insurer’s claim for reimbursement against ERISA health-care plan, which no-fault 

insurer alleged had the primary obligation to pay on insured’s claims, as an ERISA 

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action). Progressive’s action for recovery of personal protection insurance benefits 

therefore is governed by the no-fault act, including the one-year limitations period 

set forth in Michigan Compiled Laws § 500.3145(1). See Titan, 715 N.W.2d at 

326 (holding that § 500.3145(1) applies in an action where the plaintiff-insurer 

paid personal protection insurance benefits that the defendant-insurer allegedly 

should have paid to the plaintiff’s insured and the plaintiff-insurer sought to recoup 

the benefits it paid); see also Button, 2014 Mich. App. LEXIS 1661 *8 (holding 

that the action by an insurer who mistakenly paid benefits on behalf of injured 

party against the priority payee, “even to the extent labeled a common-law claim 

for reimbursement for mistaken payments, is subject to the one-year-back rule[]” 

in § 500.3145(1)). 

The no fault act’s statute of limitations provides in pertinent part: 

An action for recovery of personal protection insurance benefits 

payable under this chapter for accidental bodily injury may not be 

commenced later than 1 year after the date of the accident causing the 

injury unless written notice of injury as provided herein has been 

given to the insurer within 1 year after the accident or unless the 

insurer has previously made a payment of personal protection 

insurance benefits for the injury. If the notice has been given or a 

payment has been made, the action may be commenced at any time 

within 1 year after the most recent allowable expense, work loss or 

survivor's loss has been incurred. However, the claimant may not 

recover benefits for any portion of the loss incurred more than 1 year 

before the date on which the action was commenced. 

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Mich. Comp. Laws § 500.3145(1). Stated succinctly, the statute “limits recovery 

in an action for [personal protection insurance] benefits to those losses incurred 

within one year preceding the commencement of an action to recover such 

benefits.” Devillers, 702 N.W.2d at 547. Contrary to Progressive’s assertion, and 

as the plain language of the statute makes clear, it matters not when notice of the 

accident was provided to National for purposes of determining whether a claim is 

time-barred. 

Progressive filed the instant action on September 15, 2014. The one-yearback rule precludes Progressive from recovering personal protection insurance 

benefits incurred more than a year earlier. All of the benefits for which it seeks 

reimbursement were incurred by Davis before July 25, 2013-- that is, one year 

before the lawsuit was filed. 

In short, Progressive’s action for recoupment of the benefits it paid Davis 

pursuant to the arbitration award is time-barred under Michigan’s no-fault act. 

Having reached this conclusion, the Court need not address the issue raised in 

Progressive’s summary judgment motion. 

Accordingly, 

IT IS ORDERED that Plaintiff Progressive Michigan Insurance Company’s 

motion for summary judgment (ECF No. 19) is DENIED; 

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IT IS FURTHER ORDERED, that Defendant National Casualty 

Company’s motion for summary judgment (ECF No. 27) is GRANTED. 

Date: October 15, 2015 s/Linda V. Parker 

 LINDA V. PARKER 

 UNITED STATES DISTRICT JUDGE 

I hereby certify that a copy of the foregoing document was served upon the parties 

and/or counsel of record on October 15, 2015, by electronic and/or ordinary mail. 

 s/Teresa McGovern 

 acting in the absence of Richard Loury 

 Case Manager, (810) 341-7064 

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