Michigan Supreme Court 

# Order

Lansing, Michigan

May 16, 2008 Clifford W. Taylor, Chief Justice 133466 & (70)(71) Michael F. Cavanagh 133468 Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. UNITED STATES FIDELITY INSURANCE & Stephen J. Markman, GUARANTY COMPANY, Justices Plaintiff-Appellee,

v SC: 133466 COA: 260604 Oakland CC: 2003-051485-CK MICHIGAN CATAST ROPHIC CLAIMS ASSOCIATION, Defendant-Appellant,

and

MICHAEL MIGDAL, Individually and as Conservator for the Estate of DANIEL MIGDAL, a Protected Person, Defendant.

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HARTFORD INSURANCE COMPANY OF THE MIDWEST, Plaintiff-Appellee,

v SC: 133468 COA: 271199 Oakland CC: 2006-071933-CK MICHIGAN CATAST ROPHIC CLAIMS ASSOCIATION, Defendant-Appellant.

________________ _______________ __________/

On order of the Court, the applications for leave to appeal the February 6, 2007 judgment of the Court of Appeals are cons idered, and they are GRAN TED. The parties shall include among the issu es to be briefed whether MCL 500.3104(2) obligates the Michigan Catastrophic Claims Associatio n (“MCCA”) to reimburse member insurers’ reimbursement claims without regard to th e reasonableness of the member’s payments to PIP claimants. In addressing this i ssue, the parties sh all consider:_______________________________________ __ 2

(1) Whether factors to consider in det ermining whether the MCCA is precluded from questioning the reasonableness of the reim bursement claims in these cases include the MCCA’s failure to exercise to their full extent, before entry of the consent judgment in No. 133466 and the settlement agreement in No. 133468, its pow ers under MCL 500.3104(7)(b) and (g) to:

(a) require notice of claims lik ely to involve the MCCA;

(b) require notice of subs equent developments likel y to materially affect the MCCA’s interests;

(c) establish claims procedures and practices for MCCA members; and,

(d) if the MCCA consid ers a member’s claims procedures and practices inadequate, to undertake to ad just or assist in adjusti ng the claim, at the member’s expense, so as to ensure th at member claims submitted to the MCCA for reimbursement are, in fact, reasonable; and

(2) Whether, like the terms of declaratory judgments pertaining to PIP benefits payable in the future, the terms of co nsent judgments and settlement agreements pertaining to PIP benefits that embody terms that prove over time to call for reimbursement at a rate higher than th e actual cost incurred are subject to:

(a) reduction based on the require ment that an expense mu st be actually incurred before a no fault insurer is obliged to pay it; and

(b) redetermination from time to time of th e amounts properly allowable, based on a change in facts or circumsta nces after entry of the cons ent judgment or settlement agreement. Cf. Manley v DAIIE , 425 Mich 140, 157 (1986); Proudfoot v State Farm Mut
Ins Co , 469 Mich 476, 483-484 (2003).

The motions for leave to file bri efs amicus curiae are GRANTED. The Commissioner of Insurance, Mich igan Defense Trial Counsel, Inc., and the Michigan Association for Justice are invited to file briefs amicus curi ae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.

p0513 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

May 16, 2008

Clerk