If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports

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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**

LUCIA ZAMORANO, M.D., PLC,

Plaintiff,

and

OMIC, LLC, doing business as OAKLAND MRI,

Intervening Plaintiff

- Appellant, UNPUBLISHED March 28, 2019

v No. 341327 Wayne Circuit Court STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, LC No. 17

- 000744

- NF

Defendant

- Appellee.

Before: M URRAY , C .J., and G ADOLA and T UKEL , JJ.

P ER C URIAM

.

I ntervening plaintiff

, OMIC, LLC
, appeals as of right the trial court ’ s order granting defendant

, State Farm Mutual Automobile Insurance Company

, summary disposition of intervening plaintiff’s claim under MCR 2.116(C)(10)

. We reverse.

I. FACTS

This is an action by a health care provider seeking payment of personal protection insurance (PIP) benefits assigned to the provider by an insured motorist. On September 27, 2015, Sergio Machado allegedly was injured in an automobile accident . Machado’s treating physician, p laintiff

, Lucia Zamorano, M.D., referred M achado to intervening plaintiff, who allegedly performed MRIs for Machado in 2016 and 2017. Machado was insured under a no

fault insurance policy with defendant . The policy contains an anti

- assignment provision stating, in relevant part, that “[n]o assig nment of benefits or other transfer of rights is binding upon **us** unless approved by **us** .” Nonetheless, without defendant’s approval, Machado assigned to intervening plaintiff his right to payment under the policy of PIP benefits for th e medical- 2

- services he had received ; Machado made one assignment in November 2016 and another assignment in August 2017.

D efendant thereafter allegedly failed to fully reimburse plaintiff and intervening plaintiff fo r the services provided to Machado . P laintiff initiated t his action against defendant , and i ntervening plaintiff intervened in the action before the trial court , seeking payment of the assigned benefits. T he trial court granted summary disposition of intervening plaintiff’s claim i n favor of defendant

, concluding that Machado ’ s assignments were barred by the anti

- assignment clause in defendant ’ s policy

, and further concluding that the assignment was invalid because it was a partial assignment. Intervening plaintiff now appeals to this Court

. 1

II. DISC USSION

Intervening plaintiff contends on appeal that the trial court erred in finding that the anti

assignment provision of defendant ’ s insurance policy precluded the insured from assigning the PIP benefits under the policy to in tervening plaintiff. We a gree.

We review a trial court ’ s decision on a motion for summary disposition de novo

. Johnson v Vanderkooi , 502 Mich 751, 761; 918 NW2d 785 (2018)

. When reviewing a trial court’s decision granting summary disposition under MCR 2.116(C)(10)

, we consider all documentary evidence submitted by the parties in the light most favorable to the nonmoving party. Dawoud v State Farm Mut Auto Ins Co , 317 Mich App 517, 520; 895 NW2d 188 (2016). Summary disposition under MCR 2.116(C)(10) is warranted when there is n o genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id

. We also review de novo issues involving the proper interpretation of statutes and contracts. Titan Ins Co v Hyten , 491 Mich 547, 55 3; 817 NW2d 5 62 (2012).

Generally, i nsurance policies are contracts subject to the same construction principles that apply to any contract. Titan Ins Co , 491 Mich at 554. Unless a provision of a contract violates the law or a traditional defense to the enforceability of the contract, we construe an unambiguous contract as written. Henry Ford Health System v Everest Nat’l Ins Co , ___ Mich App ___, ___; ___ NW2d ___ (2 018) (Docket No. 341563) , slip op 2

. A contract is considered ambiguous when it is equally susceptible to more than one meaning. Id

. When, as here, the contract at issue involves the assignment of PIP benefits under a policy of no

- fault insurance , we re ad the contract and the no

- fault act, MCL 500.3101 et seq ., together

, as if the act were part of the contract. Titan Ins Co , 491 Mich at 554.

I n Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co , 500 Mich 191; 895 NW2d 490 (2017), the Michigan Supreme C ourt held that healthcare providers lack standing to bring a direct cause of action against insurers for PIP benefits . T he Court also noted that its holding in that case was “not intended to al ter 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. Thereafter, in Jawad A Sha h MD, PC v State Farm Mut Auto Ins Co , 324 Mich App 182; 920 NW2d 148 (2018), this Court

1 P laintiff Zamorano is not a party to this appeal.- 3

- held that an anti

- assignment clause in a no

- fault policy is unenforceable to prohibit an assignment that occurred after the loss or the accrual of the claim to payment “ because such a prohibition of assignment violates Michigan public policy that is part of our common law a s set forth by our Supreme Court. ” Id . at 200. In Shah

, this Court quoted the Michigan Supreme Court ’ s decision in Roger Williams Ins Co v Carrington , 43 Mich 252; 5 NW 303 (1880):

The assignment having been made after the loss, did not require consent o f the
company. The provision of the policy forfeiting it for an assignment without the
company ’ s consent is invalid, so far as it applies to the transfer of an accrued cause of action. It is the absolute right of every person

— secured in this State by
sta tute

— to assign such claims, and such a right cannot be thus prevented. It cannot concern the debtor, and it is against public policy. [ Shah , 324 Mich App at 199 , quoting Roger Williams , 43 Mich at 254.]

This Court concluded that, because our Supreme Cour t has never rejected the analysis from Roger Williams , it is controlling and, as a result, assignments made after a loss are valid and enforceable. Shah , 324 Mich App at 199

- 200. In accord, Henry Ford

, ___ Mich App at ___, slip op 3, concluding th at the anti

- assignment clause of the defendant insurer’s policy was unenforceable under the facts of that case

, which this Court noted were identical to those of Shah

. The facts of this case are remarkably similar to those in Shah and Henry Ford

. T he insured in this case was allegedly injured in an automobile accident, allegedly received medical treatment from a health care provider , and the treatment allegedly represented allowable expenses under the policy and the act. Thereafter, the insured ass igned his right to payment under his insurance policy to the healthcare provider, though the policy included an anti

assignment provision. That provision, as it relates to an agreement assigning a claim that has already accrued, is unenforceable as violat ive of Michigan public policy. Shah , 324 Mich App at 200. Following the precedent of Shah and Henry Ford , we conclude in this case that the anti

assignment provision in the policy issued to the insured by defendant does not operate to bar assignment of t he insured’s accrued cause of action. To the extent that defendant invites this Court to declare a conflict with Shah , we decline to do so for prudential reasons

. Intervening plaintiff also contends that the trial court erred in concluding that the assig nment of PIP benefits was an impermissible partial assignment, and therefore invalid. Again, we agree. I n Henry Ford

, this Court addressed whether an assignment of less than an entire cause of action for PIP benefits is invalid as a partial assignment in light of the prohibition at common law against splitting a cause of action. Henry Ford , ___ Mich App at ___; slip op at 4

- 5

. This Court concluded that the cou rt rule governing the necessary joinder of parties, MCR 2.205
, “ replaced the common

- law rule ag ainst splitting a cause of action[,] ” and it d oes not require an insured to assign an entire cause of action in order for an assignment to be enforceable. Id . at ___; slip op at 4 , quoting United Servs Auto Ass ’ n v Nothelfer , 195 Mich App 87, 89; 489 NW2d 150 (1992). T h is Court fur ther reasoned that this analysis is supported by MCL 500.3142, which provides that PIP benefits are payable as the loss accrues, and therefore, the no

- fault act “ contemplates and requires a multitu de of performances (i.e., payments) by the insurer[.] ” Henry Ford , ___ Mich App at ___; slip op at 4. Joinder, rather than dismissal, is the proper remedy if “ a proper disposition of the benefits sought by the healthcare provider requires- 4

- the presence of an additional party or parties[.] ” Id . at ___; slip op at 4. We therefore conclude in this case that intervening plaintiff ’ s cause of action is not invalid merely because Machado did not assign his entire cause of action to intervening plaintiff. 2 Hen ry Ford , ___ Mi ch App at ___; slip op at 4

- 5.

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

/s/ Christopher M. Murray /s/ Michael F. Gadola /s/ Jonathan Tukel

2 Because Shah and Henry Ford control the disposition of this case in favor of intervening plaintiff, it is unnecessary for us to reach intervening plaintiff’s alternative contentions that defendant lacks standing to challenge the assignments, that intervening plaintiff is an intended third party beneficiary under the polic y, and that MCL 440.9408 renders ineffective any restriction on the assignment of health care insurance receivables.