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

LISA GIRIMONTE,

Plaintiff-Appellant,

FOR PUBLICATION

November 9, 2023

9:00 a.m.

v No. 362128

Macomb Circuit Court

LIBERTY MUTUAL INSURANCE COMPANY, LC No. 2020-002185-NF

Defendant-Appellee,

and

ALLSTATE PROPERTY AND CASUALTY 

INSURANCE COMPANY,

Defendant.

Before: CAVANAGH, P.J., and RIORDAN and PATEL, JJ.

RIORDAN, J.

Plaintiff, Lisa Girimonte, appeals as of right the trial court’s order dismissing her claim for 

personal protection insurance (PIP) benefits under the no-fault act, MCL 500.3101 et seq. For the 

reasons set forth, while we agree with the legal reasoning of the trial court, we vacate its order 

dismissing this case and remand to that court for further proceedings. 

I. BACKGROUND FACTS

In October or November 2016, plaintiff was a passenger on a motorcycle being driven in 

Detroit by Robert Saxman when a collision occurred between the motorcycle and a car. Plaintiff 

alleges that she sustained serious injuries in the accident. At the time of the accident, Saxman had 
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a no-fault policy issued by Allstate Property and Casualty Insurance Company, while plaintiff had 

one issued by defendant, Liberty Mutual Insurance Company.

1

Defendant began paying plaintiff’s medical expenses in 2016. At some point, however, a 

dispute arose with respect to plaintiff’s entitlement to PIP and underinsured-motorist benefits, and 

whether defendant or Allstate was the insurer primarily responsible for paying such benefits. 

Plaintiff thus sued defendant and Allstate in 2019.2 In that case, defendant filed a motion for 

summary disposition, asserting that Allstate was the primary insurer, and seeking dismissal on that 

basis. Plaintiff and defendant were apparently in agreement on that point, and stipulated to dismiss 

defendant without prejudice in March 2020. The trial court later dismissed the case without 

prejudice in January 2021.

Plaintiff filed the present lawsuit against Allstate in June 2020. Plaintiff did not initially 

name defendant as a party, but instead filed a motion with the trial court in the previous case asking 

it to reinstate the case with respect to defendant; the court denied that motion and plaintiff’s motion 

for reconsideration. Plaintiff, with Allstate’s concurrence, successfully moved the trial court to 

amend her complaint in this case to add defendant as a party. After discovery, Allstate successfully 

moved for summary disposition.

Defendant moved for partial summary disposition, arguing that, under MCL 500.3145, 

plaintiff was barred from recovering PIP benefits for expenses incurred more than one year before 

the filing of her first amended complaint that named defendant as a party.

3

 Defendant contended

that because plaintiff filed her amended complaint naming defendant on June 16, 2021, the oneyear-back rule barred her claim for PIP benefits for expenses incurred before June 16, 2020. 

Plaintiff responded by asserting that MCL 500.3145(3), which was added as part of several 

amendments to the no-fault act in 2019, see 2019 PA 21, provides that the one-year-back rule is 

tolled beginning on the date a claim for PIP benefits is made and does not resume running until an 

insurer “formally denies the claim.”

4 Plaintiff further asserted that the one-year-back period 

remained tolled because there had been no formal denial of her claim, and thus the one-year-backrule did not bar her claim for PIP benefits in the instant case.

 

1 Both Allstate and Liberty Mutual were named as defendants in this case. However, Allstate has 

neither appeared before this Court nor filed a brief. The issue presented does not concern Allstate, 

and neither party has raised any issue having any connection to Allstate and its dismissal from this 

case. References to “defendant” will refer solely to defendant-appellee, Liberty Mutual.

2 As discussed below, that lawsuit was a separate one, filed before this case.

3 This rule is often referred to as the “one-year-back rule.”

4 On appeal, defendant does not contend that it issued a “formal” denial sufficient to restart the 

one-year-back-rule clock in this matter. Instead, it simply argues that previous version of the 

statute, in which the tolling provision did not appear, should apply. Defendant did raise the issue 

in its reply brief in support of its motion for partial summary disposition (relying on a denial of 

one specific category of services, but not all of them), but has since apparently abandoned it, or, 

at the very least, appears to tacitly concede it for purposes of this appeal.
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Defendant filed a reply brief in which it asserted that the current version of the statute was 

not effective until after plaintiff sustained her injuries, and thus that the former version, which did 

not have the tolling provision, applied instead, rendering plaintiff’s claim for any PIP benefits 

pertaining to expenses incurred before June 16, 2020, untimely.

The trial court granted defendant’s motion. The trial court premised its ruling on its 

conclusion that the amended version of MCL 500.3145 could not be applied retrospectively “since 

the Legislature did not make clear its intention that the amendment . . . apply retroactively and the 

amendment affects the parties [sic] substantial rights. Further, retroactive application . . . would 

impose a new legal obligation on [defendant] that did not exist prior to the amendment . . . .” The 

trial court reasoned that defendant had “substantive rights” to deny coverage and “to deny claims 

incurred more than one year before” the filing of a complaint.

Defendant later filed a motion for summary disposition with respect to the remaining issues 

in the case, on the grounds that discovery established that there were no outstanding claims for 

benefits, and no expenses incurred after June 16, 2020, the date through which the trial court 

granted partial summary disposition on the basis of the one-year-back rule. The trial court granted 

that motion. The trial court later entered a stipulated order that dismissed this case with prejudice.

II. STANDARD OF REVIEW

“This Court reviews de novo a trial court’s decision to grant or deny summary disposition 

under MCR 2.116(C)(10).” Mazzola v Deeplands Dev Co LLC, 329 Mich App 216, 223; 942 

NW2d 107 (2019). “A motion under MCR 2.116(C)(10) . . . tests the factual sufficiency of a 

claim.” El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019) 

(emphasis omitted). “When considering such a motion, a trial court must consider all evidence 

submitted by the parties in the light most favorable to the party opposing the motion.” Id. “A 

motion under MCR 2.116(C)(10) may only be granted when there is no genuine issue of material 

fact.” Id. “A genuine issue of material fact exists when the record, giving the benefit of reasonable 

doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” 

West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).

“Issues involving statutory interpretation present questions of law that are reviewed de 

novo.” Le Gassick v Univ of Mich Regents, 330 Mich App 487, 495; 948 NW2d 452 (2019). 

III. DISCUSSION

The parties agree that the sole issue before this Court is whether the current version of 

MCL 500.3145, as amended by 2019 PA 21, or the pre-amendment version, applies here. Plaintiff 

argues that the current version applies because the instant case was commenced after the effective 

date of the amendment. Defendant argues that the pre-amendment version applies because the 

accident occurred before the effective date of the amendment, and the amendment does not apply 

retroactively. For the reasons set forth, we agree with the trial court and defendant that the 

amendment to MCL 500.3145 does not apply retroactively. However, because that conclusion 

does not necessarily result in defendant entirely prevailing, we vacate the trial court’s order and 

remand to that court for further proceedings.

Previously, MCL 500.3145(1) provided, in relevant part:
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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. . . .

In Joseph v Auto Club Ins Ass’n, 491 Mich 200; 815 NW2d 412 (2012), our Supreme Court 

explained that the second and third sentences of MCL 500.3145(1) set forth the “one-year-back 

rule,” which provides that “recovery is limited only to losses that have been incurred during the 

year before the filing of the action.” Id. at 203, 208. Before 2019, the one-year-back rule did not 

include “a judicial tolling mechanism.” See Devillers v Auto Club Ins Ass’n, 473 Mich 562, 566; 

702 NW2d 539 (2005).

MCL 500.3145 was amended by 2019 PA 21, effective June 11, 2019, and currently 

provides, in relevant part:

(2) Subject to subsection (3), 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.

(3) A period of limitations applicable under subsection (2) to the 

commencement of an action and the recovery of benefits is tolled from the date of 

a specific claim for payment of the benefits until the date the insurer formally denies 

the claim. This subsection does not apply if the person claiming the benefits fails 

to pursue the claim with reasonable diligence.

In Encompass Healthcare, PLLC v Citizens Ins Co, ___ Mich App ___, ___; ___ NW2d 

___ (2022) (Docket No. 357225); slip op at 6-7, this Court explained that the amendments to MCL 

500.3145 “act to supersede our Supreme Court’s ruling in Devillers” and thus “impose a tolling 

exception to the one-year-back rule.” “Now, the one-year-back period is tolled until the date of 

the insurer’s formal denial of a claim.” Id. at___; slip op at 1.

Resolving this appeal involves the interplay between Encompass Healthcare and Spine 

Specialists of Mich, PC v MemberSelect Ins Co, ___ Mich App ___; ___ NW2d ___ (2023) 

(Docket No. 358296). In Encompass Healthcare, the injured party received medical treatment 

from June to October 2018, and a lawsuit was filed in November 2019 regarding whether that 

treatment should be reimbursed by the defendant. Encompass Healthcare, ___ Mich App at __; 

slip op at 2. The plaintiff, which sought reimbursement, “conceded that its expenses were incurred 

more than a year before it initiated this action, but argued that reimbursement was nevertheless 

warranted because of the recently adopted tolling provision within MCL 500.3415(3).” Id. at ___; 
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slip op at 2. The plaintiff reasoned that “because [the defendant] never formally denied its 

reimbursement claims, the one-year-back rule remained tolled and [the plaintiff] was not required 

to preserve its claims with an earlier complaint.” Id. at ___; slip op at 2. The defendant responded 

that “the circuit court correctly determined that the EORs [explanations of review] constituted 

formal denials under MCL 500.3145(3), thereby ending the tolling period for each reimbursement 

claim.” Id. at ___; slip op at 4. This Court agreed with the plaintiff, stating that “[t]he EORs 

included no language clearly stating that the claims were denied, at least not with the finality and 

clarity required to end the tolling period.” Id. at ___; slip op at 7. Thus, this Court concluded that 

“the application of the one-year-back rule remained tolled until this lawsuit was filed,” thereby 

apparently allowing the plaintiff to recover for all of the claimed medical treatment. Id. at ___; 

slip op at 1. In a footnote, this Court stated as follows:

The no-fault act, MCL 500.3103 et seq., was substantially amended by 2019 

PA 21, effective June 11, 2019. Because Encompass’s complaint was filed after 

these amendments took effect, this case is governed by the newly adopted statutory 

language. See George v Allstate Ins Co, 329 Mich App 448, 451 n 3; 942 NW2d 

629 (2019) (“This case was commenced before the [2019] amendment[s] and, 

therefore, it is controlled by the former provisions of the no-fault act.”). [Id. at ___; 

slip op at 2 n 1.]

In Spine Specialists, the plaintiff sought reimbursement from the defendant for medical 

treatment provided to the injured party in April and May 2019. Spine Specialists, ___ Mich App 

at ___; slip op at 3. The plaintiff filed its complaint in September 2020. Id. at ___; slip op at 3. 

This Court concluded that the plaintiff could not recover for any of the claimed medical treatment, 

reasoning as follows:

In the absence of any Legislative statement of retroactive application, and 

in light of the presumption against retroactive application of a statutory amendment, 

the trial court in this case correctly determined that the amendment to MCL 

500.3145 does not apply retroactively. . . .

* * *

In this case, the loss was incurred when [the injured party] received medical 

treatment from plaintiff in April-May 2019, and the claims for those services 

accrued at that time. [See MCL 500.3110(4).] The law in effect at the time the 

claims accrued was the pre-amendment version of MCL 500.3145; the amended 

version of the statute did not take effect until June 11, 2019, and does not apply 

retroactively. The trial court therefore did not err by applying the pre-amendment 

version of MCL 500.3145 to plaintiff’s April-May 2019 claims and granting 

defendant summary disposition of those claims. [Id. at ___; slip op at 4-5 (citations 

omitted).]

At first glance, Encompass Healthcare and Spine Specialists appear to be conflicting 

because the former case apparently allowed the plaintiff to recover for claimed medical expenses 

incurred between June and October 2018, notwithstanding that the action was not commenced 

until November 2019, more than one year after the expenses were incurred. In this regard, footnote 
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one of Encompass Healthcare suggests that, when an action is commenced on or after June 11, 

2019, the amendment to MCL 500.3145 applies to all claimed medical expenses in that action. On 

the other hand, however, Spine Specialists held that claims for medical expenses accrue when they 

are actually incurred, and because the amendment to MCL 500.3145 does not apply retroactively, 

such claims that accrue before June 11, 2019, are not subject to the current version of the statute.

“ ‘If at all possible, the opinions [perceived as conflicting] should be harmonized.’ ” In re 

Simpson, 500 Mich 533, 568 n 64; 902 NW2d 383 (2017), quoting Garner et al., The Law of 

Judicial Precedent (2016), p. 300. We conclude that Encompass Healthcare and Spine Specialists

may be harmonized by interpreting Encompass Healthcare as deciding the meaning of “formally 

denies” in the current version of MCL 500.3145, whereas Spine Specialists decided that the tolling 

provision in the current version of MCL 500.3145 does not apply to expenses that are incurred

before June 11, 2019, because the amendment does not apply retroactively. In this regard, we find 

the analysis of Health Partners, Inc v Progressive Mich Ins Co, unpublished per curiam opinion 

of the Court of Appeals, issued March 9, 2023 (Docket No. 359096), persuasive:5

The issue in this case is whether Health Partners can rely on the tolling provision 

added in the amended version of § 3145, even though the bills were incurred before 

the effective date of the amendment. 

This Court recently resolved this issue in Spine Specialists, and held that 

the amendments to § 3145 do not apply retroactively to claims that accrued before 

June 10, 2019, the effective date of the amendments. . . .

Spine Specialists is directly applicable to the facts of this case and is 

binding. See MCR 7.215(C)(2). The pre-amendment version of § 3145 applies to 

the claims at issue here, which were incurred from December 2017 through March 

10, 2019. Plaintiff cannot rely on the tolling provision in the amended statute and 

the at-issue claims are time barred.

Health Partners argues that this Court should not apply Spine Specialists, 

and, instead, relies on Encompass Healthcare for the proposition that the amended 

statute applies to losses incurred before June 10, 2019. Because Encompass 

Healthcare was released prior to Spine Specialists, Health Partners argues that it 

should control the outcome of this case. We disagree.

Encompass Healthcare, like Spine Specialists, and this case, dealt with 

medical care provided before June 10, 2019 (the effective date of the amended 

statute), the one-year-back rule, and the amended version of § 3145. The 

distinction, however, is that the parties in Encompass Healthcare did not dispute 

that the amended statute—with the tolling provision—applied. . . . Because the 

parties did not raise it, this Court never reached the issue of retroactive application 

of the amended statute in Encompass Healthcare. Instead, the parties disputed, and 

 

5

“Unpublished opinions are . . . not binding authority but may be persuasive or instructive.” 

Haydaw v Farm Bureau Ins Co, 332 Mich App 719, 726 n 5; 957 NW2d 858 (2020).
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this Court decided, whether the defendant had “formally denied” the plaintiff’s 

claims. This Court held that the claims were never formally denied because the 

defendant “did not provide the explicit and unequivocal expression of finality 

required to constitute formal denials[.]” This Court concluded that, because there 

was never a formal denial, the one-year-back rule was tolled.

Unlike the parties in Encompass Healthcare, the parties in Spine Specialists

did raise the issue of whether the amended statute applies retroactively. We are 

bound by that decision. [Id. at 4 (citations omitted).]

Accordingly, we agree with the trial court and defendant that the amendment to MCL 

500.3145 does not apply retroactively.6 That is, under Spine Specialists, the tolling provision in 

the current version of MCL 500.3145 does not apply to expenses that are incurred before June 11, 

2019. However, under MCL 500.3110(4), expenses that are incurred on or after that date may be 

subject to the tolling provision because the no-fault act treats each expense as a newly accrued 

claim.7 To the extent that the trial court concluded that the amendment to MCL 500.3145 does not 

apply retroactively, we affirm its reasoning.

Nonetheless, we cannot simply affirm the trial court in its entirety because the record is 

unclear whether any of plaintiff’s claimed medical expenses were incurred on or after June 11, 

2019, the effective date of 2019 PA 21.8 Therefore, we vacate the trial court’s order dismissing 

this case and remand to that court for further proceedings regarding whether any of plaintiff’s 

 

6

In Andary v USAA Casualty Ins Co, ___ Mich App ___; ___ NW2d ___ (2022) (Docket No. 

356487) (Andary I), aff’d in part and rev’d in part on other grounds ___ Mich ___; ___ NW2d ___ 

(2023) (Docket No. 164772) (Andary II), this Court held that 2019 PA 21’s amendment of MCL 

500.3157(7) and (10), which caps attendant-care expenses and imposes new fee schedules for 

certain services, was not to be applied retroactively. Andary I, ___ Mich App at ___; slip op at 11. 

Our Supreme Court affirmed this Court’s holding on that point. Andary II, ___ Mich at ___; slip 

op at 41. Both cases explicitly state that the issue before both this Court and the Supreme Court 

was the retroactivity, or lack thereof, of the amendments of MCL 500.3157(7) and (10), as opposed 

to 2019 PA 21 in its entirety. See Andary I, ___ Mich App at ___, ___; slip op at 3, 11; Andary 

II, ___ Mich at ___, ___; slip op at 8, 41. Thus, neither Andary I nor Andary II controls the 

outcome of this case, although we note that our conclusion that the amendment to MCL 500.3145 

is not retroactive is consistent with those cases. 

7 MCL 500.3110(4) provides that “[p]ersonal protection insurance benefits payable for accidental 

bodily injury accrue not when the injury occurs but as the allowable expense, work loss or 

survivors’ loss is incurred.” In other words, “an expense is incurred or a patient becomes liable 

when an agreement to pay is executed and treatment is received.” Bronson Health Care Group, 

Inc v USAA Cas Ins Co, 335 Mich App 25, 35-36; 966 NW2d 393 (2020) (emphasis omitted).

8 We note that defendant represented in ¶ 3 of its October 5, 2021 motion for partial summary 

disposition that “[t]he time period being claimed by Plaintiff is April 12, 2018 through November 

18, 2019.” The basis for that representation is not immediately clear. 
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claimed medical expenses were incurred on or after that date, which would render them subject to 

the current version of MCL 500.3145.

IV. CONCLUSION

We vacate the trial court’s order dismissing this case and remand to that court for further 

proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Michael J. Riordan 

/s/ Mark J. Cavanagh 

/s/ Sima G. Patel