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

MICHIGAN INSTITUTE OF PAIN AND 

HEADACHE, PC, doing business as METRO 

PAIN CLINIC,

Plaintiff-Appellant,

UNPUBLISHED

May 21, 2019

v No. 343263

Oakland Circuit Court

ALLSTATE INSURANCE COMPANY, LC No. 2017-159642-NF

Defendant-Appellee.

Before: REDFORD, P.J., and MARKEY and K. F. KELLY, JJ.

PER CURIAM.

Plaintiff is a healthcare provider that treated a father and his daughter, who were injured 

in a motor vehicle accident. Defendant was the no-fault insurer responsible for providing 

personal protection insurance (PIP) benefits. The injured persons assigned their rights to no-fault 

benefits to plaintiff. The trial court granted defendant’s motion for summary disposition under 

MCR 2.118(C)(8). Citing Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich 191; 

895 NW2d 490 (2017), the trial court ruled that”[b]ecause a health care provider possesses no 

statutory cause of action under the no-fault act[, MCL 500.3101 et seq.,] against a no-fault 

insurer for recovery of PIP benefits, dismissal is appropriate.” We reverse and remand for 

further proceedings.

In plaintiff’s complaint, it alleged that “[a]ll rights, privileges and remedies to payment 

for health care services, products or accommodations provided . . . to the injured parties, . . . for 

which the injured parties are or may be entitled to under . . . the No Fault Act, have been 

assigned to Plaintiff, hereto attached as Exhibit A.” Plaintiff, however, apparently neglected to 

attach any assignments to its complaint.1 Subsequently, defendant moved for summary 

disposition under MCR 2.116(C)(8) arguing that Covenant barred plaintiff’s lawsuit. Defendant 

 1 The complaint in the electronic lower court record does not have any exhibits attached to it. 
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also noted that no assignments were attached to plaintiff’s complaint. At the hearing on 

defendant’s motion for summary disposition, plaintiff’s counsel indicated her belief that the 

assignments had been attached to the complaint. But to the extent that they were not attached, 

counsel requested that the court allow her to amend the complaint to attach the assignments.2 

The trial court took the matter under advisement and later issued its opinion granting defendant’s 

motion on the strength of Covenant. The court made no mention of plaintiff’s request to amend 

its complaint to add the assignments as exhibits. It is clear from the trial court’s ruling and the 

record that the failure to attach the assignments to the complaint played no role in the court’s 

decision. The trial court later denied plaintiff’s motion for reconsideration. 

We review de novo a trial court's ruling on a motion for summary disposition. Loweke v 

Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011). MCR 

2.116(C)(8) provides for summary disposition when a “party has failed to state a claim on which 

relief can be granted.” MCR 2.116(C)(8) tests the legal sufficiency of a complaint. Beaudrie v 

Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). A trial court may only consider the 

pleadings in rendering its decision. Id. All factual allegations in the complaint must be accepted 

as true. Dolan v Continental Airlines/Continental Express, 454 Mich 373, 380-381; 563 NW2d 

23 (1997). “The motion should be granted if no factual development could possibly justify 

recovery.” Beaudrie, 465 Mich at 130.

In Covenant, 500 Mich at 196, our Supreme Court held “that healthcare providers do not 

possess a statutory cause of action against no-fault insurers for recovery of personal protection 

insurance benefits under the no-fault act.” But the Supreme Court, citing MCL 500.3143 and 

Prof Rehab Assoc v State Farm Mut Auto Ins Co, 228 Mich App 167, 172; 577 NW2d 909 

(1998), made clear that its “conclusion . . . is not intended to alter an insured’s ability to assign 

his or her right to past or presently due benefits to a healthcare provider.” Covenant, 500 Mich at

217 n 40. And in W A Foote Mem Hosp v Mich Assigned Claims Plan, 321 Mich App 159, 195; 

909 NW2d 38 (2017), this Court noted “that providers have always been able to seek 

reimbursement from their patients directly or to seek assignment of an injured party’s rights to 

past or presently due benefits . . . .” Accordingly, contrary to the trial court’s ruling, we 

conclude that plaintiff was generally entitled to pursue an action for no-fault benefits against 

defendant on the basis of the assignments. We, however, must address some additional issues 

and arguments.

Plaintiff was required to attach the assignments to the complaint because its claim was 

“based on a written instrument.” MCR 2.113(C)(1).3 An attached written instrument becomes 

“part of the pleading for all purposes.” MCR 2.113(C)(2). Summary disposition may be

appropriate under MCR 2.116(C)(8) when a written instrument is not attached to a complaint as 

required. Liggett Restaurant Group, Inc v City of Pontiac, 260 Mich App 127, 133; 676 NW2d 

 2 The assignments were attached to plaintiff’s brief in response to defendant’s motion for 

summary disposition.

3 This provision was found in MCR 2.113(F)(1) at the time of the lower court proceedings before 

our Supreme Court amended the court rule effective September 1, 2018. 501 Mich. 
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633 (2004). Despite plaintiff’s failure to attach the assignments to its complaint, plaintiff asked 

the court for an opportunity to amend the complaint to add the assignments. And MCR 

2.116(I)(5) provides that “[i]f the grounds asserted [for summary disposition] are based on 

subrule (C)(8), (9), or (10), the court shall give the parties an opportunity to amend their 

pleadings as provided by MCR 2.118, unless the evidence then before the court shows that 

amendment would not be justified.” (Emphasis added.) “Leave shall be freely given when 

justice so requires.” MCR 2.118(A)(2). Leave to amend is typically a matter of right rather than 

of grace; therefore, leave to amend should ordinarily be denied only for particularized reasons 

such as futility, undue delay, bad faith, dilatory motive, or repeated failures to cure by 

amendments previously allowed. Bennett v Russell, 322 Mich App 638, 647; 913 NW2d 364 

(2018). Keeping in mind these principles, we conclude there was no reason not to grant 

plaintiff’s request to amend its complaint to add the assignments as attachments to the 

complaint.

4

 

Defendant, however, maintains that any amendment would be futile because the 

assignments were only partial assignments and because the insurance policy at issue prohibited 

the insureds from transferring the policy to anyone without defendant’s consent, which was 

never given. In Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co, 324 Mich App 182, 200; 

920 NW2d 148 (2018), this Court held that an anti-assignment clause was “unenforceable to 

prohibit the assignment that occurred [in the case]—an assignment after the loss occurred of an 

accrued claim to payment—because such a prohibition of assignment violates Michigan public 

policy . . . .” This Court subsequently reaffirmed the holding in Shah. Henry Ford Health Sys v 

Everest Nat’l Ins Co, __ Mich App __, __; __ NW2d __ (2018); slip op at 4 (“Accordingly, we 

must conclude that the anti-assignment clause in defendant’s policy is unenforceable because it 

is contrary to public policy.”). Furthermore, the Henry Ford panel rejected the partialassignment argument defendant proffers us here, concluding that if it “were to hold that the 

assignment . . . was an unenforceable partial assignment, it would effectively render the insured’s 

right to assign a claim for past or presently due benefits meaningless.” Id. at __; slip op at 6.5 

Shah and Henry Ford constitute binding case law. MCR 7.215(J)(1).6

 4 Again, it appears that the trial court was prepared to grant the motion for summary disposition 

regardless of the assignments, attached or not. The court overlooked the plain and unambiguous 

language in Covenant allowing healthcare providers to file suit against no-fault insurers based on 

assignments by injured insureds. 

5 Defendant also argues that plaintiff cannot maintain a third-party beneficiary contract claim 

against defendant. Plaintiff emphatically stated in the trial court and does so again on appeal that 

it did not plead a third-party beneficiary claim. Accordingly, it is clear that plaintiff is not 

appealing that portion of the trial court’s opinion and order dismissing any third-party 

beneficiary claim against defendant. Therefore, we need not further discuss the issue.

6 We recognize that the Michigan Supreme Court has ordered the scheduling of oral argument on 

the application for leave to appeal in Shah for the purpose of addressing the issue concerning the
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We reverse and remand for further proceedings consistent with this opinion. We do not 

retain jurisdiction. Having fully prevailed on appeal, we award taxable costs to plaintiff pursuant 

to MCR 7.219.

/s/ James Robert Redford

/s/ Jane E. Markey 

/s/ Kirsten Frank Kelly 

 

validity of anti-assignment clauses. 503 Mich 882 (2018). But as of today, Shah remains binding 

precedent.