-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

HENRY FORD MACOMB,

Plaintiff-Appellee, UNPUBLISHED September 20, 2016

v No. 327572 Wayne Circuit Court FARMERS INSURANCE EXCHANGE, LC No. 14-009971-NF

Defendant-Appellant.

Before: B ECKERING , P.J., and C AVANAGH and G ADOLA , JJ.

G ADOLA

, J. ( dissenting ).

I respectfully dissent. I believe the trial court erred by de nying defendant’s motion for summary disposition because the one-year-back rule of MCL 500.3 145(1) precludes plaintiff’s recovery for losses incurred before August 4, 2013. 1

Section 3145 of the no-fault act, MCL 500.3101 et seq. , contains the one -year-back rule and provides the following:

An action for recovery of personal protection insurance benefi ts payable under this chapter for accidental bodily injury may not be comm enced later than 1 year after the date of the acci dent causing the injury unless w ritten 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 pr otection insurance benefits for the injury. If the notice has been given or a pay ment 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 incurr ed. 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. [MCL 500.3145(1) (emphasis added).]

1 This Court reviews de novo a tr ial court’s ruling on a motion for summary di sposition. Walsh v Taylor , 263 Mich App 618, 621; 689 NW2d 506 (2004). Similarly, we re view questions of statutory interpretation de novo. Griffith v State Farm Mut Auto Ins Co , 472 Mich 521, 525-526; 697 NW2d 895 (2005).-2- Accordingly, MCL 500.3145(1) contains two limitations on the ti me for filing a lawsuit and one limitation on the damages a claimant may recover. Joseph v Auto Club Ins Ass’n , 491 Mich 200, 207; 815 NW2d 412 (2012). Thus, although a no-fault action to recover personal protection insurance (PIP) benefits may be filed more than one year after the accident or a particular loss has been incurred, the one-year-back rule “limits recovery in that action to those losses incurred within the one year preceding the filing of the action.” Devillers v Auto Club Ins Ass’n , 473 Mich 562, 574; 702 NW2d 539 (2005).

Statutory language, including th e one-year-back rule of MCL 50 0.3145(1), must be enforced according to its plain and ordinary meaning. Id. at 582. When statutory language is unambiguous, reviewing courts pre sume that the Legislature inte nded the meaning that is clearly expressed, and further constructi on is neither required nor per mitted. Joseph , 491 Mich at 205. The one-year-back rule of “MCL 500.3145(1) . . . is clear” that “[d]amages are only allowed for one year back from the date the lawsuit is filed.” Cameron v Auto Club Ins Ass’n , 476 Mich 55, 63; 718 NW2d 784 (2006). 2 Therefore, a plain reading of MCL 500.3145(1) compels me to conclude that, because plaintiff did not file its complaint unt il August 4, 2014, its recovery was

limited to losses incurred on or after August 4, 2013, i.e., on e year back from the date the lawsuit

was filed. See Devillers , 473 Mich at 565-566 (holding that the one-year-back rule prec luded a plaintiff who filed a complaint on November 12, 2002, from reco vering damages for losses incurred before November 12, 2001); Joseph , 491 Mich at 222 (holding that a plaintiff who filed her complaint on February 27, 2009, was limited to recovering d amages for losses “incurred on or after February 27, 2008”).

Despite the fact that plaintiff filed its complaint on August 4, 2014, the majority nonetheless concludes that, by a pplying MCR 1.108(1), plaintiff was permitted to recover damages dating back to August 2, 2013. In my opinion, MCR 1.10 8 is not applicable to this case and the majority’s proposed application of the court rule would violate the separation of powers doctrine outlined in the Michigan Constitution.

The majority’s analysis overl ooks the fact that the portion of the statute at issue in this case is not the forward-looking statute of limitations, but rat her the backward-looking limitation on damages, i.e., the one-year-b ack rule, contained in the fina l sentence of MCL 500.3145(1). It eludes me why the majority perceives a need to apply MCR 1.108 to this portion of the statute in the first place. One year is one year, such that one year befo re August 4, 2014 is August 4, 2013. We do not need the aid of a court rule to tell us this, even in the legal profession. In my opinion, relying on MCR 1.108 to compute a period one year back in time from the date on which an action was commenced, for the purpose of limiting damages, is b oth unreasonable and unnecessary because it is irrelevant whether the day one year e arlier was “a Saturday, Sunday, legal holiday, or day on which the c ourt is closed pursuant to court order.” MCR 1.108(1).

Additionally, Article 3 of the Michigan Constitution states th at “[n]o person exercising powers of one branch shall exer cise powers properly belonging t o another branch except as

2 Cameron was overruled by Regents of Univ of Mich v Titan Ins Co , 487 Mich 289, 292-293; 791 NW2d 897 (2010), but was t hen reinstated by Joseph , 491 Mich at 203-204.-3- expressly provided in this constitution.” Const 1963, art 3, § 2; see Zdrojewski v Murphy , 254 Mich App 50, 81; 657 NW2d 721 (2002). The Constitution grants our Supreme Court authority to make rules that “establish, modify, amend and simplify the p ractice and procedure in all courts of this state.” Const 1963, art 6, § 5. However, that authori ty only extends to matters of practice and procedure because the Legisl ature, not the courts, has auth ority to establish substantive law. McDougall v Schanz , 461 Mich 15, 26-27; 597 NW2d 148 (1999); Zdrojewski , 254 Mich App at

81.

“[C]ourts are required to apply [MCR 1.108] where applicable.” People v Sinclair , 247 Mich App 685, 689; 638 NW2d 120 (2001). However, the court rul e is only applicable to matters involving practice and procedure in which our Supreme C ourt has exclusive authority to determine the rules. Const 1963, art 6, § 5. A statute is pro cedural when there is “ ‘no clear legislative policy reflecting cons iderations other than judicia l dispatch of litigation.’ ” McDougall , 461 Mich at 30, quoting Kirby v Larson , 400 Mich 585, 598; 256 NW2d 400 (1977). By contrast, when a statutory provision is grounded on policy c onsiderations other than regulating the procedural operatio ns of the judiciary, it is co nsidered substantive law. Zdrojewski , 254 Mich App at 81-82. “[I]t c annot be disputed that enactin g court rules that establish, abrogate, or modify t he substantive law transcends t he limits of [the Supreme Court’s] authority” because “matters of substantive law are left to the Legislature.” People v Jones , 497 Mich 155, 165-166; 860 NW2d 112 (2014) ( citations and quotation marks omitted).

“Statutes of limitation in this state are generally regarded a s procedural and not

substantive in nature. Therefo re, MCR 1.108 is applicable as a procedural matter.” Sinclair , 247 Mich App at 689 (citation omitted). However, “the one-year-bac k rule is not a statute of limitations in that it does not limit the period of time within which a claimant may file an action;” rather, the rule represe nts a statutory cap on damages a claimant is entitled to recover. Joseph , 491 Mich at 216. It is apparen t that the one-year-back rule is substantive in nature, rather than procedural, because it reflects legislative policy considerations other than court practice and procedure. See generally Zdrojewski , 254 Mich at 82 (explaining that statutes capping damages in medical malpr actice actions represent substa ntive law because “[t]he purpose of the statutes is to control health care costs by redu cing medical malpractice liability”). As our Supreme Court explained in Joseph , 491 Mich at 220-221:

The one-year-back rule codifies a n integral part of the legisl ative compromise that is the no-fault act . . . . Given that Michiga n is the only state with a no-fault automobile-injury reparations scheme with manda tory, unlimited, lifetime medical benefits, the L egislature adopted a unique app roach to defining the temporal limitations for filing suit without allowing open- ended liability or time-barring claims before they accrue. The Legislature address ed this problem by enacting the one-year-back ru le, which limits recovery to lo sses incurred within one year before suit was filed. Thus, the creation of M CL 500.3145(1) was the Legislature’s reasonable and simple approach to resolvi ng the problem of allowing a reasonable amount of time for pursuing a claim while protecting the fiscal integrity of the no-fault system.

The one-year-back rule of MCL 500.3145(1) concerns a matter of substantive law, rather than procedure. In my opinion, application of MCR 1.108 in the manner proposed by the-4- majority would violate the separation of powers doctrine becaus e it would apply the court rule in a way that impermissibly modifies the plain language of the sub stantive law. See McDougall

, 461 Mich at 27 (“[The Supreme Court] is not authorized to enact court rules that establish, abrogate, or modify the substantive law.”); see also Jones , 497 Mich at 166 (“[C]ourts may not promulgate procedural rules contrary to [substantive law], but are instead required to adhere to legislative dictates.”). Consid ering the plain language of MCL 500.3145(1), I would hold that the one-year-back rule precludes plaintiff’s recovery for losse s incurred before August 4, 2013, or one year before it filed its lawsuit on August 4, 2014.

/s/ Michael F. Gadola